Wednesday’s Daily Journal shows that a petition for grant of review was filed in U.S. v. Leubecker, N-MCCA No. 201100091.

Leubecker is one of seven post-Fosler cases in which the N-MCCA affirmed a finding of guilty to an Article 134 specification lacking a terminal element where the accused was convicted pursuant to his pleas and did not object to the specification at trial. We covered the CCA’s unpublished decision in Leubecker here. Additional coverage of the issue is here.

The case has CAAF number 12-0073/MC.

5 Responses to “Is the Fosler issue headed back to CAAF?”

  1. Military Lawyer says:

    I think CAAF will want/need to grant review so it can decide just how far Fosler goes. On a side note, what should be made of the fact that all of the recent Fosler-issue cases are coming from NMCCA?

  2. Phil Cave says:

    ML: I would posit that NMCCA has developed a coherent and apparently consistent theory on how to approach the cases, which they are confident will be accepted by CAAF, so they’ve gone public. Basically a GP case will not get Fosler relief, but that a NG will. Frankly, I’m not averse to that approach. Keep in mind that in none of the NMCCA cases did the appellant get sentence relief. I suppose it might be possible if the sole charge and specification is a NG plea 134 child porn case, the coherence may experience cavitation. But that’s a case the government would likely want to retry. The one NMCCA case so far that might get some closer attention is United States v. Raucher, No. 201000684 (N.M.Ct.Crim.App., 27 Sep 2011), where the appellant was convicted of an LIO, not the incorrectly charged 134.

    Either ACCA and AFCCA don’t have any such cases in the pipeline (unlikely), or they are waiting for the remands and will then develop their approach to write on the remands and then apply that to any in the pipeline? Or they will wait for CAAF to decide Leubecker. Or they are just slow.

    Seems to me Leubecker is among the easiest of the lot (GP) for CAAF — affirm. Although I suppose they may want to address Watkins.

    My disagreement on the GoD/SD element is not how it’s charged. We now seem to have a form of strict liability crime under Article 134, and the prosecution is no longer required to offer any evidence on that element. See United States v. Phillips [].

  3. Dwight Sullivan says:

    My Liege,

    I don’t see child porn Article 134 specs that don’t include the terminal element. When TCs (or whoever does it in the particular service) draft novel Article 134 specs, as a matter of practice, they appear to include the prejudice to good order and discipline and service discrediting terminal elements. Fosler issues tend to pop up in cases with those Article 134 specs — like adultery — whose sample spec in the MCM omits the terminal element. (Most, but not all, of the sample Article 134 specs in the MCM fail to allege any Article 134 terminal element.)

    In the Air Force, a large number of Fosler guilty plea and not guilty plea cases where the issue wasn’t raised at trial are collecting in a vast lake behind the dam that is the Air Force Court of Criminal Appeals (a court that has issued just two non-merits decisions in Article 66 appeals over the past 51 days).

  4. Phil Cave says:

    My Liege, do you have your wellies ready, if not I can recommend a very good brand – British of course.

  5. Dew_Process says:

    Add some good British Stout to that equation as well.