Court-Martial Trial Practice Blog

Conviction at CM can qualify under the ACCA

June 4, 2014 | The Law Office of Philip D. Cave

Do I have a felony is a frequent question to which the answer is – maybe. Of course the questioner is interested in the collateral effect of a special or general court-martial conviction. This becomes particularly important if you continue to commit crimes after release from the brig and the military.

Are courts-martial courts under the Armed Career Career Criminal Act – yes says The Fourth, as do The Ninth and The Seventh.

Pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and section 4B1.4 of the Guidelines, an individual who violates § 922(g) and has “three previous convictions by any court referred to in section 922(g)(1) . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another” qualifies as an armed career criminal. 18 U.S.C. § 924(e)(1) (emphasis added).

The Bergdahl Affair? ils accusent

June 2, 2014 | The Law Office of Philip D. Cave

Did he go AWOL?

In June 2012, Michael Hastings (of GEN McCrystal “fame”) appears to have made that suggestion in a lengthy piece published by Rolling Stone.

The mother and father sit at the kitchen table in their Idaho farmhouse, watching their son on YouTube plead for his life. The Taliban captured 26-year-old Bowe Bergdahl almost three years ago, on June 30th, 2009, and since that day, his parents, Jani and Bob, have had no contact with him. Like the rest of the world, their lone glimpses of Bowe – the only American prisoner of war left in either Iraq or Afghanistan – have come through a series of propaganda videos, filmed while he’s been in captivity.

A broader definition of CP?

May 31, 2014 | The Law Office of Philip D. Cave

In United States v. Blouin, ARMY 20101135 (A. Ct. Crim. App. 28 May 2014), the court has, in my view, taken a broader view of what qualifies as CP for the purpose of a guilty plea. However, the court is not taking an unknown or unvisited trail.

Blouin was charged with possessing CP in violation of 18 U.S. Code Sec. 2256(8), to which at trial he plead guilty.

As is common in these type of cases, the prosecution threw up a whole bunch of alleged (173 to be exact) CP images, without really understanding what they were doing. And they compounded this with offering 12 images as a “sample.” This caused the military judge to reopen providency, because he found only three of the images were likely CP.

Grostefon issues win – sometimes – sort of

May 31, 2014 | The Law Office of Philip D. Cave

In United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and United States v. Quigley, 35 M.J. 345 (C.M.A. 1992), the court set out a procedure to follow when an Appellant wants to raise and issue, but appellate counsel do not think it has merit for briefing.

During my time as deputy director at Navy Appellate Defense we did an informal study of Grostefon issues and found that the appellate court would from time to time find error and sometimes grant meaningful relief.

So when you begin reading United States v. McIntosh, ARMY 20120780 (A. Ct. Crim. App. 29 ay 2014), a Grosty case, you wonder what’s in store – the usual – some may say yes.

Real and to be expected?

May 30, 2014 | The Law Office of Philip D. Cave

Real and to be expected-a natural consequence of how Congress and perhaps leadership is approaching the real and very important issue of preventing sexual assault?

Military.com reports, In Survey, Lackland DIs Rip Leaders, Fear Recruits, 29 May 2014.

A survey of basic-training instructors conducted during the worst sex scandal in Air Force history revealed a sharp distrust of senior commanders at Joint Base San Antonio-Lackland and a widespread fear of recruits.

An appeals court cannot take judicial notice of an element of the offense

May 30, 2014 | The Law Office of Philip D. Cave

The CAAF has decided United States v. Paul, 74 M.J. ___ (C.A.A.F. May 29, 2014)(CAAFLog case page). The granted issue was:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

BLUF: We conclude that the evidence presented at trial was not legally sufficient to support a conviction for using 3,4-methylenedioxymethamphetamine in violation of Article 112a, UCMJ. We further hold that the CCA erred in taking judicial notice of a missing element of the crime charged.

Confrontation confrontation

May 29, 2014 | The Law Office of Philip D. Cave

What are the full limits of confrontation when it comes to scientific and expert testimony.

Federal evidence blog notes:

In denying certiorari review (this week0 in eleven cases raising Confrontation Clause and expert testimony issues, for the foreseeable future the Supreme Court will not resolve a significant issue that has been dividing the lower court; it remains to be seen when the guidance urged by the lower courts will be provided.

Navy self reporting–Redux

May 28, 2014 | The Law Office of Philip D. Cave

By regulation (the U.S. Navy Regulations and the Navy’s Standard Organization and Regulations Manual (SORM), OPNAVINST 3120.32x,), the Navy required personnel to report having been arrested or prosecutions for criminal acts by civilian authorities.

In United States v. Serianne, 68 M.J.580 (N.M.Ct.Crim.App. 2009), aff’d, 69 M.J. 8 (C.A.A.F. 2010). the courts found the order unlawful, in violation of a members right against self-incrimination under the Fifth Amendment, U.S. Constitution.

In response to Serianne, the Navy issued a new order (ALNAV 049/10 dtd 21 Jul 2010; NAVADMIN 373/11, 08 December 2011.7

Enlisted retired grade-after a grade reduction event

May 27, 2014 | The Law Office of Philip D. Cave

You are an enlisted person.

1. You are reduced at Art. 15 from E-6 to E-5, you retire as an E-5. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980.

2. You are reduced at special court-martial from E-9 to E-6, you retire. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980.

3. You are reduced at special court-martial from E-7 to E-4, you have sufficient time and you are re-promoted and serve in grade as an E-6 at the time you retire. What rank is your retirement check based on and how is it calculated. Assume you came on active duty after 1 September 1980. Continue reading

Prosecutorial discretion

May 15, 2014 | The Law Office of Philip D. Cave

Prof. Colin Miller has an interesting post about prosecutorial discretion during the course of trial.

Besides getting a conviction and an appropriate sentence, a secondary gain of the prosecutor is to have the case affirmed on appeal. Affirmance means a guilty person doesn’t walk or get a new trial.

In the post Prof. Miller refers to a successful prosecution objection excluding “compelling defense evidence,” on what he terms a technicality. He closes his post: