Appellant claims that his due process rights were violated when his case was not docketed with this court within 30 days of the convening authority’s action as required by United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Finding no error that resulted in material prejudice to Appellant’s substantial rights, we affirm the findings and sentence.” The court reviews the case considering the new post-trial rules for events at the trial stage. The takeaway point are,

• Under the new rules there is no CA action, so Moreno “no longer helps.”

• Under the new procedures, action by the convening authority is no longer required. See R.C.M. 1109(d); R.C.M. 1110(c), (e).

• An accused’s timeline for submitting clemency matters begins when the sentence is announced, not when the ROT is served on him or her. See R.C.M. 1106.

• Additionally, after the convening authority makes a decision whether to take action, the new post-2019 procedures establish additional processing that the Government must complete before an appellant’s case can be docketed with this court. Those steps include the military judge entering the judgment of the court, and the court reporter preparing, certifying, and attaching additional matters to the record of trial for appellate review. See R.C.M. 1111(a) and 1112(c), (f).

• Consequently, the convening authority’s decision on action occurs before the ROT is complete, and preparation of the record necessarily continues after that decision occurs. Depending on the length and complexity of the record involved, we can envision cases in which the court reporter is still transcribing the proceedings after the convening authority’s decision.

• As such, the prior 30-day period from action to docketing, which primarily involved transmitting an already-completed ROT to the Court of Criminal Appeals, now overlays substantive actions such as completing the preparation of the record.”

• The court concludes that 150 days between sentencing and docketing with the CCA is the proper deadline to “protect an appellant’s due process rights.”
• That “rule” established by the CCA now, the court conducts a traditional Moreno

Occasionally a TJAG will refer a subjurisdictional sentence case to the CCA, which is what happened here.

ACCA looked a two issues: sufficiency of the evidence and post-trial delay.

Note, under Article 69(d), UCMJ, the CCA can only review for legal sufficiency and not for factual sufficiency.

Just another reminder that post-trial submissions with Article 38(c) briefs and 69(d) requests should be on the DC scope.

1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or 2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD; To avoid an ineffective assistance of counsel claim, such as in Padilla v. Kentucky, please ensure (especially for those supervising line Defense Counsel) that the defense attorney advises the client of a mandatory, and thus ‘direct’ consequence of such a sentence, viz., a federal felony, especially if they are avid hunters, target shooters, skeet shooters, etc., they cannot possess firearms or ammunition!

_____________________________ 18 U.S.C. § 922:

(g) It shall be unlawful for any person—

* * * * *

6) who has been discharged from the Armed Forces under dishonorable conditions;

* * * * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. ______________________

Needless to say, I’m working on a case where [client] got a DD over 14 years ago, who has been a hunter all of his life – at least until now – when he went to buy a new shotgun for next Fall’s deer season, popped up on the background check as being “ineligible” to possess. While they didn’t sell him that firearm, ATF showed up at his house a few days later and asked if he had “any firearms” in the house, and he dutifully showed them his 2 shotguns, and 3 rifles [along with @ 200 rounds of ammo], which he surrendered in lieu of arrest. The US Attorney’s Office is not pressing this as they’re not interested in adding to Padilla and its progeny, and (at least for now) is looking to simply forfeit the confiscated weapons.

Of course there’s nothing in the RoT remotely discussing this mandatory prohibition, so add it to the stuff you advise clients. As an aside, I think it fair game to get the Court to judicially note the above statute as a mandatory consequence of a Dismissal or DD, and if the discharge isn’t mandatory especially to argue for no more than a BCD if that.

Be advised.

I am a fan of this website as a resource to find ways to argue on behalf of a client, just as I am a fan of restorative justice.

The CCRC is pleased to announce the launch of its Compilation of Federal Collateral Consequences (CFCC), a searchable online database of the restrictions and disqualifications imposed by federal statutes and regulations because of an individual’s criminal record. Included in the CFCC are laws authorizing or requiring criminal background checks as a condition of accessing specific federal benefits or opportunities. This newly developed tool allows individuals to identify federal collateral consequences based on the people, activities or rights affected; to access complete and current statutory and regulatory text detailing the operation of each consequence; and, to explore the relationship between consequences and their implementing regulations, and among different consequences. This is a product that has been many months in the making, and we hope it will serve as an important resource for practitioners, researchers, and policymakers, as well as individuals with criminal records.

MSR (Mandatory Supervised Release) is very similar to parole. Individuals released on MSR must adhere to the conditions of release and are under the direct supervision of a parole/probation officer. Individuals released via MSR remain under supervision and must abide by all conditions of release for the full length of their sentence unless a portion of the sentence has been remitted by the Board. After successful completion of MSR, individuals are released from supervision and have fully served their sentence. An individual who violates the conditions of MSR is subject to sanctions for misbehavior that range from warnings to revocation of MSR and return to military confinement. The individual on parole and MSR is under the direct supervision of a United States Probation Officer (USPO) until the full sentence has been served or the Army Clemency and Parole Board remits the remaining portion of his sentence. The difference between the two is an individual is eligible for parole after serving one-third or more of his/her sentence, while an individual released on MSR is released when he has served until his minimum release date and has submitted an acceptable release plan. Failure to provide an acceptable release plan could require the individual to serve his full sentence in confinement.

So says the Army Review Boards Agency.

United States v. Von Behren, __ F.3d ___ (10th Cir. 2016), is an interesting decision related to federal prisoners. But could it have application to paroled military prisoners. The court introduces the issue as follows.

Brian Von Behren is serving a three-year term of supervised release stemming from a 2005 conviction for distribution of child pornography. One of the conditions of his supervised release was modified to require that he successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer four questions regarding whether he had committed sexual crimes for which he was never charged. The treatment program required him to sign an agreement instructing the treatment provider to report any discovered sexual crimes to appropriate authorities. Mr. Von Behren contended that the polygraph condition violates his Fifth Amendment privilege against self-incrimination. The district court disagreed and held that the polygraph exam questions do not pose a danger of incrimination in the constitutional sense. Mr. Von Behren refused to answer the sexual history questions, thereby requiring the treatment provider to expel him from the program and subjecting him to potential revocation of his supervised release for violating the condition of supervision. The district court denied Mr. Von Behren’s request to stay further proceedings pending appeal, but this court granted a stay. We reverse on the Fifth Amendment issue.

It remains to be seen if this question comes up in a military case. Until then, Von Behren is good law in the 10th Circuit, which encompasses the USDB.