Back in July, I wrote that CAAF’s opinion in United States v. Humphries created a hazard in that it encouraged sandbagging of a terminal element issue. Assuming the hazard exists, it hasn’t produced much damage. Except, perhaps, to the dockets:

On 21 July 2011, we affirmed the guilty findings and the sentence. United States v. Magnan, No. 201000414, 2011 CCA LEXIS 131, unpublished op. (N.M.Ct.Crim.App. 21 Jul 2011). On 5 January 2012, the Court of Appeals for the Armed Forces (CAAF) reversed our decision insofar as it affirmed the conviction for drunk and disorderly conduct and the sentence, and affirmed our decision in all other respects. CAAF remanded the case for our consideration of the Article 134 offense in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). United States v. Magnan, No. 12-0009/MC, 2012 CAAF LEXIS 9 (C.A.A.F. Jan. 5, 2012) (summary disposition).

On 29 February 2012, we affirmed the drunk and disorderly specification and the sentence. United States v. Magnan, No. 201000414, (N.M.Ct.Crim.App. 29 Feb 2012) (per curiam)). On 10 July 2012, CAAF again reversed our decision insofar as it affirmed the conviction for drunk and disorderly conduct and the sentence, and affirmed our judgment in all other respects. CAAF remanded for our further consideration in light of United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). United States v. Magnan, No. 12-0009/MC, 2012 LEXIS 741 (C.A.A.F. Jul. 10, 2012).

In accordance with Humphries, we are compelled to disapprove the finding of guilty to the drunk and disorderly offense.

United States v. Magnan, No. 201000414, slip op. at 2 (N-M.Ct.Crim.App. Dec 6, 2012). Sentence reassessed, and affirmed as approved by the convening authority (3 years confinement, reduction to E-1, total forfeitures, and a dishonorable discharge; adjudged on March 12, 2010).

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