The Air Force Court of Criminal Appeals (AFCCA) denied a government appeal in United States v. Brissette.
On 24 June 2011, contrary to his pleas, the appellee was convicted of one specification of indecent acts with a minor, in violation of Article 134, UCMJ, 10 U.S.C. § 934.
On 16 September 2011, the Government filed an appeal under Article 62, UCMJ, 10 U.S.C. § 862. The Government raises the following issue for our consideration: that the military judge erred in ruling it was a major change for the Government to add the terminal element to the charge of indecent acts with a minor under Article 134, UCMJ. We disagree and deny the Government’s appeal.
The adjudged sentence consisted of a bad-conduct discharge and confinement for 13 months. On 13 September 2011, the military judge set aside the finding of guilty and sentence, after deciding that, in light of the decision in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), the appellee had been tried and convicted without being properly notified as to the terminal element of the Article 134, UCMJ, offense. The military judge then dismissed the specification and the charge, without prejudice.
On 20 December 2011, the AFCCA issued a docketing notice in the same case.
A Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus in the above styled case was filed with this Court by counsel for the appellant on this 20th day of December, 2011.
The CAAF Daily Journal for 28 December 2011 shows this entry.
No. 12-8009/AF. In Re Robert C. BRISSETTE. CCA 2011-07. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, it is ordered that the United States show cause why the requested relief should not be granted no later that 5:00 p.m. on December 29, 2011.