On Friday, CAAF published its opinion in United States v. Nealy, No. 11-0615/AR, 71 M.J. 73 (C.A.A.F. Mar. 30, 2012) (CAAFlog case page) (link to slip op.). The case addresses whether an accused can plead to an offense that is not a lesser-included offense of a charged offense, where there is no pretrial agreement and the trial military judge does not explain the law of lesser-included offenses (and the corresponding procedural rights that accused could demand). The issues, as specified by the court (the appellant submitted a petition for review with no assignment of error), are:
I. Appellant was charged with communicating a threat under Article 134, but was convicted pursuant to his plea of using provoking speech in violation of Article 117. In light of United States v. Jones, 68 M. J. 465 (C.A.A.F. 2010) can the conviction be sustained?
II. Whether an Article 134 clause 1 or 2 specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s opinion in United States v. Fosler, 70 M.J. 225 (C.A.A.F., 2011).
The court decided both issues adversely to the appellant, ruling:
First, we decline to divest the convening authority’s properly convened court-martial of jurisdiction over referred charges or listed LIOs of those charges where the entire record suggests that everyone involved believed that the Article 117, UCMJ, offense was an LIO of the Article 134, UCMJ, offense, and that, therefore, the convening authority intended it to be referred to court-martial. Second, while it was error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, under the facts of this case, there was no prejudice to Appellant’s substantial rights.
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Last week’s oral argument in United States v. Nealy, No. 11-0615/AR, addressed whether an accused can providently plead to an offense that is not a lesser-included offense of a charged offense where there is no pre-trial agreement and the trial military judge does not explain the law of lesser-included offenses (and the corresponding procedural rights that accused could demand).
The appellant’s counsel began her argument with two theories of error: (1) that the military judge failed to ensure the appellant understood that he was pleading to an uncharged offense, and (2) that the court-martial lacked jurisdiction. She also argued that the issue is not one of notice (Miller and Jones were decided before this case was tried), but one of knowing and voluntary waiver of constitutional due process rights. One interesting fact discussed early in the argument was that while the accused pleaded guilty to provoking speech under Article 117, the government proceeded to trial on the merits of the charged offense of communicating a threat under Article 134. She used this fact to argue that there was no constructive referral of the Article 117 offense, because the convening authority not only did not agree to the change, but also directed trial on the original offense.
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On Tuesday 13 December CAAF will hear oral argument in United States v. Nealy, No. 11-0615/AR, which presents the following issue:
Appellant was charged with communicating a threat under Article 134, but was convicted pursuant to his plea of using provoking speech in violation of Article 117. In light of United States v. Jones, 68 M. J. 465 (C.A.A.F. 2010) can the conviction be sustained?
The appellant was convicted by a military judge sitting as a general court-martial, pursuant to his pleas, of disobeying a lawful order, aggravated assault, provoking speech, and communicating a threat, in violation of Articles 91, 117, 128, and 134, UCMJ. He was sentenced to reduction to E-1, confinement for five months, and a BCD. The findings and sentence were approved by the ACCA (presumably summarily, I can’t find the opinion), on May 16, 2011.
The appellant was charged with two specifications of communicating a threat in violation of Article 134, but at trial pleaded not guilty to one specification “but guilty of provoking speech, a violation of Article 117.” There was no pretrial agreement.
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I have very limited computer access this week; here’s a quick note about a newly granted CAAF case featuring a Jones issue and a Fosler issue:
I. APPELLANT WAS CHARGED WITH COMMUNICATING A THREAT UNDER ARTICLE 134, BUT WAS CONVICTED PURSUANT TO HIS PLEA OF USING PROVOKING SPEECH IN VIOLATION OF ARTICLE 117. IN LIGHT OF UNITED STATES v. JONES, 68 M.J. 465 (2010) CAN THE CONVICTION BE SUSTAINED?
II. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.
United States v. Nealy, __ M.J. __, No. 11-0615/AR (C.A.A.F. Aug. 15, 2011).