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Up Periscope -- 26 February 2021

2/26/2021

3 Comments

 
​ACCA
​

United States v. Sanchez, 80 M.J. ___ (A. Ct. Crim. App. 2021). 
“When a defendant voluntarily pleads guilty to an offense at a court-martial, he is “not simply stating that he did the discrete acts described” in the specification, but also that he is guilty of the “substantive crime” set forth in the specification. United States v. Hardy, 77 M.J. 438, 442 (C.A.A.F. 2018) (internal quotation marks omitted) (quoting United States v. Broce, 488 U.S. 563, 570 (1989)). Based on the combination of this principle and a 2016 change to Rule for Courts-Martial [R.C.M.] 907, we hold that an unconditional guilty plea waives a later claim that the pleaded to specification fails to state an offense.”
​NMCCA

United States v. McCall. In this drug case the court found IAC of a CDC and MDC for failing to seek suppression of evidence seized at his off-base residence. The other findings of guilty were affirmed as was the sentence. The defense had raised the issue mid-trial and the military judge declined to hear the oral motion as untimely.
Note, health and welfare inspections often made on base are not lawful off-base except in some very limited circumstances. See United States v. Irizarry, 72 M.J. 100, 107 (C.A.A.F. 2013). In Irizarry the court found it to be OK for command to inspect off-base quarters. The appellant’s landlord found the premises in great disarray and the appellant had not paid his rent. It seems to me that allowing off-base health and welfare inspections conflicts with the direction to commanders not to become engaged in settling personal debts because they are not civil action enforcement agents.

PENDING APPELLATE CASES

United States v. Torello. A guilty plea for video recording of a person’s genitalia and distributing the video—all without consent. The bad conduct discharge gets him an Article 66 review.

United States v. Alvarado.
Fort Bliss is in the midst of implementing a new initiative that aims at improving the strength and cohesion of the post called Operation Ironclad.

The initial focus is addressing sexual harassment and sexual assault within Fort Bliss.

This comes just a couple of months after soldier AG died on New Year’s Eve in her barracks room while an investigation into an alleged sexual assault of her was underway. 

The U.S. Army said she had reported being attacked by another soldier just over a year ago after being assigned to the 1st Armored Division and stationed at Fort Bliss. That soldier, Christian Alvarado, is now facing a court martial.
3 Comments
William Cassara
2/26/2021 11:10:22 am

So is ACCA saying one can plead guilty to something that isn't a crime?

Reply
Brian
2/26/2021 04:44:53 pm

Kinda. I think it is more accurate to say that an accused can waive relief when convicted of an offense that fails to state an offense.

Reply
Philip D. Cave link
2/27/2021 02:43:08 pm

I think Brian has the better of it.

It seems to me there is a difference between charging something that is not a crime and charging someone without compliance with the notice requirements to state all the elements of the offense.

One is not correctable, but the failed charge is subject to correction. If a motion is made for failure to state an offense the prosecution can do-it-over by referring a proper charge and adding more language of touching in addition to the "contact" and "bodily harm." Here, rather than force the government into a do-over (likely an administrative correction and a bit of time wasted) the accused's agreement relieves, effectively, the government from doing just that to get the benefit of a bargain. His providence answers also appear to clarify the lack of confusion of what it is he was charged with doing.


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