He had been convicted and sentenced to 14 years of confinement.

We raised many issues during his appeal. The Army Court found a serious error by the military judge in denying the defense presenting evidence of other sexual acts of the alleged victim. This issue usually comes up in a Military Rule of Evidence 412 motion. Here, the military judge botched it.

Basically the rule prohibits witnesses or cross-examination about prior sexual behavior of the alleged victim. However, there are exceptions: (1) the evidence shows someone else did it or caused physical injuries. For example, consensual sex–any sexual penetration–can cause physical injury to the vagina, so the alleged victim having had sex with another person the day before the alleged assault could be admissible as an exception; (2) because the conduct is what is called res gestae (all part of the same acts or events); (3) when the Constitution requires it. For example, to present evidence of mistake of fact as to consent, or significant attacks on the credibility of the alleged victim. As military defense lawyers, we have a lot of experience litigating these issues and also have experts who can assist in presenting the case.

The Army court touched on other issues in connection with how the prosecutor and special victim’s counsel conducted the case.

Because the error was so prejudicial, the charges have been dismissed. The next step is whether the prosecution will appeal or whether there will be a new trial.

Retrials are difficult. As military defense counsel, we have done retrials. All the prior discovery, evidence, and witnesses have to be gathered up so that both sides can prepare for trial. Because retrials are difficult, the Army has created a specialized organization at Fort Leavenworth to work on these cases.

In United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006), CAAF decided prospectively that defense counsel must advise a client about the DoD sexual offender registration requirements when negotiating a PTA.

The question is how detailed must the advice be and what about additional state law requirements. There any number of offenses not listed in the current version of DODI 1325.7 where states now require registration.

In Jones the defense counsel submitted an affidavit admitting less than detailed advice on Alabama registration requirements. There was plenty of advice about SOR all over the record. But,

However, the appellant did not have an in depth understanding, specific to Alabama law, which begets additional analysis to ensure the providency of the plea. See generally United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008).

NMCCA at least for the moment will not extend Miller to require specific detailed advice about a particular state SOR law.

The record reveals that the appellant was properly advised per Miller. When he made more specific inquiries regarding his intended future state of residence, he was advised to consult local counsel. This point was captured in his pretrial agreement and twice discussed at his court-martial, where the appellant proceeded with his plea and expressed satisfaction with counsel and their advice.

Keep in mind that if you decide to advise about Alabama, or any other state, it better be right.

Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection

Stephanos Bibas, University of Pennsylvania Law School, U of Penn Law School, Public Law Research Paper No. 10-33, California Law Review, Vol. 99, Forthcoming

Abstract:
Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.

For court-martials under the UCMJ, think United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006)(sex offender registration) and Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), aff’d and remanded, United States v. Denedo, 129 S. Ct. 2213, 2224 (2009)(immigration consquences). For further information about Denedo here is my post after the March 2010 action by NMCCA, and here is the denial of a grant by CAAF in September 2010. Sadly, Denedo lost his challenge at CAAF because his appellate defense counsel missed the filing deadline. So an appellate case that – Denedo alleges — began with trial defense counsel IAC ends with his appellate defense counsel missing a filing deadline.

In support of the motion for leave to file writ-appeal petition out of time, Denedo’s counsel explained that he “erroneously believed that this case was governed by Rule 19(a)(1)(B),” which provides sixty days from the date of the decision at the CCA for filing a petition for review with this court. [this is not good cause to waive the deadline] Accordingly, it is ordered that Appellant’s motion for leave to file a writ-appeal petition out of time is hereby denied[.]

To police Chief Ed Nathanson, it doesn’t matter where you’ve been convicted as a sex offender or predator. It only matters that you’ve been convicted. So, if you are convicted out of state or in a court martial, your conviction still counts in Lady Lake, and you have to register as a sex offender or predator with the police department. “I don’t want any gray area,” Nathanson said on Tuesday. “It’ll help us keep individuals like this out of our area.” The impetus for the change in the local law was a sex offender who was court-martialed and convicted and wanted to live in Lady Lake without registering, Nathanson said.

This is not an unusual situation out there.

United States v. Parker and Woodruff

In these consolidated appeals, the Government challenged the district court’s orders dismissing its 18 U.S.C. § 4248 (2006) petitions for civil commitment of Lonnie Parker and James Woodruff, who were both convicted of various sex offenses and sentenced in military court-martial proceedings, but are currently housed within a Bureau of Prisons facility. The district court dismissed the Government’s petitions because it found that “§ 4248 does not apply to military prisoners [since] they are not `in the custody of the Bureau of Prisons’ pursuant to 18 U.S.C. § 4248(a).” In so holding, the district court relied on its order in a related case, United States v. Joshua, No. 5:09-hc-02035-BR (E.D.N.C. Jan. 13, 2010), which was recently affirmed by this court. See United States v. Joshua, 607 F.3d 379 (4th Cir. 2010) (holding that an individual convicted and sentenced by United States Army court-martial but housed within a facility operated by the Bureau of Prisons is not “in the custody of the Bureau of Prisons” under § 4248(a)). The Government concedes that these appeals present the same issue addressed in, and that the disposition of the appeals is controlled by Joshua.

Because we agree that Joshua controls the outcome of these appeals, we affirm the district court’s orders dismissing the Government’s petitions.

Long term prisoners at the USDB can end up in a federal prison near their family. There are various ways this can happen, sometimes at the prisoners request. See Para. 6.15, DODI 1325.7, Adminstration of Military Correctional Facilities and Clemency and Parole Authority.

Prisoners with approved sentences to confinement may be transferred to Federal Bureau of Prisons (FBOP) facilities with the concurrence or by direction of the appropriate Secretary of a Military Department or designee. Authority to transfer prisoners to the FBOP confers no right on prisoners to request transfer. 6.15.3. A prisoner’s desire to be or not to be transferred to a Federal institution need not be considered in making the transfer decision.

However, the above case illustrates a potential issue if the person is a sex offender. Right now the Fourth Circuit holds that military prisoners in federal prisons are not subject to civil commitment based on United States v. Joshua. That could change, and that holding is only applicable so far within the Fourth Circuit.

In Padilla v. Kentucky, the Supreme Court decided that the Sixth Amendment’s guarantee of the effective assistance of legal counsel requires that counsel inform his client whether his guilty plea in a criminal case carries a risk of deportation. The Court’s decision significantly expands the reach of the traditional Sixth Amendment constitutional protection afforded criminal defendants via the long-established rule of Strickland v. Washington, and, concomitantly, significantly alters the landscape of what courts will consider to be adequate representation in criminal proceedings. The precise contours of the right, thus expanded, will be left to the vagaries of the common law in both state and federal court to map out. This short article will discuss Padilla and some of its forebears and foreshadowings. As will be seen, the Supreme Court has again left prosecutors, defense counsel, and judges with a somewhat muddy decision that leaves the hard work for later, and for others…

In light of the discussion ongoing about Denedo’s end, I thought this might be an interesting read.

In light of Denedo and Padilla, defense counsel representing first term enlisted personnel at court-martial need to add “citizenship” to the check-list; along with, since Miller, sex offender registration if the charges relate to pornography or sex.

A doctor who is being expelled from the Navy was charged by Kitsap County prosecutors Thursday with failing to register as a sex offender, according to attorneys familiar with the case. State law requires people convicted of certain sex crimes to register as sex offenders within three days of arriving in a new state. But Velasquez, who arrived in Kitsap County in early July, was convicted in a court martial at Yokosuka Naval Base in Japan and it was unclear at first if his conviction required registration, lawyers involved in the case say. The lieutenant commander pleaded guilty to two counts of wrongful sexual contact with patients and two counts of conduct unbecoming an officer in May, serving seven days in a Yokosuka brig, according to Stars and Stripes newspaper. He was sentenced to two years in prison, a $28,000 fine and forfeiture of all pay and allowances, but those punishments will be waived if he doesn’t commit a crime in the next year, the publication said.

Methinks he is in danger of some part of his confinement being vacated? This is a case which gained some notoriety because of the sentence and publically upset victims. Here is a link to my earlier post on this court-martial in May 2010.

On appeal, Eyster argues that the District Court erred by increasing his criminal history from Category II to Category V, because his 1988 conviction under the UCMJ was not a qualifying prior “sex offense conviction” as defined by § 4B1.5.. . . The Government concedes, and we agree, that Eyster’s 1988 conviction under the UCMJ was not a qualifying “sex offense conviction” for purposes of § 4B1.5. Therefore, Eyster’s advisory Guidelines range should have been calculated using criminal history Category II, not Category V. This was error[.]As explained, however, the applicable Guidelines range was the same—360 to 840 months—under either criminal history Category. Because this mistake did not result in the calculation of an incorrect Guidelines range, we conclude that it did not affect Eyster’s substantial rights.

It appears this would be related to United States v. Eyster, NMCM 88 1339, 1988 CMR LEXIS 761 (N-M C.M.R. October 27, 1988). The court affirmed the conviction in a straight-legal review. There does not appear to have been a petition to CAAF.

Christopher Martin Jones appeals from his sentence imposed following his conviction for possessing a firearm as a convicted felon. On appeal, Jones argues that the district court erroneously found that his 1992 conviction by a special court-martial for sodomy, in violation of United States Military Justice (“UCMJ”) Article 125, 10 U.S.C. § 925, constitutes a sex offense that requires registration under the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et. seq. (“SORNA”). Accordingly, he argues, the court abused its discretion in ordering that he register as a sex offender under SORNA as a special condition of his supervised release (special condition 5). In addition, Jones also argues that the court abused its discretion in imposing special conditions 2, 3, 4, 6, and 7 of his supervised release, which are targeted toward preventing future sexual misconduct. Relying on 18 U.S.C. § 3583(d), Jones contends that, in light of the fact that his criminal history includes only one conviction for a sex offense, and this offense occurred in 1992, these special conditions are not reasonably related to the sentencing goals set forth in 18 U.S.C. § 3553(a). For the reasons set forth below, we vacate and remand. A federal grand jury indicted Jones for possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jones ultimately pled guilty to the offense. In preparing the presentence investigation report (“PSI”), the probation officer reported that, in 1992, Jones was convicted by a special court-martial for the military offenses of sodomy and indecent acts. An investigation had revealed that Jones engaged in sexual activity with a 16-year-old girl. At the time that he and the 16-year-old engaged in sexual activity, they were in the presence of a 15-year-old girl. Jones had provided the minor girls with alcohol. Regarding Jones’s conviction for indecent acts, the probation officer reported that military records specified that this conviction was based on the fact that Jones had committed sodomy with a 16-year-old female while in the presence of a 15-year-old female. Here, the district court failed to expressly address the parties’ arguments regarding whether Jones’s sodomy conviction is a military offense that requires SORNA registration. Instead, the court summarily stated that it was “satisfied that [Jones] is required to register as a sex offender,” and did not support this conclusion with factual findings or a legal analysis. As a result, it is impossible to discern the legal and factual basis for the court’s decision to require that Jones register as a sex offender. Moreover, as explained below, the record does not conclusively demonstrate whether the court’s SORNA ruling was correct.

Our clients convicted of child pornography offenses and certain other offenses in which the internet is case related are restricted in computer access post-release. I mention Quon because of an interesting comment at Sentencing Law & Policy.

I recently had to deal with the Federal Probation Service and the Air Force Clemency & Parole Board about a former now paroled client alleged to have improperly used computers to search for employment. Employment is necessary for parole, and most state funded employment offices, and many employers require applicants to use computers to search for a job or to apply for a job. We resolved the case in the client’s favor and parole was not revoked. The parole and FPS rules do allow computer use in limited circumstances related to seeking employment. The rules are bureaucratic and subject to misunderstanding. Basically the rules require a new “permission” to use a computer each time. So going to Home Depot in the AM and Lowes in the PM requires two permissions. So, here is the SL&P comment on an aspect of Quon.

Though Quon will be of greatest interest to those involved in traditional debates over privacy and police-practices, the opinion for the Court by Justice Kennedy has this notable flourish that could have some broader impact: Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. Relatedly, in a rich and spot-on solo concurrence that takes a variety of swipes at the majority, Justice Scalia concludes by lamenting the legal challenge presented if and when the Court embraces a legal ruling “that requires evaluating whether a given gadget is a necessary instrument for self-expression, even self-identification.” So, what does this have to do with sentencing law and policy in general or sex offender restrictions in particular? Well, I do not think it is much of a stretch for persons to contend in these modern technological times that access to the internet (and maybe even access to a Facebook or Twitter account) is now “essential means or necessary instruments for self-expression, even self-identification.” But, as regular readers know, a fair number of sex offenders these days are facing release conditions that fully or at least significantly restrict their rights to access the internet and/or social networking websites. I suspect that this line from Quon might find its way into a few effort in lower courts to strike down limits placed on some offenders’ use of modern means of digital communication.

CAAF has previously decided some cases about post-release restrictions on military prisoners, but none on this specific restriction. I doubt CAAF would decide an issue of post-release restrictions on the use of computers or the internet. See e.g. United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)(review of post-trial confinement and release conditions on direct appeal is limited to the impact of such conditions on the findings and the sentence. . . . As a general matter, the collateral administrative consequences of a sentence, such as early release programs, do not constitute punishment for purposes of the criminal law.).

A federal appeals panel says sex offenders convicted in military court but housed by the Bureau of Prisons are not eligible for civil commitment. A three-judge panel of the 4th U.S. Circuit Court of Appeals issued the ruling Monday in the case of former Army officer Benjamin Barnard Joshua, who pleaded guilty in military court to sexually molesting children. He was transferred to a federal penitentiary because of military prison downsizing. Eight days before his scheduled release, the attorney general petitioned for civil commitment under a 2006 law that allows indefinite detention of “sexually dangerous” inmates in the custody of the Bureau of Prisons. The appeals court upheld a judge’s ruling that despite being physically housed by the Bureau of Prisons, Joshua remained in military custody and therefore was not subject to civil commitment.

The statements of the appellant’s civilian defense counsel clearly attempt to minimize the seriousness of the indecent assault charges and assure the appellant that he would not have to register as a sex offender. In his testimony at the DuBay hearing, Mr. NC, the appellant’s civilian defense counsel, repeatedly used such phrases as “fairly innocuous” and “just foolery” to describe the sexual assault offenses. Mr. NC claimed lack of memory on many points but, in response to questions from the military judge, did recall concluding that sex offender registration was “not really a credible concern.” Consistent with this testimony, the appellant testified that when he directly asked Mr. NC if sex offender registration would be required Mr. NC told him: “I don’t see why it would be with the allegations that were brought against you. I don’t see why that would be a registerable offense.”

Bottom line it appears AFCCA believes the defense counsel considered the statements as “affirmative misrepresentations . . . concerning significant collateral consequences.” Slip op. at 5. Rose was tried in 2005.

The effect of Padilla v. Kentucky is that counsel have at least three choices when asked about sex offender registration: say nothing, say “I don’t know, you need to ask a lawyer,” give correct or reasonably correct advice. As I’ve posted before, the various states and federal rules on SOR are differing and complex. However, reference to the DoD regulation may be sufficient. See United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006).

Given the plethora of sexual offender registration laws enacted in each state, it is not necessary for trial defense counsel to become knowledgeable about the sex offender registration statutes of every state. However, we do expect trial defense counsel to be aware of the federal statute addressing mandatory reporting and registration for those who are convicted of offenses within the scope of this statute. 28 Also, we expect counsel to be aware of DoD Instr. 1325.7, which identifies offenses that trigger mandatory sex offender reporting. The operation of this statute and instruction may have an impact on an accused’s decisions both before and at trial, and on an accused’s legal obligations after conviction.

63 M.J. at 459.

It’s a pretty sure reality that a sexual assault allegation is going to be a registration offense – for how long and under what terms is going to vary. I would suspect the brooding omnipresence of registration is what’s driving an increase in NG pleas, contested cases, and potentially a lot more acquittals.

Here is the DoD regulation, DODI 1325.7 — see Enclosure 27.

Here is an excellent article, MAJ Andrew D. Flor, Sex Offender Registration Laws and the Uniform Code of Military Justice: A Primer, 2009 ARMY LAW., 1.

As to Berghuis v. Thompkins, Kent Scheidegger of crimeandconsequences blog says:

The Miranda rule remains intact in that the police must warn suspects of their rights and that an invocation of those rights by the suspect requires the police to stop questioning. Today’s decision involves what is needed to establish whether a suspect invoked or waived his rights. To invoke the right to remain silent such that the police must stop, the suspect must say so expressly and unambiguously. On the other hand, a waiver of rights may be inferred from the facts that the suspect received the warnings, understood his rights, and responded to questions anyway.

The Wall Street Journal Law Blog notes:

The 5-4 ruling fell on predictable lines, with Chief Justice Roberts and Justices Scalia, Alito and Thomas joining Justice Kennedy’s majority opinion. Justice Sotomayor wrote a dissent, which was joined by Justices Ginsburg, Breyer and Stevens.

The opinion effectively aligns the exercise of the two rights – silence and counsel – into an unambiguous request. See Davis v. United States, as to the requirement to unambiguously request counsel.

As to Carr v. United States, SCOTUSBlog summarizes that:

The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

This case has potential impact for military appellate counsel and their clients whose cases are still on appeal. A SORNA conviction presumably could result in additional court-martial action against an appellant on appellate leave pending completion of appellate review. Also, those whose cases are final but are released on parole or supervised release may be affected.

The Court instead accepts Carr’s interpretation that the statute does not impose liability unless a person, after becoming subject to SORNA’s registration requirements, travelsacross state lines and then fails to register.

Carr, Slip Op. at 1.

You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following: Gives jurisdictions discretion to exempt juvenile offenders from public website posting Provides information concerning the review process for determining that jurisdictions have substantially implemented Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting Requires jurisdictions to have sex offenders report international travel 21 days in advance Clarifies mechanism for interjurisdictional information sharing and tracking.

(update) Here is a link to the 14 May 2010 entry in the Federal Register.

On February 5, 2000, Williams pled guilty in a military tribunal to one specification of carnal knowledge under Article 120 of the Uniform Code of Military Justice (“UCMJ”), and one specification of sodomy with a child under the age of 16 in violation of Article 125 of the UCMJ. No law — Missouri, federal, or military — required Williams to register as a sex offender at the time of his convictions.

However, with the passage of SORNA to police went out and required registration. But,

The Missouri Supreme Court subsequently decided Doe v. Blunt, 225 S.W.3d 421 (Mo. banc 2007). Blunt held that SORA violated Missouri’s ban on retrospective laws to the extent that it required persons to register for offenses that occurred before such offenses were added to SORA’s registration requirements. Respondents filed a motion to dismiss Williams’s Petition and argued that federal law, the Sexual Offender Registration and Notification Act (“SORNA”), 42 U.S.C. sections 16911-16917, nonetheless required Williams to register as a sex offender in Missouri. Because Williams qualified as a sex offender under the UCMJ, Respondents asserted that SORNA imposed an independent federal obligation upon Williams to register in the jurisdiction where he resides. Since federal law required Williams to register, Respondents argued that Missouri law, section 589.401.1(5), required him to register as well. SORNA, however, specifically exempts certain conduct from its definition of a sex offense. 42 U.S.C. section 16911(5)(C) states: Offenses involving consensual sexual conduct An offense involving consensual sexual conduct is not a sex offense for the purposes of this subchapter [. . .] if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.

The judgment of the trial court is reversed and remanded. On remand, the trial court is directed to enter its finding that Williams is exempt from registering under SORNA pursuant to 42 U.S.C. section 16911(5)(C). The trial court is further directed to order Respondents to destroy records related to Williams’s sex offender registration.

My story started last summer when we got back from Iraq. My best friend and I went to a night club and long story short I had sex with a woman. This woman was a female soldier and ended up being late to work the next morning. I was on leave at the time, so I didn’t have to go too work. She accused me of raping her, because she was going to show up to work drunk and late.

. . . the charges are being dropped . . .

It wasn’t over for me yet though. My lawyer called my unit and said he needed to speak with me to tell me all the details. As I walked into his office he was screaming at someone on the phone. He was actually yelling expletives into the phone, I was told to wait outside. As I was ushered into the office he told me to sit down and started reading her statement. In a nutshell it basically said, “I was late and I didn’t think IT was going to be a big deal” (meaning, “it would not be a big deal if I said he raped me so I wouldn’t get in trouble”). Not a fucking big deal? I felt like ripping shit apart, not a fucking big deal? You nearly ruined my entire fucking life. I drink all the fucking time, habitually now, I can’t bring myself to even talk to women, I fear them. I am a complete and total shut-in, I don’t even go out anymore. I just sit in my room drinking and listening to music and playing fucking World of Warcraft. The leadership in my platoon wants me to get out ASAP because I show up in the morning hungover and smelling like an open bar. He went on to explain that he was screaming into the phone because even after that statement CID wanted to pursue charges of aggravated sexual assault.

This weekend’s must-read comes via this link at SSRN to a new piece by Margaret Colgate Love and Gabriel Chin concerning the Supreme Court’s important decision late last month in Padilla v. Kentucky. “Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction.” Here is the abstract: In Padilla v. Kentucky, 559 U.S. (March 31, 2010), the Supreme Court broke new ground in holding in a 7-2 decision that a criminal defense lawyer had failed to provide his noncitizen client effective assistance of counsel when he did not tell him that he was almost certain to be deported if he plead guilty. It is the first time that the Court has applied the 1984 Strickland v. Washington standard to a lawyer’s failure to advise the client about a “collateral” consequence of conviction – something other than imprisonment, fine, probation and the like, that the court imposes at sentencing. While Padilla’s implications for cases involving deportation are clear, it may also require lawyers to consider many other legal implications of the plea.

Within the military we have seen this issue applied to sex offender registration.

The Padilla decision clearly governs cases where a noncitizen is threatened with deportation on the basis of conviction. But if that were all, it would not “mark a major upheaval in Sixth Amendment law,” as the concurring Justices warned. While Padilla’s effects will be felt most immediately in the tens of thousands of criminal cases involving noncitizen defendants, defense lawyers must now concern themselves more generally with the broader legal effects of a criminal conviction on their clients. The systemic impact of this new obligation cannot be underestimated. Padilla may turn out to be the most important right to counsel case since Gideon, and the “Padilla advisory” may become as familiar a fixture of a criminal case as the Miranda warning.

Essentially the court finds that even if there were IAC, petitioner has not established prejudice.

Back to CAAF?

As it stands, the case represents a good discussion of defense counsels obligations regarding advice to the client regarding collateral consequences. I find this interesting in light of CAAF’s apparent mandate from United States v. Miller to discuss sex offender registration issues with the client. Except for Miller, I don’t see that the law does not require a defense counsel to discuss collateral consequences with the client. However, if she does then she’s got to get it right.

How can Denedo be squared with Miller?

There is no need to look further than the first prong of the Polk analysis above to determine that Appellant did not receive ineffective assistance of trial defense counsel. Although the requirement of registering as a sex offender is a serious consequence of a conviction, trial defense counsel’s failure to advise Appellant of this consequence does not rise to the level of ineffective assistance of counsel.

United States v. Miller, 63 M.J. 452, 457 (C.A.A.F. 2006).

However, later the court imposes this requirement of defense counsel and the military judge.

In light of the federal statute, DoD Instr. 1325.7, and state statutes requiring sex offender registration, we conclude that a prospective rule is appropriate to address the importance of trial defense counsel explaining the sex offender registration requirement to an accused. For all cases tried later than ninety days after the date of this opinion, trial defense counsel should inform an accused prior to trial as to any charged offense listed on the DoD Instr. 1325.7 Enclosure 27: Listing Of Offenses Requiring Sex Offender Processing. Trial defense counsel should also state on the record of the court-martial that counsel has complied with this advice requirement. While failure to so advise an accused is not per se ineffective assistance of counsel, it will be one circumstance this Court will carefully consider in evaluating allegations of ineffective assistance of counsel.

Miller, 63 M.J. at 459.

I have commented some time ago about the number of foreign nationals enlisted into the military, are not the consequences of a conviction of strong importance to them if it entails the possibility of removal? Will CAAF impose a new requirement in such a case, in same way this was done in Miller? If not, why not?

Department of Homeland Security (DHS) Secretary Janet Napolitano commemorated the milestone of more than 52,000 American military service members becoming U.S. citizens since Sept. 11, 2001.

Homeland Security release, 10 September 2009, Speech of Secretary Gates, Fort Bragg, 23 October 2008,

Distinguished guests, and the families of our new citizens, thank you all for coming. It is a pleasure to be at Fort Bragg. And what an honor to be able to welcome into citizenship 41 men and women who have served and sacrificed for their country even before it officially was their country.

and prior posts here, here, and here.

Williams v. Superior Court of San Diego, D055457 (10 March 2010).

Not going too far, how about you?

Meanwhile – – –

A Robins Air Force Base master sergeant was dishonorably discharged and sentenced to 50 years in prison after he was found guilty of engaging in sexual contact with several minors, according to The Robins Rev-Up, the Robins Air Force Base installation newspaper.

(Macon) Sun News reports. And here is a link to Rev-Up Military Justice Actions. There is also an item about Air Force high-year tenure changes which can be relevant to UCMJ actions.

A U.S. Air Force officer has admitted to beating a gay man outside a Manhattan bar, and lost his rank for his role in the incident. . . Ford, a Bronze Star medal recipient, lost a month’s pay and his rank, the story said. (I think they mean non-commissioned officer.)

Edge reports.

Lawyers for a Navy senior chief implicated in a hazing scandal in Bahrain say he’s been smeared by “scurrilous allegations” and are mounting a vigorous defense in hopes that he can retire at full pay. . . A three-member board convened Thursday to consider the retirement of Michael Toussaint, a master-at-arms who served as kennel master of the military working-dog unit in Bahrain from 2004 to 2006.

Kate Wiltrout, Pilot Online reports.

A Fort Bragg soldier charged with burglary and sexual assault tried to get mental counseling after returning from Iraq but was turned down, his family members said Thursday. . . Spc. Aaron Michael Pernell, 22, was charged Monday in two burglaries and a sexual assault that occurred in December in the Ste. Mere Eglise neighborhood on post. . . The Army plans to conduct an Article 32 hearing, which is the military equivalent of a probable-cause hearing, in the next week to determine whether a court-martial is warranted, Fickel said.

WRAL.com reports. The article also has links to a number of other pieces about this case.

Despite assurances by military public affairs officers that the Army would work with Spc. Hutchinson and her attorneys to resolve the matter administratively, rather than through the criminal process, charges of missing movement, AWOL, dereliction of duty, and insubordinate conduct were filed on January 13th.

IndyBay.org reports.

SPC, 11th Engineer Battalion, convicted at special court-martial of two specifications of absence without leave and two specifications of wrongful use of a controlled substance. A military judge sentenced him to confinement for 135 days, and a bad-conduct discharge. SPC, 3rd Heavy Brigade Combat Team, convicted at a special court-martial of three specifications of assault. A military judge reduced him in pay to E-2 and two months confinement.

The Bayonet reports.

Stolen Valor Update.

The federal courts are wrestling with a question of both liberty and patriotism: Does the First Amendment right to free speech protect people who lie about being war heroes? At issue is a three-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory. Attorneys in Colorado and California are challenging the law on behalf of two men charged, saying the First Amendment protects almost all speech that doesn’t hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.

AJC and SeattlePI report. It seems to me there are four types of individuals who steal valor: the active, Reserve, or NG person, the civilian or former member who uses their “valor” to get something for free, the person who gets something but it’s hard to quantify, and the pure braggart. The military person can be dealt with under the UCMJ, the fraud for profit can be prosecuted for the fraud, and the other two can be cut and sent to Coventry.

The Disrespectful Rapper.

In my previous post, I talked about how the Army plans to Extradite to the sovereign nation of Iraq a Stop Loss Rappin Soldier to get him away from U.S. Public Scrutiny Well readers if you agree with this, then what next sending American Soldiers to the United Nations to find other countries to court martial our troops outside the borders of the United States so the Pentagon is not embarrassed?

Robert L. Hanafin, Veterans Today comments. An odd perspective.

Collateral effects.

The Michigan Court of Appeals has ruled that homeless sex criminals don’t have to comply with Michigan’s Sex Offender Registry Act. Many law enforcement officials — who often have to deal with sex offenders who claim they have no permanent residence — aren’t happy with the ruling. – – – – – – A Third Circuit panel has again struck down as substantively unreasonable a supervised release condition putting a lifetime limit on internet use. United States v. Miller, No. 08-4278 (3d Cir. Feb. 5, 2010).

Sentencing Law & Policy hat tips.

[Update] A Marine captain awaiting a court-martial for defrauding the government was found dead from an apparent suicide Sunday in the Marine Corps Base Quantico, Va., brig, base officials said.

Marine Corps Times reports. I have commented before about the attention given to increases in the military suicide rate, and that I believe there is an uptick in suicides related to courts-martial.