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Novelty but not fun to the Appellant
As this case demonstrates, the novelty of an assimilative charging decision under Article 134 often wears off during the course of an appeal,
Says ACCA in a footnote to United States v. Meredith, 7 August 2018.
Specification 1 of Charge II alleged appellant violated the Computer Fraud and Abuse Act (CFAA), 10 U.S.C. § 1030, by obtaining the sex videos from HN SS’s and KS’s computer. We agree with the parties that the evidence for the Article 134 offense assimilating the CFAA, specifically, 18 U.C.S. § 1030(a)(2), was legally and factually insufficient.
Most of the reasoning is found in footnote 5.
Interestingly,
In an unusual twist, the government asks us to send this case back to the convening authority for a sentence rehearing, arguing that the gravamen of the misconduct of which appellant was found guilty was the violation of the CFAA and pointing out HN EA and HN TH did not testify about the impact of the offenses during sentencing. We disagree.
On reassessment, the Court approved all of the sentence except the 45 days confinement (and total forfeitures) the Appellant had already served–another pyrrhic victory (although the Appellant might have a little back-pay coming).