MILITARY JUSTICE PERSONNEL: Military Judge: Discretion

2014 (September Term)

United States v. Castillo, 74 M.J. 39 (the military judge did not err in denying the implied bias challenges raised by the defense where the panel members’ relationships with trial counsel in this case were not of a qualitative nature to rise above the normative sorts of relationships expected in military service that could impact perceptions of fairness; none of the facts of these relationships constituted a claim of close personal or deferential professional bonding; furthermore, one panel member’s experience as a victim of a similar crime was not similar in theme or close in time to the charged offense; in addition, the fact that one member was the rater of two other members did not require excusal given the broad composition of the panel and the credible disclaimer of the two members that they would not feel constrained in expressing their views due to the rater relationship; and finally, appellant cites no authority indicating that a panel drawn entirely from one brigade is an unusual or unlawful practice in the military justice system; appellant’s asserted challenges for cause lack merit, and they do not combine to create error). 

United States v. Peters, 74 M.J. 31 (this is a case, where the military judge did no more than invoke the implied bias doctrine and where the facts otherwise showed an unusually strong bond between trial counsel and a member of the panel, the military judge abused his discretion in not erring on the side of caution and excusing the member on the ground of implied bias; here, the member’s relationship to trial counsel could undermine the perception of fairness in the proceedings where (1) the member regularly relied upon trial counsel for legal advice on military justice matters, (2) the member trusted that legal advice and believed that trial counsel did good work as a lawyer, (3) as soon as the member was summoned to be a court-martial panel member in this case, he sought trial counsel’s input about whether it was common that someone from within the brigade serve on a panel, (4) despite knowing that he would be serving as a panel member in this case, the member also called trial counsel the night before voir dire, and although they did not talk about appellant’s case, they did sign off the conversation by saying “see you tomorrow,” and (5) in objecting to appellant’s causal challenge, trial counsel relied upon his personal knowledge of the member’s character to argue on behalf of keeping him on the panel; the totality of these factors support the conclusion that appellant had good grounds for challenging the member’s participation on the panel based on implied bias; the member and trial counsel’s relationship went beyond what would be perceived as fair to an appellant in the context of a typical court-martial; in addition, the fact that the special court-martial convening authority was the member’s rater, and the investigating officer in the case was the member’s XO also contributed to the totality of the factors considered in determining that the challenge against the member should have been granted). 

United States v. Piren, 74 M.J. 24 (a military judge is given broad discretion to impose reasonable limitations on cross-examination).

(MRE 611(b) authorizes cross-examination into matters affecting the credibility of the witness; when appellant elected to testify, he placed his credibility at issue and the government’s cross-examination as to the statements he had made to a sexual assault nurse examiner was designed to explore that credibility; as such, the government could properly test appellant’s credibility on cross-examination; when appellant then testified on cross-examination as to what he had told the nurse during the sexual assault examination, his credibility remained at issue, and his testimony was opened to impeachment by contradiction by having the nurse testify to the contrary; although appellant’s statements were unwarned, MRE 304(b)(1) [now MRE 304(e)(1)] specifically provides for the use of unwarned statements for purposes of impeachment by contradiction; therefore, the military judge did not abuse her discretion in overruling the defense objection that the government’s cross-examination exceeded the scope of direct examination and by subsequently allowing impeachment by contradiction). 

(in this case, reviewing the evidence in the light most favorable to the government, the military judge did not abuse her discretion in finding that appellant’s consent to a sexual assault evaluation was voluntary; while appellant may have believed that his liberty was restricted to some degree and while he did ask whether he should get an attorney, those factors are not sufficient to invalidate his consent; once appellant arrived at the clinic, he was told several times that his decision to consent to the exam was voluntary and that he could refuse; and the consent form that he reviewed and signed clearly reiterated those rights). 

United States v. Phillips, 74 M.J. 20 (a military judge has significant discretion in deciding whether to accept an accused’s guilty pleas, and appellant bears the burden of establishing that the military judge abused that discretion, i.e., that the record shows a substantial basis in law or fact to question the plea).

2013 (September Term)

United States v. Jones, 73 M.J. 357 (on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).

(in this case, the military judge did not abuse his discretion in admitting appellant’s statement about a recent burglary to an infantryman when he concluded that the infantryman was not acting and could not reasonably be considered by appellant to be acting in an official law enforcement or disciplinary capacity when he questioned appellant; as a result, Article 31(b), UCMJ, warnings were not required, and appellant’s statement was properly admitted; although at the time of questioning, the infantryman was also serving as a military police augmentee, was involved in the investigation of the burglary, and immediately reported the results of his conversation with appellant to his chain of command, he had a personal motivation for questioning appellant based on a prior interaction, he did not exercise a disciplinary role with respect to appellant, he had limited law enforcement authority and responsibilities as an MP augmentee, he was not permitted to perform MP duties without his MP partner present or any MP functions when he was off-duty, he was not authorized to fill out rights waiver forms, take sworn statements, or question suspects, he was treated by the MPs as a registered source, signifying that he was not acting as an official MP augmentee at the time of the questioning, and he questioned appellant outside the presence of his MP partner and while he was off-duty; furthermore, a reasonable person in appellant’s position could not have considered the infantryman to be acting in an official law enforcement or disciplinary capacity where appellant was an actual MP who seemingly understood the limited authorities and responsibilities of an MP augmentee, where at the time of the questioning, the infantryman was junior in rank to appellant, where appellant had earlier asked the infantryman to join him in committing the burglary, and where appellant, not the infantryman, locked the housing unit door during the questioning). 

United States v. Flesher, 73 M.J. 303 (a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; an abuse of discretion exists where reasons or rulings of the military judge are clearly untenable and deprive a party of a substantial right such as to amount to a denial of justice; it does not imply an improper motive, willful purpose or intentional wrong). 

(in this case, the military judge did not place sufficient evidence on the record to demonstrate that he acted within the bounds of his discretion when he authorized a sexual assault response coordinator (SARC) to testify as an expert; specifically, he did not affirmatively address the defense’s request for a Daubert (509 US 579 (1993)) hearing, did not address the Houser (36 MJ 392 (1993)) factors, did not explicitly deny on the record the defense’s motion to exclude the testimony of the SARC, did not provide any findings of fact, and did not apply the law to the facts to support his decision to admit the SARC’s expert testimony; furthermore, although an appropriately qualified expert witness may be able to testify why a sexual assault victim may or may not react in a particular manner, in the instant case, the trial counsel conceded that the SARC was not qualified to address the issue of why sexual assault victims may or may not behave in a certain way, and the military judge specifically ruled that the SARC could not testify on this point; and yet, the SARC clearly did testify about why sexual assault victims may act in a certain manner, and the trial counsel did not rein her in and the military judge did not issue a curative instruction; under these circumstances, it was error to permit the SARC to testify as she did because her testimony went beyond the scope of her expertise as it was agreed to by the parties in advance of trial; also, the military judge did not state on the record why he concluded that the SARC’s testimony was reliable, and there is no virtually no evidence in the record that the military judge weighed the probative value of the SARC’s testimony against its potential prejudicial effect; the purported expert testimony in this case had little probative value because the panel members could understand what had happened based on the alleged victim’s own explanation of her actions and because the observations of the expert witness were almost common knowledge; and in this classic “he said–she said” case, with the two primary witnesses giving diametrically opposed testimony on the critical issue of whether the sexual intercourse was consensual, the prejudicial effect of the SARC’s testimony was quite likely substantial where it served to bolster the testimony of the alleged victim’s testimony about why she did not struggle more with her assailant). 

United States v. Talkington, 73 M.J. 212 (a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances). 

(appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions). 

(while the military judge’s discretion in choosing whether to instruct upon collateral matters is broad, he or she is required to give legally correct instructions that are tailored to the facts and circumstances of the case). 

(in instructing the court members on how to make use of appellant’s unsworn statement in sentencing for sex offenses, the military judge did not abuse his discretion by placing the sex offender registration mentioned during appellant’s unsworn statement in its proper context, by informing the members that appellant was permitted to address sex offender registration in his unsworn statement, while also informing them that possible collateral consequences should not be part of their deliberations in arriving at a sentence). 

2012 (September Term)

LRM v. Kastenberg, 72 M.J. 364 (a writ of mandamus was not the appropriate remedy to direct the military judge to provide an opportunity for the named victim in a rape prosecution to be heard through counsel at hearings conducted pursuant to MRE 412 and 513, and to receive any motions or accompanying papers reasonably related to her rights as those may be implicated in those hearings; although the military judge’s ruling must be based on a correct view of the law, and MRE 412 and 513 create certain privileges and a right to a reasonable opportunity to be heard on factual and legal grounds, which may include the right of a victim or patient who is represented by counsel to be heard through counsel, these rights are subject to reasonable limitations and the military judge retains appropriate discretion under RCM 801, and the law does not dictate the particular outcome that the victim requests). 

United States v. Brown, 72 M.J. 359 (a military judge did not abuse his discretion under MRE 611(a) when he allowed a victim advocate acting as a support person to sit next to a 17-year-old witness during her testimony in a rape prosecution; first, although the witness was not a child of tender years, the military judge found that she was not just crying during testimony, she was completely unintelligible and unable to speak because she was crying; moreover, the record reflects an effort on behalf of the military judge to proceed without the accommodation of a support person; when the witness first took the stand, she answered trial counsel’s questions in one-word or one-sentence answers; after the sixteenth question, the witness burst into tears; when trial counsel asked the witness if she would be okay, the witness continued crying; after the twenty-first question, the record notes the witness crying and saying, “I can’t do this;” after a pause, the trial counsel asked the victim if she wanted a break, and she indicated that she wanted a break; the military judge then recessed the court until the next morning; while he might have again determined following this overnight break whether or not the witness could now testify, he did not abuse his discretion in not doing so given the prior efforts to do so as well as his observations of the witness the prior day; second, the military judge minimized the risk of prejudice to the accused by instructing the advocate not to communicate with the witness and by instructing the members to disregard the presence of the advocate; moreover, there was no evidence, such as an admonition by the military judge or objection by defense counsel, suggesting that the advocate failed to follow the military judge’s instructions; nor is there any evidence that defense counsel’s ability to cross-examine the victim’s was negatively affected by the advocate’s presence; in this case, the witness was physically overtaken by sobbing and could not provide information to the court; where the military judge took reasonable steps to test the witness’s capacity to continue as well as steps to mitigate the risks of prejudice to the accused, it was within the military judge’s discretion to conclude that further attempts to proceed with a witness in such a state would needlessly consume time and not aid in the ascertainment of the truth). 

United States v. Schell, 72 M.J. 339 (if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge abuses his discretion if he neglects or chooses not to resolve an inconsistency or reject the inconsistent or irregular pleading).   

United States v. Mott, 72 M.J. 319 (on a motion to suppress an accused’s statements to investigators, alleging that the statements were involuntary because he was mentally ill at the time, a military judge abused his discretion by admitting the accused’s statement without first contextually analyzing whether he could and did knowingly and intelligently waive his right to counsel, and instead focusing solely on the question of voluntariness; the military judge also erred when he addressed whether the accused’s waiver was knowing and intelligent solely as a conclusory finding of fact, rather than as a conclusion of law). 

United States v. Kelly, 72 M.J. 237 (a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

United States v. Coleman, 72 M.J. 184 (a military judge has discretion to declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings). 

(the military judge did not abuse his discretion in denying the defense’s motion for mistrial where the government failed to disclose to the defense that the SJA had verbally agreed to reduce a co-accused’s sentence in exchange for his testimony against the accused because the disclosure error was harmless beyond a reasonable doubt; the co-accused’s direct testimony was very brief and corroborated the victim’s testimony; the co-accused also testified for the defense and admitted that appellant had had consensual sexual relations with the victim earlier in the evening and that the victim was not so intoxicated that she could not walk, talk, or unlock her door without stumbling or fumbling; furthermore, the defense knew that the co-accused had been convicted and sentenced for the same offenses with which appellant was charged, and he could have impeached the co-accused with the conviction and punishment but chose not to do so; instead the defense counsel argued that the co-accused was testifying because he wanted clemency from the convening authority for his participation in the offenses; in addition, the co-accused’s motive to misrepresent was self-evident to the court members; in fact, it is unclear how knowing that the SJA had agreed to recommend that the convening authority grant the co-accused clemency in exchange for his testimony would have caused the defense counsel to change strategy or tactics or led to a different result; it would not have affected either the defense counsel’s ability to cross-examine the co-accused or his closing argument; finally, had the defense tried to impeach the co-accused with the agreement, the co-accused’s prior statement to law enforcement that was consistent with his testimony at trial would have been admitted to rebut any defense contention that he had a motive to alter his testimony to obtain clemency; even if the military judge would have refused to admit the prior consistent statement for the truth of the matter asserted, it still would have been admissible simply to corroborate, or rehabilitate, the in-court testimony of a witness, regardless of whether it qualified for exception from the hearsay rule under MRE 801(d)(1)(B); while the conduct of the prosecution in not disclosing the oral agreement between the co-accused and the SJA was, at a minimum, negligent, and certainly violated Brady, Article 46, and RCM 701–703, the government established that under the circumstances of this case, its failure was harmless beyond a reasonable doubt - disclosure would not have affected the outcome of the trial, and the military judge did not abuse his discretion in refusing to declare a mistrial). 

United States v. Solomon, 72 M.J. 176 (in this case, the military judge clearly abused his discretion in admitting evidence under MRE 413 of prior sexual assaults alleged committed by appellant but for which he had previously been acquitted; the problem was not that an incident for which an accused had been previously acquitted may never be admitted under MRE 413; rather, the problem here was that the military judge altogether failed to mention or reconcile appellant’s important alibi evidence and gave little or no weight to the fact of the prior acquittal; most problematic was the military judge’s determination that the evidence’s probative value outweighed the risk of unfair prejudice under MRE 403, where (1) in determining that the strength of proof of the prior acts were easily beyond a preponderance, the military judge omitted any discussion of a military police report’s tendency to establish appellant’s alibi, and (2) in determining that there was little, if any, risk of distraction of the factfinder, the military judge failed to
realize that admitting the evidence would actually result in a classic example of a distracting mini-trial on the prior alleged assaults, and he failed to take actions during trial to limit the overuse of the evidence, including declining to take judicial notice of the acquittal or providing a limiting instruction noting appellant’s acquittal). 

United States v. Lubich, 72 M.J. 170 (a military judge did not abuse her discretion when she overruled a defense authentication objection and admitted two prosecution exhibits that were based on computerized data; both a prosecution exhibit that listed the web sites accessed by appellant’s Navy Internet account and the dates and number of times the web sites were accessed and a prosecution exhibit that compiled the user names and passwords for the web sites accessed from appellant’s Navy Internet account were sufficiently authenticated to be admissible, where (1) defense counsel conceded that the data was from appellant’s Navy Internet account, (2) an NCIS cyber forensic examiner testified that he produced the exhibits by conducting a forensic examination utilizing automated forensic tool programs of data downloaded from appellant’s Navy Internet account by a Navy-Marine Corps Intranet (NMCI) department, and (3) he described the automated process that the NMCI department utilized to gather the data from appellant’s Navy Internet account; the government made a prima facie showing of authenticity by presenting evidence sufficient to allow a reasonable juror to find that data analyzed by the cyber forensic examiner was data from appellant’s Navy Internet account, where the examiner’s testimony established that NMCI transferred the data stored on the computers utilizing an automated process rather than analyzing or manipulating the data, and the government also met several of the illustrative criteria of MRE 901 authentication: (1) testimony of witness with knowledge (satisfied through examiner’s familiarity with the NMCI procedures), (2) distinctive characteristics and the like (satisfied as the computer data contained numerous references to appellant’s Navy Internet account), and (3) process or system (satisfied by examiner’s discussion regarding the NMCI process); once the exhibits were admitted, it was then up to the members to determine the true authenticity and probative value of the evidence based on the testimony of the NCIS cyber forensic examiner). 

United States v. Riley, 72 M.J. 115 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; an abuse of discretion occurs when there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea). 

(in this case, the military judge abused his discretion when he accepted appellant’s guilty plea to kidnapping a minor without questioning the defense counsel to ensure appellant’s knowledge of the sex offender registration consequences of her plea). 

United States v. Irizarry, 72 M.J. 100 (a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

United States v. Clifton, 71 M.J. 489 (an appellate court reviews a military judge’s denial of a panel member’s request to recall a witness for abuse of discretion). 

2011 (September Term)

United States v. Nash, 71 M.J. 83 (the military judge abused his discretion when he did not excuse a member for actual bias after that member asked the accused’s wife, who was testifying on the merits in a court-martial involving the accused’s alleged sexual misconduct with children, if she thought a pedophile could be rehabilitated; the member’s question suggested before the close of the evidence that the member believed the accused was a pedophile who committed the crimes he was charged with and that the member might believe that pedophiles cannot be rehabilitated; and after further voir dire of this member, because the member did not state a clear rationale for asking the question, his rationale was inadequate to resolve the question of bias and did not relieve the concern that the member had made up his mind; in addition, the member’s question demonstrated that he had not kept an open mind until the close of evidence as required by the military judge’s preliminary instructions and that he could not yield to later instructions to keep an open mind). 

United States v. Weeks, 71 M.J. 44 (it is an abuse of discretion for a military judge to accept a guilty plea without an adequate factual basis to support it; it is also an abuse of discretion if the ruling is based on an erroneous view of the law). 

United States v. Campbell, 71 M.J. 19 (a military judge’s decision to deny relief for unreasonable multiplication of charges is reviewed for an abuse of discretion).

2010 (September Term)

United States v. Beaty, 70 M.J. 39 (while an appellate court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion). 

United States v. Pope, 69 M.J. 328 (the military judge abused his discretion by admitting a green detoxification drink bottle as demonstrative evidence where (1) there was no evidence that appellant consumed detoxification drinks before learning she had tested positive for cocaine on the urinalysis test underlying the charged offense, resulting in the drinks having minimal to no probative value with respect to whether appellant’s drug usage was knowing and therefore wrongful, (2) the demonstrative evidence was not helpful because the members could have easily comprehended the testimony about green detoxification drinks without the aid of a physical example purchased by the government, (3) the bottle purchased by the government was not an accurate representation of the bottles described by the witness, where the bottle purchased by the government had a label identifying the drink as a detoxification drink and the bottles seen by the witness in appellant’s possession had no labels at all, and (4) the demonstrative evidence failed the MRE 403 balancing test). 


United States v. Jones, 69 M.J. 294 (in accordance with RCM 701(g)(1), the military judge may specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just; thus, it could be within the military judge’s discretion to deny a mid-providence request to stop the trial for an accused to review evidence). 


(a military judge abused his discretion when he prohibited a pretrial review of evidence of receipt of child pornography on the scant rationale that “it is what it is,” where both the government and defense had agreed to such a review, and there was no argument that the scheduled pretrial review would have interfered in the trial proceedings). 

United States v. Staton, 69 M.J. 228 (in this case, the military judge did not abuse his discretion in admitting evidence of prosecutor intimidation as evidence of consciousness of guilt, where the military judge addressed the general risk that the members would treat this evidence of uncharged acts as character evidence and use it to infer that the accused had acted in character, and thus convict, with a detailed and tailored instruction regarding appropriate use of this information). 

United States v. White, 69 M.J. 236 (in a prosecution for signing a false official document relating to the accused’s response about her criminal history on an AF Form 1540, Application for Clinical Privileges/Medical Staff Appointment, the military judge did not abuse his discretion in excluding Army credentialing forms previously completed by the accused as irrelevant; the excluded forms were different in format and content from the AF Form 1540, they did not contain any questions concerning an applicant’s criminal history, were completed by the accused four to ten years prior to her completing the AF Form 1540, and contained no information that would make the existence of the accused’s intent to deceive more or less probable). 

(in a prosecution for signing a false official document relating to the accused’s response about her criminal history on an AF Form 1540, Application for Clinical Privileges/Medical Staff Appointment, the military judge did not abuse his discretion in excluding as irrelevant the lay opinions of three witnesses as to the meaning of the criminal history question, specifically that these witnesses interpreted that question to refer only to convictions which occurred during the applicant’s practice history; in order to be relevant, the lay opinions must have some nexus to the accused’s state of mind when she completed the AF Form 1540; however, none of the witnesses discussed their interpretations of the criminal history question with the accused before she completed the form; without evidence that would have established a nexus, their opinions were merely their own and had no relation to the accused’s state of mind or her intent when she completed the AF 1540). 

2009 (September Term)

United States v. Diaz, 69 M.J. 127 (military judges are afforded broad discretion in deciding whether or not to accept a guilty plea; when an accused enters a guilty plea, the military judge is required to make such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea).  


(the military judge did not abuse his discretion in rejecting appellant’s proffered guilty plea to conduct unbecoming an officer under Article 133, UCMJ, for releasing classified documents, where appellant attempted to substitute for the words “classified documents” the phrase “government information not for release;” although an accused is free to proffer an alternative plea, he is not entitled to alter the gravamen of the charge and design his own offense; appellant’s proffered plea was qualitatively distinct from the charged offense and changed the nature of the conduct that the government charged as unbecoming). 


(evidence of appellant’s ethical duties as a judge advocate and attorney was relevant in a prosecution for conduct unbecoming an officer to show that he had an honorable motive when he released classified documents about detainees at the Guantanamo naval base; a determination as to whether conduct charged under Article 133, UCMJ, is unbecoming of an officer and gentleman includes taking all the circumstances into consideration; such circumstances incorporate the concept of honor; appellant’s view of what those circumstances entailed, and what was “honorable,” was therefore relevant to his charge of conduct unbecoming an officer for releasing classified documents; in short, evidence of an honorable motive may inform a factfinder’s judgment as to whether conduct is unbecoming an officer; this is possible even where the conduct itself amounts to a delict; this might be the case, for example, where an accused drives under the influence of alcohol in order to rush a gravely injured person to an emergency room; accordingly, in this case, the military judge abused his discretion when he prohibited appellant from presenting motive evidence on the Article 133, UCMJ, charge, without first evaluating appellant’s specific proffers for factual and legal relevance under MRE 401, MRE 402, and MRE 403 in the context of the Article 133, UCMJ, charge).


United States v. Graner, 69 M.J. 104 (a military judge abuses his discretion when his findings of fact are clearly erroneous, the military judge’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 


(a military judge did not abuse his discretion in determining that the defense did not present an adequate theory of relevance to justify the compelled production of a DoD report regarding the duties owed to detainees during an interrogation; appellant, who was charged with the maltreatment of Iraqi detainees at an American-operated detainee facility in Iraq, presented no evidence that his state of mind at the facility was in any way affected by this DoD report that he had never seen; in addition, appellant’s affirmative duty to protect the detainees under his charge from abuse was not affected by any views on the international legal status of Iraqi detainees set out in the report; and finally, appellant failed to present any facts which, if true, would constitute unlawful command influence). 


(a military judge did not abuse his discretion in declining to order the production of various documents that appellant maintained on appeal that he requested; RCM 703(f)(3) requires that any request for the production of evidence shall list each piece of evidence and a description of each item sufficient to show its relevance and necessity, a statement where it can be obtained, and, if known, the name, address, and telephone number of the custodian of the evidence; the defense failed to meet this burden with respect any of these documents with the exception of a DoD report). 


(a military judge did not abuse his discretion in excluding the testimony of and an email from a mid-level military intelligence officer who would have testified about when military intelligence officers generally became more forceful in their treatment of detainees and who had written an email in which he stated that he favored the more forceful treatment of detainees during interrogation; although the defense indicated that this evidence would help establish the defense theory that appellant’s superiors authorized the rough treatment of detainees, the evidence was not relevant where there was no evidence that appellant, or anyone giving orders to appellant, had any contact with the officer or knew about the email, and where appellant was still able to present direct evidence that he and his coconspirators believed that they were supposed to soften up the detainees; given the total lack of evidence connecting the officer’s opinions with appellant’s conduct, neither the expected testimony nor the email had a tendency to show that any fact of consequence to the court-martial was more or less probable). 


(a military judge has broad discretion as the gatekeeper to determine whether the party offering expert testimony has established an adequate foundation with respect to reliability and relevance). 


(in a prosecution of an accused charged with the maltreatment of detainees at an Iraqi detention facility, a military judge did not abuse his discretion when he limited the testimony of a use-of-force expert to the point that detainees stacked in a naked human pyramid would not have suffered from positional asphyxia, a dangerous medical condition where a person has trouble breathing as a result of pressure on the diaphragm, because of the manner in which they were stacked; the military judge properly determined that this expert had an insufficient basis to conclude that the naked human pyramid and the tether around the neck of one detainee were reasonable uses of force).    


United States v. Lloyd, 69 M.J. 95 (appellant, who was charged with assault with a dangerous weapon in connection with his involvement in a bar fight in which three victims were stabbed, failed to show that the assistance of a blood spatter expert was necessary; although the defense argued that a blood spatter expert was necessary to explore all possibilities as to how the blood came to be on the shirt that appellant was wearing at the time of the altercation, the defense’s stated desire to explore all possibilities did not satisfy the requisite showing of necessity; in addition, although the defense argued that it needed to understand and potentially present expert testimony on the manner in which blood spatters from a wound and that expert assistance on the physics of bloodstain patterns would allow it to either rule out or present a theory about the presence of the alleged victim’s blood on appellant’s clothing, the defense did not specify what theory it sought to present; absent a more precise explanation of the theory it hoped to pursue through the assistance of a blood spatter expert, the military judge did not abuse her discretion when she denied the defense motion for the assistance of a blood spatter expert).


(a military judge does not abuse her discretion by failing to adopt a theory that was not presented in a motion at the trial level but is later presented on appeal; this is consistent with the general rule that a legal theory not presented at trial may not be raised for the first time on appeal absent exigent circumstances). 


United States v. Yammine, 69 M.J. 70 (where the military judge’s view of the law with respect to a qualifying offense under MRE 414 was erroneous, he abused his discretion by admitting evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer as evidence of another offense of child molestation).


United States v. Garner, 69 M.J. 31 (with respect to his guilty plea to attempting to violate 18 USC § 2422(b) by using the Internet to knowingly persuade, entice, and induce a minor to engage in sexual intercourse and oral sodomy in violation of Article 134, UCMJ, appellant admitted that he intended to persuade, entice, or induce an undercover police officer posing as a 14-year-old girl in an Internet chat room into sexual activity; appellant specifically explained that his communications to this “girl” were designed to induce her to engage in sexual activity, and he admitted that those actions constituted more than mere preparatory steps; he further acknowledged that in sending this “girl” a sexually explicit video of himself, he sought to persuade or entice her to engage in sexual activity; in light of appellant’s own admissions during the providence inquiry, the military judge did not abuse his discretion in accepting the plea; quite simply, where an accused pleads guilty and during the providence inquiry admits that he went beyond mere preparation and points to a particular action that satisfies himself on this point, it is neither legally nor logically well-founded to say that actions that may be ambiguous on this point fall short of the line as a matter of law so as to be substantially inconsistent with the guilty plea). 

United States v. Roberts, 69 M.J. 23 (in this case, to the degree the military judge weighed the credibility of two witnesses (who testified in an MRE 412 evidentiary hearing about a sexual relationship between the victim and another man) in performing his relevancy analysis under MRE 412, he abused his discretion, and his findings were clearly erroneous; in addition, given the low threshold for relevant evidence, the military judge’s conclusion that the testimony of those witnesses was not relevant was also error). 


(appellant, who was charged with rape, was entitled to cross-examine the victim, his wife, about her relationship with another man and about her phone call to that man immediately after the underlying rape incident, where appellant wanted to establish that the relationship with the man was a motive for the victim to fabricate the rape allegation and the proposed line of questioning did not involve allegations of sexual behavior that would implicate the exclusionary rule of MRE 412; cross-examination of this man may have established a motive for the victim to fabricate her allegation of rape, and the military judge erred in excluding this cross-examination). 


United States v. Bagstad, 68 M.J. 460 (in this case, the military judge did not err or abuse his discretion in denying a challenge for cause against an officer member who wrote the fitness report of a subordinate enlisted member sitting on the same panel, even though the panel was ultimately composed of three members, and the officer and this subordinate enlisted member comprised the two-thirds majority sufficient to convict; first, there is no per se rule that a military judge must dismiss a member predicated solely on the fact that a senior member of the court-martial is involved in writing or endorsing the effectiveness reports of junior members; and second, there was no other evidence in the record indicating implied bias from the ratings relationship that would cause the knowledgeable member of the public to perceive that appellant’s court-martial panel was not fair and impartial; and in addition, unlike the CAAF’s decision in Wiesen, 56 MJ 172 (CAAF 2001), where implied bias was implicated when the senior member and his subordinate constituted the two-thirds majority necessary to convict, in this case, at the time of appellant’s challenge for cause, only half of the panel was involved in any senior-subordinate relationship because appellant had not yet exercised his peremptory challenge, and appellant also did not object to the final composition of the three-member panel on the basis that it violated Wiesen; as such, the military judge’s denial of the challenge is viewed from the perspective of when appellant objected and the military judge pronounced his ruling, not with hindsight and knowledge of the final composition of the panel).

United States v. Cowgill, 68 M.J. 388 (an abuse of discretion occurs if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law). 

(a military judge would not abuse her discretion when denying a motion to suppress evidence from appellant’s home if the magistrate who issued the search warrant had a substantial basis for determining that probable cause existed; probable cause exists when there is sufficient information to provide the authorizing official a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be searched). 

United States v. Douglas, 68 M.J. 349 (after finding that the no-contact orders and negative behavior of the accused’s military supervisor discouraged witnesses from providing character statements for the accused and resulted in unlawful command influence, the military judge acted within her discretion in crafting a remedy aimed at ameliorating the effects of the supervisor’s actions rather than dismissing the charges; the military judge’s remedy was specifically tailored to removing the roadblocks to obtaining character statements and alleviating the harm in this case and included: (1) providing a continuance to enable trial and defense counsel to co-author a memorandum from the accused’s commanding officer; (2) making the memorandum available to the defense; (3) allowing the defense to decide on the memorandum’s use and to pursue such witnesses as it chose; and (4) strongly recommending that (a) the accused be removed from his supervisor’s supervision and assigned to another office selected by the accused’s commander, (b) the supervisor be issued an order from his commander to immediately cease and desist communications regarding the accused and the investigations, charges, and court-martial, and (c) the government immediately rescind both the cease and desist order and the order prohibiting the accused from contacting members of his unit). 

United States v. Ellis, 68 M.J. 341 (a military judge abuses his discretion when: (1) the findings of fact upon which he predicates his ruling are not supported by the evidence of record; (2) if incorrect legal principles are used; or (3) if his application of the correct legal principles to the facts is clearly unreasonable). 


(under the circumstances of this case, the military judge did not abuse his discretion by allowing the government’s expert to testify in the presentencing hearing as to the accused’s potential for rehabilitation, specifically his risk of recidivism). 


United States v. Williams, 68 M.J. 252 (military judge abused his discretion in failing to award additional confinement credit under RCM 305(k), where confinement officials violated an Air Force regulation requiring medical authorities to review a detainee’s “suicide watch” status every 24 hours to determine if continued segregation was appropriate). 


(military judge did not abuse his discretion in awarding one-for-one pretrial confinement credit under Article 13, UCMJ, where an alternative basis for confinement credit could have been based on RCM 305(k); while RCM 305(k) could have provided an alternative basis for relief, the factual basis for credit under either Article 13, UCMJ, or RCM 305(k) under the facts of this case was the same conduct on the part of the confinement officials).

2008 (September Term)

United States v. Nance, 67 M.J. 362 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; a military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea - an area in which an appellate court affords significant deference).

(during the providence inquiry, the military judge is required to elicit from the accused factual circumstances that objectively support each element of the charged offense to which a plea is entered; determining whether those factual circumstances establish conduct that is or is not prejudicial to good order and discipline is a legal conclusion that remains within the discretion of the military judge in guilty

plea cases). 

United States v. Collier, 67 M.J. 347 (trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant).


(although a military judge enjoys wide discretion in applying MRE 403 balancing, an appellate court gives military judges less deference if they fail to articulate their balancing analysis on the record).   


(the military judge’s exclusion of evidence that the main government witness was biased because of her prior homosexual romantic relationship between her and appellant, on the ground that cross-examining the witness about such a relationship would entail harassment or undue embarrassment, lacked an articulated or supportable legal basis and was thus an abuse of discretion, where the military judge made no findings about the likelihood that the witness would suffer from undue embarrassment or harassment as a result of cross-examination or the presentation of bias evidence and where there was no evidence that trial defense counsel planned to conduct cross-examination in a threatening or embarrassing manner).   

(while MRE 611, a rule which allows a military judge to control the scope and mode of interrogating witnesses, permits a military judge to impose limitations on the length and details of cross-examination, it does not purport to authorize preemptively shutting the door completely on otherwise relevant cross-examination). 

(the military judge’s exclusion of evidence that the main government witness was biased because of her prior homosexual romantic relationship between her and appellant, on the ground that cross-examining the witness about such a relationship would lead to a waste of time and a confusion of the issues, lacked an articulated or supportable legal basis and thus was an abuse of discretion, where the military judge made no factual findings about any delay or confusion that could result from the cross-examination of the witness or the presentation of extrinsic evidence on the question, and where the defense counsel only planned to ask the witness about the relationship and, if she denied it existed, to ask two additional witnesses, one of whom ultimately testified at the court-martial; the record did not support the military judge’s decision to take the ultimate questions - whether that relationship existed and whether it led the witness to lie - away from the members; having found that appellant made a threshold showing there was some evidence of such a relationship, it was for the members, as the triers of fact, to decide if a relationship existed and if its end caused the witness to be biased or to misrepresent). 


United States v. Von Bergen, 67 M.J. 290 (the military judge abused his discretion in denying appellant an Article 32, UCMJ, investigation on rehearing, where appellant had waived such an investigation in a pretrial agreement when he originally pleaded guilty to possessing but had pleaded not guilty at the rehearing, withdrawn from the pretrial agreement, and requested an investigation; appellant’s original plea was improvident as a matter of law, which had the effect of canceling the pretrial agreement according to its terms, and the effect of the rehearing and appellant’s subsequent withdrawal from the agreement was to place the parties in their pretrial status quo ante).


United States v. Rogers, 67 M.J. 162 (an abuse of discretion exists if the military judge found clearly erroneous facts or misapprehended the law). 


(an affidavit containing a witness’s account of appellant’s alleged cocaine use provided probable cause for a search authorization permitting the seizure of appellant’s hair for drug testing, where the witness stated that she had seen appellant use cocaine in his home, the witness was aware of appellant’s prior court-martial charges and described a scar on his stomach, which were not matters of general knowledge within the squadron, the witness promptly reported the incident to her chain of command and her statements remained consistent, and a forensic science consultant confirmed that appellant’s hair would reveal cocaine use if he was a chronic user; accordingly, despite some other circumstances that undercut a finding of probable cause, the military judge did not abuse his discretion in upholding the search authorization in this case; a sufficient nexus existed between the alleged crime and the seizure of appellant’s hair; as such, sufficient facts existed to support a reasonable belief that testing appellant’s body hair would yield evidence of his use of cocaine). 


United States v. Conliffe, 67 M.J. 127 (it is an abuse of discretion if a military judge fails to obtain from the accused an adequate factual basis to support the plea; in addition, it is an abuse of discretion if a military judge’s ruling is based on an erroneous view of the law). 

(while an appellate court reviews questions of law de novo, military judges are afforded broad discretion in whether or not to accept a plea; this discretion is reflected in appellate application of the substantial basis test:  does the record as a whole show a substantial basis in law or fact for questioning the guilty plea). 

United States v. Wuterich, 67 M.J. 32 (the military judge abused his discretion in quashing a government’s subpoena for unaired footage of a television interview of the accused regarding the alleged offenses on the grounds that the footage was cumulative without first conducting an in camera review of the requested materials). 

United States v. Martinez, 67 M.J. 59 (in a sentencing case where appellant pleaded guilty to a single specification of drug use, statements of senior member of court-martial panel during voir dire that a sentence of no punishment was not an option and that there would be no room in his Air Force for people who abused drugs cast substantial doubt on that member’s fairness or impartiality, requiring his removal for cause; when questioned by the military judge, the member’s responses were qualified, if not hesitant; although the member later disavowed an inelastic attitude toward a punitive discharge, he did not disavow an inelastic attitude toward punishment; because his response was qualified and inelastic as to the necessity of some punishment, these responses, combined with the fact that he was the senior member of the panel, would lead an objective observer to question whether appellant received a fair sentencing hearing; as such, there was a substantial doubt as to the fairness or impartiality of the member in question, and in light of the cases dealing with implied bias and the liberal grant mandate, the military judge abused his discretion in not granting the challenge for cause). 

2008 (Transition)


United States v. Czachorowski, 66 M.J. 432 (the military judge abused his discretion when he admitted into evidence a child victim’s out-of-court statements under the residual hearsay exception of MRE 807, where the judge relied on the trial counsel’s bare, uncorroborated assertion that the victim was unavailable to testify and ignored the government’s burden to prove that reasonable efforts could not be made to bring the victim in to testify herself).


United States v. Elfayoumi, 66 M.J. 354 (in this case, the military judge did not abuse his discretion in denying a challenge for cause on the basis of implied bias against a member who expressed a view that homosexuality and pornography were morally wrong, where the military judge tested for the member for personal bias that might manifest itself during the members’ deliberations, regardless of the military judge’s instructions on the law, where the military judge specifically questioned the member on his ability to separate his personal views from the facts of the case and disaggregated the question of homosexuality from the charged criminal conduct, where the military judge permitted defense counsel to question the member without restriction, and where the member’s answers to defense counsel’s questions about his views on pornography revealed that he could distinguish between that which he might find immoral and that which the law might deem criminal). 

United States v. Webb, 66 M.J. 89 (a military judge did not abuse her discretion in ordering a new trial in a drug use case where the government failed to disclose impeachment evidence concerning the witness who was assigned as the observer of the accused’s provision of a urine sample for drug testing; evidence that the observer, a link in the chain of custody, had received nonjudicial punishment under Article 15 for dishonesty may have raised serious questions in the minds of the factfinder concerning the identity of the urine tested and whether it was unaltered when it was tested; this point may have borne extra weight with the factfinder where the government expressly prohibited having such persons serve as observers; alone or in conjunction with the accused’s denial of use, this evidence may have raised reasonable doubt in the factfinders’ minds as to the accused’s guilt; furthermore, the possession of this evidence may have altered the accused’s trial strategy -- he may not have testified; under all of these circumstances, the military judge cannot be faulted for concluding that it was probable that had the prosecution provided the nonjudicial punishment to the defense, it would have produced a substantially more favorable result for the accused -- in other words, it undermined confidence in the outcome of the trial; accordingly, in this case, the government’s failure to disclose exculpatory evidence affecting a witness’s credibility that the accused specifically asked the government to disclose was not harmless beyond a reasonable doubt). 

United States v. Ortiz, 66 M.J. 334 (a military judge abuses her discretion when she improperly applies the law).


(in this case, the military judge abused her discretion and denied the accused his right to a public trial by closing the courtroom to spectators during the testimony of a minor victim, where the military judge failed to correctly apply the legal Waller test (Waller v. Georgia, 467 US 39 (1984)) necessary to overcome the presumption in favor of a public trial and did not even identify the relevant Waller factors to consider or articulate the reason for her decision to clear the courtroom, let alone make findings).  


United States v. Inabinette, 66 M.J. 320 (a military judge abuses his discretion if he accepts a guilty plea without an adequate factual basis to support the plea - an area in which an appellate court affords the judge significant deference; additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion). 


(in this case, the military judge did not abuse his discretion in concluding that appellant’s guilty pleas remained provident despite potentially contradictory testimony from a forensic psychiatrist who testified for appellant during sentencing that he suffered from bipolar disorder with psychotic features, but that there was no indication that he did not appreciate the wrongfulness of his actions at the time of the offenses, where the judge inquired into appellant’s mental condition following the psychiatrist’s testimony and addressed the potential inconsistency in that testimony regarding appellant’s mental responsibility at the time of the offenses and he did so against a backdrop of consistent RCM 706 boards that found the likelihood that appellant was unable to appreciated the nature and wrongfulness of his behavior as statistically improbable). 


United States v. McIlwain, 66 M.J. 312 (an appellate court will reverse a military judge’s decision on the issue of recusal only for an abuse of discretion).


(a military judge abused her discretion by denying a defense motion to recuse herself in a members trial after declaring that her participation in companion cases would suggest to an impartial person looking in that she could not be impartial in the case and refusing to sit as trier of fact). 



United States v. Leedy, 65 M.J. 208 (where a magistrate had a substantial basis to find probable cause, a military judge would not abuse his discretion in denying a motion to suppress).

United States v. Harrow, 65 M.J. 190 (in this case, the military judge erred when he determined that a failure to remember facts contained in a prior statement cannot be inconsistent with in-court testimony that differs from those facts; an inconsistency for purposes of MRE 613 may be found not only in diametrically opposed answers, but also in inability to recall, or equivocation; a military judge has considerable discretion to determine if the trial testimony is inconsistent with a prior statement; but here the military judge appears not to have understood that an inability to recall or a non-responsive answer may present an inconsistency for purposes of MRE 613; consequently, his evidentiary ruling, based on an incorrect understanding of the law, was an abuse of discretion).

(the military judge did not abuse his discretion in rejecting a defense attempt, under the guise of impeachment by inconsistent testimony, to bring in new evidence that related to a point that the witness had not testified to at trial; the witness was not asked about this point during his testimony, there was no inconsistency, and the defense had not established a foundation for later impeachment). 

United States v. Carruthers, 64 M.J. 340 (a military judge’s discretionary authority to limit cross-examination arises only after there has been permitted as a matter of right sufficient cross-examination). 

(the military judge did not abuse his discretion in precluding the defense counsel’s cross-examination of a co-conspirator regarding his possible sentence under a plea agreement, where the defense counsel had already engaged in a lengthy cross-examination regarding the plea agreement which brought to light the co-conspirator’s possible motive to testify falsely, and the military judge determined that the probative value of further inquiry into the co-conspirator’s possible sentence under the plea agreement was substantially outweighed by the danger of misleading the members; the military judge did not deny the defense the right to examine the possibility of bias, but rather simply limited its ability to inquire about yet another aspect of the plea agreement, when the agreement’s bearing on bias had already been thoroughly explored). 

(once the accused has been allowed to expose a witness’s motivation in testifying, it is of peripheral concern to the Sixth Amendment how much opportunity defense counsel gets to hammer that point home to the members). 

(while counsel may request specific instructions from the military judge, the judge has substantial discretionary power in deciding on the instructions to give). 

(the military judge did not abuse his discretion in denying a defense-requested instruction on government witnesses testifying under a promise of leniency; although the overall thrust of the requested instruction was correct, the standard accomplice instruction that the military judge gave substantially covered the leniency offered the witnesses and addressed their possible motives to lie as a result of their favorable pretrial agreements, and the denial of the requested instruction did not deprive the accused of a defense or seriously impair his ability to present a defense). 

United States v. Lee, 64 M.J. 213 (in this case, the military judge abused his discretion in refusing a defense request for expert assistance in a child pornography case where a government witness offered expert testimony that the images taken from the accused’s computer were real and not computer-generated based on a novel digital media analysis; the issue whether the images were real or virtual was the critical issue, and the defense counsel did not have the qualifications or expertise to challenge the image analysis presented by the government’s expert witness; on the facts of this case, the defense made an adequate showing of necessity where the requested expert assistance would provide the basis upon which defense counsel could cross-examine the government expert and possibly challenge the actual or real nature of the graphic images). 


United States v. Grijalva
, 55 MJ 223 (a military judge’s failure to correctly apply the law is an abuse of discretion).

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