This week we learned that Mr. Pristera successfully represented an Air Force NCO facing suspension of her security clearance for financial considerations.
An anonymous tip was sent to the Central Clearing Facility (CCF) alleging that the SM was living outside of her means. The SM was previously the victim of predatorial lending practices and illegal mishandling of mortgage applications. Those matters were concurrently under dispute within various state courts and credit agencies. Mr. Pristera worked with the SM to compile all of the complicated financial documentation and evidence supporting the SM’s debts, as well as documentation supporting current matters under litigation, and successfully replied to the notice of intent to revoke. Mr. Pristera was able to avoid having to take the matter to a formal hearing (DOHA hearing) on the matter.
If you are facing potential suspension of a security clearance, it is critically important that you respond immediately and completely. Do not assume that it will be resolved for you. The burden is on you to provide documentation supporting your case.
We previously posted general information about Security Clearances here: http://www.mcmilitarylaw.com/security-clearance-appeals.html. Generally, these investigations start with an initial investigation by the CCF or local security personnel. Sometimes the investigation is part of a routine background check and other times it can be based on an anonymous tip or other “red flag.” Once the investigation starts, the SM or civilian with a security clearance will often receive a Request for Information. This is a critical point as the burden is on the individual to respond and fully answer all of the questions posed. Based on the response, the matter will either be closed or the individual will be notified of a Notice of Intent to Revoke clearance. (In some cases, there is no Request for Information and the government will immediately send a Notice Intent to Revoke).
The individual is given 60 days to respond to a Notice Intent to Revoke. This response can include additional evidence as well as legal argument. Based on the response, the CCF will either close the matter and reinstate clearance, or issue a Letter of Denial. If you receive a Letter of Denial, that means that an initial decision has been made to revoke your clearance. You have a right to appeal that decision and request a formal hearing with the Department of Hearings and Appeals (DOHA). You appear in person at a DOHA hearing with legal counsel.
It is critically important to defend yourself vigorously and early when facing a potential security clearance revocation. If you are facing a revocation action at any stage of the process and would like to discuss your case or options, please give us a call.
Mr. Pristera argues us v. cook at the air force court of criminal appeals - ineffective assistance of counsel and new trials at issue
On November 17, 2016, Mr. Pristera argued the case of United States v. Cook on appeal at the United States Air Force Court of Criminal Appeals.
The unique appeal presented diametrically opposing positions where Mr. Pristera had to concurrently argue for a new trial based on newly discovered evidence under R.C.M. 1210, and also ineffective assistance of counsel for the defense counsel’s failure to locate the evidence. The newly discovered evidence was a witness that was discovered a few days after the trial that could have impeached the alleged victim’s testimony. The Air Force Court was very professional and non-confrontational. They were clearly prepared for the appeal and asked very targeted intelligent questions. We expect a decision in this case in early 2017.
It is so important that counsel properly investigate cases before trial. Below is an introduction to the law of ineffective assistance of counsel.
Ineffective assistance of counsel claims are subject to a de novo standard of review. United States v. Wiley, 47 M.J. 158, 159 (C.A.A.F. 1997), citing S. Childress & M. Davis, Federal Standards of Review, § 12.09 (2d ed. 1982.) United States v. Grigoruk, 56 M.J. 304, 306-307 (C.A.A.F. 2002).
A military accused has a constitutional right to the effective assistance of counsel. United States v. Denedo, 66 M.J. 114, 127 (C.A.A.F. 2008), aff’d, 129 S.Ct. 2213 (2009); United States v. Scott, 24 M.J. 186, 187-88 (C.M.A. 1987) (citing Strickland v. Washington, 466 U.S. 668 (1984)).
The burden of proof lies with the Appellant, and he “must surmount a very high hurdle” and overcome “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689; Denedo, 66 M.J. at 127 (citing United States v. Perez, 64 M.J. 239, 243 (C.A.A.F. 2006)). This presumption of competence cannot be overcome unless the accused demonstrates: first, a deficiency in representation, and second, prejudice. Scott, 24 M.J. 186.
Firstly, the defense counsel’s deficiency must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Denedo, 66 M.J. at 127-28 (citing United States v. Moulton, 47 M.J. 227, 229 (C.A.A.F. 1997). Examples of failures that can constitute a deficiency in representation are affirmative misrepresentations of the law, failures to investigate defenses, witnesses, or evidence, or specific errors made which were unreasonable under prevailing professional norms. See United States v. Cronic, 466 U.S. 648 (1984); Denedo, 66 M.J. at 127-28; Scott, 24 M.J. at 188.As a general matter, however, the Court “will not second-guess the strategic or tactical decisions made at trial by defense counsel.” Perez, 64 M.J. at 243 (citing United States v. Anderson, 55 M.J. 198, 202 (C.A.A.F. 2001) (citations omitted)). Additionally, “[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Scott, 24 M.J. at 188.
Secondly, the defendant must be prejudiced by errors “so serious as to deprive the defendant of a fair trial.” Denedo, 66 M.J. at 127-28 (citing Moulton, 47 M.J. at 229). The test for prejudice is whether, in “consider[ation of] the totality of the evidence before the factfinder,” there is a “reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Scott, 24 M.J. at 189 (citing Strickland, 466 U.S. at 695).
In Scott, the Court of Military Review applied the Strickland test and found that the defense attorney’s performance was both deficient and prejudicial. Scott, 24 M.J. at 192. In that case, the defense was based on alibi. Id. at 189-90. The defense attorney did not timely investigate the defendant's alibi and did not follow up after a volunteer investigator located possible witnesses. Id. at 189-90. At a DuBay hearing, it was determined that one of the witnesses would likely have been able to corroborate the defendant’s alibi defense had the defense attorney timely interviewed her and adequately prepared her for trial. Id. The Court found that in “light of reasonable professional norms … [defense counsel's performance] fell far short of reasonable competence,” and was deficient under Strickland because he did not put forth reasonable effort to investigate the defendant’s alibi. Id. This deficiency was prejudicial, the Court concluded, because had the defense counsel properly investigated and interviewed the witness, he would have been able to corroborate the defendant’s story, thus establishing a complete alibi defense to the charges. Id. at 193. The Court ultimately reversed the lower court and set aside the conviction. Id. at 193.
On 6 September 2016, in United States v. Gurczynski, the Army Court of Criminal Appeals (ACCA) sided with the defense and prevented the Government and Army Criminal Investigation Command (CID) from arbitrarily expanding the scope of a digital forensic search of a computer without first seeking an expanded search warrant. This case represents a refreshing reminder to Government that the warrant requirement is strictly enforced and requires explicit authority to conduct a search. In the wake of recent and constant changes to military law and procedure stripping rights away from Servicemembers, it is nice to see the Court enforce our constitutional protections.
The Accused was under investigation for “’attempted sexual abuse of a child, abusive sexual contact with a child and other offenses related’ to the allegations.” Army CID was properly granted a search warrant for his computer and portable media devices to search for communications between the accused and “the alleged victim of his abuse in order to arrange the meeting where the appellant ultimately engaged in indecent acts and sexual contact with the child.”
During the search of the devices, the Army CID digital forensic examiner encountered files that he reasonably believed to be child pornography based on the file names. Instead of stopping there and seeking an additional warrant to search those files, the CID agent opened the files and discovered child pornography.
At trial, the defense counsel moved to suppress the images based on an unlawful search under the 4th Amendment. The military judge granted the motion finding that Army CID impermissibly exceeded the scope of the search warrant. The Government appealed the trial judge’s ruling.
On appeal, the issue was whether the trial judge abused his discretion by granting the defense motion to suppress. The closely looked at the terms of the search warrant. Ultimately, the court found that an authorization to search for communications between the accused and alleged victim was not sufficiently broad to authorize a search for child pornography. The ACCA affirmed the findings of the military judge, that:
[First] the nature of the charges, given their plain statutory meaning, did not remotely contemplate the possession, creation or distribution of child pornography. Second, to search for child pornography upon seeing the video files, SA CP was required to obtain a new or expanded warrant…Third, the military judge determined that the inevitable discovery doctrine set forth in Mil. R. Evid. 311(c)(2) did not apply since CID did not have probable cause to search for child pornography in the first instance.
The take away from this case is two-fold. First, a thorough review of search warrants is critical in every case. Not only must the warrants be properly based on probable cause, but as demonstrated in this case, the scope of the warrant is controlling and will be enforced. Second, just because a digital forensic examiner or law enforcement have a computer seized, discovery of the information on that computer is not inevitable, and the inevitable discovery doctrine will not excuse violations of the warrant requirement.
Academics Continue Their Push to Remove Protections for Accused Servicemembers in Sexual Assault Cases
A recent article (see below) presents the position that Military appellate courts should no longer have the authority to decide cases based on factual sufficiency. The article describes in detail the different stance that military courts have as compared to most federal and state courts regarding factual sufficiency. While I disagree with the overall opinion that Military appellate courts should no longer have the authority to review a case of factual sufficiency, the important take away for the Servicemember is that the need for competent and experienced counsel, at the trial, post-trial, and appellate stages, has never been higher. Members of congress and academics continually push for changes in the military justice system, but few of the voices behind the changes have actually observed a recent sexual assault Court-Martial.
I. A Defense Attorney’s Analysis of: Lisa M. Schenck, "Just the Facts Ma’am": How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims Are "Incapacitated," 45 Southwestern Law Review 522 (2016).
Appellate review for factual sufficiency is a necessary protection for the military accused. When an appellate court reviews a case for factual sufficiency, the court is taking a fresh look at the facts presented at trial and determining whether a reasonable jury (or “panel” as they are called in Courts-Martial) could have found the appellant guilty beyond a reasonable doubt. Some of the criticisms of this authority highlighted in the article are (1) the appellate court does not have the benefit of observing witness testimony at trial, (2) that almost all federal and state appellate courts do not have this much authority, and (3) this authority essentially enables the appellate court to grant no deference to the military panel and substitute its judgement for that of the factfinder. Certainly, if a military appellate court overturns a conviction for factual (in)sufficiency, the court is substituting their judgement for that of the panel. Such a result, however, is not a bad thing.
The author’s opinion is largely based on cases involving sexual assault convictions by means of incapacitation of an alleged victim. The poorly defined meaning of “incapacitation” is at the heart of the problem. The article qualifies its opinion to remove this authority from the military appellate courts by concurrently arguing that there needs to be a clearly defined definition of “incapacitated.” We could not agree more with this point, but don’t hold your breath. Such a thing is easier said than done.
With all that in mind, the author argues that a military accused no longer needs the added protection of an appellate court’s authority to overturn a case based on factual sufficiency. To support this position, the author highlights, among other things, the improved quality of defense representation and due process afforded in the military system since the inception of the UCMJ in the 1950s, the significant effort to combat unlawful command influence in the military justice system, and the general reliability of a military panel. With more protection in place to ensure that a military accused receives a fair trial, the author argues that our system no longer needs such an unencumbered review by the appellate courts.
Regarding the issue of unlawful command influence and reliability of a panel in sexual assault verdicts, there is no fair comparison to civilian jurisdictions. Even under current military law, it is legal (not unlawful command influence) for a commander to require every Servicemember (and thereby every panel member) to take sexual assault training. There is no civilian equivalent of this. Could you imagine if the governor of your state required every potential juror in the state to take sexual assault training prior to your trial for sexual assault? And then the judge tells you that that despite the sexual assault training they received, you will still receive a fair trial because the judge will instruct them to disregard what they heard in that training? Additional protection at the appellate level would not be such a bad thing in that case.
Absent from the article, and the primary basis of my disagreement with this position, is the fact that military panels, unlike federal and state jurisdictions, are not required to have a unanimous verdict for a finding of guilty. In fact, in many circumstances, the panel only needs a 2/3 majority to convict and can have as few as three members. Most if not all civilian jurisdictions require a unanimous verdict with a set number of jurors. The meaning of this significant deviation from the civilian sector is that a military panel’s verdict is not as representative of the views of the members as is a civilian jury.
I am not arguing that Courts-Martial should require a unanimous verdict from a panel. The needs of the military to ensure minimal disruption to the mission simply could not withstand the immeasurable burden of requiring a unanimous verdict in every case. The increase in “hung juries” and the additional deliberation time per Court-Martial alone would suffocate the military justice system. Rather, I support the position that with a 2/3 guilty verdict from a panel in a felony case, additional appellate court authority to ensure that there was a fair trial, is appropriate.
II. The pendulum has not stopped moving towards the Government.
The military defense community is somewhat a victim of our own success. The single greatest driving force behind military justice reform is the fact that the defense community wins more than the government thinks we should. Our firm in particular has extraordinary success with sexual assault cases.
That success causes the government to attempt to “swing the pendulum” back to their side. They are doing this by changing the law, changing the rules, and reducing the protections that accused Servicmemebrs have. Unfortunately, too many lawmakers rely on the narrow-minded statistics of conviction rates, rather than a more substantive analysis of the strength of the cases the Government choses to bring.
The continued need for protection of the accused is obvious to any observer of the average sexual assault trail. Therein lies the problem. Congressional and academic case analysis is conducted on high profile outliers, not the everyday sexual assault trial.
As congress and the military consider measures to remove/reduce protections afforded to the accused Servicemember, it has never been more important to have qualified and experienced civilian counsel at every stage of representation. If the military appellate courts ever do lose the authority to review a case for factual sufficiency, they only protection will be to make sure the military panel gets the verdict right at the Court-Martial.
On March 30, 2016, the Army Court of Criminal Appeals decided the case of United States v. Specialist Cey Bristol Williams, Army 20140401. SPC Williams was convicted of seven specifications of indecent exposure. Five of the seven were overturned. Of the five that were overturned, there were four specifications of indecent exposure under Article 120c(c), UCMJ (2012), and one specification of indecent exposure under Article 120(n) UCMJ (2006).
For all five overturned specifications, the general nature of the indecent exposure was that SPC Williams showed a digital picture of his penis to a female victim. In one case, he digitally sent the image to the victim. The Court addressed the issue of whether the term “exposed” under Article 120 “encompasses showing a person a photograph or digital image of one’s genetalia.” The Court noted that there is no definition of “exposure” in the manual, and concluded the following:
“Including the display of digital images or photographs of a person’s genitalia within the term “expose” does not clearly support the underlying purpose of criminalizing indecent exposure. We also note that there is an added danger and discomfort when people physically expose in the presence of their victims as opposed to displaying or sending people a pornographic picture. Therefore, we find the term “exposed” is ambiguous under both Article 120(n), UCMJ, and Article 120c(c), UCMJ.”
Based on that analysis, the court said that “violations [of indecent exposure] occur when a victim is present to view the actual body parts listed in the statutes, not images or likenesses of the listed parts.” Accordingly, the five specifications were dismissed because SPC Williams did not expose his actual genetalia to any of the victims.
The court does not conclude that SPC Williams was innocent of all violations of the UCMJ. Certainly, his conduct could have been charged under Article 134. This is an important distinction, however, because it could potentially change sex offender registration requirements for convictions for this type of conduct.