This appears to be the Week of the Highly Factually Specific CAAF Opinion.  Today CAAF announced its decision in United States v. Trew, __ M.J. __, 09-0414/NA (C.A.A.F. Feb. 25, 2010).  CAAF reversed the Navy-Marine Corps Court, holding that the military judge’s statement that she found the accused guilty of “the one occasion” without further clarification precluded the CCA from knowing what act was the subject of conviction and what act was the subject of acquittal, thus requiring reversal of the findings and sentence and dismissal of the charge.  In this case, it was a question from the trial counsel that led to the military judge’s statement undermining her previous announcement of findings.  And CAAF once again declined to return the case to the military judge for possible clarification, concluding that to do so would offend R.C.M. 1102(c)(1)’s prohibition against post-trial sessions “for reconsideration of a finding of not guilty to any specification, or a ruling which amounts to a finding of not guilty.”

Judge Erdmann wrote the opinion of the court.  Judge Stucky concurred in the result, opining that assault consummated by a battery isn’t an LIO of indecent acts with a child.  The majority declined to address the LIO issue.  Trew, slip op. at 3 n.2.

25 Responses to “CAAF issues another “divers occasions” decision”

  1. ? says:

    EXPLAIN why we need to retain this phrase that causes so many problems?

  2. Anon says:

    I can’t understand why after all these years since Walters military judges can’t seem to get this right.

    At the other end, why is the Govt still charging “on divers occasion.” They should just lay the charges all out there. If the accused faces a 200 year max punishment, so be it.

  3. Anon says:

    Questions: If an accused is charged with using marijuana (not on divers occasions) between 1 and 30 Jan and a witness testifies that he smoked marijuana with the accused on 3 Jan and 10 Jan, can the court-martial convict without explaining which occurrence was established beyond a reasonable doubt?

    If an accused is charged with rape and the evidence is that the accused either actually raped the victim or was an aider and abettor by holding the victim down, does the court have to specify on what theory the conviction is based?

    If the court doesn’t have to specify in those instances, then why should the court have to do so when the accused is charged with “on divers occasions”?

  4. John O'Connor says:

    My random thoughts:

    1. I don’t think the Government should be trying to rely on technicalities to try to exclude consideration of the fact that the MJ clearly intended to convict of only one incident. That just seems unseemly.

    2. Every TC should know about Walters and it is fundamentally the TC’s job to try to send up a clean record. When the MJ said “the one occasion,” the appropriate next step would have been to remind the MJ that she HAS to say which one occasion.

    3. I’m not sure I’m a fan of Walters. I would need to think about it some more. But it is what it is, so TCs and MJs need to be attuned to the issues arising when they charge something on divers occasions.

  5. Willie Santiago says:

    For all those who like to take unfair shots at NMCCA, this case provides them with plenty of fodder:

    You have a published opinion, signed by both the current and former chief judge, which blatantly attempts to side-step mandatory precedent without even making an attempt to credibly distinguish it. In fact, the opinion is so bad that even appellate government has to acknowledge that it is indefensible, and must come up with a new theory. Accordingly, CAAF rightfully issued a slap-down and reversed.

    But the end result does nothing to combat the perception that NMCCA engages in results-oriented judging.

    This would all be rather funny, if it weren’t for the fact that Trew had to serve several additional months of confinement that he wouldn’t have, had NMCCA fulfilled their duty to objectively apply the law and reversed the case last year.

  6. Phil Cave says:

    If recollection serves, he was released before NMCCA acted?

  7. Willie Santiago says:

    Mr. Cave,

    Weren’t you his lawyer? If so, how could you not know that?

  8. Anonymous says:

    Aren’t you dead of lactic acidosis?

  9. Markinson says:

    CAPT Reismeier, the current Chief Judge, was on this panel?

  10. Jvax says:

    Maybe TC’S will finally understand the piling on is not necessary. Either you have an accused dead to rights or not at all. This guy gets to walk because of a foolish practice tolerated for too long.

    These guys need to stop with the diverse occasion nonsense lay out the charge and the possible sentence if its 200 yrs fine, but enough with the gymnastics.!

  11. John Harwood says:

    I’ve defended dozens of airmen. Believe it or not, I don’t mark their maximum release dates on my calendar.

  12. Phil Cave says:

    OK, here’s the question for the appellate guru’s.
    If NMCCA issued their opinion on 30 December 2009, and they had done as CAAF did, what is the earliest possible release date for the appellant?

  13. John O'Connor says:

    There’s nothing wrong with a divers occasions spec. That’s an appropriate way to charge it when you have evidence of multiple events within a defined period but can’t fix the precise dates. Charging it that way is not the problem. The problem is that when you charge something on divers occasions, you have to be attuned to any findings by exceptions and substitutions to make sure that excepting the divers occasions out leaves no doubt as to the single event for which the accused was found guilty.

    So it’s not charging divers occasions that’s the problem, it’s failing to appreciate the issues that can come with it.

  14. Atticus says:

    The Walters/Seiders case law is just ridiculous. On one hand the Court says they would have to speculate to determine which occasion the accused was convicted of, but on the other hand they speculate all day that the accused would be subject to DJ if retried. If you have to speculate to determine which is the guilty finding aren’t you then speculating when you conclude he would be subject to DJ? The G should start charging every occasion as a separate spec and stop cutting the accused a break by charging divers occasions. And frankly, unless you have actually been at the appellate level and you are well-versed in this line of cases, it’s a blip at the judges’ course, if they even address it at all. No excuse, but that could explain why some judges continue to muck it up.

  15. Willie Santiago says:

    Sorry, I meant previous Chief Judge’s Geiser and O’Toole: I was still groggy from falling out of a unit run and dropping my rifle.

  16. Anon says:

    If an accused admits to smoking marijuana on multiple occasions over a several month period, but can’t recall the exact dates, how else can you charge it than on divers occasions between two dates? It is possible that a crime was committed so frequently that it can’t be charged with mathmatical precision.

  17. anon says:

    Giving the Government its full 30 days to decide to certify, he could have been released from confinement on 30 Jan 2009.

    According to the NMCCA opinion, Trew had an original 18 month sentence which was awarded in early Jan 2008. So with good time, Trew should have been released at the earliest in April 2008.

    That means NMCCA’s decision cost him at least an extra 2 months in jail.

    So I believe you were incorrect above when you indicated that he had already been released at the time of the NMCCA decision.

  18. Phil Cave says:

    Anon 1021: Trew was released on 28 February 2009. So my memory was incorrect on when he was released. Had NMCCA ruled in his favor, and assuming TJAG did not certify, when would the powers that be have issued the order to release? In other words, is there some lag time from the decision becoming final until the order to release gets to the Brig?

  19. Anonymous says:

    When you have someone convicted of one act and acquitted of another but you don’t know which one you AND you pick one then you have a 50/50 shot of convicting someone on appeal for something they were acquitted for at trial.

    That sounds a lot like double jeopardy to me. Same if you send it back. So hey, if you are good with 50/50 or worse odds of double jeopardy occurring, ok, but I’m not.

  20. Anonymous says:

    Once the Order reaches the confinement facility USUALLY that person is released within a day, but not always. I’ve seen at least one writ by another attorney during my time as TDS counsel concerning someone who was not immediately released after a favorable decision.

  21. AF Lurker says:

    Is there a constitutional problem with amending RCM 1102 to allow for post-trial Art 39(a)s to specify the finding? I realize that’s a pain in a jury trial, and obviously preferable for alert TCs to specify on the record, but is it fundamentally verboten?

    My rule on charging divers used to be it only works 1)where you have so many occurrences it’s not realistic to list them all (e.g., confession + corrob. that Accused did drugs almost every weekend for four months); or 2) in crimes such as a bad check case, you can tailor the charge to list the occurrences. Otherwise, charge separate.

  22. Anonymous says:

    Particularly in guilty pleas for drug use offenses, why not just charge one or two offenses, and work out a deal to allow the other bits in through the stip of fact as aggravation?

    Checks shouldn’t require diverse occasions, you have an actual check each time, you should be able to quantify it most of the time, and if somehow you can’t quantify the 8th and 9th time, why are you charging it?

    You aren’t getting a day more for the 8th and 9th one than the 7th one anyways.

  23. Markinson says:

    Can you tell me why you didn’t pack anything or call anyone when you were told you were to be transferred off the island?

  24. Steve Dallas says:

    Screw Trew.

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