We’ve been following the Army case of United States v. Gaskins for years. Gaskins in the case in which a defense exhibit — a “Good Soldier Book” — was lost. The case has bounced around the military courts — including an active extraordinary relief practice — for years of wrangling over the proper remedy. Now it’s back at CAAF. CAAF has granted review of the following issues:
I. WHETHER THE GOVERNMENT’S LOSS OF A SENTENCING EXHIBIT RENDERED THE RECORD OF TRIAL INCOMPLETE UNDER ARTICLE 54, UCMJ, RESULTING IN A JURISDICTIONAL LIMITATION ON THE SENTENCE TO ONE NO GREATER THAN THAT WHICH COULD BE APPROVED FOR A NON-VERBATIM RECORD.
II. WHETHER APPELLANT WAIVED THE FAILURE TO PLEAD THE TERMINAL ELEMENT OF THE ARTICLE 134 OFFENSES BY HIS FAILURE TO RAISE THAT ISSUE AT THE SENTENCE REHEARING, AND IF NOT, WHETHER THOSE CHARGES SHOULD BE DISMISSED BECAUSE THE GOVERNMENT FAILED TO PLEAD THE TERMINAL ELEMENT.
United States v. Gaskins, __ M.J. __, N0. 13-0016/AR (C.A.A.F. Oct. 23, 2012).
Friend o’ CAAFlog Bill Cassara is Gaskins’ civilian appellate counsel.
ACCA’s most recent opinion, from which the current appeal is taken, is available here. United States v. Gaskins, No. ARMY 20080132 (A. Ct. Crim. App. July 12, 2012).
Note the resolution of a Fosler issue in the footnote on page 2. ACCA applies waiver notwithstanding the President’s designation of failure to state an offense as a “Nonwaivable ground” which shall result in dismissal “at any stage of the proceedings.” R.C.M. 907(b)(1). Note also that ACCA faults the defense for failing to raise a challenge to the specification at a sentencing rehearing notwithstanding the principle that upon remand, a “court can only take action that conforms to the limitations and conditions prescribed by the remand.” United States v. Smith, 41 M.J. 385, 386 (C.A.A.F. 1995) (quoting United States v. Montesinos, 28 M.J. 38, 44 (C.M.A. 1989)). Here’s the decretal paragraph from ACCA’s previous opinion remanding the case: “The findings of guilty are affirmed. The sentence is set aside. A rehearing on the sentence may be ordered by the same or a different convening authority.” United States v. Gaskins, No. ARMY 20080132, slip op. at 2 (A. Ct. Crim. App. Feb. 10, 2011) (en banc). Note that the footnote observes that “Appellant also made no mention of a Fosler issue in the eleven pages of matters submitted pursuant to Rule for Courts-Martial 1105 on 10 February 2012,” appearing to treat that as relevant to a waiver determination despite the Senate Armed Services Committee stating in its report on the Military Justice Act of 1983: “Because the convening authority is not acting as an appellate tribunal, the accused is not required to raise legal objections to the court-martial in his submission to the convening authority in order to preserve such objections for appellate consideration.” S. Rep. No. 98-53 at 21 (1983). That’s a lot of legal principles to implicate in one footnote in an unpublished summary disposition.