United States v. McDuffie, __ M.J. __, No. ACM 36431 (A.F. Ct. Crim. App. May 4, 2007).
In a factual sufficiency ruling, the Air Force Court knocks involuntary manslaughter and reckless driving findings down to negligent homicide where the accused strayed over the dividing line and killed a woman and her fetus in a car crash in Britain. The court ruled:
After our careful review of the evidence, we are not convinced beyond a reasonable doubt that the appellant acted with a culpable disregard for the foreseeable consequences of his actions when, whether due to his falling asleep or inattentiveness, he crossed the center line into oncoming traffic while operating his vehicle.
We do, however, conclude that the appellant failed in his duty to operate his vehicle with due care for the safety of other drivers when he crossed into oncoming traffic. In so doing, the appellant failed to exhibit the degree of care a reasonably careful person would have exercised under the same or similar circumstances. Under the facts of this case, the appellant’s operation of his vehicle immediately preceding the fatal crash amounted to simple negligence. The resulting death of a British national by the appellant’s negligent operation of his vehicle was not only tragic, but also prejudicial to good order and discipline and of a nature to bring discredit upon the armed forces. We thus find beyond a reasonable doubt that the appellant committed the offense of negligent homicide, and so hold.
Slip op. at 9 (footnote omitted).
The Air Force Court follows this ruling with an entirely unconvincing application of Sales, purporting to devine that the panel of officer and enlisted members would still have imposed a year of confinement if appellant had been convicted of negligent homicide instead of involuntary manslaughter and reckless operation of a vehicle. But in the course of the Sales analysis, the Air Force Court gives the defense the big prize: it sets aside the BCD. So while this Sales application would fare poorly under Judge Baker’s compelling analysis of the law of sentence reassessment in United States v. Moffeit, 63 M.J. 40, 42 (C.A.A.F. 2006) (Baker, J., concurring), here the defense will likely want to stick with what it got rather than risking reimposition of the BCD if the defense were to win a sentence rehearing by seeking CAAF’s review of the Air Force Court’s Sales analysis.