New CCA opinions

Navy.

1. United States v. Curry. This is a BAH case.

The Government proceeded on a theory of a fraudulent marriage as a basis to commit larceny by trick. The court held oral argument in this case and specified two additional issues to the parties.2 Additional pleadings were later filed. After carefully considering the record of trial and the pleadings of the parties, we decide this case based solely on the assigned error and conclude that the evidence was factually insufficient to sustain the finding of guilt as to the charge of larceny, either on the proffered theory of larceny by trick or under a possible theory of wrongful withholding. This case is distinguishable from allowance larceny situations where a properly payable allowance is unlawfully withheld by the servicemember, depriving his dependents of same. See generally United States v. Antonelli, 43 M.J. 183 (C.A.A.F. 1995).

2. United States v. Sager. A urinalysis case.

The appellant was charged with the illegal use of cocaine, distributing cocaine, introducing cocaine onto a military installation and unauthorized absence. Prior to trial, the appellant filed a motion in limine to bar the admission of the drug laboratory report documenting the results of his drug test unless each analyst who participated in the testing testified at trial. The appellant argued that admitting the laboratory report without the testimony of the persons who conducted the testing would violate the Confrontation Clause of the Sixth Amendment. The military judge ruled that the laboratory report, less the cover letter, was non-testimonial hearsay, and thus admissible. Immediately following the military judge’s ruling, the appellant entered pleas of guilty to using cocaine and unauthorized absence, and not guilty to distribution and introduction of cocaine.

The NMCCA found the guilty plea waived the issue of the military judge’s ruling. The court focusses on the IAC issue for an apparent failure to advise the client of the waiver upon guilty plea. The court found the counsel was not ineffective (even assuming he did not advise the client of waiver) based on the overall trial strategy.

United States v. Brown, decided the other day at AFCC raises an issue about waiver of waivable motions in a PTA.

3. United States v. Cheeseman. A Mil. R. Evid. 412 case. Interesting juxtaposition with United States v. Savala.

4. United States v. Westhoven.

The appellant raises three assignments of error. First, he questions whether his plea to negligent homicide can be provident when additional narcotics present in the victim may have been a superseding cause of death in a multiple toxicity case. Second, he questions whether his plea to negligent homicide can be provident when participation in using drugs with the victim is the “sole basis” for the plea. Finally, the appellant avers that his pleas to a general disorder offense for introducing and distributing an analogue of a controlled substance are not provident when the substance charged is not, in fact, a controlled substance.

Army.

1. United States v. Pierce.

Although not raised by appellant, this court recognized the additional issue of whether Charge II, the Article 134 enticement offense, could survive omissions of elemental pleadings and instructions to the members. Based on our review of appellant’s case, we draw three specific conclusions. First, jurisdictional elements of federal statutes are necessary elements which should be plead and must be instructed upon. Second, if a court takes judicial notice of necessary elements, that judicial notice must typically occur on the record at trial and cannot occur sub silentio. Finally, instructional errors related to essential elements are subject to a harmless error analysis. See Neder v. United States, 527 U.S. 1 (1999). Based on these conclusions, we set aside appellant’s conviction as to the portion of the specification of Charge II alleging a violation of 18 U.S. C. § 2442.

The MJ raised the pleadings problem at trial, “In light of United States v. Leonard, 64 M.J. 381 (2007), is it necessary to allege an interstate or foreign commerce element to state an offense when assimilating a federal crime?” But ruled the pleading was sufficient. The court has an interesting discussion of judicial notice on appeal where no judicial notice was taken at trial.