Defending Military Members
Worldwide Since 1973

Motions Practice

A motion is a request from either party for the court to grant a particular order or request for relief. The Rules for Courts-Martial guide the form and types of motions that may be submitted.

Below is a checklist of common motions in the military:

Checklist

INDEX

DISCOVERY and INFORMATION
M forin Camera Review
M to Compel Discovery RCM 701
M for Expert (or Investigative) Assistance RCM 703
M for Deposition - RCM 702(c)(3)(A).
M for Mental Health Exam of Sexual Assault Victim

MOTIONS IN LIMINE

M to Suppress Confession (Insufficient Rights Warning) MRE 304, 305
M to Suppress Confession (Not Afforded Chance to See Counsel)
M to Suppress Confession (Involuntary under the Circumstances) – MRE 305(a).
M to Suppress Confession (Lack of Corroboration) - MRE 304(g)).
M to Suppress Evidence – Lack of Probable Cause to Search – MRE 311, 315e
M to Suppress Confession – Illegal Wiretap – 18 USC, Secs. 2510-2520
M in Limine, Other Crimes, Wrongs, or Acts – MRE 404(b)
M to Admit MRE 412
M Opposing MRE 413 Evidence
M to Suppress Bank Records - The Right To Financial Privacy Act, 12 USC 3401-3422
M in Limine – Improper Opinion Evidence
M in Limine 608(b) Impeachment
M Limine 1001(b)(5) Evidence

ATTACKS AGAINST THE PROSECUTION

M for Appropriate Relief, Unlawful Command Influence – Article 37, UCMJ
M to Dismiss for Prosecutorial Misconduct
M to Dismiss for Violation of Article 10
M for New Article 32 Investigation – Failure to Produce Necessary Witness – RCM 405(g)
M for New Article 32 Investigation – Improper Ex-Parte Contacts
M to Disqualify Panel Members
M to Challenge Panel Member – Actual or Implied Bias

ATTACKS AGAINST THE CHARGES AND SPECIFICATIONS

M for Bill of Particulars – RCM 906(b)(6)
M to Dismiss, Failure to State an Offense – RCM 603.
M to Dismiss – No Contact Order
M to Dimiss – No Drinking Order
M to Dismiss – Order to Perform Routine Duties
M to Dismiss for Multiplicity
M to Dismiss for Unreasonable Multiplication of Charges -- See Discussion to R.C.M. 307(c)(4),
M to Dismiss – SOFA Double Jeopardy – Article XXII, Para. 8 of the US-ROK SOFA
M to Consolidate Specifications - Larceny

SENTENCE CREDIT

M for Sentence Credit – Pretrial confinement
M for Sentence Credit – Restriction Tantamount to Confinement
M for Sentence Credit – Restriction in violation of Article 13
M for Sentence Credit – Article 13 (humiliation of AC) - Article 13, UCMJ
M for Sentence Credit - RCM 305(k)
M for Sentence Credit – Prior Article 15

DISCOVERY and INFORMATION

M for in Camera Review – A good one for sex cases and usually a winner. Where Df gives a specific possibility that medical / mental / school (what else can you think of?) records contain exculpatory information, “[t]he preferred practice is for the military judge to inspect the medical records in camera to determine whether any exculpatory evidence was contained in the file prior to any government or defense access. . . . The proper procedure is for trial counsel to call the records custodian as an authenticating witness. This witness need only deliver an accurate and sealed copy of the records to the military judge for in camera review. Once reviewed, the military judge makes a ruling either allowing access to both sides, or denying access and resealing the records as an exhibit for appellate review. “ In United States v. Briggs, 48 M.J. 143 (1998). A huge pain for the TC if some of the records are in CONUS.

M to Compel Discovery -- Article 46 says that the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the president may prescribe. RCM 701(a)(2). Pursuant to 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. In United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999), the Court held that the Trial Counsel must disclose “core files,” to include the prosecution's files in the case at bar. The prosecution also has "a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." United States v. Simmons, 38 M.J. 376 (C.M.A. 1983). IAW Simmons, records of another military agency involved in the investigation of the accused may be discoverable, and a Trial Counsel "must exercise due diligence" in reviewing the files of other government entities to determine whether such files contain discoverable information. To the extent that relevant files are known to be under the control of another governmental entity, the prosecution must make that fact known to the defense and engage in good faith efforts to obtain the material. United States v. Figueroa, 55 M.J. 525 (C.A.A.F. 2001) restated the above and noted that the existence of good or bad faith on the part of the Trial Counsel did not affect his or her duty to take steps to collect and supplement discoverable information.

M for Expert (or Investigative) Assistance

  • Psychiatrist
  • Investigator
  • Interpreter
  • Finance expert
  • Toxicologist (alc)
  • Rape kit doctor

As a confidential member of the defense team. “As a matter of military due process, service members are entitled to investigative or other expert assistance when necessary for an adequate defense, without regard to indigency.” United States v. Garries, 22 M.J. 288 (C.M.A. 1986); United States v. Mustafa, 22 M.J. 165 (C.M.A. 1986); United States v. Toledo, 15 M.J. 255 (C.M.A. 1983). In order to show necessity, the defense must demonstrate three things: (1) the reason for the assistance; (2) the goal the assistance is expected to accomplish; and (3) the reason the defense is unable to gather the evidence without assistance. To demonstrate the necessity for an investigator, the defense must make a plausible showing that the investigator could obtain information that the defense would not be able to obtain on its own. United States v. Washington, 46 M.J. 477 (C.M.A. 1997). In a recent case, a Court found IAC when a DC let his client talk to a shrink who was not a confidential member of the defense team. Ask the Convening Authority first IAW RCM 703 before making a motion for any kind of expert assistance! If you are introducing scientific evidence, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

M for Deposition - RCM 702(c)(3)(A). A request for deposition should only be denied for good cause. The discussion to the rule illustrates examples of good cause. These include the failure to state a proper ground for taking a deposition, failure to show the probable relevance of the witness’ testimony, or that the witness’ testimony would be unnecessary. The availability of a witness for trial is generally good grounds for denial unless unusual circumstances exist. Examples listed include improper denial of a witness request at an Article 32 investigation and unavailability of an essential witness at an Article 32 investigation

M for Mental Health Examination of Sexual Assault Victim - United States v. Owen, 24 M.J. 390 (C.M.A. 1987) was a case where the Df failed to show that the victim had any mental health problems. The issue was raised on appeal, where the Court held that while a MJ does not have the power to order an involuntary mental health examination of an alleged sexual assault victim, but does have means at his disposal to protect the rights of the accused in the appropriate case:
l persuade victim to agree to the examination.
l give Df enough documentary evidence to provide a sufficient basis for an expert to draw the necessary conclusions.
l in extreme cases, the MJ could strike the witness' testimony, particularly where there is absolutely nothing to corroborate the allegations.”

MOTIONS IN LIMINE

M to Suppress Confession (Insufficient Rights Warning) –

  • MRE 304(a): involuntary confessions and evidence derived therefrom may not be received in evidence against an accused where timely objection is made to the use of the evidence.
  • MRE 304(c): A “confession” is “an acknowledgment of guilt” and “involuntary” if obtained in violation of the Constitution or Article 31.
  • MRE 305(c): A person subject to the Code must first provide certain warnings before questioning a person suspected of an offense, as per Article 31(b), UCMJ, 10 USC § 831(b).

The warnings need not be technically precise or complete – they only need to warn the accused of the general nature of the allegations. United States v. Rogers, 47 M.J. 135 (C.A.A.F. 1997); United States v. Napoleon, 46 M.J. 279, 285 (1997) (Advising accused that she was suspected of “stabbing” the victim was sufficient warning for confession to murder); but see United States v. Huelsman, 27 M.J. 511, 513 (A.C.M.R. 1988) (rights waiver for bad check offenses won’t be enough for a drug confession). See also United States v. Simpson, 54 M.J. 281 (C.A.A.F. 2000).

M to Suppress Confession (Not Afforded Chance to See Counsel) – Where AC is questioned, asks for a lawyer, is approached and questioned again later, and makes a statement. The law: If the prosecution can demonstrate by a preponderance of the evidence that the accused or suspect had not continuously had his or her freedom restricted by confinement, or other means, during the period between the request for counsel and the subsequent waiver, then the suspect's subsequent waiver of the right to counsel may be deemed valid. Mil. R. Evid. 305(g)(2)(B)(ii), Manual for Courts-Martial. Such a break in custody cannot be contrived or pretextual. Moreover, case law dictates that the accused must have a "reasonable" or "real" opportunity to seek counsel during the break in custody. Edwards v. Arizona, 451 U.S. 477 (1981); Minnick v. Mississippi, 498 U.S. 146 (1990) (held that Edwards did not create a “bright line” after client asked for counsel); United States v. Mosley, 52 M.J. 679 (ACCA 2000); United States v. Grooters, 35 M.J. 659 (ACMR 1992); United States v. Granda, 29 M.J. 771 (ACMR 1989)

M to Suppress Confession (Involuntary under the Circumstances) – MRE 305(a). United States v. Martinez, 38 M.J. 82, 84 (CMA 1993); United States v. Bubonics, 45 M.J. 93 (CAAF 1996); Schnekloth v. Bustamonte, 412 U.S. 218 (1973). Things you should ask about:

  • How long was the client held in the place of interrogation? How big was the room, did it have ventilation, heat and A/C?
  • Did he get ample breaks, smoke breaks, access to food and water?
  • Did he ask for a lawyer or suggest that maybe he should talk to one?
  • Did he waive his rights? Is there a signed waiver? Did he sign a statement? If not, why not?
  • Did the CID agents yell at or lie to him? Did they talk max punishments or promise certain dispositions?
  • Was there a poly? What did the polygrapher tell him?
  • What psychological pressure or tactics were used; ie., did they do the good cop / bad cop thing?
  • How old / smart is your client? How much military training and experience does he have? Any mental issues?
  • What if any physical, moral, or psychological restraint was there (ie handcuffs, told he can’t leave till he talks)?

M to Suppress Evidence – Lack of Probable Cause to Search –

  • Rule 315(f): Probable cause to search exists when there is a reasonable belief that the person, property, or evidence sought is located in the place or on the person to be search. A search authorization may be based upon hearsay evidence in whole or in part.
  • Rule 311(e): When an appropriate motion or objection has been made by the defense under subdivision (d), the prosecution has the burden of proving by a preponderance of the evidence that the evidence was not obtained as a result of an unlawful search or seizure, that the evidence would have been obtained even if the unlawful search or seizure had not been made, or that the evidence was obtained by officials who reasonably and with good faith relied on the issuance of an authorization to search, seize, or apprehend or a search warrant or an arrest warrant.
  • Probable cause is determined based on the totality of the circumstances. Illinois v. Gates, 462 U.S. 213 (1983). A magistrate’s decision is reviewed to determine whether a substantial basis existed for that determination in light of the facts known to the reviewing officer at the time. Gates replaced an older line of cases that said you needed to overcome a number of specific tests. Those tests are not hurdles per se, but they still survive within the context of the “totality” test.
  • Veracity and basis of knowledge (reliability) of the informant - Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969).
  • Specificity of the information – The affidavits, etc. must establish the probability that criminal activity is concealed on the specific premises and describe the place to be searched or things to be seized with sufficient particularity. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir., 1986). It needs to support more than mere suspicion. Draper v. Jones, 358 U.S. 307 (1959); United States v. Jones, 545 F.2d 1112 (8th Cir. 1976).
  • Nexus between the evidence and the location - United States v. Whiting, 13 M.J. 804 (A.F.C.M.R. 1979) (finding of classified documents in storage shed near AC’s apartment did not, by itself, create probable cause to search the apartment); United States v. Hendricks, 743 F.2d 653 (9th Cir. 1984) (package of drugs addressed to AC’s business, in police possession, did not give probable cause to search AC’s home); United States v. Rosario, 918 F. Supp. 524 (D.R.I.) 1996 (evidence that AC sold cocaine combined with observations of suspicious patterns of visits at residence in same city during same time period did not support finding of probable cause, even where experienced agents opined that evidence was most likely kept in the residence); United States v. Jenkins, 901 F.2d 1075 (9th Cir. 1997) (magistrate had basis to authorize home search when resident was known to have robbed bank near that place and recently, where experienced FBI agent affirmed that bank robbers usually store proceeds at home, and where no other reasonable alternative was suggested or likely); United States v. Johnson, 23 M.J. 109 (A.F.C.C.A. 1987) (evidence that accused had recently stolen stereo expender which was not found in search of on-post quarters gave sufficient probable cause to search off-post quarters in same town five days later, when accused seen going in and out of house with bag large enough to conceal expander).
  • Freshness or staleness of the information - Cases are specific to different kinds of evidence, ie drugs, child porn, guns, etc. For child porn cases, see United States v. Gallo, 55 M.J. 418 (CAAF 2001) (5 years not too long, CID affidavit showed AC was pedophile who would keep child porn for many years).
  • Good faith exception – Law enforcement officers acting in good faith find the evidence while relying on a facially valid warrant. Affidavit cannot be false or provided recklessly. United States v. Jones, 208 F.3d 603, 607 (7th Cir. 2000); Cravens, No. 01-0249, Crim. App. No. 33438 (CAAF 2002) (to show reckless disregard for truth, DC must offer evidence that affiant in fact entertained serious doubts about the truth of his allegations or had obvious reasons to doubt the veracity of the allegations). United States v. Leon, 468 U.S. 897, 914 (1984); United States v. Fogg, 52 M.J. 144 (C.A.A.F. 1999). Agents are expected to have a reasonable knowledge of what the law prohibits. Also not if the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Does not apply where the magistrate himself wholly abandons his judicial role in granting the authorization.

M to Suppress Confession (Lack of Corroboration) - Military Rule of Evidence (MRE) 304(g) prohibits consideration of confessions and admissions by an accused for which no independent corroborating evidence exists. United States v. Duval, 47 M.J. 189 (C.A.A.F. 1997), (Ct rev’d conviction for wrongful use of marijuana where the sole evidence was an admission by the accused that he had smoked marijuana several years before); United States v. Hall, 50 M.J. 247 (C.A.A.F. 1999) (confession was sufficiently corroborated where act admitted to was part of a continuous course of illegal conduct, proven conduct occurred both before and after conduct admitted to and was similar in nature).

M to Suppress Confession – Illegal Wiretap – 18 USC, Secs. 2510-2520 (“The Wiretap Act”) prohibits interception and use of private electronic communications (phone, e-mail) without authorization such as a warrant. The Government may not use such evidence simply because it an innocent recipient of that evidence “wiretapped” by others. Chandler v. United States Army, 125 F.3d 1296 at 1299 (9th Cir. 1997). The Wiretap Act provides that ‘no part of the contents’ of an improperly intercepted communication ‘and no evidence derived therefrom’ may be received in evidence in any proceeding.” Id. at 1304. See also Gelbard v. United States, 408 U.S. 42, 51 (1972). The Act covers private, password-protected e-mail and phone lines, but not government e-mail or phones.

M in Limine, Other Crimes, Wrongs, or Acts – MRE 404(b). Courts apply a four-part test to determine whether evidence of uncharged misconduct will be admitted. United States v. Loving, 41 M.J. 213, 245 (1994).

  • First, the evidence must be offered for a proper purpose. United States v. Rodriguez, 31 M.J. 150, 155 (C.M.A. 1990). Showing that the AC has a predisposition to crime is not a proper purpose. United States v. Taylor, 53 MJ 195, 199 (2000); United States v. Castillo, 29 MJ 145, 150 (CMA 1989).
  • Second, the evidence must be reasonably tend to prove that the accused committed the uncharged misconduct. Id.
  • Third, it must make a fact that is of consequence to the action more or less probable. United States v. Ferguson, 28 M.J. 104, 108 (C.M.A. 1989).
  • Finally, the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice. United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989)
  • Doctrine of chances – Where the facts of the prior bad acts are sufficiently similar, they will be admitted to rebut a defense that asserts a subsequent set of similar facts in the pending case. Tyndale, 56 MJ 209 (CAAF 2001)

M to Admit MRE 412 Evidence – Applies whenever there is “other sexual behavior” of a victim of an alleged nonconsensual sexual offense. In any proceeding involving alleged sexual misconduct, evidence of any alleged victim's sexual behavior or sexual predisposition is inadmissible except; (b) (1)

  • (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence;
  • (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
  • (C) evidence the exclusion of which would violate the constitutional rights of the accused.

Evidence of prior sexual activity is constitutionally required if it is relevant, material and favorable to the defense's theory of the case. See United States v. Dorsey, 16 M.J. 1 (CMA 1983) and United States v. Harris, 41 M.J. 890, 892 (Army Ct. Crim. App. 1995). The party intending to offer evidence must file a written motion at least five days prior to entry of pleas specifically describing the evidence and stating the purpose for which it is offered and serve the motion on the opposing party, the military judge and notify the alleged victim, or, when appropriate, the alleged victim's guardian or representative. The evidence will be admissible only if, during the required hearing, the military judge determines that the evidence is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice. Notice that it does not say “substantially outweighs.” If the information is relevant, usually the MJ will let you ask just one or two questions; sometimes it’s just enough to make the panel start asking questions.

M in Limine – Improper Opinion Evidence - Most common case is where TC wants rape counselor or other witness to testify that they believe the victim, or that she sounds credible. Witnesses may not invade the exclusive function of the finder-of-fact to determine the credibility of the witnesses. Harris, 51 M.J. 191 (C.A.A.F. 1999); U.S. v. Suarez, 35 M.J. 374 (C.M.A. 1992). Side note – Govt CAN have witnesses testify to victim’s good character or reputation for truthfulness, but only after you have already attacked that witness’ character and reputation for truthfulness. It’s improper bolstering if they don’t wait for you to attack first.

M in Limine – Expert Opinion – MRE 702. Daubert v. Merrell Dow Pharmaceutical, Inc.,509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993): MRE 702 focuses on the admissibility of three categories of expert testimony that will assist the trier of fact to understand the evidence or to determine a fact in issue. The three categories are "scientific, technical, or other specialized knowledge." Daubert set forth a list of factors MJ should consider in assessing the validity and associated relevance of proffered expert scientific testimony:

  • (1) whether the theory or technique in question can be (and has been) tested,
  • (2) whether it has been subjected to peer review and publication,
  • (3) its known or potential error rate, and
  • (4) whether it has attracted widespread acceptance within a relevant scientific community.

This rationale applies to nonscientific technical or other specialized knowledge, IAW Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 143 L. Ed. 2d 238, 119 S. Ct. 1167 (1999), though the MJ has high discretion to apply any or all of these tests and must act as a gatekeeper for scientific / technical / expert testimony. See Elmore, 56 M.J. 533 (NMCMA 2001) for a good discussion of this in context of handwriting analysis (a/k/a witchcraft).

M Opposing MRE 413 Evidence – This is evidence of similar crimes in sexual assault offenses. See MRE 414 for the same general rule for child molestation cases. Before admitting the evidence, the Court must initially find the existence of three elements.

The accused must be charged with an offense of sexual assault, the evidence proffered must be evidence that the accused committed another act of sexual assault, the evidence must be relevant under MRE 401 and 402. United States v. Wright, 53 M.J. 476 C.A.A.F. 2000); See also United States v. Guardia, 135 F.3d 1326, 1328 (10th Cir. 1998).

Before admitting evidence of a prior sexual assault under MRE 413, the Courts must apply a MRE 403 balancing test and examine factors including the strength of proof of the prior act, the probative weight of the evidence (ie. factual and circumstantial similarity), the potential for less prejudicial evidence, potential for distraction of the fact finder, the time needed for proof of the prior conduct, the temporal proximity between the charged and the prior incident, the frequency of the alleged similar crimes, the presence or lack of intervening circumstances, and the relationship between the parties. The military rule has a 5-day notice requirement. Some very old misconduct has been admitted under this rule United States v. Meacham, 115 F.3d 1488 (10th Cir. 1997) (30 years ago, but no abuse of discretion). Judges love to admit this stuff for some reason, but it’s a great appellate issue, and appellate opinions have suggested these rules are vulnerable to constitutional attack.

M to Suppress Bank Records - The Right To Financial Privacy Act, 12 USC 3401-3422, says the govt has to do the following to get your bank records:

  • Reasonably describe the records being sought
  • Have customer authorization or an administrative subpoena, or search warrant, or judicial subpoena, or a formal written request (if the other options are not available)
  • Show that the financial records are relevant to a legitimate law enforcement inquiry.
  • Comply with several provisions as stated in 12 USC 3407; serve the customer the subpoena, a sworn statement attesting that the bank records are that of the customer's and information as to when and how to file a motion to quash the Gov'ts request.

The customer has 10 days from being served to file a motion to quash. The basis of the motion can be that the records are not relevant and/or that the Gov't has not complied with procedural requirements of the Act. Although the burden eventually rests with the Gov't to prove the records are relevant, if the basis of the motion is that the records are not relevant, then the customer's motion should state why. The military judge has jurisdiction to decide the issue. Curtin, 44 MJ 439

M in Limine 608(b) Impeachment Ev – Where you think the TC may attempt to impeach your witness on an improper basis, consider a motion in limine to take the element of surprise out of it. Under United States v. Robertson, 39 M.J. 211 (CMA 1994):

  • (1) there must be a good-faith belief by the opponent that the conduct occurred; and
  • (2) the conduct must relate to instances of untruthfulness. Michelson v. United States, 335 U.S. 469, 93 L. Ed. 168, 69 S. Ct. 213 (1948). Acts of perjury, subornation of perjury, false statement, or criminal fraud, embezzlement or false pretense are . . . generally regarded as conduct reflecting adversely on an accused's honesty and integrity. Acts of violence or crimes purely military in nature, on the other hand, generally have little or no direct bearing on honesty and integrity. United States v. Weaver, 1 MJ 111, 118 n.6 (1975). See also United States v. Owens, 21 MJ 117, 123 (CMA 1985) ("intentional falsehood under oath" in a warrant-officer application); United States v. Page, 808 F.2d 723, 730 (10th Cir. 1987) (included within Fed.R.Evid. 608(b) would be forgery, uttering forged instruments, bribery, suppression of evidence, false pretenses, cheating, and embezzlement); United States v. Amahia, 825 F.2d at 181 ("Rule 608(b) will permit inquiry into the specific acts which may have led to an arrest if those acts related to crimen falsi, e.g., perjury, subornation of perjury, false statement, embezzlement, false pretenses"; United States v. Beros, 833 F.2d 455, 463 (3d Cir. 1987) (lying on marriage license). "Conduct" means underlying criminal acts, not arrest (or charging). United States v. Toro, 37 MJ 313, 315 (CMA 1993): an arrest is governmental conduct, not conduct of the witness. Harmless error.

M Limine 1001(b)(5) Evidence – TC wants to call the Cdr/SGM to say that your client has no rehab potential or should get a kick solely because of the offenses. No! Look at RCM 1001(b)(5), then:

Horner, 22 MJ 294 (CMA 1986) (testimony of BC that AC had no rehab potential based solely on the offense committed constituted UCI); Ohrt, 28 MJ 301 (CMA 1989) (similar holding, but the reasoning goes a level deeper, explaining the purpose of a punitive discharge and the foundation needed for an opinion on rehab potential); Bartoletti, 32 MJ 419 (CMA 1991) (error - but harmless error - for MJ to permit TC to present aggravation evidence of statistics regarding the incidence similar crimes, not factually connected to those of AC); Gordon, 31 MJ 30 (CMA 1990) (error to let AC's bde commander testify in aggravation that offense (accidental drowning off duty) damaged trust and cohesion among soldiers in the unit and resulted in negative publicity for the Army among local civilians.); Cherry, 31 MJ 1 (general comments about the offense and its impact on the service may be construed as a recommendation for a kick. This case deals with both aggravation and rehab potential.); Antonitis, 29 MJ 217 (testimony that AC would lose his security clearance due to the conviction is too close to saying that he should not be retained.); Kirk, 31 MJ 84 (CMA 1990) (talking to unit NCO's and reading the AC's training records was not enough foundation to permit the Cdr to testify about AC).

ATTACKS AGAINST THE PROSECUTION

M for Appropriate Relief, Unlawful Command Influence – Pursuant to Article 37 and expanded greatly by case law. Remedies can include dismissal, asking for a panel from an untainted area, or asking to disqualify the CG from convening courts. Could include (partial list only):

  • Coercion of a commander into preferring charges. United States v. Jeter, 35 M.J. 442 (CMA 1992), cited in United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995).
  • Sudden change in a subordinate’s recommendation after pointed questions from a superior. United States v. Gerlich, 45 M.J. 309 (C.A.A.F. 1996).
  • OPD’s attended by panel members that comment on recent dispositions. United States v. Baldwin, 54 M.J. 308 (C.A.A.F. 2001).
  • Commander sends out a “get tough” letter regarding a certain kind of offense. United States v. Martinez, 42 M.J. 327 (C.A.A.F. 1995).
  • TC invokes “zero tolerance” command policy. United States v. Grady, 15 M.J. 275 (C.M.A. 1983).

Once the defense has raised an issue of unlawful command influence with some evidence, amounting to more than mere speculation, the burden shifts to the government to prove beyond a reasonable doubt that unlawful command influence either did not occur or did not affect the proceedings. United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999). Once the TC knows of a UCI issue, the courts are liberal in permitting a CG to “cure” the problem by “clarifying” that the subordinate should make an independent decision on UCMJ matters. United States v. Stoneman, 56 M.J. something.

M to Dismiss for Prosecutorial Misconduct – Rarely granted. You need to prove:

  • An ethical violation. Meek, 44 M.J. 1 (CAAF 1996)
  • Bad intent. Rushatz, 30 MJ 525 (ACMR 1990); Grandy, 11 MJ 270 (CMA 1981)
  • Prejudice. Morrison, 449 US at 365 (1980).

Remedy should be tailored to harm done, for example, if the misconduct was to obtain a statement from your client, the statement will likely be excluded. Any finding of pros misconduct will probably have SOCO implications. A common problem to watch for is the TC sending a flyer to the panel with no intent to prove all of the specs. This is error and may be grounds for a mistrial unless you waive it. Hall, 29 M.J. 386.

M to Dismiss for Violation of Article 10 – This means your client was in pretrial too long and the TC doesn’t have a good explanation for his slowness in getting to trial. See Kossman, 38 MJ 258, and other more recent cases. Under an old CMR case called Burton, an Article 10 violation was presumed if your client was in PTC over 90 days before trial. Now, there is no fixed limit short of the RCM 707 / 120 day clock. But violation of Article 10 means dismissal with prejudice! You might also want to check out Article 33.

M for New Article 32 Investigation – Failure to Produce Necessary Witness - United States v. Ledbetter, 2 M.J. 37 (C.M.A. 1976), reversible error where TC let key witness PCS OCONUS and failed to produce for 32. Timely df request, no telephonic testimony, no showing that military exigencies or extraordinary circumstances warranted excusal of the witness, who was also subject to military orders; United States v. Chestnut, 2 M.J. 84 (C.M.A. 1976) (reversible error where prosecutrix in a rape case was not produced for the Article 32 hearing); United States v. Chuculate, 5 M.J. 143 (C.M.A. 1978) (similar facts); United States v. Marrie, 45 M.J. 35 (C.A.A.F. 1995), (harmless error where gov’t failed to being civilian minor victim-witness).

M for New Article 32 Investigation – Improper Ex-Parte Contacts – The IO is considered a lay judge, bound by the ABA Canons of Judicial Ethics. Error is presumed where (1) there is any contact between someone in a prosecutorial function and the IO or (2) the IO has ex-parte contact with any person on a substantive matter. Though error is presumed, it can be rebutted by clear and convincing evidence that it was harmless, ie. a situation where the Legal Advisor gives the IO a copy of a reg or copies from the MCM. Cts are also very narrow in their definition of those who perform a prosecutorial function. United States v Payne, 3 M.J. 354 (CMA 1979); United States v. Grimm, 6 M.J. 890 (ACMR 1980)

M to Disqualify Panel Members - Dawkins, 2 M.J. 898 (CMR 76). ". . . [T]he federal courts have uniformly [held that a] juror is not disqualified merely because he has previously heard a similar case arising out of a separate and distinct set of circumstances even though. . . the same witnesses testifying in the second case also testified in the earlier one." Where the circumstances of the offense are the same and so are the witnesses, the issues are the same and an accused is entitled to have a juror excused on timely motion.

M to Challenge Panel Member – Actual or Implied Bias - United States v. Napoleon, 46 MJ 279, 282-83 (1997); United States v. Minyard, 46 MJ 229, 231 (1997); United States v. Daulton, 45 MJ 212, 217 (1996); United States v. Harris, 13 MJ 288, 292 (CMA 1982). Further, "we have urged a ‘liberal’ view on granting challenges for cause." United States v. Dale, 42 MJ 384, 386 (1995). Thus, "[m]ilitary judges must follow the liberal-grant mandate in ruling on challenges for cause…." Daulton, supra, quoting United States v. White, 36 MJ 284, 287 (CMA 1993).

  • “The test for actual bias is whether any bias ‘is such that it will not yield to the evidence presented and the judge’s instructions.’" Napoleon, 46 MJ at 283, quoting United States v. Reynolds, 23 MJ 292, 294 (CMA 1987). Given the factual underpinning for testing actual bias, we review a military judge’s findings regarding actual bias for an abuse of discretion. Napoleon, 46 MJ at 283.
  • "While actual bias is reviewed through the eyes of the military judge or the court members, implied bias is reviewed under an objective standard, viewed through the eyes of the public." Id., quoting Daulton, supra. The focus "is on the perception or appearance of fairness of the military justice system." Dale, 42 MJ at 386. At the same time, this Court has suggested that the test for implied bias also carries with it an element of actual bias. Thus, there is implied bias when "most people in the same position would be prejudiced." United States v. Armstrong, 54 MJ 51, 53-54 (2000), quoting United States v. Warden, 51 MJ 78, 81 (1999); United States v. Smart, 21 MJ 15, 20 (CMA 1985). See also United States v. Rome, 47 MJ 467, 469 (1998). Issues of implied bias, which entail both factual inquiry and objective application of legal principle, are reviewed under a less deferential standard than abuse of discretion. Armstrong, 54 MJ at 54, quoting Warden, supra.

United States v. Wiesen, No. 01-0134/AR, Crim. App. No. 9801770 (CAAF December 13, 2001) (reversible error where MJ failed to excuse COL who supervised 4 other members. Implied bias.)

ATTACKS AGAINST THE CHARGES AND SPECIFICATIONS

M for Bill of Particulars – RCM 906(b)(6). If you don’t know what to defend against or are afraid that the imprecision of the spec could result in double jeopardy later, ask for this. Not a tool of discovery. Cannot be used to repair a spec which is otherwise deficient.

M to Dismiss, Failure to State an Offense – Usually because the specs are fatally defective or misleading, or fail to plead a necessary fact. Compare carefully to the model spec, and NEVER raise this before arraignment, or the gov’t can fix it! Once the accused has been arraigned, minor changes can be made without the TC filing a motion, and major changes cannot be made at all if the DC objects. According to case law, any change that makes a defective spec sufficient is a major change per se. See RCM 603. But “a specification is sufficient ‘so long as [the elements] may be found by reasonable construction of other language in the challenged specification.’" United States v. Breechen, 27 M.J. 67 (C.M.A. 1988); United States v. Russell, 47 M.J. 412 (C.A.A.F. 1998) (specification that said AC “wrongfully” rather than “knowingly” received child porno not insufficient; DC and AC not misled and defense not hampered.

M to Dismiss – No Contact Order - The presumption exists that a superior’s order is lawful. Unger v. Ziemniak, 27 MJ 349. Military orders must have a valid military purpose and may not impermissibly infringe upon a service-member’s constitutional rights. Paragraph 14c(a)(iii) and (iv), Part IV, Manual for Courts-Martial, United States (2000 ed.) An order that is overly broad as to practically prevent all speech will be insufficient to sustain a conviction for failure to obey the order. United States v. Wysong, 26 C.M.R. 29 (1958). An order prohibiting the accused from contacting witnesses concerning the charges are unlawful as they interfere with the accused’s right to prepare a defense. United States v. Aycock, 35 C.M.R. 130 (1964). One the defense raises this issue, the prosecution bears the burden of proving that the specification states an offense. United States v. Jefferson, 14 M.J. 806 (A.CM.R. 1982).

M to Dimiss – No Drinking Order - "No Drink" orders are not enforceable under the UCMJ unless related to military duty, or provided as a condition of pretrial confinement or a reasonable condition of pretrial restriction. See United States v. Padgett, 48 M.J. 273 (1998), citing United States v. Blye, 37 M.J. 92 (CMA 1993) and United States v. Wilson, 12 USCMA 165, 30 C.M.R. 165 (1961).

M to Dismiss – Order to Perform Routine Duties - United States v. Hargrove, 51 M.J. 408 (C.A.A.F. 1999) and United States v. Peaches, 25 M.J. 364 (C.M.A. 1987) hold that routine military duties may not be escalated into more serious disobedience offenses simply because of the authority of the person assigning the routine duties. There must be a deliberate defiance of a specific order. Hargove specifically applied to an order to sign in at regular intervals pursuant to a restriction order.

M to Dismiss for MultiplicityUnited States v. Teters, 37 M.J. 370, (1993), cert. denied, 114 S.Ct. 919 (1994). Where one of the offenses is a lesser included offense of the other or whether the offenses have identical elements. See Blockburger v. United States, 284 U.S. 299, 304 (1932). Where different proof is not required to prove each offense, they are multiplicious. COL Smith will probably dismiss one of the charges if you can find any case specific to the two offenses charged, holding they are multiplicious, even if it’s a pre-Teters case. I would also assert unreasonable multiplication of charges every time I file this, as an alternative basis for relief.

M to Dismiss for Unreasonable Multiplication of Charges -- In United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), the Court held that there is an unreasonable multiplication of charges were overreaching in prosecutorial discretion results in the accused’s punitive exposure being unreasonably increased. See also Discussion to R.C.M. 307(c)(4), R.C.M. 907 (b)(3)(B), and R.C.M. 1001(c).

M to Dismiss – SOFA Double Jeopardy – Article XXII, Para. 8 of the US-ROK SOFA says that if the Korean authorities have tried you client, regardless of the result, the US authorities can’t try him again for the same offense. The US retains the right to prosecute a “violation of rules of discipline arising from an act or omission which constituted an offense for which he was tried by the authorities of the Republic of Korea,” which could mean a lot of things but probably means a strictly military offense with a common nexus of fact with the previously-prosecuted Korean offense. United States v. Miller, 16 M.J. 169 (C.M.A. 1983) a Korea case, held that but for the declaration of martial law, for which there is a specific exception, that the AC would have standing to enforce a right under this international treaty. See also United States v. Green, 14 M.J. 461 (C.M.A. 1983). That’s the easy part. With the extreme differences in the US and Korean legal systems and how they charge and prove offenses, the hard part will be persuading the Judge that it’s the same offense. For example, what we would charge as possession, the Koreans will charge as purchasing without a license to deal in pharmaceuticals. Recommend you use a multiplicity or unreasonable multiplication of charges analysis.

M to Consolidate Specs – Larceny – MCM, para. 46(c)(1)(h)(ii), states that multiple larcenies at one time and place should be one spec, even if different owners. United States v. Jobes, 20 M.J. 506 (AFCMA 1985); Blockburger v. United States, 284 U.S. 299 (1932); United States v. Robinson, 17 M.J. 412 (C.M.A. 1984) (summary disposition); United States v. Anthony, 17 M.J. 412 (CMA 1984) (summary disposition), holding that submission of a single false document could not be the basis for charging for larceny, making a false claim, and presenting a false claim.

SENTENCE CREDIT

M for Sentence Credit – Pretrial confinement - Credit against the maximum term and any minimum term should be given to a defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which a charge is based. This should specifically include credit for time spent in custody prior to trial, during trial, pending sentence, pending the resolution of an appeal, and prior to arrival at the institution to which the defendant has been committed. United States v. Allen, 17 M.J. 126 (C.M.A. 1984) (emphasis added). BUT see Smith, 56 MJ 290 (CAAF 2002), which denied appellant relief against a sentence of hard labor without confinement resulting in no sentence credit for pretrial confinement. The Court reasoned that the accused elected to inform the members that he had been in PTC and therefore they had considered it as a factor in mitigation on sentencing. Follows reasoning of Gammons, 51 M.J. 169 (C.A.A.F. 1999).

M for Sentence Credit – Restriction Tantamount to Confinement - Pretrial restriction can be so onerous that it becomes tantamount to confinement, thus entitling the confinee to confinement credit for the time of his restriction. United States v. Mason, 19 M.J. 274 (C.M.A. 1985); Allen. The determination of whether pretrial restriction is tantamount to confinement is based on the totality of the conditions imposed by the restriction. United States v. Smith, 20 M.J. 528 (C.M.A. 1985); United States v. Swan, 45 M.J. 672 (N.M.C.C.A. 1996). "Some of the relevant factors to be considered include: the nature of the restraint; the scope of the restraint; the types of duties performed during the restraint; and the degree of privacy enjoyed during the restraint." Id. at 677-678. If the conditions of restriction amount to a "substantial impairment of the basic rights and privileges enjoyed by service members," confinement credit is appropriate. Under United States v. Smith, 53 MJ 168, 173 (CAAF 2000), you may need to show that the gov’t had an intent to punish.

M for Sentence Credit – Restriction in violation of Article 13 or unnecessarily harsh conditions of confinement - Pretrial restriction, under certain circumstances, may constitute pretrial punishment as defined by Article 13. United States v. Smith, 53 M.J. 168 (C.A.A.F. 2000). Theterms of the pretrial restriction must not be intended to punish or stigmatize the appellant while awaiting trial and the restriction terms must be incident to legitimate non-punitive command objectives in ensuring that he remains on post and was not a disruptive influence on the other soldiers in the unit. United States v. Palmiter, 20 M.J. 90 (C.M.A. 1985); see also United States v. Larner, 1 M.J. 371 (C.M.A. 1976); United States v. Suzuki, 14 M.J. 491, 493 (C.M.A. 1983). AR 190-47 is a gold mine of reasons to demand credit under this basis or even RCM 305k. For an incredibly bad case on this, see Corteguera, No. 01-0421,Crim. App. No. 33067 (CAAF 2002)

M for Sentence Credit – Article 13 (humiliation of AC) - Article 13, UCMJ, also prohibits humiliation or degradation of accused before trial. Case law interprets Article 13 as permitting sentence credit as an appropriate remedy. United States v. Cruz, 25 M.J. 326 (C.M.A. 1987) (AC and several others who tested positive were put in the “Peyote Platoon” and ridiculed. Deprivation of rank or insignia, comments in formations, stigmatization of AC with punitive intent may also count. See also United States v. Stamper, 39 M.J. 1097 (ACMR 1994).

M for Sentence Credit, RCM 305(k) - Under R.C.M. 305(k), the remedy for confinement in violation of R.C.M. 305 is one day of credit per day of confinement. Any violation of RCM 305 may be a basis for credit. Pretrial confinement is appropriate when it is foreseeable that the accused would not appear at trial, pretrial hearing, or investigation, or the prisoner would engage in serious criminal misconduct. R.C.M. 305(h)(2)(B)(iii). United States v. Doane, 54 M.J. 978 (A.F.C.C.A. 2001). The Military Judge may order additional credit as is just for abuses of discretion or harsh conditions of confinement. United States v. Larner, 1 M.J. 371 (C.M.A. 1976); United States v. Suzuki, 14 M.J. 491, 493 (C.M.A. 1983).

M for Pierce Credit - United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) (where AC is punished at CM after being punished for same offense w/ Art 15, must be given complete credit for any nonjudicial punishment imposed: day-for-day, dollar-for-dollar, stripe-for-stripe. You can ask the MJ, the panel, or the CMCO for relief, but asking one waives consideration of the issue by the others. Gammons, 51 M.J. 169 (C.A.A.F. 1999). FN 5 in the Pierce case suggests a formula for converting punishments, which is generous but not mandatory.

  • 1 day’s pay = 1 day of confinement; see United States v. Ridgeway, 48 M.J. 905 (ACCA 1998) for discussion of options available.
  • 2 days’ restriction = 1 day of confinement
  • 60 days of restriction w/o ED = 45 days of ED
  • Where client has lost a stripe, credit includes the stripe and the difference in pay for the time between the Art 15 reduction and CM sentencing. This money can, in turn, be converted into confinement time.
  • If there is a PTA, must say that credit will be applied against the unsuspended portion of the approved (NOT adjudged) sentence. U.S. v. Collins, 30 M.J. 991 (ACMR 1990); U.S. v. Williamson, 26 M.J. 835 (ACMR 1988). If PTA after application of Pierce credit could mean no jail time, consider asking the Convening Authority to defer the remaining confinement under RCM 1101(c) instead of taking the issue to the MJ or panel.

Pierce also holds that “nonjudicial punishment may not be used for any purpose at trial, such as impeachment (even of an accused who asserts that he has no prior misconduct); to show that the accused has a bad service record; or any other evidentiary purpose, MRE 404(b).”

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