1. Court-Martial Defense:

A court-martial is a serious matter that can result in a dishonorable discharge, imprisonment, and a ruined career. Cave & Freeburg, LLP brings decades of combined experience to your defense. Their attorneys have a deep understanding of the Uniform Code of Military Justice (UCMJ) and extensive experience navigating the complexities of court-martial trials and appeals. They will:

• Analyze your case: They meticulously examine the charges, evidence, and potential violations of your rights.
• Develop a strong defense strategy: This may involve challenging the evidence, negotiating a plea bargain, or building a case for dismissal.
• Represent you throughout the process: From pre-trial motions to hearings and the trial itself, they will be your relentless advocate.
• Fight for the best possible outcome: Their goal is to secure an acquittal, dismissal of charges, or a reduction in punishment.

2. Non-judicial Punishment (NJP) (Article 15):

Even an NJP, often considered a lesser penalty, can have significant consequences for your career. This is so even though an NJP is not a conviction. There are many civilian employers who are not aware of that distinction and think you have a “conviction.” Also, we now live in a military culture where there is little to zero tolerance for “defects.” The days when the purpose of NJP was to hold someone accountable but also allow them the chance to recover and go on to a better career are mostly gone. Nowadays, that first NJP can result in administrative discharge and a black mark on your military service. As military defense counsel, Cave & Freeburg, LLP can help you navigate this process by:

• Advising you of your rights: Explaining your options under the UCMJ and at an NJP proceeding.
• Negotiating with the command: They can work towards a more favorable outcome, potentially reducing the severity of punishment.
• Preparing a strong response: They will help you craft a compelling response to the allegations, mitigating the potential impact on your record.

3. Administrative Discharge Proceedings:

Facing an administrative discharge, or for officers a board of inquiry, is stressful and uncertain. Cave & Freeburg, LLP can guide you through this process by:

• Understanding the grounds for discharge: There are various reasons for administrative discharge, and they will ensure you understand the specific allegations against you.
• Fighting for a more favorable characterization: The discharge characterization (honorable, under honorable conditions, etc.) significantly impacts future opportunities. They will strive for the most positive characterization possible.
• Exploring all options: In some cases, they may be able to negotiate a retention in service or pursue other avenues to protect your career.

4. Military Justice Matters Beyond Court-Martial:

Cave & Freeburg, LLP’s expertise extends beyond court-martial defense. They can assist with a variety of other legal issues faced by service members, including:

• Line of duty investigations: If injured on duty, they can ensure you receive proper benefits and representation during investigations.
• Security clearance issues: Security clearances are vital for many military careers. They can help you navigate security clearance suspension or revocation proceedings.
• Military separation boards: They can guide you through the separation board process and fight for a fair outcome.

The Cave & Freeburg, LLP Advantage:

• Extensive Experience: With over 43 years of combined experience, they have a proven record of success in complex military legal matters.
• Nationwide & International Reach: They represent clients stationed across the U.S. and overseas, ensuring accessibility regardless of location.
• Relentless Advocacy: They are dedicated to protecting your rights and fighting for the best possible outcome in your case.
• Free Consultation: They offer a free consultation to discuss your situation and explore your legal options.

Taking Action:

Don’t face military legal challenges alone. Contact the military defense lawyers at Cave & Freeburg, LLP today. Their experience allows them to prepare and guide you through the legal process and fight for your rights. We have represented clients from E-1 through O-9. In representing these clients we have looked for creative ways to favorably resolve the issues and get a positive result. Because our loyalty is to the client only, we don’t have to worry about what our uniformed supervisors or colleagues think of our work, strategy, or willingness to appropriately challenge authority. We are not looking over our shoulders to see how our representation might affect our next promotion or assignment–you are the only person we are responsible to. Over the years we have reviewed thousands of law enforcement investigations, FAP reports, and records of trial. With our unwavering dedication and proven track record, you can be confident that you have a strong advocate in your corner.

Under the Uniform Code of Military Justice (UCMJ), military defendants have the right to be represented by counsel at trial. If a defendant believes that their defense counsel provided them with ineffective assistance, they can raise this claim on appeal. The standard for evaluating claims of ineffective assistance of counsel in a court-martial is the two-part test established in Strickland v. Washington, a case decided by the U.S. Supreme Court in 1984.

Under the Strickland test, the defendant must show that their counsel’s performance was deficient and that this deficient performance prejudiced the outcome of the trial. Deficient performance means that the attorney’s representation fell below an objective standard of reasonableness, and prejudice means that there is a reasonable probability that, but for the deficient performance, the outcome of the trial would have been different.

If a military defendant successfully raises a claim of ineffective assistance of counsel, the remedy will depend on the specific circumstances of the case. The remedy could include a new trial, a reduction in sentence, or some other form of relief.

The appeals court will review claims of IAC de novo. United States v. Gooch, 69 M.J. 353, 362 (C.A.A.F. 2011) (To establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice. United States v. Captain, 75 M.J. 99, 103 (C.A.A.F. 2016). You should be aware that appellate courts strongly presume the counsel gave reasonable professional assistance. Also, you must show “a reasonable probability that, but for counsel’s [deficient performance] the result of the proceeding would have been different.” See United States v. Cueto, 82 M.J. 323, 327 (C.A.A.F. 2022).

Your military appellate defense counsel can argue the cumulative effect of various errors when those errors aren’t necessarily significant. Also, in Cueto, the court said that

Perhaps in a rare case an attorney’s overall performance could be deficient even though the attorney did not make specific errors. See, e.g., People v. Raosto, 50 A.D.3d 508, 509, 856 N.Y.S.2d 86 (N.Y. App. Div. 2008) (holding that a defense counsel’s overall performance was deficient where the defense counsel “displayed general carelessness and inattention throughout the trial,” “appeared to be confused,” and was generally unsuccessful in cross-examining witnesses). But such cases usually would arise only when “the defendant can point to a long series of questionable omissions by counsel” that “were not simply the product of human fallibility, but the result of a lack of conscientious effort.” Wayne R. LaFave et al., Criminal Procedure § 11.10(c) (4th ed. 2015).

Ineffectiveness claims can relate to pretrial preparations and advice on guilty plea negotiations, for action or inaction during trial, and for actions or inactions during the sentencing case.

United States v. Scott United States v. Scott, 2018 CCA LEXIS 522 (A.C.C.A., Oct. 30, 2018) aff’d 61 M.J. 79 (C.A.A.F. 2021), is an example of alleged military defense counsel failure during sentencing. But the courts decided the accused was not prejudiced based on the conduct of which convicted and other mitigating evidence in the record.

It is important to note that a claim of ineffective assistance of counsel is a complex legal issue. Anyone facing a court-martial should consult with an experienced military defense attorney to discuss their legal options.

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.

The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon.

One assignment of error warrants discussion, but no relief. Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense when the force used against him escalated. Today we find that any error by the military judge was harmless beyond a reasonable doubt and affirm the findings and sentence.

First some basics:

A military judge is required to instruct the members on special (affirmative) defenses “in issue.” Rule for Courts-Martial [hereinafter R.C.M.] 920(e)(3). A matter is “in issue” when “‘some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they choose.’” United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007) (quoting R.C.M. 920(e) Discussion, and United States v. Gillenwater, 43 M.J. 10, 13 (C.A.A.F. 1995)).

I would add that this is a sua sponte duty.

[T]he military judge has a duty to instruct the factfinders on it, regardless of defense theories or requests. Any doubt whether the evidence is sufficient to require an instruction should be resolved in favor of the accused.

United States v. Steinruck, 11 M.J. 322, 324 (C.M.A. 1981).

[A]n affirmative defense is not waived by a mere failure to request it.

United States v. Buckley, 35 M.J. 262, 265 (C.M.A. 1992), citing to United States v. Taylor, 26 M.J. 127, 129 (C.M.A. 1988).

So in Stanley,

At the close of evidence on findings the military judge gave extensive instructions, including self-defense and defense of another. Based on the evidence presented at trial, appellant now claims that the military judge should have instructed on two additional theories. First, the military judge should have instructed the panel that a mutual combatant has the right to escalate violence under certain circumstances without losing the right to self-defense. Second, the military judge should have instructed the panel that some mutual combatants may be unable to withdraw, and therefore retain their right to self-defense.

The court appears to distinguish Lewis and Gillenwater because a clear distinction is

the fact that none of appellant’s three defense counsel objected to the instructions given, nor asked for any additional instructions.

Basically the court concludes that no amount of additional instructions on self-defense would have lead to an acquittal because the evidence was so overwhelming. That’s essentially the Van Arsdall harmless beyond reasonable doubt issue. See United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010).

As to affirmative waiver of instructions, usually to LIO’s, see e.g., United States v. Duncan, 36 M.J. 668 (N.M.C.M.R. 1991); United States v. Strachan, 35 M.J. 362, 364 (C.M.A. 1992) (Instructions on lesser-included offenses are required unless affirmatively waived by the defense); United States v. Moore, 12 U.S.C.M.A. 696, 31 C.M.R. 282 (1962)(defense counsel affirmatively indicated his desire to withdraw his request for the instruction and, thereby, waived the instruction). But see, United States v. Taylor, 26 M.J. 127 (CMA 1988)(passive waiver); and United States v. Miergrimado, No. NMCCA 200501128 (N-M. Ct. Crim. App. Feb. 22, 2007), rejecting application of United States v. Waldron, 9 M.J. 811 (N.M.C.M.R. 1980), aff’d, 11 M.J. 36 (C.M.A. 1981), allowing the defense to choose whether to go all or nothing.

Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights[.]

The following Rules are relevant to a writ.

Rule 2(b). The court has discretion to “entertain petitions for extraordinary relief,” and that would be under the All Writs Act, 28 U. S. Code Sec. 1651(a). See Noyd v. Bond, 395 U.S. 683, 695, n.7 (1969); Willenbring v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998).

Rules 8 and 13. I am assuming that Mr. Jensen is not formally admitted to practice before ACCA, or any other military appellate court except possibly CAAF. Thus he would have to appear pro hac vice. I don’t have any indication that Mr. Jensen has asked for appointment of military appellate counsel to assist.

Rule 20.

If a show cause order is issued the government has 10 days to answer, and then the petitioner has seven days to answer the government’s filing.

So, the first guess, will ACCA issue a show cause order? My guess, no. Here is the language from the rule that most of us are relying on to say that LTC Lakin won’t get his requested relief.

In thinking about why the case would be delayed to 3 November 2010 there were all kinds of ideas floating around, some ideas being of a conspiratorial nature. I had missed the piece noted by Reality Check (thanks!). Anyway, I thought the first place to go would be be docket – but first a digression on the piece of reporting Reality Check caught.

The military judge did delay the start of the trial for a month to give the defense more time to ask the court of appeals for help. (WUSA9 — http://goo.gl/Am1Q)

Based on additional chatter out there it seems the judge was doing what’s not uncommon in military cases and giving the defense a one time pass. (There has in fact been a lot of criticism from some over the years about paternalism toward an accused in military courts. Some of us view this as a desire for fairness.) My initial thought, now wrong, was that the judge would not delay the trial because of the defense’s tardy actions. But the delay makes sense.

We are all used to asking for a delay in a case. Rule One (of a list of Rule One’s) is to have a really good reason for delay. The reason here (incorporating some additional chatter) does not seem compelling. “We’ve had some attorney-client dissension in the camp doesn’t sound terribly compelling (and I paraphrase),” until you go back to the paternalism thought. I’ve seen where a judge will give the accused a break when there’s a sense the counsel aren’t up to snuff. In fact there is an appellate argument that you don’t make the client suffer for the sins of the lawyer. See e.g., United States v. Ortiz, 24 M.J. 323, 324 (C.M.A. 1987) ([W]e do not wish to make [an] appellant suffer for the omissions of the lawyer.). When you get a delay and you’ve had a less than persuasive reason for asking for delay it is not uncommon for the judge or court to admonish that you are getting a one and only. CAAF uses the language, “and absent extraordinary circumstances, no further extension of time will be granted in this case,” (bolded and underlined in the Journal), for almost all delay grants.

So why pick 3 November 2010. OK, here is a link to the docket.

You will see that 3 November appears to be the first open space on Judge Lind’s docket and that she wouldn’t be free until maybe December after that. Coincidentally this will give ACCA sufficient time to deny LTC Lakin’s writ petition. At which point I suppose the APF can direct their distrust toward the judges at ACCA and include them in the conspiracy against LTC Lakin?

In this case, we are asked, following remand, whether an honorable discharge, effective after this court’s affirming a sentence that included a bad-conduct discharge, has the effect of remitting that discharge. We hold appellant’s administrative discharge was voidable, properly voided, and did not remit appellant’s premature discharge.

This was a rather odd situation because the appellant was an active duty Soldier and it was the Reserve command giving him the discharge. ACCA found that the Commander, HRC-StLouis had no authority to discharge appellant.

The commander, HRC-St. Louis exceeded his authority under AR 135-178 to order appellant’s discharge. Therefore, appellant’s 29 December 2009 discharge was, at a minimum, voidable and was properly voided on 12 March 2010. As an active duty soldier under a sentence to an unsuspended bad-conduct discharge, appellant could “not be discharged before appellate review is completed, unless so directed by [Headquarters, Department of the Army].” United States v. Estrada, 69 M.J. 45, 47 n.1 (C.A.A.F. 2010) (citing Army Regulation 635-200, Personnel Separations: Active Duty Enlisted Administrative Separations, para 1-22.d (6 June 2005) (emphasis in original)). At the time of appellant’s voidable discharge, the court’s 5 October 2009 decision was pending review before the C.A.A.F.. Accordingly, appellate review was not completed. UCMJ art. 67. See also UCMJ art. 76.

On first review ACCA had set-aside two specifications regarding a falsification of a sick-slip under Article 123, UCMJ. But ACCA then affirmed two specifications thought to be closely related to the dismissed specifications. CAAF dismissed the two specifications and said that:

By dismissing those specifications, our superior court rang the death knell of the “closely-related offense” doctrine. United States v. Morton, 69 M.J. 12, 13 (C.A.A.F. 2010). Also as part of their decision, our superior court returned the record of trial to The Judge Advocate General for remand to this court for sentence reassessment.

Actually what CAAF said was:

The granted issue tests the continuing vitality, of the so-called “closely related offense” doctrine. In light of the abiding principle of fair notice to an accused, we hold that this doctrine, as currently relied upon by appellate courts in upholding guilty pleas in the military justice system, is no longer viable.

Here is the link to United States v. Morton, 68 M.J. 12 (C.A.A.F. 2010).

The original ACCA opinion is at United States v. Morton, No. 20060458, 2008 CCA LEXIS 615, at *10-*11 (A. Ct. Crim. App. Sept. 30, 2008)

CAAF agreed with ACCA that changing the information on a sick slip is not an offense under Artilce 123, UCMJ. The issue was substitution of a false official statement offense under Article 107, UCMJ.

Oooops, here’s what ACCA first said about the charge and the evidence on which the prosecution held an Article 32, UCMJ, investigation, had a legal review, went to trial on, the parties agreed to a guilty plea on, and the military judge accepted. (Which indicates the relevance of reading this case to trial practice.)

We accept the government concession that appellant’s acts of altering an individual sick slip cannot support her convictions of forgery in violation of Article 123, UCMJ. See United States v. Young, 21 C.M.R. 431, 432 (A.B.R. 1956) [citing to United States v. Strand, 6 U.S.C.M.A. 297; 20 C.M.R. 13 (1955)] (holding that a sick slip has no legal efficacy); United States v. Sher, 21 C.M.R. 371 (A.B.R. 1956) (finding no regulation making a sick slip either binding or enforceable and concluding such an instrument does not give an accused a right to avoid duty); see generally United States v. Abbey, 63 M.J. 631, 634 (C.A.A.F. 2006) (Commenting that “the nature and use of sick slips are basically the same now as when Sher and Young were decided in 1956.”). [n.1]

Young and Sher are in the red books. Some of us remember the red books as practical research tools now made (apparently) redundant by computer research. Here’s my LEXIS search term “”sick slip” or siq or “sick in quarters.”” I used SIQ because that’s what the chit and practice is called in the Department of the Navy. Each of the cases cited by ACCA showed up in some fashion in a list of 22 cases. The first Morton decision was in September 2008. In April 2008, ACCA decided United States v. Guilette II, ARMY 20051539, 2008 CCA LEXIS 545 (A. Ct. Crim. App. April 24, 2008). The appellant in Guilette II was also charged with forging a sick slip while stationed at Fort Sill, OK. Two different jurisdictions, all the parties were different. Most odd.

The current Manual for Courts-Martial, para. 48.c.(6), states:

The alteration must effect a material change in the legal tenor of the writing. Thus, an alteration which apparently increases, diminishes, or discharges any obligation is material.

But apparently this doesn’t include the legal obligation to show up for duty? The Appendix doesn’t have any explanation other than a note that the paragraph is based on para. 202, MCM (1969). But the new explanation is not duplicative.

The 2003 Benchbook doesn’t address this particular issue and doesn’t reference any caselaw.

Paragraph 202 of the 1969 manual states:

The 1969 Manual doesn’t have the Analysis sections that subsequent manuals have. So what are we left with? The 1984 manual is no help. The analysis from 1984 is that found in the 2008 manual.

I think the bottom line to us all here is a reminder of the need to conduct research into caselaw. An Article and it’s explanation may seem straightforward on its face but the appellate courts add their interpretation. In the case of an SIQ chit, the appellate courts are consistent in finding the document doesn’t qualify under Article 123, UCMJ. In two cases at the trial level it appears everyone got it wrong.

——————————————-

n.1. Also most odd. Abbey is correctly cited by ACCA and is available in LEXIS. However, when I went to link to the opinion on CAAF’s website in the 2006 opinions I could not find Abbey. The citations stop at 63 M.J. 478 and then take up with 64 M.J. 1. A search of the CAAF website shows ‘no matches found’ for this case.

We granted review in this Abu Ghraib case to determine whether the military judge abused his discretion in (1) refusing to compel the Government to produce certain memoranda requested by the defense; (2) excluding the testimony of, and an e-mail from, Major Ponce; and (3) limiting the testimony of a defense expert witness. We hold that the military judge did not abuse his discretion in any of these decisions and affirm the judgment of the United States Army Court of Criminal Appeals (CCA).

In light of Bowles v. Russell, 127 S. Ct. 2360 (2007), we conclude that the congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional [and may not be waived or extended regardless of cause].

The effect was to deny an opportunity for an appellatant to petition on meritorious issues or have access to the United States Supreme Court. Prior to Rodriguez it was not uncommon for appellate counsel and appellants to miss the CAAF petition filing deadline, sometimes by just a few days. The reasons for the missed filing generally came down to administrative error within the appellate defense divisions. For various reasons filing deadlines weren’t being tracked accurately. It’s my understanding that the divisions have taken measures to correct the problems. However, there were a series of cases post Rodriguez where the appellant was denied access to CAAF based on Rodriguez. While unfortunate, for those that had no seemingly meritorious issues to petition on there was likely no prejudice. But what about those cases where the appellant had a good issue (regardless of whether or not it was a winner)?

In Rittenhouse v. United States (an Army case) the petitioner thought he’d found the solution – file a petition for a writ of coram nobis with CAAF. (It does not appear that he has petitioned in the federal district court – any idea anyone). However, on 27 May 2010 the court in a split decision summarily denied the petition. Judge Baker dissented citing his position in Rodriguez. Chief Judge Effron also dissented in Rodriguez. In Rodriguez Judge Baker stated that:

Today the Court reverses more than fifty years of military justice precedent and practice based on Bowles v. Russell, 127 S. Ct. 2360 (2007), a Supreme Court case addressing the time for appeals under the federal habeas statute, 28 U.S.C. § 2107 (2000). Since the advent of the UCMJ, this Court has held that the time limits for filing a petition for appeal before this Court do not impose a jurisdictional bar to appeal where there is good cause shown for filing out of time.

Rodriguez, Slip op. at 12 (citations omitted).

What is most interesting from Rittenhouse is a possible solution proffered by Chief Judge Effron in his concurrence in the result?

As noted by the majority, an application for a writ of error coram nobis is “viewed as a belated extension of the original proceeding during which the error allegedly transpired.” United States v. Denedo, 129 S. Ct. 2213, 2221 (2009). In this case, because Petitioner’s counsel did not file a timely petition for review with this Court, the “proceeding” remained with the United States Army Court of Criminal Appeals during the sixty-day filing period. Therefore, the Army Court is the appropriate forum with which Petitioner should have filed his writ. After a Court of Criminal Appeals issues an opinion, a thirty-day period for reconsideration commences. United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 1997); C.C.A. R. 19. This Court has long held that the lower courts have jurisdiction over petitions for reconsideration of their decisions until a petition for review is filed in this Court. United States v. Sparks, 5 C.M.A. 453, 456-57, 18 C.M.R. 77, 80-81 (1955); see also United States v. Kraffa, 11 M.J. 453, 455 (C.M.A. 1981) (stating that the decisions of the lower court are inchoate until the possibility of reconsideration is removed). Pending such a filing in this Court, the lower courts permit extension of the reconsideration period for good cause shown. C.C.A. R. 19(d). As these authorities reflect, jurisdiction does not pass to this Court until a petition for review is filed.

Whether ACCA or any of the service courts of criminal appeal will agree to “extend” or take a “belated” request for reconsideration is a different matter. While missing deadlines is troubling from a professional perspective, I’m not too upset about the cases in which the appellant had no issues to petition. However, for a small number of appellant’s they have missed a chance to have CAAF rule on their meritorious issues. I would have hoped that the meritorious cases would have been petitioned to TJAG for certification to CAAF. I do not believe the TJAGs have certified any Rodriguez cases, a possibility raised in Rodriguez.

Appellant’s prior crime, the crime of housebreaking, occurs when “[a]ny person subject to [the Uniform Code of Military Justice] . . . unlawfully enters the building or structure of another with intent to commit a criminal offense therein. . . .” 10 U.S.C. § 930. . . . Appellant’s primary argument against this conclusion is that the district court improperly referenced the military court’s discussion of the underlying facts of his conviction. Generally, a court is only to consider “the fact of conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602. But the district court’s reference in this case to the underlying facts of Appellant’s housebreaking conviction, as articulated in the military court’s opinion, does not change the fact that the elements of housebreaking constitute a generic burglary crime, a crime of violence under our precedents. Further, and contrary to Appellant’s argument, the Supreme Court’s opinion in Begay v. United States, 553 U.S. 137 (2008), did not alter our decisions in regard to generic burglary and does not provide reason for reversal.

See, United States v. Whetzell, No. 09-1463 (8th Cir. February 10, 2010). I have linked to the SCOTUSWiki version of Begay because it has some interesting information about what constitutes a crime of violence for purposes of the Armed Career Criminal Act.

The act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” This last clause is referred to as the “otherwise” or “residual” clause. The ACCA also defines “serious drug offense” to include offenses under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” Begay v. United States asks whether a felony conviction for driving while intoxicated counts as a “violent felony” under the ACCA.

Sorry, for a headnote cite:

Held: New Mexico’s felony DUI crime falls outside the scope of the Act’s clause (ii) “violent felony” definition. Pp. 3–10. (a) Whether a crime is a violent felony is determined by how the law defines it and not how an individual offender might have committed it on a particular occasion. Pp. 3–4. (b) Even assuming that DUI involves conduct that “presents a serious potential risk of physical injury to another” under clause (ii), the crime falls outside the clause’s scope because it is simply too unlike clause (ii)’s example crimes to indicate that Congress intended that provision to cover it. Pp. 4–10.

In this case the appellate courts ordered a DuBay hearing. During that hearing the prior military judge testified as to his rationale for various decisions at trial. Using that testimony, the Army Court of Criminal Appeals applied the harmless beyond reasonable doubt standard to findings of constitutional error. On appeal, CAAF ordered a new review by ACCA specifically excluding the testimony of the judge at the DuBay hearing.

On 23 July 2009, the United States Court of Appeals for the Armed Forces set aside that decision, and remanded to this court for further review. United States v. Matthews, 67 M.J. 29, 43 (C.A.A.F. 2009). Specifically, our superior court held that it was error to consider the testimony of the original trial judge elicited during the DuBay hearing because it violated the protected deliberative processes of military judges sitting alone. Id. This court was instructed to reconsider our conclusion on harmless error without that improper testimony. Id.

As a result of this new review, ACCA could not find harmless error and set aside Charge I. Of course this required then a sentence reassessment. The initial sentence – now served – was RIR to E1, 11 months confinement, and a BCD. After reconsideration the court found that appellant would have been sentenced to at least RIR to E1, one month confinement, and a BCD.

When the members returned, immediately after calling the court to order and accounting for the parties, the following colloquy ensued: MJ: Members, the bailiff indicated that you had a question? Colonel Meyer is shaking her head. MEMBER [Lieutenant Colonel (LTC) MEYER]: I am wondering, ma’am, if we can ask for additional witnesses to be called. MJ: The answer to that is, you’ve heard all of the evidence in the case. Neither party objected to the military judge’s ruling, or asked for additional information. The military judge then began her instructions to the members, followed by closing arguments of counsel.

Note Judge Leeker didn’t ask who they wanted to call and why. And neither counsel objected! At a minimum the counsel needed to object to the judge failing to at least inquire into the name and purpose. If the MJ does asks but denies the witness, there is at least some indication for argument about something troubling the members, and of course the issue is better preserved. In addition,

While the military judge may properly exercise his or her discretion and deny a member’s request for additional evidence, our superior court has set forth a non-exclusive list of factors the judge must consider prior to doing so. Difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might be subject to a claim of privilege; and the objections of the parties to reopening the evidence are among the factors trial judge must consider.

Trial defense counsel did track down the member and figure out what the issue was.

Neither side addressed the preliminary question of whether it is appropriate for this court to consider extra-record matters in this instance. We hold that the members’ request for additional evidence is not a collateral matter. As such, we will not consider the extra record appellate submissions concerning the identity of the witness the members wanted to request, as well as the proffered substance of that witness’ testimony in deciding this issue.

Although they did consider the matters on a Grosty IAC claim relating to the requested witness. The court takes the position that the submitted matters are extra-record and can’t be considered to :

to support or reverse a conviction . . . .” United States v. Bethea, 46 C.M.R. 223, 225 (C.M.A. 1973) (quoting United States v. Lanford, 20 C.M.R. 87, 95 (C.M.A. 1955); see also United States v. Stokes, 65 M.J. 651, 653-55 (Army Ct. Crim. App. 2007) and numerous cases cited therein.

But while the court does a good job of analyzing situations when post trial submissions may be extra-record but considered, they seem to miss the prejudice shown or not shown by the documents. Here the court found error, but then apparently ignored the extra-record documents when deciding the appellant had not been prejudiced.

This evidence was never put before the members and was not subject to cross-examination. See id. Accordingly, we will not consider it.

But isn’t that the point of a prejudice analysis? If the evidence had been presented could there have been a different result. Notably the court does seem to conclude that even had the evidence been introduced there would not have been a different result. They considered the matters in the Grosty IAC claim and determined there was no IAC, impliedly saying that the lack of the evidence was not prejudicial. Odd.

United States v. Thurston. This is another in the “new matter” column for post-trial SJAR’s addendum. Apparently the SJA included a chronology of post-trial events which was not served on the defense.

Each of the time periods provided in the chronology contained an attendant explanation. Included in the chronology was an explanation that: on 18 February 2009, the accused and his counsel had met with the convening authority; and from 1 April 2009 to 30 June 2009, had been spent coordinating with the family of the victim “on clemency for the accused.” As acknowledged in appellee’s brief, the two aforementioned events were not part of the record of trial. However, the addendum was never served on appellant or his defense counsel. Government appellate counsel also submitted a post-trial affidavit averring that the victim’s family did not recommend clemency for appellant. The affidavit details that the victim’s widower was opposed to clemency, as was the victim’s mother. The affidavit notes that the victim’s mother had “changed the position she had taken at the court-martial” and was now “adamantly” opposed to clemency for appellant.

Keep in mind that most SJA’s have a sit-down with the CA and discuss the case. So it’s quite likely the CA became aware of the victims change of heart about clemency. The appellate trend seems to dictate that any time the SJA is going to submit something to the CA after receiving the defense matters, it’s best to go ahead and serve the defense out of an excess of caution.

United States v. Kloch. This case addresses limitations a military judge may place on an accused’s unsworn statement on sentencing during his court-martial. The issue was discussion of results in co-accused’s cases. ACCA found the military judge erred in preventing such statements, but the error was not prejudicial. The case gives a decent review of the wide “discretion” allowed an accused to say what he or she wants during their unsworn statement, including otherwise inadmissible information.