What happens if any enlisted person is reduced at court-martial, or an officer who faces a grade-determination consideration, for conduct as far back as late 2000, and later retires?
10 U. S. Code 1407 sets it out for us.
(f) Exception for Enlisted Members Reduced in Grade and Officers Who Do Not Serve Satisfactorily in Highest Grade Held.—
I'm blogging about the presentation given yesterday at the 39th (VA) Annual Criminal Law Seminar. The most important point I learned is that military justice practitioners, myself included, are not necessarily competent to advise a client properly on immigration consequences of a conviction. This of course doesn't matter too much if it's a not guilty plea case all the way. The potential consequences do become relevant in a guilty plea case. Why should military lawyers care, other than a professional need and requirement to give good advice. Two C.A.A.F cases: United States v. Miller and Denedo, and the recent AFCCA decision in United States v. Rose.
Background.
While the appellant in Miller didn't get any relief, the burden has been placed on trial defense counsel and the military judge to ensure an accused is properly informed of sex offender issues when pleading guilty. See United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006). Besides raising IAC against his appellate counsel, Miller raised a Grosty issue post-NMCCA decision that his guilty plea was involuntary for IAC, because his trial defense counsel failed to tell him about sex offender registration.
Do you have clients who want to know about search warrants or authorizations, and do you want information and access? Well of course. Here's an interesting case which raises the issue of access to search warrant materials pre-indictment under the Fourth Amendment — or in the military pre-preferral. If the premise of the case is correct, then NCIS, OSI, CID, CGIS, or the SJA can't just gaff you off when you ask for the search authorization materials prior to preferral. A writ of mandamus would seem to be in order.
In re Searches & Seizures, 2008 U.S. Dist. LEXIS 107087 (E.D. Cal. December 19, 2008).
Note, there is no "sealing" of pre-indictment documents in the military as there is in federal district court.
As noted earlier, the Smith Amendment was changed recently. An astute reader has provided a new name for us — the commenter refers now to the "Bond Amendment." Instead of the old Smith Amendment at 10 U.S. Code 986, the new law on security clearances for persons sentenced to confinement or certain punitive discharges is at 50 U.S.C. 435b, Section 3002, Pub. L. 108-375, §1062, 118 Stat. 2056. For quick comparison here are the two as suggested by Mr.Henderson.
The Smith Amendment, 10 U. S. Code 986prohibited only DoD from granting or continuing security clearances for:
United States v. David, ACM S31478 (A.F. Ct. Crim. App. 10 February 2009), is of interest on the question(s) of when a military judge should recuse him or herself from a case. Here the military judge disclosed, in a naked urinalysis-cocaine case, close family member was a drug addict.
The issue was raised as a Grosty. While not a law review discussion of MJ recusal issues, it's worth reading for the reminder on the basics. Perhaps the trial defense counsel thought the MJ might be more sympathetic in some way so did not make a challenge, that could be a reasonable strategy.
If you are like me you are doing a lot of BAH fraud cases right now, especially for recalled or activated Guard and Reserve personnel. The AFCCA has issued an opinion about mistake and instructions in the fraud type case.
United States v. Armstrong, ACM 37130 (A.F. Ct. Crim. App. 10 February 2009).
In Armstrong the MJ gave a mistake of fact instruction on two offenses (and appellant was acquitted on those two offenses), but declined the instruction on a third allegation. The AFCCA found harmful error and reversed.
Prof. Peter Tillers, How Distinctive Must a Modus Operandi Be to Serve as a "Signature"? Tillers on Evidence and Inference, 13 February 2009.
Military Rule of Evidence 404(b), United States v. Huddleston, 485 U.S. 681 (1988), are at the heart of Prof. Tillers' critique. In his view the rules requiring more than just happenstance are being corroded as to become meaningless.
Some snippets from cases released to LEXIS.
Plain view.
The NMCCA has heard oral argument and has a case pending which challenges the constitutionality of the "new" Article 120, UCMJ. All the other Service CCA's or MJ's to consider this issue have found the statute constitutional. The MJ's have taken varying approaches in the court-room though. One MJ I had ended up basically using the "old" BB instruction for a sexual assault case, another believed that if the defense showed consent by a preponderance the Members must acquit (this case got dismissed just before trial, and before I had a chance to change forum to MJA. We had lots of consent evidence.).
LT Keith B. Lofland, JAGC, USN, Article, Essay, & Note: The Neglected Debate Over Sexual Assault Policy in the Department of Defense, 55 Naval L. Rev. 311 (2008) is of interest and is online, at the NJS website.
Volume 56 seems to be out, but I can't seem to access it — anyone?
As I sit in the VA crim law CLE we have an hour on immigration issues and convictions. The VA crim law Bar considers the consequnce of conviction to be a “very important” aspect of criminal law practice. And other consequences seem just as important.
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Court-Martial Trial Practice Blog
