United States v. Sanchez is back with the same result. There was a time when the SJAR used to be a long and complete and thorough briefing sheet to the commander acting post-trial. Because of a very very few lost cases on post-trial delay and the amount of work required the SJAR has developed into a “I read the case, approve it.” Thus the “advice” has been moved behind closed doors. Can anyone imagine that when a CO wants to talk about granting clemency on a case she doesn’t call in the SJA for advice which, without a written document, is unknown. Yes, we have gotten here because of all of the litigation over the years because of inaccurate or erroneous advice. So, rather than enforce giving “balanced” (see Sanchez), accurate, and correct advice we now have a situation where the CO gets as much unbalanced, potentially biased, and potentially wrong information as the SJA is able to give. What a cure. But the defense does have a role to play in this.

It seems to me that trial defense counsel should go back to the earlier SJAR forms and create a macro document similar to that old SJAR. A tasker for the chief defense counsels at their next annual meeting. Have the paralegal go through the ROT and other documents and basically fill in the data. The CO isn’t going to read through the ROT and the SJA can’t be relied upon to tell her the good stuff. For that matter, why not start the document prior to trial. That way you can prepare for trial better. You are already working on the I-Love-Me book, and the paralegal is often working on the index, so why not go a little further. The AF has a good start with their PDS that’s prepared for court.

United States v. Cudjoe.

Before this Court, Appellant has assigned two errors: (1) the military judge erred by failing to consider dismissal of two of the three charges that he determined were unreasonably multiplicious after the case on findings; and (2) this Court should consider the unreasonable and unexplained post-trial delay in determining the sentence that should be approved under Article 66(c). We reject the first issue, and grant a small measure of sentence relief on the second.

Here’s the graveman of the case:

The evidence of all three offenses was to the effect that Appellant applied for and received a CapitalOne credit card in the name of [] a Coast Guard petty officer for whom Appellant had made an identification card in the course of his duties, and used the credit card to buy merchandise in stores. Ultimately, CapitalOne was not paid for charges in the amount of $1,148.60 on this credit card account, taking a loss of that amount.

Here’s the field test:

The Court of Appeals for the Armed Forces “ha[s] endorsed a five-part test for determining whether the Government has unreasonably multiplied charges: “(1) Did the accused object at trial that there was an unreasonable multiplication of charges and/or specifications? “(2) Is each charge and specification aimed at distinctly separate criminal acts? “(3) Does the number of charges and specifications misrepresent or exaggerate the appellant’s criminality? “(4) Does the number of charges and specifications unreasonably increase the appellant’s punitive exposure? “(5) Is there any evidence of prosecutorial overreaching or abuse in the drafting of the charges?” United States v. Pauling, 60 M.J. 91, 95 (C.A.A.F. 2004) (citing United States v. Quiroz, 55 M.J. 334, 338 (C.A.A.F. 2001)).

I think I would add (6) Did the government deliberately or unintentionally charge the greater and a lesser offense separately, to be more clear on a pretrial checklist; especially in light of Jones.

United States v. Bond. There’s a little prior history to the case not relevant to the field. In additional Judge McTague dissented. Expect to see this case certified.

The military judge erred when he denied the defense motion to dismiss Charges I and III for prior jeopardy.

An unsuspended bad-conduct discharge is an inappropriately severe punishment for the crimes of which Appellant was convicted.

Appellant’s Fifth and Sixth Amendment rights were denied when he was prohibited from recording the Article 32 investigation, and by the subsequent denial of his motion for a new Article 32 investigation.

The Government asserts in its new brief that our 16 March decision granted equitable relief, which CAAF has declared to be beyond the power of a Court of Criminal Appeals (CCA). United States v. Nerad, 69 M.J. 138, 140 (C.A.A.F. 2010). Appellant, meanwhile, continues to argue that the offenses of which he was found guilty were minor ones for which he had already been punished, and therefore the convictions should be set aside.

Here’s the graveman of the case:

Subsequently, Appellant was charged with Rape, arising from alleged conduct following a party while in THETIS’s homeport of Key West, Florida, as well as the Barbados charges. Appellant’s motion to dismiss the Barbados charges for “prior jeopardy” (Appellate Ex. XXIII) was denied.1 Following a contested trial, members found Appellant not guilty of the most serious charge of Rape, and found him guilty of only the Barbados criminal conduct for which he had already received punishment at Captain’s Mast, with a difference. Specifically, he was found guilty of the same offenses of drunkenness and indecent language, but instead of the offense of attempted indecent assault, he was found guilty of assault consummated by battery.

The bottom line:

In short, none of the offenses of which he was found guilty at trial rises above the “minor” level on the basis of the maximum sentence [and looking at the whole case rather than specific charges]. Considering all the circumstances with due regard for the lack of intent to gratify his lust or sexual desires, we view the incident, as found by the court-martial, as minor. This does not mean that trial on the three specifications was improper.

With a reference to United States v. Nerad, the court finds:

We do not think these findings of guilty should be approved. . . . In short, we believe our disapproval of the findings of guilty is within our power under Article 66, UCMJ, and Nerad. We will act accordingly.

And just to be sure:

In case our action is found to be unauthorized, we also find that a bad-conduct discharge is an inappropriately severe punishment for the offenses of which Appellant was found guilty.

A review of multiplicity in this case centers on whether the appellant’s possession of BZP is in the same act or course of conduct with her use and distribution of BZP. See United States v. Paxton, 64 M.J. 484, 490 (C.A.A.F. 2007); United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993). Possession is a lesser included offense of both use and, under the facts of this case, distribution. See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), Part IV, ¶ 37d. See also United States v. Zubko, 18 M.J. 378, 385-86 (C.A.A.F. 1984).

Thus, any time an accused is charged with both use and possession or distribution and possession of the same amount, there should be a dismissal for multiplicity.

During the providence inquiry and in the stipulation of fact, the appellant admitted the drugs she used and distributed were the same drugs she possessed. The possessions were for the sole purpose of the subsequent distributions and uses of the drug.

The writ was denied today. A straight line standard denial [thanks to CAAFLog for a copy].

1. Mr. Jensen was excused from further participation in the case at the specific affirmative consent of LTC Lakin, because he’d been “discharged.” See R.C.M. 506(c).

2. Neal Puckett formerly entered his appearance.

3. Mr. Puckett asked for a continuance because he is appearing in United States v. Wuterich, at Camp Pendleton, CA, beginning 2 November 2010.

4. Trial was continued to 14-16 December 2010.

5. The judge indicated that the defense had raised an issue with Specifications 3 and 4, Charge II, indicated that would be taken up later, and referred counsel to United States v. Jones.

6. United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010) is a recent case on multiplicity and LIO’s. A quick look at the specifications indicates that they could be the same offense charged twice and potentially multiplicious – under pre-Jones case law.