United States v. Moore, decided 28 October 2010.
Appellant alleges, inter alia, that assault with intent to commit rape is not a lesser-included offense of rape under United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) and that his conviction should be set aside. We agree, and provide relief in our decretal paragraph. Because we decide the case on the basis of this assignment of error, we do not consider appellant’s other allegations.
Also a quick note about “notice.”
I’ve posted before about CP sentencing in federal courts. Here is a piece with links at Sentencing Law & Policy which further discusses CP related sentencing in federal courts and the U. S. Sentencing Guidelines Commission.
As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts — the 2nd and 3rd Circuits — have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn’t be wrong for thinking so.
Here is a related link from SL&P. While not precisely on point I read United States v. Nerad in the context of some push back on what’s to be punished and how severely.
Trial is scheduled to begin 8 December 2010 at Fort Bragg.
The Judge has decisions pending on a suppression motion and a motion to dismiss an attempted rape charge for failure to state an offense.
As FayObserver ‘observes:’
Military.com reports:
The soldier who tried to blow the whistle on an alleged plot to kill Afghan civilians for sport has been put in solitary confinement in a windowless cell for 23 hours a day, his family said.
The father of Spc. Adam Winfield is objecting to the conditions at Joint Base Lewis-McChord south of Seattle, and wants the soldier moved to a different facility.
Some years ago LCDR Walter Fitzpatrick was prosecuted and convicted at court-martial and later retired. After that he began a website called JAGHunter. Initially he used the site to lambast any of the Navy JAG’s involved in his case along with his commanders. Over the years there have been other oddities from the retired LCDR. He became involved in the birther movement. The retired LCDR has been vocal in his support of LTC Lakin. And more recently he was arrested and being prosecuted because he wanted to arrest some public officials for actions he didn’t like.
Fitzpatrick was arrested in April after he interrupted a closed door grand jury hearing in an attempt to make a citizens arrest of jury foreman Gary Pettway. Fitzpatrick felt Pettway and the jury was illegally blocking his attempts to indict President Obama.
Fitzpatrick has said he believes Obama is not an American citizen and is serving illegally as president.
United States v. Pippins, is a reminder that when a person possesses drug for a persons own use and/or distribution, the possession is an LIO of the use or the distribution.
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.
Here is a link to the 29 September 2010, JAGINST 5813.1B, Standardization of General Courts-Martial and Special Courts-Martial Verbatim and Summarized Records of Trial.
Thanks to LawProfsBlog here is a link to an interesting article:
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
For all of the criticisms of military justice and the UCMJ, you don’t have this at court-martial as tipped by Sentencing Law & Policy blog.
Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness. In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge. Cargill accidentally saw the probation officer’s recommendation for his client. The report was "misleading and inaccurate," Cargill wrote in a protest letter. (Emphasis added.)
Here is a link to the full article in the Roanoke (VA) Times.
World Net Daily quotes Neal Puckett as follows:
He confirmed to WND that there will be new directions for the defense, but could not elaborate.
"All I can really say is the case is going to be handled differently from here on out," he said.
Court-Martial Trial Practice Blog