Perjury.

The Air Force Court of Criminal Appeals has issued a decision in United States v. Harris, __ M.J. ___, No. 2008-03 (A. F. Ct. Crim. App. 2009).

IP: This was a government appeal under Article 62, UCMJ.

Background: The accused had been prosecuted for use of cocaine. At trial he testified to an innocent ingestion defense and a friend testified to support his claim. He was found not guilty. The accused tested positive again for cocaine shortly after trial. OSI investigated and the accused’s friend dimed him out. Thus the accused is now being prosecuted for obstruction of justice and perjury which resulted in his acquittal. The military judge dismissed the charge based on R.C.M. 905(g), the res judicata and collatoral estoppel rule. Intuitively it would seem right that a person who lied to get acquitted in his trial could be prosecuted later if the lie was exposed and could be proven. However, it’s not that simple. What ifthe lie wasn’t the reason for the acquittal? What if the members found the accused not guilty because of a serious flaw in the urinalysis collection process?

Decision: The decision of the military judge is reversed, prosecution may proceed. The court specifically noted the concern that a prosecution for perjury could ensue any time an accused testified and then was acquitted. But the court pooh-poohed the idea. Their view is that convening authorities have better sense to refer charges in all those cases. Rather, the court found here that there was specific credible independent evidence, so the accused was not subjected to prosecutorial vindictiveness.

An appellate practice note: For an additional interesting issue in this case go to CAAFLog for a discussion about whether or not the court had jurisdiction to decide the case the way it did. Essentially Article 62, UCMJ, gives the prosecution a narrow right of appeal. In this case it appears that at some point the appellate government abandoned or did not advance the very argument that A.F.C.C.A. found for the prosecution on. So, could the court do that. As CAAFLog says, “Perhaps we will soon see a CAAF opinion answering that interesting question.”