New from CAAF — Article 32 waiver’s and rehearings.

CAAF issued an opinion today in United States v. Von Bergen,

The granted issue was:

WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD APPELLANT’S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 2006 REHEARING.

BLUF:

We hold that the military judge erred in denying Appellant an Article 32, UCMJ, investigation. Finding no material prejudice to Appellant’s substantial rights, however, we affirm the findings and approve the sentence.

Appellant initially waived an Article 32, UCMJ, hearing, plead guilty, and was sentenced for various CP related offenses.  On appeal, CAAF set aside one of the charges and remanded.  The convening authority made changes to the charges and referred to trial.  Appellant sought an Article 32, UCMJ, hearing.

Here is a most interesting tidbit from Judge Ryan's concurrence.

I continue to doubt that affirming a conviction to a failed charge and specification of clause 3, Article 134, UCMJ, under clauses 1 or 2 of Article 134, UCMJ, as a lesser included offense based on the contents of the providency inquiry alone passes constitutional muster. See Schmuck v. United States, 489 U.S. 705, 718 (1989).
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One response to “New from CAAF — Article 32 waiver’s and rehearings.”

  1. Dreadnaught says:

    She is correct. 134(1) & (2) are not LIO of 134(3). There are just additional elements that are not submitted to the members. This is not allowed. Judge Ryan and Judge Stucky were keen on this point during oral argument in Thompson. We shall see if the CAAF addresses this issue this year.
    Prediction: they leave in place 134 (1)&(2) as LIO of last resort for an appellate court to approve when a numbered charge fails.

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