Articles Tagged with acca


1.  United States v. Curry.  This is a BAH case. 

The Government proceeded on a theory of a fraudulent marriage as a basis to commit larceny by trick.
The court held oral argument in this case and specified two additional issues to the parties.2 Additional pleadings were later filed.  After carefully considering the record of trial and the pleadings of the parties, we decide this case based solely on the assigned error and conclude that the evidence was factually insufficient to sustain the finding of guilt as to the charge of larceny, either on the proffered theory of larceny by trick or under a possible theory of wrongful withholding.

United States v. Stanley.

The appellant raised eight errors through counsel and an additional six in accordance with United States v. Grostefon.

One assignment of error warrants discussion, but no relief.   Specifically, appellant alleges that the military judge erred by failing to properly instruct the panel regarding appellant’s right during mutual combat to exercise self-defense when the force used against him escalated.  Today we find that any error by the military judge was harmless beyond a reasonable doubt and affirm the findings and sentence.

The Army Court of Criminal Appeals rules are here.  As previously indicated there is no “deadline” for the filing of a writ petition in this situation, but once a petition is filed several deadlines and requirements kick in.  Like DMLHS I have a request in for a copy of the petition.  Note that in Cheney v. United States District Court, 542 U.S. 367 (2004), the equitable doctrine of laches arose and was discussed in regard to a late filing of a petition for mandamus.

Based on the maxim that equity aids the vigilant and not those who procrastinate regarding their rights[.]

The following Rules are relevant to a writ. 

Humor in military lawyering is good.  Humor is good.  Standby for a comment from DMLHS tonight.

In thinking about why the case would be delayed to 3 November 2010 there were all kinds of ideas floating around, some ideas being of a conspiratorial nature.  I had missed the piece noted by Reality Check (thanks!).  Anyway, I thought the first place to go would be be docket – but first a digression on the piece of reporting Reality Check caught.

The military judge did delay the start of the trial for a month to give the defense more time to ask the court of appeals for help.  (WUSA9 —

Here is a link to United States v. Brasington., decided 13 September 2010.  It is not unusual for an appellant to be issued a DD214, Honorable Discharge, sometime after a court-martial at which the appellant was adjudged a punitive discharge.

In this case, we are asked, following remand, whether an honorable discharge, effective after this court’s affirming a sentence that included a bad-conduct discharge, has the effect of remitting that discharge. We hold appellant’s administrative discharge was voidable, properly voided, and did not remit appellant’s premature discharge.

This was a rather odd situation because the appellant was an active duty Soldier and it was the Reserve command giving him the discharge.  ACCA found that the Commander, HRC-StLouis had no authority to discharge appellant.

In United States v. Morton, ACCA on remand from CAAF found no “dramatic change in the penalty landscape” and affirmed the sentence imposed at trial.

On first review ACCA had set-aside two specifications regarding a falsification of a sick-slip under Article 123, UCMJ.  But ACCA then affirmed two specifications thought to be closely related to the dismissed specifications.  CAAF dismissed the two specifications and said that:

By dismissing those specifications, our superior court rang the death knell of the “closely-related offense” doctrine. United States v. Morton, 69 M.J. 12, 13 (C.A.A.F. 2010). Also as part of their decision, our superior court returned the record of trial to The Judge Advocate General for remand to this court for sentence reassessment.

CAAF has decided United States v. Graner.  Graner loses.

We granted review in this Abu Ghraib case to determine whether the military judge abused his discretion in (1) refusing to compel the Government to produce certain memoranda requested by the defense; (2) excluding the testimony of, and an e-mail
from, Major Ponce; and (3) limiting the testimony of a defense expert witness. We hold that the military judge did not abuse his discretion in any of these decisions and affirm the judgment of the United States Army Court of Criminal Appeals (CCA).

In United States v. Rodriguez, 67 M.J. 156 (C.A.A.F. 2009), cert. denied, 130 S. Ct. 459 (2009) the court changed years of practice when it came to late filings of petitions for review with CAAF.  In Rodriguez the court held that:

In light of Bowles v. Russell, 127 S. Ct. 2360 (2007), we conclude that the congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional [and may not be waived or extended regardless of cause].

The effect was to deny an opportunity for an appellatant to petition on meritorious issues or have access to the United States Supreme Court.  Prior to Rodriguez it was not uncommon for appellate counsel and appellants to miss the CAAF petition filing deadline, sometimes by just a few days.  The reasons for the missed filing generally came down to administrative error within the appellate defense divisions.  For various reasons filing deadlines weren’t being tracked accurately.   It’s my understanding that the divisions have taken measures to correct the problems.  However, there were a series of cases post Rodriguez where the appellant was denied access to CAAF based on Rodriguez.   While unfortunate, for those that had no seemingly meritorious issues to petition on there was likely no prejudice.  But what about those cases where the appellant had a good issue (regardless of whether or not it was a winner)?

The 8th Circuit Court of Appeals considers a conviction of “housebreaking,” under Article 130, UCMJ, to be a crime of violence for firearms possession charges in federal district court.  We frequently are asked by clients if they can still own a firearm.  The answer is a very nuanced one, as Begay and Whetzell indicate.

Appellant’s prior crime, the crime of housebreaking, occurs when "[a]ny person subject to [the Uniform Code of Military Justice] . . . unlawfully enters the building or structure of another with intent to commit a criminal offense therein. . . ." 10 U.S.C. § 930. . . .

Appellant’s primary argument against this conclusion is that the district court improperly referenced the military court’s discussion of the underlying facts of his conviction. Generally, a court is only to consider "the fact of conviction and the statutory definition of the prior offense." Taylor, 495 U.S. at 602. But the district court’s reference in this case to the underlying facts of Appellant’s housebreaking conviction, as articulated in the military court’s opinion, does not change the fact that the elements of housebreaking constitute a generic burglary crime, a crime of violence under our precedents. Further, and contrary to Appellant’s argument, the Supreme Court’s opinion in Begay v. United States, 553 U.S. 137 (2008), did not alter our decisions in regard to generic burglary and does not provide reason for reversal.

United States v. Matthews is an interesting new Army decision.

In this case the appellate courts ordered a DuBay hearing.  During that hearing the prior military judge testified as to his rationale for various decisions at trial.  Using that testimony, the Army Court of Criminal Appeals applied the harmless beyond reasonable doubt standard to findings of constitutional error.  On appeal, CAAF ordered a new review by ACCA specifically excluding the testimony of the judge at the DuBay hearing.

On 23 July 2009, the United States Court of Appeals for the Armed Forces set aside that decision, and remanded to this court for further review. United States v. Matthews, 67 M.J. 29, 43 (C.A.A.F. 2009). Specifically, our superior court held that it was error to consider the testimony of the original trial judge elicited during the DuBay hearing because it violated the protected deliberative processes of military judges sitting alone. Id. This court was instructed to reconsider our conclusion on harmless error without that improper testimony. Id.

Contact Information