The review is based on Csady v. Ashworth, but it is equally applicable when federal courts examine habeas corpus petitions from military prisoners under 28 U.S.C. 2241.

I. Overview and Holding

The opinion addresses whether a federal district court may collaterally review the military court-martial conviction of Csady, a service member who was not subject to punitive discharge or confinement. The court concludes that it lacks authority to do so, reaffirming the traditional deference owed to the military justice system and the narrow scope of permissible collateral review by Article III courts.

II. The Military Justice System: Structure and Independence

1. Constitutional Basis:
   
   The military justice system operates under Article I of the Constitution (U.S. Const. art. I, § 8, cl. 14), giving Congress authority to “make Rules for the Government and Regulation of the land and naval Forces.”
   
   See Ortiz v. United States, 585 U.S. 427 (2018); Santucci v. Commandant, U.S. Disciplinary Barracks, 66 F.4th 844, 852 (10th Cir. 2023).
2. Comprehensive Review Mechanism:
   
   The Uniform Code of Military Justice (UCMJ) establishes a multi-tiered appellate process. See Burns v. Wilson, 346 U.S. 137, 140–41 (1953) (plurality opinion).
   • Trial courts: summary, special, and general courts-martial (Willenbring v. United States, 559 F.3d 225, 227 n.4 (4th Cir. 2009)).
   • Intermediate appeals: Service-specific Courts of Criminal Appeals (CCAs) (10 U.S.C. § 866).
   • Discretionary review: The Judge Advocate General may refer cases to a CCA (10 U.S.C. § 869).
   • Final military review: U.S. Court of Appeals for the Armed Forces (CAAF) (10 U.S.C. § 867).
   • Ultimate review: U.S. Supreme Court by certiorari (28 U.S.C. § 1259).
3. Non-Automatic Review in Non-Punitive Cases:
   
   In cases like Csady’s—where there is no confinement or punitive discharge—automatic appellate review is not available, and discretionary review by the Judge Advocate General and subsequent appellate bodies is limited.
   
   See 10 U.S.C. §§ 869(d), 867.

III. Scope of Collateral Review by Federal District Courts

1. Presumption Against Civil Review:
   
   The Supreme Court has long held that civil courts lack authority to review military court decisions absent jurisdictional or fundamental defects. See Smith v. Whitney, 116 U.S. 167, 177 (1886); Schlesinger v. Councilman, 420 U.S. 738, 746–48 (1975).
2. Schlesinger Exception:
   
   Federal courts may intervene if the court-martial judgment is void due to a fundamental defect, including lack of jurisdiction or egregious legal error. This review must consider both:
   • The nature of the alleged defect, and
   • The gravity of the harm, evaluated with deference to the military system. Schlesinger, 420 U.S. at 753.
3. Burns Exception (Habeas Context Only):
   
   In Burns v. Wilson, the Court recognized a narrow habeas-based exception permitting collateral review where the military failed to provide full and fair consideration of constitutional claims.
   
   However, courts are not to reweigh evidence unless claims were ignored or unaddressed. See Burns, 346 U.S. at 142–44.
4. Dodson Factors (Non-Jurisdictional Habeas Review):
   
   Under Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990), courts apply a four-part test to assess if a habeas claim merits review:Substantial constitutional claim;Pure legal issue, not factual dispute;No overriding military interest against review;Inadequate military consideration or improper legal standard.See also Santucci, 66 F.4th at 856; Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975).
5. Application to Non-Habeas Claims:
   
   While Burns and Dodson primarily apply to habeas cases, courts have occasionally used them in evaluating non-habeas collateral attacks as part of a threshold analysis for voidness under Schlesinger.
   
   See Allen v. U.S. Air Force, 603 F.3d 423, 431 (8th Cir. 2010); Yongo v. United States, No. 5:10-cv-220, 2013 WL 2285341, at *6 (E.D.N.C. May 23, 2013), aff’d sub nom. Yongo v. McHugh, 540 F. App’x 237 (4th Cir. 2013).

IV. Application to Csady’s Case

• No Punitive Discharge or Confinement: Csady’s case does not meet the threshold for automatic military appellate review under 10 U.S.C. § 866.
• Non-Custodial Petitioner: Because he is not in custody, the Burns-based habeas exception does not apply.
• No Void Judgment: Csady fails to demonstrate a jurisdictional or fundamental defect under Schlesinger, and cannot satisfy even the Burns or Dodson thresholds for constitutional violation.
• Respect for Military Finality: The court emphasizes that Article III courts are not forums of appellate review over courts-martial, echoing a consistent jurisprudential theme. See Santucci, 66 F.4th at 853; Burns, 346 U.S. at 140.

V. Legal and Policy Implications

This opinion reinforces:

• The insulation of military adjudications from civilian judicial review,
• The integrity and autonomy of the Article I military justice system,
• And the principle of comity between the military and civilian branches of federal judicial power.

It reflects a careful balancing of constitutional rights with military discipline and expertise, upholding the notion that military courts must remain the primary guardians of justice for service members, absent clear constitutional transgressions.

Conclusion

The opinion stands as a compelling reaffirmation of longstanding Supreme Court and circuit precedent limiting federal district court review of military court decisions. Without evidence of jurisdictional voidness, a breakdown in procedural fairness, or a significant constitutional issue wrongly decided, collateral review remains foreclosed. The motion to dismiss was therefore properly granted.

For many, Burdick v. United States, 236 U.S. 79 (1925), answered the question in the affirmative. In Burdick, the appellant was offered but declined a pardon. He then refused to testify in a criminal trial. Several conclusions seem to follow from the opinion.

1. A pardon can be given before conviction and sentence. If correct, this settles the discussion about several Trump pardons issued before the servicemember was tried.
2. A pardon can be refused and there is “no power in a court to force it on [the person].” @90.
3. Acceptance of a pardon “implies” acceptance of guilt. @91.

“This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal. It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.” @94.

It is from this language that people thought accepting a pardon was accepting guilt.

Now along comes Lorrance v. Commandant, USDB, a decision from the 10th Circuit. Here is the nub of it.

1. Does acceptance of a pardon and release from custody equal a “confession?”
2. Does acceptance of a pardon and release from custody waive or forfeit the right to petition for habeas corpus?

The Tenth concludes that there is no confession and Lorrance does not otherwise lose his right to petition for habeas corpus relief for his court-martial conviction and sentence. The case was remanded for further action not inconsistent with the court’s opinion.

“The writ of habeas corpus shall not extend to a prisoner unless” the prisoner is “in custody.” 28 U.S.C. § 2241(c). Notwithstanding that provision, a petitioner’s release from custody does not automatically moot a habeas petition. Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968). Instead, a habeas petitioner can maintain his habeas action following his release from custody if he can identify “collateral consequences” constituting “disabilities or burdens [which] may flow from petitioner’s conviction.” Id. (quotations omitted).”

According to the court, there remained serious collateral consequences from the conviction.

1. Backpay,u
2. Rank.
3. VA benefits.
4. Retirement years credit.
5. Expungement of the conviction.

In a historical review of the pardon power and its effect, the court finds that the implication in Burdick is dicta and has been taken out of context. Among other facts, the court honed in on this,

“The U.S. Pardon Attorney included a letter to Lorance with the presidential pardon. Among other things, the letter informed Lorance, “A presidential pardon is a sign of forgiveness. It does not erase or expunge the record of conviction and does not indicate innocence.” (Id. at 80 (emphasis added).) The letter does not state that acceptance of the pardon is a confession of guilt or a waiver of habeas rights.”

The Tenth Circuit is generally known as unwelcoming to military prisoners when a writ of habeas corpus is before the district and appellate court. While many can disagree with the issuance of pardons by President Trump, the issues discussed in Lorrance are important and appear proper.

Now we need to know if the DoJ will petition the Supreme Court.

United States v. Haymond, decided today (26 June 2019) by the Supremes. The opinion is written by Gorsuch. (I’ve linked to SCOTUSBlog so you can the briefs and the opinion.

Some early comment from Prof. Doug Berman — here.

I have a standard sex offender registration motion that I use in all cases in which a sex offense is charged and if convicted the client will have to register as a sex offender.

Few appellate courts have been willing to agree that SOR is a punishment and hold that to be a collateral consequence. Some state supreme courts have held new amendments to their state law are “punishment” for ex post facto analysis, but they are few. Despite that, I continue to argue that SOR is more than a collateral consequence. As the second part of my motion, I argue admissibility of SOR as “evidence” under the principles for giving punishment, on which the members are instructed: particularly rehabilitation and deterrence.

Mr. Murray argues that we should reconsider the definition of collateral consequences and how they affect sentencing and most importantly recidivism and reintegration. Here is the abstract.

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation. Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints. This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order. Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

Take a look, I am looking for ways to bolster my trial motion on SOR.

Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).

And

“A fundamental principle underlying [CAAF’s] jurisprudence on pretrial agreements is that ‘the agreement cannot transform the trial into an empty ritual.’” United States v. States v. Davis, 50 M.J. 426, 429 (C.A.A.F. 1999) (quoting United States v. Allen, 8 C.M.A. 504, 507, 25 C.M.R. 8, 11 (1957)). With this in mind:

Under RCM 705(a), an accused and the convening authority may enter into a PTA in accordance with the provisions of RCM 705, subject to such limitations as the Secretary concerned may prescribe; RCM 705(b) provides that a PTA may include a variety of promises by the accused and the convening authority; the phrase “may include” reflects that the President has not limited the nature of agreements under the rule to the items listed in RCM 705(b); among the promises that may be made by an accused, the rule includes: (1) a promise to plead guilty to one or more charges and specifications, and (2) a promise to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under the rule; among the promises that may be made by a convening authority, the rule includes: (1) a promise to withdraw one or more charges or specifications from the court-martial; (2) a promise to have the trial counsel present no evidence as to one or more specifications or portions thereof; and (3) a promise to take specified action on the sentence adjudged by the court-martial; under RCM 705(c)(1), a term or condition shall not be enforced: (1) if the accused did not freely and voluntarily agree to it; and (2) if it deprives the accused of the right to due process or certain other expressly enumerated rights; RCM 705(c)(2) adds that the prohibition on deprivation of certain rights in subsection (c)(1) does not preclude a voluntary agreement to: provide a stipulation of fact; testify in a subsequent proceeding; provide restitution; conform conduct to probation conditions through the period of any suspended sentence; or waive procedural requirements with respect to an investigation under Article 32, the composition of the court-martial, or the personal appearance of sentencing witnesses; the limitations of RCM 705(c)(1) are the only express limitations on terms of PTAs under the rule; other limitations may be provided under departmental regulations).

See United States v. Smead, 68 M.J. 44 (C.A.A.F. 2008). In United States v. Hoard, the Air Force Court of Criminal Appeals reviewed a challenge to a term.

Appellant argues three bases for why the challenged PTA terms should not be enforced. First, Appellant characterizes the language that would require him to testify against his spouse as being facially inconsistent with the spousal incapacity privilege and improper compulsion. Second, Appellant argues the terms are contrary to the public policy goal of encouraging marital harmony. Finally, Appellant contends that, even if he waived his spousal incapacity by agreeing to the terms, A1C KB’s potentially successful invocation of her confidential communications privilege would frustrate Appellant’s ability to fulfill his obligations under the PTA.

The Court did not agree with the appellant and found the term legal.

As the Court noted, nothing in the appellant’s term required his spouse to waive her marital privilege as to communications, and it’s unlikely she could object to his testimony about facts and what acts were done. And whether he wanted to exercise his right not to testify at all was his to waive–or not waive.

Marital privilege is articulated in Military Rule of Evidence (Mil. R. Evid.) 504 as two distinct privileges: the privilege to refuse to testify against one’s spouse (spousal incapacity) and the privilege to refuse to disclose, or prevent another from disclosing, any confidential communication made to the spouse of the person. “[T]he witness-spouse alone has a [spousal-incapacity] privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.” Trammel v. United States, 445 U.S. 40, 53 (1980). In contrast, the confidential communication privilege may be claimed by the spouse who made the statement or by the other spouse who heard it.

The Court addressed the balancing of interests where an evidentiary rule of privilege exists.

[T]he waiver reflected Appellant’s own balancing of his best interests and marital harmony with A1C KB. As the Supreme Court observed in Trammel, “[w]hen one spouse is willing to testify against the other in a criminal proceeding – whatever the motivation – their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.” Id. at 52. In this instance, Appellant chose his interests over those of his spouse. Rather than being against public policy as claimed by Appellant, allowing a witness-spouse this voluntary choice reflects the resolution of the competing public policy interests.

The claim that the spouse’s exercise of her marital privilege frustrates the appellant’s ability to perform under the term. Not so, and the AFCCA easily disposed of that challenge. I doubt that there is any convening authority would consider the situation a wilful non performance on the part of the appellant when the spouse invokes because that invocation is beyond the control of appellant (then again, it is an Air Force case and they do weird things at times).

The CAAF Opinion Digest on-line can be found here for some other PTA related cases.

That information is submitted to NCIC as the equivalent of an arrest – even though you were not arrested, told you were arrested, or placed in custody. The Titling, plus the taking of fingerprints and photographs gets you into the database, and you aren’t getting out for 40 years.

Here is a 2000 DoDIG report.

Here for comparison is Army Regulation 195-2, check Chapter 4.

Occasionally we have clients who have been able to correct the record or have it removed, but it is difficult and infrequent.

So among the various collateral consequences of being titled is banishment from the Global Entry Program. If you are frequent traveler out of the country and want to expedite your return via Global Entry – think again if you have been titled in a military law enforcement investigation.

See here for the notice you might get: GOES Account Revocation 150221

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting. The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount. The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice. That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations. The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Interesting . . . The court agreed that there is largely unfettered discretion between the parties to negotiate an agreement so long as it does not violate the law, in not unconstitutional, and is truly voluntary. And the court found that the agreement reached in the particular case was not unlawful and was approved. The issue was – for the prosecutor – that they gave all the power and negotiating decisions to the victim. So how does that translate to a military sexual assault prosecution? You and your military defense lawyer are free to negotiate a pretrial agreement for just about anything. The Supreme Court itself has stated that an accused can waive fundamental constitutional requirements of a trial. United States v. Mezzaatto, 513 U.S. 196 (1995).

There are some matters that cannot be bargained away and the military appellate courts have been alert to unconscionable terms in a pretrial agreement. For example, by executive order the President has declared that certain matters may not be bargained away. R.C.M. 705(c)(1)(B). An acceptable term is restitution. As a military defense lawyer representing clients prosecuted under the UCMJ, I have negotiated such terms, including in sexual offense cases.

There is no “punishment” of restitution in the current UCMJ or Manual for Courts-Martial. That doesn’t preclude creative lawyering.

The Indiana Supreme Court agreed that crime victims have and should have substantial input into the pretrial negotiation process, but they don’t and shouldn’t have is a veto. To allow a veto usurps the prosecutor’s discretion to act on behalf of the state and the people. So if you and your military defense counsel are trying to negotiate a pretrial agreement and the prosecutor tells you that the CA would be willing but the victim says no, and they are bound by that no, mention this case to them. The interesting issue is whether you can make a pretrial motion on the issue – not sure about that. Or do you take a deal and then bring it up with the military judge when she is doing the on the record inquiry as to the voluntariness of the deal. For samples of prior appellate cases dealing with pretrial agreements, check here at the Court of Appeals for the Armed Forces (CAAF), or talk with your military defense lawyer. It is far better to enter negotiations informed, rather than have a potential problem on appeal.

Unfortunately there are only nine state jurisdictions and federal filled in – a ways to go on a useful project.

Another place to look is SentencingProject.org. (Note, it will be necessary to “sherardize.”) , or

A Practitioner’s Guide to Collateral Consequences of Conviction, or

The Office of (Federal) Defenders, for Padilla related information.

And here is an item on the National Conference of Commissioners on Uniform State Laws, model legislation for the Uniform Collateral Consequences of Conviction Act.

As always, one of the questions to ask the client is where they intend going/living upon release from active duty or confinement. Most states now have some sort of central resource through the AG’s office, typically related to pardons, expungement, or claw-backs. (And no, the military does not have expungement – a frequent question.)

In United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), CAAF decided prospectively that defense counsel must advise a client about the DoD sexual offender registration requirements when negotiating a PTA.

The question is how detailed must the advice be and what about additional state law requirements. There any number of offenses not listed in the current version of DODI 1325.7 where states now require registration.

In Jones the defense counsel submitted an affidavit admitting less than detailed advice on Alabama registration requirements. There was plenty of advice about SOR all over the record. But,

However, the appellant did not have an in depth understanding, specific to Alabama law, which begets additional analysis to ensure the providency of the plea. See generally United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).

NMCCA at least for the moment will not extend Miller to require specific detailed advice about a particular state SOR law.

The record reveals that the appellant was properly advised per Miller. When he made more specific inquiries regarding his intended future state of residence, he was advised to consult local counsel. This point was captured in his pretrial agreement and twice discussed at his court-martial, where the appellant proceeded with his plea and expressed satisfaction with counsel and their advice.

Keep in mind that if you decide to advise about Alabama, or any other state, it better be right.

Q: I’m 18 years active duty with the US Navy. I was an E-6 from 2000–2009 but got busted for UCMJ violation to E-5. I fall under the High-3 plan for retirement and a lot of my friends are saying that when I retire, I will get the E-6 retirement pay, but then again, some of my friends are saying I will not — which is true?

The answer given is:

A: Okay, so here’s the deal: your retirement under the high-three plan is cal­culated by multiplying 2.5% by the number of years served and then taking that number and multiplying it by the aver age of the highest 36 months of active duty pay received. Rank, doesn’t actually factor into the calculation. So, depending on when you retire, your years as an E-6 may be included in the calculation. Get promoted again and you can make sure it is!

Is this a correct answer. [I think answer is partly correct.] The answer is partly correct if in fact the person successfully gets promoted back to E-6. But otherwise I think the answer is not correct. That depends on how you apply the facts above to the applicable statute.

10 U. S. Code 1407(f).

When Rohan Coombs joined the Marine Corps, he never thought one day he would be locked up in an immigration detention center and facing deportation from the country he had vowed to defend. . . .

The estimates are of about 8000 non-U.S. citizens enlisting to serve in the U.S. armed forces in any given year.

Most immigrants serve with distinction. The Center for Naval Analyses, a federally funded research and development center for the Navy and the Marine Corps, found that non-citizens are far more likely to complete their enlistment obligations successfully than their U.S.-born counterparts. Coombs was one who did not make the grade. He spent 10 months in the Persian Gulf and lost friends to combat, he said. After the war, he felt depressed and anxious. His family was far away in New York, and he said “whining” to fellow Marines didn’t seem an option. Instead, he got involved with drugs, and he got caught. In 1992, he was court-martialed for possession of cocaine and marijuana with the intent to distribute, and was given 18 months of confinement and a dishonorable discharge. He continued to struggle with drugs.

And he’s awaiting deportation proceedings. The article sets out a push to get non-U.S. citizens who have served a special status which would limit their deportability.

United States v. Parker and Woodruff

In these consolidated appeals, the Government challenged the district court’s orders dismissing its 18 U.S.C. § 4248 (2006) petitions for civil commitment of Lonnie Parker and James Woodruff, who were both convicted of various sex offenses and sentenced in military court-martial proceedings, but are currently housed within a Bureau of Prisons facility. The district court dismissed the Government’s petitions because it found that “§ 4248 does not apply to military prisoners [since] they are not `in the custody of the Bureau of Prisons’ pursuant to 18 U.S.C. § 4248(a).” In so holding, the district court relied on its order in a related case, United States v. Joshua, No. 5:09-hc-02035-BR (E.D.N.C. Jan. 13, 2010), which was recently affirmed by this court. See United States v. Joshua, 607 F.3d 379 (4th Cir. 2010) (holding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the Bureau of Prisons is not “in the custody of the Bureau of Prisons” under § 4248(a)). The Government concedes that these appeals present the same issue addressed in, and that the disposition of the appeals is controlled by Joshua.

Because we agree that Joshua controls the outcome of these appeals, we affirm the district court’s orders dismissing the Government’s petitions.

Long term prisoners at the USDB can end up in a federal prison near their family. There are various ways this can happen, sometimes at the prisoners request. See Para. 6.15, DODI 1325.7, Adminstration of Military Correctional Facilities and Clemency and Parole Authority.

Prisoners with approved sentences to confinement may be transferred to Federal Bureau of Prisons (FBOP) facilities with the concurrence or by direction of the appropriate Secretary of a Military Department or designee. Authority to transfer prisoners to the FBOP confers no right on prisoners to request transfer. 6.15.3. A prisoner’s desire to be or not to be transferred to a Federal institution need not be considered in making the transfer decision.

However, the above case illustrates a potential issue if the person is a sex offender. Right now the Fourth Circuit holds that military prisoners in federal prisons are not subject to civil commitment based on United States v. Joshua. That could change, and that holding is only applicable so far within the Fourth Circuit.

Kate Wiltrout reports the retrial of Richard Mott at NOB, NorVA.

Almost two years after a Navy judge found Seaman Richard Mott guilty of attempted premeditated murder and sentenced him to 12 years in prison, he got a second chance this week to plead his case before a new judge and a military jury. Like last time, Mott’s lawyers argued that he should not be held criminally responsible for attacking a fellow sailor because he was suffering from paranoid delusions at the time of the attack.

Here is a link to United States v. Mott, NMCCA 200900115 (N-M.C. Ct. Crim. App. 24 November 2009).

Kitsap Sun reports that:

A doctor who is being expelled from the Navy was charged by Kitsap County prosecutors Thursday with failing to register as a sex offender, according to attorneys familiar with the case.

Here is a piece by the Island Packet which follows up on the two MCAS Beaufort Marines pending civilian charges.

Air station officials are awaiting the case’s outcome before proceeding with possible military charges against the Marines, who have been under barracks restriction since the incident.

Seems like the R.C.M. 707 clock is running, and perhaps the Article 13, UCMJ consideration? Remember, Liberty Risk programs do not apply in CONUS, they are an overseas practice only.

Fort Scott Tribune has this reminder about falling asleep on post.

To fall asleep on guard duty in a combat zone could be FATAL for the soldier and or his comrades in arms, especially if the area is known to be SWARMING WITH ENEMY GUERRILLAS!

A little more about the moss growing on Rolling Stone from AP.

The U.S. Army inspector general is investigating whether aides to former Afghanistan commander Gen. Stanley McChrystal were insubordinate when they made a series of derogatory comments about top civilian leaders to a Rolling Stone reporter, McClatchy Newspapers has learned.

I also heard on my drive back from Fort Bragg last night that the reporter has had his 101st ABN embed revoked based on a lack of trust and concern he will not follow pre-established ground rules.

Air Force Times reports that:

The former top enlisted airman at Air Force Materiel Command will defend himself against 19 charges that include adultery and misuse of his government position at a December court-martial.

Here’s another piece (in military.com) on the reinstatement move for MajGen Lavelle:

In an Aug. 4 statement, the Pentagon said that President Obama had posthumously nominated Maj. Gen. John D. Lavelle to the rank of general after the Air Force Board for the Correction of Military Records found the former commander of the 7th Air Force had rightfully executed his orders and had not participated in falsifying records. “In 2007, newly released and declassified information resulted in evidence that Lavelle was authorized by President Richard Nixon to conduct the bombing missions,” the Pentagon release stated.

When Soldiers Become Killers is a piece in Gulf News.

“I came over here because I wanted to kill people.” -Private First Class Steven Green, US Army; interview given to Washington Post reporter Andrew Tilghman; Iraq, February 2006 “I am truly sorry for what I did in Iraq and I am sorry for the pain my actions, and the actions of my co-defendants, have caused you and your family … I helped to destroy a family and end the lives of four of my fellow human beings …” -Steven Green, ex-US Army; addressing the Al Janabi family in US Court, 2009.

The Hook reports that:

Citizenship and Immigration Canada has advised immigration officers that military deserters seeking permanent residence should be treated as “high profile, contentious and sensitive cases,” and kicked upstairs for resolution.

I posted the other day about Fricke, here is some more reporting on his death:

The Virginia Pilot reports that:

Former Navy Lt. Cmdr. Michael Fricke, 54, was about a month away from being released for the crime when he died Thursday after being beaten with a baseball bat in a fight. The high-profile case went on for about 15 years, starting with the investigation of the murder and wending its way through military and civilian courts.

Who is that phantom Justice Thomas (Ledger-Enquirer)?

On July 20, Taitz posted a motion requesting that she be allowed to verify that it is, in fact, Thomas’ signature on the denial of her application. She’s also sent her request for stay to Justice Samuel Alito, though she said a clerk told her it had been returned because of a small technical issue.

There are some things even a bank won’t do:

As he sits in the Bell County Jail, accused in the Nov. 5 Fort Hood shootings that left 13 dead, Maj. Nidal Hasan continues to receive his monthly U.S. Army paycheck; based on his rank and experience, it is probably more than $6,000. But Hasan, who is charged with 13 counts of murder in the attack, is not a standard defendant. And he’s having a hard time finding a bank to take his money. According to his civilian attorney John Galligan, Bank of America notified Hasan last month that it was closing his account and no area bank has agreed to open an account for the Army psychiatrist.

A doctor who is being expelled from the Navy was charged by Kitsap County prosecutors Thursday with failing to register as a sex offender, according to attorneys familiar with the case. State law requires people convicted of certain sex crimes to register as sex offenders within three days of arriving in a new state. But Velasquez, who arrived in Kitsap County in early July, was convicted in a court martial at Yokosuka Naval Base in Japan and it was unclear at first if his conviction required registration, lawyers involved in the case say. The lieutenant commander pleaded guilty to two counts of wrongful sexual contact with patients and two counts of conduct unbecoming an officer in May, serving seven days in a Yokosuka brig, according to Stars and Stripes newspaper. He was sentenced to two years in prison, a $28,000 fine and forfeiture of all pay and allowances, but those punishments will be waived if he doesn’t commit a crime in the next year, the publication said.

Methinks he is in danger of some part of his confinement being vacated? This is a case which gained some notoriety because of the sentence and publically upset victims. Here is a link to my earlier post on this court-martial in May 2010.

Up until, oh I don’t remember the date now, but quite a number of years ago, a military prisoner who reached his minimum release date (MRD) was released without any restrictions on liberty post release. That lead to a bit of gamesmanship before the clemency and parole boards. If a prisoner was up for parole consideration and he had less than a year to go for his MRD the prisoner would usually waive parole consideration. They were willing to serve the months rather than be paroled. That was because a paroled prisoner would waive all of their good time. But more importantly be subject to many onerous conditions of parole.

(Note to trial practitioners. Before advising your client about post-trial matters I would recommend you consult and you review with the client DODI 1325.7. This regulation has a number of important rules you can educate your client about (including, yes, sex offenders). Although it does not contain Rule No. 1 for obtaining parole: that you “have taken responsibility for your confining offenses.” Words to that effect must show up somewhere in confinement evaluations and recommendations. That works pretty well in a GP case. If you are a defense counsel and have NG but found guilty case give me a call, all is not lost. [Having sat as a voting member of the Navy C&PB, albeit some years ago, I’d venture that no other rule is as important to parole than Rule No. 1. You may have good scores on the points based classification system and good reports and no discipline reports, but . . . you clearly haven’t learned any lessons.] Anyway. Upon entry to confinement the facility calculates the full term date (FTD), that’s day for day service of sentence, minus credit for pretrial confinement or an Article 13, UCMJ, violation, or effect of a PTA. Then they calculate automatic good time credit based on the length of approved sentence, which becomes the minimum release date (MRD). Absent loss of good-time or clemency or parole that’s when the prisoner can normally expect to be released.)

Once the rule changed it no longer matters much about release on MSR or parole because of mandatory supervised release conditions. These conditions can be as onerous as parole conditions administered by the federal probation and parole personnel. In particular mandated sex offender or other counseling, no computer access, etc.

As Dwight points out that rule was challenged in United States v. Pena, 61 M.J. 776 (A.F. Ct. Crim. App. 2005), aff’d, 64 M.J. 259 (C.A.A.F. 2007). The petitioner in Pena was unsuccessful.

The district court judge in Moultrie denied the petition. So now several courts have independently ruled against a petitioner wanted a ruling against application of MSR, as well as CAAF. It would seem that the issue doesn’t really become ripe until such time as the prisoner is about to be or is released on MSR?

The results are consistent with Supreme Court jurisprudence as those ordered into supervision by state or federal civilian courts. No federal circuit court has ruled on this issue yet. But Dwight points to the one case from the federal jurisdiction in which the USDB sits — Huschak v. Gray, 642 F. Supp. 2d 1268 (D. Kan 2009). It was assumed that all MSR’s would have to be litigated in Kansas. But if Moultrie is followed, a MSR’ee can seek relief in the federal district court-house building in which (usually) his probation officer has her office. A similar type of petition has been denied in Clayton v. United States Army, 20091119, 0000827 (W.D. Ky. November 19, 2009).

Here is a link to the U.S. Sentencing Commission report on Federal Offenders Sentenced to Supervised Release, July 2010.

On appeal, Eyster argues that the District Court erred by increasing his criminal history from Category II to Category V, because his 1988 conviction under the UCMJ was not a qualifying prior “sex offense conviction” as defined by § 4B1.5.. . . The Government concedes, and we agree, that Eyster’s 1988 conviction under the UCMJ was not a qualifying “sex offense conviction” for purposes of § 4B1.5. Therefore, Eyster’s advisory Guidelines range should have been calculated using criminal history Category II, not Category V. This was error[.]As explained, however, the applicable Guidelines range was the same—360 to 840 months—under either criminal history Category. Because this mistake did not result in the calculation of an incorrect Guidelines range, we conclude that it did not affect Eyster’s substantial rights.

It appears this would be related to United States v. Eyster, NMCM 88 1339, 1988 CMR LEXIS 761 (N-M C.M.R. October 27, 1988). The court affirmed the conviction in a straight-legal review. There does not appear to have been a petition to CAAF.

I. WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL INFORMED HIM HIS GUILTY PLEA MIGHT RESULT IN DEPORTATION. II. WHETHER COUNSEL’S ADVICE REGARDING DEPORTATION WAS INEFFECTIVE. SEE PADILLA V. KENTUCKY, 08-651 (2010); STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984); HILL V. LOCKHART, 474 U.S. 52 (1985). III. IF APPELLANT’S COUNSEL WAS INEFFECTIVE, WHAT RELIEF, IF ANY, IS APPROPRIATE.

Remember Denedo?

From the headnotes in Hill:

In the present case it is unnecessary to determine whether there may be circumstances under which erroneous advice by counsel as to parole eligibility may be deemed constitutionally ineffective assistance of counsel, because petitioner’s allegations were insufficient to satisfy the “prejudice” requirement. He did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility [474 U.S. 52, 53] date, he would have pleaded not guilty and insisted on going to trial. Nor did he allege any special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether to plead guilty.

And from Padilla:

To satisfy Strickland ’s two-prong inquiry, counsel’s representation must fall “below an objective standard of reasonableness,” 466 U. S., at 688, and there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. , at 694. The first, constitutional deficiency, is necessarily linked to the legal community’s practice and expectations. Id. , at 688. The weight of prevailing professional norms supports the view that counsel must advise her client regarding the deportation risk. And this Court has recognized the importance to the client of “ ‘[p]reserving the … right to remain in the United States’ ” and “preserving the possibility of” discretionary relief from deportation. INS v. St. Cyr , 533 U. S. 289 . Thus, this is not a hard case in which to find deficiency: The consequences of Padilla’s plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel’s advice was incorrect. There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear. Accepting Padilla’s allegations as true, he has sufficiently alleged constitutional deficiency to satisfy Strickland ’s first prong. Whether he can satisfy the second prong, prejudice, is left for the Kentucky courts to consider in the first instance.

Time reports that:

A week ago in the living room of South Carolina’s Democratic nominee for the U.S. Senate, I asked Alvin Greene if there was anything that had not yet been written about by the press that he wanted to get out. “Bring the Air Force discharge up,” Greene replied. “Y’all go and get that.” . . . None of this answers the central question of Greene’s military service: Why did two branches of the military feel obliged to discharge him against his will? Greene will not say, though he says he expects the information to come out eventually, and he suggests that he will not be unhappy when it does.

Christopher Martin Jones appeals from his sentence imposed following his conviction for possessing a firearm as a convicted felon. On appeal, Jones argues that the district court erroneously found that his 1992 conviction by a special court-martial for sodomy, in violation of United States Military Justice (“UCMJ”) Article 125, 10 U.S.C. § 925, constitutes a sex offense that requires registration under the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et. seq. (“SORNA”). Accordingly, he argues, the court abused its discretion in ordering that he register as a sex offender under SORNA as a special condition of his supervised release (special condition 5). In addition, Jones also argues that the court abused its discretion in imposing special conditions 2, 3, 4, 6, and 7 of his supervised release, which are targeted toward preventing future sexual misconduct. Relying on 18 U.S.C. § 3583(d), Jones contends that, in light of the fact that his criminal history includes only one conviction for a sex offense, and this offense occurred in 1992, these special conditions are not reasonably related to the sentencing goals set forth in 18 U.S.C. § 3553(a). For the reasons set forth below, we vacate and remand. A federal grand jury indicted Jones for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jones ultimately pled guilty to the offense. In preparing the presentence investigation report (“PSI”), the probation officer reported that, in 1992, Jones was convicted by a special court-martial for the military offenses of sodomy and indecent acts. An investigation had revealed that Jones engaged in sexual activity with a 16-year-old girl. At the time that he and the 16-year-old engaged in sexual activity, they were in the presence of a 15-year-old girl. Jones had provided the minor girls with alcohol. Regarding Jones’s conviction for indecent acts, the probation officer reported that military records specified that this conviction was based on the fact that Jones had committed sodomy with a 16-year-old female while in the presence of a 15-year-old female. Here, the district court failed to expressly address the parties’ arguments regarding whether Jones’s sodomy conviction is a military offense that requires SORNA registration. Instead, the court summarily stated that it was “satisfied that [Jones] is required to register as a sex offender,” and did not support this conclusion with factual findings or a legal analysis. As a result, it is impossible to discern the legal and factual basis for the court’s decision to require that Jones register as a sex offender. Moreover, as explained below, the record does not conclusively demonstrate whether the court’s SORNA ruling was correct.

Our clients convicted of child pornography offenses and certain other offenses in which the internet is case related are restricted in computer access post-release. I mention Quon because of an interesting comment at Sentencing Law & Policy.

I recently had to deal with the Federal Probation Service and the Air Force Clemency & Parole Board about a former now paroled client alleged to have improperly used computers to search for employment. Employment is necessary for parole, and most state funded employment offices, and many employers require applicants to use computers to search for a job or to apply for a job. We resolved the case in the client’s favor and parole was not revoked. The parole and FPS rules do allow computer use in limited circumstances related to seeking employment. The rules are bureaucratic and subject to misunderstanding. Basically the rules require a new “permission” to use a computer each time. So going to Home Depot in the AM and Lowes in the PM requires two permissions. So, here is the SL&P comment on an aspect of Quon.

Though Quon will be of greatest interest to those involved in traditional debates over privacy and police-practices, the opinion for the Court by Justice Kennedy has this notable flourish that could have some broader impact: Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. Relatedly, in a rich and spot-on solo concurrence that takes a variety of swipes at the majority, Justice Scalia concludes by lamenting the legal challenge presented if and when the Court embraces a legal ruling “that requires evaluating whether a given gadget is a necessary instrument for self-expression, even self-identification.” So, what does this have to do with sentencing law and policy in general or sex offender restrictions in particular? Well, I do not think it is much of a stretch for persons to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now “essential means or necessary instruments for self-expression, even self-identification.” But, as regular readers know, a fair number of sex offenders these days are facing release conditions that fully or at least significantly restrict their rights to access the internet and/or social networking websites. I suspect that this line from Quon might find its way into a few effort in lower courts to strike down limits placed on some offenders’ use of modern means of digital communication.

CAAF has previously decided some cases about post-release restrictions on military prisoners, but none on this specific restriction. I doubt CAAF would decide an issue of post-release restrictions on the use of computers or the internet. See e.g. United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)(review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence. . . . As a general matter, the collateral administrative consequences of a sentence, such as early release programs, do not constitute punishment for purposes of the criminal law.).