For client Sgt Brown, with the assistance of his military defense lawyer we have secured a dismissal of some charges and a new trial on the remainder. In United States v. Brown, the NMCCA issued an opinion on 30 June 2014, which addressed three of eight errors we raised: multiplicity of charges, validity of a false official statement, and improper use of character evidence which substantially prejudiced the defense. Because of the court’s resolution of these errors they did not address the remaining five.
The court concluded that because of the prosecution and judge failures, “The findings and sentence are set aside. Charge II and its sole specification (false official statement) are dismissed with prejudice. A rehearing on the remaining charges is authorized.”
1. On the multiplicity the court stated that, “we note that the Government concedes on appeal that it is “well established that the simultaneous possession of several weapons constitutes only one offense” for purposes of 18 U.S.C. § 922(g)(9). ”
2. The military appellate courts have been taking a hard look at the issue of what is or isn’t a “official statement” for purposes of a UCMJ prosecution at court-martial. The NMCCA has evaluated the facts in Brown’s case and determined that the circumstances surrounding his alleged false statements were not official.
While these conflicting accounts paint a confusing picture of what exactly was said, the two clearly had an official duty to keep custody of the appellant. But an informal conversation over sandwiches, one that GySgt T characterized as having nothing to do with his function as the legal officer, bore no bearing to any dialogue necessary to the appellant’s detention. We therefore conclude that this statement lacked officiality within the meaning of Article 107, UCMJ.
3. The more important decision of the court related to errors in the admission of adverse character evidence. Essentially the prosecution offered and the military judge admitted a number of allegations about Brown’s character that is best described as evidence of predisposition. Under the circumstances of this case predisposition evidence is inadmissible.
This case illustrates several points.
1. The defense must be alert and object to efforts by the prosecution to adduce improper character evidence. In this case the military defense counsel do a decent job at trial at objecting and preserving the issues.
2. The prosecution has to be careful in seeking to prove guilt by offering inflammatory character information. When they do that they risk taking a winnable case and making appellate issues.