MILITARY JUSTICE PERSONNEL: Military Judge: Discretion

2022 (October Term)

United States v. Warda, 84 M.J. 83 (in this case, the military judge abused his discretion in denying appellant's motion to dismiss or abate the proceedings pursuant to RCM) 703(f) (now RCM 703(e)) on the ground that the government could not produce the records of the complaining witness's where (1) the complaining witness refused to consent to disclosure, (2) the complaining witness was the sole government witness and thus her credibility was matter of central importance to case, (3) her participation in immigration system could provide a significant motive for her to fabricate allegations against appellant if her continued presence in US following expiration of her conditional permanent resident card was based on claim that she was victim of sexual assault, and (4) the military judge made no findings of fact and drew no conclusions to undermine appellant's defense theory that the evidence was exculpatory).

(a military judge has broad discretion under RCM 703(f) (now RCM 703(e)) in determining whether an adequate substitute exists for evidence destroyed, lost, or otherwise not subject to compulsory process).

United States v. Harrington, 83 M.J. 408 (generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion). 

(in this case, the military judge abused his discretion in denying appellant’s request for an instruction on the maximum punishment for each individual offense because he did so based on an incorrect understanding of the law; contrary to the military judge’s apparent understanding, he possessed the discretion to instruct the panel on the maximum punishments available for each individual offense, in addition to informing them of the maximum cumulative punishment available for all offenses). 

(a military judge abuses his discretion when his legal findings are erroneous, or when he makes a clearly erroneous finding of fact). 

(in this case, trial counsel’s participation in the delivery of the victim’s unsworn statement via a question-and-answer format violated the principle that an unsworn victim statement belongs solely to the victim; and accordingly, the military judge abused his discretion by permitting trial counsel and the victim’s parents to present the unsworn victim statements in this format). 

United States v. Gilmet, 83 M.J. 398 (contrary to the government’s claim that the military judge circumvented the established UCI framework by excusing defense counsel before it could put on argument regarding its curative measures for the UCI, the military judge’s decision to address the conflict-of-interest issue at the outset was an attempt to determine to what extent the UCI infected the proceedings; once he learned that appellant’s military counsel still believed that a conflict existed, it was within the military judge’s discretion under RCM 801(a)(3) to explore the conflict issue to ensure that the proceedings did not continue until appellant obtained conflict-free counsel or consented to being represented by conflicted counsel; although the military judge’s inquiry concluded with the withdrawal of appellant’s military counsel, he did not abuse his discretion by fully resolving the conflict-of-interest issue before hearing argument from the government regarding whether it met its burden with respect to the UCI).

United States v. Smith, 83 M.J. 350 (in this case, even though the military judge was entitled to little deference because his ruling was supported by only bare-boned findings of fact and analysis on the record, he did not abuse his discretion in admitting the victim’s Snapchat message to a friend, “I think he [appellant] raped me,” as an excited utterance where (1) the message was a spontaneous outburst shortly after the event which was prompted by looking in a mirror and seeing a hickey on her neck and bruises on her chest and arms, (2) her discovery of the hickey and bruising was startling, causing her to shake, feel nauseated, and sweat, and (3) at the time, she was under the stress caused by the event, as she was shaking, nauseated, and sweating). 

United States v. Kim, 83 M.J. 235 (a military judge abuses his or her discretion by failing to obtain from the accused an adequate factual basis to support the plea, an area in which an appellate court affords significant deference, or if his or her ruling is based on an erroneous view of the law). 

(in this case, where appellant was charged with indecent conduct and that conduct implicated a First Amendment constitutional gray area with respect to the right to privacy, the plea colloquy needed to establish why possibly constitutionally protected material could still be service discrediting in the military context; in the absence of a colloquy between the military judge and appellant that contained an appropriate discussion and acknowledgment on the part of appellant between permissible and prohibited behavior, there was a substantial basis in law for questioning the plea, the military judge abused his discretion in accepting the plea, and the plea was improvident).

United States v. Shields, 83 M.J. 226 (a military judge’s findings of fact that the forensic examiner did not search unauthorized areas of appellant’s phone, that the examiner saw the suspected contraband image during the process of trying to sort the images by size and date, and that the examiner attempted to stay within the scope of the search authorization were not clearly erroneous, especially when the evidence is viewed in a light most favorable to the government, where the military judge properly heard from two experts with conflicting views on best practices when using software for organizing extracted data from a cell phone into a readable format and the military judge was entitled to credit one expert over another). 

(a military judge, as the trier of fact, has the discretion, indeed, responsibility, to credit one expert over another). 

United States v. Lattin, 83 M.J. 192 (a military judge abuses his or her discretion when: (1) the military judge predicates a ruling on findings of fact that are not supported by the evidence of record; (2) the military judge uses incorrect legal principles; (3) the military judge applies correct legal principles to the facts in a way that is clearly unreasonable; or (4) the military judge fails to consider important facts). 

(in this case, the military judge did not abuse his discretion by declining to exclude evidence obtained and derived from an unlawful search when his determination that the deterrence of future unlawful searches would not outweigh the costs to the justice system was not clearly unreasonable; the high costs of excluding the evidence is undisputed, and while exclusion of the evidence may produce some future deterrence, the degree of this future deterrence is subject to reasonable disagreement). 

United States v. Vargas, 83 M.J. 150 (in exercising her discretion to impose a remedy for discovery violations under RCM 701(g)(3)(D), the military judge may impose dismissal with prejudice if, after considering whether less severe alternative remedies are available, she concludes that dismissal with prejudice is just under the circumstances). 

United States v. St. Jean, 83 M.J. 109 (in this case, the motions judge did not abuse his discretion in excluding evidence under MRE 412 of a prior sexual encounter (i.e., a kissing incident between appellant and victim) because exclusion was within the range of choices reasonably arising from the applicable facts and the law; in this regard, the two interactions at issue here between appellant and the victim were quite dissimilar; making out was simply not comparable to sexual intercourse; stated differently, the fact that a person consented to kissing on one day is not particularly probative of the issue of whether that person consented to full sexual intercourse a day later; furthermore, the motions judge did not fail to analyze appellant’s proffered evidence under the constitutional exception to MRE 412 or to adequately conduct a MRE 403 analysis).

(in this case, the trial judge did not abuse his discretion in requiring the defense to make a sufficient proffer before evidence about hickeys allegedly arising from the charged sexual assault would be deemed admissible at trial under MRE 412; here, the judge asked the defense what evidence was before the court that the hickeys were from the night of the offense; the defense counsel stated that he could possibly address the matter later, but never returned to it; as such, the judge never affirmatively excluded the evidence, and under this circumstance, there was no ruling by the judge to be appealed, and hence nothing for an appellate court to review). 

(military judges receive wide discretion in conducting balancing under MRE 403, but military judges’ rulings receive less deference if they fail to articulate their analysis on the record). 

United States v. Pyron, 83 M.J. 59 (a military judge’s ruling on admissibility of evidence is reviewed for abuse of discretion; in order to be overturned on appeal, a military judge’s ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous or influenced by an erroneous view of the law). 

(in this case, the military judge abused his discretion when he ruled that appellant’s prior testimony was not admissible at the upcoming trial where he made no finding that the government had engaged in illegal conduct at the earlier trial but instead referred to the government’s action as merely an error). 

2021 (October Term)

United States v. Black, 82 M.J. 447 (in this case, the military judge did not abuse his discretion in holding that a fellow soldier lacked common authority to consent to the search of appellant’s entire phone or that the inevitable discovery doctrine or the doctrine of attenuation could transform the contents of the unlawful search into admissible evidence).

United States v. Rudometkin, 82 M.J. 396 (the general rule is that a military judge’s determination on a mistrial will not be reversed absent clear evidence of an abuse of discretion). 

(a military judge abuses his or her discretion when: (1) the military judge predicates a ruling on findings of fact that are not supported by the evidence of record, (2) the military judge uses incorrect legal principles, (3) the military judge applies correct legal principles to the facts in a way that is clearly unreasonable, or (4) the military judge fails to consider important facts).

(in this case that involved an accused who was convicted of rape, aggravated sexual assault, assault consummated by a battery, and adultery, assuming that the military judge should have disqualified himself due to his own inappropriate relationship with another servicemember’s wife, the reviewing judge did not abuse his discretion in denying the accused’s motion for a mistrial where the reviewing judge considered the general similarity of the accused’s misconduct and that of the military judge, emphasized that the military judge was not aware that he was suspected of adultery until after the trial and first post-trial session in which the accused’s sentence was reduced, determined that the administrative investigation into the military judge’s conduct made it very unlikely that injustices would occur in other cases, and concluded that a reasonable member of the public, knowing all the facts and circumstances, to include not only the suspicious personal relationship between the military judge and the other servicemember’s wife, but the sentence, sentence reduction, and crux of the case involving rape and violence against women, would not lose confidence in the justice system). 

United States v. Nelson, 82 M.J. 251 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and considers the evidence in the light most favorable to the party that prevailed at trial; a military judge abuses his discretion if ‘his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(in this case, the military judge abuse did not abuse his discretion in denying Appellant’s motion to suppress and ruling that appellant voluntarily entered his cell phone passcode where (1) appellant, who was 25-years-old, had been a Marine for four years, and was articulate with the ability to communicate, was not somehow peculiarly susceptible to coercion, (2) during his initial interview with law enforcement, not only did appellant technically waive his Miranda/Article 31, UCMJ, rights, he did so forthrightly and unambiguously and demonstrated his willingness to answer questions, and he repeatedly demonstrated his recognition that he could decline to provide the passcode to his phone, (3) although appellant cites the fact that he was asked and refused five times to provide the investigator with the passcode in his initial interview, he does not provide any basis for a conclusion that this initial interview was coercive -- he did not invoke his right to counsel and did not seek to depart from the interview; (4) during appellant’s second interview with law enforcement, the investigator’s tone and demeanor remained professional at all times, the encounter lasted only minutes, the investigator did not engage in threats, abuse, or coercion in order to get appellant to enter the passcode, and the investigator was not obligated to read appellant his rights again; (5) when appellant stated that he had no choice but to enter the passcode, he did not wait for a response by the investigator before unlocking his phone, and the investigator was under no obligation to correct appellant’s misimpression, and (6) by informing appellant that he had obtained a search authorization, the investigator did not overbear appellant’s will where he did, in fact, have a search authorization). 

United States v. Edwards, 82 M.J. 239 (during presentencing, the military judge abused his discretion by allowing a video as an unsworn victim statement under RCM 1001A(e) (2016 ed) (crime victims and presentencing), which authorizes a victim or the victim’s designee to make an unsworn statement that may be oral, written, or both, where this video was produced by the trial counsel and included an interview with the victim’s parents and a slideshow of photographs of the victim set to acoustic background music; a video that includes acoustic music and pictures is neither oral nor written and thus violates the rule; and because the trial counsel produced the video on behalf of the victim’s family, the video was, at least in part, trial counsel’s statement rather than theirs). 

(a military judge abuses his discretion when his legal findings are erroneous or when he makes a clearly erroneous finding of fact), 

United States v. Givens, 82 M.J. 211 (at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver). 

(in this case, where waiver for untimely filing applied to appellant’s motion to dismiss for an alleged defective preferral, the military judge did not abuse his discretion in not finding good cause for appellant’s delay in filing because the defense could not establish why the factual basis for the alleged defective preferral could not have been explored prior to the entry of pleas). 

United States v. Whiteeyes, 82 M.J. 168 (in this case, the military judge did not err when he ruled that there were certain pieces of independent evidence that raised an inference of the truth of appellant’s admissions or confessions related to the sexual abuse of his stepdaughter; furthermore, the military judge did not abuse his discretion when he ruled that these pieces of independent evidence, when considered together, tended to establish the trustworthiness of appellant’s admissions or confessions and admitted appellant’s statements into evidence under MRE 304(c)). 

United States v. Beauge, 82 M.J. 157 (in this case, the military judge properly denied in camera review of a victim’s psychiatric records under MRE 513(e) where appellant failed to make a preliminary showing, by a preponderance of the evidence, of a reasonable likelihood that the records or communications would yield evidence admissible under an exception to the psychotherapist-patient privilege set forth in MRE 513). 

United States v. Anderson, 82 M.J. 82 (under MRE 201(b), a military judge may judicially notice a fact that is not subject to dispute because it is generally known or can be accurately determined from sources whose accuracy cannot reasonably be questioned). 

United States v. Moratalla, 82 M.J. 1 (a military judge’s failure to obtain an adequate factual basis for a guilty plea constitutes an abuse of discretion). 

2020 (October Term)

United States v. Becker, 81 M.J. 483 (a military judge’s decision to exclude evidence is reviewed by an appellate court 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). 

(it is an abuse of discretion if the military judge: (1) predicates his ruling on findings of fact that are not supported by the evidence; (2) uses incorrect legal principles; (3) applies correct legal principles to the facts in a way that is clearly unreasonable; or (4) fails to consider important facts). 

(in this case, in light of the available circumstantial evidence that the unavailable witness had previously recanted her testimony against appellant and refused to cooperate with law enforcement, the military judge’s conclusion that appellant’s actions against this unavailable witness were not done with the intention of preventing her testimony were supported by the record; as such, the military judge’s finding of fact on the intent element of the forfeiture by wrongdoing exception to the hearsay rule in MRE 804(b)(6) was not clearly erroneous, and the military judge did not abuse his discretion in finding that the circumstantial evidence did not warrant an inference that appellant acted with such an intention). 

United States v. Hernandez, 81 M.J. 432 (in this case, the military judge did not abuse his discretion when he determined that the information in the search authorization application was not false or reckless and concluded that the good faith exception to the exclusionary rule applied; although there were significant deficiencies in the law enforcement affidavit presented to the military magistrate, those deficiencies, standing alone without any other evidence of bad faith, did not establish a substantial preliminary showing that a government agent included a false statement knowingly and intentionally or with reckless disregard for the truth where (1) other than the errors and omissions in the affidavit itself, the record did not include any evidence of recklessness by the government agents, (2) the military judge found credible the testimony of the government agent who signed the affidavit despite the military judge’s recognition that the agent made misstatements in his affidavit, and (3) at the suppression motion, defense counsel expressly stated that she was not alleging improper conduct by the government agent who signed the affidavit). 

United States v. Thompson, 81 M.J. 391 (an appellate court reviews a military judge’s ruling on an RCM 914 motion for an abuse of discretion; an abuse of discretion occurs when a military judge’s findings of facts are clearly erroneous or his conclusions of law are incorrect).

United States v. Jacinto, 81 M.J. 350 (a military judge’s unreasonable and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay is an abuse of discretion). 

United States v. Castro, 81 M.J. 209 (in this case, the military judge did not abuse his discretion in accepting appellant’s guilty plea to stealing gas that was the property of GSA by using a GSA fuel card without authorization to purchase gas for his car, despite the fact that GSA never had physical possession of the fuel before it was stolen and that appellant was not acting as the GSA’s agent in purchasing the fuel; appellant stipulated that the GSA paid for and owned the fuel that he put into his car and he confirmed this fact during the providence inquiry; because GSA was the entity that paid for the fuel, it thus had an interest therein superior to that of appellant as required for it to qualify as the owner of the fuel at the time the fuel was appropriated by appellant for his personal use; withholding the fuel from a party with a superior possessory interest is sufficient to constitute larceny; furthermore, an agency relationship is therefore not always necessary for the payer to have a greater right to possess the purchased property; appellant stipulated facts that were legally possible and that were consistent with his guilty plea; accordingly, appellant failed to show a substantial basis in law and fact for questioning the military judge’s acceptance of his guilty plea).

United States v. Henry, 81 M.J. 91 (in this case, the military judge abused his discretion by excluding the excited utterances of appellant’s son and wife where he evidenced a grudging view of the excited utterance exception and raised the standard to an impermissibly high level by requiring proof of personal knowledge and considering each statement in isolation). 

United States v. Upshaw, 81 M.J. 71 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion). 

United States v. Ayala, 81 M.J. 25 (a military judge’s decision to admit evidence is reviewed 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. Norwood, 81 M.J. 12 (a military judge’s decision constitutes an abuse of discretion if his or her findings of fact are clearly erroneous, the decision is influenced by an erroneous view of the law, or the decision is outside the range of choices reasonably arising from the applicable facts and the law).

United States v. Uribe, 80 M.J. 442 (in this case, the military judge failed to recognize that his friendship with the trial counsel raised special concerns where he had formed a close personal bond that transcended the routine personal and professional relationships commonly found between a military judge and a party who appears before that military judge; as a result, based not only on the frequency of their contact but also on the nature of the relationship, the judge abused his discretion when he denied a joint recusal motion from both trial and defense counsel; simply stated, granting this motion was necessary in order to maintain public confidence in the integrity and fairness of the military justice system because the judge’s impartiality in this case could reasonably be questioned). 

(when a military judge abuses his discretion in denying a recusal motion, an appellate court examines whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; because not every judicial disqualification requires reversal, the Liljeberg standard determines whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system; the first Liljeberg standard examines if there is any specific injustice that the appellant personally suffered; the second factor examines whether granting relief would encourage a judge or litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered; and the third factor uses an objective standard by determining whether the circumstances of a case will risk undermining the public’s confidence in the military justice system; although similar to the standard applied in the initial RCM 902(a) analysis, the third factor differs from the initial RCM 902(a) inquiry because it is not limited to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority action, the action of the CCA, or other facts relevant to the Liljeberg test). 

United States v. Garcia, 80 M.J. 379 (in this case, the military judge abused her discretion in finding that the omissions in the affidavit were material to extinguish a probable cause determination; an omission must do more than potentially affect the probable cause determination; it must be necessary to the finding of probable cause, and that was not the case here; in addition, the military judge abused her discretion because she misapprehended the law when she cited the need for the government to provide a complete picture to the search authority, and faulting the investigative agent for picking and choosing what facts to provide the search authority and thereby denying him the full picture of evidence and information; however, this is not the correct legal standard; an affidavit is not required to include every piece of information gathered in the course of investigation). 

United States v. White, 80 M.J. 322 (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 this case, the military judge did not abuse his discretion in finding that probable cause did not exist under MRE 311(a)(1) to support a command authorization for search and seizure of appellant’s home for evidence of child pornography where the three assertions made in the affidavit supporting the authorization failed to establish probable cause that evidence of child pornography or child exploitation would be found in appellant’s home; the military judge’s findings of fact were not clearly erroneous, he was not influenced by an erroneous view of the law, and his decision on the issue was not outside the range of choices reasonably arising from the applicable facts and the law). 

(in this case, the military judge did not abuse his discretion in finding that the government failed to establish that the individual issuing the search authorization had a substantial basis for determining the existence of probable cause and in concluding that the good faith exception to an unlawful search and seizure in MRE 311(c)(3) did not apply; the military judge reasonably decided that the information provided to the commander who authorized the search and seizure was so lacking in indicia of probable cause that it was objectively unreasonable to believe solely on the basis of this information that probable cause existed).

2019 (October Term)

United States v. Watkins, 80 M.J. 253 (a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar).

(in this case, the military judge abused his discretion in denying appellant’s request to excuse and replace his civilian counsel due to a perceived conflict of interest where the military judge failed to balance appellant’s right to choice of counsel against the demands of the court’s calendar and the concerns of fairness and efficiency as well as against the other factors mentioned in US v. Miller, 47 MJ 352 (CAAF 1997)).

United States v. Blackburn, 80 M.J. 205 (an appellate court reviews a military judge’s denial of a motion to suppress evidence for abuse of discretion; an abuse of discretion occurs when a military judge’s findings of fact are clearly erroneous or his conclusions of law are incorrect). 

United States v. Armendariz, 80 M.J. 130 (in this case, the military judge did not abuse his discretion in denying a motion to suppress evidence where the military judge found that the official who authorized the search was the acting commander with full authority and control over the remain-behind-element, except for authority to impose nonjudicial punishment and convene courts-martial; the acting commander was competent to issue the search and seizure authorizations because the power to do so devolved upon her).  

United States v. Bess, 80 M.J. 1 (where an appellant’s oral discovery request seeks irrelevant information, a military judge does not abuse her discretion by denying it). 

(an appellate court reviews a military judge’s ruling on a request for production of evidence for an abuse of discretion; a military judge abuses her discretion when her findings of fact are clearly erroneous or her ruling is influenced by an erroneous view of the law; a military judge also abuses her discretion when a decision is outside the range of choices reasonably arising from the applicable facts and the law). 

United States v. Carter, 79 M.J. 478 (a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings). 

(the power to grant a mistrial should be used with great caution, under urgent circumstances, and for plain and obvious reasons, including times when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members; curative instructions are the preferred remedy, and absent evidence to the contrary, a jury is presumed to have complied with the judge’s instructions). 

(in this case, where the government counsel improperly alleged that a witness testifying as to an adultery specification had been bribed, the military judge did not abuse his discretion where he declared a mistrial as to the adultery specification but not the other alleged offenses and where he issued curative instructions to the members informing them that the bribery allegations were unsubstantiated and instructing them to disregard all of that witness’s testimony and any inferences that anyone had attempted to bribe a witness in this case). 

United States v. Clark, 79 M.J. 449 (a military judge’s decision whether to strike testimony under RCM 914 is reviewed for an abuse of discretion; an abuse of discretion occurs when a military judge’s findings of facts are clearly erroneous or his conclusions of law are incorrect).

United States v. Finch, 79 M.J. 389 (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 this case, the military judge abused his discretion in admitting an entire videotaped interview of a child witness as a prior consistent statement under MRE 801(d)(1)(B) where (1) he failed to put any findings of fact or conclusions of law on the record, thereby forfeiting the deference his ruling typically would have been given, (2) he failed to review the video before admitting it, and (3) he admitted the entire video interview rather than limiting the evidence to those portions of the interview that actually contained prior consistent statements).

2018 (October Term)

United States v. Hyppolite, 79 M.J. 161 (in this case, the military judge did not abuse his discretion in his MRE 404(b) ruling that the evidence that appellant committed abusive sexual contact by touching the genitalia of three alleged victims, respectively, either directly or through their clothing, with an intent to gratify appellant’s sexual desire, when appellant knew or reasonably should have known that these men were asleep, could be used to show that appellant engaged in a common plan or scheme of criminality encompassing not only those offenses but also the offenses of abusive sexual contact by causing bodily harm by touching another victim’s genitalia with an intent to gratify appellant’s sexual desire and sexually assaulting that victim by penetrating his mouth and anus with appellant’s penis, even though the other victim was not asleep at the time of the sexual contact; in the latter case, the judge could have found that before appellant entered the room to assault the other victim, he may have thought that the victim was asleep because all the incidents occurred after a night of drinking when the alleged victims were asleep or falling asleep). 

United States v. Frost, 79 M.J. 104 (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; findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed).

(an appellate court may not find an abuse of discretion if the court’s conclusion is that the military judge was maybe wrong or probably wrong; rather, instead, an appellate court may only conclude that findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake by the trial judge has been committed).    

(in this case, the military judge made a clearly erroneous finding of fact when he admitted the initial statement of the alleged victim as a prior consistent statement after he determined that the defense had alleged that the victim’s psychotherapist had exerted an improper influence on the victim during counseling sessions and that this initial statement was made prior to the improper influence; in fact, based on the defense counsel’s opening statement, her cross-examination of the victim’s mother and the victim’s psychotherapist, and her colloquy with the military judge, the defense’s sole theory and line of approach was that the victim’s mother, not the psychotherapist, had a motive to improperly influence the victim by her desire to obtain sole custody of her children (to include the victim), and that she exerted an improper influence on the victim prior to the victim’s initial statement; statements made after an improper influence arose do not rehabilitate a witness’s credibility; because the military judge’s finding was unsupported by the record and outside the range of choices reasonably arising from the law and the applicable facts, the military judge abused his discretion in admitting the victim’s initial statement as a prior consistent statement when the initial statement was made after the mother’s improper influence). 

United States v. Lewis, 78 M.J. 447 (a military judge’s decision to exclude evidence is reviewed 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; 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 this case, where an initial confession was involuntary only because the accused had not been properly warned of his Article 31(b), UCMJ, rights to silence and to counsel, the military judge clearly erred in finding that a later, warned confession was involuntary where the judge presumed that that accused was suffering from a psychological adjustment disorder that affected his mood and ability to deal with additional stressors at the time of his later confession, when in fact, there was no evidence that the accused suffered from the disorder at the time of that confession, and this erroneous finding played no small role in his ultimate determination of voluntariness; even assuming that the accused had suffered from adjustment disorder at the time of his later confession, mental illness does not make a statement involuntary per se; here, the record did not reflect that the accused’s adjustment disorder negatively affected his capacity for free choice or that government overreaching occurred at the time of his later confession, and on the whole, the accused’s characteristics favored a finding of voluntariness; furthermore, the later confession was voluntary considering all the facts and circumstances, where (1) the accused chose to speak after being informed of his rights, (2) the interrogator was not one who had interrogated the accused previously, (3) the questioning was not particularly lengthy, (4) there were no threats, lies, or physical abuse, and the accused was not denied any material comforts, (5) the accused’s confession came almost two full months after his first unwarned interrogation, during which time he was not confined, and (6) the accused had been warned of his right to counsel during the previous interrogations and had several weeks between interviews to seek legal counsel or decide to decline further interviews and he did not do so; because the military judge clearly erred in his factfinding and rationale, and because the accused’s confession was voluntary under the totality of the circumstances, the military judge abused his discretion in suppressing the later confession). 

United States v. Hamilton, 78 M.J. 335 (a military judge abuses his discretion when he admits evidence based on an erroneous view of the law).

(in this case, the military judge abused his discretion by admitting victim impact statements offered as government exhibits and authenticated by members of law enforcement absent any indication either that the victims intended their statements to be used in this particular prosecution or that a designee was appropriate under the RCM 1001A (now incorporated into RCM 1001(c)). 

(in this case, if the military judge permitted the introduction of the victim impact statements as government aggravation evidence under RCM 1001(b)(4), he abused his discretion because they did not comply with the MREs and should have been excluded where the constituted out of court statements offered for their truth and were inadmissible hearsay and the witnesses did not swear an oath or make an affirmation before testifying. 

United States v. Kohlbek, 78 M.J. 326 (military judges may exercise their discretion in deciding whether to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for a confession).

(a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(in this case, the military judge abused his discretion in failing to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for the accused’s confession where the military judge operated under an erroneous view of MRE 707). 

United States v. Forbes, 78 M.J. 279 (in this case, the military judge did not abuse her discretion in accepting appellant’s guilty pleas to sexual assault by bodily harm through failing to inform his sexual partners he was HIV positive where appellant admitted that he failed to inform his victims of his HIV-positive status, thereby depriving them of the ability to provide meaningful, informed consent to sexual intercourse).

United States v. Criswell, 78 M.J. 136 (even if reasonable minds could differ about the application of the facts to the law, a military judge does not abuse his discretion in deciding to suppress an in-court identification on the ground that the in-court identification would be significantly impacted by a prior unreliable identification).

(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 this case, a military judge’s omission of an express discussion of weighing the five Biggers (Neil v. Biggers, 409 U.S. 188 (1972)) factors against the suggestiveness of the initial identification did not indicate that the military judge had an incorrect view of the law where (1) appellant did not contend that the military judge misunderstood this aspect of the MRE 321 analysis, (2) in the absence of clear evidence to the contrary, it is presumed that military judges know the law and follow it, and (3) the military judge emphasized that he had considered all the surrounding circumstances in determining that the in-court identification was reliable). 

(in applying the abuse of discretion standard, the question is not whether conflicting evidence might have been weighed differently, the question is only whether the military judge made a decision outside of the range of reasonable choices). 

(in this case, viewing the evidence in the light most favorable to the government, the military judge’s conclusion that the victim’s in-court identification of appellant was reliable, even though a pretrial identification was unnecessarily suggestive, was not outside the range of choices reasonably arising from the applicable facts and the law where (1) the victim was confronted twice by her assailant, was in his presence for a significant amount of time, and could see her assailant’s face clearly, (2) the victim was extremely attentive to her assailant’s features during the time that she was in his presence, (3) the victim gave a very detailed description of her assailant, a description that was corroborated by another witness at the time of the assault, (4) the victim’s identification of her assailant when shown a single photo of appellant prior to trial was immediate and certain, and (5) the length of time between the crime and the confrontation with the single photo was less than 24 hours, a very short amount of time leaving little opportunity for the victim to forget whatever she remembered about her assailant and therefore be persuaded by seeing only a single photo, and where the military judge considered all the surrounding circumstances, including environmental factors and the discrepancies raised by the defense in cross-examination; accordingly, the military judge did not abuse his discretion in denying appellant’s motion to suppress the victim’s in-court identification). 

United States v. Eugene, 78 M.J. 132 (a military judge abuses his discretion when his findings of fact are clearly erroneous or he misapprehends the law). 

(in this case, the military judge did not abuse his discretion when he found that appellant failed to revoke his wife’s consent to search his phone by asking a government agent if he could have his phone back, but did not request that his phone not be searched, thus concluding that appellant’s request that his phone be returned constituted an attempted withdrawal of consent to seize, but did not amount to a withdrawal of consent to search; this finding was not clearly erroneous where at no point did appellant tell the agent not to search his phone, and his request to have his phone returned came immediately after he willingly gave the agent his phone number, email address, user name, and password, and provided incriminating admissions). 

2017 (October Term)

United States v. Barker, 77 M.J. 377 (a military judge abuses his discretion when he admits evidence based on an erroneous view of the law). 

(in this case, the military judge abused his discretion by allowing the government to introduce a victim impact statements under RCM 1001A in presentencing without either the presence or request of the victim, the special victim’s counsel, or the victim’s representative). 

United States v. Eppes, 77 M.J. 339 (where the search authority has a substantial basis to find probable cause, a military judge does not abuse his discretion in denying a motion to suppress).

(in this case, where due to an apparent scrivener’s error, a search authorization for appellant’s person and personal vehicle omitted appellant’s personal bags, even though the affidavit in support of the authorization included the bags, the military judge did not abuse his discretion in admitting the contents of appellant’s personal bags where the law enforcement agents inevitably would have searched the bags and discovered their contents; first, the agents would have applied for and received authorization to search had they recognized the discrepancy omitting the bags; the agents conducted a search beyond the scope of the authorization, but within the confines of the affidavit; also, because the military judge made no finding of bad faith, it may be assumed that the agents were unaware of the discrepancy between the warrant and the affidavit; had the agents arrived at appellant’s office and noticed the personal bags, read the authorization, noticed the discrepancy, and decided not to search the bags, they could have, and likely would have lawfully seized the bags, with probable cause to do so, and either called a military magistrate and asked for an oral search authorization or left and obtained a written authorization to search the bags; furthermore, it is reasonable to conclude the agents would have applied for authorization to search the bags where they had earlier requested in the affidavit to search any bags found; the probable cause that existed to search appellant and his vehicle would still have supported any later request to search the bags had the illegality not occurred; second, the agents were actively pursuing leads that would have led them to the same evidence; third, there is no valid policy reason for applying the exclusionary rule in this case; and fourth, where the Fourth Amendment violation was likely not the result of deliberate misconduct in need of deterrence, any marginal deterrent benefit to be gained is far outweighed by the heavy costs exclusion would have — namely placing the government in a worse position than it would have been had the illegality not occurred).

United States v. Carpenter, 77 M.J. 285 (when reviewing a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion, the CAAF pierces the CCA’s opinion and examine the military judge’s ruling directly).

(in this case, in the context of the argument made by trial defense counsel in a motion in limine at trial, the trial judge’s decision to exclude evidence pursuant to MRE 412 was not clearly erroneous where trial defense counsel sought to present evidence of the victim’s sexual encounters with other adult men to show that the victim had knowledge of sexual activity beyond her years but where he did not argue that the evidence would be used to support the objective prong of appellant’s mistake of fact defense; the defense argument made at trial was not the same one made on appeal, and an appellate court’s review for error is based on the trial judge’s disposition of the motion submitted to him and not on a motion that appellate defense counsel now wishes trial defense counsel had submitted at trial).   

United States v. Simpson, 77 M.J. 279 (a military judge abuses his discretion in accepting a guilty plea 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; a ruling based on an erroneous view of the law is also an abuse of discretion). 

United States v. Condon, 77 M.J. 244 (in light of other definitions, to include part of the defense-proposed instruction for “incapable of consenting,” and defining “impaired,” as well as the definitions of “consent” from the Military Judges’ Benchbook, the phrase “incapable of consenting” did not require additional definition and furrther instruction on this point was not required; with these definitions, the military judge allowed the panel to understand the element “incapable of consenting;” accordingly, the military judge did not abuse his discretion in failing to give the entire defense-proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members). 

United States v. Jerkins, 77 M.J. 225 (in this case, a military judge abused her discretion by admitting into evidence during sentencing rebuttal a general officer memorandum of reprimand that appellant received for engaging in an inappropriate relationship with an enlisted woman, where the memo contained an explicit suggestion that appellant was not fit for continued service in the Army and where the memo was admitted into evidence without the normal due process required by Army regulations, namely without allowing for appellant’s exercise of his right to rebuttal; the commander’s opinion that appellant was unfit for continued military service was essentially a recommendation that he be dismissed from the service, and that opinion invaded the province of the members of the court-martial).

United States v. Short, 77 M.J. 148 (absent clear evidence of an abuse of discretion, an appellate court will not reverse a military judge’s determination on a motion for mistrial; in determining whether the military judge abused his discretion by not granting a mistrial, an appellate court looks to the actual grounds litigated at trial; the challenge is to assess the probable impact of the inadmissible evidence upon the court members; that judgment is rooted in a simple tolerable risk assessment that the members would be able to put aside the inadmissible evidence).

(in this case, in the absence of any prejudice, the military judge did not abuse his discretion in declining to declare a mistrial based on misconduct by the trial counsel for eliciting inadmissible testimony and offering improper argument where the military judge properly sustained defense objections, warned trial counsel about his behavior, and issued several curative instructions; trial counsel’s conduct was not so prejudicial that the curative instructions were inadequate, and there was simply no evidence here that the members failed to comply with the military judge’s curative instructions; absent contrary indications, it may be presumed that the panel followed the military judge’s instructions; furthermore, the mixed findings and very lenient sentence indicated that the members were capable of and did put aside the inadmissible testimony and improper argument; in light of the longstanding view of mistrials as an extraordinary remedy and the directive that military judges explore other remedial action first, the military judge here was not required to declare a mistrial). 

2016 (October Term)

United States v. Mitchell, 76 M.J. 413 (a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect). 

United States v. Gurczynski, 76 M.J. 381 (when an appeal presents 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). 

(under the facts of this case, it was constitutionally unreasonable for the government to conduct a digital forensic search of a thumb drive for evidence of child pornography based on a warrant previously issued over nine months earlier for charges of the sexual abuse of a child, crimes for which the owner had already been convicted five months earlier; as such, the military judge did not abuse his discretion in concluding that evidence of an offense not named in the warrant or supporting affidavits was outside the scope of the warrant and must be suppressed).

United States v. Ramos, 76 M.J. 372 (on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(in this case, the military judge abused his discretion in concluding that law enforcement agents, who interviewed appellant about threats that he and his wife had allegedly received from his wife’s partner in a state-authorized marijuana growing business, were not conducting a law enforcement investigation, but were instead focused on force protection, where under a totality of the circumstances, the agents suspected appellant of a UCMJ violation for his involvement with marijuana, but intentionally declined to advise him of his rights in order to continue to talk to him; because the agents suspected that appellant had committed an offense under the UCMJ, he was entitled to be advised of his Article 31(b) rights). 

United States v. Commisso, 76 M.J. 315 (a military judge abuses his discretion when: (1) he predicates his ruling on findings of fact that are not supported by the evidence of record; (2) he uses incorrect legal principles; (3) he applies correct legal principles to the facts in a way that is clearly unreasonable, or (4) he fails to consider important facts).

(failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause). 

(under the facts of this case, the military judge abused his discretion in denying appellant’s motion for a mistrial where, in appellant’s trial for various sex offenses, three panel members gave inaccurate statements during voir dire about their association with the sexual assault response system and their exposure to the facts of appellant’s case and they failed to correct these inaccurate statements during trial; not only did the members fail to answer material questions honestly at voir dire, had they answered honestly, their responses would have provided a valid basis for a challenge for cause, especially considering the cumulative effect of having three panel members serve on the same panel under a specter of possible bias that they each recognized, and even talked about during trial, but did not disclose). 

United States v. Hendrix, 76 M.J. 283 (in this case, the military judge did not abuse his discretion in denying appellant’s request to have an expert consultant in the field of audio forensic science and voice identification where he failed to meet his burden of demonstrating necessity; appellant did receive some assistance from the requested expert when he testified at an Article 39(a), UCMJ, hearing about deficiencies in the government’s voice-identification procedure, and he had other scholarly resources available to assist him in defending against the voice-identification evidence).

(in this case, the military judge did abuse his discretion when he admitted into evidence, over defense objection, the results of a voice-lineup where the alleged sexual assault victim purportedly identified appellant as her assailant; the voice-lineup evidence had no probative value as to whether the sexual assault actually occurred, or if the sexual assault did occur, whether appellant was the person who perpetrated that assault; furthermore, the lineup was not conducted in a manner that would assist the trier of fact in deciding whether or not appellant perpetrated the reported sexual assault where the methodology used was not reliable; finally, even if the voice-identification evidence had some minimal probative value, it was inadmissible under MRE 403 because this minimal probative value was substantially outweighed by the misimpression it left on the members about the usefulness and importance of the voice identification).

United States v. Erikson, 76 M.J. 231 (a military judge has broad discretion to impose reasonable limitations on cross-examination, based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant). 

United States v. Lopez, 76 M.J. 151 (in prosecution of appellant for allegedly committing indecent liberties with a child by introducing his stepson to pornography, the military judge abused his discretion in admitting testimony from appellant’s wife that amounted to human lie detector testimony, where she recounted that during a conversation between her son and husband about the alleged offense, appellant had stated that if he had done anything wrong, he was sorry, a statement that his wife interpreted as being a loose admission of guilt, and where she in effect testified that her son was telling the truth and her husband was not).

United States v. Price, 76 M.J. 136 (it is an abuse of discretion if a military judge accepts a guilty plea without an adequate factual basis to support it). 

(in this case, the military judge did not abuse his discretion by eliciting additional details of the charged offenses during appellant’s providence inquiry, where the judge’s questions during the plea inquiry were consistent with the requirements of RCM 910(e), the questions were closely connected to the offenses for which appellant was pleading guilty, and the military judge did not range far afield during the providence inquiry). 

United States v. Nieto, 76 M.J. 101 (in this case, the military judge abused his discretion in denying appellant’s motion to suppress evidence from a seized laptop, where there was an insufficient particularized nexus linking appellant’s alleged use of his cell phone in taking indecent photos of other servicemembers in a latrine to his laptop; the military magistrate who authorized the seizure of the laptop lacked a substantial basis for concluding that probable cause existed to seize it, where the information provided by the special agent to the magistrate did not independently establish a particularized nexus between (a) the crime appellant was alleged to have committed with his cell phone in the latrine and (b) the laptop that was previously seen by somebody on appellant’s bunk; the special agent’s generalized profile about how servicemembers normally stored images was technologically outdated, affidavits accompanying the search authorization did not reference a laptop or data transfers from appellant’s cell phone, and there was no direct evidence that images were on the laptop or evidence that the files on the cell phone were transferable to the laptop; in addition, the special agent made no proffer to the military magistrate that anyone had ever seen appellant download material from his cell phone to a laptop; in fact, even appellant’s ownership of the laptop in question was predicated on suspect information and credited to an unknown source; as such, the military magistrate could not have drawn any reasonable inferences linking the crime and the laptop based on the limited information and generalized profile offered by the special agent; therefore, the military magistrate did not have a substantial basis for concluding that probable cause existed to seize appellant’s laptop; in order to identify a substantial basis for concluding that probable cause existed to believe that appellant’s laptop was linked to the crime, at a minimum, there needed to be some additional showing, such as the fact that appellant actually downloaded images (illicit or otherwise) from his cell phone to his laptop, stored images on his laptop, or transmitted images from his laptop; and yet, there was no such showing in this case; therefore, there was no basis, substantial or otherwise, for the military magistrate to conclude that probable cause existed to seize the laptop).

United States v. Bowen, 76 M.J. 83 (under the circumstances of this case, the military judge abused his discretion by admitting under MRE 803(2) the hearsay testimony that the victim nodded her head in response to a question by a law enforcement officer asking her whether her husband beat her without adequately considering the victim’s mental capacity at the time in question).

2015 (September Term)

Howell v. United States, 75 M.J. 386 (a military judge, in finding an Article 13, UCMJ, violation for the government’s failure to pay appellant at his prior pay grade pending the results of a rehearing of his court-martial, did not exceed his authority by not following Article III courts’ holdings that appellant was only entitled to be paid as an E-1 pending the results of a rehearing; determining whether the government’s action of not paying appellant as an E-6 (his pay grade prior to his initial conviction) pending the results of the rehearing amounted to an Article 13, UCMJ, violation is properly within the jurisdiction of the military courts; this determination necessarily requires an interpretation of Article 75(a), UCMJ, an article that provides for the restoration of property when a court-martial sentence has been set aside by an appellate court; this is the sort of issue for which the military court ought not to defer to an Article III court’s interpretation).

(under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1, were set aside and he was pending a rehearing, there was no intent to punish appellant by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; the government’s interpretation of the restoration statute, Article 75, UCMJ, although erroneous, was in furtherance of a legitimate, nonpunitive governmental objective to provide an accused pending rehearing with the proper pay entitlement as prescribed by Congress; thus, no violation of Article 13, UCMJ, occurred, and the military judge abused his discretion in awarding confinement credit). 

United States v. Hills, 75 M.J. 350 (in this case, the military judge operated under an erroneous view of the law when he admitted the charged offenses as MRE 413 evidence to show appellant’s propensity to commit the charged offenses, and thus abused his discretion).

United States v. Rogers, 75 M.J. 270 (in this case involving allegations of sexual assault, the military judge abused her discretion when she denied a defense challenge to a member for implied bias where that member’s misunderstanding of about an intoxicated person’s ability to give consent and her inferred burden-of-proof shift from the government to the defense would cause an objective observer, under the totality of the circumstances, to have substantial doubt about the fairness of the court-martial panel; under the facts of this case, the member’s understanding of the law on intoxication and consent was critical, and the military judge never issued a curative instruction despite the member’s strongly held opinion that it was not possible for an intoxicated person to give consent to sexual activity if that person was too drunk to remember having sex and that the government would have to prove otherwise; furthermore, when the member asked for a definition of a “competent” person with regard to a person who could give consent, the military judge instructed her that there was no further definition of “competent” available and advised her to rely on her understanding of the common definition of the word; as such, not only did the military judge fail to instruct the member to disregard her personally held incorrect belief, the response effectively endorsed her erroneous understanding, both as to whether an intoxicated person can give consent and as to which party had the burden of proof on that issue).    

United States v. Henning, 75 M.J. 187 (on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).

(in this case, the military judge did not abuse his discretion in excluding DNA evidence and accompanying expert testimony because the government had failed to carry its burden of showing that the modified SWGDAM (Scientific Working Group on DNA Analysis Methods) formula used by the crime lab to interpret the DNA results was reliable under the criteria of MRE 702, Houser, and Daubert, where (1) the military judge found that the preponderance of evidence did not establish that the modified formula was widely accepted or peer reviewed, (2) with the exception of the assertion made by the lab employees who used the formula, there was nothing in the record to show it was employed anywhere outside of the crime lab, (3) the military judge was not required to admit opinion evidence that was connected to existing data only by the ipse dixit (something asserted but not proved) of the expert, and (4) the record failed to contradict the military judge’s finding that the modified formula used by the crime lab was a combination of two different statistical calculations, despite such a combination being impermissible under the SWGDAM guidelines). 

United States v. Bess, 75 M.J. 70 (in this case, the daily muster reports offered under the business records exception were not so untrustworthy that their admission as business records constituted an abuse of discretion by the military judge where given the limited results of the cross-examination of the government witness and the defense witness testimony, nothing presented demonstrated a lack of trustworthiness; servicemembers represented as “present” on the muster reports had been physically verified by a line-level supervisor, and the rule requires only that the records be created based upon information transmitted by a person with knowledge; although the meaning of the designation for servicemembers listed on the reports as “late stay/special detail” could vary depending on the context, contemporaneous documentation need not be a model of statistical clarity to qualify as a business record).  

(in this case, the military judge’s giving  muster reports to court members without affording appellant an opportunity to cross-examine the government witness who laid the evidentiary foundation for their admissibility, to call a defense rebuttal witness, or to have his counsel comment on the new evidence in front of the members deprived appellant of his constitutionally protected ability to present a complete defense, and constituted an abuse of discretion by the military judge; the relevant witnesses were available, appellant’s evidence and cross-examination were relevant to the evidentiary weight the court members should afford the muster reports, and it would have been relatively easy to allow the parties to comment on the government’s altered case; failure to give appellant these opportunities to challenge the reliability of the muster reports before the factfinder violated his constitutional rights where those reports provided some evidence of the identity of the alleged perpetrator of the charged offenses). 

2014 (September Term)

United States v. Katso, 74 M.J. 273 (in this case, the testimony of the government’s forensic DNA expert witness who did not conduct the DNA analysis of the sexual assault kits, but rather performed a technical review of the analysis performed by another expert, did not violate the accused’s right to confrontation, and the military judge’s denial of the accused’s motion to exclude the expert’s testimony was not an abuse of discretion, where the expert’s personal knowledge regarding the derivation of the evidence at issue made him neither a surrogate expert, nor a mere conduit for the testimonial statements of another; here, the expert conducted a thorough review of the entire case file, including the documents submitted with the evidence, the tests performed on the evidentiary samples, and the quality control measures; he personally compared the DNA profiles from the evidentiary samples to the DNA profiles from the known samples, reran the statistical analysis, and formulated his own carefully considered conclusions; much of the data underlying his opinion was not testimonial, and, assuming arguendo that the report prepared for his technical review was testimonial, the expert did not act as a mere conduit for the report; in sum, the expert presented his own expert opinion at trial, which he formed as a result of his independent review, and clearly conveyed the basis for his conclusions; that he did not himself perform aspects of the tests goes to the weight, rather than to the admissibility of his opinion). 

United States v. Woods, 74 M.J. 238 (in this case, the military judge erred in denying a defense challenge for cause on grounds of implied bias to the senior member of the panel where (1) on her preliminary member’s questionnaire, the senior member stated her belief that “the enforcement of ‘you are guilty until proven innocent’ (just the opposite as in the civilian sector) is essential because the military needs to be held to a higher standard just for reasons of our mission;” (2) during voir dire, she elaborated on this response, but reasonable observers could interpret her responses as confusing rather than clarifying her views; and (3) given the specific facts of this case and the unique structure of the military justice system, a reasonable member of the public might well question the fairness of including this member on the panel; the defense challenge to this member’s participation on the panel presented, at minimum, a close question, and particularly in view of the liberal grant mandate, the military judge erred in denying the defense challenge for cause on grounds of implied bias, and that error prejudiced appellant’s substantial rights). 

United States v. Carter, 74 M.J. 204 (with respect to a military judge's decision to admit or exclude evidence at sentencing, a military judge is given wide discretion and more deference if he or she properly conducts a MRE 403 balancing test and articulates his or her reasoning on the record).

(in this case, the military judge did not abuse her discretion when, based upon her reasoned interpretation of case law, she determined that appellant could not present the Article 13, UCMJ, violations to the panel members as mitigation evidence after already being awarded confinement credit by the military judge based upon that same evidence; at the time, she was presented with what was expressly acknowledged as an unsettled question of law and, relying on the relevant cases, she provided on the record sound reasoning to support her ruling).

United States v. Simmermacher, 74 M.J. 196 (where appellant satisfied the three criteria for unavailable evidence set forth in RCM 703(f)(2), and because a continuance or other relief could not have produced the destroyed urine sample, the military judge abused his discretion when he failed to abate the proceedings as to the charge of wrongful use of cocaine under Article 112a).    

(in determining under RCM 703(f)(2) whether an adequate substitute for lost or destroyed evidence is available, a military judge has broad discretion; it is when there is no adequate substitute is available that military judges do not have discretion to vary from the prescribed remedy of abatement of proceedings). 

United States v. Muwwakkil, 74 M.J. 187 (the military judge did not abuse her discretion in striking the complaining witness’s testimony based on the government’s failure to provide the defense with a recording of the complaining witness’s Article 32, UCMJ, testimony as required under the Jencks Act, 18 USC § 3500, and RCM 914, where she concluded that the loss of the Article 32, UCMJ, recorded testimony could only be remedied by striking the complaining witness’s testimony because: (1) the summarized testimony was not a substantially verbatim transcript of the complaining witness’s Article 32, UCMJ, testimony; (2) the recording was lost due to the government’s negligence, and perhaps, gross negligence; (3) impeachment of the complaining witness was the defense’s most important strategy; (4) the complaining witness was one of two key witnesses in the case; (5) the investigating officer found the complaining witness’s testimony to be inconsistent with previous statements; and (6) there was no substitute for the Article 32, UCMJ, recording).

(in this case, the military judge did not abuse her discretion in applying the Jencks Act and RCM 914 to strike the complaining witness’s testimony and in declining to apply the good faith loss doctrine, where she explicitly found that the government had engaged in negligent conduct and where a finding of negligence may serve as the basis for a military judge to conclude that the good faith loss doctrine does not apply). 

United States v. Norman, 74 M.J. 144 (in this case, the military judge abused his discretion in admitting under MRE 701 the testimony of a Marine MP who responded to appellant’s 911 call and testified that in his opinion, any Marine parent who endangers the life of a child by culpable negligence would bring discredit upon the Marine Corps; the MP’s lay opinion testimony essentially restated the terminal element; he offered no reasoning or particular facts as to his understanding of the concept of service discrediting conduct or how he understood this concept as applied to appellant’s actions; it was not clear why the testimony of a Marine MP, without more, would be helpful regarding a question of parenting practice, and whether such practice was service discrediting; although the MP’s testimony regarding his perceptions of the Marine Corps may have established a rational basis for his opinion, the testimony did not establish sufficient details to aid the factfinder in evaluating the service discrediting element; the witness met the first requirement in MRE 701 – he had a rational basis for his perceptions, but failed to meet the second requirement – his testimony was not helpful to the determination of a fact in issue for the factfinder). 

United States v. Adams, 74 M.J. 137 (in this case, the military judge abused his discretion when he admitted numerous uncorroborated essential facts from appellant’s confession to larceny of cocaine; in a case where the only direct evidence of the crime was the confession, it is important to determine what was not corroborated; here, there was no evidence that corroborated appellant’s opportunity or motive to commit the crime, his access, his intent, the accomplices involved, the subject of the larceny (i.e., cocaine), the time of the crime, or the act of the larceny itself (appellant’s waving a handgun while an accomplice grabbed the cocaine); in short, virtually none of the facts previously articulated as essential to corroborating a confession were corroborated; even if one were to assume that the evidence relied upon below (the possession of a handgun, testimony concerning the existence of a specific drug dealer, and testimony regarding the location of a store and a hotel) properly corroborated the location of the larceny and the identity of the victim, those facts, combined with the ownership of the handgun, were legally insufficient to support the larceny conviction absent any additional direct evidence of a crime; and because the confession was the government’s key piece of evidence, the admission of the uncorroborated essential facts was prejudicial to appellant). 

United States v. Olson, 74 M.J. 132 (a military judge’s decision to admit or exclude evidence is reviewed 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). 

(in this case, the military judge’s finding that appellant voluntarily consented to the search of her home was not clearly erroneous under the totality of the circumstances where the military judge applied the Wallace factors (US v. Wallace, 66 MJ 5 (CAAF 2008)) and determined that ((1) appellant’s liberty was not restricted, (2) law enforcement agents did not threaten or bully appellant into consenting, (3) appellant was inferentially aware of her right to refuse to consent based on some knowledge of law enforcement tactics, (4) appellant was upset on learning from law enforcement agents that her husband had been arrested, but in spite of this, she had the ability to make a rational decision, (5) appellant did not consult with counsel because she had not been informed that she was a suspect and had not been advised of her rights, and (6) there were no prior violations of appellant’s rights; as such, appellant’s consent to search was a product of her free and unconstrained choice, and not a result of duress or coercion, express or implied, and the military judge did not abuse his discretion in admitting evidence derived from that consent to search). 

United States v. McFadden, 74 M.J. 87 (abuse his discretion by denying the motion for mistrial).

(a military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings). 

(a mistrial is an unusual and disfavored remedy; it should be applied only as a last resort to protect the guarantee for a fair trial; it is reserved for only those situations where the military judge must intervene to prevent a miscarriage of justice).  

(because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving curative instructions; a curative instruction is preferred to granting a mistrial, which should only be granted when inadmissible matters so prejudicial that a curative instruction would be inadequate are brought to the attention of the members).

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

(the military judge may, in the interest of justice, excuse a member against whom a challenge for cause would lie; a military judge has the discretionary authority to sua sponte excuse the member but has no duty to do so; the discretionary authority of a military judge to excuse a member sua sponte in the interest of justice may be characterized as a drastic action). 

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

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

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

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

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

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

2013 (September Term)

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

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

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

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

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

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

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

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

2012 (September Term)

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

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

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

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

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

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

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

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

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

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

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

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

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

2011 (September Term)

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

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

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

2010 (September Term)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

plea cases). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2007

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

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

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

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

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

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

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

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

2001

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