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Post-Confinement Restriction

Court Martial Attorney — Thu, 12 Jan 2012 01:01:00 GMT

In UNITED STATES v. SCHUBER, 70 MJ 181 (C.A.A.F. 2011) Schuber was subject to restriction not tantamount to arrest during the period following his 71 days in pretrial confinement, where accused was limited to base rather than to quarters, and even though he was required to provide weekly urine samples, he was allowed to avail himself of all usual base activities, was provided a three-day pass to grieve with his family upon the death of his grandfather, was not kept under watch or escort at the time of his base restriction or travel, and was not suspended from undertaking normal military duties.

The court had to determine if Appellant's post-confinement restriction amounted to an arrest under Article 10, UCMJ or whether Appellant's right to a speedy trial under Article 10, UCMJ, was violated.

The CAAF affirmed the AFCCA decision overturning the trial court's dismissal of the case for an Art. 10 speedy trial clock violation. CAAF reviewed both issues when deciding the case. While questioning whether the government met its Art. 10 burden, the court ruled that while the government's actions were "less than commendable," the prosecution did meet the burden. The CAAF held that "the test is reasonable diligence, not textbook prosecution." The court noted the rule is in place to bar situations where one is held without knowing the charges against them, originating from immediately following the Civil War when a general officer was held without being provided any information. In this case, Schuber realized what he was being accused of, if not charged with, on his second day of confinement at during pretrial confinement hearing.

In reviewing the second issue, the court ruled the time Schuber spent restricted to post after he was released from confinement did not count as arrest under Art. 10. The court ruled that while he was under restriction, that does not automatically equate to arrest, due to the varying levels of restriction. The court listed four non-exclusive factors to consider in helping to determine whether the restriction equates to arrest: 1) geographic limits of restraint, 2) the extent of sign-in requirements, 3) whether restriction is performed with or without escort, and 4) whether regular military duties are performed.

If you are facing a criminal offense then you should contact an experienced Military criminal defense lawyer. At our law firm we will be able to provide the legal support you need in order to obtain the outcome you deserve. Contact the firm for addtional informaiton.

Soldier gets life

Tim Bilecki — Wed, 16 Nov 2011 03:59:00 GMT

A U.S. soldier accused of being the ringleader behind a rash of murders last year that targeted Afghan civilians has been sentenced to life in prison.

Staff Sgt. Calvin Gibbs, of Billings, Mont., was found guilty Thursday by a military panel in a court-martial of all specifications and charges referred against him, according to officials.

Gibbs received life in prison with the possibility of parole, a dishonorable discharge, a reduction in rank and the loss of all pay and allowances.

He faced a maximum punishment of life without the possibility of parole.

One specification of wrongfully communicating a threat to injure was dismissed, according to officials at the Joint Base Lewis-McChord.

In May 2010, military officials reported that several soldiers, including one from Cape Coral, had been implicated in the deaths of three Afghan civilians. The murders took place as separate incidents in the first half of the year.

In March, Spc. Jeremy Morlock, of Wasilla, Alaska, pleaded guilty to three specifications of premeditated murder, among others, as part of a plea deal that included testifying against co-defendants. He got 24 years in prison.

The second soldier to be sentenced in connection to the deaths was Spc. Adam C. Winfield, of the Cape. In August, he pleaded guilty to involuntary manslaughter and illegal use of a controlled substance under a plea deal.

He received three years of confinement, but faced up to eight years.

Winfield had notified his parents after the first death, saying he was afraid to report it. His father reported it stateside to Joint Base Lewis-McChord but there was no investigation until after the third death, the one in which Spc. Winfield was accused of taking part.

Pvt. 1st Class Andrew H. Holmes, of Boise, Idaho, pleaded guilty to murder and wrongfully using a controlled substance in a deal in September. The judge sentenced him to 15 years, but it was capped at seven years per the deal.

Also charged in connection to the Afghan deaths were:

n Staff Sgt. David Bram, of Vacaville, Calif.

n Spc. Michael S. Wagnon II, of Las Vegas, Nev.

Bram's court-martial is tentatively scheduled to begin Wednesday.

He was originally charged with one specification each of conspiracy to commit assault and battery, unlawfully striking another soldier, violating a lawful general order, dereliction of duty, cruelty and maltreatment, and wrongfully endeavoring to impede an investigation.

He was additionally charged with one specification each of solicitation to commit premeditated murder, aggravated assault with a dangerous weapon, failure to report crimes including murder, unlawfully engaging in murder scenario conversations with subordinates and planting evidence near the body of an Afghan national.

Wagnon's court-martial is tentatively scheduled for next year.

He has been charged with one specification each of premeditated murder, conspiracy to commit premeditated murder, conspiracy to commit assault consummated by battery and committing assault with a dangerous weapon.

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Violation of Confrontation Rights

Tim Bilecki — Wed, 14 Sep 2011 16:30:00 GMT

In Briscoe v. Virginia, 130 S.Ct. 1316 (2010) Mark Briscoe was convicted in a Virginia court for possession with the intent to distribute cocaine and unlawful transportation of cocaine into the Commonwealth with the intent to distribute. The Supreme Court of Virginia affirmed, MacGruder v. Commonwealth, 275 Va. at 290 (Va. 2008). The United States Supreme Court granted certiorari.

Briscoe is an odd case in that the issue raised appeared to be quite clearly settled by the Court's opinion in Melendez-Diaz, yet the Court nevertheless granted certiorari, accepted briefs, and held oral arguments before issuing its one-sentence opinion vacating and remanding the Virginia decision. The following paragraph in the Melendez-Diaz opinion seemed to squarely answer the question raised in Briscoe: "Respondent asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power-whether pursuant to state law or the Compulsory Process Clause-is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear… ("[The witness] was subpoenaed, but she did not appear at ... trial"). Converting the prosecution's duty under the Confrontation

Clause into the defendant's privilege under state law or the Compulsory Process Clause shifts the consequences of adverse witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses."

LITERAL CONFRONTATION

Tim Bilecki — Mon, 12 Sep 2011 21:10:00 GMT

Briscoe v. Virginia, 130 S.Ct. 1316 (2010) deals with literal confrontation. At trial, the prosecution introduced, in accordance with Virginia law and over defense objection, two certificates of analysis. The certificates established that a substance that was confiscated from Briscoe was cocaine of a certain weight. The person who actually performed the analysis was not present at trial. However, Virginia law in effect at the time provided that Briscoe had the right to call the analyst as an adverse witness, to be summoned by the Commonwealth and at the Commonwealth's expense.

The court had to determine if the state avoided violating the confrontation clause of the Sixth Amendment by allowing a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate.

The Supreme Court vacated the judgment of the Virginia Supreme Court and remanded the case for further proceedings not inconsistent with the U.S. Supreme Court's opinion in Melendez-Diaz v. Massachusetts, 557 U.S. ----, 129 S.Ct. 2527 (2009).

Denial of Request to Tape Record Article 32 Proceeding is Not a Volation of Confrontation Rights

Tim Bilecki — Thu, 08 Sep 2011 15:45:00 GMT

In United States v. Daniel Garcia, __ M.J. __, No. 1317 (C.G. Ct. Crim. App. June 3,

2010) Seaman Daniel Garcia was convicted, contrary to his pleas, of aggravated sexual assault and wrongfully furnishing alcohol to minors. The Convening Authority (CA) denied Garcia's request to have the government tape-record the proceedings in his Article 32 investigation. The CA approved Garcia's request for the defense to record the proceedings, but only subject to a number of conditions, including the condition that the defense produce a professional, verbatim transcript. The defense sought extraordinary relief from the Coast Guard Court and C.A.A.F.; both courts denied relief. An Article 32 investigation was completed and was not recorded.

The CGCCA had to determine if the CA's decisions regarding the defense request to tape record the Article 32 proceedings violated Garcia's Sixth Amendment right to confrontation. The CGCCA unanimously held that the CA's decisions did not violate Garcia's constitutional confrontation rights.

The court, without further analysis, adhered to its holding in United States v. Elijah Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009) that "there is no Constitutional violation in denying a defense request to record an Article 32 investigation."

Request to Tape Record the Article 32 Proceedings

Tim Bilecki — Mon, 05 Sep 2011 15:45:00 GMT

In United States v. Elijah Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009) Seaman Elijah Garcia pled guilty to and was convicted of various offenses, including distribution of a controlled substance and indecent acts. The Convening Authority (CA) denied Garcia's request to have the government tape-record the proceedings in his Article 32 investigation. The CA approved Garcia's request for the defense to record the proceedings, but only subject to a number of conditions, including the condition that the defense produce a professional, verbatim transcript. The defense requested that the CA reconsider his decision on the basis that the defense would be unable to comply with the CA's conditions. The CA denied the defense request. An Article 32 investigation was completed and was not recorded.

The issue before the CGCCA was whether the CA's decisions regarding the defense request to tape record the Article 32 proceedings violated Garcia's Sixth Amendment right to confrontation.

The CGCCA unanimously held that the CA's decisions did not violate Garcia's constitutional confrontation rights. After noting that not having a tape recording of the Article 32 "may be less than ideal" for the purposes of confrontation, the court concluded that Garcia did not have a constitutional right to the ideal. The court cited Delaware v. Fensterer, 474 U.S. 15, 20 (1985) for the following proposition: "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."

Recent C.A.A.F. Grants Involving M.R.E. 412 and Confrontation

Tim Bilecki — Fri, 02 Sep 2011 15:40:00 GMT

The C.A.A.F. has recently granted review in three cases involving M.R.E. 412(b)(1)(C), which may indicate that the C.A.A.F. is reconsidering its decision in Banker. The cases, and the issues granted, are:

(i) United States v. Gaddis, CCA 20080150, No. 10-0512/AR (September 27, 2010). Issues granted:

a) Whether the Military Judge erred by denying Appellant the opportunity to present evidence that his accuser had a motive to fabricate the allegations against him to hide the accuser's sexual activity with others from the accuser's mother.

b) Whether the balancing test, as articulated in M.R.E. 412(c)(3) and United States v. Banker is Constitutional.

(ii). United States v. Ellerbrock, CCA 20070925, No. 10-0483/AR (September 24, 2010). Issues granted:

a) Whether the Military Judge erred in excluding, under M.R.E. 412, evidence of prior sexual behavior by the alleged victim where the proffered evidence was Constitutionally required.

b) Whether the balancing test, as articulated in M.R.E. 412(c)(3) and United States v. Banker is Constitutional.

(iii). United States v. Savala, CCA 200800818, No. 10-0317/NA (July 8, 2010).

Issue granted:

a) Whether the lower court erred when it held that the denial of

Appellant's right to cross-examine his accuser was harmless beyond a reasonable doubt.

Confrontational Rights

Tim Bilecki — Wed, 31 Aug 2011 16:45:00 GMT

In United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010) the issue was whether the military judge erred in excluding evidence of relationship such that it violated Robert's constitutional confrontation rights.

Before a military judge sitting as a general court-martial, Staff Sergeant Roberts pled guilty and was convicted of one specification of assault consummated by a battery. He was also convicted, contrary to his pleas, of another assault, rape, and communicating a threat. The Air Force Court of Criminal Appeals affirmed.

The defense filed notice pursuant to M.R.E. 412 requesting that the judge allow the defense to introduce evidence that ER was having sexual relationship with FL. The evidence included: 1) the testimony of a witness, DT, about an incident that led DT to believe that ER and FL had engaged in sexual intercourse; 2) the testimony of LH that ER had said things to LH that LH interpreted to mean that ER and FL had a sexual relationship; and 3) evidence that ER and FL went on a weekend trip to Florida together while Roberts was deployed (a fact that the government conceded that ER admitted to). The defense offered this evidence for the purpose of attacking ER's credibility and to demonstrate her bias and motive to lie. d) The judge analyzed the evidence presented by the defense at the motions hearing and determined that the evidence from DT and LH was not credible. The judge further found that there was "no evidence" that ER and FL took a trip to Florida together. At trial, the defense asked ER on cross-examination if ER had called FL while she was in the park after the alleged rape. The judge sustained the trial counsel's relevancy objection.

The CAAF concluded that the judge's exclusion of evidence of the alleged sexual relationship did not violate Robert's constitutional right to confrontation, but the judge's limitation of the defense cross-examination of ER generally regarding her relationship with FL and specifically regarding her phone conversation with FL in the park did violate Robert's confrontation rights. This error, however, was harmless beyond a reasonable doubt.

Right to Confront

Tim Bilecki — Mon, 29 Aug 2011 20:00:00 GMT

United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010) deals with the right to confront. The sodomy, extortion, and indecent assault charges stemmed from an allegedly nonconsensual sexual encounter Smith had with Cadet SR while both were stationed at the Academy in October 2005. SR accused Smith of extorting sexual favors from her by threatening to disclose a secret that SR had revealed to him. The government presented evidence that SR believed the secret, if revealed, could have jeopardized SR's Coast Guard career and may have violated the UCMJ. SR's testimony was the only evidence presented against Smith on these charges. The defense theory was that SR had engaged in consensual sexual activity with Smith and, sexual activity between cadets being prohibited, was lying about it in order to protect her career. In support of this theory, the defense sought the court's permission to cross-examine SR at trial about a prior false claim of sexual assault. Smith testified at a pre-trial motion hearing that during the summer of 2005, while stationed with SR at Norfolk, Virginia, Smith heard rumors from some enlisted personnel that SR had engaged in consensual sexual activity with an enlisted man (which, if true, would violate Coast Guard regulations and the UCMJ). When Smith asked SR about the rumors, SR told him that the sexual activity had occurred, but that it was nonconsensual. Smith then told the enlisted personnel who were spreading the rumors that the sexual activity was nonconsensual. Smith further testified that SR later confessed that she had lied to him, and that she had, in fact, engaged in consensual sexual activity with the enlisted man. Smith's testimony was the only evidence advanced by the defense in support of Smith's version of events. The defense sought to admit this evidence of SR's prior sexual behavior under M.R.E. 412(b)(1)(C) as "evidence the exclusion of which would violate the constitutional rights of the accused." The military judge sustained the government's objection to the evidence, but permitted the defense to inform the members that

SR's secret "was information that if revealed could have an adverse impact on her Coast Guard career, including possibly disciplinary action under the UCMJ."

The CAAF ruled that Smith was not denied his right to confront SR. Smith did not meet his burden under M.R.E. 412 of establishing that his constitutional rights were violated by the exclusion of evidence of SR's prior sexual behavior. The evidence sought to be introduced by

Smith was irrelevant because his "theory of admission is too farfetched to pass constitutional and M.R.E. 403 muster."

RESTRICTIONS ON CONFRONTATION IMPOSED BY LAW

Tim Bilecki — Fri, 26 Aug 2011 16:30:00 GMT

In United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010) the issue was whether Smith was denied his right to confront the accuser. Webster Smith, a Coast Guard Academy Cadet, was convicted, contrary to his pleas, of attempting to disobey an order, going from his place of duty, sodomy, extortion, and indecent assault. The charges stemmed from an allegedly nonconsensual sexual encounter Smith had with Cadet SR while both were stationed at the Academy in October 2005.The Coast Guard Court of Criminal Appeals, 66 M.J. 556, affirmed. C.A.A.F. granted review.

The CAAF held that Smith was not denied his right to confront SR. Citing United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004), the court concluded that Smith did not meet his burden under M.R.E. 412 of establishing that his constitutional rights were violated by the exclusion of evidence of SR's prior sexual behavior. The Banker decision requires that an accused demonstrate that the evidence in question is relevant, material, and vital to his defense in order to be entitled to the M.R.E. 412(b)(1)(C) exception. The court assumed "that the exact nature of

[SR's] indiscretion – that it involved consensual sexual relations with an enlisted member – was relevant" but determined that it was "neither material nor vital to [Smith's] defense." In so concluding, the court asserted that the issue in dispute was SR's credibility. The court found that the military judge, by permitting Smith to present evidence that SR had lied about an important "secret," adequately protected Smith's confrontation rights by giving Smith an opportunity to impeach SR's credibility. b) Concurring opinion: Judge Baker concurred in the result, also citing

Banker, but concluded that the evidence sought to be introduced by Smith was irrelevant because his "theory of admission is too farfetched to pass constitutional and M.R.E. 403 muster."

WITNESS AVAILABILITY/ALTERNATIVE TO LIVE TESTIMONY.

Tim Bilecki — Wed, 24 Aug 2011 16:45:00 GMT

United States v. Faison, ACM 37464 (A.F. Ct. Crim. App. Apr. 19, 2010) (unpublished) deals with witness availability and alternative to live testimony. At the Article 32 hearing, investigating officer (IO) considered videotaped statement of 10-year-old child victim over defense objection. At hearing, defense argued the recorded statement was not sworn and, therefore, not a permissible alternative to live testimony under R.C.M. 405(g)(4)(B).25 At the trial level, defense moved for a new Article 32 hearing and new referral. The AFCCA affirmed, determining the videotaped statement was sworn because the witness (in the court's words) "knew the difference between the truth and a lie and promised to tell the truth. On appeal, military judge's decision to deny a motion for a new Article 32 hearing is reviewed for abuse of discretion.

According to R.C.M. 405(g)(4)(B), if the defense objects, a sworn statement may not be considered unless the witness is "not reasonably available." In this case, the IO made a finding that the witness was not reasonably available and the 25 R.C.M. 405(g)(4)(B) provides:

(B) The investigating officer may consider, over objection of the defense, when the witness is not reasonably available:

(i) Sworn statements;

(ii) Statements under oath taken by telephone, radio, or similar means providing each party the opportunity to question the witness under circumstances by which the investigating officer may reasonably conclude that the witness' identity is a claimed;

(iii) Prior testimony under oath; and

(iv) Deposition of that witness; and

(v) In time of war, unsworn statements.

Military judge accepted that finding. The opinion did not state why the witness was not available.

The child witness in this case had not received a formal oath. However, the AFCCA noted M.R.E. 603 only requires an oath to tell the truth be "administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so." The court further noted that "flexibility" may be warranted for child witnesses who may be "hard-pressed to understand a formal oath or affirmation" (citing United States v. Washington, 63 M.J. 418, 424 (C.A.A.F. 2006); United States v. Morgan, 31 M.J. 43, 48 (C.M.A. 1990); Spigarolo v. Meachum, 934 F.2d 19, 24 (2d Cir. 19941)). On the videotape, the 10-year-old child witness said she understood the difference between the truth and a lie, and agreed to tell the truth. Under these circumstances, the court found these statements "more than adequately" met the oath requirement to allow for the videotape to be considered as a sworn statement.

Per United States v. Von Bergen, 67 M.J. 290 (C.A.A.F. 2009), the case could have also been resolved with a harmless error analysis.

ARTICLE 32 RECORDINGS -CONFRONTATION CLAUSE/DUE PROCESS.

Tim Bilecki — Mon, 22 Aug 2011 16:30:00 GMT

United States v. Garcia, CGCMG 0258 (C.G. Ct. Crim. App. June 3, 2010) (unpublished) deals with the issue of confrontation clause/due process. The defense counsel requested the Government record and transcribe the Article 32 hearing or, alternatively, that the defense be allowed to record. The Government denied the request that it record and transcribe, but allowed the defense to do so subject to four conditions: (1) defense must create a "professional, verbatim transcript" of the hearing with recordings made by a "certified" civilian court reporter or "trained and qualified" Navy court reporter, at defense expense; (2) defense must submit name and "proof of qualifications" of the court reporter five days before the hearing; (3) defense must provide a copy of the verbatim record to the investigating officer no more than three weeks after the hearing concludes; and (4) defense must agree that time for producing the transcript shall be excludable delay under R.C.M. 707(c). Unlike the other Garcia case, the defense ultimately filed an extraordinary writ with the service court, requesting a court reporter be detailed to the Article 32 or, alternatively, that the Government not interfere with the defense recording the hearing and not require a transcript. The service court and later the CAAF denied relief. The Article 32 was not recorded. The defense made a motion to the military judge to reopen the investigation so the testimony could be recorded; the military judge denied the motion. The accused pled not guilty to all charges and specifications. On appeal, the defense argued the accused's Fifth and Sixth Amendment rights were violated by the Government blocking the recording of the Article 32 hearing.

Relying on United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), discussed supra, the court adhered to its prior holding that denying a defense request to record an Article 32 does not violate the Constitution. The court next considered the defense argument that the Government did not have authority for imposing conditions on the defense recording the Article 32 proceeding. According the court, "This begs the question: was it reasonable to require that a transcript be produced?" The court rejected the Government's argument that the parties may not know that a transcript is required until witness testimony at trial shows an inconsistency, so halting a court-martial to then produce a transcript would be inefficient and disruptive; the court reasoned that a recording does not require a transcript be produced at any stage of the court-martial. Had the military judge based his ruling solely on this basis, the appellate court would have held it to be an abuse of discretion. However, the trial judge also denied the request to reopen the Article 32 because "ordering a new Article 32 hearing to mostly repeat prior. The CAAF's summary disposition did not give a rationale for the decision and merely "ordered that the request for an emergency is hereby denied, and that the writ-appeal petition is denied without prejudice."

ARTICLE 32 RECORDINGS - CONFRONTATION CLAUSE/DUE PROCESS.

Tim Bilecki — Fri, 19 Aug 2011 16:30:00 GMT

In United States v. Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009), review denied, 69 M.J. 83

(C.A.A.F. 2010) the accused pled guilty to several offenses pursuant to an approved pretrial agreement. Before the Article 32 investigation, the defense requested the Government record the proceedings or, alternatively, that the defense be allowed to record the proceedings. The

Government denied the request that it record the hearing but noted the defense would be allowed to record the proceedings subject to three fairly-rigorous conditions: (1) defense must produce a "professional, verbatim transcript" of the hearing at defense expense; (2) defense must provide a copy of the verbatim transcript to the Investigating Officer at defense expense; and (3) defense must agree that time for producing the transcript shall be excludable delay under R.C.M. 707(c). The defense objected to these conditions and requested reconsideration by the appointing authority. After that request was denied, the Article 32 was not recorded. The defense filed a timely motion for a new Article 32 hearing, which was also denied. The accused then pled guilty. On appeal, defense argued the Government's denial of the request to record proceedings violated the accused's Fifth and Sixth Amendment rights. The CGCCA rejected these arguments and affirmed the case.

The court quickly dismissed the Fifth Amendment claim; the defense cited federal and state cases that allow a party to record proceedings that are not otherwise captured in an official record "in furtherance of appeal rights." Because the Article 32 investigation does not make a final decision of the accused's guilt, these cases do not apply. The court noted the Confrontation Clause merely requires cross-examination and (possibly) the ability to admit prior sworn testimony under M.R.E. 801(d)(1)(A) (inconsistent statement in prior testimony) or 804(b)(1) (prior testimony). The defense in this case was allowed to take notes at the Article 32 hearing, which allowed for adequate cross-examination and for admitting the prior testimony. The court acknowledged that without a recording of the Article 32 testimony, the conditions for the defense to admit the testimony would be "less than ideal," but the Confrontation Clause only guarantees an "opportunity" for effective cross-examination.23 Because the defense had the opportunity to confront Government witnesses, there was no Sixth Amendment violation. Under R.C.M. 405(j)(2)(B), the report of investigation need only include the "substance of the testimony taken" as opposed to a verbatim transcript. R.C.M. 405(d)(3) allows a "reporter" to a be detailed to the hearing, but does not require such an appointment. As such, the procedural requirements for an

Article 32 hearing were satisfied. The court noted, "This is not to say that the convening authority did not abuse his discretion in denying the defense request to be permitted to tape-record the proceedings and provide tapes to the government." The court noted, "As an alternative holding, we find that Appellant's guilty plea waived the issue of whether the military judge abused his discretion" (citations omitted). This was arguably a stronger and casedispositive basis for the court's decision. The CGCCA acknowledged the difficulty in admitting prior testimony that had not been recorded or reduced to a verbatim record: In a typical cross-examination scenario, counsel might ask the witness about testimony given by the witness at the Article 32 investigation that was inconsistent with the witness's direct testimony at trial. Having done so, under M.R.E. 801(d)(1), counsel would be able to introduce the prior inconsistent testimony, since testimony at an Article 32 investigation is given under oath. This could be done by testimony of a person who attended the Article 32 investigation. The lack of a recording for either the cross-examination or for the introduction of the prior testimony may be less than ideal, but Appellant does not have a right to the ideal. "confront and cross-examine" Government witnesses); R.C.M. 910(f) (providing that an unconditional guilty plea "which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense(s) to which the plea was made"); United States v. Bradley, 68 M.J.

279, 281 ("An unconditional plea of guilty waives all nonjurisdictional defects at earlier

stages of the proceedings.").

Article 32

Tim Bilecki — Wed, 17 Aug 2011 14:45:00 GMT

United States v. Davis, 64 M.J. 445, 448-49 (C.A.A.F. 2007) provides that as a threshold matter, "When reviewing allegations of error in an Article 32, UCMJ, investigation, we will reverse only when there is a showing of prejudice to a substantial right of the accused."

In United States v Stephens, 66 M.J. 520, 523 (A.F. Ct. Crim. App. 2008) the AFCCA notes it is "quite common in the Air Force for an IO to contact witnesses in order to finalize a written summary of their testimony" and does not amount to improper ex parte communication. The AFCCA held that Crawford does not apply during an Article 32 proceeding. At the hearing, defense counsel asked the alleged victim questions about a previous affair and she refused to answer. On appeal, the defense argued the IO should have compelled her to answer or, alternatively, he should have declined to consider any of her testimony. The AFCCA noted the IO was correct that he could not compel a civilian witness to attend the Article 32 hearing or to answer specific questions. Regarding the novel argument that the IO should not have considered the rest of the victim's testimony, the AFCCA noted the defense seemed to "analogize a witness's refusal to testify at an Article 32, UCMJ, hearing to a witness's refusal to testify at a trial based on a privilege, thereby raising the specter of Crawford v. Washington, 541 U.S. 36 (2004). The defense argued the Article 32 hearing was incomplete because the victim did not answer the defense counsel's questions. The court noted discovery is not a "prime object of the pretrial investigation" (quoting United States v. Arruza, 26 M.J. 234, 236 (C.M.A. 1988)). Rather, the primary purposes are to consider the "truth" of the allegations, to review the form of the charges, and to make a recommendation for disposition. Furthermore, in this case, the military judge properly found the defense questions were impermissible under M.R.E. 412, a rule that expressly applies at Article 32 proceedings.

ARTICLE 32 PROCEEDINGS

Tim Bilecki — Mon, 15 Aug 2011 16:30:00 GMT

According to Article 32(a), UCMJ, "No charge or specification may be referred to a general court martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made." There are two exceptions. First, under R.C.M. 405(b), an Article 32 investigation is not necessary if there has already been an investigation into the subject matter of the charges; note, this adequate substitute must afford the accused the same rights as those afforded an Article 32 hearing (including the rights to counsel and to present evidence). Second, under R.C.M. 405(k), a case may be referred to a general court-martial without a pretrial investigation if the accused waives that right.

United States v. Seldes, ACM 37265, 2009 WL 4110770 (A.F. Ct. Crim. App. Oct. 27, 2009) (per curiam) (unpublished), review denied, 69 M.J. 159 (C.A.A.F. 2010) deals with Article 32 defects. The accused was convicted, inter alia, of raping a civilian Red Cross employee who lived was unacceptable. I just don't have any respect for a man who would put a little girl through that." The accused and the victim had a social relationship that had included consensual kissing and oral sex. The victim claimed the accused knew she had taken Ambien and had intercourse with her while she was unconscious. On appeal, the defense argued that the Article 32 was deficient, asserting that the investigating officer (IO) had improper ex parte communications with witnesses and that the defense counsel was unable to cross-examine the victim. The AFCCA rejected this arguments.