The Coast Guard Court issued a published opinion addressing three interesting issues. United States v. O’Donnell, __ M.J. ___, No. 1250 (C.G. Ct. Crim. App. Oct. 11, 2007).
The first issue is whether information in the government’s sentencing case that is inconsistent with an accused’s plea can require the military judge to reopen the providence inquiry. Yes, rules the Coast Guard Court. Id., slip op. at 4. But the court establishes a fairly high threshold: “the plea’s providence is only brought into question if government sentencing evidence creates the appearance of a substantial basis in law or fact for questioning the plea. If the Government does so, then the military judge must reopen the Care inquiry to ensure a providence plea.” Id.
The second issue is whether the CA must review clemency materials before he acts on the case if he previously saw those materials when deciding whether to defer confinement. Yes under the facts of this case, rules the Coast Guard Court. “[G]iven the passage of a significant amount of time between the clemency petition’s initial review in June and the action in October, the record does not convince us that the Convening Authority considered the clemency petition at the time of action, as was his duty to do.” Id., slip op. at 6.
The most significant portion of the opinion addresses the recurring issue of how much uncharged misconduct the government can throw into its sentencing case. Not this much, holds the Coast Guard Court. In this case, Chief Warrant Officer O’Donnell pled guilty to “stealing a total of six items on two specific instances within a 3-month period.” Id., slip op. at 9. The government presented evidence in its sentencing case that “tended to show that Appellant stole an additional 1600 items from the Coast Guard at undefined times, and unknown but probably widely dispersed locations, over the course of a 32-year period.” Id. The court held, “Under these circumstances, we do not find the link between the charged and uncharged misconduct direct as required by R.C.M. 1001(b)(4) or ‘closely related in time, type, and/or often outcome.” Id. (quoting United States v. Hardison, 64 M.J. 279, 282 (C.A.A.F. 2007)).
In rejecting the government’s argument that the defense opened the door by presenting good military character evidence AFTER the government had put on its evidence of 1600 stolen items, Judge Felicetti turned a nice phrase: “[T]he Government cannot transform the defense’s attempt to rebut Prosecution Exhibits 5 and 7 into an independent basis to admit them, or claim that the defense opened the door for their admission. The Government, in order words, forced open the metaphorical door and cannot claim they were invited in because the defense turned on the heat to counter the draft.” Id., slip op. at 10-11.
What are the Vegas odds on whether the Judge Advocate General of the Coast Guard will certify the case to CAAF?