The NMCCA released a number of unpublished opinions this week, including the following interesting items:

United States v. Lavoy, No. NMCCA 201000586, finding no material prejudice in a 1,601 day (>4 year) delay before docketing at the CCA.

United States v. Gatewood, No. NMCCA 201000142, a Medina/Prather trailer, finding that the Military Judge’s instruction that “imposed upon the Government the added element of proving lack of consent beyond a reasonable doubt, while relieving the appellant of the burden of proving the affirmative defense to the members by a preponderance of the evidence … dispositively erred in favor of the appellant and was therefore harmless.” Presumably, any other instruction from the MJ would have been prejudicial error, leaving no obvious way to avoid some form of error on this issue.

United States v. Watson, No. NMCCA 201000263, finding no prejudice in severance of detailed defense counsel who was discharged during the pre-trial stage upon reaching his expiration of active service (EAS). This particular defense counsel appears, by the facts and timeline, to be the same defense counsel at issue in the Art. 62 appeal in United States v. Hohman, recently granted review at CAAF on the issue of whether the NMCCA erred in finding good cause for the severance of the attorney-client relationship.  In Watson, the Accused entered into a PTA to plead guilty after the departure of the first detailed defense counsel.

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