On Thursday, CAAF added another trailer to the Fosler Trailer Park. United States v. Ballan, __ M.J. __, No. 11-0413/NA (C.A.A.F. June 2, 2011). CAAF also granted a non-Fosler issue in the same case:
ALTHOUGH THE CRIME OF INDECENT ACTS WITH A CHILD TO WHICH APPELLANT PLEADED GUILTY WAS NOT A LESSER INCLUDED OFFENSE OF THE CHARGED CRIME OF RAPE OF A CHILD AND THUS HAD NOT BEEN FORMALLY REFERRED TO TRIAL BY COURT-MARTIAL BY THE CONVENING AUTHORITY, WHETHER APPELLANT WAIVED SUCH IRREGULARITY BY PLEADING GUILTY UNDER A PRETRIAL AGREEMENT TO INDECENT ACTS WITH A CHILD IN VIOLATION OF ARTICLE 134, WHERE NEITHER THE PRETRIAL AGREEMENT NOR APPELLANT’S PLEA AT ARRAIGNMENT EXPRESSLY SET FORTH EITHER POTENTIAL TERMINAL ELEMENT FOR AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION, BUT BOTH ELEMENTS WERE DISCUSSED AND ADMITTED DURING THE PROVIDENCE INQUIRY.
NMCCA’s unpublished opinion in the case is available here.
Also on Thursday, CAAF granted review of this issue: “WHETHER THE MILITARY JUDGE ERRED, AFTER FINDING ALL THREE CHARGES AROSE OUT OF THE SAME TRANSACTION AND WERE PART OF THE SAME IMPULSE, BY MERGING THEM FOR SENTENCING RATHER THAN DISMISSING THEM.” United States v. Campbell, __ M.J. __, No. 11-0403/AF (C.A.A.F. June 2, 2011). AFCCA’s website appears to be unavailable at the moment. I should be able to obtain a copy of AFCCA’s opinion in Campbell on Monday and post it then.