Air Force Court of Criminal Appeals
United States v. Leach. Appellant pled guilty to two A&B. He was sentenced to 10 months, RiR, and a BCD. The case is back after correction of post-trial errors. The sole issue was whether the MJ erred in admitting various recorded phone calls made by Appellant while confined in the Charleston Brig. The recordings tended to rebut his in-court statements of remorse. Finding the recordings properly authenticated, relevant, and not objectionable hearsay the findings and sentence are approved.
United States v. Dodson. Appellant pled guilty to dereliction, disobedience of an order, use of cocaine, use of MDMA, on incident of domestic violence, and extramarital conduct. He was sentenced to 10 months, RiR. There were four issues and one specified.
We are not persuaded by Appellant’s contentions that his administrative discharge from the United States Air Force violated his due process rights to a “meaningful” direct appeal, or that this court no longer retains jurisdiction over his conviction and sentence because he was administratively separated prior to our completion of review of his direct appeal.
Finding no prejudice, the court affirms the findings and sentence.
Army Court of Criminal Appeals
United States v. Garcia. The court holds that (on the facts) aggravated assault with a means likely is not an LIO of maiming.
A military judge convicted appellant of involuntary manslaughter of a child under the age of sixteen, assault with a means or force likely to produce death or grievous bodily harm on a child under the age of sixteen, and assault consummated by a battery. He was sentenced to a bad conduct discharge, confinement for six years, and reduction to the grade of E-1.
The elements test applies when deciding if there is an LIO, citing Schmuck v. United States, 489 U.S. 705, 716 (1989) (which requires an elements-test for LIOs for certainty and predictability under Fed. R. Crim. Pro. 31(c)); United States v. Hanks, 74 M.J. 556 (A. Ct. Crim. App. 2014); United States v. Riggins, 75 M.J. 78 (C.A.A.F. 2016).
The court chooses the second "test" from United States v. Gonzalez, 78 M.J. 480 (C.A.A.F. 2019) which looks to whether the "charged offense is drafted in such a manner that it alleges facts that necessarily satisfy all the elements of each offense." Because the GBH charge requires an additional element of proof it is not an LIO and the Appellant was not put on notice.
However, the court finds no prejudice under the plain error standard. The court then went on to find that an A&B was a proper LIO to be affirmed. The sentence was affirmed.
Coast Guard Court of Criminal Appeals
February 9, 2022, will be the oral argument in United States v. Tucker. There seems to be some interesting history to the case.
Navy-Marine Corps Court of Criminal Appeals
(Update: the court has just published an order withdrawing the opinion.)
United States v. Bocage. Appellant pled guilty to possessing, using, distributing, and conspiring to distribute MDMA . He was sentenced to two years and a BCD. On appeal there were two issues.
[The] punitive discharge was inappropriately severe, particularly when none of the other servicemembers investigated for illegal drug activity during the same timeframe received a punitive discharge despite engaging in similar or more egregious misconduct.
Worth the Read
Kirsten K. Davis, [Sic] It, Fix It, or Ignore It? The Rhetorical Implications of Spotlighting Another Writer's Error. Appellate Advocacy Blog, Feb.3, 2022.
MAJ Matthew L. Forst, Restoring Due Process and Strengthening Prosecutions: Making the Article 32, UCMJ, Hearing Binding. 229 MIL. L. REV. 481 (2022).
Cheers, Phil Cave
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