Here is a link to NMCCA’s published opinion in United States v.Markert, __ M.J. ___, No. NMCCA 200500223 (N-M. Ct. Crim. App. July 12, 2007), about which Guert writes below (even taking Judge Mathews’ title of “the Great” and bestowing it on NMCCA’s Judge Couch).
Here’s a link to NMCCA’s published opinion in United States v. Holmes, __ M.J. ___, No.NMCCA 200601110 (N-M. Ct. Crim. App. July 9, 2007).
In a welcome departure from past NMCCA practice, both are already on WESTLAW. Holmes, 2007 WL 2004422; Markert, 2007 WL 2004407.
WESTLAW also reveals that United States v. Vanterpool, __ M.J. ___, No. 1255, 2007 WL 1892232 (C.G. Ct. Crim. App. July 2, 2007), which we previously discussed here, will be published despite the lack of an “M.J.” designator on the CGCCA web site.
Finally, WESTLAW indicates that CGCCA’s opinion in United States v. Caballero, __ M.J. ___, No. 1252, 2007 WL 2011276 (C.G. Ct. Crim. App. July 12, 2007), will also be published.
Incredibly, Caballero was the second CCA opinion last week overturning a plea of guility to making a false official statement to civilian law enforcement personnel. See also United States v. Holmes, __ M.J. ___, No. NMCCA 200601110 (N-M. Ct. Crim. App. July 9, 2007).
In Caballero, CGCCA didn’t hold that the accused’s false statements to a Norfolk police detective necessarily weren’t official; rather, the court held that the providence inquiry failed to establish the lies’ official nature. See Caballero, slip op. at 2. (Cabellero had falsely told the detective that he wasn’t at the scene of a shooting.)
While the Coast Guard Court acknowledged that the military judge (Judge Judge)”asked repeatedly if Appellant understood that the detective was acting in his official capacity as a Norfolk police officer during the questioning,” the Coast Guard Court faulted him for failing to “define the term ‘official,'” as well as failing to “inquire into Appellant’s belief that he was making the statement in the line of duty or that his statement was official.” Id., slip op. at 203.
Just at NMCCA did in Holmes, the Coast Guard Court in Caballero distinguished United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003), where “[t]he circumstances leading up to and surrounding the statements made to [civilian law enforcement personnel bore] a clear and direct relationship to Appellant’s duties as a recruiter and reflect a substantial military interest in the investigation.” See Cabellero, slip op. at 3 (quoting and discussing Teffeau, 58 M.J. at 69).
Perhaps explaining why the Coast Guard Court chose to publish this rather brief (4-page) opinion, Judge Lodge then observed that the Military Judges’ Benchbook’s treatment of the officiality element for a 107 offense is deficient. Caballero, slip op. at 3.
In light of the dual outcomes in Holmes and Caballero, a Benchbook rewrite probably is in order.