TRIAL STAGES: Appeals: Standards of Review, Burdens, etc.


2013 (September Term)

United States v. Talkington, 73 M.J. 212 (an appellate court reviews a military judge’s sentencing instructions for an abuse of discretion, and 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). 

United States v. Danylo, 73 M.J. 183 (an appellate court reviews de novo Sixth Amendment speedy trial issues).  

(in analyzing an appellant’s speedy trial right, an appellate court gives substantial deference to the military judge’s findings of fact unless they are clearly erroneous).   

(in determining whether an appellant has been denied his right to a speedy trial under the Sixth Amendment, an appellate court considers the following factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant). 

United States v. Kearns, 73 M.J. 177 (an appellate court reviews challenges to the legal sufficiency of the evidence de novo). 

(the standard for determining the legal sufficiency of evidence supporting a guilty verdict is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(when reviewing evidence for legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution). 

United States v. Hornback, 73 M.J. 155 (where proper objection is entered at trial, an appellate court reviews alleged prosecutorial misconduct for prejudicial error). 

(in determining whether prejudice resulted from prosecutorial misconduct, an appellate court will look at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice inquiry requires the balancing of three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).   

(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone). 

United States v. Finch, 73 M.J. 144 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion). 

(an error by the military judge in failing to advise an accused of the nature of the offense and the correct definition of its legal concepts does not always render a guilty plea improvident; where the record contains factual circumstances that objectively support the guilty plea to a more narrowly construed statute or legal principle, the guilty plea may be accepted). 

(to prevail on a claim that a guilty plea was improvident, an appellant has the burden to demonstrate a substantial basis in law and fact for questioning the plea; the mere possibility of a conflict between an appellant’s plea and statements or other evidence in the record is not a sufficient basis to overturn the trial results). 

United States v. Hines, 73 M.J. 119 (the question whether wrongful receipt of money on a recurring basis constitutes one crime for the total amount, or multiple offenses for the amount received in each instance, is a question of law, which an appellate court reviews de novo). 

(an appellate court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient). 

United States v. Wicks, 73 M.J. 93 (in an Article 62, UCMJ, interlocutory appeal, an appellate court reviews a military judge’s decision directly and reviews evidence in the light most favorable to the prevailing party at trial; in reviewing a military judge’s ruling on a motion to suppress, the court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; the same standard is applied when reviewing evidentiary rulings; on mixed questions 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; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, clearly unreasonable, or clearly erroneous). 

(where the government obtains evidence in a search conducted pursuant to one of the exceptions to the warrant requirement, it bears the burden of establishing that the exception applies). 

United States v. Moss, 73 M.J. 64 (whether the personal authorization of an appellant is required to appeal to an appellate court is a legal issue which the appellate court reviews de novo). 

(where all of the evidence relating to whether appellant personally authorized an appeal is in the record and is not disputed, the issue before the court necessarily reduces to a question of law). 

United States v. Knapp, 73 M.J. 33 (where an appellant has not preserved an objection to evidence by making a timely objection, that error will be forfeited in the absence of plain error; a timely and specific objection is required so that the court is notified of a possible error, and so has an opportunity to correct the error and obviate the need for appeal; to be timely, an objection must normally be made before the answer is given, although some courts permit objections or motions to strike immediately after the answer). 

(with respect to plain error standard of review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights). 

(under the plain error standard of review, in determining whether an error was clear or obvious, appellate court looks to law at the time of the appeal). 

(under the plain error standard of review, an obvious error materially prejudices the substantial rights of the accused when it has an unfair prejudicial impact on the court members’ deliberations).  

United States v. Passut, 73 M.J. 27 (a military judge’s acceptance of a guilty plea is reviewed for an abuse of discretion; a ruling based on an erroneous view of the law constitutes an abuse of discretion; the test for an abuse of discretion is whether the record shows a substantial basis in law or fact for questioning the plea). 

United States v. Payne, 73 M.J. 19 (the question of whether the members were properly instructed is a question of law and thus review by an appellate court is de novo). 

(where there is no objection to an instruction at trial, an appellate court reviews for plain error). 

(under a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused). 

(the failure to instruct on an element does not constitute structural error and can be tested for harmlessness, overruling US v. Mance, 26 MJ 244 (CMA 1988)). 

United States v. Winckelmann, 73 M.J. 11 (in light of the experience, training, and independence of military judges, CCAs act with broad discretion when reassessing sentences; a CCA’s reassessment will only be disturbed in order to prevent obvious miscarriages of justice or abuses of discretion). 

(when determining whether to reassess a sentence or to order a sentence rehearing, CCAs should consider the totality of the circumstances presented; the following factors are illustrative, rather than exhaustive or dispositive, points of analysis that CCAs should consider when determining whether to reassess a sentence or order a rehearing: (1) dramatic changes in the penalty landscape and exposure; (2) whether an appellant chose sentencing by members or a military judge alone; in this regard, as a matter of logic, judges of the CCAs are more likely to be certain of what a military judge would have done as opposed to members, and this factor could become more relevant where charges address service custom, service discrediting conduct, or conduct unbecoming; (3) whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type that judges of the CCAs should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial). 

(when determining whether to reassess a sentence or to order a sentence rehearing, where a CCA conducts a reasoned and thorough analysis of the totality of the circumstances presented, greater deference is warranted on review before the CAAF).  

United States v. Warner, 73 M.J. 1 (when not objected to at trial, defects in an indictment are reviewed for plain error). 

(under plain error review, appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused). 

(the test for constitutional notice that conduct is subject to criminal sanction is one of law; it does not turn on whether an appellate court approves or disapproves of the conduct in question). 

United States v. Merritt, 72 M.J. 483 (whether a military judge correctly understood and applied the proper legal principle in denying a motion to dismiss is a question that an appellate court reviews de novo). 

(a four-factor test is employed to review claims of unreasonable post-trial delay, evaluating (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (allegations of unlawful command influence are reviewed by an appellate court de novo). 

(on appeal, the accused bears the initial burden of raising unlawful command influence; appellant must show:  (1) facts, which if true, constitute unlawful command influence, (2) that the proceedings were unfair, and (3) that the unlawful command influence was the cause of the unfairness; thus, the initial burden of showing potential unlawful command influence is low, but is more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence).   

(once an issue of unlawful command influence is raised by some evidence, the burden shifts to the government to rebut an allegation of unlawful command influence by persuading the court beyond a reasonable doubt that (1) the predicate facts do not exist, (2) the facts do not constitute unlawful command influence, or (3) the unlawful command influence did not affect the findings or sentence).          

(allegations of unlawful command influence are reviewed for actual unlawful command influence as well the appearance of unlawful command influence; even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system; the test for the appearance of unlawful influence is objective, focusing upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; an appearance of unlawful command influence arises where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

(an appellate court’s review of unlawful influence in a given case is not limited to actual influence; an appellate court is concerned not only with eliminating actual unlawful influence, but also with eliminating even the appearance of unlawful command influence at courts-martial).    

LRM v. Kastenberg, 72 M.J. 364 (jurisdiction is a question of law that an appellate court reviews de novo). 

(construction of a military rule of evidence, as well as the interpretation of statutes, the UCMJ, and the RCM, are questions of law reviewed by an appellate court de novo). 

United States v. Brown, 72 M.J. 359 (an appellate court reviews a military judge’s control of the mode of witness interrogation pursuant to MRE 611 for abuse of discretion; similarly, an appellate court reviews a military judge’s exercise of reasonable control over the proceedings pursuant to RCM 801 for abuse of discretion; for a ruling to be an abuse of discretion, it must be more than a mere difference of opinion; rather it must be arbitrary, fanciful, clearly unreasonable or clearly erroneous). 

United States v. Wilson, 72 M.J. 347 (an appellate court reviews de novo the question of whether an accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; however, it is bound by the facts as found by the military judge unless those facts are clearly erroneous). 

(the standard of diligence under which an appellate court reviews claims of a denial of speedy trial under Article 10 is not constant motion, but reasonable diligence in bringing the charges to trial; short periods of inactivity are not fatal to an otherwise active prosecution). 

(an appellate court’s framework to determine for Article 10 purposes whether the government proceeded with reasonable diligence in bringing an accused to trial includes balancing the four Barker v. Wingo (407 US 514, 530 (1972)) factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether appellant made a demand for a speedy trial; and (4) prejudice to appellant; none of the four factors has any talismanic power; rather, a court must weigh all the factors collectively before deciding whether appellant’s right to a speedy trial has been violated). 

United States v. Schell, 72 M.J. 339 (an appellate court reviews questions of law arising from a guilty plea de novo). 

(a military judge’s acceptance of an accused’s guilty plea is reviewed by an appellate court for an abuse of discretion; the test for an abuse of discretion is whether the record shows a substantial basis in law or fact for questioning the plea; for an appellate court to find a plea of guilty to be knowing and voluntary, the record of trial must reflect that the elements of each offense charged have been explained to the accused by the military judge; if the military judge fails to explain the elements to an accused, it is reversible error unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty; rather than focusing on a technical listing of the elements of an offense, an appellate court looks at the context of the entire record to determine whether an accused is aware of the elements, either explicitly or inferentially).    

United States v. Porter, 72 M.J. 335 (given that the error in the admission of testimonial evidence in violation of the confrontation clause is constitutional, the question is not whether the evidence was legally sufficient without the testimonial evidence, but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record). 

United States v. Mott, 72 M.J. 319 (whether a panel was properly instructed is a question of law that an appellate court reviews de novo). 

(an appellate court reviews a military judge’s decision to deny a motion to suppress evidence, like other decisions to admit or exclude evidence, for an abuse of discretion; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range; in certain cases, even when the evidence in the record may well have supported the military judge’s decision, the military judge may nonetheless have abused his discretion where the military judge’s ruling was based on a misapprehension of the applicable law and the military judge’s findings failed to address the relevant considerations). 

(constitutional errors are reviewed by an appellate court for harmlessness beyond a reasonable doubt; constitutional error is not harmless beyond a reasonable doubt if there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case; erroneous admission of a confession requires an appellate court to exercise extreme caution before determining that the admission of the confession at trial was harmless). 

United States v. Hutchins, 72 M.J. 294 (for an error in admitting a statement obtained in violation of the Fifth Amendment right to have counsel present during a custodial interrogation to be harmless beyond a reasonable doubt, an appellate court must be convinced that there was no reasonable likelihood that its erroneous admission contributed to the verdict). 

United States v. Squire, 72 M.J. 285 (whether a statement is inadmissible testimonial hearsay under the Confrontation Clause as interpreted in Crawford v. Washington (541 US 36 (2004)), is a question of law that an appellate court reviews de novo). 

United States v. Jasper, 72 M.J. 276 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; to find an abuse of discretion requires more than a mere difference of opinion; the challenged ruling must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).    

(where an appellate court finds constitutional error, the question remains whether that error was harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo). 

(where a constitutional error improperly limits an accused’s opportunity to present exculpatory evidence through direct testimony and cross-examination, the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty). 

(to find that a constitutional error limiting an accused’s opportunity to present exculpatory evidence through direct testimony and cross-examination warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry focuses on whether the military judge’s ruling essentially deprived appellant of his best defense that may have tipped the credibility balance in appellant’s favor). 

(where a constitutional error violates the accused’s right to be confronted with the witnesses against him, an appellate court applies a balancing test, weighing the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case). 

United States v. Bennitt, 72 M.J. 266 (an appellate court reviews questions of legal sufficiency de novo). 

(the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(an appellate court reviews questions of law, such as the interpretation and statutory construction of Article 119(b)(2), UCMJ, de novo). 

United States v. Kelly, 72 M.J. 237 (an appellate court reviews a military judge’s decision to suppress or admit evidence for an abuse of discretion; 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).  

(in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts).   

United States v. Gaskins, 72 M.J. 225 (where a defective specification: (1) was tried prior to the decision in Fosler (70 MJ 225 (CAAF 2011)) and (2) was raised for the first time on appeal, an appellate court tests that error for prejudice, which turns on whether that error frustrated an accused’s right to notice and opportunity to zealously defend himself, which depends in turn on whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted). 

(an appellate court applies the elements test to determine whether one offense is an LIO of another; applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense). 

United States v. Goings, 72 M.J. 202 (an appellate court reviews whether a statute is unconstitutional as applied de novo). 

(to determine if a statute is unconstitutional as applied, an appellate court conducts a fact-specific inquiry). 

(upon plain error review, to prove that Article 134, UCMJ - a facially constitutional criminal statute - is unconstitutional as applied to him, appellant must point to particular facts in the record that plainly demonstrate why his interests should overcome Congress’ and the President’s determinations that his conduct be proscribed; put another way, to show that a facially constitutional statute is unconstitutional as applied to a particular individual, the individual must develop facts at trial that show why his interest should overcome the determination of Congress and the President that the conduct be proscribed). 

(when the sexual conduct being charged does not fall directly within the focal point of Lawrence (539 US 558 (2003)) - sexual conduct between two individuals in a wholly private setting that was criminal for no other reason than the act of the sexual conduct itself – and where, as here, the predicate sexual conduct is criminal because of some additional factor (in this case, the violation of clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that such conduct should nonetheless be constitutionally protected rests with the defense at trial). 

(having found plain and obvious error that was forfeited rather than waived where the government failed to allege the terminal element in an Article 134, UCMJ, specification charged before Fosler (70 MJ 225 (CAAF 2011)), an appellate court must then determine whether there is a remedy for the error, which will depend on whether the error has prejudiced the substantial rights of the accused; in the context of a defective specification, the prejudice analysis demands close review of the trial record; the court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted). 

United States v. Tunstall, 72 M.J. 191 (whether an offense is a lesser included offense is a question of law that is reviewed de novo). 

(where there was no objection to an instruction at trial, an appellate court reviews for plain error; under a plain error analysis, the accused has the burden of demonstrating that:  (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused). 

(an appellate court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements). 

(failure to allege the terminal element in an Article 134 adultery specification constitutes plain and obvious error, and resolution of the case will depend upon whether the error has prejudiced the substantial rights of the accused; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted; in making this inquiry, the court is limited to considering evidence contained in the trial record). 

United States v. Coleman, 72 M.J. 184 (an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion). 

(an appellate court reviews all cases in which the trial counsel failed to disclose evidence that is favorable to the defense on the issue of guilt or sentencing for harmless error - whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different). 

(there are two categories of disclosure error: (1) cases in which the defense either did not make a discovery request or made only a general request for discovery; and (2) cases in which the defense made a specific request for the undisclosed information; for cases in the first category, an appellate court applies the harmless error standard; and for cases in the second category, an appellate court applies the heightened constitutional harmless beyond a reasonable doubt standard; failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial).

(an appellate court’s review of discovery/disclosure issues utilizes a two-step analysis: first, it determines whether the information or evidence at issue was subject to disclosure or discovery; second, if there was nondisclosure of such information, it tests the effect of that nondisclosure on the appellant’s trial).  

United States v. Solomon, 72 M.J. 176 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion). 

(a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; when a military judge abuses his discretion in the MRE 403 balancing analysis, the error is nonconstitutional; for a nonconstitutional error such as this one, the government has the burden of demonstrating that the error did not have a substantial influence on the findings). 

United States v. Lubich, 72 M.J. 170 (on appeal, an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; further, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range).

United States v. Caldwell, 72 M.J. 137 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; it will not reject the plea unless there is a substantial basis in law and fact for questioning the guilty plea). 

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 order to determine whether a guilty plea is knowing and voluntary, an appellate court looks to the record of trial and the documents considered by the court below). 

United States v. Irizarry, 72 M.J. 100 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion). 

United States v. Tearman, 72 M.J. 54 (whether admitted evidence constitutes testimonial hearsay is a question of law reviewed de novo). 

(relief for Confrontation Clause errors will be granted only where they are harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo; in the context of the erroneous admission of testimonial hearsay, the harmless beyond a reasonable doubt inquiry of an appellate court focuses on whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction). 

(to determine whether a Confrontation Clause error is harmless beyond a reasonable doubt, an appellate court balances factors such as: (1) the importance of the unconfronted testimony in the prosecution’s case, (2) whether that testimony was cumulative, (3) the existence of corroborating evidence, (4) the extent of confrontation permitted, and (5) the strength of the prosecution’s case; this list of factors is not exhaustive, and the determination is made on the basis of the entire record; to conclude that a Confrontation Clause error was harmless beyond a reasonable doubt, an appellate court must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered on the issue in question). 

United States v. Cote, 72 M.J. 41 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews findings of fact under the clearly erroneous standard and conclusions of law de novo). 

(on direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, CAAF reviews whether the military judge’s initial decision was an abuse of discretion). 

United States v. Vazquez, 72 M.J. 13 (the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo; to determine if a statute is unconstitutional as applied, an appellate court conducts a fact-specific inquiry). 

(the accused has the burden to demonstrate that a statute is unconstitutional). 

(given the plenary authority of Congress, itself subject to the requirements of the Due Process Clause, to legislate in the area of rules relating to the rights of servicemembers at courts-martial, an appellate court must recognize that the choices made by Congress and the President in establishing the procedures for courts-martial under Article 29(b), UCMJ, and RCM 805(d) are entitled to a high degree of deference; while it is axiomatic that an accused is entitled to a fair trial, absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, an appellate court presume that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context). 

(to determine whether Article 29(b), UCMJ, and the procedures to implement it set forth in RCM 805(d)(1) are unconstitutional as applied to the accused, the accused has the burden to demonstrate that the factors militating in favor of the accused’s interest are so extraordinarily weighty as to overcome the balance struck by Congress). 

United States v. Clifton, 71 M.J. 489 (under a plain error analysis, this Court will grant relief in a case of nonconstitutional error only if an appellant can demonstrate that (1) there was error; (2) the error was plain and obvious; and (3) the error materially prejudiced a substantial right of the accused). 

(an appellate court reviews a military judge’s denial of a panel member’s request to recall a witness for abuse of discretion). 

(appellant bears the burden to show prejudice in the absence of an objection at trial and in the context of a nonconstitutional error). 

United States v. Halpin, 71 M.J. 477 (because appellant did not object to trial counsel’s sentencing arguments at trial, an appellate court reviews the propriety of the arguments for plain error; to prevail under a plain error analysis, appellant has the burden of showing, inter alia, that the alleged errors materially prejudiced a substantial right). 

(in assessing prejudice under the plain error test where prosecutorial misconduct has been alleged, an appellate court looks at the cumulative impact of any prosecutorial misconduct on appellant’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice determination with respect to findings involves balancing three factors:  (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; in the context of an allegedly improper sentencing argument, an appellate court considers whether trial counsel’s comments, taken as a whole, were so damaging that it cannot be confident that appellant was sentenced on the basis of the evidence alone). 

United States v. Spicer, 71 M.J. 470 (an appellate court reviews questions of legal sufficiency de novo; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, any reasonable fact-finder could have found all the essential elements beyond a reasonable doubt).

United States v. Garner, 71 M.J. 430 (whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo). 

(under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused). 

United States v. Datavs, 71 M.J. 420 (to establish ineffective assistance of counsel, an accused must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice). 

(in reviewing for ineffectiveness of counsel, an appellate court looks at the questions of deficient performance and prejudice de novo). 

(with respect to the first prong of establishing ineffective assistance of counsel, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance). 

(with respect to the second prong of establishing ineffective assistance of counsel, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; it is not enough to show that the errors had some conceivable effect on the outcome; instead, a reasonable probability is a probability sufficient to undermine confidence in the outcome). 

(defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so).

(when reviewing ineffectiveness claims, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the accused; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed). 

Hasan v. Gross, 71 M.J. 416 (to prevail on a writ of mandamus, appellant must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances). 

(the standard for identifying the appearance of bias requiring the recusal of a military judge is objective: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned). 

United States v. Wilkins, 71 M.J. 410 (whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo).    

(where there was no objection to a lesser included offense instruction at trial, an appellate court reviews for plain error). 

(under a plain error analysis, appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused). 

(an appellate court applies the elements test to determine whether one offense is an LIO of another; the test does not require that the offenses at issue employ identical statutory language; rather, after applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense). 
           
(an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; rather, an appellate court tests for prejudice). 

(where appellant failed to object at trial to a lesser included offense instruction, he bears the burden of proving prejudice; he must show that under the totality of the circumstances in this case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice). 

2011 (September Term)

United States v. Vela, 71 M.J. 283 (the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this familiar standard gives full play to the responsibility of the trier of fact to draw reasonable inferences from basic facts to ultimate facts; the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution).    

(whether the government has shown by a preponderance of the evidence that it has based appellant’s prosecution on sources independent of the immunized statements is a preliminary question of fact; an appellate court will not overturn a military judge’s resolution of this question unless it is clearly erroneous or is unsupported by the evidence). 

(in reviewing for clear error, an appellate court asks whether, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed). 

United States v. Ali, 71 M.J. 256 (jurisdiction is a legal question which an appellate court reviews de novo). 

(the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo).

(where an appellant argues that a statute is unconstitutional as applied, an appellate court must conduct a fact-specific inquiry). 

(to succeed in an as-applied challenge that the exercise of court-martial jurisdiction violated his rights under the Fifth and Sixth Amendments, appellant must show that he was entitled to Fifth and Sixth Amendment protections and that, under the facts of this case, these protections were violated when he was subjected to military jurisdiction). 

United States v. Barnett, 71 M.J. 248 (an appellate court reviews issues concerning non-mandatory instructions for an abuse of discretion). 

United States v. Behenna, 71 M.J. 228 (an allegation that the members were improperly instructed is an issue that an appellate court reviews de novo). 

(in reviewing the propriety of an instruction, appellate courts must read each instruction in the context of the entire charge and determine whether the instruction completed its purpose). 

(when instructional errors have constitutional implications, as instructions involving self-defense do, then the error is tested for prejudice under a harmless beyond a reasonable doubt standard; only when the reviewing authority is convinced beyond a reasonable doubt that the error did not contribute to appellant’s conviction or sentence is a constitutional error harmless).     

(generally, a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous). 

(once a Brady v. Maryland, 373 US 83 (1963), discovery violation is established, courts need not test for harmlessness; this makes sense; if there is a reasonable probability that the evidence would have changed the result at trial, then, by definition, the failure to disclose cannot be harmless; there is no need to conduct a redundant test).  

United States v. Rauscher, 71 M.J. 225 (whether a specification states an offense is a question of law that an appellate court reviews de novo). 

United States v. Humphries, 71 M.J. 209 (whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo). 

(where the law was settled at the time of trial and has subsequently changed, an appellate court applies the law as it exists today). 

(a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice). 

(in the context of a plain error analysis of defective indictments, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused). 

(in contested cases where the error in a defective specification that failed to allege the terminal element was preserved, each case must be reviewed for harmless error to determine whether the constitutional error to the accused’s right to notice under the Fifth and Sixth Amendments was harmless beyond a reasonable doubt).

(in the plain error context, a defective specification alone is insufficient to constitute substantial prejudice to a material right; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted).    

United States v. Norwood, 71 M.J. 204 (whether a specification is defective and the remedy for such error are questions of law, which an appellate court  reviews de novo). 

United States v. Easton, 71 M.J. 168 (the constitutionality of a statute is a question of law that an appellate court reviews de novo).

(an appellate court reviews a military judge’s findings of fact under a clearly erroneous standard). 

United States v. Rose, 71 M.J. 138 (to establish ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice). 

(the Strickland ineffective assistance of counsel test applies in the context of guilty pleas where an appellant challenges the plea based on ineffective assistance of counsel). 

(ineffective assistance of counsel claims involve mixed questions of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but looks at the questions of deficient performance and prejudice de novo). 

(in determining whether a counsel’s performance was deficient in a claim of ineffective assistance of counsel, appellate courts must indulge a strong presumption that the counsel’s conduct falls within the wide range of reasonable professional assistance). 

(in determining whether there was prejudice in a claim of ineffective assistance of counsel, an appellant in a guilty plea case establishes prejudice by showing that, but for counsel’s deficient performance, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial). 

(in order to establish deficient performance in a claim of ineffective assistance of counsel, an appellant must establish that counsel’s representation amounted to incompetence under prevailing professional norms). 

(while an appellate court indulges a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, there are nevertheless important guides by which it must measure that conduct, one of which is the Rules of Professional Conduct). 

(when defects in a specification are raised for the first time on appeal because of intervening changes in the law, an appellate court tests for plain error and will only dismiss the specification if there is prejudice). 

United States v. Barberi, 71 M.J. 127 (where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside). 

(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision). 

(if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict).

(most constitutional errors, i.e., non-structural ones, constitute trial errors and are subject to harmless error review). 

(a constitutional trial error is not harmless beyond a reasonable doubt where there is a reasonable possibility that the evidence complained of might have contributed to the conviction; to say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the members considered on the issue in question, as revealed in the record; an error in admitting plainly relevant evidence which possibly influenced the members adversely to a litigant cannot be conceived of as harmless). 

United States v. Ignacio, 71 M.J. 125 (whether a panel was properly instructed is a question of law reviewed de novo). 

United States v. Dease, 71 M.J. 116 (an appellate court reviews a military judge’s evidentiary ruling on a motion to suppress for an abuse of discretion).

(in order to find an abuse of discretion in a military judge’s evidentiary ruling, an appellate court must find that the judge committed a clear error in his conclusions). 

United States v. Hayes, 71 M.J. 112 (the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all of the essential elements beyond a reasonable doubt). 

United States v. Nash, 71 M.J. 83 (appellate courts will review a military judge’s ruling on a challenge for cause for actual bias for abuse of discretion). 

(because a challenge based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge’s ruling on actual bias is afforded great deference). 

(great deference that is afforded a military judge’s ruling on actual bias of a panel member is not a separate standard; rather, it is a recognition by appellate courts that the legal question of actual bias rests heavily on the sincerity of an individual’s statement that he or she can remain impartial, an issue approximating a factual question on which the military judge is given greater latitude of judgment; the standard, however, remains an abuse of discretion). 

United States v. McClain, 71 M.J. 80 (an appellate court reviews issues of legal sufficiency of the evidence de novo).

(evidence is legally sufficient if, viewed in the light most favorable to the government, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt; in applying this test, an appellate court draws every reasonable inference from the evidence of record in favor of the prosecution). 

United States v. Nealy, 71 M.J. 73 (jurisdiction is a legal question that an appellate court reviews de novo). 

United States v. Stanley, 71 M.J. 60 (whether a panel was properly instructed is a question of law reviewed by an appellate court de novo).

United States v. Watson, 71 M.J. 54 (while an appellate court generally examines a military judge’s decision to accept a guilty plea for abuse of discretion, where the issue appealed involves pure questions of law, it utilizes a de novo review). 

(when a statute’s language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms). 

(a court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient). 

United States v. King, 71 M.J. 50 (whether a specification states an offense is a question of law that is reviewed de novo). 

(in reviewing the adequacy of a specification, the analysis is limited to the language as it appears in the specification, which must expressly allege the elements of the offense, or do so by necessary implication). 

United States v. Weeks, 71 M.J. 44 (an appellate court reviews a military judge’s decision to accept a plea of guilty for abuse of discretion).

(an appellate court reviews questions of law, such as whether appellant falsely made a check or whether something constitutes a signature or writing, de novo). 

(if an accused’s admissions in the plea inquiry do not establish each of the elements of the charged offense, the guilty plea must be set aside).

United States v. Stewart, 71 M.J. 38 (absent evidence to the contrary, an appellate court may presume that members follow a military judge’s instructions). 

United States v. Ballan, 71 M.J. 28 (while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused). 

(an appellate court reviews jurisdictional questions de novo).

(a jurisdictional defect goes to the underlying authority of a court to hear a case; however, where an error is procedural rather than jurisdictional in nature, an appellate court tests for material prejudice to a substantial right to determine whether relief is warranted). 

(whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo).

(while in the case of a guilty plea where the appellant raises the validity of a specification for the first time on appeal, an appellate court views the specification with maximum liberality; such construction still does not permit the court to necessarily imply a separate and distinct element from nothing beyond allegations of the act or failure to act itself). 

(while the rules state that a charge or specification that fails to state an offense should be dismissed, a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error). 

(in the context of a plain error analysis, appellant has the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of appellant). 

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).

United States v. Bradley, 71 M.J. 13 (an appellate court reviews assertions of ineffective assistance of counsel de novo). 

(in the guilty plea context, the first part of the Strickland ineffective assistance of counsel test remains the same - whether counsel’s performance fell below a standard of objective reasonableness expected of all attorneys; the second prong is modified to focus on whether the ineffective performance affected the outcome of the plea process). 

(in determining whether appellant was denied effective assistance of counsel, it is not necessary to decide the issue of deficient performance when it is apparent that the alleged deficiency has not caused prejudice). 

(to satisfy the prejudice requirement for ineffective assistance of counsel, appellant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial; a reasonable probability is a probability sufficient to undermine confidence in the outcome; that requires a substantial, not just conceivable, likelihood of a different result). 

(when an appellant argues that counsel was ineffective for erroneously waiving a motion, it makes sense to deny the claim if the appellant would not be entitled to relief on the erroneously waived motion, because appellant cannot show he was harmed by not preserving the issue). 

(merely being entitled to relief on an erroneously waived motion does not by itself satisfy the prejudice analysis for an ineffective assistance of counsel claim in the guilty plea context; appellant also must satisfy a separate, objective inquiry - he must show that if he had been advised properly, then it would have been rational for him not to plead guilty). 

United States v. Fry, 70 M.J. 465 (when an accused contests personal jurisdiction on appeal, an appellate court reviews that question of law de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record; whether appellant is mentally competent is a question of fact, and an appellate court will only set aside findings of fact if they are clearly erroneous). 

United States v. Hayes, 70 M.J. 454 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; an abuse of discretion occurs when there exists 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). 

United States v. Morrissette, 70 M.J. 431 (whether the government has shown, by a preponderance of the evidence, that it has based an accused’s prosecution on sources independent of his immunized statements is a preliminary question of fact; an appellate court will not overturn a military judge’s resolution of that question unless it is clearly erroneous or is unsupported by the evidence). 

(factors used to determine whether the government made direct or indirect use of an accused’s immunized statements include (1) whether the statements reveal anything which was not already known to the government by virtue of the accused’s own pretrial statements, (2) whether the investigation against the accused was completed prior to the immunized statement, (3) whether the decision to prosecute the accused had been made prior to the immunized statement, and (4) whether the trial counsel who had been exposed to the immunized testimony participated in the prosecution; however, these factors are not necessarily determinative as to whether the government has or has not met its burden; that is because the ultimate question is whether the government has made any direct or derivative use of immunized evidence, not whether it adhered to a particular timeline or process). 

United States v. St. Blanc, 70 M.J. 424 (the interpretation of UCMJ and RCM provisions and the military judge’s compliance with them are questions of law, which an appellate court reviews de novo).

(the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo). 

United States v. Winckelmann, 70 M.J. 403 (an appellate court reviews issues of legal sufficiency de novo). 

(evidence is legally sufficient if, viewed in the light most favorable to the government, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; in applying this test, an appellate court must draw every reasonable inference from the evidence of record in favor of the prosecution).

(if a servicemember on appeal alleges error in the application of a sentence that involves forfeitures, the servicemember must demonstrate that the alleged error was prejudicial; to establish prejudice, an appellant bears the burden of demonstrating that he or she was entitled to pay and allowances at the time of the alleged error).  

United States v. Goodman, 70 M.J. 396 (once a military judge has accepted an accused’s guilty pleas and entered findings of guilty, an appellate court will not set them aside unless it finds a substantial basis in law or fact for questioning the plea). 

(in determining on appeal whether there is a substantial inconsistency in a guilty plea, an appellate court considers the full context of the plea inquiry, including appellant’s stipulation of fact). 

United States v. Pierce, 70 M.J. 391 (whether a specification alleged all elements of an offense and whether instructions were proper are questions of law, which an appellate court reviews de novo). 

United States v. Schumacher, 70 M.J. 387 (an allegation of error in regard to a failure to give a mandatory instruction is reviewed de novo). 

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (an appellate court reviews a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion; findings of fact are reviewed under a clearly erroneous standard, and conclusions of law are reviewed de novo).

(an appellate court tests constitutional evidentiary error to see if it was harmless beyond a reasonable doubt - whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction). 

(to determine whether an error affecting an accused’s right to cross-examination was harmless beyond a reasonable doubt, an appellate court considers the following nonexclusive, five factors: the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case). 

United States v. Sweeney, 70 M.J. 296 (where appellant forfeited rather than waived his right to object to the admission of a drug testing report on Confrontation Clause grounds, an appellate court reviews for plain error). 

(under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused; where the alleged error is constitutional, the prejudice prong is fulfilled where the government cannot show that the error was harmless beyond a reasonable doubt). 

(an appellate court grants relief for Confrontation Clause errors only where they are not harmless beyond a reasonable doubt; among other factors, the court considers the importance of the unconfronted testimony in the prosecution’s case, whether that testimony was cumulative, the existence of corroborating evidence, the extent of confrontation permitted, and the strength of the prosecution’s case). 

(in assessing harmlessness in the constitutional context, the question is not whether the evidence was legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable probability that the evidence complained of might have contributed the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case).

United States v. Baker, 70 M.J. 283 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; thus 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; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(when reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party). 

(where a military judge provides a detailed ruling on pretrial eyewitness identification evidencing an accurate understanding of the Biggers reliability factors (Neil v. Biggers, 409 US 188 (1973)) and their application to the facts on the record, an appellate court gives deference to his ruling in its analysis). 

(with respect to pretrial identification, reviewing courts must determine whether under the totality of the circumstances the pretrial identification procedure was reliable even though the confrontation procedure itself was unnecessarily suggestive). 

United States v. Gaddis, 70 M.J. 248 (in determining whether the exclusion of evidence of a witness’s bias or motive to fabricate deprived an accused of a fair trial or an opportunity for cross-examination is whether a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination). 

United States v. Eslinger, 70 M.J. 193 (a military judge’s decisions to admit or exclude evidence are reviewed for an abuse of discretion). 

(under the plain error test, after finding plain or obvious error, an appellate court tests for prejudice).

(to test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial for prejudice, an appellate court determines if the error substantially influenced the adjudged sentence). 

United States v. Schuber, 70 M.J. 180 (an appellate court reviews de novo the question of whether appellant was denied his rights to a speedy trial under Article 10, UCMJ, as a matter of law, and it is bound by the facts as found by the military judge unless those facts are clearly erroneous; under Article 10, UCMJ, when any person subject to the UCMJ is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him; in reviewing claims of a denial of a speedy trial under Article 10, UCMJ, the term “immediate steps” has been interpreted to mean not constant motion, but reasonable diligence in bringing the charges to trial; thus, the government must demonstrate reasonable diligence in proceeding toward trial during appellant’s pretrial confinement; however, brief inactivity is not fatal to an otherwise active, diligent prosecution; the test is reasonable diligence, not textbook prosecution). 

(although Article 10, UCMJ, creates a more stringent speedy trial standard than a Sixth Amendment analysis, alleged Article 10, UCMJ, violations are analyzed using the same Barker v. Wingo [407 US 514 (1972)] four-factor structure: (1) the length of the delay, (2) the reasons for the delay, (3) whether appellant made a demand for speedy trial, and (4) prejudice to appellant; the first factor is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance). 

(whether the amount of time is facially unreasonable in an Article 10, UCMJ, context depends on the seriousness of the offense, the complexity of the case, and the availability of proof, and it also depends on other factors specific to the purposes of Article 10, UCMJ, which is to prevent an accused from languishing in prison without notice of the charges and without an opportunity for bail; these additional circumstances include whether appellant was informed of the accusations against him, whether the government complied with procedures relating to pretrial confinement, and whether the government was responsive to requests for reconsideration of pretrial confinement). 

United States v. Zarbatany, 70 M.J. 169 (the proper application of credit for illegal pretrial punishment is a question of law, reviewed de novo by an appellate court).

(whether action taken by the CCA provided meaningful relief for an Article 13, UCMJ, violation is a question of law that the CAAF considers under a de novo standard of review). 

United States v. Phillips, 70 M.J. 161 (in deciphering the meaning of a statute, an appellate court normally applies the common and ordinary understanding of the words in the statute).

(in determining legal sufficiency, an appellate court must decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly). 

United States v. Martinez, 70 M.J. 154 (when an appellant does not raise an issue of disqualification of the military judge until appeal, an appellate court examines the claim under the plain error standard of review; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice). 

(when a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; the appearance of impartiality is reviewed on appeal objectively and is tested under the following standard: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification; because not every judicial disqualification requires reversal, the standards announced by the Supreme Court in Liljeberg [486 US 847 (1988)] are used to determine whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system). 

(in a plain error context with respect to a military judge’s impartiality, an appellate court looks to see if the error materially prejudiced the substantial rights of appellant and whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; both inquiries are conducted even if the court concludes that there is no Article 59(a) prejudice as it is possible that appellant may not have suffered any material prejudice to a substantial right, but that reversal would still be warranted under Liljeberg). 

(in the context of judicial disqualification, the Supreme Court’s Liljeberg [486 US 847 (1988)] test provides that in determining whether a judgment should be vacated, it is appropriate for an appellate court to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process). 

(with respect to the third part of the Liljeberg test in the context of judicial disqualification, an appellate court considers whether denying a remedy to appellant under the circumstances of the case will risk undermining the public’s confidence in the military justice system; this risk is considered by applying an objective standard similar to the standard applied in the initial RCM 902(a) analysis; this analysis, however, differs from the initial RCM 902(a) inquiry in which appellate courts determine whether the military judge should have recused himself or herself; in the remedy analysis, an appellate court does not limit its review to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority’s action, the action of the Court of Criminal Appeals, and other facts relevant to the Liljeberg [486 US 847 (1988)] test; this remedy analysis involves the public confidence in the military justice system in the context of how that system responds once it has been determined that a military judge was disqualified under RCM 902(a) and should have been recused; that analysis must necessarily include a review of all post-trial actions to evaluate how the public would perceive that response; for example, if further proceedings provided an explanation for a situation that occurred at trial, that may be sufficient to minimize the risk that the conduct would undermine the public’s confidence in the military justice system; if a remedy is granted after further proceedings, that too would impact the risk of undermining the public’s confidence; on the other hand, if the appearance is created and is not explained at trial, or if no remedy is granted, or if there was a remedy that appears inadequate from the perspective of a reasonable person, those facts would increase the risk that the conduct (creating the appearance) would undermine the public’s confidence in the military justice system). 

United States v. Hull, 70 M.J. 145 (requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence).

United States v. Sullivan, 70 M.J. 110 (an appellate court reviews a military judge’s evidentiary decisions for an abuse of discretion). 

United States v. Marsh, 70 M.J. 101 (improper argument is a question of law that an appellate court reviews de novo).

(in determining whether an improper sentencing argument prejudiced appellant, an appellate court balances the severity of the improper argument, any measures by the military judge to cure the improper argument, and the evidence supporting the sentence to determine whether the trial counsel’s comments, taken as a whole, were so damaging that it cannot be confident that appellant was sentenced on the basis of the evidence alone). 

United States v. Hohman, 70 M.J. 98 (an appellate court tests for prejudice a military judge’s error in failing to place any of the approved reasons for severing the attorney-client relationship on the record prior to the departure of the detailed trial defense counsel from active duty). 

United States v. Savala, 70 M.J. 70 (an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo).

(for constitutional errors at trial, the government must persuade an appellate court that the error was harmless beyond a reasonable doubt). 

(where the constitutional trial error is a violation of the Confrontation Clause, whether such an error is harmless in a particular case depends upon a host of factors that may include the importance of the witness’s testimony to the government’s case, whether the testimony was cumulative, the presence of contradictory or corroborating evidence, the extent of other cross-examination allowed, and the strength of the government case; an appellate court applies a four-part test in assessing prejudice in the event of an evidentiary error, balancing (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the excluded evidence; and (4) the quality of the evidence in question; regardless of factors employed, the balancing test involves consideration of whether, assuming that the damaging potential of the cross-examination were fully realized, an appellate court might nonetheless say that the error was harmless beyond a reasonable doubt). 

United States v. Oliver, 70 M.J. 64 (in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; it does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, rather it requires that a reviewing court examine only whether any rational trier of fact could have made that determination; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts; and it requires courts to review the evidence in a light most favorable to the prosecution, which preserves the factfinder’s role as weigher of evidence and impinges upon the factfinder’s discretion only to the extent necessary to guarantee the fundamental protection of due process).

(an appellate court reviews the issue of legal sufficiency de novo). 

United States v. Arriaga, 70 M.J. 51 (whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo).

(where there is no objection to an instruction at trial, an appellate court reviews it for plain error). 

(plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice). 

(a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction). 

United States v. Beaty, 70 M.J. 39 (the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo).

(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. McMurrin, 70 M.J. 15 (plain error requires (1) that there be error, (2) that the error be plain or obvious, and (3) that the error materially prejudices a substantial right of the accused). 


(whether there was plain error is a question of law that an appellate court reviews de novo).

 

(the Court of Appeals for the Armed Forces has indulged a strong presumption against structural error, and has declined to find it unless the error was of such a nature that its effect was difficult to assess or harmlessness was irrelevant; whenever an accused has been convicted of an offense on the mistaken assumption that it was an LIO of the charged offense, the CAAF cannot say that prejudice was always irrelevant, and it cannot say that the effect of such an error was necessarily difficult to assess; thus, rather than assume structural error, it determines whether the constitutional error was prejudicial).


United States v. Girouard, 70 M.J. 5 (whether an offense is an LIO is a question of law that is reviewed de novo; in determining whether an offense is an LIO, a court applies the elements test).

 

(deviation from a legal rule is error unless the rule has been waived). 

 

(where there is no waiver, and in the absence of an objection, an appellate court tests the instructions provided by the military judge for plain error based on the law at the time of appeal). 

 

(in the context of a plain error analysis, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materiall

United States v. Bonner, 70 M.J. 1 (the elements test to determine whether one offense is an LIO of a charged offense does not require that the two offenses at issue employ identical statutory language; instead, after applying the normal principles of statutory construction, a court asks whether the elements of the alleged LIO are a subset of the elements for the charged offense; thus, it first determines the elements of the charged offense and the alleged LIO by applying the principles of statutory construction; then, it compares the elements of the two offenses to see if the latter is a subset of the former).  


United States v. Daly, 69 M.J. 485 (jurisdiction is a question of law that an appellate court reviews de novo).


United States v. Medina, 69 M.J. 462 (the constitutionality of a statute is a question of law that an appellate court reviews de novo).

 

(whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo). 

 

(if instructional error is found, because there are constitutional dimensions at play, the error must be tested for prejudice under the standard of harmless beyond a reasonable doubt). 


United States v. Clark, 69 M.J. 438 (whether there has been improper reference to an accused’s exercise of his constitutional rights is a question of law that an appellate court reviews de novo).

 

(where the asserted errors regarding trial counsel’s references during the opening statement, direct examination of appellant, and closing argument to appellant’s exercise of his right to silence were not preserved at trial, an appellate court reviews them for plain error). 

 

(whether there was plain error is a question reviewed de novo). 

 

(to find plain error, appellant must show that there is error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights). 

 

(when assessing the admissibility of the evidence of an accused’s demeanor, an appellate court must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the court analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the court then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance). 

 

(in order to determine whether trial counsel’s comments in his rebuttal closing argument to claims made by defense counsel in his closing argument were fair, an appellate court must examine them in context, given the defense theory of the case).  


(with respect to constitutional error, an appellate court must be satisfied beyond a reasonable doubt that the error was harmless beyond a reasonable doubt).

United States v. Watson, 69 M.J. 415 (an appellate court reviews the laws and regulations governing enlistment and separation with sensitivity to the distinction between military and civilian status).

 
(an appellate court interprets regulations under a de novo standard of review).

United States v. Lofton, 69 M.J. 386 (an appellate court reviews questions of legal sufficiency de novo).

 

(the test for determining legal sufficiency is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this test requires that an appellate court draw every reasonable inference from the evidence of record in favor of the prosecution).   

 

(an appellate court reviews a convening authority’s decision not to grant a post-trial hearing for an abuse of discretion). 


United States v. Lewis, 69 M.J. 379 (the issue whether trial counsel’s cross-examination of a defense witness and his comments in closing argument constituted a due process violation by suggesting that the defense bore the burden of proof to demonstrate that appellant was not guilty involves a question of law that an appellate court reviews de novo).

 

(in the absence of defense objection to questions in cross-examination and to comments in closing argument, an appellate court reviews for plain error). 

 

(under the plain error standard, an appellant must show that (1) an error was committed, (2) the error was plain, or clear, or obvious, and (3) the error resulted in material prejudice to substantial rights; an error is not plain and obvious if, in the context of the entire trial, the accused fails to show the military judge should be faulted for taking no action even without an objection). 

 

(when determining whether prosecutorial comment was improper, the statement must be examined in light of its context within the entire court-martial; in the course of reviewing whether an appellant was deprived of a fair trial by such comments, the question an appellate court must resolve is whether, viewed within the context of the entire trial, defense counsel’s comments clearly invited the reply).


United States v. Edwards, 69 M.J. 375 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; in doing so, it applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding appellant’s guilty plea). 


United States v. Flores, 69 M.J. 366 (whether a trial counsel’s comments improperly reference an accused’s invocation of an accused’s constitutional right to remain silent is a question of law that an appellate court reviews de novo).

 

(when an objection is made to a nonconstitutional error, appellate courts determine whether the error materially prejudiced the substantial rights of the accused). 

 

(when no objection is made to a nonconstitutional error during the court-martial, a trial counsel’s arguments are reviewed for plain error; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice).    

 

(regardless of whether there was an objection or not to a nonconstitutional error, in the context of a constitutional error, the burden is on the government to establish that the comments were harmless beyond a reasonable doubt). 

 

(comments made by trial counsel in argument that are challenged as being an improper reference to an accused’s right to remain silent are reviewed in context rather than in isolation). 

 

(the test for determining whether an indirect remark by trial counsel during closing argument on the merits constitutes improper comment on an accused’s failure to testify is whether the language used was manifestly intended to be, or was of such character that the factfinder would naturally and necessarily take it to be a comment on the failure of the accused to testify).


United States v. Gooch, 69 M.J. 353 (whether a panel has been properly selected is a question of law reviewed by an appellate court de novo; the reviewing court is bound by the military judge’s findings of fact unless they are clearly erroneous). 

 

(having found nonconstitutional error in the application of Article 25, UCMJ, an appellate court must determine if the error materially prejudiced the substantial rights of the accused). 

 

(with respect to nonconstitutional error, the burden of persuasion depends on the nature of the error; first, in the case of administrative mistake, the appellant must demonstrate prejudice; second, where the government has intentionally included or excluded a class of eligible members, the government must demonstrate lack of harm; and third, in the case of unlawful command influence, the government must prove beyond a reasonable doubt that the error was harmless). 

 

(where there was a nonconstitutional error in the categorical exclusion of a class of potential members from appellant’s court-martial based on dates of service at his base, the burden of persuasion rests with the government to show lack of harm). 

 

(in assessing the effectiveness of counsel, an appellate court applies the standard set forth in Strickland v. Washington, 466 US 668, 687 (1984), and begins with the presumption of competence announced in United States v. Cronic, 466 US 648, 658 (1984); the court applies a three-part test to determine whether the presumption of competence has been overcome: (1) are appellant’s allegations true; if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result). 

 

(an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel; where an appellant attacks the trial strategy or tactics of the defense counsel, the appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms).

 

(claims of ineffective assistance of counsel are reviewed by an appellate court de novo). 


United States v. Prather, 69 M.J. 338 (the constitutionality of a statute is a question of law that an appellate court reviews de novo).

 

(an appellate court must evaluate the instructions given by the military judge in the context of the overall message conveyed to the jury).


United States v. Pope, 69 M.J. 328 (the CAAF will not reverse a conviction for an error of law unless that error materially prejudiced an accused’s substantial rights; it reviews de novo whether the government has met its burden of establishing that the error did not have a substantial influence on the findings in the context of the entire case).


(an appellate court affords substantial discretion to a military judge’s evidentiary rulings; however, where an objection invokes the MRE 403 balancing test but the military judge fails to conduct the test on the record, less deference is due).

 

(whether a jury was properly instructed is a question of law reviewed by an appellate court de novo). 

 

(whether there has been improper reference to an accused’s invocation of her constitutional right to remain silent - in testimony or argument - is a question of law that an appellate court reviews de novo; where there are no objections at trial, the court reviews for plain error). 

 

(the cumulative effect of all plain errors and preserved errors is reviewed de novo). 

 

(under the cumulative-error doctrine, a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding; an appellate court will reverse only if it finds the cumulative errors denied appellant a fair trial). 


United States v. Luke, 69 M.J. 309 (with respect to whether a new trial should be granted based on newly discovered evidence, the reviewing court must make a credibility determination, insofar as it must determine whether the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused; the reviewing court does not determine whether the proffered evidence is true; nor does it determine historical facts; it merely decides if the evidence is sufficiently believable to make a more favorable result probable).

 

(an appellate court may resolve a discovery issue without determining whether there has been a discovery violation if the court concludes that the alleged error would not have been prejudicial). 

 

(the CAAF’s methodology for reviewing issues of post-trial and appellate delay is to first determine whether the delay is facially unreasonable and, if so, it examines the four factors set forth by the Supreme Court in Barker v. Wingo, 407 US 514; those four factors are:  (1) the length of the delay, (2) the reasons for the delay, (3) the appellant’s assertion of the right to timely review and appeal, and (4) prejudice; if this analysis leads it to conclude that the appellant has been denied the due process right to speedy post-trial review and appeal, it grants relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 

 

(issues of due process and whether constitutional error is harmless beyond a reasonable doubt are reviewed de novo). 


United States v. Jones, 69 M.J. 294 (an appellate court reviews a military judge’s ruling on a discovery request for an abuse of discretion).

 

(an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion). 


United States v. Hutchins, 69 M.J. 282 (in this case, the procedural deficiencies concerning the termination and replacement of the first detailed military assistant defense counsel present trial errors that can be evaluated under the standard formula for assessing prejudice against the defense, in which the defense must establish that the error produced material prejudice to the substantial rights of the accused; Article 59(a), UCMJ, requires that a case not be reversed for error unless the error materially prejudices the substantial rights of the accused).

United States v. Stefan, 69 M.J. 256 (whether Article 6(c), UCMJ, and RCM 1106(b) disqualify an individual from acting as the SJA is a question of law, which an appellate court reviews de novo).

 

(SJA recommendations prepared by a disqualified officer are not void; rather an appellate court tests for prejudice under Article 59(a), UCMJ, which requires material prejudice to the substantial rights of the accused; to find reversible error, an appellant must, inter alia, make some colorable showing of possible prejudice). 


United States v. Staton, 69 M.J. 228 (an appellate court reviews the military judge’s evidentiary rulings for an abuse of discretion).

 

(an appellate court reviews the admissibility of uncharged misconduct under MRE 404(b) using a three-part test: (1) Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; (2) What fact of consequence is made more or less probable by the existence of this evidence - a question of logical relevance; and, (3) Is the probative value substantially outweighed by the danger of unfair prejudice).

United States v. Blazier, 69 M.J. 218 (for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; evidence admitted in violation of the Confrontation Clause of the Sixth Amendment is subject to that standard; in assessing harmlessness in the constitutional context, the question is not whether the evidence is legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case).

United States v. White, 69 M.J. 236 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous; the military judge’s findings of fact are reviewed under a clearly erroneous standard and conclusions of law, de novo; if the court finds the military judge abused his discretion, it then reviews the prejudicial effect of the ruling de novo).

United States v. Savard, 69 M.J. 211 (if a military judge errs by declining to grant an Article 39(a) session under RCM 905(h), an appellant’s convictions may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused).

 

(with respect to a nonconstitutional error, the government has the burden of establishing that the error did not have a substantial influence on the findings). 

 

(in evaluating errors to see if they are harmless, the following test is employed:  if, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand).

2009 (September Term)

United States v. Nerad, 69 M.J. 138 (the scope and meaning of Article 66(c), UCMJ, is a matter of statutory interpretation, a question of law reviewed by an appellate court de novo). 

 

(a CCA may approve only that part of a sentence that it finds should be approved; in reviewing the exercise of this power, the CAAF asks if the CCA abused its discretion or acted inappropriately - that is, arbitrarily, capriciously, or unreasonably - as a matter of law). 


United States v. Diaz, 69 M.J. 127 (an appellate court reviews a military judge’s decision to exclude evidence for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).

 

(a question of statutory interpretation is a question of law subject to de novo review). 

 

(an appellate court reviews a military judge’s decision to accept or reject a guilty plea as irregular for an abuse of discretion, and military judges are afforded broad discretion in deciding whether or not to accept a guilty plea). 

 

(an appellate court reviews nonconstitutional errors for prejudice under Article 59(a), UCMJ, and the burden is on the government to demonstrate that the error did not have a substantial influence on the findings; when evaluating claims of prejudice from an evidentiary ruling, an appellate court weighs four factors: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question).

 


United States v. Contreras, 69 M.J. 120 (whether a particular Article 130, UCMJ, criminal offense is a purely military offense is a question of law, which an appellate court reviews de novo). 

 

United States v. Mullins, 69 M.J. 113 (an appellate court’s standard of review for determining whether there is plain error is de novo). 

 

(an appellate court reviews de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal; when considering appellate delay, a court must balance four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; no single factor is required for finding a due process violation, and the absence of a given factor will not prevent such a finding; where an appellant meets his burden in demonstrating unreasonable appellate delay, the burden shifts to the government to show that the due process violation was harmless beyond a reasonable doubt). 

 

United States v. Graner, 69 M.J. 104 (an appellate court reviews a military judge’s ruling on a request for the production of evidence under the strict standard of an abuse of discretion; 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 appellate court reviews a military judge’s decision on whether to admit evidence for an abuse of discretion).

 

United States v. Lloyd, 69 M.J. 95 (a military judge’s ruling on a request for expert assistance is reviewed for an abuse of discretion; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

 

(in reviewing for abuse of discretion a military judge’s ruling on a defense motion for expert assistance in the form of a blood spatter expert, an appellate court reviews the record material before the military judge at the time of the motion; although on appeal, more compelling theories may be made to demonstrate that a blood spatter expert was necessary, the military judge did not abuse her discretion by failing to adopt a theory that was not presented in the motion at the trial level; 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 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion).

 

(the threshold question under MRE 414 whether the proffered evidence is evidence of the accused’s commission of another offense of child molestation as defined by the rule is one of law, reviewed by an appellate court de novo). 

 

(when an appellate court finds a nonconstitutional error, it tests for prejudice; the question, which it reviews de novo, is whether the error had a substantial influence on the members’ verdict in the context of the entire case; in answering this question, it considers four factors: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; when a fact was already obvious from testimony at trial and the evidence in question would not have provided any new ammunition, an error is likely to be harmless; conversely, where the evidence does provide new ammunition, an error is less likely to be harmless). 

 

United States v. Ayala, 69 M.J. 63 (the military judge’s finding regarding the primary purpose of an inspection is a matter of fact and the issue of whether the examination is an inspection is a matter of law that an appellate court will review de novo; purpose and intent are themselves classic questions of fact).


(although the commander’s stated purpose of conducting an examination is not dispositive of the issue, the primary purpose of an examination is solely dependent upon the intent of the person who ordered it; this is a question of historical fact for the military judge to determine and which an appellate court reviews for clear error).

United States v. Estrada, 69 M.J. 45 (construction of regulations is a question of law, which an appellate court reviews de novo; similarly, an appellate court reviews a challenge to the lawfulness of a regulation de novo). 

 

(in interpreting regulations, an appellate court applies the general rules of statutory construction). 


United States v. Garner, 69 M.J. 31 (when considering a conviction pursuant to a guilty plea, an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; in doing so, the court applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding appellant’s guilty plea). 

 

United States v. Roberts, 69 M.J. 23 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; in doing so, it reviews findings of fact under a clearly erroneous standard and conclusions of law under a de novo standard). 

 

(to determine whether an error was harmless beyond a reasonable doubt, an appellate court applies the five-part balancing test articulated by the Supreme Court in Delaware v. Van Arsdall, 475 US 673 (1986): (1) the importance of the witness’s testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and, (5) of course, the overall strength of the prosecution’s case). 


United States v. Roach, 69 M.J. 17 (the question of whether a judge has acted consistent with a recusal, as a mixed question of law and fact, is reviewed de novo).

 

(a structural error in a judge’s recusal is inherently prejudicial; with respect to a nonstructural error in a judge’s recusal, it is tested for prejudice and an appellate court must determine if the error was harmless under the three factors set forth in Liljeberg v. Health Services Acquisition Corp, 486 US 847 (1988): the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process). 

 

(whether an appellant’s due process right to a speedy post-trial review has been violated is reviewed de novo). 


United States v. Serianne, 69 M.J. 8 (an appellate court reviews both the constitutionality and interpretation of a service instruction under a de novo standard of review).


United States v. Huntzinger, 69 M.J. 1 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous or based upon a misapprehension of the law).

 

(an appellate court reviews the legal question of sufficiency for finding probable cause de novo, using a totality of the circumstances test). 

 

(in determining whether a search was supported by probable cause, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed).

 

(reviewing court applies four key principles in reviewing probable cause determinations for a search authorization under MRE 315:  (1) the court views the facts in the light most favorable to the prevailing party; (2) the court gives substantial deference to the probable cause determination made by a neutral and detached magistrate; (3) the court resolves close cases in favor of the magistrate’s decision; and (4) the court views the facts in a commonsense manner). 


United States v. Jones, 68 M.J. 465 (in determining what constitutes a lesser-included offense in the military justice system, an appellate court applies the elements test and looks to whether the elements of the purported LIO are a subset of the elements of the charged offense; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements). 

 

United States v. Bagstad, 68 M.J. 460 (in carrying out the objective test for implied bias, an appellate court determines whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; challenges for actual or implied bias are evaluated based on the totality of the factual circumstances). 


(an appellate court’s standard of review on a challenge for cause premised on implied bias is less deferential than abuse of discretion, but more deferential than de novo review; it applies less deference in a case such as this one where the military judge did not place his analysis concerning the senior-subordinate relationship portion of the challenge on the record). 


United States v. Sutton, 68 M.J. 455 (the question of whether a specification states an offense is a question of law that an appellate court reviews de novo). 


United States v. Smith, 68 M.J. 445 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; this abuse of discretion standard is also applied to alleged violations of the Sixth Amendment’s Confrontation Clause). 


(testimony is material if it is of consequence to the determination of an accused’s guilt; in determining whether evidence is of consequence to the determination of an accused’s guilt, an appellate court considers the importance of the issue for which the evidence was offered in relation to the other issues in the case, the extent to which this issue is in dispute, and the nature of other evidence in the case pertaining to this issue). 


United States v. Blazier, 68 M.J. 439 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion).

 
(whether evidence that was admitted constitutes testimonial hearsay is a question of law reviewed by an appellate court de novo).

United States v. Ferguson, 68 M.J. 431 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; in doing so, it applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding appellant’s guilty plea).

 

(an appellate court will not overturn a military judge’s acceptance of a guilty plea based on a mere possibility of a defense; nor will it speculate post-trial as to the existence of facts which might invalidate an appellant’s guilty pleas). 


United States v. Clayton, 68 M.J. 419 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs when an appellate court determines that the military judge’s findings of fact are clearly erroneous or that he misapprehended the law). 

 

(in addressing whether a military judge erred in denying a motion to suppress evidence of a search authorized by a magistrate, an appellate court considers whether the military judge abused his discretion when he ruled as a matter of law that there was a substantial basis for finding that probable cause existed under MRE 315(f)(2)); an appellate court reviews the legal question of sufficiency for finding probable cause de novo using a totality of the circumstance test). 

 

(the framework for reviewing probable cause determinations under MRE 315 focuses on four key principles: (1) determinations of probable cause made by a neutral and detached magistrate are entitled to substantial deference; (2) resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the magistrate’s decision; (3) courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner; and (4) the evidence must be considered in the light most favorable to the prevailing party). 

 

(where an affidavit submitted in support of a search warrant application included erroneous information, an appellate court, on review of the trial judge’s motion to suppress, would set aside the erroneous information in the affidavit and determine whether there remained sufficient content in the warrant affidavit to support a finding of probable cause). 


United States v. Ross, 68 M.J. 415 (whether a verdict is ambiguous and thus precludes a CCA from performing a factual-sufficiency review is a question of law reviewed by the Court of Appeals for the Armed Forces de novo). 


United States v. Cowgill, 68 M.J. 388 (a military judge’s decision to find that probable cause existed to support a search authorization as well as to admit or exclude evidence is reviewed for an abuse of discretion; 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; in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party). 


(in reviewing probable cause determinations, an appellate court examines the information known to the magistrate at the time of his decision to authorize a search, and the manner in which the facts became known; when there are misstatements or improperly obtained information in a warrant affidavit, the court severs those from the affidavit and examines the remainder to determine if probable cause still exists).  

United States v. Anderson, 68 M.J. 378 (a military judge’s ruling regarding the appointment of a government-funded expert is reviewed for an abuse of discretion and will only be overturned if the findings of fact are clearly erroneous or the decision is influenced by an erroneous view of the law).

 

(where appellant raises a due process argument, an appellate court’s test for prejudice must be whether the challenged action was harmless beyond a reasonable doubt). 

 

(an appellate court reviews multiplicity claims de novo). 


United States v. Maynulet, 68 M.J. 374 (the question of whether a jury was properly instructed is a question of law, and thus, review is de novo). 


United States v. Green, 68 M.J. 360 (in order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice; an appellate court may address these prongs in any order it chooses, because appellant must meet both in order to prevail). 

 

(an appellate court reviews ineffective assistance of counsel claims de novo). 

 

(in order to show prejudice on a claim of ineffective assistance of counsel, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome). 


United States v. Douglas, 68 M.J. 349 (once unlawful command influence is raised at the trial level, a presumption of prejudice is created; to affirm in such a situation, an appellate court must be convinced beyond a reasonable doubt that the unlawful command influence had no prejudicial impact on the court-martial).

 

(in a case involving unlawful command influence, an appellate court reviews issues involving a military judge’s decision not to dismiss for abuse of discretion; under this standard, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors). 

 

(an appellate court grants a military judge broad discretion in crafting a remedy to remove the taint of unlawful command influence, and it will not reverse so long as the decision remains within that range). 

 

(when a military judge crafts a reasonable and tailored remedy to remove unlawful command influence, and if the record reflects that the remedy has been implemented fully and no further objections or requests were made by the defense, then rather than requiring the government to prove a negative, an appellate court would be satisfied that the presumptive prejudice had been eliminated; however, when the record fails to include evidence that key components of the remedy were implemented, the presumption of prejudice flowing from the unlawful command influence has not been overcome; the government must then find an alternative way to meet its burden). 


United States v. Ellis, 68 M.J. 341 (an appellate court reviews a military judge’s decision to admit or exclude expert testimony over a defense objection for an abuse of discretion).

 

(when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors). 

 

United States v. Harmon, 68 M.J. 325 (an appellate court reviews questions of legal sufficiency de novo as a matter of law).


(the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 


United States v. Smith, 68 M.J. 316 (the question of whether a jury was properly instructed is a question of law, and thus, review is de novo). 

 
(an appellate court reviews the question of whether the military judge correctly determined that an order was lawful on a de novo basis). 


(the test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 


(an appellate court reviews de novo the question whether the evidence is legally sufficient to support a finding of guilty). 


United States v. Thompson, 68 M.J. 308 (an appellate court conducts its analysis of an Article 10 claim review de novo, giving substantial deference to the military judge’s findings of fact unless they are clearly erroneous). 


United States v. Neal, 68 M.J. 289 (the constitutionality of a statute is a question of law that an appellate court reviews de novo). 


United States v. Durbin, 68 M.J. 271 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; whether a marital communication is privileged is a mixed question of fact and law; an appellate court reviews a trial court’s legal conclusions de novo, but gives its factual findings more deference, and will not reverse such findings unless they are clearly erroneous; the party asserting the marital privilege has the burden of establishing its applicability by a preponderance of the evidence). 


United States v. Green, 68 M.J. 266 (an appellate court reviews the issue of legal sufficiency de novo; in reviewing for legal sufficiency of evidence, this court must determine, whether, considering the evidence in the light most favorable to the prosecution, a reasonable fact-finder could have found all the essential elements beyond a reasonable doubt). 


United States v. Lubasky, 68 M.J. 260 (the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.).


United States v. Williams, 68 M.J. 252 (an appellate court defers to a military judge’s findings of fact unless they are clearly erroneous). 

 

(an appellate court reviews de novo the legal question as to whether the established facts and the violation of an Air Force regulation entitled appellant to additional confinement credit under RCM 305(k)). 


United States v. Ediger, 68 M.J. 243 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion).

 

(where a military judge properly conducts the balancing test under MRE 403, an appellate court will not overturn his decision unless there is a clear abuse of discretion; however, where the military judge is required to do a balancing test under MRE 403 and does not sufficiently articulate his balancing on the record, his evidentiary ruling will receive less deference from that court). 


2008 (September Term)

United States v. Ashby, 68 M.J. 108 (in reviewing for the legal sufficiency of evidence, an appellate court takes the facts in the light most favorable to the government and asks whether those facts would permit a reasonable factfinder to find all the elements of the charged offenses beyond a reasonable doubt; an appellate court reviews questions of legal sufficiency de novo).


(where the government chooses to incorporate separate offenses into a Article 133, UCMJ, charge and where the military judge has instructed on the elements of those offenses, an appellate court will analyze the legal sufficiency of the Article 133, UCMJ, offense by determining whether there was legally sufficient evidence supporting all of the elements instructed upon by the military judge). 

 

(an appellate court reviews a military judge’s decision on the admission of evidence in aggravation at sentencing for an abuse of discretion). 

 

(where the military judge conducts a proper MRE 403 balancing on the record, an appellate court will not overturn his ruling unless it finds a clear abuse of discretion). 

 

(an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion). 

 

(when a trial error is of constitutional dimension, an appellate court must determine whether the error and the military judge’s curative efforts rendered it harmless beyond a reasonable doubt; in analyzing this question, an appellate court asks whether there is a reasonable possibility that the error complained of might have contributed to the conviction; the question is not whether the members were totally unaware of the error; rather, the essence of a harmless error is that it was unimportant in relation to everything else the members considered on the issue in question; the error is analyzed in the context of the entire court-martial). 

 

(in assessing whether a facially unreasonable delay has resulted in a due process violation, an appellate court weighs the following four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice). 

 

(having found a due process violation in unreasonable post-trial delay, an appellate court will grant relief unless it finds, under the totality of the circumstances, that the government has met its burden of showing that the constitutional error was harmless beyond a reasonable doubt; determining whether a due process error was harmless beyond a reasonable doubt necessarily involves analyzing the case for “prejudice,” but that analysis for “prejudice” is separate and distinct from the consideration of prejudice as one of the four Barker [407 US 514 (1972)] factors). 

 

(an appellate court reviews de novo the question of whether a constitutional error is harmless beyond a reasonable doubt). 

 

(in addressing whether the appearance of unlawful command influence has been created in a particular situation, an appellate court considers, objectively, the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; it will find the appearance of unlawful command influence where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

 

(the question of whether a convening authority is an accuser under Article 1(9), UCMJ, is a question of law that an appellate court reviews de novo). 

 

(the test for determining whether a convening authority is an accuser is whether he was so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter; personal interests relate to matters affecting the convening authority’s ego, family, and personal property, and a convening authority’s dramatic expression of anger towards an accused might also disqualify the commander if it demonstrates personal animosity; a personal interest has been found to exist where, for example, the convening authority is the victim in the case, where the accused attempted to blackmail the convening authority, and where the accused had potentially inappropriate personal contacts with the convening authority’s fiancée).


United States v. Burton, 67 M.J. 150 (when no objection is made during the trial, a counsel’s arguments are reviewed for plain error). 


United States v. Schweitzer, 68 M.J. 133 (once a military judge has accepted an accused’s guilty pleas and entered findings of guilty, an appellate court will not set them aside unless it finds a substantial basis in law or fact for questioning the pleas). 

 

(convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions; to rebut a due process violation, the government must show that the error was harmless beyond a reasonable doubt under the totality of the circumstances; where appellant has not suffered any prejudice under the fourth prong of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial - the government may more readily demonstrate that any error is harmless beyond a reasonable doubt). 


United States v. Bush, 68 M.J. 96 (aside from structural errors which are not susceptible of analysis for harm, a constitutional error, such as a post-trial due process violation, must be harmless beyond a reasonable doubt before an appellate court can affirm the resultant conviction or sentence).

 

(it is solely the government’s burden to persuade an appellate court that constitutional error is harmless beyond a reasonable doubt). 

 

(an appellate court reviews de novo both the determination of a post-trial delay due process violation and the question of whether such a violation is harmless beyond a reasonable doubt). 

 

(the determination of harmlessness for post-trial delay is different than that applied to constitutional trial errors; in the trial error arena, a determination of harmless beyond a reasonable doubt tests whether, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence; in contrast, post-trial delays do not necessarily impact directly the findings or sentence; instead, an appellate court must review the record de novo to determine whether other prejudicial impact is present from the delay; unless the court concludes beyond a reasonable doubt that the delay generated no prejudicial impact, the government will have failed to attain its burden). 

 

(where there is a post-trial delay due process violation, the burden to show harmlessness beyond a reasonable doubt remains upon the government). 

 

(an appellate court reviews the totality of the circumstances to determine whether a post-trial delay due process violation is harmless beyond a reasonable doubt). 

 

(where an appellant alleges a due process violation in a post-trial delay context, and where a due process violation is found, the analysis performed by an appellate court necessarily involves two separate prejudice determinations; the initial prejudice review occurs in evaluating the fourth Barker [407 US 514 (1972)] factor, which defines prejudice to include oppressive incarceration, undue anxiety, and limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired; if a due process violation is found after balancing the Barker factors, an appellate court determines whether, under the totality of the circumstances, the error is harmless beyond a reasonable doubt; that harmless beyond a reasonable doubt review necessarily involves a prejudice analysis, and although it involves a review of the same record, the scope and burden differ from the Barker prejudice analysis). 

 

(no single factor is required for finding a due process violation as a result of post-trial delay, and the absence of a given factor will not prevent such a finding). 

 

(in a post-trial delay due process analysis, Barker [407 US 514 (1972)] factor four addresses specific prejudice to an appellant, not public perception; the public perception analysis is utilized in quantifying the appropriate weight that is to be given to Barker factors one (length of delay) and two (reasons for delay) when balancing all of the factors). 

 

(post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant). 

 

(with respect to determining whether an appellant meets his burden of demonstrating fourth-prong, Barker [407 US 514 (1972)] prejudice or with respect to reviewing the entire record to determine if a post-trial delay due process violation is harmless beyond a reasonable doubt, a reviewing court must first determine whether post-trial submissions merit consideration). 

 

(in circumstances where a record establishes that an appellant has suffered Barker [407 US 514 (1972)] prejudice, the government’s burden to establish that the constitutional violation was harmless beyond a reasonable doubt may be difficult to attain). 

 

(in those cases where the record does not reflect Barker [407 US 514 (1972)] prejudice, as a practical matter, the burden to establish harmlessness from the post-trial delay may be more easily attained by the government). 

 

(at the totality-of-the-circumstances, harmless-error prejudice determination stage, there is no presumption of prejudice in cases where an appellate court has found a due process violation as a result of unreasonable post-trial delay in the absence of Barker [407 US 514 (1972)] prejudice; an appellate court does not presume prejudice based on the length of the delay alone). 


United States v. Smead, 68 M.J. 44 (when an appellate issue concerns the meaning and effect of a PTA, interpretation of the agreement is a question of law, subject to review under a de novo standard; when appellant contends that the government has not complied with a term of the agreement, the issue of noncompliance is a mixed question of fact and law). 

 

(appellant bears the burden of establishing that a PTA term is material and that the circumstances establish governmental noncompliance; in the event of noncompliance with a material term, an appellate court considers whether the error is susceptible to remedy in the form of specific performance or in the form of alternative relief agreeable to appellant; if such a remedy does not cure the defect in a material term, the plea must be withdrawn and the findings and sentence set aside).


(an appellate court reviews a military judge’s acceptance of a plea for abuse of discretion, and it applies the substantial basis test, looking at whether 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). 


United States v. Matthews, 68 M.J. 29 (CAAF reviews de novo a CCA’s conclusion that MRE 509 [Privileges - Deliberations of courts and juries] is inapplicable to military judges).


Loving v. United States, 68 M.J. 1 (an appellate court considers claims of ineffective assistance of counsel under the two-prong test of Strickland; first, an appellant must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; second, appellant must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive appellant of a fair trial, a trial whose result is reliable; the court need not analyze the Strickland prongs in any particular order).

 

(to establish prejudice under Strickland, appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the context of a capital case challenging the death sentence, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence; the question is whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance). 

 

(in considering claims of ineffective assistance of counsel, an appellate court undertakes review of the prejudice prong de novo).

 

(under the standards of 28 USC § 2254(d), a habeas review of a constitutional claim would normally employ a deferential review of the challenged decision.). 

 

(to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing). 


United States v. Mazza, 67 M.J. 470 (to prevail on a claim of ineffective assistance of counsel, an appellant must show both that the counsel’s performance was deficient and that the deficiency resulted in prejudice; ultimately, the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result; a successful ineffectiveness claim requires a finding of both deficient performance and prejudice; there is no requirement that an appellate court address both components of the inquiry if appellant makes an insufficient showing on one; an appellate court reviews both prongs of the Strickland analysis de novo).

 

(an appellate court’s analysis of counsel’s performance is highly deferential; it is not to assess counsel’s actions through the distortion of hindsight; rather it is to consider counsel’s actions in light of the circumstances of the trial and under the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy). 

 

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel; where an appellant attacks the trial strategy or tactics of the defense counsel, the appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms).    


United States v. Wiechmann, 67 M.J. 456 (when a Sixth Amendment claim involves a governmental act or omission affecting the right of an accused to the assistance of counsel, an appellate court considers whether the infringement involves a structural error -- an error so serious that no proof of prejudice is required -- or whether the error must be tested for prejudice; structural error exists when a court is faced with the difficulty of assessing the effect of the error or the error is so fundamental that harmlessness is irrelevant; structural errors involve errors in the trial mechanism so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence; there is a strong presumption that an error is not structural). 

United States v. Paige, 67 M.J. 442 (in determining whether a trial counsel violated an accused’s right not to testify at his court-martial, an appellate court examines a prosecutorial comment within the context of the entire court-martial).

 

(whether a trial counsel’s comments improperly invoked appellant’s constitutional right not to testify is a question of law that an appellate court reviews de novo; where defense counsel did not object to any of trial counsel’s comments, an appellate court reviews for plain error). 

 

(an appellant meets the plain error standard if he establishes that (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights; once appellant meets his burden of establishing plain error and if the error is of constitutional dimension, the burden shifts to the government to convince the appellate court that this constitutional error was harmless beyond a reasonable doubt).


United States v. Chatfield, 67 M.J. 432 (a military judge’s denial of a motion to suppress a confession is reviewed for an abuse of discretion).

 

(an appellate court will not disturb a military judge’s findings of fact unless they are clearly erroneous or unsupported by the record). 

 

(an appellate court reviews de novo any conclusions of law supporting the suppression ruling on a confession, including:  (1) whether someone is in custody for the purposes of Miranda warnings; or (2) whether a confession is involuntary).

 

(in determining whether a confession was voluntary, an appellate court reviews the totality of the circumstances to determine whether appellant’s will was overborne and his capacity for self-determination was critically impaired; the factors to consider include both the characteristics of the accused and the details of the interrogation). 

 

(an appellate court grants deference to a military judge’s determination that appellant’s testimony was not believable because the judge is in a unique position to decide the appropriate weight to give that testimony). 

 

(an appellate court reviews questions of legal sufficiency de novo; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

United States v. Marshall, 67 M.J. 418 (to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby).

 

(a variance that is material is one that substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense). 

 

(a variance can prejudice an appellant by (1) putting him at risk of another prosecution for the same conduct, (2) misleading him to the extent that he has been unable adequately to prepare for trial, or (3) denying him the opportunity to defend against the charge). 


United States v. Weston, 67 M.J. 390 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion, and it reviews the judge’s findings of fact for clear error and the judge’s conclusions of law de novo).


United States v. Miller, 67 M.J. 385 (whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo).

 

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).

 

(although the use of leading questions that do no more than elicit “yes” and “no” responses during the providence inquiry is disfavored, a military judge’s use of leading questions does not automatically result in an improvident plea; rather, the totality of the circumstances of the providence inquiry are examined, including the stipulation of fact, as well as the relationship between the accused’s responses to leading questions and the full range of the accused’s responses during the plea inquiry). 


United States v. Collier, 67 M.J. 347 (a military judge’s ruling that bias evidence is inadmissible is reviewed for an abuse of discretion; for the ruling to be an abuse of discretion, it must be more than a mere difference of opinion; rather, it must be arbitrary, fanciful, clearly unreasonable or clearly erroneous). 

 

(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).   

 

(members are presumed to follow a military judge’s instructions to consider evidence for a proper purpose, such as bias or motive to misrepresent, and not let personal beliefs or feelings affect their determinations about witness credibility). 

 

(in the case of limitation of cross-examination, the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt; the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty; an error has not contributed to the verdict when it was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record; to find that the error warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry should focus on whether the military judge’s ruling essentially deprived appellant of her best defense that may have tipped the credibility balance in appellant’s favor; in this regard, an appellate court balances the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case). 


United States v. Sanders, 67 M.J. 344 (as the sentencing authority, a military judge is presumed to know the law and apply it correctly, absent clear evidence to the contrary). 


(an appellate court presumes that a military judge follows her own rulings). 


United States v. Riddle, 67 M.J. 335 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo).

 

(once the military judge has accepted the pleas and entered findings based upon them, an appellate court will not set them aside unless it finds a substantial conflict between the pleas and the accused’s statements or other evidence of record; more than a mere possibility of conflict is required; instead, an appellate court must find 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). 

 

United States v. Campos, 67 M.J. 330 (a forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law; while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal; in determining whether a particular circumstance constitutes a waiver or a forfeiture, an appellate court considers whether the failure to raise the objection at the trial level constituted an intentional relinquishment of a known right).

 

(if this were simply a case where testimony came into evidence without any objection or comment from defense counsel, an appellate court would review for plain error). 


(MRE 103(d) allows appellate courts to recognize plain errors that materially prejudice an accused’s substantial rights even though defense counsel has failed to make a timely objection; the plain error standard is met when (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights).

United States v. Delarosa, 67 M.J. 318 (on appeal of a motion to suppress incriminating statements, an appellate court accepts the military judge’s findings of historical fact unless they are clearly erroneous, and it reviews the military judge’s conclusions of law de novo). 


United States v. Gladue, 67 M.J. 311 (waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; the distinction between the terms is important; if an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews it for plain error; when, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal).


United States v. Gardinier, 67 M.J. 304 (for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 U.S. 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; evidence admitted in violation of Article 31, UCMJ, or the Confrontation Clause of the Sixth Amendment is subject to that standard; whether a constitutional error in admitting evidence is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo).

 

United States v. Ranney, 67 M.J. 297 (the test for legal sufficiency requires appellate courts to review the evidence in the light most favorable to the government; if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient).

 

(an appellate court considers the legality of an order de novo). 

 

United States v. Von Bergen, 67 M.J. 290 (an appellate court reviews a military judge’s decision whether to order relief from a waiver of an Article 32, UCMJ, investigation for an abuse of discretion). 

 

(an appellate court reviews a military judge’s conclusions of law under the de novo standard; if a military judge’s ruling is based on an erroneous view of the law, he has abused his discretion). 

 

(Article 32, UCMJ, errors are tested on direct review for prejudice as defined by Article 59(a), UCMJ).

 

United States v. Clayton, 67 M.J. 283 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion).

 

(an appellate court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard). 

 

(whether evidence constitutes testimonial hearsay is a question of law reviewed de novo). 

 

(the government bears the burden of establishing that a constitutional error has no causal effect upon the findings; to carry its burden in this case, the government had to demonstrate that there was no reasonable possibility that the testimonial German civilian police report contributed to the contested finding of guilty to possession of marijuana with the intent to distribute).

 

United States v. Stephens, 67 M.J. 233 (an appellate court tests a military judge’s admission or exclusion of evidence, including sentencing evidence, for an abuse of discretion).

 

(when the military judge conducts a proper balancing test under MRE 403 on the record, that ruling will not be overturned by an appellate court absent a clear abuse of discretion; the ruling of a military judge who fails to do so will receive correspondingly less deference). 

 

(where a military judge fails to conduct an MRE 403 balancing test on the record, an appellate court will examine the record itself). 


United States v. Dean, 67 M.J. 224 (interpretation of a pretrial agreement and interpretation of provisions of the RCM are questions of law that an appellate court reviews de novo).


United States v. Macomber, 67 M.J. 214 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs if the military judge finds clearly erroneous facts or misapprehends the law).

 

(the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant; this standard reflects the law’s preference for warrants and for independent review by magistrates). 

 

(in reviewing a decision that there was probable cause for a search, an appellate court must keep in mind that a determination of probable cause by a neutral and detached magistrate is entitled to substantial deference; a deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the magistrate’s decision; a grudging or negative attitude by reviewing courts towards warrants, is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner). 

 

(the duty of the reviewing court is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place). 

 

(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party). 


United States v. Rogers, 67 M.J. 162 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion; an abuse of discretion exists if the military judge found clearly erroneous facts or misapprehended the law; further, it reviews the facts in the light most favorable to the prevailing party below). 


United States v. Goodin, 67 M.J. 158 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion).


(in the event of an erroneous admission of evidence, an appellate court evaluates claims of prejudice by weighing four factors:  (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question; it applies the same four-pronged test for erroneous admission of government evidence as for erroneous exclusion of defense evidence). 


United States v. Kuemmerle, 67 M.J. 141 (an appellate court reviews questions of jurisdiction de novo).         

United States v. Brown, 67 M.J. 147 (the question whether the facts charged in a specification are sufficient as a matter of law to constitute extortion under Article 127, UCMJ, is a question of law, which an appellate court reviews de novo).


United States v. Conliffe, 67 M.J. 127 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion).

 

(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. Thompson, 67 M.J. 106 (an appellate court reviews de novo whether a constitutional error in admitting evidence at trial was harmless).

 

(before a federal constitutional error can be held harmless, an appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; if there is a reasonable possibility that the evidence or error complained of might have contributed to the conviction, then the constitutional error was not harmless beyond a reasonable doubt). 

 

(when determining whether a constitutional error is harmless, an appellate court should review the entire record). 


United States v. DiPaola, 67 M.J. 98 (once it is determined that a specific instruction is required but not given, the test for determining whether this constitutional error was harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; stated differently, the test is:  is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error).   


United States v. Crudup, 67 M.J. 92 (the denial of an accused’s Sixth Amendment right to cross-examine a witness may be tested for harmlessness).

 

(appellant court will not set aside a conviction as the result of a constitutional error if it may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt). 

 

(whether a constitutional error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts; these factors include the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case; it is a better practice to review and balance all of these factors rather than rely on only one of them). 

 

(whether a constitutional error in admitting evidence is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo). 


United States v. Wuterich, 67 M.J. 32 (a military judge’s decision to quash a subpoena is reviewed under an abuse of discretion standard). 


United States v. Yanger, 67 M.J. 56 (rejection of a guilty plea requires that the record of trial show a substantial basis in law or fact for questioning the plea). 


2008 (Transition)

Denedo v. United States, 66 M.J. 114 (on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority). 


(an accused making a claim of ineffective assistance must surmount a very high hurdle; courts reviewing such a claim must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; the presumption of competence will not be overcome unless the accused demonstrates:  first, a deficiency that is so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and second, that the accused was prejudiced by errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable; when challenging the effectiveness of counsel in a guilty plea case, the accused must also show specifically that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 


(the burden of establishing the truth of factual matters relevant to the claim of ineffective assistance rests with the accused; if there is a factual dispute on a matter pertinent to the claim, the determination as to whether further factfinding will be ordered is resolved under United States v. Ginn, 47 MJ 236 (CAAF 1997)). 


United States v. Wilcox, 66 M.J. 442 (an appellate court reviews questions of legal sufficiency de novo as a matter of law; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

 

(the CAAF’s jurisprudence on charged violations of Article 134, UCMJ, involving speech recognizes the importance of the context of that speech; consistent with the focus on context necessary to establish a violation of Article 134, UCMJ, while speech that would be impervious to criminal sanction in the civilian world may be proscribed in the military, the CAAF has long recognized that when assessing a criminal violation implicating the First Amendment, the proper balance must be struck between the essential needs of the armed services and the right to speak out as a free American; necessarily, the CAAF must be sensitive to protection of the principle of free thought; prior to applying this balancing test to a charged violation of Article 134, UCMJ, involving speech, two threshold determinations must be made:  first, the speech involved must be examined to determine whether it is otherwise protected under the First Amendment, and second, the government must have proved the elements of an Article 134, UCMJ, offense). 


(if an accused’s speech is otherwise protected by the First Amendment, and if a reasonably direct and palpable connection between the speech and the military mission or military environment is established, only then need an appellate court determine whether criminalization of that speech is justified despite First Amendment concerns; ultimately, an appellate court must weigh the gravity of the effect of the speech, discounted by the improbability of its effectiveness on the audience the speaker sought to reach, to determine whether the conviction is warranted; where the record does not establish a reasonably direct and palpable connection between the speech and the military at all, let alone the military mission or military environment, the balancing test is mooted by the legal insufficiency of the charged offense). 


United States v. Czachorowski, 66 M.J. 432 (an appellate court reviews an evidentiary ruling with regard to the residual hearsay exception of MRE 807 for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo). 


United States v. Bartlett, 66 M.J. 426 (an appellate court reviews claims of error in the selection of members of courts-martial de novo as questions of law).

 

(there is a strong presumption that an error is not structural). 

 

(in deciding issues of improper court member selection, an appellate court employs a case-specific rather than a structural-error analysis).  

 

(the burden of demonstrating prejudice, or the lack thereof, from nonconstitutional error in the detailing of court members depends on the manner in which the error occurred; in those cases where an appellate court concludes that the error resulted from unlawful command influence -- attempts to affect the outcome of the trial through the selection of particular members – it will not affirm unless the government establishes beyond a reasonable doubt that the error was harmless; where a convening authority has intentionally included or excluded certain classes of individuals from membership, in an attempt to comply with the requirements of Article 25, UCMJ - such as exclusion of junior officers and enlisted members because senior officers possess better maturity and judgment – an appellate court will place the burden on the government to demonstrate lack of harm; on the other hand, when there is a simple administrative error, the burden in on appellant to show prejudice). 

 

(where an error in exempting certain classes of officers from court-martial service was not a simple administrative mistake but mandated by an Army regulation, the government has the burden of showing the error was harmless). 


United States v. Ober, 66 M.J. 393 (an appellate court reviews de novo the question whether the evidence is legally sufficient to support a finding of guilty for transporting child pornography in interstate commerce; the test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

 

(whether a court-martial panel was properly instructed is a question of law that an appellate court reviews de novo). 


United States v. Bright, 66 M.J. 359 (legal sufficiency is a question of law that an appellate court reviews de novo; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, any reasonable factfinder could have found all the essential elements of the offense beyond a reasonable doubt). 

 

(in resolving questions of legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution). 


United States v. Elfayoumi, 66 M.J. 354 (to test whether there is substantial doubt about the fairness of the trial, an appellate court evaluates implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; this review is based on the totality of the circumstances; although an appellate court reviews issues of implied bias for an abuse of discretion, because it applies an objective test, it applies a less deferential standard than it would when reviewing a claim of actual bias). 


United States v. Webb, 66 M.J. 89 (in cases where the defense has requested any undisclosed impeachment evidence, an appellate court requires the government to show that nondisclosure is harmless beyond a reasonable doubt). 

 

(an appellate court reviews a military judge’s decision to order a new trial for an abuse of discretion; a military judge abuses her discretion when her 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. Upham, 66 M.J. 83 (Article 59(a), UCMJ, states that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; an appellate court applies the Supreme Court’s structural error analysis, requiring mandatory reversal, when the error affects the framework within which the trial proceeds, rather than simply an error in the trial process itself). 

 
(an instructional error as to the elements of an offense should be tested for harmlessness, and should not be treated as a structural error; harmless error analysis can be applied not only to omitted instructions, but also to instructions that are defective because they incorrectly describe elements or presume elements). 

 

(when an erroneous instruction raises constitutional error, an appellate court assesses two factors:  whether the matter was contested, and whether the element at issue was established by overwhelming evidence; where an appellate court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless). 


(an instructional error on the offense of aggravated assault that improperly directed the members to presume the element of offensive touching if they found proof of certain predicate facts, but did not remove the burden on the government to prove the predicate facts beyond a reasonable doubt, was not so intrinsically harmful as to require automatic reversal of appellant’s conviction on the lesser included offense of assault consummated by battery; as such, the erroneous instruction was subject to a harmlessness test).

 
(an instructional error on the offense of aggravated assault that improperly directed the members to presume the element of offensive touching if they found proof of certain predicate facts, but did not remove the burden on the government to prove the predicate facts beyond a reasonable doubt, was harmless, and thus did not preclude affirming appellant’s conviction on the lesser included offense of assault consummated by battery, where appellant did not contest the element of offensive touching at trial, but acknowledged that he had no justification for engaging in unprotected sex with the victim without informing her of his HIV status, and that his actions caused her great mental anguish). 


United States v. Michael, 66 M.J. 78 (a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 


United States v. Lopez de Victoria, 66 M.J. 67 (a question of statutory construction is a question of law to be decided de novo). 

 

United States v. Cucuzzella, 66 M.J. 57 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact).

 

(in determining whether a statement was made with some expectation of receiving medical benefit or treatment, a military judge’s finding as to the declarant’s state of mind in making a statement is a preliminary question of fact under MRE 104(a); as such, it will be set aside only if clearly erroneous; in making this determination, the military judge should look to the circumstances surrounding the proffered testimony to determine that the appropriate indicia of reliability are present). 


United States v. Wilson, 66 M.J. 39 (an appellate court rejects a guilty plea only where the record shows a substantial basis in law and fact for questioning a plea, and it reviews a military judge’s decision to accept a guilty plea for an abuse of discretion).

 

United States v. Miergrimado, 66 M.J. 34 (whether there is a disputed factual element that distinguishes a greater offense from a lesser offense is a question of law that an appellate court reviews de novo). 

 

(in considering whether the evidence is legally sufficient to support an essential element of an offense, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the element beyond a reasonable doubt). 


United States v. Medina, 66 M.J. 21 (in a contested case involving a guilty plea to a clause 3 offense under Article 134, a reviewing court must consider whether or not the prosecution proceeded on the premise or theory that the conduct alleged under clause 3 was also prejudicial to good order or service discrediting in order to affirm lesser included offenses under clauses 1 or 2 in the event the clause 3 theory is invalidated; in such a case, the members will normally have been instructed as to the alternative theory; this is consistent with the principle that an appellate court may not affirm on a theory not presented to the trier of fact and adjudicated beyond a reasonable doubt). 

 

United States v. Stevenson, 66 M.J. 15 (an appellate court reviews the denial of a motion to suppress for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo).

 

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

 

(an erroneous deprivation of the right to a public trial is structural error, which requires an appellate court to overturn appellant’s conviction without a harmlessness analysis).

 

United States v. Gutierrez, 66 M.J. 329 (issues involving ineffective assistance of counsel involve mixed questions of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but looks at the questions of deficient performance and prejudice de novo). 

 

(claims of ineffective assistance of counsel are analyzed by an appellate court under the test outlined by the Supreme Court in Strickland v. Washington, 466 US 668 (1984), and considers (1) whether counsel’s performance fell below an objective standard of reasonableness, and (2) if so, whether, but for the deficiency, the result would have been different; the accused has the burden of demonstrating both deficient performance and prejudice; an appellate court is not required to apply these tests in any particular order; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed).    

 

(to show prejudice under the Strickland test, an accused must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; in demonstrating this reasonable probability, the accused must show a probability sufficient to undermine confidence in the outcome; in other words, when an accused challenges his conviction based on ineffective assistance of counsel, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt). 

 

(the test for prejudice flowing from ineffective assistance of counsel, and the burden for proving the existence of prejudice, is substantially different from the harmless beyond a reasonable doubt test applied to constitutional errors where the burden is on the government to prove that the error did not contribute to the guilty finding; the proper test for assessing prejudice flowing from ineffective assistance of counsel is to look at all the evidence before the factfinder to determine if the accused has met his burden to demonstrate a reasonable probability that the factfinder’s decision would have been different).

 

United States v. Bragg, 66 M.J. 325 (an appellate court gives a military judge great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member; a military judge is afforded less deference when an appellate court reviews a challenge for cause based on implied bias because the issue is objectively viewed through the eyes of the public, focusing on the appearance of fairness; thus, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo; however, a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one that does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted).

 

(in making judgments regarding implied bias, an appellate court looks at the totality of the factual circumstances; implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e., biased]). 

 

United States v. Inabinette, 66 M.J. 320 (the standard for reviewing a military judge’s decision to accept a plea of guilty is an abuse of discretion; 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; the military judge’s determinations of questions of law arising during or after the plea inquiry are reviewed de novo). 

 

(in reviewing a military judge’s acceptance of a plea for an abuse of discretion, appellate courts apply a substantial basis test:  does the record as a whole show a substantial basis in law and fact for questioning the guilty plea; traditionally, this test is presented in the conjunctive (i.e., law and fact); however, the test is better considered in the disjunctive (i.e., law or fact)). 

 

(in summary, an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; in doing so, it applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding appellant’s guilty plea).

 

United States v. McIlwain, 66 M.J. 312 (whether a military judge should disqualify himself or herself is viewed objectively, and is assessed not in the mind of the military judge himself or herself, but rather in the mind of a reasonable man who has knowledge of all the facts; military judges should broadly construe possible reasons for disqualification, but also should not recuse themselves unnecessarily).


(an appellate court will reverse a military judge’s decision on the issue of recusal only for an abuse of discretion). 

 

(not every judicial disqualification error requires reversal; in determining whether a judge’s disqualification warrants a remedy, an appellate court will follow the three-part test announced by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 US 847(1988):  (1) the risk of injustice to the parties, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining public confidence in the judicial process). 


United States v. Miller, 66 M.J. 306 (an appellate court reviews a military judge’s decision to suppress or admit evidence for an abuse of discretion; 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. Travis, 66 M.J. 301 (whether an error, constitutional or otherwise, was harmless, is a question of law that an appellate court reviews de novo). 


United States v. Hart, 66 M.J. 273 (when an accused contests personal jurisdiction on appeal, an appellate court reviews that question of law de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record). 


United States v. Navrestad, 66 M.J. 262 (an appellate court review questions of legal sufficiency de novo as questions of law; legal sufficiency is determined by asking whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 


United States v. Adams, 66 M.J. 255 (administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ). 


United States v. Gallagher, 66 M.J. 250 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion; it reviews findings of fact for clear error and conclusions of law de novo). 


United States v. Maynard
, 66 M.J. 242 (the plain error standard is met when (1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights; appellant bears the burden of demonstrating that the three prongs of the test are met). 


United States v. Dacus
, 66 M.J. 235 (an appellate court reviews a military judge’s decision to accept or reject a guilty plea for abuse of discretion).

 

(once a military judge has accepted a plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record; the mere possibility of such a conflict is not enough to overturn the plea on appeal). 


United States v. Greatting
, 66 M.J. 226 (a military judge’s decision not to recuse himself is reviewed for an abuse of discretion). 

 

(in reviewing a military judge’s ruling on a recusal motion, an appellate court considers the facts and circumstances under an objective standard; the test is whether there was any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned).


(in determining whether relief is warranted when a military judge abused his discretion by denying a recusal motion, an appellate court considers the following three factors:  (1) the risk of injustice to the parties in the particular case; (2) the risk that the denial of relief will produce injustice in other cases; and (3) the risk of undermining the public’s confidence in the judicial process). 


United States v. Larson, 66 M.J. 212 (an appellate court reviews the denial of a motion to suppress for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo; evidence is considered in the light most favorable to the prevailing party).

 

(whether there is prejudice with respect to a claim of ineffective assistance of counsel depends on whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; the appellant bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). 


United States v. Glenn, 66 M.J. 64 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; it will not set aside a plea of guilty on appeal unless there is a substantial basis in law and fact for questioning the guilty plea).

 

United States v. Hall, 66 M.J. 53 (whether an error, constitutional or otherwise, was harmless, is a question of law that an appellate court reviews de novo; for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings).

 

United States v. Holbrook, 66 M.J. 31 (to reject a guilty plea, the trial record must show a substantial basis in law and fact for questioning the guilty plea; review of the statutory elements required to establish an offense is a question of law that an appellate court undertakes de novo; if appellant’s providence inquiry established the facts necessary to support the elements of the UCMJ offense charged, the plea to that charge is provident).

 

(not every fact regarding a qualification for enlistment may be material; the President’s addition of the adjective “material” to the second element of the fraudulent enlistment offense in the MCM – that the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding his qualifications for enlistment or appointment - limits the scope of actionable untruths regarding qualifications for enlistment; in determining whether a statement is material to qualifications for enlistment, an appellate court looks at what the misrepresentation concealed and what qualities the service sought to assess in determining fitness for duty; the threshold is low, as a material statement is one that need only have a tendency to influence the decision-making body to which it is addressed). 


United States v. Rodriguez, 66 M.J. 201 (whether a CCA can affirm a conviction for a single act after determining that the evidence is factually insufficient to support the “on divers occasions” general verdict returned by the factfinder at trial is a question of law that the CAAF reviews de novo). 


United States v. Mackie, 66 M.J. 198 (an appellate court reviews a military judge’s decision to grant or deny a motion for a sanity board for an abuse of discretion; a military judge abuses his discretion when the findings of fact upon which he predicates his ruling are not supported by the evidence of record, if incorrect legal principles were used, or if his application of the correct legal principles to the facts is clearly unreasonable). 


United States v. Mitchell, 66 M.J. 176 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion).

 

(once a military judge accepts an accused’s plea as provident and enters findings based on the plea, an appellate court will not reject the plea unless there is a substantial basis in law and fact for questioning the guilty plea; the mere possibility of a conflict is not sufficient to overturn a military judge’s acceptance of a guilty plea). 


United States v. Day, 66 M.J. 172 (the test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, any reasonable fact-finder could have found all the essential elements beyond a reasonable doubt).

 

(an appellate court’s assessment of an appellant’s guilt or innocence for legal sufficiency is limited to the evidence presented at trial). 


United States v. Harris, 66 M.J. 166 (appellant has the burden of establishing his entitlement to relief for pretrial punishment under Article 13, UCMJ). 

(in reviewing pretrial confinement issues, an appellate court defers to the military judge’s findings of fact, including a finding there was no intent to punish, where they are not clearly erroneous). 

(in reviewing pretrial confinement issues, an appellate court reviews de novo the application of the facts to the law and whether appellant is entitled to credit for violations of the law). 

United States v. Harcrow, 66 M.J. 154 (considering whether  the laboratory reports in this case constitute inadmissible hearsay under Crawford v. Washington is a question of law that an appellate court reviews de novo).

 

(in order to prevail under a plain error analysis, appellant must demonstrate that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right). 

 

(where a case involves constitutional error, the question is whether the government has shown that the error was harmless beyond a reasonable doubt).

 

United States v. Nieto, 66 M.J. 146 (where there was no objection by the defense to hypothetical questions asked by the trial counsel during the voir dire of panel members, an appellate court applies a plain error standard of review to the defense allegation that the prosecution improperly sought to obtain from the panel members a commitment to convict appellant based upon a hypothetical set of facts).

 

(to establish plain error, appellant bears the burden of demonstrating that (1) an error was committed, (2) the error was plain, clear, or obvious, and (3) the error resulted in material prejudice to appellant’s substantial rights). 


United States v. Allende, 66 M.J. 142 (substantial omissions from the record of trial create a presumption of prejudice that may be rebutted by the government). 

 

(any deficiency with respect to explaining the need for substitute authentication of the record of trial is tested for prejudice under a harmless error standard of review). 

 

(a ruling by a court of criminal appeals that appellant was not prejudiced by an erroneous substitute authentication of the record of trial is a question of law that CAAF reviews de novo). 

 

(where the error in the substitute authentication of the record of trial by trial counsel, an official designated by Article 54(a), UCMJ, as eligible to authenticate the record in a substitute capacity, involved the adequacy of the explanation for use of a substitute authority, the burden is on appellant to demonstrate prejudice). 

 

United States v. Scott, 66 M.J. 1 (whether matters contained in an addendum to the SJAR constitute new matter that must be served upon an accused is a question of law that is reviewed de novo). 


United States v. Wallace, 66 M.J. 5 (an appellate court reviews a military judge’s ruling on a defense motion to suppress the results of a search of appellant’s computer for an abuse of discretion; findings of fact and conclusions of law are reviewed under the clearly erroneous and de novo standards, respectively).

 

(an appellate court determines the voluntariness of a consent to seizure from the totality of all the circumstances). 


United States v. Reed, 65 M.J. 487 (in the course of addressing command influence issues, appellate courts must consider apparent as well as actual unlawful command influence).

 
(where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that an appellate court reviews de novo). 

 
(with respect to an appellant’s contention that a case was tainted by the appearance of unlawful command influence, an appellate court’s evaluation is highly case-specific; in addition to considering the specific words at issue in the context of the charged offenses, it also takes into account factors such as the means and scope of dissemination, remedial action within the command in general and with respect to potential court members in particular, the degree to which the record itself demonstrates that the defense has had a full opportunity to explore the issue, whether the government has been forthcoming in its response, and whether the military judge has taken any necessary corrective action). 

 

United States v. Townsend, 65 M.J. 460 (to test whether there is substantial doubt about the fairness of the trial, one evaluates implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; the inquiry is to determine whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high). 

 

(an appellate court reviews issues of implied bias for abuse of discretion). 

 

(although an appellate court reviews issues of implied bias for abuse of discretion, the objective nature of the inquiry dictates that it accord a somewhat less deferential standard to implied bias determinations of a military judge). 

 
(where a military judge does not indicate on the record that he has considered the liberal grant mandate in ruling on a challenge for implied bias, an appellate court will accord that decision less deference during its review of the ruling; consequently, it will overturn a military judge’s ruling on an accused’s challenge where he clearly abuses his discretion in applying the liberal grant mandate; in this case, where the military judge assessed the credibility and demeanor of a potential member on the record, but the judge’s ruling denying the challenge for cause of the member did not reflect whether he considered either implied bias or the liberal grant rule, less deference is accorded to his ruling than to one which reflected consideration of implied bias in the context of the liberal grant mandate). 

 

United States v. Freeman, 65 M.J. 451 (an appellate court reviews a military judge’s decision to deny a motion to suppress evidence -- like other decisions to admit or exclude evidence -- for an abuse of discretion; abuse of discretion is a term of art applied to appellate review of the discretionary judgments of a trial court; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; further, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range).

 

(the voluntariness of a confession is a question of law that an appellate court reviews de novo; an appellate court examines the totality of the surrounding circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in determining whether an accused’s will was overborne in a particular case, the court assesses both the characteristics of the accused and the details of the interrogation; some of the factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep; the court determines the factual circumstances surrounding the confession, assesses the psychological impact on the accused, and evaluates the legal significance of how the accused reacted). 

 

(to prevail on a servicemember’s request for investigative or other expert assistance, the mere possibility of assistance is not sufficient; instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop). 

 
(an appellate court reviews a military judge’s decision on a defense request for investigative or other expert assistance for an abuse of discretion). 


United States v. Hunter, 65 M.J. 399 (the interpretation of provisions of the RCM, and whether a term in a PTA violates the RCM, are questions of law that an appellate court reviews de novo; ordinary rules of statutory construction apply in interpreting the RCM). 

 

(when an appellate court finds an error in the providence of a plea, it will reject the plea only where the appellant demonstrates a material prejudice to a substantial right). 

 

United States v. Rhoades, 65 M.J. 393 (an appellate court reviews a military judge’s decision on a motion to disqualify counsel for an abuse of discretion; the military judge’s ruling will be overturned only if the findings of fact are clearly erroneous or the decision is influenced by an erroneous interpretation of the law). 

 

United States v. Falcon, 65 M.J. 386 (a guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea).

 

(an appellate court reviews de novo the military judge’s legal conclusion that an appellant’s pleas were provident).

 

United States v. Pack, 65 M.J. 381 (the question of what law controls resolution of a claimed constitutional violation is one of law, which an appellate court reviews de novo).

 

(overruling case law by implication is disfavored).

 

United States v. Othuru, 65 M.J. 375 (although some constitutional errors may be so fundamental as to be prejudicial in any event, not all constitutional errors require per se reversal; in the context of a particular case, certain constitutional errors, no less than other errors, may have been harmless in terms of their effect on the factfinding process at trial; the denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case; as the error in this case involves appellant’s Sixth Amendment right to cross-examine the witnesses, an appellate court may test this Confrontation Clause error for its effect upon the trial to determine whether the error was harmless beyond a reasonable doubt).

 

(the government bears the burden of establishing that a constitutional error had no causal effect upon the findings; to meet this burden in this case, the government had to demonstrate that there was no reasonable possibility that the erroneous presence of two testimonial statements contributed to the contested findings of guilty; to say that an error did not contribute to the ensuing verdict is not, of course, to say that the factfinder was totally unaware of that feature of the trial later held to have been erroneous; to say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the factfinder considered on the issue in question, as revealed in the record).

 

(an appellate court will not affirm an accused’s conviction where a constitutional error occurred at trial unless it is convinced beyond a reasonable doubt that the constitutional error was not a factor in obtaining that conviction).

 

(the determination of whether an error of constitutional dimension is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo).

 

(to determine whether a constitutional error involving the erroneous admission of two testimonial hearsay statements was harmless beyond a reasonable doubt, an appellate court considers the whole record; in reviewing the record, an appellate court applies a balancing test that considers a host of factors; these factors include the importance of the witnesses’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witnesses on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case).

 

(an appellate court reviews de novo whether appellant was denied due process due to post-trial and appellate delay; the methodology for reviewing such issues requires an appellate court to ask first whether the particular delay is facially unreasonable; if it concludes that the delay is facially unreasonable, then it examines the four factors set forth in Barker v. Wingo, 407 US 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice).

 

United States v. Custis, 65 M.J. 366 (where the error in admitting privileged marital communications was not constitutional in nature, an appellate court, in testing for nonconstitutional harmless error, conducts a de novo review to determine whether this error had a substantial influence on the members’ verdict in the context of the entire case).

 

United States v. Brown, 65 M.J. 356 (whether a military judge properly instructed court members is a question of law, which an appellate court reviews de novo).


United States v. Parrish, 65 M.J. 361 (whether the court of criminal appeals correctly resolved appellant’s post-trial claim without a factfinding hearing is a legal issue that CAAF reviews de novo). 

  

2007

United States v. Cabrera-Frattini, 65 M.J. 241 (a military judge’s determination of a witness’s unavailability and the antecedent question of the government’s good-faith efforts are reviewed for abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo; so long as the military judge understood and applied the correct law, and the factual findings are not clearly erroneous, neither the military judge’s decision to admit evidence, nor his unavailability ruling, should be overturned). 

 

(in order for a witness to be unavailable for Sixth Amendment purposes, the government must first make a good faith effort to secure the witness’s presence at trial; the lengths to which the prosecution must go to produce a witness is determined under a reasonableness standard; evaluation of reasonableness or good-faith effort requires an appellate court to consider all the circumstances rather than to apply a per se rule; the test for unavailability focuses on whether the witness is not present in court in spite of good-faith efforts by the government to locate and present the witness). 

 

(when reviewing a decision of a CCA on a military judge’s ruling, CAAF typically pierces through that intermediate level and examines the military judge’s ruling and then decides whether the CCA was right or wrong in its examination of the military judge’s ruling). 

 

United States v. Brown, 65 M.J. 227 (the critical inquiry of an appellate court on review of the legal sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the members were properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt; but this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt; instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

 

United States v. Erickson, 65 M.J. 221 (when a defense attorney fails to object to a sentencing argument at the time of trial, appellate courts review the statement for plain error).

 

(in order to prevail under a plain error analysis, appellant must demonstrate that:  (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right). 

 

(where neither party appeals a ruling of the court below, that ruling will normally be regarded as law of the case and binding upon the parties; where there is no appeal, a superior court will not review the lower court’s ruling unless the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it). 

 

(in assessing prejudice under the plain error test where prosecutorial misconduct has been alleged, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach involves a balancing of the following three Fletcher factors:  (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction). 

 

United States v. Erickson, 65 M.J. 221 (in assessing prejudice in a judge alone trial in which prosecutorial misconduct during the trial counsel’s sentencing argument was alleged to have resulted in plain error, an appellate court considers the Fletcher factors to determine whether the trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that appellant was sentenced on the basis of the evidence alone).

 

United States v. Leedy, 65 M.J. 208 (the denial of a motion to suppress is a decision reviewed by an appellate court for an abuse of discretion).

 

(an appellate court reviews de novo the legal question of the sufficiency of the evidence to support a magistrate’s finding of probable cause, using a totality of the circumstances test). 

 

(the determination of the legal question of the sufficiency of the evidence to support a magistrate’s finding of probable cause is based in large part on the facts found by the military judge, the review of which an appellate court conducts under a clearly erroneous standard; findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record). 

 

(the clearly erroneous standard is a very high one to meet; appellant does not meet the burden by suggesting that the findings are maybe or probably wrong; if there is some evidence supporting the military judge’s findings, an appellate court will not hold them arbitrary, fanciful, or clearly erroneous).

 

(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party). 

 

(the duty of the reviewing court, in its de novo review of the sufficiency of the evidence to support a magistrate’s finding of probable cause, is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place). 

 

(there are no specific tests that must be satisfied to find that a magistrate’s decision to authorize a search had a substantial basis for probable cause; the review of a magistrate’s determination is bifurcated into two closely intertwined analyses:  first, an appellate court examines the facts known to the magistrate at the time of his decision, and second, it analyzes the manner in which the facts became known to the magistrate; thus, while an appellate court’s initial inquiry rightly centers on the evidence as set out in the four corners of the requesting affidavit, this evidence may then be usefully illuminated by factors such as the veracity, reliability, and basis of knowledge of the individual presenting the evidence; the magistrate then relies on these and other factors in determining the commonsense, practical question whether there was probable cause to believe that contraband is located in a particular place). 

 

United States v. Harrow, 65 M.J. 190 (a decision to admit or exclude evidence is reviewed for an abuse of discretion).

 

(in applying nonconstitutional harmless error analysis, an appellate court conducts a de novo review to determine whether the error had a substantial influence on the members’ verdict in the context of the entire case). 

 

(the correct test for the admissibility of uncharged misconduct under MRE 404(b) is:  first, does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; second, what fact of consequence is made more or less probable by the existence of this evidence; and last, is the probative value substantially outweighed by the danger of unfair prejudice). 

 

(an appellate court rejects a guilty plea only where the record shows a substantial basis in law and fact for questioning a plea). 

 

(an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion). 

 

(CAAF reviews a sentence reassessment by a CCA for obvious miscarriages of justice or abuses of discretion). 

 

United States v. Moran, 65 M.J. 178 (whether there has been improper reference to an accused’s invocation of his constitutional rights is a question of law that an appellate court reviews de novo).

 

(whether there was plain error is a determination reviewed by an appellate court de novo.). 

 

(appellant has the burden of persuading an appellate court that the three elements of the plain error test are satisfied). 

 

(statements made by witnesses concerning the invocation of an accused’s rights must be reviewed closely; this is especially so when such comments are reiterated by trial counsel and when the trial is before members rather than a military judge alone). 

 

(an appellate court examines prosecutorial comment within the context of the entire court-martial). 

 

United States v. Albaaj, 65 M.J. 167 (in the case of actual bias, an appellate court is generally deferential to a military judge’s ruling because such challenges involve judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire). 

 

(the test for implied bias is objective, and asks whether, in the eyes of the public, the challenged member’s circumstances do injury to the perception of appearance of fairness in the military justice system; in making this objective evaluation, an appellate court asks whether most members in the same position as the challenged member would be prejudiced or biased; because of this objective test and the nature of the inquiries, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo). 

 

United States v. Jameson, 65 M.J. 160 (an appellate court reviews a military judge’s evidentiary decision on whether good cause was shown for an untimely motion to suppress for an abuse of discretion).

 

(in order to prove ineffective assistance of counsel, appellant must show that his trial counsel’s performance was deficient and that the deficiency deprived him of a fair trial; with regard to allegations of ineffective assistance of counsel, the burden rests on the accused to demonstrate a constitutional violation; consistent with this principle, when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; in determining whether appellant has a reasonable probability of success on the motion to suppress the results of appellant’s consent to a blood draw, an appellate court considers the totality of the circumstances surrounding the consent). 

 

United States v. Sanchez, 65 M.J. 145 (an appellate court reviews a military judge’s decision to admit or exclude expert testimony over defense objection for an abuse of discretion).

 

(when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors; furthermore, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range; as long as a military judge properly follows the appropriate legal framework, a reviewing court will not overturn a ruling for an abuse of discretion unless it was manifestly erroneous; this standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion). 

 

United States v. Thomas, 65 M.J. 132 (a plea of guilty will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea).

 

(a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion). 

 

(an appellate court reviews de novo the military judge’s exposition of the elements of the offense to which the accused is pleading guilty). 

 

(appellate courts have long adhered to the principle that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused; where the legislative intent is ambiguous, the ambiguity is resolved in favor of the accused). 

 

United States v. Pflueger, 65 M.J. 127 (whether the action taken by the CCA in the course of conducting its sentence appropriateness review under Article 66(c), UCMJ, provided meaningful relief for unreasonable or unexplained post-trial delay is a question of law that CAAF considers under a de novo standard of review).

 

United States v. Foerster, 65 M.J. 120 (whether a document constitutes testimonial hearsay is a legal question that an appellate court reviews de novo).

 

(an appellate court accepts a military judge’s findings of fact unless they are clearly erroneous or unsupported by the record). 

 

(a military judge’s evidentiary ruling that a forgery affidavit was admissible as a business record under MRE 803(6) is reviewed by an appellate court for an abuse of discretion). 

 

United States v. Hollings, 65 M.J. 116 (a military judge who, in determining whether a court member should be removed for implied bias, addresses the concept of the liberal grant mandate on the record, is entitled to greater deference than one who does not). 

  

United States v. Mack, 65 M.J. 108 (an appellate court considers the legality of an order under a de novo standard of review).

 

(if the military judge erroneously submits the issue of legality of an order to the members, an appellate court considers on appeal whether a record has been established that permits it to resolve the question of legality without further proceedings). 

 

(the standard for determining the legal sufficiency of evidence supporting a guilty verdict is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

 

(an appellate court reviews de novo appellant’s claim that he was denied his due process right to a speedy post-trial review and appeal). 

 

(with respect to the overall post-trial and appellate period, an appellate court reviews a claim of a due process violation under the test set forth in United States v. Moreno, 63 MJ 129, 135 (CAAF 2006). 

 

United States v. Lewis, 65 M.J. 85 (if an instruction is mandatory, an appellate court will review allegations of error under a de novo standard of review).

 

(when the instructional error raises constitutional implications, the error is tested for prejudice using a harmless beyond a reasonable doubt standard; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence). 

 

(an appellate court uses well-established principles of statutory construction to construe provisions in the MCM; statutory construction begins with a look at the plain language of a rule; the plain language will control, unless use of the plain language would lead to an absurd result). 

 

United States v. Tippit, 65 M.J. 69 (an appellate court reviews claims of ineffective assistance of counsel de novo; an appellant who alleges ineffective assistance of counsel must surmount a very high hurdle; a reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance). 

 

(to overcome the presumption of counsel’s competence, appellant must demonstrate:  (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable). 

 

(in a guilty plea case, to satisfy the prejudice prong of the ineffective assistance of counsel test, the defense must show specifically that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 

 

(when challenging the performance of counsel, the defense bears the burden of establishing the truth of the factual allegations that would provide the basis for finding deficient performance; when there is a factual dispute, an appellate court determines whether further factfinding is required; if, however, the facts alleged by the defense would not result in relief under the high standard of the ineffective assistance of counsel test, an appellate court may address the claim without the necessity of resolving the factual dispute). 

 

(an appellate court need not determine whether any of the alleged errors in counsel’s performance established constitutional deficiencies under the serious deficiency prong of the ineffective assistance of counsel test, if any such errors would not have been prejudicial under the high hurdle established by the second prong of the test). 

 

(the decision to accept a guilty plea is reviewed for an abuse of discretion; an appellant who challenges the providency of a guilty plea must demonstrate a substantial basis in law and fact for questioning the guilty plea).    

 

United States v. Gardinier, 65 M.J. 60 (whether the statements of a witness who did not appear at trial are inadmissible testimonial hearsay under Crawford v. Washington, 541 US 36 (2004), is a question of law that an appellate court reviews de novo). 

 

United States v. Schroder, 65 M.J. 49 (the question of whether a jury was properly instructed is a question of law that is reviewed de novo).

 

(an appellate court applies an abuse of discretion standard to a military judge’s decision on whether to give a tailored instruction requested by the defense). 

 

(where there are constitutional dimensions at play, appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt).

 

(where defense counsel did not object to argument of trial counsel, an appellate court reviews the argument for plain error). 

 

(improper argument does not require reversal unless the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone). 

 

United States v. Roberson, 65 M.J. 43 (a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard).

 

(an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo). 

 

(an appellate court evaluates prejudice from an erroneous evidentiary ruling by weighing (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question; using this evaluation, an appellate court will reverse a case only if it determines that the finder of fact would have been influenced by the evidence that was erroneously omitted).    

 

United States v. Carr, 65 M.J. 39 (an appellate court will set aside an appellant’s guilty plea only when the record of trial shows a substantial basis in law and fact for questioning the plea; in reviewing the providence of appellant’s guilty pleas, an appellate court considers his colloquy with the military judge, as well any inferences that may reasonably be drawn from it). 

 

United States v. Bare, 65 M.J. 35 (in applying MRE 403 to evidence otherwise admissible under MRE 414, an appellate court applies an approach balancing numerous factors, to include the following nonexhaustive list of factors:  strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties; no one factor is controlling, although in a given case it could be). 

 

United States v. Rader, 65 M.J. 30 (an appellate court reviews the denial of a motion to suppress for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo). 

 

(the control a third party exercises over property or effects is a question of fact; an appellate court will not disturb the military judge’s findings of fact unless they are clearly erroneous or unsupported by the record; whether these facts rise to the level of joint access or control for most purposes is a question of law that an appellate court reviews de novo).

 

United States v. Adcock, 65 M.J. 18 (an appellate court defers to a military judge’s findings of fact unless they are clearly erroneous).

 

(an appellate court reviews de novo the legal question of whether the established facts and the violation of an Air Force regulation with respect to the conditions of appellant’s pretrial confinement entitle appellant to additional sentencing credit). 

 

(when a violation of Article 13, UCMJ, is alleged, an appellate court scrutinizes the government’s purpose or intent to punish, determined by examining the intent of detention officials or by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective). 

 

(an appellate court reviews a military judge’s decision in response to an accused’s request for additional confinement credit for abuses of discretion by pretrial confinement authorities under an abuse of discretion standard). 

 

United States v. Paxton, 64 M.J. 484 (under the two-pronged test of Strickland v. Washington, 466 US 668 (1984), for appellant to establish ineffective assistance of counsel, he first must show that counsel’s performance fell below an objective standard of reasonableness -- that counsel was not functioning as counsel within the meaning of the Sixth Amendment; second, he must demonstrate that there is a reasonable probability that, but for counsel’s error, there would have been a different result).

 

(ineffective assistance of counsel involves a mixed question of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but it applies a de novo standard of review to the ultimate determination of whether appellant received ineffective assistance of counsel and whether there was prejudice). 

 

(an appellate court’s review of counsel’s performance is highly deferential and is buttressed by a strong presumption that counsel provided adequate professional service). 

 

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel). 

 

(an appellate court reviews claims of multiplicity de novo). 

 

United States v. Wise, 64 M.J. 468 (a prisoner must seek administrative relief prior to invoking judicial intervention to redress concerns regarding post-trial confinement conditions; absent some unusual or egregious circumstance, this means that the prisoner has exhausted the prisoner grievance system in his detention facility and that he has petitioned for relief under Article 138, UCMJ; this requirement promotes resolution of grievances at the lowest possible level and ensures that an adequate record has been developed to aid appellate review). 

 

(an appellate court reviews factual findings under a clearly erroneous standard, but the ultimate determination of whether an appellant has exhausted administrative remedies is reviewed de novo, as a mixed question of law and fact). 

 

(an appellate court reviews de novo the question of whether an appellant has been subject to impermissible conditions of post-trial confinement in violation of Article 55, UCMJ, and/or the Eighth Amendment). 

 

(interpreting Article 12, UCMJ, is an issue of statutory interpretation, which an appellate court reviews de novo, as is the question whether Article 12, UCMJ, has been violated). 

 

(once an appellant makes a colorable claim that he was put in irons, the burden for establishing that an exception to the prohibitions of Article 55, UCMJ, were met falls to the government). 

 

United States v. Shaw, 64 M.J. 460 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion).

 

(pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea). 

 

(once the military judge has accepted a guilty plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record; a mere possibility of such a conflict is not a sufficient basis to overturn the trial results).


United States v. Beatty, 64 M.J. 456 (both legal and factual sufficiency are matters for courts of criminal appeals to consider de novo).

 

United States v. Flores, 64 M.J. 451 (an appellate court reviews a military judge’s denial of a motion to suppress for abuse of discretion; findings of fact are reviewed for clear error, while conclusions of law are reviewed de novo; the court views the evidence in the light most favorable to the prevailing party).

 

(the military judge’s finding that appellant voluntarily abandoned his bag by switching bags with another recruit before a search was ordered was not clearly erroneous when the evidence was viewed in the light most favorable to the government; because the military judge properly determined that appellant abandoned his bag voluntarily and not in response to the allegedly illegal police conduct, appellant did not carry his burden at the motion hearing or on appeal of demonstrating that he had a reasonable expectation of privacy in the bag; accordingly, appellant lacked standing to challenge the validity of the search or the admission of derivative evidence, including his confession). 

 

United States v. Davis, 64 M.J. 445 (Article 59(a), UCMJ, establishes an appellate standard for review of the findings and sentence, not a trial-level standard for ruling on motions; this standard is that a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; like its federal civilian counterpart, Fed. R. Crim. P. 52(a), Article 59(a) recognizes that errors are likely to occur in the dynamic atmosphere of a trial, and that prejudice must be shown before reversing the findings or sentence). 

 

(as a general matter, if an appellant demonstrates that a ruling by the military judge was in error, the burden then shifts to the government to demonstrate that the error was harmless; if the error is of constitutional dimension or involves unlawful command influence, the government must show that the error was harmless beyond a reasonable doubt; an error is treated as inherently prejudicial, without the need for a further showing of prejudice, only if it amounts to a structural defect in the constitution of the trial). 

 

(on appeal, an appellate court evaluates an error in an Article 32 proceeding under Article 59(a); the standard of review and allocation of burdens in such cases depends on whether the defect amounts to a structural constitutional error or other constitutional error, unlawful command influence, or other nonconstitutional error; to the extent that prior case law reflected inconsistent treatment of Article 59(a) in the context of Article 32 errors, Article 59(a) now applies to all Article 32 errors considered on direct review of the findings and sentence of a court-martial). 

 

(although the Article 32 investigation is an important element of the military justice process, it is not part of the court-martial; an Article 32 investigation takes place before the convening authority’s decision to refer a case for trial by general court-martial; a case may be referred to trial by special court-martial without conducting an Article 32 investigation, even though a special court-martial can result in the stigma of a punitive discharge and confinement for up to one year; in light of those considerations, the Article 32 investigation is not so integral to a fair trial that an error in the proceeding necessarily falls within the narrow class of defects treated by the Supreme Court as structural error subject to reversal without testing for prejudice). 

 

United States v. Phillips, 64 M.J. 410 (whether a convening authority’s action approving a sentence under Article 60(c), UCMJ, precludes a different officer from converting a contingent confinement provision of that sentence into actual confinement when appellant fails to pay the fine is question of law that an appellate court reviews de novo). 

 

(an appellate court reviews a decision to convert a fine into confinement for an abuse of discretion). 

 

United States v. Young, 64 M.J. 404 (in reviewing a case for legal sufficiency, an appellate court must determine whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt).    

 

(in reviewing a case for legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution). 

 

(an appellate court reviews a question of legal sufficiency de novo as a question of law). 

 

(issues of due process and whether constitutional error is harmless beyond a reasonable doubt are reviewed by an appellate court de novo).

 

United States v. Gutierrez, 64 M.J. 374 (there are no magic words to establish affirmative waiver of a defense; in making waiver determinations, an appellate court looks to the record to see if the statements signify that there was a “purposeful decision” at play). 

 

(whether an affirmative defense has been affirmatively waived is an instructional claim that an appellate court reviews de novo). 

 

United States v. Rankin, 64 M.J. 348 (the question of whether documents offered at trial as records of regularly conducted activity under MRE 803(6) and as public records under MRE 803(8) were inadmissible hearsay is a question of law that an appellate court reviews de novo). 


United States v. Carruthers, 64 M.J. 340 (a military judge’s decision to limit cross-examination as to the sentencing details of a prosecution witness’s plea agreement is reviewed for abuse of discretion; however, a military judge’s discretionary authority arises only after there has been permitted as a matter of right sufficient cross-examination). 

 

(the military judge’s denial of a requested instruction is reviewed for abuse of discretion). 

 

(an appellate court applies a three-pronged test to determine whether the failure to give a requested instruction is error: (1) the requested instruction is correct; (2) it is not substantially covered in the main instruction; and (3) it is on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its effective presentation). 

 

United States v. Foster, 64 M.J. 331 (there is a strong presumption that a military judge is impartial in the conduct of judicial proceedings). 

 

(when a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of the trial, the court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; this test is applied from the viewpoint of the reasonable person observing the proceedings). 

 

(failure to object at trial to alleged partisan action on the part of a military judge may present an inference that the defense believed that the military judge remained impartial). 

 

United States v. Brooks, 64 M.J. 325 (an appellate court reviews a military judge’s decision to admit expert testimony under an abuse of discretion standard).    

 

(an appellate court’s standard of review for determining whether there is plain error is de novo). 

 

United States v. Terry, 64 M.J. 295 (where military judges consider implied bias and apply the liberal grant mandate on the record, deference is warranted). 

 

(the existence of actual bias is a question of fact, and an appellate court consequently provides the military judge with significant latitude in determining whether it is present in a prospective member; that the military judge, rather than the reviewing court, has been physically present during voir dire and watched the challenged member’s demeanor makes the military judge specially situated in making this determination). 

 

(in analyzing implied bias, appellate courts provide less deference to the military judge; here, the military judge’s privileged position at trial is less important because the test for implied bias is objective, and asks whether, in the eyes of the public, the challenged member’s circumstances do injury to the perception of appearance of fairness in the military justice system; in considering this question, courts also consider whether most people in the same position would be prejudiced, that is, biased; consequently, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo). 

 

United States v. Green, 64 M.J. 289 (if a military judge erroneously permits consideration of inadmissible evidence during sentencing, an appellate court tests the error for prejudice). 

 

(if a military judge comments on the sentence, his remarks may be reviewed on appeal to determine whether he relied on inadmissible matter in determining the sentence). 

 

(an appellate court reviews a military judge’s consideration of sentencing factors under an abuse of discretion standard). 

 

(a claim of judicial bias in sentencing is evaluated by an appellate court by considering, in view of the sentencing proceeding as a whole, whether a reasonable person would doubt the court-martial’s legality, fairness, and impartiality). 

 

United States v. Briggs, 64 M.J. 285 (because a challenge based on actual bias is essentially one of credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility on voir dire, a military judge’s ruling on actual bias is afforded deference). 

 

(since implied bias is an objective standard, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias; however, deference is warranted only when the military judge indicates on the record an accurate understanding of the law and its application to the relevant facts). 

  

United States v. Hardison, 64 M.J. 279 (in the absence of a defense objection, an appellate court reviews a claim of erroneous admission of evidence for plain error). 

 

(appellant has the burden of persuading the court that the three prongs of the plain error test are satisfied). 

 

United States v. Clay, 64 M.J. 274 (because a challenge to a court member based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge’s ruling on actual bias is afforded great deference). 

 

(implied bias is an objective test, viewed through the eyes of the public, focusing on the appearance of fairness; accordingly, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias).

 

(military judges must follow the liberal grant mandate in ruling on challenges for cause asserted by an accused; an appellate court will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate). 

 

(a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one that does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted). 

 

(in the absence of actual bias, where a military judge considers a challenge based on implied bias, recognizes his duty to liberally grant defense challenges, and places his reasoning on the record, instances in which the military judge’s exercise of discretion will be reversed will indeed be rare; in such circumstances, what might appear a close case on a cold appellate record, might not appear so close when presented from the vantage point of a military judge observing members in person and asking the critical questions that might fill any implied bias gaps left by counsel). 


United States v. Tate, 64 M.J. 269 (whether a condition of a pretrial agreement violates RCM 705(c)(1)(B) is a question of law that an appellate court reviews de novo).   

 

United States v. Pena, 64 M.J. 259 (an appellate court reviews allegations of cruel or unusual punishment under a de novo standard). 

 

(in an appellate court’s evaluation of both constitutional and statutory allegations of cruel or unusual punishment, it applies the Supreme Court’s Eighth Amendment jurisprudence in the absence of legislative intent to create greater protections in the UCMJ).

 

(an appellate court reviews de novo claims that punishment was increased without providing the requisite constitutional, statutory, and regulatory components of notice and an opportunity to respond). 

 

(although reviewing authorities have the power to commute a sentence to a different form of punishment, this authority may not be exercised in a manner that increases the severity of the punishment; the question of whether a change in the form of punishment increases the severity of the punishment is contextual, requiring consideration of all the circumstances in a particular case). 

 

(the burden is on the party challenging the conditions of mandatory supervised release program to demonstrate that there has been an increase above the punishment of confinement imposed at trial).

 

(when an appellant asks an appellate court to review the post-trial administration of a sentence, that court is typically confronted by issues in which the pertinent facts are not in the record of trial; in such a case, it is particularly important that the appellant provide the court with a clear record of the facts and circumstances relevant to the claim of legal error; the information about the personal, psychological, economic, and family impact of such measures is primarily in the control of the party appealing the sentence, and that party bears the responsibility of submitting detailed documentation). 

 

(an appellate court reviews claims as to the providence of a plea under a de novo standard). 

 

(an appellant who challenges the providence of a guilty plea must demonstrate a substantial basis in law and fact for questioning the guilty plea). 

 

(when the challenge to the providence of a guilty plea concerns an appellant’s claimed misunderstanding of the collateral consequences of a court-martial, such as an early release program, appellant must demonstrate that the collateral consequences are major and appellant’s misunderstanding of the consequences (1) results foreseeably and almost inexorably from the language of a pretrial agreement; (2) is induced by the trial judge’s comments during the providence inquiry; or (3) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding; in short, chief reliance must be placed on defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences). 


United States v. Cossio, 64 M.J. 254 (an appellate court reviews de novo the question of whether an accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; and in an Article 62, UCMJ, appeal, that court is bound by the facts as found by the military judge unless those facts are clearly erroneous). 

 

(in reviewing claims of a denial of a speedy trial under Article 10, UCMJ, an appellate court does not demand constant motion, but reasonable diligence in bringing the charges to trial; it inquires whether the government moved toward trial with reasonable diligence; brief inactivity is not fatal to an otherwise active, diligent prosecution). 

 

(although Article 10, UCMJ, creates a more stringent speedy trial standard than the Sixth Amendment, the factors from Barker v. Wingo, 407 U.S. 514 (1972), are an apt structure for examining the facts and circumstances surrounding an alleged Article 10 violation; those factors are:  (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant). 

 

United States v. McAllister, 64 M.J. 248 (if the military judge’s error was not of constitutional dimension, the appropriate standard is whether the court-martial’s findings of guilty were substantially influenced by the error). 

 

(a four-part test is employed to evaluate prejudice under the standard of review appropriate to a non-constitutional evidentiary error:  (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question).

 

(if the military judge commits constitutional error by depriving an accused of his right to present a defense, the test for prejudice on appellate review is whether the appellate court is able to declare a belief that it was harmless beyond a reasonable doubt; the government must demonstrate that there was no reasonable possibility that the absence of potentially exculpatory evidence contributed to the contested findings of guilty). 

 

(an appellate court reviews de novo the question of whether a constitutional error was harmless beyond a reasonable doubt). 

 

United States v. Canchola, 64 M.J. 245 (a claim of denial of a due process right to speedy post-trial review is evaluated under the four factors of Barker v. Wingo, 407 U.S. 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to timely post-trial review and appeal; and (4) prejudice). 

 

(the high demands placed upon military personnel in supporting the national interests of the United States, particularly in combat or hostile environments, is an appropriate consideration when assessing the post-trial delay factors under the Barker analysis; where operational requirements affect post-trial processing delays, staff judge advocates and convening authorities should ensure that those reasons are documented in the record of trial; reviewing courts can then weigh and balance those reasons in determining whether they provide adequate explanation for any apparent post-trial delays; however, a general reliance on budgetary and manpower constraints will not constitute reasonable grounds for delay nor cause this factor to weigh in favor of the government). 

 

(in balancing the Barker factors, in cases where an appellate court finds no prejudice under the fourth prong, a due process violation will result only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system).

 

United States v. Perez, 64 M.J. 239 (an accused who claims ineffective assistance of counsel must surmount a very high hurdle; judicial scrutiny of a defense counsel’s performance must be highly deferential and should not be colored by the distorting effects of hindsight). 

 

(to overcome the presumption of his defense counsel’s competence, an appellant must satisfy the two-part test set forth in Strickland v. Washington and demonstrate:  (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed an accused by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive the accused of a fair trial, a trial whose result is reliable). 

 

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel). 

 

(an appellate court must indulge a strong presumption that a defense counsel’s conduct falls within the wide range of reasonable professional assistance; that is, an accused must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy; there are countless ways to provide effective assistance in any given case; even the best criminal defense attorneys would not defend a particular client in the same way).

 

(in cases involving attacks on defense counsel’s trial tactics, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms; an appellant must also show prejudice). 

 

(the test for prejudice on a claim of ineffective assistance of counsel is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). 

 

(an appellate court considers whether a defense counsel was ineffective and whether any errors were prejudicial under a de novo standard of review). 


United States v. Lee, 64 M.J. 213 (an appellate court reviews a military judge’s ruling on a request for expert assistance for abuse of discretion). 

 

(to test the adequacy of a showing of necessity for expert assistance, an appellate court applies a three-part test: the defense must show: (1) why the expert assistance is needed; (2) what the expert assistance would accomplish for the accused; and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop). 

 

United States v. Crafter, 64 M.J. 209 (failure to object does not waive the issue of a specification’s legal sufficiency; if, however, a specification has not been challenged prior to findings and sentence, the sufficiency of the specification may be sustained if the necessary facts appear in any form or by fair construction can be found within the terms of the specification). 

 

(the question of whether a specification states an offense is a question of law that an appellate court reviews de novo). 


2006

 

United States v. Finch, 64 M.J. 118 (failure to object at trial to exceptions and substitutions made at findings constitutes waiver of that issue in the absence of plain error). 

 

(there are three elements for the plain error test: (1) that there was an error, (2) that the error was plain, that is, clear or, equivalently, obvious, and (3) the plain error affected substantial rights). 

 

(to prevail on a fatal-variance claim, appellant must show that the variance was material and that it substantially prejudiced him). 

 

(a variance that is material is one that, for instance, substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense).  

 

(with respect to the two-part material variance test, the critical question is one of prejudice; the prejudice prong consists of a two-part analysis: (1) has the accused been misled to the extent that he has been unable adequately to prepare for trial; and (2) is the accused fully protected against another prosecution for the same offense). 

 

(an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo; if there has been a denial of due process, appellant is entitled to relief unless the court is convinced that the error was harmless beyond a reasonable doubt; where an appellate court can determine that any violation of the due process right to speedy post-trial review and appeal is harmless beyond a reasonable doubt, it need not undertake the four-factor Barker analysis prior to disposing of that post-trial or appellate delay issue). 

 

United States v. Haney, 64 M.J. 101 (there is a three-pronged test to determine whether counsel has been ineffective: (1) are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case, (2) if the allegations are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers, and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt).    

 

(with respect to appellant’s claim that his appellate defense counsel failed to perform the specific duty of filing pleadings in a timely manner, appellant must show that there is a reasonable probability that he was prejudiced by the alleged deficiency). 

 

(there are four factors used to determine whether post-trial delay violates due process rights: (1) length of the delay, (2) reasons for the delay, (3) appellant’s assertion of his right to a timely appeal, and (4) prejudice to appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 

 

(in order to prevail on the prejudice prong of an ineffective assistance of counsel claim, appellant must ultimately show that the deficient performance prejudiced the defense).   

 

United States v. Gosser, 64 M.J. 93 (the test for excessive post-trial delay looks at four Barker v. Wingo factors: (1) the length of the delay, (2) the reasons for the delay, (3) appellant’s assertion of the right to timely review and appeal, and (4) prejudice; a full due process analysis is triggered where the length of delay is facially unreasonable). 

 

(where a due process error is one of constitutional magnitude, an appellate court is obliged to test this error for harmlessness; to rebut a showing of error, the government must show that the error was harmless beyond a reasonable doubt).

 

United States v. Long, 64 M.J. 57 (in examining Fourth Amendment privacy interests, the courts look first to whether the individual had a subjective expectation of privacy; if the courts ascertain that a subjective expectation of privacy exists, they then determine if that expectation is one that society is prepared to accept as reasonable; the first question is one of fact, which is reviewed using a clearly erroneous standard; the second is one of law, which is reviewed de novo). 

 

(whether error is harmless beyond a reasonable doubt is a question of law reviewed de novo).    

 

(in determining whether error is harmless beyond a reasonable doubt, the burden is on the government to show whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained). 


United States v. Kisala, 64 M.J. 50 (there is a presumption that orders are lawful; under this presumption, the servicemember challenging the order bears the burden of demonstrating the illegality).

 

(where an appellate court is faced with an order based upon a rule promulgated by an agency outside the normal purview of our Court, it treats the agency’s administrative determinations with considerable deference; given this degree of deference to the determinations of the agency, the burden on the servicemember challenging the rule is particularly high). 


United States v. Shelton, 64 M.J. 32 (in evaluating whether appellant has established the three criteria necessary to claim the clergy privilege, the focus of an appellate court is the ruling of the military judge; when CAAF reviews a decision of a court of criminal appeals on a military judge’s ruling on the clergy privilege, it typically pierces through that intermediate level, examines the military judge’s ruling, and then decides whether the court of criminal appeals was right or wrong in its examination of the military judge’s ruling). 

 

(an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion). 

 

(whether a communication is privileged is a mixed question of fact and law; an appellate court will give the military judge’s findings of fact deference, reversing such findings only if they are clearly erroneous, while it reviews the legal conclusions de novo). 


United States v. Harvey, 64 M.J. 13 (on appeal, an appellant must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness). 

 

(an appellate court reviews de novo the issue whether the defense produced some evidence of facts which, if true, constitute unlawful command influence and that the alleged unlawful command influence has a logical connection to the court-martial in terms of its potential to cause unfairness in the proceedings).

 

(where a due process error is one of constitutional magnitude, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt).


United States v. Dearing, 63 M.J. 478 (the touchstone against which an appellate court measures the validity of the military judge’s refusal to give an instruction on self-defense is whether there is in the record some evidence from which a reasonable inference can be drawn that the affirmative defense was in issue).

 

(an appellate court reviews the adequacy of the military judge’s instruction de novo). 

 

(the legal test for determining whether appellant’s due process right was violated by excessive post-trial delay considers four factors:  (1) length of the delay; (2) reasons for the delay; (3) appellant’s assertion of his right to a timely appeal; and (4) prejudice to appellant; once a due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 

 

(the standard of review for a claim of denial of a due process right arising from denial of speedy post-trial review and appeal is de novo).



United States v. Miller, 63 M.J. 452 (the test for ineffective assistance of appellate defense counsel is the same as the test for ineffective assistance of trial defense counsel; first, the accused must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the accused by the Sixth Amendment; second, the accused must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial).

 

(CAAF employs a three-pronged test to determine whether counsel has been ineffective: (1) are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case; (2) if the allegations are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt). 

 

(the rejection of a guilty plea requires that the record of trial show a substantial basis in law and fact for questioning the plea).

 

(when collateral consequences of a court-martial conviction -- such as administrative discharge, loss of a license or a security clearance, removal from a military program, failure to obtain promotion, deportation, or public derision and humiliation -- are relied upon as the basis for contesting the providence of a guilty plea, the appellant is entitled to succeed only when the collateral consequences are major and the appellant’s misunderstanding of the consequences (a) results foreseeably and almost inexorably from the language of a pretrial agreement; (b) is induced by the trial judge’s comments during the providence inquiry; or (c) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding).

 

(for all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on DoD Instr. 1325.7, Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing; trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement; while failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance an appellate court will carefully consider in evaluating allegations of ineffective assistance of counsel).


United States v. Tanner, 63 M.J. 445 (the validity of the sentence in the later court-martial may be affected if the prior conviction introduced during sentencing is reversed on appeal; in such an instance, an appellate court tests for prejudice from admission of that prior conviction by determining whether the sentence in the later court-martial might have been different had the conviction not been introduced during sentencing; in the course of evaluating potential prejudice, the court considers whether the same information otherwise would have been admissible at the sentence proceeding and at a sentence rehearing). 

 

(where the military judge did not conduct a balancing test in the context of MRE 414, an appellate court reviews the evidence without giving any deference to the decision of the military judge). 

 

United States v. Zachary, 63 M.J. 438 (in analyzing offenses charged under the general article, Article 134, UCMJ, an appellate court looks at both the statute and the President’s explanation in the MCM to determine the elements of the offense). 

 

(a guilty plea is set aside upon a showing that a substantial basis in law and fact for questioning the guilty plea exists).
 

United States v. Osheskie, 63 M.J. 432 (an appellate court reviews ineffective assistance of counsel claims de novo). 

 

(the Strickland test governs ineffective assistance of counsel claims in cases involving guilty pleas; appellant must show not only that his counsel was deficient but also that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 

 

(despite an appellant’s submission of an affidavit that is factually adequate on its face on an ineffective assistance of counsel claim, an appellate court can independently resolve the factual and legal issues in the case if the appellate filings and the record as a whole compellingly demonstrate the improbability of the facts). 

 

(an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo).

 

United States v. Jenkins, 63 M.J. 426 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion).


United States v. Washington, 63 M.J. 418 (when determining whether the evidence was legally sufficient to support a conviction, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 


United States v. Lewis, 63 M.J. 405 (under the law of the case doctrine, a higher appellate court will not review the lower court’s ruling unless the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it; that standard is difficult to achieve:  a finding of manifest injustice requires a definite and firm conviction that a prior ruling on a material matter is unreasonable or obviously wrong). 

 

(as a general matter, the defense has the initial burden of raising the issue of unlawful command influence; on appeal, the defense meets its burden by showing facts which, if true, constitute unlawful command influence; that the proceedings were unfair; and that unlawful command influence was the cause of the unfairness). 

 

(once the issue of unlawful command influence has been raised, the burden shifts to the government to demonstrate beyond a reasonable doubt either that there was no unlawful command influence or that the proceedings were untainted; this burden is high because command influence tends to deprive servicemembers of their constitutional rights). 

 

(an appellate court reviews de novo the question of whether the government has met its burden of demonstrating, beyond a reasonable doubt, that the proceedings were untainted by unlawful command influence; this review must necessarily consider both whether actual command influence was cleansed from the proceedings as well as whether any perceived unlawful command influence has been eradicated). 

 

(the government did not meet its burden of demonstrating beyond a reasonable doubt that the court-martial was free from the effects of actual unlawful command influence arising from the orchestrated efforts of the trial counsel and the staff judge advocate to force the recusal of the military judge; although the successor military judge directed that the SJA be disqualified, that the SJA be barred from sitting in the courtroom, and that there be a new convening authority, these actions fell short of removing doubt about the impact of actual command influence where the SJA’s instrument in the courtroom, the trial counsel, remained an active member of the prosecution despite participating fully in the unlawful command influence). 

 

(review of the command influence in a case is not limited to actual unlawful influence and its effect on a trial; Congress and appellate courts are concerned not only with eliminating actual unlawful command influence, but also with eliminating even the appearance of unlawful command influence at courts-martial; disposition of an issue of unlawful command influence falls short if it fails to take into consideration the appearance of unlawful command influence).

 

(whether the conduct of the government created an appearance of unlawful command influence is determined objectively; even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system; the objective test for the appearance of unlawful command influence is similar to the tests appellate courts apply in reviewing questions of implied bias on the part of court members or in reviewing challenges to military judges for an appearance of conflict of interest; an appellate court focuses upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; thus, the appearance of unlawful command influence will exist where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

 

(the orchestrated efforts of the trial counsel and the staff judge advocate to force the recusal of the military judge gave rise to the appearance of unlawful command influence where a reasonable observer would have significant doubt about the fairness of the court-martial in light of the government’s conduct with respect to the military judge).  


United States v. Leonard, 63 M.J. 398 (the test for actual bias is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions; while actual bias is reviewed through the eyes of the military judge or the court members, implied bias is reviewed under an objective standard, viewed through the eyes of the public; the focus is on the perception or appearance of fairness of the military justice system; the test for implied bias also carries with it an element of actual bias; thus, there is implied bias when most people in the same position would be prejudiced; when there is no actual bias, implied bias should be invoked rarely).

 

(a military judge’s decision whether to grant a challenge for cause based on actual bias is reviewed for an abuse of discretion; this deferential standard exists because the judge has observed the demeanor of the participants in the voir dire and challenge process).

 

(a military judge is given less deference on questions of implied bias; implied bias is reviewed through the eyes of the public).


United States v. Barnett, 63 M.J. 388 (a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard). 

 

(a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

 

(where a military judge is required to do a balancing test under MRE 403 and does not sufficiently articulate his balancing on the record, his evidentiary ruling will receive less deference from an appellate court). 

 

(having determined that a military judge abused his discretion in admitting evidence of uncharged misconduct, an appellate court must then determine whether the error resulted in material prejudice to appellant’s substantial rights; prejudice from an erroneous evidentiary ruling is evaluated by weighing (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question).


United States v. Rodriguez-Rivera, 63 M.J. 372 (in analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness). 

 

(where the military judge and the lower court have made factual determinations regarding the events surrounding allegations of misconduct, the CAAF will accept those determinations unless they are clearly erroneous). 

 

(if prosecutorial misconduct is found, an appellate court will examine the record as a whole to determine whether appellant was prejudiced by the misconduct). 

 

(an appellate court weighs three factors in evaluating the impact of prosecutorial misconduct on a trial: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the weight of the evidence supporting the conviction). 

 

(as a general matter, appellate courts have permitted greater latitude and flexibility when it comes to treatment and testimony of child witnesses). 

 

(a military judge’s decision to admit hearsay-exception evidence is reviewed by an appellate court for an abuse of discretion). 

 

(in evaluating a military judge’s ruling on a challenge for cause, an appellate court finds it appropriate to recognize the military judge’s superior position to evaluate the demeanor of court members; it will not, therefore, reverse a military judge’s ruling on a challenge for cause absent a clear abuse of discretion). 

 

(where matters adverse to the accused from outside the record have been erroneously considered by the convening authority, an appellate court will require appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; the prejudicial threshold is low, and if appellant makes some colorable showing of possible prejudice, an appellate court will give that appellant the benefit of the doubt and will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment). 

 

(in determining whether the evidence is legally sufficient, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt). 

 

(if an appellate court concludes that appellant has been denied the due process right to speedy post-trial review and appeal, it will grant relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 

 

(whether appellant has been denied the due process right to a speedy post-trial review and appeal, and whether constitutional error is harmless beyond a reasonable doubt are reviewed by an appellate court de novo). 

 

(as a general matter, an appellate court can dispose of an issue by assuming error and proceeding directly to the conclusion that any error was harmless; similarly, issues involving possible constitutional error can be resolved by assuming error and concluding that the error is harmless beyond a reasonable doubt). 

 

(in cases involving claims that appellant has been denied his due process right to speedy post-trial review and appeal, an appellate court may look initially to whether the denial of due process, if any, is harmless beyond a reasonable doubt; an appellate court will apply a similar analysis where, even though the denial of due process cannot be said to be harmless beyond a reasonable doubt, there is no reasonable, meaningful relief available). 

 

(an appellate court applies a de novo standard of review to the question of harmlessness beyond a reasonable doubt). 

 

United States v. Allison, 63 M.J. 365 (a military judge’s decision regarding the qualifications of an expert witness is reviewed by this court for abuse of discretion). 

 

(in analyzing whether appellate delay has violated the due process rights of an accused, an appellate court first looks at whether the delay in question is facially unreasonable; if it is, then this court examines and balances the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice). 

 

(if an appellate court concludes that an appellant has been denied the due process right to speedy post-trial review and appeal, it grants relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 

 

(whether an appellant has been denied the due process right to a speedy post-trial review and appeal, and whether constitutional error is harmless beyond a reasonable doubt are reviewed de novo). 

 

United States v. Toohey, 63 M.J. 353 (prior to affirming a case in which there has been constitutional error, an appellate court must be convinced beyond a reasonable doubt that the error was harmless). 

 

(for nonconstitutional errors, the government bears the burden of showing that the error did not have a substantial influence on the findings). 

 

(an appellate courts reviews the prejudicial effect of an erroneous evidentiary ruling de novo). 

(a four-part test is applied to determine whether an error in excluding testimony had a substantial influence on the findings: (1) was the government’s case against appellant strong and conclusive; (2) is the defense’s theory of the case feeble or implausible; (3) what is the materiality of the proffered testimony; and (4) what is the quality of the proffered defense evidence and is there any substitute for it in the record of trial). 

reversal is not required by the erroneous exclusion of evidence if the court determines that the finder of fact would not have been influenced by the omitted evidence). 

(an appellate court reviews de novo claims that appellant has been denied the due process right to a speedy post-trial review and appeal). 

 

(where an appellate court finds constitutional error, it grants relief unless it court is convinced beyond a reasonable doubt that the constitutional error is harmless). 

 

(a due process analysis of speedy post-trial review and appeal cases utilizes four Barker factors:  (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once a due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation; each factor is analyzed and a determination is made as to whether that factor favors the government or appellant; an analysis of the factors is then balanced to determine whether there has been a due process violation; no single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding). 

 

(the government bears the burden of demonstrating that a constitutional error is harmless beyond a reasonable doubt). 

 
United States v. Edmond, 63 M.J. 343 (in a due process analysis of prosecutorial misconduct, an appellate court looks at the fairness of the trial and not the culpability of the prosecutor; even where it finds misconduct on the part of the prosecutor, the court will go on to look at the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness). 

 

(when reviewing claims of ineffective assistance of counsel, an appellate court is guided by the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984); first, an appellant must show that counsel’s performance fell below an objective standard of reasonableness -- that counsel was not functioning as counsel within the meaning of the Sixth Amendment; the second prong of an appellant’s burden requires a showing of prejudice flowing from counsel’s deficient performance; the appellant must demonstrate such prejudice as to indicate a denial of a fair trial or a trial whose result is unreliable, i.e. that there is a reasonable probability that, but for counsel’s error, there would have been a different result).    

 

(in evaluating issues of prosecutorial misconduct, an appellate court reviews the military judge’s findings of fact to determine whether they are clearly erroneous; the questions whether the facts found by the military judge constitute prosecutorial misconduct and whether such misconduct was prejudicial error are questions of law that we review de novo). 

 

(in a prosecutorial misconduct analysis, even if an appellate court were to find misconduct on the part of the prosecutor, this court will go on to look at the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness; in assessing prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial). 

 

(an appellate court’s review of a defense counsel’s performance is highly deferential and is buttressed by a strong presumption that counsel provided adequate professional service; the presumption of competence is rebutted by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms). 

 

United States v. Conklin, 63 M.J. 333 (the test used in evaluating the question of a reasonable expectation of privacy is a twofold requirement: (1) a person must exhibit an actual (subjective) expectation of privacy and, (2) the expectation must be one that society is prepared to recognize as reasonable). 

 

(to determine whether an accused’s consent was an independent act of free will, breaking the causal chain between the consent and a prior constitutional violation, three factors are considered:  (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and the flagrancy of the initial misconduct).


United States v. Phillippe, 63 M.J. 307 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea). 

 

(once a military judge has accepted a plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence on the record; a mere possibility of such a conflict is not a sufficient basis to overturn the trial results).


United States v. Lundy, 63 M.J. 299 (interpretation of a pretrial agreement is a question of law, which an appellate court reviews de novo). 

 

(whether the government has complied with the material terms and conditions of an agreement presents a mixed question of law and fact; generally courts look to all of the facts and circumstances for this determination, and the inquiry is generally considered a question of fact). 

 

(in the context of pretrial agreements involving the constitutional rights of a military accused, an appellate court looks not only to the terms of the agreement, or contract, but to the accused’s understanding of the terms of an agreement as reflected in the record as a whole; where the relevant facts are undisputed, the materiality determination necessarily reduces to a question of law). 

 

(an appellant bears the burden of establishing that there is a significant basis in law or fact to overturn a guilty plea; in the context of this case, in this context, appellant bears the burden of establishing that a term or condition of the agreement was material to his decision to plead guilty, that the government failed to comply with that term or condition, and therefore, that his plea was improvident).

United States v. Moss, 63 M.J. 233 (where the Sixth Amendment’s right to confrontation is allegedly violated by a military judge’s evidentiary ruling, the ruling is reviewed for an abuse of discretion; if an abuse of discretion is found, the case will be reversed unless the error is harmless beyond a reasonable doubt). 

 

(when an appellant claims a violation of the Confrontation Clause on the grounds that he was prohibited from conducting an otherwise appropriate cross-examination designed to show a witness’s bias, the appellant has the burden of showing that a reasonable jury might have reached a significantly different impression of the witness’s credibility if the defense counsel had been able to pursue the proposed line of cross-examination). 


United States v. Thompson, 63 M.J. 228 (an appellate court reviews a military judge’s decision to admit evidence for abuse of discretion and will not overturn that ruling unless it is arbitrary, fanciful, clearly unreasonable, or clearly erroneous, or influenced by an erroneous view of the law).

 

United States v. Adams, 63 M.J. 223 (when reviewing the providence of a guilty plea, an appellate court will only reject the plea where the record of trial shows a substantial basis in law and fact for questioning the plea).

 

United States v. Lovett, 63 M.J. 211 (an appellate court determines whether the facts alleged constitute cruel and unusual punishment de novo).  

 

(a military appellate court applies the Supreme Court’s interpretation of the Eighth Amendment in the absence of any legislative intent to create greater protections in the UCMJ).


United States v. Tamez, 63 M.J. 201 (jurisdiction is a legal question that an appellate court reviews de novo). 

(an appellant bears the burden of demonstrating to CAAF good cause for considering a petition out of time; good cause in this context does not lend itself to precise definition; rather good cause represents a discretionary judgment on the part of CAAF that an appellant can establish some reasonable basis justifying his relief from that default; as part of this showing of good cause, counsel should assign some meritorious issue; of course, the showing of good cause for the untimely filing of a petition is distinct from the showing of good cause required to grant a petition for review).
 


United States v. Davis, 63 M.J. 171 (issues of statutory interpretation and the sentencing jurisdiction of a rehearing are legal questions that an appellate court reviews de novo).

 

United States v. Moreno, 63 M.J. 129 (an appellate court reviews rulings on challenges for implied bias under a standard that is less deferential than abuse of discretion, but more deferential than de novo review).

 

(in reviewing a ruling on a challenge for cause, an appellate court must remain mindful of the liberal grant mandate; the liberal grant mandate recognizes the unique nature of military courts-martial panels, particularly that those bodies are detailed by convening authorities and that the accused has only one peremptory challenge; an appellate court will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate). 

 

(implied bias should be invoked sparingly; nevertheless, an appellate court is not reluctant to apply the doctrine to ensure the appearance of fairness in courts-martial). 

 

(an appellate court reviews de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal).  

 

(in conducting a de novo review of post-trial delay due process claims, an appellate court uses the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice).   

 

(once a post-trial delay due process analysis is triggered by a facially unreasonable delay, the four Barker factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation; an appellate court analyzes each factor and makes a determination as to whether that factor favors the government or the appellant; the court then balances its analysis of the factors to determine whether there has been a due process violation; no single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding). 

 

(unless a post-trial delay is facially unreasonable, a full due process analysis will not be triggered; an appellate court will conduct a case-by-case analysis to determine if a given delay is facially unreasonable). 

 

(under the reasons-for-the-delay Barker factor, an appellate court looks at the government’s responsibility for any delay, as well as any legitimate reasons for the delay, including those attributable to an appellant; in assessing the reasons for any particular delay, an appellate court examines each stage of the post-trial period because the reasons for the delay may be different at each stage and different parties are responsible for the timely completion of each segment).

 

(a more flexible review of post-trial delay occasioned during the period from the submission of final briefs to the decision of the court of criminal appeals is applied where the exercise of the judicial decision-making authority of a court of criminal appeals is involved). 

 

(the government bears responsibility for unreasonable delay during appeal occasioned by the workload of appellate defense counsel). 

 

(in the case of appellate delay, prejudice should be assessed by considering three similar interests for prompt appeals:  (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired).  

 

(the oppressive-incarceration-pending-appeal interest for prompt appeals is directly related to the success or failure of an appellant’s substantive appeal; if the substantive grounds for the appeal are not meritorious, an appellant is in no worse position due to the delay, even though it may have been excessive; under these circumstances, an appellant would have served the same period of incarceration regardless of the delay; however, if an appellant’s substantive appeal is meritorious and the appellant has been incarcerated during the appeal period, the incarceration may have been oppressive). 

 

(the anxiety-and-concern interest in prompt appeals involves constitutionally cognizable anxiety that arises from excessive delay; the appropriate test for the military justice system is to require an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; this particularized anxiety or concern is thus related to the timeliness of the appeal, requires an appellant to demonstrate a nexus to the processing of his appellate review, and ultimately assists this court to fashion relief in such a way as to compensate an appellant for the particular harm; the anxiety that an appellant may experience is not dependent upon whether his substantive appeal is ultimately successful; an appellant may suffer constitutionally cognizable anxiety regardless of the outcome of his appeal). 

 

(the impairment-of-ability-to-present-a-defense-at-a-rehearing interest in prompt appeals is directly related to whether an appellant has been successful on a substantive issue of the appeal and whether a rehearing has been authorized; if an appellant does not have a meritorious appeal, there obviously will be no prejudice arising from a rehearing; if, however, a conviction has been set aside and a rehearing authorized, the appellate delay encountered by the appellant may have a negative impact on his ability to prepare and present his defense at the rehearing; due to the passage of time, witnesses may be unavailable, memories may have faded and records of trial may have been misplaced or lost; in order to prevail on this factor, an appellant must be able to specifically identify how he would be prejudiced at rehearing due to the delay; mere speculation is not enough). 

 

(for courts-martial completed thirty days after May 11, 2006, CAAF will apply a presumption of unreasonable delay that will serve to trigger the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial; CAAF will apply a similar presumption of unreasonable delay for courts-martial completed thirty days after May 11, 2006, where the record of trial is not docketed by the service court of criminal appeals within thirty days of the convening authority’s action). 

 

(for those cases arriving at the service courts of criminal appeals thirty days after May 11, 2006, CAAF will apply a presumption of unreasonable delay where appellate review is not completed and a decision is not rendered within eighteen months of docketing the case before the court of criminal appeals). 

 

(the presumptions of unreasonable delay will be viewed as satisfying the first Barker factor and they will apply whether or not the appellant was sentenced to or serving confinement; it is important to note that the presumptions serve to trigger the four-part Barker analysis -- not resolve it; the government can rebut the presumption by showing the delay was not unreasonable; by using these presumptions, CAAF triggers an appellate analysis and allocates the burden). 

 

(once the four-factor Barker analysis is completed and those factors balanced, reviewing authorities that find a denial of speedy post-trial or appeal should tailor an appropriate remedy, if any is warranted, to the circumstances of the case; the nature of that relief will depend on the circumstances of the case, the relief requested, and may include, but is not limited to:  (a) day-for-day reduction in confinement or confinement credit; (b) reduction of forfeitures; (c) set aside of portions of an approved sentence including punitive discharges; (d) set aside of the entire sentence, leaving a sentence of no punishment; (e) a limitation upon the sentence that may be approved by a convening authority following a rehearing; and (f) dismissal of the charges and specifications with or without prejudice). 

 

(those cases tried or received at a court of criminal appeals prior to May 11, 2006, and therefore not encompassed by the foregoing presumptions of unreasonable delay will continue to be reviewed on a case-by-case basis under the Barker due process analysis). 

 

(dismissal of the charges with prejudice would be an option to address the denial of an appellant’s due process right to speedy review and appeal if the delay either impaired that appellant’s ability to defend against the charges at a rehearing or resulted in some other evidentiary prejudice). 

 

United States v. Magyari, 63 M.J. 123 (when an error is not objected to at trial, plain error analysis applies; to prevail under a plain error analysis, appellant must show that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right; if appellant meets his burden of showing plain error, the burden shifts to the Government to prove that any constitutional error was harmless beyond a reasonable doubt). 

 

United States v. Brisbane, 63 M.J. 106 (when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard, and conclusions of law de novo). 

 

United States v. Harmon, 63 M.J. 98 (jurisdiction is a legal question which an appellate court reviews de novo).


United States v. Simmons, 63 M.J. 89 (pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea). 

 

(a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion).


United States v. Pope, 63 M.J. 68 (in determining whether the evidence is legally sufficient, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the assessment of the legal sufficiency of the evidence is limited to the evidence presented at trial). 

 

(an appellate court reviews a military judge’s decision to admit evidence on sentencing for a clear abuse of discretion). 

 

United States v. Frederickson, 63 M.J. 55 (if an appellant makes some colorable showing of possible prejudice for the SJA’s failure to serve new matter in an SJAR addendum on the defense, an appellate court will give that appellant the benefit of the doubt and it will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment; the burden is on an appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; although the threshold is low, an appellant must demonstrate that the proffered response to the unserved addendum could have produced a different result).

United States v. Cohen, 63 M.J. 45 (when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard and conclusions of law de novo).

United States v. Quintanilla, 63 M.J. 29 (an appellate court reviews a military judge’s decision on a challenge for cause for a clear abuse of discretion).

 

(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’s ruling on a challenge for cause is given great deference; in the course of reviewing the military judge’s ruling on a challenge for cause, it is appropriate to recognize the military judge’s superior position to evaluate the demeanor of court members). 

 

(although the CAAF takes into account the views of the CCA on challenges for cause, it typically employs a direct review of the ruling of the military judge). 

 

(the CCA erred in applying a heightened standard of review on a military judge’s ruling on a challenge for cause; the careful scrutiny that accompanies capital cases is not incompatible with applying the same standard of review used in a non-capital case on a military judge’s ruling on a challenge for cause after that scrutiny has been completed). 

 

(the CCA erred in relying on a post-trial affidavit of a challenged member to assess the validity of the ruling by the military judge on that challenge where it did not identify any reason to depart from the normal practice of relying on the factual information developed in the record of trial when addressing challenges for cause). 

 

(the CAAF reviews the question of whether the remedy developed by the CCA for a military judge’s erroneous granting of a causal challenge was appropriate for an abuse of discretion). 

 

(Supreme Court precedents developed in cases arising outside the military justice system are applied as precedents in the military justice system unless distinguishable based upon unique military justice considerations).  


United States v. Politte, 63 M.J. 24 (appellate courts may use surrounding documentation to interpret an otherwise unclear convening authority’s action).

 

United States v. Dobson, 63 M.J. 1 (an appellate court reviews allegations of ineffective assistance of counsel de novo; on appellate review, there is a strong presumption that counsel was competent; a servicemember who seeks to relitigate a trial by claiming ineffective assistance of counsel must surmount a very high hurdle). 

  

(under the first prong of the test for ineffective assistance of counsel, which examines the issue of deficiency in performance, an appellate court asks: (1) are appellant’s allegations true; (2) if so, is there a reasonable explanation for counsel’s actions; and, (3) if there is not a reasonable explanation, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers). 

 

(even if counsel’s performance was deficient, the defense must surmount the second prong of the test for ineffective assistance of counsel, which measures prejudice; under this prong, the defense bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; the second prong is critical because, if an appellate court concludes that any error would not have been prejudicial under the second prong of the test for ineffective assistance of counsel, it need not ascertain the validity of the allegations or grade the quality of counsel’s performance under the first prong).

 

(an appellate court reviews the ruling on the admissibility of evidence under an abuse of discretion standard, under which it assesses whether the military judge’s findings of fact were clearly erroneous or whether the decision was influenced by an erroneous view of the law).

 

(the test for nonconstitutional evidentiary error requires an appellate court to weigh four factors: (1) the strength of the government’s case, (2) the strength of the defense’s case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

 

United States v. Buber, 62 M.J. 476 (the CAAF will overturn a CCA’s reassessment only for obvious miscarriages of justice or abuses of discretion; appellant bears the burden of showing that the CCA’s reassessment of his sentence was an abuse of discretion). 

 

(the CAAF will overturn the CCA’s reassessment of a sentence where it cannot be confident that the CCA could reliably determine what sentence the members would have imposed).

 

 United States v. Parker, 62 M.J. 459 (the decision of a military judge to reject a guilty plea will not be overturned unless it is arbitrary). 

 

United States v. Roderick, 62 M.J. 425 (when an appellant challenges the providence of his guilty plea on appeal, an appellate court considers whether there is a substantial basis in law and fact for questioning the guilty plea).  

 

(when testing for legal sufficiency, an appellate court looks at whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

 

(legal sufficiency is a question of law that an appellate court reviews de novo). 

 

(an appellate court conducts a de novo review of multiplicity claims). 

 

United States v. Wolford, 62 M.J. 418 (even though defense counsel did not object to the military judge’s instructions at the time of trial, waiver must be established by affirmative action of the accused’s counsel, and not by a mere failure to object to erroneous instructions; where there is no affirmative waiver, an appellate court reviews instructional claims de novo). 

 

(if instructional error is found and there are constitutional dimensions at play, the instructional claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence). 

 

(with respect to a legal sufficiency claim, an appellate court’s test is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

 

(an appellate court reviews a military judge’s decision to give an instruction de novo). 

 

United States v. Crawford, 62 M.J. 411 (the question whether an accused is entitled to credit for a violation of Article 13, UCMJ, is a mixed question of fact and law; whether the facts amount to a violation of Article 13, UCMJ, is a matter of law an appellate court reviews de novo). 

 

(the burden rests upon an accused to establish a violation of Article 13, UCMJ). 

 

(because the conditions of an accused’s confinement relate to both ensuring his presence for trial and the security needs of the confinement facility, and because an appellate court is reluctant to second-guess the security determinations of confinement officials, the accused bears the burden of showing that the conditions were unreasonable or arbitrary in relation to both purposes). 

 

(in dealing with post-trial, extra-record assertions of fact, an appellate court looks to the Ginn principles to determine whether it can resolve the issue without further factfinding proceedings; if an affidavit is factually adequate on its face but the appellate filings and the record as a whole compellingly demonstrate the improbability of those facts, the court may discount those factual assertions and decide the legal issue). 

 

United States v. Gaston, 62 M.J. 404 (an appellate court will set aside a plea of guilty if it finds that there is a substantial basis in law and fact for questioning the guilty plea; the court will look to the entire record to determine whether facts to support a guilty plea have been established). 

 

United States v. Gosselin, 62 M.J. 349 (an appellate court will set aside a guilty plea where it determines that there is a substantial basis in law and fact for questioning the guilty plea).

United States v. Cendejas, 62 M.J. 334 (the government bears the burden of establishing that any constitutional error that occurs at trial is harmless beyond a reasonable doubt; whether the error is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo). 

 

(if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision).

 

United States v. Gonzalez, 62 M.J. 303 (where the government fails to disclose discoverable material pursuant to a specific request, the appellant will be entitled to relief unless the government can show that nondisclosure was harmless beyond a reasonable doubt). 

 

(to show ineffective assistance of counsel, appellant must show both that his counsel’s performance was deficient and that the deficiencies were so serious as to deprive him of a fair trial; an appellant who seeks to relitigate a trial by claiming ineffective assistance of counsel must surmount a very high hurdle; there is a presumption that counsel provided adequate professional service; this presumption is rebutted only by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms; in addition, even where counsel made an error, the error must have been so prejudicial as to indicate a denial of a fair trial or a trial whose result is unreliable). 

 

(the Court of Appeals for the Armed Forces applies a three-prong test to determine if the presumption of competence has been overcome:  (1) Are the allegations true; if so, is there a reasonable explanation for counsel’s actions?; (2) If the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers?; and, (3) If defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result?; where the case can be resolved by addressing the third prong -- the question of prejudice -- first, the court need not determine whether counsel’s performance was deficient). 

 

United States v. Lonnette, 62 M.J. 296 (if a servicemember on appeal alleges error in the application of a sentence that involves forfeitures, the servicemember must demonstrate that the alleged error was prejudicial; to establish prejudice, an appellant bears the burden of demonstrating that he or she was entitled to pay and allowances at the time of the alleged error).

 

United States v. Aleman, 62 M.J. 281 (under an appellate court’s standard of review for assessing the providence of a guilty plea, the plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea).


United States v. Hill, 62 M.J. 271 (as a general matter, an appellate court presumes that a military judge knows the rules of evidence and considers testimony only for permissible purposes; that presumption is strengthened by the prompt action of a trial judge, which expressly cuts off and rejects questionable testimony; just as an appellate court presumes that the members follow the instructions of the military judge, it also presumes that a military judge adheres to his own evidentiary rulings). 

 

United States v. Capers, 62 M.J. 268 (with respect to an error in an SJA’s post-trial recommendation, the prejudice prong involves a relatively low threshold -- a demonstration of some colorable showing of possible prejudice; an appellate court’s review is de novo).


United States v. Bean, 62 M.J. 264 (an appellate court reviews allegations of error involving mandatory instructions de novo). 

 

United States v. Rosenthal, 62 M.J. 261 (the issue of waiver of post-trial submissions is a question of law reviewed under a de novo standard of review). 

 


2005
 
 

United States v. Clark, 62 M.J. 195 (a military judge’s error in releasing and admitting into evidence an accused’s privileged statements to a sanity board is not a constitutional error; because the accused requested the sanity board, he may not claim a Fifth Amendment violation because the government did not compel his appearance at the board). 

 

(for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings; an appellate court’s consideration cannot be merely whether there was enough to support the result, aside from the military judge’s error; it must also examine whether the error itself had substantial influence).


United States v. Fletcher, 62 M.J. 175 (while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused, i.e., resulted in prejudice).

 

(where the defense counsel objected to comments made during the prosecution’s findings argument, an appellate court will review them for prejudicial error).

 

(failure to object to improper argument before the military judge begins to instruct the members on findings constitutes waiver; in the absence of an objection, an appellate court reviews for plain error; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused). 

 

(in this case, trial counsel’s open criticism and personal attack upon defense counsel was error; because the error was properly preserved by objection, it is tested for prejudice under Article 59(a); in addition, trial counsel’s arguments that vouched for evidence, injected unsolicited personal views of the evidence and the accused’s guilt, suggested that the defense was a fabrication, and introduced facts not in evidence were plain and obvious error; because there was no objection to these plain and obvious errors, they are tested under the plain error doctrine to determine whether they resulted in material prejudice to a substantial right of the accused).

 

(it is not the number of legal norms violated but the impact of those violations on the trial which determines the appropriate remedy for prosecutorial misconduct; in assessing prejudice, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial).

 

(to determine the impact of prosecutorial misconduct on a trial, the best approach involves a balancing of three factors:  (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction).

 

(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone).  

 

(indicators of the severity of prosecutorial misconduct include (1) the raw numbers -– the instances of misconduct as compared to the overall length of the argument, (2) whether the misconduct was confined to the trial counsel’s rebuttal or spread throughout the findings argument or the case as a whole; (3) the length of the trial; (4) the length of the panel’s deliberations, and (5) whether the trial counsel abided by any rulings from the military judge). 

 

United States v. Hays, 62 M.J. 158 (the interpretation of solicitation under Article 134 is a question of law, which an appellate court reviews de novo). 

 

(legal sufficiency is a question of law, which an appellate court reviews de novo; the test is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

 

(an appellate court reviews a military judge’s ruling to admit or exclude evidence for an abuse of discretion).

 

(an appellate court reviews a military judge’s decision to admit expert testimony for an abuse of discretion).

 

(in challenging the providence of a guilty plea, appellant carries the burden of showing that the record of trial demonstrates a substantial basis in law and fact for questioning the plea).


United States v. Sowell, 62 M.J. 150 (an appellate court reviews a military judge’s decision to restrict an accused’s sentencing statement for abuse of discretion).  

 
United States v. Bresnahan, 62 M.J. 137 (whether a confession is voluntary is a question of law that an appellate court reviews de novo; this review requires the court to look to the totality of the circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in assessing the totality of the circumstances, the court will look to factors such as:  the mental condition of the accused; his age, education, and intelligence; the character of the detention, including the conditions of the questioning and rights warning; and the manner of the interrogation, including the length of the interrogation and the use of force, threats, promises, or deceptions). 

 

(a military judge’s ruling on a request for expert assistance will not be overturned absent an abuse of discretion; to reverse for an abuse of discretion involves far more than a difference in opinion). 

 

(if an appellate court concludes that uncharged misconduct evidence was erroneously admitted, the military judge’s decision will not be overturned unless the error materially prejudices the substantial rights of the accused). 

 

(because a lower appellate court’s application of harmless error factors is a question of law, a superior appellate court will review the lower court’s application of the harmlessness factors de novo).


United States v. Warner, 62 M.J. 114 (there is no litmus test standard for determining whether a substitute for a defense-requested expert is adequate; rather, this is a fact-intensive determination that is committed to the military judge’s sound discretion). 

 

(in construing Article 46, UCMJ (10 USC 846), an appellate court cannot simply defer to the rules contained within the MCM; as a congressional statute, Article 46 prevails over any limiting interpretation of an MCM provision; to the extent that Article 46 provides rights beyond those contained within the MCM rule on the production of witnesses and evidence (RCM 703), it is an appellate court’s judicial duty to enforce the statutorily-established rights). 

 

United States v. Scheurer, 62 M.J. 100 (the standard of review on a question of legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the Government, a reasonable factfinder could find each element of the offense beyond a reasonable doubt).

 

United States v. Reeves, 62 M.J. 88 (for an appellate court to reject a guilty plea on appellate review, the record of trial must show a substantial basis in law and fact for questioning the plea). 

 

(interpretation of a statute and its legislative history are questions of law that an appellate court reviews de novo)

 

United States v. Martinelli, 62 M.J. 52 (for an appellate court to reject a guilty plea on appellate review, the record of trial must show a substantial basis in law and fact for questioning the plea). 

 

(interpretation of a statute and its legislative history are questions of law that an appellate court reviews de novo).


United States v. Disney, 62 M.J. 46 (the constitutionality of an act of Congress is reviewed by an appellate court de novo).


United States v. Johnson, 62 M.J. 31 (a military judge’s ruling on admissibility of evidence is reviewed for an abuse of discretion; to be overturned on appeal, the military judge’s ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous, or influenced by an erroneous view of the law). 

 

(an appellate court tests the erroneous admission of evidence to determine whether the error materially prejudiced the substantial rights of the accused; for a nonconstitutional error, the government must demonstrate that the error did not have a substantial influence on the findings; in the case of erroneously admitted government evidence, the court weighs:  (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and, (4) the quality of the evidence in question).


United States v. Barrier, 61 M.J. 482 (an appellate court reviews a military judge’s decision to give a sentencing instruction for an abuse of discretion; however, the military judge has considerable discretion in tailoring instructions to the evidence and law). 


United States v. Brewer, 61 M.J. 425 (an appellate court reviews a military judge’s decision to admit or exclude evidence for abuse of discretion). 

 

(where there is no objection to an instruction at trial, an appellate court will provide relief only if it finds plain error; to meet the test for plain error, an appellant must show that there was error, the error was plain or obvious, and the error materially prejudiced his substantial rights; if the appellant meets this test, the burden shifts to the government to show that the error was harmless beyond a reasonable doubt; the court reviews these questions de novo). 

 

(to determine whether there was an instructional error in a military judge’s instruction to the members on the permissive inference of wrongful use in a use-of-drugs case, an appellate court asks whether a reasonable member could have interpreted the instruction to create a mandatory presumption of wrongfulness in favor of the government).


(where an appellate court finds a constitutional error, it must evaluate whether the government has shown that the error was harmless beyond a reasonable doubt).


United States v. Fischer, 61 M.J. 415 (the question of whether an accused is entitled to credit for an Article 13 violation is reviewed de novo; it is a mixed question of law and fact, and the military judge’s findings of fact will not be overturned unless they are clearly erroneous; the accused bears the burden of proof to establish a violation of Article 13).


United States v. Griggs, 61 M.J. 402 (an appellate court’s standard of review for challenges to legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt; the court draws every reasonable inference from the record in favor of the prosecution).

 

(an appellate court reviews a military judge’s decision to exclude evidence for an abuse of discretion; and a ruling based on an erroneous view of the law constitutes an abuse of discretion). 

 

(an appellate court tests the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial to determine if the error substantially influenced the adjudged sentence; if so, then the result is material prejudice to an accused’s substantial rights)


United States v. Harris, 61 M.J. 391 (a guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea; an appellate court reviews de novo the military judge’s legal conclusion that an accused’s pleas were provident).

United States v. Forbes, 61 M.J. 354 (an appellate court considers allegations of error involving mandatory instructions under a de novo standard of review; it reviews issues concerning non-mandatory instructions for an abuse of discretion). 

 

(because MRE 301(g) requires a balancing of both mandatory and non-mandatory components, the standard of review must take into account the specific attributes of the rule; when a military judge gives a failure-to-testify instruction over defense objection after having identified the case-specific “interests of justice” that support his decision and articulating his analysis of those interests relative to the defense election, then he should be accorded great deference under a standard of review of abuse of discretion; if he identifies the interests of justice in question but does not articulate his balancing of those interests with the defense election, he is accorded less deference; if he does not identify interests of justice at all, the standard of review is de novo). 

 

(when a military judge commits error by giving a failure-to-testify instruction over defense objection in the absence of articulated case-specific interests of justice, a presumption of prejudice results; the government then bears the burden of showing by a preponderance of the evidence why the appellant was not prejudiced by the instruction; in this case, the government did not carry its burden of rebutting the presumption of prejudice where the prosecution’s evidence, while strong, was not dispositive of the factual and legal issues of guilt and where the defense offered serious and repeated objections to the instruction).


United States v. Rollins, 61 M.J. 338 (when the convening authority acts to correct errors in the results of trial, an appellate court reviews that action to determine whether the convening authority has cured any prejudice flowing from the erroneous treatment of the statute of limitations at trial).

 

(an appellate court reviews constitutional and legal sufficiency claims de novo). 

 

(to determine whether the evidence is legally sufficient, an appellate court assesses whether any reasonable factfinder could have found the essential elements beyond a reasonable doubt, considering the evidence in the light most favorable to the prosecution; in resolving this question, that court is required to draw every reasonable inference from the record in favor of the prosecution).


United States v. Deisher, 61 M.J. 313 (an appellate court employs a de novo standard of review to assess the rulings of the military judge concerning the lawfulness of the charged order, including his decision to submit the issue of lawfulness to the court-martial panel). 

United States v. Kreutzer, 61 M.J. 293 (the erroneous denial in capital cases of an accused’s request for the expert assistance of a mitigation specialist to aid in the preparation of the case, is a denial of due process, and as an error of constitutional magnitude, it must be tested for prejudice under the standard of harmless beyond a reasonable doubt).  

 

(the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence; an appellate court will reverse a conviction unless it finds that a constitutional error was not a factor in obtaining that conviction; when constitutional error is substantial, and where that error contributes to a conviction, the conviction cannot stand). 

 

(an appellate court reviews de novo the issue of whether a constitutional error was harmless beyond a reasonable doubt). 

 

(the party benefiting from a constitutional error bears the burden of demonstrating that the error was harmless beyond a reasonable doubt; in this case, as the party benefiting from the constitutional error of denying the request for a mitigation specialist, the government is called upon to show that the error had no causal effect upon the findings; specifically, the government had to demonstrate that there was no reasonable possibility that the absence of a mitigation specialist contributed to the contested findings of guilty). 

 

(if an appellant establishes that counsel was ineffective under the first prong of Strickland, it is the appellant as opposed to any party benefiting from error who bears the burden of demonstrating prejudice).  

 

(to establish prejudice for ineffective assistance of counsel, the appellant must demonstrate a reasonable probability that, but for counsel’s deficiency, the result would have been different; the appellant must demonstrate such prejudice as to indicate a denial of a fair trial, a trial whose result is unreliable). 

 

(the tests for determining constitutional harmless error and for determining prejudice under an ineffective assistance analysis are substantially different:  the burden falls on different parties (the government vs. the appellant); the burdens themselves are different (possibility vs. probability); and different considerations are given to the quality and weight of the evidence of guilt in each test; in applying the two tests, it is therefore not unreasonable or illogical to come to two different conclusions, even in a single case). 

 

(in this case, the erroneous denial of the accused’s request for a mitigation specialist was error of constitutional magnitude; as such, the government had to show that there was no reasonable possibility that even a single court member might have harbored a reasonable doubt as to the premeditation element in light of the mental health evidence that the mitigation specialist could have gathered, analyzed, and assisted the defense to present; had but a single member harbored a reasonable doubt, death would have been excluded as a permissible punishment; in light of these factors, including the relative inexperience and lack of training of the accused’s defense counsel in capital litigation and the wealth of evidence relating to the accused’s dubious mental health, the government failed to meet its burden of demonstrating that the error in denying the accused’s request for employment of a mitigation specialist was harmless beyond a reasonable doubt as to the contested findings of premeditated murder and attempted premeditated murder).


United States v. Alexander, 61 M.J. 266 (this Court reviews jurisdictional questions de novo; however, where an error is procedural rather than jurisdictional in nature, this Court tests for material prejudice to a substantial right to determine whether relief is warranted).


United States v. Dooley, 61 M.J. 258 (under RCM 707, the military judge is directed to apply certain factors in determining a remedy for a speedy trial violation, and then decide whether those factors lead to the conclusion that the case should be dismissed with or without prejudice; under an abuse of discretion standard, mere disagreement with the conclusion of the military judge who applied the RCM 707 factors is not enough to overturn his judgment; the standard requires that the military judge be clearly wrong in his determination of the facts or that his decision be influenced by an erroneous view of the law). 

 

(a military judge’s decision to dismiss a case with prejudice for an RCM 707 speedy trial violation can be reversed only for a clear abuse of discretion; the military judge’s decision should be affirmed unless his factual findings are clearly erroneous or his decision in applying the RCM 707 speedy trial factors was influenced by an incorrect view of the law).


United States v. Leak, 61 M.J. 234 (whether the elements of an offense are met is based on a totality of the circumstances).


United States v. Erickson, 61 M.J. 230 (this Court reviews the military judge’s acceptance of an appellant’s guilty plea for abuse of discretion; the test is whether there is a substantial basis in law and fact for questioning the guilty plea).

United States v. King, 61 M.J. 225 (a determination of whether an accused has endured unlawful pretrial punishment involves both constitutional and statutory considerations; this Court defers to the findings of fact by the military judge where those findings are not clearly erroneous; however, this Court’s application of those facts to the constitutional and statutory considerations, as well as any determination of whether an accused is entitled to credit for unlawful pretrial punishment involve independent, de novo review).

 

(an accused has the burden of establishing his entitlement to additional sentence credit because of a violation of Article 13, UCMJ).


United States v. Johnson, 61 M.J. 195 (a military judge’s ruling on a petition for a new trial is reviewed for abuse of discretion).

(an abuse of discretion occurs if the findings of fact upon which a ruling was predicated were not supported by evidence of record, if incorrect legal principles were used, or if the application of correct legal principles to the facts of a particular case was clearly unreasonable).

United States v. Bethea, 61 M.J. 184 (a military judge’s determination of whether probable cause existed to support a search authorization is reviewed for an abuse of discretion; the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed; in reviewing probable cause determinations, courts must look at the information made known to the authorizing official at the time of his decision; and the evidence must be considered in the light most favorable to the prevailing party).

United States v. Saintaude, 61 M.J. 175 (claims that attorney conflicts of interest resulted in the denial of an accused’s constitutional right to the effective assistance of counsel are reviewed de novo). 

 

(to demonstrate ineffective assistance of counsel, appellant must surmount a very high hurdle by showing: (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed appellant by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive appellant of a fair trial, a trial whose result is reliable).

 

(if the Court concludes that any error would not have been prejudicial under the second prong of Strickland, it need not ascertain the validity of the allegations or grade the quality of counsel’s performance under the first prong). 

 

(conflicts of interest, like other actions by an attorney that contravene the canons of legal ethics, do not necessarily demonstrate prejudice under the second prong of Strickland; although cases involving concurrent representation of multiple clients have been treated as inherently prejudicial, not all attorney conflicts present comparable difficulties, and most cases will require specifically tailored analyses in which appellant must demonstrate both the deficiency and prejudice under the standards set by Strickland). 

 

(appellate courts have applied varying approaches to the question of whether a conflict of interest should be viewed as inherently prejudicial if the conflict does not involve multiple representation; under this Court’s precedents, the question of whether there is inherent prejudice in a conflict between the self-interest of an attorney and the interests of the client must be assessed on a case-by-case basis).

 

(under Strickland, identification of a potential deficiency is not sufficient; to surmount the high hurdle presented by the second prong of Strickland, an appellant must demonstrate specific prejudice).

 

(when this Court applies Strickland to alleged deficiencies in counsel’s performance, it asks the following questions:  (1) Are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case?  (2) If they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers? and (3) If ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?).


United States v. Billings, 61 M.J. 163 (this Court reviews military judges’ decisions regarding expert witnesses for abuse of discretion). 

 

(the trial judge enjoys a great deal of flexibility in his or her gatekeeping role on the admissibility of expert testimony). 

 

(when this Court reviews a military judge’s decision for an abuse of discretion, the challenged action must be found to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous in order to be invalidated on appeal).


United States v. Taylor, 61 M.J. 157 (this Court reviews a military judge’s ruling on evidentiary matters for an abuse of discretion).

United States v. James, 61 M.J. 132 (in evaluating a military judge’s ruling on a challenge for cause, this Court recognizes the military judge’s superior position to evaluate the demeanor of court members; a military judge’s ruling on a challenge for cause will therefore not be reversed absent a clear abuse of discretion).

United States v. Mizgala, 61 M.J. 122 (the standard of diligence under which this Court reviews claims of a denial of speedy trial under Article 10 is not constant motion, but reasonable diligence in bringing the charges to trial; short periods of inactivity are not fatal to an otherwise active prosecution; further, although Sixth Amendment speedy trial standards cannot dictate whether there has been an Article 10 violation, the factors from Barker v. Wingo are an apt structure for examining the facts and circumstances surrounding an alleged Article 10 violation). 

 

(this Court’s framework to determine whether the Government proceeded with reasonable diligence under Article 10, UCMJ, includes balancing the following four Barker v. Wingo factors:  (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant). 

 

(this Court reviews the decision of whether an accused has received a speedy trial de novo as a legal question, giving substantial deference to a military judge’s findings of fact that will be reversed only if they are clearly erroneous).


United States v. Richardson, 61 M.J. 113 (a military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion; military judges are afforded a high degree of deference on rulings involving actual bias; by contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo; as this Court has often stated, implied bias is reviewed under an objective standard, viewed through the eyes of the public, and it is intended to address the perception or appearance of fairness of the military justice system; actual bias, on the other hand, tests the expressed views of members; challenges for actual or implied bias are evaluated based on a totality of the circumstances). 

 

(the discretion of the military judge in the conduct of voir dire is not without limits; the standard of review is whether there was a clear abuse of discretion by the judge in denying individual or group voir dire). 

 

United States v. Reeves, 61 M.J. 108 (evidence is legally sufficient if, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements of the crime beyond a reasonable doubt; every reasonable inference from the evidence of record is drawn in favor of the prosecution in resolving questions of legal sufficiency).


United States v. Berry, 61 M.J. 91 (a military judge abuses his discretion if his application of the correct legal principles to the facts is clearly unreasonable). 

(where the military judge is required to do a balancing test under MRE 403 and does not sufficiently articulate his balancing on the record, his evidentiary ruling will receive less deference by an appellate court). 

(a finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of an accused; for a nonconstitutional error such as an erroneous admission of evidence on the merits of a case, the Government has the burden of demonstrating that the error did not have a substantial influence on the findings; in evaluating whether an erroneous admission of Government evidence is harmless, an appellate court uses a four-part test, weighing:  (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 


United States v. Jones, 61 M.J. 80 (whether appellant has established prejudice with respect to his right to a speedy post-trial review is a legal question subject to de novo review). 


United States v. Cano, 61 M.J. 74 (where an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt). 

 

(as CAAF reviews issues of prejudice from erroneous evidentiary rulings de novo, it can apply the correct “harmless beyond a reasonable doubt” standard in its review).


United States v. Datz, 61 M.J. 37 (a military judge’s ruling on admissibility of evidence is reviewed for abuse of discretion; in order to be overturned on appeal, the judge’s ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous, or influenced by an erroneous view of the law).


United States v. Carter, 61 M.J. 30 (in the absence of objection to trial counsel’s argument on findings, we review for plain error). 


United States v. Brooks, 60 M.J. 495 (the test for legal sufficiency requires appellate courts to review the evidence in the light most favorable to the Government; if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient).

United States v. Israel, 60 M.J. 485 (trial rulings limiting cross-examination are reviewed for abuse of discretion). 

 

(where alleged errors affect an accused’s constitutional right to confront the witnesses against him, if this Court finds that the military judge abused his discretion, it will reverse unless the error was harmless beyond a reasonable doubt).

 

(where an error constitutes a violation of the defendant’s constitutional rights, this Court will reverse unless the error was harmless beyond a reasonable doubt).

 
United States v. Strother, 60 M.J. 476 (we review the military judge’s ruling on a motion to disqualify counsel under an abuse of discretion standard).

 

United States v. Davis, 60 MJ 469 (in reviewing claims that counsel rendered ineffective representation, we apply the two-pronged test for ineffective assistance of counsel set forth by the Supreme Court in Strickland v. Washington; the burden on each prong rests with the appellant challenging his counsel’s performance; first, an appellant must show that counsel’s performance fell below an objective standard of reasonableness -– that counsel was not functioning as counsel within the meaning of the Sixth Amendment; our review of counsel’s performance is highly deferential and is buttressed by a strong presumption that counsel provided adequate professional service; thus, an appellant’s burden is especially heavy on this deficiency prong of the Strickland test; an appellant must establish a factual foundation for a claim of ineffectiveness; second-guessing, sweeping generalizations, and hindsight will not suffice; the presumption of competence is rebutted by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms; the second prong of an appellant’s burden requires a showing of prejudice flowing from counsel’s deficient performance; the appellant must demonstrate such prejudice as to indicate a denial of a fair trial or a trial whose result is unreliable; the appropriate test for prejudice under Strickland is whether there is a reasonable probability that, but for counsel’s error, there would have been a different result).

 

(ineffective assistance of counsel involves a mixed question of law and fact; factual findings are reviewed under a clearly erroneous standard; but the ultimate determinations of whether an appellant received ineffective assistance of counsel and whether the error was prejudicial are reviewed de novo). 

 

(under the first prong of Strickland v. Washington, we have created a three-part test for determining whether the presumption of competence has been overcome: (1) we ask first whether the appellant's allegations are true and, if so, whether there is a reasonable explanation for counsel’s actions; (2) next, if the allegations are true, we review whether defense counsel’s level of advocacy fell measurably below the performance standards ordinarily expected of fallible lawyers; and (3) finally, if we find that defense counsel was ineffective, we test for prejudice and determine whether there is a reasonable probability that, absent the error, there would have been a different result). 


United States v. Meghdadi, 60 M.J. 438 (although we have not directly addressed the standard to be applied in examining a military judge’s denial of a request for a post-trial Article 39(a) session, we have held that when an appellant requests the convening authority to order a post-trial Article 39(a) session, it is a matter for the convening authority’s sound discretion whether to grant the request, and that we review a military judge’s ruling on a petition for a new trial for abuse of that discretion).

 

(in denying a petition for a new trial, a military judge abuses his discretion if the findings of fact upon which he predicates his ruling are not supported by evidence of record; if incorrect legal principles were used by him in deciding this motion; or if his application of the correct legal principles to the facts of a particular case is clearly unreasonable; while this standard is not facially applicable to the military judge’s denial of appellant’s request for an Article 39(a) session, the fact that the request was made in the context of a motion for new trial compels our consideration of this analytical framework in assessing the military judge’s factual and legal conclusions).

 

United States v. Scalo, 60 M.J. 435 (if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis; we conduct a de novo review of this issue). 

 

(under the plain error analysis, appellant has the burden to establish that the error materially prejudiced a substantial right; in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make some colorable showing of possible prejudice).


United States v. Williams, 60 MJ 360 (when a claim involves an interpretation of the pretrial agreement, this Court’s review is de novo).



2004

 

United States v. Stirewalt, 60 MJ 297 (where the issue of unlawful command influence has been litigated on the record, CAAF reviews the military judge's findings of fact under a clearly erroneous standard; the question of command influence flowing from those facts, however, is a question of law that CAAF reviews de novo). 

 

(a violation of RCM 405(d)(1) must be measured for prejudice).

 

United States v. Collins, 60 MJ 261 (the question of whether an additional psychiatric examination is necessary rests within the discretion of the military judge and is reviewable only for abuse of discretion; thus, an appellate court tests a military judge’s decision whether to order additional inquiry into an accused’s mental responsibility for abuse of discretion; an abuse of discretion occurs if the findings of fact upon which the judge predicated his ruling were not supported by the evidence of record, if incorrect legal principles were used by him in deciding the matter, or if his application of the correct legal principles to the facts of the case was clearly unreasonable). 


United States v. Rodriguez, 60 MJ 239  (a military judge’s ruling on a request for production of evidence is reviewed for an abuse of discretion).

 

United States v. Banker, 60 MJ 216 (this Court reviews a military judge’s decision to exclude evidence under MRE 412 for an abuse of discretion).

United States v. Marcum, 60 MJ 198 (a constitutional question is reviewed de novo). 

 

(the application of Lawrence v. Texas, 539 U.S. 558 (2003) to consensual conduct charged under Article 125, UCMJ, must be addressed in context and not through a facial challenge; the question this Court must ask is whether Article 125 is constitutional as applied to the charged conduct; this as-applied analysis requires consideration of three questions:  First, was the conduct that the accused was found guilty of committing of a nature to bring it within the liberty interest identified by the Supreme Court?  Second, did the conduct encompass any behavior or factors identified by the Supreme Court as outside the analysis in Lawrence?  539 U.S. at 578.  Third, are there additional factors relevant solely in the military environment that affect the nature and reach of the Lawrence liberty interest?). 

 

(whether an appellant suffers prejudicial error when his trial defense counsel reveals a privileged communication during the sentencing phase of trial is a mixed question of law and fact reviewed de novo).

 

United States v. Taylor, 60 MJ 190 (whether a staff judge advocate or convening authority is disqualified from participating in the post-trial review is a question of law that we review de novo; as we conduct our analysis, the defense has the initial burden of making a prima facie case for disqualification). 

 

(in a case involving clemency, prejudice can only address possibilities in the context of an inherently discretionary act; accordingly, where post-trial errors occur, we will order a new review only if the defense makes some colorable showing of possible prejudice).


United States v. Gore, 60 MJ 178 (where a military judge decides that command influence cannot be cured and dismisses the charges with prejudice, we consider whether the military judge erred in fashioning this remedy for the unlawful command influence that tainted the proceedings; we review the remedy ordered by the military judge for an abuse of discretion).

 

(an abuse of discretion means that when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors). 

 

(we will reverse for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law; the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range).

 

United States v. Dowty, 60 MJ 163 (the issue of impermissible screening of the panel pool is one that invites de novo review; however, the military judge’s findings of fact are binding unless they are clearly erroneous).

 

(the defense shoulders the burden of establishing the improper exclusion of qualified personnel from the selection process; once the defense establishes such exclusion, the Government must show by competent evidence that no impropriety occurred when selecting appellant’s court-martial members). 

 

(the Government has the burden to demonstrate that the error in preliminarily screening the members by asking for volunteers to serve on a court-martial panel did not materially prejudice the substantial rights of the accused; in evaluating the prejudice, this Court focuses on the motive of those involved in the preliminary screening of panel members, the nature of the preliminary screening variable of volunteerism, and its impact on the selection of the members).

 

United States v. McCrimmon, 60 MJ 145 (this Court will not set aside a guilty plea on appeal unless there is a substantial basis in law and

fact for questioning the plea; appreciating the tendency of persons accused of criminal offenses to rationalize their behavior, this Court permits the military judge in a borderline case to give weight to the defense evaluation of the evidence).

 

United States v. Negron, 60 MJ 136 (in evaluating the providence of a plea, the entire record should be considered; to prevail on a challenge to the providence of a plea, appellant has the burden to demonstrate a substantial basis in law and fact for questioning the guilty plea).


United States v. Cuento, 60 MJ 106  (voluntariness of a confession is a question of law that an appellate court independently reviews, de novo). 

 

(our standard of review on petitions for new trial is deferential; we review only for an abuse of discretion).

 

(when presented with a petition for new trial, the reviewing court must make a credibility determination, insofar as it must determine whether the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused; the reviewing court does not determine whether the proffered evidence is true; nor does it determine the historical acts; it merely decides if the evidence is sufficiently believable to make a more favorable result probable).

 

(we find a Court of Criminal Appeals has abused its discretion when we reach a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors; this is a textbook standard and involves more than a mere difference of opinion).

 

United States v. Toohey, 60 MJ 100 (this Court’s review of post-trial delay involves a determination of whether a prejudicial error of law has occurred).


United States v. Pauling, 60 MJ 91 (whether two offenses are facially duplicative is a question of law that we will review de novo; two offenses are not facially duplicative if each requires proof of a fact which the other does not; rather than constituting a literal application of the elements test, determining whether two specifications are facially duplicative involves a realistic comparison of the two offenses to determine whether one is rationally derivative of the other; this analysis turns on both the factual conduct alleged in each specification and the providence inquiry conducted by the military judge at trial).

 

(unreasonable multiplication of charges is reviewed for an abuse of discretion).


United States v. Seay, 60 MJ 73 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, when he is incorrect about the applicable law, or when he improperly applies the law).  

 

(the test for legal sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this Court reviews questions of legal sufficiency de novo).

United States v. Barton, 60 MJ 62 (when considering the adequacy of a plea, this Court considers the entire record to determine whether the dictates of Article 45, UCMJ, Rule for Courts-Martial 910, and Care and its progeny have been met; we will not overturn the acceptance of a guilty plea unless there is a substantial basis in law and fact for doing so).


United States v. Pinero, 60 MJ 31 (guilty pleas are rejected on appellate review only when the record of trial shows a substantial basis in law and fact for questioning the plea).

United States v. Irvin, 60 MJ 23 (for this Court to reject a guilty plea on appellate review, the record of trial must show a substantial basis in law and fact for questioning the plea).

 

United States v. Mason, 60 MJ 15 (for this Court to reject a guilty plea on appellate review, the record of trial must show a substantial basis in law and fact for questioning the plea).

United States v. Byrd, 60 MJ 4 (like other evidentiary rulings, a military judge’s application of MRE 701 is reviewed for an abuse of discretion; a trial judge’s ruling is entitled to due deference; this Court will reverse for an abuse of discretion only if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law).


United States v. Simmons, 59 MJ 485 (under Chapman v. California, 386 U.S. 18 (1967), a reviewing court must declare the impact of a constitutional error to be harmless beyond a reasonable doubt in order to affirm the resultant conviction; the government bears the burden of establishing that any constitutional error is harmless beyond a reasonable doubt; whether the error is harmless beyond a reasonable doubt is a question of law that we review de novo; the inquiry under the Chapman analysis is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdicts obtained).

United States v. Strand, 59 MJ 455  (a judge’s decision whether or not to excuse a member sua sponte is subsequently reviewed for an abuse of discretion).  

 

(this Court has given the military judge great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member; this Court, however, gives less deference to the military judge when reviewing a finding on implied bias because it is objectively viewed through the eyes of the public).

 

(implied bias is viewed through the eyes of the public, focusing on the appearance of fairness; as a result, an objective standard is used when reviewing the judge’s decision regarding implied bias; thus, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo).  

 

(this Court has generally found that when there is no actual bias, implied bias should be invoked rarely; due process does not require a new trial every time a juror has been placed in a potentially compromising situation; instead, this Court has observed that implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e. biased]); in making judgments regarding implied bias, this Court looks at the totality of the factual circumstances).

 

United States v. McDonald, 59 MJ 426 (a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard; we will not overturn a military judge’s evidentiary decision unless that decision was arbitrary, fanciful, clearly unreasonable, or clearly erroneous; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).

 

United States v. Mason, 59 MJ 416 (this Court reviews for an abuse of discretion the military judge’s decision to admit a blood sample into evidence). 

 

(a military judge’s finding of fact is binding on this Court unless it is shown to be clearly erroneous).

 

(for this Court to affirm despite an error of constitutional dimension, the error must be harmless beyond a reasonable doubt; the essential question is what effect the error had or reasonably may be taken to have had upon the court’s decision).

 

United States v. Quick, 59 MJ 383 (this Court reviews the decision of the Court of Criminal Appeals on the issue of ineffective assistance of counsel de novo as a question of law.).

 

(the Supreme Court in Strickland established a two-prong test for ineffective assistance of counsel; first, appellant must show that counsel’s performance was deficient; and second, appellant must show that the deficient performance prejudiced the defense).

 

(the burden on an appellant to show ineffective assistance of counsel is heavy because counsel is presumed to have performed in a competent, professional manner; to overcome this presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms).

 

(there is no particular order that must be followed in analyzing an ineffective assistance of counsel claim; a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed).

United States v. Giles, 59 MJ 374 (we review a military judge’s decision on whether to grant a severance motion for an abuse of discretion; if the motion has been denied, the appellant must demonstrate more than the fact that separate trials would have provided a better opportunity for an acquittal; the appellant must show that the ruling caused actual prejudice by preventing the appellant from receiving a fair trial; in conducting such a review, we apply the three-pronged test articulated in United States v. Curtis, 44 M.J. 106, 128 (C.A.A.F. 1996): (1) Do the findings reveal an impermissible crossover of evidence? (2) Would the evidence of one offense be admissible proof of the other? (3) Did the military judge provide a proper limiting instruction?).

 

United States v. Adams, 59 MJ 367 (claims that appellate defense counsel have rendered ineffective assistance are measured by the same test applicable to such claims lodged against a trial defense counsel; thus, we are guided by the Supreme Court’s two-pronged test set forth in Strickland v. Washington; as applied to the appellate setting, this test places the burden on an appellant to show both deficient performance by appellate defense counsel and prejudice; an appellant meets his burden on deficient performance when he demonstrates that his appellate counsel’s performance was so deficient that it fell below an objective standard of reasonableness; the burden to show prejudice is met when the appellant shows that appellate counsel’s errors were so serious as to deprive the appellant of a fair appellate proceeding whose result is reliable). 

 

(an appellant’s burden on the deficiency prong of Strickland v. Washington is heavy because counsel is presumed to have performed in a competent, professional manner; to overcome this presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms).

 

(we apply a three-part test to determine whether an appellant has overcome the presumption of competence: (1) are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions; (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, there would have been a different result).

 

(we review an appellate defense counsel’s effectiveness de novo as a question of law).

 

(there is no particular order in which the two components of the Strickland v. Washington test must be addressed; a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; the object of an ineffectiveness claim is not to grade counsel’s performance; if it is easier to dispose of an ineffective claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed).

 

(in analyzing an appellant’s claim of ineffective appellate representation, we do not look at the shortcomings of any single counsel and speculate about the impact of individual errors; rather, we measure the impact upon the proceedings by the combined efforts of the defense team as a whole).

 

United States v. Hudson, 59 MJ 357 (whether an offense is a lesser-included offense is a matter of law that this Court will consider de novo).

United States v. Henderson, 59 MJ 350 (the jurisdiction of a special court-martial over a non-mandatory capital offense is a legal question which we review de novo).

 

United States v. Roberts, 59 MJ 323 (our review of discovery/disclosure issues utilizes a two-step analysis:  first, we determine whether the information or evidence at issue was subject to disclosure or discovery; second, if there was nondisclosure of such information, we test the effect of that nondisclosure on the appellant’s trial).

(an appellate court reviews a military judge’s decision on a request for discovery for abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, when he is incorrect about the applicable law, or when he improperly applies the law).

(the military judge’s determination of the materiality of defense-requested discovery evidence is a question of law that we review de novo).

(an appellate court reviews the materiality of the erroneously withheld information in terms of the impact that information would have had on the results of the trial proceedings).

(this Court has adopted two appellate tests for determining materiality with respect to the erroneous nondisclosure of discoverable evidence; the first test applies to those cases in which the defense either did not make a discovery request or made only a general request for discovery; once the appellant demonstrates wrongful nondisclosure under those circumstances, the appellant will be entitled to relief only by showing that there is a reasonable probability of a different result at trial if the evidence had been disclosed; the second test is unique to our military practice and reflects the broad nature of discovery rights granted the military accused under Article 46; where an appellant demonstrates that the government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the government can show that nondisclosure was harmless beyond a reasonable doubt).

(although the military judge conducted an in camera review of the disputed evidence under R.C.M. 701(g)(2), we review that ruling as a matter of law, giving no deference to that ruling under our de novo standard of review; similarly, the appellate standard of review for assessing the impact of improper nondisclosure is not deferential because we are not reviewing any trial level decision; our appellate assessment of impact is no different regardless of whether the discovery issue was ruled on by the military judge under R.C.M. 701(g)(2) or whether it arose from a government decision to withhold certain evidence that was not discovered until after trial).

United States v. Cain, 59 MJ 285 (our Court reviews claims of ineffective assistance of counsel de novo).

 

United States v. Wiest, 59 MJ 276 (our standard of review for a trial judge’s refusal to grant a continuance request is abuse of discretion; in determining whether the judge abused his discretion, we consider the factors articulated in United States v. Miller 47 M.J. 352 (C.A.A.F. 1997): surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witness or evidence requested, length of continuance, prejudice to opponent, moving party received prior continuances, good faith of moving party, use of reasonable diligence by moving party, possible impact on verdict, and prior notice).

 
2003

United States v. Springer, 59 MJ 164 (the test for legal sufficiency of evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt; furthermore, this Court will draw every reasonable inference from the evidence of record in favor of the prosecution).

(the Court reviews a military judge's decision to admit evidence for abuse of discretion; if the military judge makes findings of fact, the Court reviews the findings under a clearly erroneous standard of review; the Court reviews conclusions of law de novo).

United States v. Diaz, 59 MJ 79 (this Court will not reverse the military judge’s decision on a motion for mistrial absent clear evidence of abuse of discretion).

(when an error impacts appellant’s constitutional rights, an appellate court cannot affirm the findings unless it determines beyond a reasonable doubt that the error did not contribute to the findings of guilty; the focus is not on whether the members were right in their findings but, rather, on whether the error had or reasonably may have had an effect upon the members’ findings).

(the government bears the burden of establishing that constitutional error is harmless beyond a reasonable doubt; the appellate court examines all the circumstances to determine whether the error was harmless beyond a reasonable doubt).

(whether a constitutional error in admitting evidence is harmless beyond a reasonable doubt is a question of law that will be reviewed de novo).

United States v. Mapes, 59 MJ 60 (the question of whether the Government has shown, by a preponderance of the evidence, that it has based the accused’s prosecution on sources independent of the immunized testimony is a preliminary question of fact; this Court will not overturn a military judge’s resolution of that question unless it is clearly erroneous or is unsupported by the evidence).

United States v. Donaldson, 58 MJ 477 (we review a military judge's ruling on the admissibility of evidence for abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact).

(a military judge’s determination that a patient made a statement for the purpose of medical diagnosis or treatment out of an expectation of receiving medical benefit is a question of fact that we review for clear error).

(a court's factual findings on the existence of circumstantial guarantees of trustworthiness for purposes of the residual hearsay exception are reviewed for clear error; we accord a military judge considerable discretion in admitting evidence as residual hearsay).

United States v. Feltham, 58 MJ 470 (the standard of review of a military judge’s ruling admitting or excluding an excited utterance is an abuse of discretion; this Court will reverse for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law).

United States v. Moore, 58 MJ 466 (the legality of an order is a question of law that we review de novo).

United States v. O'Connor, 58 MJ 450 (for this Court to set aside a finding based upon a guilty plea on appellate review, the record of trial must show a substantial basis in law and fact for questioning the guilty plea).

(in order for this Court to find appellant's plea provident, his plea inquiry and the balance of the record must objectively support the existence of a factual predicate for the offense).

United States v. Robinson, 58 MJ 429 (we review issues involving reasonable suspicion that a person was engaged in criminal activity de novo).

(when we review a military judge’s ruling to admit or suppress evidence, we review the military judge’s factfinding under the clearly-erroneous standard and conclusions of law de novo).

(although the military judge erroneously concluded that the police officer had probable cause to stop appellant for a traffic violation, the military judge’s error was harmless, because the military judge reached the correct result, albeit for the wrong reason; the facts found by the military judge were sufficient to establish the police officer's reasonable suspicion for an investigative stop).

United States v. Wellington, 58 MJ 420 (a military judge’s decision to admit residual hearsay is entitled to considerable discretion on appellate review).

United States v. Simpson, 58 MJ 368 (the issue of whether a court-martial panel was properly instructed is a question of law, which we review de novo).

(for appellate consideration of command influence, the defense must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness; in the course of addressing these issues, appellate courts must consider apparent as well as actual unlawful command influence).

United States v. McMahon, 58 MJ 362 (we review a military judge’s evidentiary ruling for abuse of discretion; the military judge’s findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record; we review conclusions of law de novo; we will reverse for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law).

United States v. Pipkin, 58 MJ 358 (we review the denial of a motion to suppress a confession for an abuse of discretion, and we leave a military judge’s findings of fact undisturbed unless they are clearly erroneous).

(the Government has the burden of establishing compliance with rights warning requirements by a preponderance of the evidence).

United States v. McCollum, 58 MJ 323 (whether an error, constitutional or otherwise, was harmless is a question of law that we review de novo; the Government has the burden of persuading us that a constitutional error is harmless beyond a reasonable doubt; for nonconstitutional errors, the Government must demonstrate that the error did not have a substantial influence on the findings).

(a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; whether a marital communication is privileged is a mixed question of fact and law; we review a lower court’s legal conclusions de novo, but we give a lower court’s factual findings more deference, and will not reverse such findings unless they are clearly erroneous).

United States v. Kasper, 58 MJ 314  (the issue of whether the members were properly instructed is a question of law, which CAAF reviews de novo).

(CAAF reviews a military judge’s decision to admit evidence for an abuse of discretion).

United States v. Riley, 58 MJ 305 (the test for legal sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; legal sufficiency is a question of law, reviewed de novo).

United States v. Fisher, 58 MJ 300 (rejection of a guilty plea on appellate review requires that the record of trial show a substantial basis in law and fact for questioning the guilty plea).

United States v. Dorman, 58 MJ 295 (whether trial defense counsel must grant appellate defense counsel access to the case file upon request, regardless of whether there is a claim of ineffective assistance of counsel, is a question of law that we review de novo).

United States v. Tschip, 58 MJ 275 (whether the right to give an unsworn statement was impermissibly impaired by a reference to administrative discharges in the military judge’s instructions is a question of law, which we review de novo; in the absence of an objection, we review deficiencies in the instruction for plain error).

United States v. Dugan, 58 MJ 253 (at trial and on appeal, the defense has the initial burden of producing sufficient evidence to raise unlawful command influence; the burden of proof is low, but more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence; at trial, the accused must show facts which, if true, constitute unlawful command influence, and that the alleged unlawful command influence has a logical connection to the court-martial, in terms of its potential to cause unfairness in the proceedings; on appeal, an appellant must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness).

(where appellant has successfully raised the issue of unlawful command influence and a DuBay hearing is necessary to determine whether unlawful command influence existed during the sentencing phase of appellant’s court-martial, it is the Government that must now rebut the presumption of unlawful command influence (1) by disproving the predicate facts on which the allegation of unlawful command influence is based; (2) by persuading the DuBay judge that the facts do not constitute unlawful command influence; or (3) by persuading the DuBay judge that the unlawful command influence had no prejudicial impact on the court-martial; whichever tactic the Government chooses, the quantum of evidence required is proof beyond a reasonable doubt).

United States v. Holt, 58 MJ 227  (admissibility of evidence is reviewed for an abuse of discretion and that discretion is abused when evidence is admitted based upon an erroneous view of the law).

United States v. Rendon, 58 MJ 221 (CAAF reviews de novo whether an accused is entitled to a pretrial confinement credit; the interpretation of a provision of the MCM is a matter of law also to be reviewed de novo; to interpret R.C.M. 305 and particularly whether R.C.M. 305(k) applies to restriction tantamount to confinement, CAAF looks at the plain language of the MCM and construes its provisions in terms of its object and policy, as well as the provisions of any related rules, in order to ascertain the intent of the President; if the MCM is unclear, CAAF looks next to the drafters’ analysis).

United States v. BarrazaMartinez, 58 MJ 173 (in light of the defense counsel’s failure to object, the Court reviews the trial counsel’s argument for plain error; appellant has the burden of persuading this Court that there was plain error).

(in United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999), this Court set out a three-part test for resolving claims of disparate treatment; when reviewing a decision of a Court of Criminal Appeals, this Court limits its review to three questions of law: (1) whether the cases are closely related, (2) whether the cases resulted in highly disparate sentences, and (3) if the requested relief is not granted by the court below in a closely related case involving a highly disparate sentence, whether there is a rational basis for the differences between or among the cases; this Court's standard of review is whether a Court of Criminal Appeals abused its discretion or caused a miscarriage of justice in carrying out its highly discretionary sentence appropriateness role).

United States v. Miles, 58 MJ 192 (because a challenge for cause for actual bias is essentially one of credibility, the military judge’s decision is given great deference because of his or her opportunity to observe the demeanor of court members and assess their credibility during voir dire).

(implied bias is reviewed under an objective standard; the military judge is given less deference on questions of implied bias; issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo).

United States v. Wardle, 58 MJ 156 (this Court reviews a military judge’s ruling on the legality of pretrial confinement for abuse of discretion; there is an abuse of discretion when a military judge applies an erroneous view of the law; an appellate court should limit its review to the facts that were before the deciding official).

United States v. Kaiser, 58 MJ 146 (where error in the admission of evidence does not violate an accused’s constitutional rights, reversal is not required if the Court determines that the error was not prejudicial, i.e. if the finder of fact was not influenced by it or if it had only a slight effect on resolution of the case).

(error of constitutional dimensions requires either automatic reversal or an inquiry into whether, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence).

United States v. King, 58 M.J. 110 (CAAF reviews de novo the ultimate legal question of whether certain pretrial restrictions are tantamount to confinement).

United States v. Hall, 58 MJ 90 (despite the constitutional underpinning of hearsay, not every instance in which hearsay is improperly admitted will rise to the level of a constitutional error;  errors in admitting hearsay where an accused has had the opportunity to cross-examine the declarant have been found to be nonconstitutional violations).

United States v. Hibbard, 58 M.J. 71 (the issue of whether a jury was properly instructed is a question of law, which the Court reviews de novo).

(although it is not necessary to present evidence of a mistake of fact in the defense case on the merits or to discuss such evidence in closing argument in order to obtain an instruction in a proper case, it is appropriate for an appellate court to take into account the absence of such a presentation in assessing the significance of the evidence).

United States v. Cooper, 58 MJ 54 (the standard of review on appeal for speedy trial issues is de novo).

United States v. Gibson, 58 MJ 1 (whenever the evidence raises a reasonable inference that a witness may have been an accomplice, and either the Government or defense requests an accomplice instruction, the military judge shall give the members a cautionary instruction regarding accomplice testimony).

(the standard accomplice instruction need not necessarily be given verbatim, but the critical principles of that instruction shall be given and one of the critical principles is that the testimony of an accomplice must be regarded with caution).


2002

United States v. Washington, 57 MJ 394 (in review of sentence appropriateness decisions by the Courts of Criminal Appeals, Court of Appeals for the Armed Forces will determine whether the lower court abused its discretion or caused a miscarriage of justice in exercising its highly discretionary sentence review function).

United States v. Ellis, 57 MJ 375 (the voluntariness of a confession is a question of law to be reviewed de novo by examining the totality of all the surrounding circumstances including both the characteristics of the accused and the details of the interrogation).

United States v. Pomarleau, 57 MJ 351 (where the military judge excluded defense evidence as a sanction for a discovery violation, the Court reviewed the military judge’s ruling to exclude evidence for an abuse of discretion; findings of fact were reviewed for clear error, and conclusions of law are reviewed de novo). 

United States v. Khamsouk, 57 MJ 282 (a military judge’s denial of a motion to suppress is reviewed for an abuse of discretion; his fact-finding is reviewed under a clearly erroneous standard, and his conclusions of law are reviewed de novo).

United States v. Spaustat, 57 MJ 256 (the proper applications of credit for illegal pretrial punishment and lawful pretrial confinement are questions of law, reviewed de novo).

(interpretation of a pretrial agreement is a question of law, reviewed de novo).

United States v. Key, 57 MJ 246 (whether there is a legal requirement to serve the SJA’s recommendation on a deferment request, and whether the SJA’s recommendation contained “new matter,” are issues of law to be reviewed de novo).

(the convening authority’s action on a request for deferment of forfeitures or reduction in grade under Article 57(a)(2), UCMJ, 10 USC § 857(a)(2), shall be subject to judicial review only for abuse of discretion).

(Court of Appeals for the Armed Forces reviews claims of ineffective assistance of counsel de novo).

United States v. Jordan, 57 MJ 236 (rejection of a guilty plea on appellate review requires that the record of trial show a substantial basis in law and fact for questioning the guilty plea).

United States v. Hutchinson, 57 MJ 231 (in reviewing the exercise of Article 66(c) sentencing powers, the Court of Appeals for the Armed Forces determines, as a matter of law, whether a Court of Criminal Appeals abused its discretion or caused a miscarriage of justice in carrying out its highly discretionary sentence appropriateness role).

United States v. Tardif, 57 MJ 219 (interpretation of Articles of the Uniform Code of Military Justice presents an issue of law, which is reviewed de novo). (in accordance with Article 67, Court of Appeals for the Armed Forces reviews the sentencing decisions of the Courts of Criminal Appeals for “obvious miscarriages of justice or abuses of discretion).

United States v. Benner, 57 MJ 210 (we review de novo a military judge’s determination that a confession is voluntary).

United States v. Alameda, 57 MJ 190 (when a military judge instructs the members, the question whether the content of the instruction is legally correct is reviewed de novo).

(military judge’s decision to admit evidence is reviewed for abuse of discretion; if the military judge makes findings of fact, they are reviewed under a clearly-erroneous standard of review, and conclusions of law are reviewed de novo).

(whether an error was harmless is reviewed de novo).

(issues involving argument referring to unlawful subject matter are reviewed de novo as issues of law).

United States v. Doss, 57 MJ 182 (Court of Appeals for the Armed Forces will overturn the lower court’s sentence reassessment only to prevent obvious miscarriages of justice or abuses of discretion).

United States v. Walker, 57 MJ 174 (the question whether an error was harmless is reviewed de novo).

(the test for nonconstitutional error is whether the error itself had substantial influence on the findings - if so, or if one is left in grave doubt, the conviction cannot stand).

(the test for constitutional error is whether the error was harmless beyond a reasonable doubt).

United States v. Barreto, 57 MJ 127 (question of whether an accused is mentally competent to stand trial is one of fact, and the military judge’s determination will be overturned on appeal only if it is clearly erroneous).

United States v. Humpherys, 57 MJ 83 (test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt).

(on a question of actual bias, the judge’s findings on actual bias are reviewed for an abuse of discretion).

(issues of implied bias, which entail both factual inquiry and objective application of legal principle, are reviewed under a less deferential standard).

(military judge’s decision to admit evidence is reviewed for an abuse of discretion; the judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).

(military judge’s denial of a motion to disqualify trial counsel is reviewed for an abuse of discretion).

(a military judge’s ruling on a petition for a new trial for is reviewed for abuse of discretion).

United States v. Hollis, 57 MJ 74 (military judge’s decision to admit evidence is reviewed for abuse of discretion; the military judge’s factfinding is reviewed under the clearly erroneous standard of review, and conclusions of law are reviewed de novo; the military judge will be reversed if the findings of fact are clearly erroneous or if the military judge’s decision is influenced by an erroneous view of the law).

(under Mil.R.Evid. 803(4), the medical exception, the determination whether the patient has the requisite state of mind is a preliminary question of fact, and, as such, it will be overturned on appeal only if clearly erroneous).

United States v. Wiesen, 57 MJ 48, 56 MJ 172 (given the factual underpinning for testing actual bias, a military judge’s findings regarding actual bias are reviewed for an abuse of discretion).

(issues of implied bias, which entail both factual inquiry and objective application of legal principle, are reviewed under a less deferential standard).

United States v. Stoneman, 57 MJ 35 (on appeal, Court of Appeals for the Armed Forces reviews de novo the question whether the facts constitute unlawful command influence). (once an issue of unlawful command influence has been raised, the Government must persuade appellate court beyond a reasonable doubt either that there was no unlawful command influence or that the proceedings were untainted).

United States v. McDonald, 57 MJ 18 (judge’s decision to give or not give a specific instruction, as well as the substance of any instructions given, is reviewed to determine if they sufficiently cover the issues in the case and focus on the facts presented by the evidence; the question of whether a jury was properly instructed is a question of law, and thus, review is de novo).

(once it is determined that a specific instruction is required but not given, the test for determining whether this constitutional error was harmless is whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” - stated differently, the test is:  “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?”).

United States v. Jeffers, 57 MJ 13 (the test for legal sufficiency is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt).

United States v. Phanphil, 57 MJ 6 (a guilty plea will not be overturned on appeal unless there is a substantial basis in law and fact for questioning the guilty plea).

United States v. Pinson, 56 MJ 489 (whether a military judge’s conclusion as to whether a civilian investigation was “conducted, instigated, or participated in,” Mil.R.Evid. 305(h)(2), by military authorities should be reviewed de novo or under a “clearly erroneous” standard is an open question).

United States v. Simpson, 56 MJ 462 (the propriety of the instructions given by a military judge is reviewed de novo).

(an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal).

United States v. Hall, 56 MJ 432 (the lower appellate court’s harmless-error analysis is reviewed de novo).

(for constitutional errors, the government must persuade the appellate court that the error was harmless beyond a reasonable doubt).

(for nonconstitutional errors, the government must persuade the appellate court that the error did not have a substantial influence on the findings).

United States v. Gilbride, 56 MJ 428 (we review a military judge’s evidentiary rulings for an abuse of discretion; a military judge abuses his or her discretion by making findings of fact that are clearly erroneous or reaching conclusions of law that are incorrect).

United States v. Grant, 56 MJ 410 (a military judge’s ruling admitting or excluding evidence is reviewed for an abuse of discretion).

United States v. Downing, 56 MJ 419 (the burden of persuasion remains with the party making a challenge for cause against a potential court member).

(military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion).

United States v. Hopkins
, 56 MJ 393 (the sentencing instructions of a military judge are reviewed for abuse of discretion).

United States v. Bullman, 56 MJ 377 (a mere possibility of a defense does not render a plea of guilty improvident; on appeal, a guilty plea should be overturned only if the record fails to objectively support the plea or there is evidence in substantial conflict with the pleas of guilty).

United States v. Rodriguez
, 56 MJ 336 (we review a military judge’s decision to admit or exclude evidence for abuse of discretion).

United States v. Corteguera
, 56 MJ 330 (whether an appellant is entitled to credit for an Article 13 violation is a mixed question of law and fact; factual findings will not be overturned unless they are clearly erroneous, but the ultimate question of whether appellant is entitled to credit for a violation of Article 13 will be reviewed de novo).

United States v. Mosby, 56 MJ 309 (the question whether appellant is entitled to credit for a violation of Article 13 is a mixed question of fact and law; a military judge’s findings of fact, including a finding of no intent to punish, will not be overturned unless they are clearly erroneous; the ultimate question whether an appellant is entitled to credit for a violation of Article 13 will be reviewed de novo).

United States v. Grigoruk
, 56 MJ 304 (issues of ineffective assistance of counsel are reviewed de novo).

United States v. Davis, 56 MJ 299 (legal sufficiency of the evidence is reviewed by determining whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the court will draw every reasonable inference from the evidence of record in favor of the prosecution).

United States v. Palagar, 56 MJ 294 (whether offenses stand in the relationship of greater and lesser-included offenses is a question of law that is reviewed de novo).

United States v. Smith,  56 MJ 290 (whether an appellant is entitled to pretrial confinement credit is reviewed de novo).

(whether an appellant has been punished in violation of Article 55 or the Eight Amendment is reviewed de novo).

United States v. Richards, 56 MJ 282 (the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).

United States v. Graham, 56 MJ 266 (legal sufficiency exists when, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt).

United States v. Burt
, 56 MJ 261 (claims of ineffective assistance of counsel are reviewed de novo).

(claims of ineffective assistance of counsel are reviewed under a two-prong test:  first, the defendant must show that counsel’s performance was deficient; and second, the defendant must show that the deficient performance prejudiced the defense).

United States v. Sales, 56 MJ 255 (the question of whether there was ineffective assistance of counsel is a question of law that is reviewed de novo).

(the question of whether a lower court correctly applied the principles of United States v. Ginn, 47 MJ 236 (1997), will be reviewed de novo).

United States v. Sills, 56 MJ 239 (“beyond a reasonable doubt” is the correct standard to fulfill congressional intent that the intermediate appellate courts conduct de novo review of factual sufficiency under Article 66(c), UCMJ.  United States v. Turner, 25 MJ 324 (CMA 1987)).

United States v. Whitten, 56 MJ 234 (the standard for reviewing the legal sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt).

United States v. Tyndale, 56 MJ 209 (a military judge enjoys wide discretion in balancing under Mil.R.Evid. 403, and where the military judge properly weighs the evidence under this rule and articulates the reasons for admitting the evidence, the military judge will be reversed only for a clear abuse of discretion).

United States v. Douglas
, 56 MJ 168 (at the appellate level, denial of a motion for extension of time is reviewed for an abuse of discretion).

United States v. Barner
, 56 MJ 131 (where appellant claims the evidence is insufficient as a matter of law, court must examine the record to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; court is bound to draw every reasonable inference form the evidence of record in favor of the prosecution).

United States v. Gilley, 56 MJ 113 (violations of the prohibition against commenting on the accused’s assertion of his Fifth Amendment rights are subject to harmless error review).

(to determine if the presumption of competence of counsel has been overcome, the court will apply a three-prong test:  (1) are appellant’s allegations true, and, if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if a defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result).

United States v. Martin, 56 MJ 97 (shifting the burden of proof on mental responsibility to the accused does not change the standard of review or the tests for either factual or legal sufficiency).

(the review of non-guilt, factual findings on the defense of lack of mental responsibility has been approached by applying either the “clearly erroneous” or “reasonableness” standard of review, the difference in the approaches devolving from the difference in the deference accorded to review of non-guilt findings of fact made by judges and those made by juries).

(in reviewing non-guilt findings of fact made by judges, including those on lack of mental responsibility/insanity, federal courts apply the “clearly erroneous” standard – a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).

(in the case of a non-guilt finding of fact by members on the question of mental responsibility, an appellate court should reject the finding on insanity only if no reasonable trier of fact could have failed to find that the defendant’s criminal insanity at the time of the offense was established by clear and convincing evidence – such a determination depends on whether there is substantial evidence in the record supporting the jury’s finding of fact).

United States v. Butcher, 56 MJ 87 (the decision of a military judge on the issue of recusal is reviewed on appeal for abuse of discretion; court specifically declines to adopt a minority position that the standard of review is de novo).

(in the course of reviewing the military judge’s ruling under RCM 902(a) for abuse of discretion, the facts and circumstances are considered under an objective standard:  Any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification).

United States v. Quintanilla, 56 MJ 37 (a judge’s decision on the issue of disqualification is reviewed for abuse of discretion).

(when a military judge’s impartiality [appearance of bias] is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; this test is objective, judged from the standpoint of a reasonable person observing the proceedings).

(the test for legal sufficiency to support a finding of guilty is whether, when the evidence is viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).

(the propriety of instructions given by a military judge is reviewed de novo).


2001


United States v. Pacheco, 56 MJ 1 (the standard used to determine whether evidence is legally sufficient requires all relevant evidence to be viewed in the light most favorable to the prosecution, including reasonable inferences to be drawn from that evidence).


(in assessing evidence under the standard for legal sufficiency of the evidence, the court need not consider whether an alleged directive constituted an apparently lawful order where testimony – which was not challenged at trial – that a sergeant disavowed in appellant’s presence any knowledge of or responsibility for appellant’s taking of the weapon effectively nullifies appellant’s argument that he acted pursuant to an apparently lawful order in obtaining a Desert Eagle).


United States v. McConnell, 55 MJ 479 (Court declines to address the effectiveness of appellant’s two lawyers separately or solely upon the conduct of lead counsel; where there are multiple defense counsel, the performance of defense counsel is measured by the combined efforts of the defense team as a whole).


(there is a two-pronged test to analyzing claims of ineffective assistance of counsel:  first, appellant must show that counsel’s performance was deficient; second, appellant must show that the deficient performance prejudiced the defense).


(in analyzing claims of ineffective assistance of counsel, Court of Appeals for the Armed Forces has asked three questions:  (1) are the allegations made by appellant true, and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case; (2) if they are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt?).


(the performance and prejudice prongs of the test for ineffective assistance of counsel can be analyzed independently; the Court can test allegations of ineffectiveness for prejudice by assuming that the errors alleged satisfy the deficient performance prong and then considering whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt).


(because counsel are presumed competent, an appellant must rebut this presumption by showing specific errors that were unreasonable under prevailing professional norms).


(when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious).


United States v. Harris
, 55 MJ 433 (a military judge’s decision to admit or exclude evidence is reviewed for abuse of discretion).


United States v. Bolkan, 55 MJ 425 (when defense counsel’s advocacy falls short of that required to render effective assistance of counsel, the court will test for prejudice).


United States v. Catrett, 55 MJ 400 (whether a suspect is in custody for purposes of Miranda warnings is a de novo question of law to be decided on the basis of the facts found by the factfinder).

United States v. Brown, 55 MJ 375 (in considering whether evidence is legally sufficient, court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).


(the military judge’s decision to admit an Air Force Pamphlet on discrimination and sexual harassment is reviewed for abuse of discretion).


United States v. Quiroz, 55 MJ 334 (even if offenses are not multiplicious as a matter of law with respect to double jeopardy concerns, the prohibition against unreasonable multiplication of charges has long provided courts-martial and reviewing authorities with a traditional legal standard – reasonableness – to address the consequences of an abuse of prosecutorial discretion in the context of the unique aspects of the military justice system).

 

United States v. Jones, 55 MJ 317 (a trial or appellate judge’s decision on recusal is reviewed for abuse of discretion; however, when an appellant does not raise the issue of disqualification until appeal, the reviewing court examines the claim under the plain error standard of review).


United States v. Lambert, 55 MJ 293 (in making the determination whether to investigate potential grounds for impeaching a verdict and what kind of investigation to make, as well as whether and to what extent the conduct was prejudicial, the trial court has wide discretion; the military judge’s decisions in this context are reviewed for abuse of discretion).


United States v. McAllister
, 55 MJ 270 (a military judge's decision on a request for expert assistance is reviewed for abuse of discretion).


United States v. Oxendine
, 55 MJ 323 (the standard for reviewing legal sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; under this standard, court is bound to draw every reasonable inference form the evidence of record in favor of the prosecution).


United States v. Wacha, 55 MJ 266 (Court of Appeals for the Armed Forces reviews, as a matter of law, whether the Court of Criminal Appeals abused its discretion or caused a miscarriage of justice in carrying out its highly discretionary sentence appropriateness role).


United States v. Durant, 55 MJ 258 (the role of the Court of Appeals for the Armed Forces in reviewing whether the Court of Criminal Appeals properly carried out its highly discretionary function of sentence appropriateness is to determine whether the lower court abused its discretion or caused a miscarriage of justice).


(in reviewing claims of disparate sentences, Court of Appeals for the Armed Forces will examine three questions of law:  (1) whether the cases are closely related; (2) whether the cases resulted in highly disparate sentences; and (3) whether there is a rational basis for the difference between the cases).


United States v. Ivey, 55 MJ 251 (a military judge’s decision not to abate the proceedings is reviewed for abuse of discretion; his findings of fact will not be overturned on appeal unless they are clearly erroneous; his conclusions of law will be reviewed de novo).


United States v. Grijalva, 55 MJ 223 (Court reviews de novo the issue of whether constitutional error was harmless beyond a reasonable doubt).


United States v. Boyd, 55 MJ 217 (a military judge’s decision whether to instruct on a specific collateral consequence of a sentence is reviewed for abuse of discretion).


United States v. Norris, 55 MJ 209 (the standard of review of a military judge’s ruling admitting expert, scientific testimony is abuse of discretion).


(in reviewing a military judge’s ruling on a motion to suppress under Article 31(b), Court applies a clearly-erroneous standard of review to findings of fact and a de novo standard to conclusions of law).


United States v. Palmer, 55 MJ 205 (a military judge’s ruling excluding evidence is reviewed for abuse of discretion, and the proponent of the evidence has the burden of showing that it is admissible).


United States v. Anderson, 55 MJ 198 (ineffectiveness of counsel is a mixed question of law and fact; factual findings are reviewed under a clearly-erroneous standard of review, but the ultimate determinations whether counsel were ineffective and whether their errors were prejudicial are reviewed de novo).


United States v. Goldwire, 55 MJ 139 (military judge’s decision to admit opinion evidence is reviewed under the abuse of discretion standard).


United States v. Dewrell
, 55 MJ 131 (military judge’s ruling admitting uncharged other sexual misconduct under Mil. R. Evid. 404(b), 413, and 414 is reviewed under an abuse of discretion standard).


(judicial scrutiny of counsel’s performance must be highly deferential; counsel is strongly presumed to have given adequate representation).


(claim that military judge erred by refusing to allow the defense to conduct any group voir dire is reviewed for abuse of discretion).


United States v. New, 55 MJ 95 (actual bias is a question of fact, which is reviewed subjectively, through the eyes of the military judge of the court members).


(implied bias is viewed through the eyes of the public, and the focus is on the perception or appearance of fairness of the military justice system).


(the question of whether the military judge correctly determined that an issue is a question of law is reviewed de novo).


(the question of whether the military judge correctly determined that an order was lawful is reviewed on a de novo basis).


(an appellant has the burden to establish that an order is not lawful).

 

(the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard).


United States v. Bailey, 55 MJ 38 (a military judge’s evidentiary rulings are reviewed for an abuse of discretion).

United States v. Hursey, 55 MJ 34 (evidentiary rulings are reviewed for abuse of discretion).


(when a military judge conducts a proper balancing test under Mil. R. Evid. 403, the evidentiary ruling will not be overturned unless there is a clear abuse of discretion;  when the military judge fails to articulate a balancing analysis on the record, the ruling is accorded less deference).


United States v. Gunkle, 55 MJ 26 (Court of Criminal Appeals’ determination that an error was harmless is reviewed de novo; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings).


(a military judge’s ruling on a request for expert assistance is reviewed for abuse of discretion).


United States v. Rivera, 54 MJ 489 (the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt).


United States v. White, 54 MJ 469 (whether facts asserted by an appellant constitute a violation of Article 55, UCMJ, or the Eighth Amendment to the Constitution is reviewed de novo).


(in seeking to obtain judicial review of prison conditions, an appellant must establish a clear record of both the legal deficiency in administration of the prison and the jurisdictional basis for the action).


United States v. Carter
, 54 MJ 414 (a military judge’s decision to admit or exclude evidence is reviewed for abuse of discretion).


(in reviewing probable cause determinations, courts must look at the information made known to the authorizing official at the time of his decision; the evidence must be considered in the light most favorable to the prevailing party).


(the duty of a court reviewing a probable cause determination is simply to ensure that the magistrate had a substantial basis for concluding the probable cause existed; such a determination by a neutral and detached magistrate is entitled to substantial deference; resolution of doubtful or marginal cases should be largely determined by the preference for warrants with close calls being resolved in favor of sustaining the magistrate’s decision).


United States v. Baldwin
, 54 MJ 308 (the quantum of evidence necessary to raise unlawful command influence is the same as that required to submit a factual issue to the trier of fact; it must, however, be more than mere speculation).


United States v. Sothen, 54 MJ 294 (an appellant who asks the Court of Criminal Appeals to engage in sentence comparison bears the burden of demonstrating that any cited cases are “closely related” to the appellant’s case, and that the sentences are “highly disparate”; if the appellant meets that burden, or if the court raised the issue on its own motion, the burden shifts to the government to show a rational basis for the disparity).


(Court of Appeals for the Armed Forces review of decisions by the Courts of Criminal Appeals on issues of sentence appropriateness is limited to the narrow issue of whether there has been an obvious miscarriage of justice or abuse of discretion).


United States v. Brown, 54 MJ 289 (to determine whether an erroneous failure to serve new matter on the defense constitutes prejudicial error, the burden is on the appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; the threshold is low, requiring only some colorable showing of possible prejudice, but that threshold is not met by sheer speculation about factual matters that are within the normal investigative capabilities of counsel).


United States v. Simpson
, 54 MJ 281 (denial of a motion to suppress a confession is reviewed under an abuse of discretion standard, and the trial judge’s findings of fact are accepted unless they are clearly erroneous).


(whether that portion of the rights warning requiring that the suspect be informed of “the nature of the accusation” was inconsistent with applicable rights warning requirements is reviewed de novo).


United States v. Rogers, 54 MJ 244 (the standard of review for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt; in resolving legal sufficiency questions, court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution).



2000


United States v. Lynn, 54 MJ 202 (Title 29 USC § 455, concerning disqualification of judges, applies to the judges of the Courts of Criminal Appeals; in determining whether a judge of the Court of Criminal Appeals should disqualify himself, the test is whether a reasonable person who knew all the facts might question these appellate military judges’ impartiality).

(recusal decisions by inferior courts are normally reviewed with an abuse of discretion standard).

United States v. Paaluhi, 54 MJ 181 (claims of ineffective assistance of counsel are reviewed de novo; in order to prevail, an appellant must demonstrate that his counsel’s performance was deficient and that this deficiency seriously prejudiced appellant’s defense).

United States v. Tanksley, 54 MJ 169 (a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard).

United States v. Manns, 54 MJ 164 (military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion).

United States v. Ruiz, 54 MJ 138 (a military judge’s evidentiary rulings are reviewed under an abuse of discretion standard).

(a ruling that a statement was made voluntarily may present a question of law which is reviewed de novo).

(whether an Article 31(b) warning is required is reviewed de novo).

United States v. McElhaney, 54 MJ 120 (military judge’s ruling on the admissibility of evidence is reviewed for an abuse of discretion, and a decision to admit or exclude evidence under Mil. R. Evid. 403 is also reviewed for an abuse of discretion; this is a strict standard, calling for more than a mere difference of opinion; to be reversed, the challenged ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous).

(when counsel has objected to testimony, a military judge’s ruling on admissibility of expert testimony is reviewed for abuse of discretion).

(military judge’s ruling on the admissibility of evidence is reviewed for an abuse of discretion, and a decision to admit or exclude evidence under Mil. R. Evid. 403 is also reviewed for an abuse of discretion; this is a strict standard, calling for more than a mere difference of opinion; to be reversed, the challenged ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous).

(application of a federal statute to the military justice system is a question of law that is subject to de novo review).

(military judge’s ruling on a request for a witness is reviewed for abuse of discretion and should be reversed only if, on the whole, denial of the defense witness was improper; judicial denial of a witness request will not be set aside unless there is a definite and firm conviction that the military judge committed a clear error of judgment in the conclusion it reached upon weighing relevant factors). 

United States v. Fuller, 54 MJ 107 (in reviewing for legal sufficiency, the court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt).

United States v. Baumann, 54 MJ 100 (the burden is on the government to show that erroneous admission of evidence, over defense objection under MRE 403 did not materially prejudice the substantial rights of the appellant

(the burden is on the government to show that erroneous admission of evidence, over defense objection under MRE 403 did not materially prejudice the substantial rights of the appellant).

United States v. Ayers, 54 MJ 85 (legal sufficiency of the evidence is a question of law that is reviewed de novo; the test is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).

(where an assertion of unlawful command influence is litigated at trial, military judge’s findings of fact are reviewed under a clearly-erroneous standard, and the legal conclusion of whether those facts constitute unlawful command influence is reviewed de novo). (when asserting unlawful command influence, the initial burden is on the defense to show facts which, if true, constitute unlawful command influence; on appeal, the defense must show that the proceedings appeared to be unfair and that the unlawful command influence was the cause of the appearance of unfairness).

United States v. Tollinchi
, 54 MJ 80 (legal sufficiency is a question of law that is reviewed de novo; the test is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt) 

United States v. Kho, 54 MJ 63 (application of the plain error doctrine is reviewed de novo as a question of law).

United States v. Armstrong, 54 MJ 51 (a military judge’s ruling on a challenge for cause is reviewed for abuse of discretion).

(in reviewing decision of Court of Criminal Appeals on implied bias, the question is whether that court abused its discretion by making findings of fact that are clearly erroneous or unsupported by the record, or by basing its decision on an erroneous view of the law; this is not a de novo review, but is a review under a somewhat less deferential standard than actual bias).

United States v. Reed, 54 MJ 37 (the test for legal sufficiency requires courts to review the evidence in the light most favorable to the government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).

(the test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the court is convinced of the accused’s guilt beyond a reasonable doubt).

United States v. Johnson, 54 MJ 32 (where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed by this Court under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that this Court reviews de novo).

United States v. Browning, 54 MJ 1 (if a military judge weighs and excludes evidence under MRE 403, an appellant has the burden of coming forward with conclusive argument that the military judge abused his discretion; the military judge will not be reversed unless there is a clear abuse of discretion).

(where military judge properly balances probative value of alleged threats made by appellant against their prejudicial impact, articulates the reasons for admitting/excluding the evidence, and gives carefully crafted limiting instructions, the military judge will only be reversed for clear abuse of discretion).

United States v. Duncan, 53 MJ 494 (military judge’s decision on a motion to sever charges is reviewed for an abuse of discretion).

United States v. Henley, 53 MJ 488 (military judge’s ruling on admissibility of evidence is reviewed under an abuse of discretion standard).

(standard for reviewing a magistrate’s determination of probable cause is whether the magistrate had substantial evidence in the record to support his decision issuing the search warrant; reviewing court is not free to speculate about the impact of evidence which may not have been presented to the magistrate, but must review the record presented to the magistrate).

United States v. Henley, 53 MJ 488 (military judge’s denial of a challenge for cause is reviewed for an abuse of discretion).

United States v. Wright, 53 MJ 476 (the constitutionality of a statute is a question of law; therefore, the standard of review is de novo).

United States v. Matthews, 53 MJ 465 (a military judge’s ruling on the admissibility of evidence will be overturned only if there is a clear abuse of discretion; a military judge abuses his or her discretion if the ruling is influenced by an erroneous view of the law).

(court members are presumed to follow military judge’s instructions).

United States v. Allen, 53 MJ 402 (issues involving admissibility of evidence are reviewed for abuse of discretion; underlying findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record of trial; conclusions of law will be reviewed de novo and will not be overturned unless the decision was based upon an erroneous view of the law).

United States v. Shelton, 53 MJ 387(whether appellant is legally entitled to back pay between the dates of an initial action which was set aside and a subsequent action is a question of law that is reviewed de novo).

(based upon a review of authorities - Articles 57(a)(1)(B) and 75(a), UCMJ; paragraph 89c(7), MCM 1951; Article of War 50 ½; and paragraph 70509, DoD Pay Manual – court concludes that restoration of forfeitures executed pursuant to an initial action which was set aside would run counter to both congressional intent and the court’s efforts to encourage corrective action of erroneous statements in staff judge advocates’ recommendations).

(to the extent that United States v. Foecking, 22 USCMA 46, 46 CMR 46 (1972), construed Article 57(a), UCMJ, to provide for restoration of forfeitures executed pursuant to an initial action which was set aside, it is inconsistent with the legislative purpose behind Article 75(a), UCMJ, and is overruled; the decision to overrule Foecking case will be prospective only).

(even if the decision to overrule United States v. Foecking, 22 USCMA 46, 46 CMR 46 (1972), is prospective only and not applicable to appellant’s case, appellant was not entitle to restoration of any pay forfeited pursuant to an initial action which was set aside because appellant has provided no documentation to support his claim).

United States v. Starr, 53 MJ 380 (with respect to issues of pretrial punishment, the court examines the military judge’s factual findings as to the intent to punish to see if they are clearly erroneous).

(the test for determining whether an individual is subject to illegal punishment or deprivation of liberty tantamount to confinement is whether there was an intent to punish or stigmatize a person awaiting disciplinary action, and if not, were the conditions in furtherance of a legitimate, nonpunitive government objective).

(security policeman assigned to unit composed solely of individuals who could not, or were not permitted to perform security force duties, and who was asked to surrender his security force beret was neither illegally punished nor subject to deprivation of liberty tantamount to confinement where record supported military judge’s finding that neither act was done for the purpose of punishment).

United States v. Chaney, 53 MJ 383 (in reviewing the propriety of peremptory challenges, the military judge’s determination of purposeful discrimination will be overturned only if it is clearly erroneous, and the military judge is given great deference because his or her determination is based primarily upon the judge’s personal evaluation of the credibility of the counsel making the challenge).

United States v. Anderson, 53 MJ 374 (to demonstrate that new or adverse matter considered by the convening authority was prejudicial, appellant must show what he would have submitted to deny, counter, or explain the new matter; the threshold is low, however, and the appellate court will not speculate on what the convening authority might have done if the defense counsel had been given the opportunity to comment).

United States v. Huberty, 53 MJ 369 (abuse of discretion is the proper standard by which to review a decision to admit or exclude expert evidence; an appellate court will not reverse unless a ruling is manifestly erroneous).

United States v. Pablo, 53 MJ 356 (the Government has the burden of persuading the court that an error was harmless – that it did not have a substantial influence on the findings).

United States v. Langston, 53 MJ 335 (military judge’s decision whether a witness falls within one of the three exclusion exceptions to MRE 615 is reviewed under an abuse of discretion standard).

(military judge’s ruling that MRE 615, “Exclusion of witnesses”, did not apply to providence inquiries was a ruling of law and is reviewed de novo).

United States v. Cobia, 53 MJ 305 (the standard of review for sufficiency of the evidence is de novo, and the test for sufficiency of the evidence is whether the evidence, when viewed in the light most favorable to the Government, and the reasonable inferences from the evidence support the essential elements beyond a reasonable doubt).

(standard of review as to the admissibility of a prior conviction under MRE 609(a)(1) is whether the military judge abused his discretion).

(an appellant must establish a factual foundation for a claim of ineffective representation; sweeping generalized accusations will not suffice).

United States v. Alves, 53 MJ 286 (judicial scrutiny of a claim of ineffective assistance of counsel is highly deferential and should not be colored by the distorting effects of hindsight).

(to overcome the presumption that defense counsel is competent, an appellant must demonstrate:  (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) that the deficient performance prejudices the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable).

(where appellant has pleaded guilty at trial, the prejudice prong of the test for ineffective assistance of counsel requires that appellant show specifically that there is a probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial).

United States v. Norfleet, 53 MJ 262 (the decision of a military judge not to recuse himself or herself is reviewed on appeal for abuse of discretion).

United States v. Baer, 53 MJ 235 (the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused).

United States v. Taylor
, 53 MJ 195 (military judge’s ruling on admissibility of evidence is reviewed for abuse of discretion, and will not be overturned on appeal unless it is arbitrary, fanciful, clearly unreasonable, or clearly erroneous).

(the decision to grant a mistrial lies within the discretion of the military judge; an appellate court must not reverse the decision absent a clear abuse of that discretion).

United States v. Rolle, 53 MJ 187 (military judge’s ruling on a challenge for cause will be given great deference and will be reversed only for a clear abuse of discretion).

United States v. Moolick, 53 MJ 174 (military judge’s ruling admitting or excluding evidence is reviewed for abuse of discretion).

United States v. Smith, 53 MJ 168 (military judge’s factual finding that there was no intent to punish is reviewed under a clearly erroneous standard of review; in the absence of factual findings relating to intent to punish, Court will address the issue of illegal pretrial punishment de novo, as a mixed question of law and fact).

United States v. Napolitano, 53 MJ 162 (a military judge’s denial of a challenge for cause will not be overturned unless there is a clear abuse of discretion by the judge in applying the liberal-grant policy).

(a military judge is given great deference in deciding whether a member is actually bias because actual bias is a question of fact; less deference is given to the military judge’s determination when reviewing a finding on implied bias because it is objectively viewed through the eyes of the public).

United States v. Eversole, 53 MJ 132 (the Court of Appeals for the Armed Forces will not disturb a Court of Criminal Appeals’ reassessment a sentence due to some error in the proceedings, except to prevent obvious miscarriages of justice or abuses of discretion).

United States v. Henry, 53 MJ 108 (evidentiary rulings of a military judge are reviewed for abuse of discretion, and are overturned only if the judge’s findings of fact are clearly erroneous or his decision is influenced by an erroneous view of the law).

(whether the record of trial is complete is a question of law that is reviewed de novo).

United States v. Guthrie, 53 MJ 103 (an appellant bears the burden of proving that the government withheld discoverable evidence).

United States v. Harris, 53 MJ 86 (a sentence reassessment is reviewed for abuse of discretion; a lower court’s reassessment will only be disturbed to prevent obvious miscarriages of justice or abuses of discretion).

United States v. Golston, 53 MJ 61 (in reviewing claims of prosecutorial misconduct, an appellate court will consider the legal norm violated by the prosecutor and determine if the violation actually prejudiced a substantial right of the accused; if it did, then the court will look to the record as a whole to determine whether the violation was harmless under all the circumstances of the particular case).

United States v. Grier, 53 MJ 30 (instructional error is reviewed de novo).

United States v. Stoffer, 53 MJ 26 (whether an omission from a record of trial is substantial is a question of law which we review de novo).

United States v. Kirkland, 53 MJ 22 (whether a court-martial panel was selected free from systematic exclusion is a question of law which is reviewed de novo).

United States v. Melanson, 53 MJ 1 (questions of personal jurisdiction are reviewed on appeal de novo as questions of law, and the military judge’s findings of historical fact are accepted unless they are clearly erroneous or unsupported in the record).

United States v. Robbins, 52 MJ 455 (a military judge is presumed to know the law and apply it properly, is presumed capable of filtering out inadmissible evidence, and is presumed not to have relied on such evidence on the question of guilt or innocence).

United States v. Swift, 53 MJ 439 (findings of fact made in support of a ruling on a motion to suppress a statement on the grounds that Article 31 was not complied with are reviewed using a clearly-erroneous standard; conclusions of law are reviewed de novo).

United States v. Murray, 52 MJ 423 (appellate court must view the evidence in the light most favorable to the prosecution and determine whether any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt).

United States v. Smith, 52 MJ 337 (the first prong of the three-part test for the admissibility of other acts evidence (MRE 404(b)) will be reviewed to determine whether sufficient evidence was admitted so the members could find by a preponderance of the evidence that the other act occurred).

(the decision to admit or exclude evidence under MRE 403 is reviewed for a clear abuse of discretion).

United States v. Monroe, 52 MJ 326 (military judge’s ruling on a motion to suppress is reviewed for abuse of discretion; the judge’s fact-finding is reviewed under a clearly-erroneous standard, and his/her conclusions of law are reviewed de novo; the evidence is reviewed in the light most favorable to the prevailing party).

(whether a party has manifested a subjective expectation of privacy is a question of fact, reviewed under the clearly erroneous standard; whether that subjective expectation is objectively reasonable is a matter of law subject to de novo review).

(in reviewing question of probable cause for a search, a determination of probable cause by a neutral and detached magistrate is entitled to substantial deference; a reviewing court will not conduct a de novo determination of probable cause, but will only determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant, with close calls being resolved in favor of sustaining the magistrate’s decision in order to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant).

United States v. Grigoruk, 52 MJ 312, 56 MJ 304 (there is a three-part test to determine if the presumption of competence has been overcome:  (1) are the appellant’s allegations true, and, if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and, (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result)

(an appellant must establish a factual foundation for a claim of ineffective representation; sweeping generalized accusations will not suffice).

(there is a three-part test to determine if the presumption of competence has been overcome:  (1) are the appellant’s allegations true, and, if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and, (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result).

United States v. Phillips, 52 MJ 268 (military judge’s admission of evidence under MRE 404(b) is reviewed for abuse of discretion, and is reviewed on the basis of the facts before the military judge at the time of the ruling).

(a military judge enjoys “wide discretion” in applying MRE 403; however, where the military judge does not articulate the factors he considers in balancing probative value against prejudicial impact, the appellate court will not accord him the deference that flows from a properly articulated balancing).

United States v. George, 52 MJ 259 (whether constitutional error in admitting evidence was harmless is a question of law which will be reviewed de novo).

United States v. Najera, 52 MJ 247 (legal sufficiency of the evidence is reviewed de novo to determine whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).

(in reviewing conflicting testimony under the standard for legal sufficiency, where a court-martial chooses to believe the government’s evidence rather than that of the defense, if there is any substantial evidence in the record to support a conviction, an appellate court will not set aside the verdict in the absence of other error).

United States v. Spriggs, 52 MJ 235 (the ruling of a military judge on an individual military counsel request, including the question whether such a ruling severed an attorney-client relationship, is a mixed question of fact and law; legal conclusions are subject to de novo review, and findings of fact are reviewed under a clearly erroneous standard).

United States v. Burton, 52 MJ 223 (when the impartiality of a military judge is challenged on appeal, the standard of review is abuse of discretion).


1999

United States v. Davis, 52 MJ 201 (to support a claim of ineffective assistance of counsel an appellant must demonstrate that his counsel’s performance was so deficient that he was not functioning as counsel within the meaning of the Sixth Amendment and he must show that his counsel’s deficient performance prejudiced him).

United States v. Morris, 52 MJ 193 (where the prosecution has not disclosed information in response to a general request for exculpatory evidence or information, reversal will follow only where the omitted evidence creates a reasonable doubt that did not otherwise exist).

(a military judge’s decision on a request for discovery is reviewed for abuse of discretion; a determination of whether information is material is a question of law which is reviewed de novo).

United States v. Roth, 52 MJ 187 (sequestration and sanctions for violations of a sequestration order are matters within the discretion of the court, and such matters will be reviewed on appeal under an abuse of discretion standard).

United States v. Holt, 52 MJ 173 (reweighing evidence and reevaluating credibility, matters of factual sufficiency, are outside the statutory parameters of Court of Appeals for the Armed Forces’ review; the court reviews for legal sufficiency, considering the evidence in the light most favorable to the government and determining whether the evidence provides a sufficient basis upon which a rational factfinder could find all the essential elements beyond a reasonable doubt).

United States v. Curtis, 52 MJ 166 (reassessments by the Courts of Criminal Appeals will only be disturbed to prevent obvious miscarriages of justice or abuses of discretion; an abuse of discretion exists where the challenged action is arbitrary, fanciful, clearly unreasonable, or clearly erroneous).

United States v. Wright, 52 MJ 136 (a military judge’s decision on disqualification is reviewed for abuse of discretion).

United States v. Morrison, 52 MJ 117 (where a ruling admitting evidence includes factfinding, the findings of fact will not be overturned unless they are clearly erroneous).

(a ruling admitting evidence under MREs 404(b) and 403 will not be reversed except for a clear abuse of discretion).

United States v. Rockwood
, 52 MJ 98 (a military judge’s decision on witness production is reviewed for abuse of discretion).

(as a court without fact-finding authority, the standard of review for determining legal sufficiency of the evidence at the Court of Appeals for the Armed Forces is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).

United States v. Schlamer, 52 MJ 80 (military judge’s ruling on a challenge for actual bias will be reviewed for clear abuse of discretion, giving great deference to the credibility determinations of the military judge; rulings on challenges for implied bias are reviewed for abuse of discretion, but under a somewhat less deferential standard).

(military judge has wide discretion in applying MRE 403, and appellate courts exercise great restraint in reviewing a military judge’s decisions under MRE 403).

(military judge’s determination that evidence is relevant will not be overturned unless there is a clear abuse of discretion).

(military judge’s ruling on the admissibility of evidence is reviewed for clear abuse of discretion).

United States v. Hicks, 52 MJ 70 (when an alleged conflict of interest is at issue, an appellant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance).

(an allegation of ineffective representation presents a mixed question of law and fact, which will be reviewed de novo).

United States v. Lee
, 52 MJ 51 (to overcome the presumption of competence, an appellant must show that defense counsel was deficient, and that he was prejudiced by the deficiency; issues of effective representation are reviewed de novo).

 United States v. Brownfield, 52 MJ 40 (for counsel to be found ineffective, two questions must be answered:  (1) whether counsel was reasonably competent, and (2) if not, whether the accused was prejudiced; reasonable competence is determined in light of a strong presumption of competence which an appellant must rebut by showing specific errors made by defense counsel that were unreasonable under prevailing professional norms; prejudice is measured by whether counsel’s performance was so deficient that the trial is unreliable and the result unfair).

(military judge’s decision to deny a continuance is reviewed for abuse of discretion).

United States v. Villareal, 52 MJ 27 (an allegation of unlawful command influence is reviewed de novo; findings of fact made in conjunction with a ruling on a motion regarding unlawful commend influence are reviewed under a clearly erroneous standard).

United States v. Henderson, 52 MJ 14 (CAAF will not relitigate case at appellate level, but instead will limit itself to the question whether evidence was admitted in the case which would permit a reasonable person to find appellant guilty of unpremeditated murder).

United States v. Vassar, 52 MJ 9 (military judge’s ruling on a motion to suppress is reviewed for an abuse of discretion, and the judge will be reversed if the military judge’s findings of fact are clearly erroneous or if the decision was influenced by an erroneous view of the law; consent to search is a factual determination that will not be disturbed on appeal unless that determination is unsupported by the evidence or clearly erroneous).

(a finding of consent to search based on an incorrect legal standard is an abuse of discretion).

United States v. Barron, 52 MJ 1 (military judge decides whether a proffered witness is an expert for purposes of MRE’s 702 and 706, and his decision is reviewed for an abuse of discretion).

(military judge’s decision whether to disqualify a previously qualified expert witness in the interests of promoting fairness is reviewed for abuse of discretion to determine whether the challenged action is arbitrary, fanciful, clearly unreasonable, or clearly erroneous).

United States v. Barron, 52 MJ 1 (military judge’s decision regarding a motion for a mistrial will be measured for an abuse of discretion).

United States v. Doty, 51 MJ 464 (the conclusion whether an accused received a speedy trial is a legal question that is reviewed de novo; any underlying findings of fact by the military judge are given substantial deference and will be reversed only for clear error).

United States v. Whitner, 51 MJ 457 (military judge’s determination of relevance under MRE 401 is reviewed under a clear-abuse-of-discretion standard). (military judge’s ruling overruling objection under MRE 403 is reviewed using a clear-abuse-of-discretion standard).

United States v. Ford, 51 MJ 445 (voluntariness of a confession is a question of law subject to de novo review; any special findings of fact are the basis for reviewing the question of voluntariness unless those findings are clearly erroneous).

(military judge’s decision on a request for expert assistance is reviewed for abuse of discretion).

United States v. Thompson, 51 MJ 431 (test for ineffective assistance of counsel requires appellant to demonstrate deficient performance and that the deficiency prejudiced the defense to such an extent that appellant was denied a fair trial).

(to prevail on a conflict of interest claim, appellant must demonstrate that defense counsel faced an actual conflict of interest which affected the adequacy of the attorney’s representation).

United States v. Marine, 51 MJ 425 (the legal basis for a stop and frisk is reviewed de novo).

United States v. Izquierdo, 51 MJ 421 (the standard of review for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the government, any rational trier of fact could have found all the essential elements of the crime beyond a reasonable doubt).

United States v. Griggs, 51 MJ 418 (test for legal sufficiency is whether, considering the evidence in the light most favorable to the government, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt).

United States v. Kerr, 51 MJ 401 (prejudice from an erroneous evidentiary ruling, either admitting government evidence or excluding defense evidence, is evaluated by weighing:  (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and, (4) the quality of the evidence in question).

(there is a three-pronged test to assess the danger of spillover from either improper joinder or evidence of uncharged acts:  (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge has provided a proper limiting instruction; and, (3) whether the findings reflect an impermissible crossover).

United States v. Taylor, 51 MJ 390 (lower court’s reassessment of a sentence to cure the prejudicial impact of error is reviewed for abuse of discretion).

United States v. Lewis, 51 MJ 376 (if errors, either separately or together, amount to a constitutional violation, the government must show that the errors were harmless beyond a reasonable doubt; if the errors were non-constitutional, an appellant must show that they substantially prejudice his/her material rights).

United States v. Scott, 51 MJ 326 (In determining whether there is a violation of a servicemember’s right to the effective assistance of counsel, the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984);  an appellant must first show that counsel’s representation fell below an objective standard of reasonableness, and second that there was prejudice flowing from counsel’s deficient performance).

(an appellant alleging ineffective assistance of counsel must show that counsel’s errors were so serious as to deprive appellant of a fair trial, a trail whose result is reliable; but scrutiny of counsel’s performance is highly deferential and that performance is supported by a presumption that counsel provided adequate assistance).

United States v. Sidwell, 51 MJ 262 (where there is constitutional error, all of the circumstances should be considered in determining whether the error was harmless beyond a reasonable doubt).

United States v. Hawes, 51 MJ 258 (lower court’s reassessment of a sentence to purge the prejudicial impact of error is reviewed for abuse of discretion and will only be disturbed to prevent obvious miscarriages of justice or abuses of discretion).

(appellant bears the burden of showing that lower court’s reassessment of a sentence to purge the prejudicial impact of error was an abuse of discretion).

United States v. Mitchell, 51 MJ 234 (where evidence is obtained in violation of the Constitution and erroneously admitted, the government bears the burden of showing beyond a reasonable doubt that the inadmissible evidence did not contribute to the findings of guilty).

United States v. Richter, 51 MJ 213 (a ruling on a motion to suppress is reviewed for abuse of discretion; findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record; conclusions of law will be reviewed de novo, and the military judge will not be reversed unless his decision was influenced by an erroneous view of the law).

(consent is a question of fact to be determined from all the circumstances; the prosecution has the burden of proving consent by clear and convincing evidence; on appeal, the evidence will be reviewed in the light most favorable to the government and a military judge’s finding of voluntary consent will not be overturned unless it is unsupported by the evidence or clearly erroneous).

(military judge’s decision not to abate proceedings under RCM 704(e) [immunity] reviewed for abuse of discretion).  

(to raise unlawful command influence on appeal, the appellant must show (1) facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness).

United States v. Owens, 51 MJ 204 (a military judge’s evidentiary rulings admitting evidence are reviewed for abuse of discretion; supporting findings of fact will not be overturned unless they are clearly erroneous; conclusions of law will be reviewed de novo; thus, a military judge abuses his discretion when his findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law).

(in reviewing consent to search, appellate court must be satisfied by clear and convincing evidence that subtle and implicit pressures did not overwhelm appellant’s will; review of a military judge’s determination of consent will be deferential, and the determination will not be overturned unless it is unsupported by the evidence or clearly erroneous).

United States v. Owens, 51 MJ 204 (when reviewing a commander’s decision to authorize a search, an appellate court determines whether the commander had a substantial basis for concluding that probable cause existed).

United States v. Gibson, 51 MJ 198 (under the two-pronged test to determine whether an accused received the effective assistance of counsel, and in light of the fact that counsel are presumed competent, to prevail on appeal an accused must show: (1) deficient performance; and (2) prejudice).

United States v. Harris, 51 MJ 191 (military judge’s determination on a request for mistrial, or on his own sua sponte consideration of a mistrial, will not be reversed absent clear evidence of abuse of discretion).

United States v. Anderson, 51 MJ 145 (a challenge of instructional error is reviewed using an abuse of discretion standard; a military judge has substantial discretion in deciding what instructions to give).

(military judge’s finding of necessity in support of a decision to limit the right to face-to-face confrontation between an accused and a child victim is a question of fact and will not be reversed unless it is clearly erroneous or unsupported by the record).

United States v. Muirhead, 51 MJ 94 (a military judge’s decision on whether a person being questioned is a suspect is reviewed de novo).

(military judge and Court of Criminal Appeals applied the wrong test when they placed great weight on the subjective opinions of law enforcement agents as to whether Article 31 warnings were required; the issue must be viewed objectively).

United States v. Warden, 51 MJ 78 (actual bias is reviewed subjectively through the eyes of the military judge or the court members to determine whether any bias is such that it will not yield to the evidence presented and the judge’s instructions).

(actual bias is a question of fact, upon which the military judge is given great deference recognizing the he has observed the demeanor of the challenged party; the military judge’s denial of a challenge for cause based on actual bias will not be overturned unless there is a clear abuse of discretion in applying the liberal grant mandate).

(implied bias is viewed through the eyes of the public, focusing on the perception or appearance of fairness in the military justice system, and determining whether most people in the same position as the court member would be prejudiced).

(the military judge is given less deference on questions of implied bias, recognizing that where there is no question of actual bias, implied bias should be invoked rarely).

United States v. Gray, 51 MJ 1 (“in favorem vitae” [in favor of life] policy for appellate review of capital cases rejected for the reasons set forth in United States v. Loving, 41 MJ 213, 266 (1994), aff’d on other grounds, 517 U.S. 748 (1996)).

(Court of Criminal Appeals’ denial of a petition for new trial is reviewed under a clear abuse of discretion standard; an abuse of discretion occurs if the findings of fact upon which a ruling is based are not supported by the record, if incorrect legal principles were used in deciding the petition, or if the lower court’s application of the correct legal principles to the facts of a particular case is clearly unreasonable).

(in reviewing petition for new trial on the basis of newly discovered evidence relating to a capital accused’s mental condition and state, the reviewing authority must also determine beyond a reasonable doubt whether a reasonable factfinder, considering the totality of the evidence, would be convinced by clear and convincing evidence that petitioner lacked mental responsibility for his crimes or should not get the death penalty for them).

(the standard for determining whether an instruction effectively placed relevant mitigating evidence beyond the effective reach of the sentencer is whether there is a reasonable likelihood that the members have applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence, and a reviewing court must approach the instructions in the same way that the members would, with a commonsense understanding of the instructions in the light of all that has taken place at the trial).

(post-trial request for psychiatric assistance and investigative services reviewed under the reasonable-necessity standard of Ake v. Oklahoma, 470 U.S. 68 (1985)).

(Court of Military Review (now Court of Criminal Appeals) decision denying funding for additional appellate expert mental health assistance reviewed for abuse of discretion).

(military judge’s decision on providing expert assistance is reviewed for abuse of discretion).

(the determination of whether counsel’s performance was constitutionally ineffective requires an assessment of the facts of a case using an objective standard of reasonableness; an appellant must show that his counsel’s conduct was not within the wide range of professionally competent assistance).

United States v. Bertie, 50 MJ 489 (Court of Appeals for the Armed Forces not inclined to recognize presumption that improper considerations of grade and rank were purposefully utilized by convening authority to stack courts based upon the composition of appellant’s court-martial and that of other panels within the command).

United States v. McClain, 50 MJ 483 (standard of review as to claims of ineffective assistance of counsel is de novo).

United States v. Weisbeck, 50 MJ 461 (the standard of review of a military judge’s decision to deny a continuance is abuse of discretion; there is an abuse of discretion where the 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).

United States v. Smith, 50 MJ 451 (a military judge’s decision to give an instruction, as well as the substance of that instruction, is reviewed de novo).

(in reviewing a military judge’s determination that a lesser-included offense is or is not in issue, an appellate court must independently evaluate the evidence to determine whether or not the accused has been deprived of this right to have a court-martial consider all reasonable alternatives to guilt).

 United States v. Anderson, 50 MJ 447 (analysis of a claim that charges should have been dismissed for a violation of RCM 707, the standard of review is whether the military judge abused his discretion).

United States v. Williams, 50 MJ 436 (if information favorable to the defense is impermissibly withheld, the test for prejudicial error is whether there is a reasonable probability of a different result had that evidence been disclosed to the defense).

United States v. Williams, 50 MJ 397 (the military judge may be presumed to know about law and precedent, and be presumed to have afforded an accused his rights under them).

United States v. Falk, 50 MJ 385 (appellate courts will not speculate as to the existence of facts which might invalidate a guilty plea, but must consider the entire record in a case in determining the providence of an appellant’s pleas).

United States v. Short, 50 MJ 370 (military judge’s decision on a request for expert assistance is reviewed for abuse of discretion).

United States v. Abrams
, 50 MJ 361 (an incomplete or non-verbatim record raises a presumption of prejudice which the government may rebut; an insubstantial omission fails to raise the presumption of prejudice; the question of what constitutes a substantial omission is determined on a case-by-case basis).

United States v. Belflower, 50 MJ 306 (military judge’s decision whether to allow individual or group voir dire is tested for an abuse of discretion).

United States v. Lee, 50 MJ 296 (to prevail on an allegation of a post-trial error, an appellant must meet three requirements:  (1)  error must be raised at the Court of Criminal Appeals; (2) appellant must allege prejudice as a result of the error; and (3) appellant must show what he would do to resolve the error if given the opportunity).

United States v. Lacy, 50 MJ 286 (at the Court of Criminal Appeals, appellant bears the burden of demonstrating that any cited cases are closely related to his or her case and that the sentences are highly disparate; if that burden is met, the government must show a rational basis for the disparity).

United States v. Griffin, 50 MJ 278 (military judge’s decision under MRE 702 concerning admissibility of expert testimony is reviewed for abuse of discretion; whether the military judge correctly applied the Daubert [509 U.S. 579 (1993)] framework is reviewed de novo and, if so, the military judge will not be overturned unless his decision is manifestly erroneous).

United States v. Brown, 50 MJ 262 (military judge’s decision to instruct is reviewed for an abuse of discretion, with all inferences from the evidence of record to be drawn in the Government’s favor; there must be “some evidence” which permits an inference of the matter to be instructed upon).

(erroneous deliberate avoidance instruction must be reviewed for reasonable possibility of prejudice because error may have constitutional significance if it causes a fact-finder to convict an accused on the basis of negligence).

United States v. Acevedo, 50 MJ 169 (interpretation of a pretrial agreement is a question of law to be reviewed de novo, generally applying basic principles of contract law except, however, where those principles are outweighed by the Constitution’s Due Process Clause protections for an accused).

United States v. Russell, 50 MJ 99 (Court of Appeals for the Armed Forces will not set aside a guilty plea unless there is a “substantial basis” in law and fact for questioning the plea).

United States v. Bickley, 50 MJ 93 (guilty plea will not be rejected on appeal unless there is a substantial basis in fact and law for questioning the plea; mere possibility of a defense will not support overturning a guilty plea).

(where post-trial efforts to undermine guilty plea contradict accused’s admissions on the record, and where matter inconsistent with plea was not fully developed on the record as a result of the guilty plea, speculation on such post-trial matters is inappropriate on appeal).

United States v. Allen, 50 MJ 84 (although charged with three specifications of rape on divers occasions during three specific time periods, evidence was sufficient under Jackson v. Virginia, 443 U.S. 307 (1979), to sustain finding of a consolidated specification that appellant committed rape on more than one occasion during a single, expanded time frame).

(to prevail on a claim of variance between pleadings and proof an appellant must show that the variance was material and that it substantially prejudiced him; to show prejudice, an appellant must show that he was misled by the language of the specification, unable to adequately prepare for trial, and at risk of another prosecution for the same offense).

United States v. Southworth, 50 MJ 74 (military judge’s decision on a motion for severance is reviewed for abuse of discretion - a three-prong test is applied to determine abuse of discretion in applying the “manifest injustice” test of RCM 906(b)(10):  (1) whether the evidence of one offense would be admissible proof of the other; (2) whether there was a proper limiting instruction; and (3) whether the findings reflect an impermissible crossover).

United States v. Thompson, 50 MJ 57 (test for legal sufficiency is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

(rulings on challenges for cause are reviewed for abuse of discretion, giving great deference to military judge on issues of actual bias and less deference on questions of implied bias).

United States v. Clemente, 50 MJ 36 (military judge’s decision to admit pre-sentencing evidence is reviewed under a clear abuse of discretion standard).

United States v. Murphy, 50 MJ 4 (in reviewing a capital case, CAAF will follow statutory mandate that “[a] finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused; however, in so doing, the CAAF will ensure that fundamental notions of due process, full and fair hearings, competent counsel, and above all, a “reliable result,” are all part of the equation to ensure that the military member has received a fair trial).


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