Articles Tagged with housebreaking

CAAF has decided:  United States v. Contreras, No. 09-0754/AF

We granted review of the following issue:

WHETHER THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING CRIMINAL OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A PURELY MILITARY OFFENSE.

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.

Three interesting grants from CAAF in the last few days.

No. 07-0401/NA. U.S. v. Russell B. MULLINS. CCA 200200988. Review granted on the following issues:

WHETHER THE LOWER COURT IN HOLDING THAT THERE WAS NOTHING IMPERMISSIBLE IN THE MILITARY JUDGE ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR TESTIMONY IN VIOLATION OF MILITARY RULE OF EVIDENCE 702.