The NMCCA’s recent decision in United States v. Brown, No. 201300340 (N-M.Ct.Crim.App. Feb. 28, 2014) (link to unpub. op.), finds no issue with a guilty plea to unauthorized absence where Appellant used a forged birth certificate to obtain authorized maternity leave. The court rejects Appellant’s argument that she was at most guilty of making a false official statement.

The court cites its own prior opinion in United States v. Hall, No. 201200219 (N.M.Ct.Crim.App. Jan. 31, 2013) (link to unpub. op.), where it adopted the reasoning of the Army CCA that “an absence from a unit, organization, or place of duty is without authority if it is preceded by the use of false statements, false documents, or false information provided by or on behalf of an accused.” Hall, slip op. at 4 (marks omitted) (quoting United States v. Duncan, 60 M.J. 973, 976 (Army Ct.Crim.App. 2005) (link to slip op.). The NMCCA’s decisions in both Hall and Brown reject a contrary decision of the Air Force CCA involving a forged Red Cross message. See United States v. Legaspi, 1995 CCA LEXIS 93 (A.F.Ct.Crim.App. 1995) (slip op. not available online).

Best I can tell, CAAF wasn’t petitioned in Duncan. CAAF denied review of last year’s decision in Hall, for what that’s worth. It will be interesting to see if CAAF is interested in Brown. The case seems like a good candidate for review to determine just what constitutes “false information” sufficient to vitiate the effect of actual authorization for an absence. Anyone who isn’t completely honest about their plans when completing a leave request (or perhaps any national capital region commuter who might disingenuously claim “traffic” as an excuse for tardiness) should take note.

10 Responses to “Does a false statement in a leave request create an unauthorized absence?”

  1. Lieber says:

    unrelated but necessary reading today:
    http://www.fayobserver.com/news/local/article_dd628efa-1216-54b6-a3ba-01011b846d68.html
    you also have a Marine Corps field grade JA facing a BoI for a grab-ass….
    and there’s one other notable MJ story out there…..

  2. k fischer says:

    Lieber, 
     
    Is ‘the other notable MJ story out there’ the two ex-wives accuser rape case out of Ft. Sill, which resulted in a conviction for battery, reduction to E-5, and forfeiture of $1,500 per month for two months?  

  3. Lieber says:

    k fischer,
    Nope, not even close :)

  4. k fischer says:

    AF snitch who reported she got raped while acting as a confidential informant?  MJIA vote?  Vietnam vet class action lawsuit?

  5. Matt says:

    Perhaps SGT Solis’ next step should be a lawsuit against KSWO for their declaration that he brutally raped his ex.
     

  6. k fischer says:

    I thought the same thing when I saw that.  I am still waiting for that case where the lying accuser breaks down on the record Col. Jessup style, so I can file a suit in Georgia or Florida.  I’m not licensed in Oklahoma.  Although, the paper would have to prove more likely than not, Solis brutally raped his ex-wife, which might be easier, and they may say they made the statement based on the Article 32 recommendation.  
     
    Is KRWO at least correct that the military judge sentenced the accused, or did Solis go with a panel?  
     
    Even though he only got a one rank bust and no punitive discharge, won’t this Lautenbergamatize Solis and result in him at least being discharged administratively?  And, how did this case even get reported??????  Two ex-wives report that he raped them back in ’09 and ’10?  How did that come up in ’13?

  7. k fischer says:

    Judge Pohl refused to allow the prosecution to use the videos and pictures as motive to commit the acts contained in the pictures and videos.  

     
    The lead prosecutor, Lt. Col. Robert Stelle, told the judge that Sinclair’s alleged viewing of images of aggressive or forced oral sex “demonstrate intent and motive of the accused” to perform sex acts “strangely similar to the videos.”
     
    “It shows a motive to engage in that type of behavior,” Stelle said in requesting permission to show 125 pornographic photos and 50 videos.

    One the one hand, just because I own a copy of Pulp Fiction does not mean that I’m into shooting heroin and man rape.  On the other hand, if my Drill Sergeant client kept a bunch of Nazi films, Movies like American History X, and racist punk music on his computer, then couldn’t the Government argue that his motive for mistreating African American trainees was because he hated their race?  Or, if my client had a bunch of child porn on a thumb drive in a child porn/molestation case, then wouldn’t the Government be able to argue that he had a propensity to satisfy himself sexually with little kids?
     
    And, is the Government really going to show 50 (FIFTY!!!!!) videos????  What if they are 20 minutes long each?  That is 1,000 hours of videos! That is 17 hours worth of porn that they are going to have to authenticate and introduce into evidence, and the defense is willing to stipulate that the files on his computer were porn?  
     
    On the other hand, why doesn’t he plead guilty to the videos if they are so prejudicial?  The only benefit of not pleading is a possible jury nullification, which I highly doubt is going to happen in this case.  
     
    That would be pretty bad if the videos were scenes of women being handled really really roughly, gagging, choking, and begging to stop and what not.   If there is a video like that, then that’s the first thing I show the panel before I call the victim on the stand.  I don’t have to say “He likes these videos, so he commits these acts.”  That panel will come to that conclusion on their own if there is a video bad enough.  
     
     
     

  8. Christopher Mathews says:

    As the trial counsel in the Legaspi case, I will be interested in seeing how CAAF resolves this issue (assuming, of course, that it does so).

  9. stewie says:

    http://www.latimes.com/nation/nationnow/la-na-nn-sinclair-military-trial-porn-20140305,0,3753934.story#ixzz2v8CeHYUK
    That’s the link Kfischer was trying to link.

  10. Christian Deichert says:

    Our local reporters have an interesting time reporting Fort Sill MJ stories.  Apparently, when the court took a brief recess at 1600, the reporter thought we were done for the day, when in fact we went until 2330 that night and wrapped up the case.
     
    The case was judge alone, so they did get that right.  As far as why the allegations were not reported until 2013…you could ask me that on any pending case, and I wouldn’t have a good answer for you.  Our SHARP staff might say that the increased awareness and focus is giving people confidence to come forward.
     
    KF, how did you even find it?  Did it hit the wire?