I’m leaving for OCONUS reserve duty tomorrow, so I’m putting out This Week in Military Justice a day early.  My blogging this week will be somewhere around diminished to non-existent.

This week at the Supremes:  There are no expected military justice developments at the Supremes on my radar screen for this week.

This week at CAAF:  CAAF’s new term starts on Wednesday.  Happy New Term!

This week at the CCAs:  NMCCA will be hearing three oral arguments this week and ACCA will be hearing one. 

[UPDATE:  Courtesy of Phil “My Liege” Cave, here are the issues being argued Monday at NMCCA in United States v. Collins:

I. WHETHER THE JUDGE ERRED IN ALLOWING EVIDENCE OF UNCHARGED CONDUCT UNDER MIL. R. EVID. 413 WHERE THERE WAS INSUFFICIENT STRENGTH OF PROOF THAT THE UNCHARGED CONDUCT HAD ACTUALLY OCCURRED AS WELL AS INSUFFICIENT EVIDENCE THAT THE UNCHARGED CONDUCT QUALIFIED AS SEXUAL CONTACT.

II. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT WHERE HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND CALL WINTESSES WHO WERE EITHER PRESENT AT THE TIME THE ALLEGED UNCHARGED CONDUCT OCCURRED OR WHO HAD PERSONAL KNOWLEDGE OF THE COMPLAINING WITNESS’ HISTORY OF FALSE REPORTING OF ALLEGED SEXUAL ASSAULTS.

III. WHETHER THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR AGGRAVATED SEXUAL ASSAULT, WHERE THE EVIDENCE ADDUCED AT TRIAL DOES NOT SUPPORT A FINDING THAT THE ALLEGED VICTIM WAS SUBSTANTIALLY INCAPACITATED.]

ACCA is hearing oral argument on Wednesday in United States v. Fernandex-Brito, No. ARMY 20080982, on these issues:

I. WHETHER THE MILITARY JUDGE ERRED BY DENYING THE DEFENSE REQUEST FOR AN R.C.M. 706 SANITY BOARD.

II.  WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT’S GUILTY PLEA WHERE EVIDENCE WAS INTRODUCED DURING THE PROVIDENCE INQUIRY AND PRESENTENCING HEARING THAT APPELLANT WAS NOT MENTALLY RESPONSIBLE DURING THE COMMISSION OF THE OFFENSE AND BY NOT EXPLAINING THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY TO APPELLANT NOR ELICITING FACTS TO NEGATE THE DEFENSE.

[Update:  Courtesy of Phil “My Liege” Cave, here’s the issue being argued at NMCCA in United States v. Curry on Wednesday:  “WHETHER THE EVIDENCE WAS FACTUALLY AND LEGALLY SUFFICIENT TO SUSTAIN A FINDING OF GUILT TO THE CHARGE OF LARCENY AS THE GOVERNMENT DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT KNEW THAT HE WAS NOT ENTITLED TO BAH WHEN HE SUBMITTED HIS VALID MARRIAGE LICENSE TO PSD.”  And here are the assignments of error in United States v. Vasquez being argued on Thursday at NMCCA:

I. APPELLANT’S CONVICTION IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE THE GOVERNMENT DID NOT INTRODUCE SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS NOT ENTRAPPED INTO THE OFFENSE OF ATTEMPTED POSSESSION WITH THE INTENT TO DISTRIBUTE.

II. THE MILITARY JUDGE ERRED BY DENYING APPELLANT’S MOTION TO DISMISS FOR A VIOLATION OF ARTICLE 10, UCMJ.

III. APPELLANT’S SENTENCE IS INAPPROPRIATELY SEVERE BECAUSE GOVERNMENT CONDUCT ENTICED APPELLANT INTO COMMITTING AN OFFENSE QUALITATIVELY MORE SEVERE THAN HE ORIGINALLY INTENDED. IN ADDITION, HE HAS NOW BEEN SENTENCED BY TWO SOVEREIGNS FOR THE SAME CRIME.]

This week in the Marine Corps judge advocate community:  The Marine Corps’ WESTPAC Regional Defense Counsel, Maj Chris Thielemann, will be promoted to lieutenant colonel this week.  Congratulations to soon-to-be LtCol Thielemann!

7 Responses to “Next week in military justice — 28 August 2010 edition [updated]”

  1. Phil Cave says:

    Wednesday, 1 September 2010
    1000
    United States v. Curry
    A special court-martial, with enlisted representation,
    convicted the appellant by exceptions and substitutions and contrary to his pleas, of having stolen military property of a value of over $500.00 from August 2006 to the time of his court-martial, in violation of Article 121, UCMJ, 10 U.S.C. § 921 (2005). The appellant was sentenced to a bad-conduct discharge and a reduction in paygrade to E-1. The convening authority approved the findings and sentence as adjudged and, except for the bad-conduct discharge, ordered it executed. The issues to
    be argued before the court are:
    I. WHETHER THE EVIDENCE WAS FACTUALLY AND LEGALLY SUFFICIENT TO SUSTAIN A FINDING OF GUILT TO THE CHARGE OF LARCENY AS THE GOVERNMENT DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT KNEW THAT HE WAS NOT ENTITLED TO BAH WHEN HE SUBMITTED HIS VALID MARRIAGE LICENSE TO PSD.
    Thursday, 2 September 2010
    1330
    United States v. Vasquez
    A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of attempted possession of Oxycontin, a Schedule I controlled substance, with the intent to distribute, in violation of Article 80, UCMJ, 10 U.S.C. § 880.
    The Members sentenced the appellant to three years confinement, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed. The issues to be argued before the Court are:
    I. APPELLANT’S CONVICTION IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE THE GOVERNMENT DID NOT INTRODUCE SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS NOT ENTRAPPED INTO THE OFFENSE OF ATTEMPTED POSSESSION WITH THE INTENT TO DISTRIBUTE.
    II. THE MILITARY JUDGE ERRED BY DENYING APPELLANT’S MOTION TO DISMISS FOR A VIOLATION OF ARTICLE 10, UCMJ.
    III. APPELLANT’S SENTENCE IS INAPPROPRIATELY SEVERE BECAUSE GOVERNMENT CONDUCT ENTICED APPELLANT INTO COMMITTING AN OFFENSE QUALITATIVELY MORE SEVERE THAN HE ORIGINALLY INTENDED. IN ADDITION, HE HAS NOW BEEN SENTENCED BY TWO SOVEREIGNS FOR THE SAME CRIME.

  2. Dwight Sullivan says:

    Thanks, My Liege. There’s also one on Monday. Can you access the issue/issues for that one?

  3. Phil Cave says:

    Monday, 30 August 2010
    1000
    United States v. Collins
    A general court-martial composed of officer and enlisted members convicted the appellant, contrary to his pleas, of one specification of aggravated sexual assault, one specification of burglary, and one specification of adultery, in violation of Articles 120(c), 129 and 134, UCMJ, 10 U.S.C. §§ 920(c), 929, and 934. The appellant was sentenced to three years of
    confinement, reduction to the pay grade of E-1, and a dishonorable discharge. The Convening Authority approved the adjudged sentence, and except for the dishonorable discharge,
    ordered it executed. The issues to be argued before the Court are:

    I. WHETHER THE JUDGE ERRED IN ALLOWING EVIDENCE OF UNCHARGED CONDUCT UNDER MIL. R. EVID. 413 WHERE THERE WAS INSUFFICIENT STRENGTH OF PROOF THAT THE UNCHARGED CONDUCT HAD
    ACTUALLY OCCURRED AS WELL AS INSUFFICIENT EVIDENCE THAT THE UNCHARGED CONDUCT QUALIFIED AS SEXUAL CONTACT.
    II. WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT WHERE HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND CALL WINTESSES WHO WERE EITHER PRESENT AT THE TIME THE ALLEGED UNCHARGED CONDUCT OCCURRED OR WHO HAD PERSONAL KNOWLEDGE OF THE COMPLAINING WITNESS’ HISTORY OF FALSE REPORTING OF ALLEGED SEXUAL ASSAULTS.
    III. WHETHER THE EVIDENCE IS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR AGGRAVATED SEXUAL ASSAULT, WHERE THE EVIDENCE ADDUCED AT TRIAL DOES NOT SUPPORT A FINDING THAT THE
    ALLEGED VICTIM WAS SUBSTANTIALLY INCAPACITATED.

  4. Anonymous says:

    What the heck’s going on at NMCCA? All three OAs include suffiency of the evidence claims, one exclusively, and one case actually includes a sentence appropriateness issue. These all get de novo review, so it’s unclear how oral argument could be worthwhile, other than as a gratuituous training evolution for counsel. Can anyone shed any light?

  5. Anonymous says:

    Too much time on their hands.

  6. Anonymous says:

    Why does a de novo standard mean that oral argument is a waste of time? Oral argument allows counsel the opportunity to highlight the specific facts in the record on which the judges should focus.
    And by the way, all matters of law are reviewed de novo. Should AOEs regarding matters of law never lead to oral argument?

  7. Anonymous says:

    I didn’t say de novo =/= oral argument. That’s your straw man.

    My point was that legal and factual sufficiency claims don’t lend themselves particularly well to oral argument. Highlighting specific facts is what the briefs and bench memos are for. If counsel have done their job adequately on paper, what’s left, other than renewing the closing arguments from trial? NMCCA’s recent sittings already have enough impassioned oratory (from the bench); we hardly need more from counsel.