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Tuesday, March 06, 2007
New published Air Force Court opinion
The Air Force Court's web site has a new published opinion, which includes a lengthy Military Rule of Evidence 413 analysis. United States v. Rangel, __ M.J. ___, No. 36382 (A.F. Ct. Crim. App. 2 March 2007).
Coast Guard Ex Writ
Anyone have inside gouge on the extraordinary writ from the CGCCA? Morton (Misc. No. 07-8009/CG) appeared on the CAAF Daily Journal for March 5, 2007 (the CAAF Daily Journal is, at least for the time being, now a daily, Daily Journal). The journal entry states that the motion for a stay of the CGCCA proceedings was granted. The journal says that the stay was granted until Mar. 8, 2007, and further action on the petition is held in abeyance pending the Court's final aciton. Based on the wording it is tough to tell if they mean final action by CGCCA or CAAF, but it must be CGCCA. No CGCCA decision in the case is available on the CGCCA website. Anyone know what the petition all about?
Monday, March 05, 2007
From moot court to mute court?
Today's daily journal update includes a pair of orders denying law students' motions to orally argue cases as amicus curiae. United States v. Moran, __ M.J. ___, No. 06-0207/AF (C.A.A.F. March 1, 2007) (order allowing Georgetown University Law Center Appellate Litigation Program and Washington College of Law students leave to file amicus briefs but denying motions to present oral argument); United States v. Lewis, __ M.J. ___, No. 07-5002/AR (C.A.A.F. March 1, 2007) (order allowing Georgetown University Law Center Appellate Litigation Program to file amicus briefs but denying motion to present oral argument).
The Lewis order indicates that the government opposed the students' motion to participate as amicus, but no such opposition is noted in the Moran order. As some of my previous posts suggest, I'm not a fan of law students participating in oral arguments; I believe such faux amicus arguments detract from CAAF's central mission of deciding cases justly. So I hope the Lewis and Moran orders reflect a policy shift by the court.
The Lewis order indicates that the government opposed the students' motion to participate as amicus, but no such opposition is noted in the Moran order. As some of my previous posts suggest, I'm not a fan of law students participating in oral arguments; I believe such faux amicus arguments detract from CAAF's central mission of deciding cases justly. So I hope the Lewis and Moran orders reflect a policy shift by the court.
Lane joke
CAAF held a classy investiture ceremony for its two newest judges today.
Probably the biggest laugh of the day occurred during Brigadier General Edward F. Rodriguez, Jr.'s remarks about Judge Stucky. (BGen Rodriguez is the JAA President.) Senator Lindsey Graham was there to administer the oath of office to Judge Stucky. BGen Rodriguez was diplomatically mentioning each of the assembled VIPS, when he referred to "Senator and former Judge Graham." The audience, obviously well-versed in Lane, roared.
The most touching remarks of the day were delivered by Justice Thomas, who administered the oath of office to Judge Ryan. He mentioned that this was the first oath of office he has administered to make one of his former clerks a judge.
And the funniest line of the day oddly got little response from the audience. Judge Ryan referred to joining her four (all male) colleagues on the bench, and mentioned each by name. She then said, "For the record, I do not expect to feel lonely at all." This was an obvious reference to Justice Ginsburg's complaint that she feels lonely as the only woman left on the Supreme Court since Justice O'Connor's retirement. I roared with laughter. Professor Bo Rutledge, who was sitting two seats down from me, roared with laughter. Not many others roared with laughter. But I thought it was even better than the Lane joke.
In any event, congratulations to Judges Stucky and Ryan in the unlikely event that they read CAAFlog. Their appointment and confirmation to the CAAF bench is a favorable development for the military justice system. (Until very recently, I would have thought it silly to even think that an august judge might take the time to read our electronic ramblings. Of course, Chief Judge Wagner of the Navy-Marine Corps Court has since disabused me of that notion.)
Probably the biggest laugh of the day occurred during Brigadier General Edward F. Rodriguez, Jr.'s remarks about Judge Stucky. (BGen Rodriguez is the JAA President.) Senator Lindsey Graham was there to administer the oath of office to Judge Stucky. BGen Rodriguez was diplomatically mentioning each of the assembled VIPS, when he referred to "Senator and former Judge Graham." The audience, obviously well-versed in Lane, roared.
The most touching remarks of the day were delivered by Justice Thomas, who administered the oath of office to Judge Ryan. He mentioned that this was the first oath of office he has administered to make one of his former clerks a judge.
And the funniest line of the day oddly got little response from the audience. Judge Ryan referred to joining her four (all male) colleagues on the bench, and mentioned each by name. She then said, "For the record, I do not expect to feel lonely at all." This was an obvious reference to Justice Ginsburg's complaint that she feels lonely as the only woman left on the Supreme Court since Justice O'Connor's retirement. I roared with laughter. Professor Bo Rutledge, who was sitting two seats down from me, roared with laughter. Not many others roared with laughter. But I thought it was even better than the Lane joke.
In any event, congratulations to Judges Stucky and Ryan in the unlikely event that they read CAAFlog. Their appointment and confirmation to the CAAF bench is a favorable development for the military justice system. (Until very recently, I would have thought it silly to even think that an august judge might take the time to read our electronic ramblings. Of course, Chief Judge Wagner of the Navy-Marine Corps Court has since disabused me of that notion.)
Saturday, March 03, 2007
Random thoughts on MRE 404(b)
Guert's post of 1 March caused me to look into something about CAAF's 404(b) analysis that has bothered me for a long time. And since we're in a little bit of a lull as far as new CAAF cases go, why not air old grievances?
My complaint pertains to the way CAAF analyzes whether a prior act is admissible on the basis that it is part of a common scheme or plan with the charged misconduct. In particular, I disagree with the emphasis CAAF places on whether the two acts in question are substantially similar to one another. The way CAAF approaches the "common scheme or plan" today can be traced to the CMA decision in United States v. Brannan, 18 M.J. 181 (1984). In Brannan, the accused faced court-martial for inviting PFC Hall and Specialist Four Jones into his pickup truck, producing two marijuana cigarettes, and inviting both Hall and Jones to "fire it up." After the three smoked the marijuana, the accused produced a paper bag full of smaller plastic baggies and offered to sell additional marijuana for $25 or $30 per bag.
At trial, the government sought to introduce evidence that the accused had previously transferred baggies of marijuana to other Soldiers on three different occasions, and that he had smoked marijuana previously. The government asserted that this evidence tended to show "a common scheme, plan or design [by appellant] for the continual sale of marihuana to troops on this post." Id. at 183. CMA considered that argument thus:
Id. at 184.
While I agree with the result of that analysis, the reliance on the dissimilarity of the offenses to show lack of a common scheme or plan is (in my humble opinion) a logical glitch that is causing confusion in the court's 404(b) analysis to this day. The implicit assumption that the court makes is that two bad acts that originate from the same scheme are necessarily going to be "almost identical." But why? Doesn't a criminal scheme frequently involve multiple, interdependent bad acts that are dissimilar? For example, might not a criminal hatch a scheme to steal a firearm and shoot someone? I tend to think that by looking for similarities, courts are more likely to scoop up bad acts that show propensity to commit bad acts of that kind while disregarding the extrinsic bad acts that complete the picture of a larger criminal scheme or plan.
I'm not saying the court just made it up. The cases the court relies on (Danzey, supra, and United States v. Dothard, 666 F.2d 498 (11th Cir. 1982)) give some support to this approach. Those courts, in turn, cite to Evidence stalwarts McCormick and Wigmore. I know, I know--I should stop there. That really ought to be good enough. But it bothers me that the circuit court quotes McCormick for the proposition that the similarities must amount to a "device [that] must be so unusual and distinctive as to be like a signature." Danzey, 594 F.2d at 913, fn 6, quoting McCormick's Handbook of the Law of Evidence § 190, at 449 (E. Cleary ed. 1972). This is a rationale I associate with proving identity, a concept distinct (at least in my own mental evidence hornbook) from the common scheme or plan basis for admissibility. Perhaps these rationales were more amorphous in the pre-FRE days when the McCormick wrote his treatise.
The focus on the similarity of the extrinsic act with the charged act has dominated CAAF's "common scheme or plan" doctrine ever since. See, e.g., United States v. Mann, 26 M.J. 1 (1988), United State v. Munoz, 32 M.J. 359 (1991), United States v. McDonald, 59 MJ 426 (2004). I think this approach misses the mark. It's both over- and under inclusive. Anyone else noticed this? Am I missing something?
My complaint pertains to the way CAAF analyzes whether a prior act is admissible on the basis that it is part of a common scheme or plan with the charged misconduct. In particular, I disagree with the emphasis CAAF places on whether the two acts in question are substantially similar to one another. The way CAAF approaches the "common scheme or plan" today can be traced to the CMA decision in United States v. Brannan, 18 M.J. 181 (1984). In Brannan, the accused faced court-martial for inviting PFC Hall and Specialist Four Jones into his pickup truck, producing two marijuana cigarettes, and inviting both Hall and Jones to "fire it up." After the three smoked the marijuana, the accused produced a paper bag full of smaller plastic baggies and offered to sell additional marijuana for $25 or $30 per bag.
At trial, the government sought to introduce evidence that the accused had previously transferred baggies of marijuana to other Soldiers on three different occasions, and that he had smoked marijuana previously. The government asserted that this evidence tended to show "a common scheme, plan or design [by appellant] for the continual sale of marihuana to troops on this post." Id. at 183. CMA considered that argument thus:
"In order for the other offenses of appellant to be relevant for the above
purpose, they must be . . . almost identical to the charged acts and each other
. . . so as to naturally suggest that all these acts were results of the same
plan. United States v. Danzey, [594 F.2d 905, 913 (2nd Cir. 1979).]
. . . [T] he absence of similarity of acts seriously undermined the relevance of
this evidence to show the plan particularly averred by trial counsel."
Id. at 184.
While I agree with the result of that analysis, the reliance on the dissimilarity of the offenses to show lack of a common scheme or plan is (in my humble opinion) a logical glitch that is causing confusion in the court's 404(b) analysis to this day. The implicit assumption that the court makes is that two bad acts that originate from the same scheme are necessarily going to be "almost identical." But why? Doesn't a criminal scheme frequently involve multiple, interdependent bad acts that are dissimilar? For example, might not a criminal hatch a scheme to steal a firearm and shoot someone? I tend to think that by looking for similarities, courts are more likely to scoop up bad acts that show propensity to commit bad acts of that kind while disregarding the extrinsic bad acts that complete the picture of a larger criminal scheme or plan.
I'm not saying the court just made it up. The cases the court relies on (Danzey, supra, and United States v. Dothard, 666 F.2d 498 (11th Cir. 1982)) give some support to this approach. Those courts, in turn, cite to Evidence stalwarts McCormick and Wigmore. I know, I know--I should stop there. That really ought to be good enough. But it bothers me that the circuit court quotes McCormick for the proposition that the similarities must amount to a "device [that] must be so unusual and distinctive as to be like a signature." Danzey, 594 F.2d at 913, fn 6, quoting McCormick's Handbook of the Law of Evidence § 190, at 449 (E. Cleary ed. 1972). This is a rationale I associate with proving identity, a concept distinct (at least in my own mental evidence hornbook) from the common scheme or plan basis for admissibility. Perhaps these rationales were more amorphous in the pre-FRE days when the McCormick wrote his treatise.
The focus on the similarity of the extrinsic act with the charged act has dominated CAAF's "common scheme or plan" doctrine ever since. See, e.g., United States v. Mann, 26 M.J. 1 (1988), United State v. Munoz, 32 M.J. 359 (1991), United States v. McDonald, 59 MJ 426 (2004). I think this approach misses the mark. It's both over- and under inclusive. Anyone else noticed this? Am I missing something?
Still another published CGCCA opinion
The CGCCA web site is still down, but the court itself continues to pump out published opinions. The latest is United States v. Greene, __ M.J. ___, No. 1226 (2007 CCA LEXIS 42 (C.G. Ct. Crim. App. 28 Feb. 2007).
Greene involves three issues. The first was a challenge to the accuracy of the transcript. The Coast Guard Court rejected this challenge, concluding: "Appellant has not identified any specific omission in the authenticated record, but would have us infer additional unspecified and unknown omissions based upon the fact that the military judge found omissions to correct. This we decline to do."
An appellate defense counsel who believes that the record of trial might be inaccurate should request a copy of the tapes of the proceedings from the court reporter. Alternatively, the appellate defense counsel can ask the trial defense counsel to review parts of the tapes. Often the trial defense counsel will have a sufficiently good relationship with the court reporter to get access to the tapes. If the issue can't be resolved by such informal means, the appellate defense counsel should file a motion with the CCA seeking an order requiring the government to produce the tapes, pointing out the reasons to doubt the transcript's accuracy. In three cases I litigated as an appellate defense counsel, we succeeded in obtaining the tapes of the trial. Counsel can then compare the transcript to the tapes to determine whether it is verbatim.
The second issue in Greene involved post-trial delay. The CA acted 173 days after trial and the Coast Guard Court received the record 201 days after trial. The Coast Guard Court found "a clear lack of institutional diligence resulting in unreasonable post-trial delay in this case." In the exercise of its Article 66 powers, the Coast Guard Court reduced Greene's demotion from E-1 to E-2. My best guess is that this returned some greenbacks to Greene. LCDR Truax, does setting aside a bust for a Coastguardsman who is given a BCD result in any meaningful relief?
Finally, the Coast Guard Court declined to provide relief because Greene never pled to one of the specifications of which he was found guilty based on his non-existent plea. The court reasoned:
Greene, 2007 CCA LEXIS 42, at *11-*12 (footnote omitted). The Coast Guard Court also cited a Navy-Marine Corps Court decision that had come out the same way. United States v. Williams, 47 M.J. 593 (N-M. Ct. Crim. App. 1997).
The Coast Guard Court added, "We cannot discern any possible prejudice based on the entry of a finding of guilt of the specification after the absence of a plea to it." How's this for prejudice: if he never pled guilty to it, he was prejudiced by being found guilty on the basis of his purported plea? The Coast Guard Court might have reached the right conclusion, but I think the issue is certainly more difficult that the court lets on. Perhaps CAAF will choose to wrestle with it on a deeper level.
Greene involves three issues. The first was a challenge to the accuracy of the transcript. The Coast Guard Court rejected this challenge, concluding: "Appellant has not identified any specific omission in the authenticated record, but would have us infer additional unspecified and unknown omissions based upon the fact that the military judge found omissions to correct. This we decline to do."
An appellate defense counsel who believes that the record of trial might be inaccurate should request a copy of the tapes of the proceedings from the court reporter. Alternatively, the appellate defense counsel can ask the trial defense counsel to review parts of the tapes. Often the trial defense counsel will have a sufficiently good relationship with the court reporter to get access to the tapes. If the issue can't be resolved by such informal means, the appellate defense counsel should file a motion with the CCA seeking an order requiring the government to produce the tapes, pointing out the reasons to doubt the transcript's accuracy. In three cases I litigated as an appellate defense counsel, we succeeded in obtaining the tapes of the trial. Counsel can then compare the transcript to the tapes to determine whether it is verbatim.
The second issue in Greene involved post-trial delay. The CA acted 173 days after trial and the Coast Guard Court received the record 201 days after trial. The Coast Guard Court found "a clear lack of institutional diligence resulting in unreasonable post-trial delay in this case." In the exercise of its Article 66 powers, the Coast Guard Court reduced Greene's demotion from E-1 to E-2. My best guess is that this returned some greenbacks to Greene. LCDR Truax, does setting aside a bust for a Coastguardsman who is given a BCD result in any meaningful relief?
Finally, the Coast Guard Court declined to provide relief because Greene never pled to one of the specifications of which he was found guilty based on his non-existent plea. The court reasoned:
Rule for Courts-Martial 910(b), Manual for Courts-Martial, United States (2005 ed.), provides that if an accused fails to plead, the military judge shall enter a plea of not guilty. Assuming a not-guilty plea to the specification at issue, the providence inquiry, during which Appellant was sworn . . . and testified under oath, provided ample evidence in the form of Appellant's testimony to prove the specification.
Greene, 2007 CCA LEXIS 42, at *11-*12 (footnote omitted). The Coast Guard Court also cited a Navy-Marine Corps Court decision that had come out the same way. United States v. Williams, 47 M.J. 593 (N-M. Ct. Crim. App. 1997).
The Coast Guard Court added, "We cannot discern any possible prejudice based on the entry of a finding of guilt of the specification after the absence of a plea to it." How's this for prejudice: if he never pled guilty to it, he was prejudiced by being found guilty on the basis of his purported plea? The Coast Guard Court might have reached the right conclusion, but I think the issue is certainly more difficult that the court lets on. Perhaps CAAF will choose to wrestle with it on a deeper level.
Friday, March 02, 2007
The Dearing saga continues
Look what just showed up on the Supreme Court's online docket. (I have no idea why this wasn't posted on the online docket until a month after it was filed.)
No. 06A754
Title: United States, Applicant
v.
Brian Dearing
Docketed:
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (05-0405)
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Feb 1 2007 Application (06A754) to extend the time to file a petition for a writ of certiorari from February 13, 2007 to March 15, 2007, submitted to The Chief Justice.
Feb 5 2007 Application (06A754) granted by The Chief Justice extending the time to file until March 15, 2007.
No. 06A754
Title: United States, Applicant
v.
Brian Dearing
Docketed:
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (05-0405)
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Feb 1 2007 Application (06A754) to extend the time to file a petition for a writ of certiorari from February 13, 2007 to March 15, 2007, submitted to The Chief Justice.
Feb 5 2007 Application (06A754) granted by The Chief Justice extending the time to file until March 15, 2007.
Thursday, March 01, 2007
Another new published NMCCA opinion
Today's February NMCCA case dump onto Navy Knowledge Online included not only Parker and Gallagher, both from yesterday, but also the Edwards opinion from last week. United States v. Edwards, __ M.J. ___, No. NMCCA 200600836 (N-M. Ct. Crim. App. 21 Feb. 2007). The case involves a providence inquiry issue, a multiplicity/unreasonable multiplication of charges issue, and a reverse Ohrt issue. The Air Force Court once memorably complained that an appellant "invites us to descend with him into that inner circle of the Inferno where the damned endlessly debate multiplicity for sentencing." United States v. Barnard, 32 M.J. 530, 537 (A.F.C.M.R. 1990). As Edwards makes clear, there is yet another inner circle: where the damned debate not only multiplicity, but also sufficiency of the providence inquiry and the flip side of Ohrt.
The most significant portion of the Edwards opinion holds that the military judge erred by limiting the defense's ability to elicit opinion evidence concerning the accused's rehabilitative potential. Now for the strange part. NMCCA bases its holding of error largely on United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005). Judge Baker wrote for the majority in Griggs, joined by Chief Judge Gierke and Judges Effron and Erdmann. Please note that the author judge remains on the court and judges who joined the Griggs majority remain a majority on CAAF. Judge Crawford concurred in part and dissented in part. Judge Baker's opinion for the court set out this standard for assessing prejudice:
United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005).
Judge Crawford's separate opinion stated, in part, "Rather than relying on United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001), which examined sentencing instructions for prejudice and addressed no evidentiary issues, I would apply this Court's logic from United States v. Saferite, 59 M.J. 270, 274-75 (C.A.A.F. 2004)."
United States v. Griggs, 61 M.J. 402, 413 (C.A.A.F. 2005) (Crawford, J., concurring in part/dissenting in part).
Got that? The Griggs majority applied Boyd. The dissent applied Saferite in lieu of Boyd. Yet in Edwards, NMCCA wrote, "We elect to apply the Saferite factors suggested by Judge Crawford in her dissent because they provide a more thorough framework for determining whether the error influenced the adjudged sentence. We share her reluctance to apply United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001) . . . ." Edwards, No. NMCCA 200600836, slip op. at 6 n.2. As CAAF has reminded the CCAs many times before, and as Judge Baker and his colleagues may soon have the chance to remind NMCCA again, it isn't NMCCA's prerogative to decline to apply a CAAF majority opinion. See, e.g., United States v. Kelly, 45 M.J. 259 (C.A.A.F. 1996) (smacking NMCCA for preemptively overruling Booker); United States v. Allbery, 44 M.J. 226, 227 (C.A.A.F. 1996) (reminding AFCCA that it "is not generally free to ignore our precedent"). You would think military appellate judges would get that whole duty to follow superiors thing. And NMCCA rubbed the Griggs majority's nose in it, twice referring to following Judge Crawford's dissent. (Oddly enough, on the following page of the Edwards opinion, NMCCA cites Griggs citing Boyd, after telling us on the previous page that it was applying Saferite instead.) Anyone care to predict the shelf life of that portion of the Edwards opinion?
The most significant portion of the Edwards opinion holds that the military judge erred by limiting the defense's ability to elicit opinion evidence concerning the accused's rehabilitative potential. Now for the strange part. NMCCA bases its holding of error largely on United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005). Judge Baker wrote for the majority in Griggs, joined by Chief Judge Gierke and Judges Effron and Erdmann. Please note that the author judge remains on the court and judges who joined the Griggs majority remain a majority on CAAF. Judge Crawford concurred in part and dissented in part. Judge Baker's opinion for the court set out this standard for assessing prejudice:
We test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial to determine if the error substantially influenced the adjudged sentence. See United States v. Boyd, 55 M.J. 217, 221 (C.A.A.F. 2001) (citing Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)). If so, then the result is material prejudice to Appellant's substantial rights. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).
United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005).
Judge Crawford's separate opinion stated, in part, "Rather than relying on United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001), which examined sentencing instructions for prejudice and addressed no evidentiary issues, I would apply this Court's logic from United States v. Saferite, 59 M.J. 270, 274-75 (C.A.A.F. 2004)."
United States v. Griggs, 61 M.J. 402, 413 (C.A.A.F. 2005) (Crawford, J., concurring in part/dissenting in part).
Got that? The Griggs majority applied Boyd. The dissent applied Saferite in lieu of Boyd. Yet in Edwards, NMCCA wrote, "We elect to apply the Saferite factors suggested by Judge Crawford in her dissent because they provide a more thorough framework for determining whether the error influenced the adjudged sentence. We share her reluctance to apply United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001) . . . ." Edwards, No. NMCCA 200600836, slip op. at 6 n.2. As CAAF has reminded the CCAs many times before, and as Judge Baker and his colleagues may soon have the chance to remind NMCCA again, it isn't NMCCA's prerogative to decline to apply a CAAF majority opinion. See, e.g., United States v. Kelly, 45 M.J. 259 (C.A.A.F. 1996) (smacking NMCCA for preemptively overruling Booker); United States v. Allbery, 44 M.J. 226, 227 (C.A.A.F. 1996) (reminding AFCCA that it "is not generally free to ignore our precedent"). You would think military appellate judges would get that whole duty to follow superiors thing. And NMCCA rubbed the Griggs majority's nose in it, twice referring to following Judge Crawford's dissent. (Oddly enough, on the following page of the Edwards opinion, NMCCA cites Griggs citing Boyd, after telling us on the previous page that it was applying Saferite instead.) Anyone care to predict the shelf life of that portion of the Edwards opinion?
Two published decisions in one day! United States v. Gallagher
On February 28, 2007, the Navy-Marine Corps Court of Criminal Appeals decided United States v. Gallagher. The case raises interesting issues involving M.R.E. 404(b) and the 4th Amendment. Gunnery Sergeant Gallagher lived in military housing with his wife and children. His wife worked part-time as a manager at blockbuster video. Gunnery Sergeant Gallagher placed a camera in the bedroom of a ten-year-old neighbor and fellow Marine. On November 2, 2001, while NCIS agents were speaking with Gunnery Sergeant Gallagher on Paris Island, other agents were dispatched to his home to seek a permissive search authorization from his wife. The agents were looking for photographs of the ten-year-old neighbor. His wife consented, and she waited in the living room as the agents searched the family home. During a search of the garage, which the family had converted into a common area, the agents came across a man's briefcase sitting next to a refrigerator. Whether the briefcase was locked was disputed at trial, but the Court sided with the NCIS agents who testified that it was not. They opened the briefcase and found child pornography. They then took the briefcase into the living room where, for the first time, Mrs. Gallagher told them that the briefcase belonged to her husband.
The case centers on the reasonableness of the search of a closed briefcase in the family home and whether Mrs. Gallagher's consent to search was valid with respect to the briefcase. In finding the search to be reasonable, the Court relied heavily upon United States v. Melgar, 227 F.3d 1038 (7th Cir. 2000). In Melgar, a number of men and women were in a hotel room. One of the women who had rented the room gave consent to search the room. During the search, agents found a floral purse and opened it. The Seventh Circuit noted, "generally, consent to search a space includes consent to search containers within that space where a reasonable officer would construe the consent to extend to the container." The Court reasoned that law enforcement had no way of knowing that the floral purse found did not belong to the female renter who had consented to the search and that the search was reasonable under those circumstances.
I wonder if the NMCCA did not set itself up for reversal by relying so heavily upon Melgar. Is Melgar really that closely related to the situation in Gallagher? Did the NCIS agents really believe that the men's briefcase sitting beside the refrigerator could have belonged to Gallagher's stay-at-home wife or minor children? Perhaps she used the briefcase in her part-time duties at blockbuster. What if Gallagher had hidden the photographs in a humidor? How about a shaving kit? I suspect the result would have been the same at NMCCA. It is certainly possible that some women smoke cigars while shaving and carrying around men's briefcases. But, if the right to search the home is a close call, to which NMCCA is entitled some discretion, the next issue is not even close.
The government sought to introduce the testimony of VK. VK, then 21, would testify that, when she was 10, Gunnery Sergeant Gallagher had a sexual relationship with her. Gallagher was acquitted by an Ohio jury of the crime intercourse with VK in 1994. The government sought to introduce VK's testimony to rebut Gallagher's defense that he had innocently placed the video camera in VK's room to make a movie about the family home for her family. The Court found that Gallagher's alleged sexual relationship with VK when she was ten was logically and legally relevant to negate his claim of mistake of fact on the "peeping tom" offense. The Court cited the cases of United States v. Barnett, 63 M.J. 394 (C.A.A.F. 2006) and United States v. Thompson, 63 M.J. 228 (C.A.A.F. 2006), but did it read them? The prior bad acts in Barnett were much more similar to the charged misconduct than those in Gallagher, and the C.A.A.F. found them to be inadmissible.
Judge Vollenweider, M.R.E. 404(b) called. I am afraid it is bad news. You decision has less than a year to live.
The case centers on the reasonableness of the search of a closed briefcase in the family home and whether Mrs. Gallagher's consent to search was valid with respect to the briefcase. In finding the search to be reasonable, the Court relied heavily upon United States v. Melgar, 227 F.3d 1038 (7th Cir. 2000). In Melgar, a number of men and women were in a hotel room. One of the women who had rented the room gave consent to search the room. During the search, agents found a floral purse and opened it. The Seventh Circuit noted, "generally, consent to search a space includes consent to search containers within that space where a reasonable officer would construe the consent to extend to the container." The Court reasoned that law enforcement had no way of knowing that the floral purse found did not belong to the female renter who had consented to the search and that the search was reasonable under those circumstances.
I wonder if the NMCCA did not set itself up for reversal by relying so heavily upon Melgar. Is Melgar really that closely related to the situation in Gallagher? Did the NCIS agents really believe that the men's briefcase sitting beside the refrigerator could have belonged to Gallagher's stay-at-home wife or minor children? Perhaps she used the briefcase in her part-time duties at blockbuster. What if Gallagher had hidden the photographs in a humidor? How about a shaving kit? I suspect the result would have been the same at NMCCA. It is certainly possible that some women smoke cigars while shaving and carrying around men's briefcases. But, if the right to search the home is a close call, to which NMCCA is entitled some discretion, the next issue is not even close.
The government sought to introduce the testimony of VK. VK, then 21, would testify that, when she was 10, Gunnery Sergeant Gallagher had a sexual relationship with her. Gallagher was acquitted by an Ohio jury of the crime intercourse with VK in 1994. The government sought to introduce VK's testimony to rebut Gallagher's defense that he had innocently placed the video camera in VK's room to make a movie about the family home for her family. The Court found that Gallagher's alleged sexual relationship with VK when she was ten was logically and legally relevant to negate his claim of mistake of fact on the "peeping tom" offense. The Court cited the cases of United States v. Barnett, 63 M.J. 394 (C.A.A.F. 2006) and United States v. Thompson, 63 M.J. 228 (C.A.A.F. 2006), but did it read them? The prior bad acts in Barnett were much more similar to the charged misconduct than those in Gallagher, and the C.A.A.F. found them to be inadmissible.
Judge Vollenweider, M.R.E. 404(b) called. I am afraid it is bad news. You decision has less than a year to live.
NMCCA publishes order in capital case (Parker)
I haven't seen the decision yet, but apparently NMCCA published its response to CAAF's order in Parker. Here is the CAAF order that NMCCA responded to:
OPINION: On further consideration of Petitioner's request for extraordinary relief and related matters filed by both parties, it is ordered that the Government shall provide Petitioner with an appropriate expert consultant for purposes of the pending litigation; that the matter is remanded to the United States Navy-Marine Corps Court of Criminal Appeals to consider the continued availability of the sentence to death in light of the following:
The Government stated in this Court that (a) "mental retardation is generally thought to be present if an individual has an IQ [intelligence quotient] of approximately 70 or below" and that "there is a standard of error of measurement, which is approximately 5 points overall,"; and (b) "a full scale Intelligence Quotient (IQ) test" administered prior to Petitioner's court-martial determined Petitioner's IQ to be 74. See Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002).That the Court of Criminal Appeals shall consider such other issues as may be raised by the parties; and That the stay previously ordered by the Court in "all matters before the court below regarding the Mental Health Evaluation [*2] of Petitioner" shall remain in effect pending further order of this Court.
61 M.J. 63 (CAAF 2005)
I understand that NMCCA decided that death was still available as an option and adopted a 3 part mental retardation test with the burden on the appellant to show he is mentally retarded by a preponderance of the evidence.
NMCCA further found that death could not be imposed until Appellant had a full and fair opportunity to meet the test. NMCCA also apparently recommended a DuBay hearing, but didn't order one, instead returning the case to CAAF.
Again, I haven't gotten my hands on the decision, so I might have some of the details wrong. I am sure somebody will track it down shortly. Alas, it was not on Lexis or the NMCCA website.
OPINION: On further consideration of Petitioner's request for extraordinary relief and related matters filed by both parties, it is ordered that the Government shall provide Petitioner with an appropriate expert consultant for purposes of the pending litigation; that the matter is remanded to the United States Navy-Marine Corps Court of Criminal Appeals to consider the continued availability of the sentence to death in light of the following:
The Government stated in this Court that (a) "mental retardation is generally thought to be present if an individual has an IQ [intelligence quotient] of approximately 70 or below" and that "there is a standard of error of measurement, which is approximately 5 points overall,"; and (b) "a full scale Intelligence Quotient (IQ) test" administered prior to Petitioner's court-martial determined Petitioner's IQ to be 74. See Atkins v. Virginia, 536 U.S. 304, 153 L. Ed. 2d 335, 122 S. Ct. 2242 (2002).That the Court of Criminal Appeals shall consider such other issues as may be raised by the parties; and That the stay previously ordered by the Court in "all matters before the court below regarding the Mental Health Evaluation [*2] of Petitioner" shall remain in effect pending further order of this Court.
61 M.J. 63 (CAAF 2005)
I understand that NMCCA decided that death was still available as an option and adopted a 3 part mental retardation test with the burden on the appellant to show he is mentally retarded by a preponderance of the evidence.
NMCCA further found that death could not be imposed until Appellant had a full and fair opportunity to meet the test. NMCCA also apparently recommended a DuBay hearing, but didn't order one, instead returning the case to CAAF.
Again, I haven't gotten my hands on the decision, so I might have some of the details wrong. I am sure somebody will track it down shortly. Alas, it was not on Lexis or the NMCCA website.
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