I’m a proponent of restitution in cases where it may lead to a reduction in confinement or suspension of a punitive discharge. I’m a proponent in cases even where there has been no ‘unjust enrichment.’
The CGCCA in United States v. Scott addresses restitution in the context of when restitution should be made and what happens if not timely made.
A couple of thoughts.
NMCCA has issued an opinion in United States v. Saracoglu. NMCCA specified the issue. The related to the MJ’s denial of a UCI motion based on:
Captain (Capt) Hillary, Headquarters and Service (H&S) Company Commander for Weapons Field Training Battalion, held a Friday morning formation. The formation included two platoons of enlisted Marines, including the appellant, and a few officers. Formations of this sort were held every Friday morning as a means of disseminating information. At this particular formation, Capt Hillary read a newspaper article from the San Diego Union Tribune that discussed the recent court-martial of Private Bradley, a member of H&S company. The article stated that Private Bradley had pled guilty to “stealing truckloads of spent ammunition casings from the base firing range where he worked and selling them as scrap metal, raking in nearly $31,000.” After reporting the sentence awarded, the article went on to state that Bradley’s “alleged accomplice, Pvt. Anthony Saracoglu, is awaiting trial.”
Private Saracoglu was in the formation.
Here is an interesting CAAF grant on an Article 120 issue. The most interesting issue is Issue III.
Wednesday, August 10, 2011
ORDERS GRANTING PETITION FOR REVIEW
CAAF has decided United States v. Fosler, and potentially the “trailer park,” alluded to by CAAFLog.
The actual application to the other cases may not be so simple.
In a contested case in which Appellant challenged the charge and specification at trial, the inclusion of
“Article 134” in the charge does not imply the terminal element.
My colleague at futurelawyer.com posted this today.
While we don’t get such arcane testimony in a court-martial, there are certainly times when an expert witness’s testimony, or for that matter any witness forgets to speak in plain understandable words. Just a reminder.
AFCCA has an order in United States v. Boore, a government appeal.
The issue is severability of portions of Article 120. AFCCA holds that the military judge may sever the unconstitutional parts of Article 120, and instruct accordingly.
Applying the severance doctrine to the case at hand, we have no difficulty determining the constitutional infirmity created by the interaction of Article 120(h). Although this appeal specifically addresses abusive sexual contact under Article 120(h), UCMJ, 10 U.S.C. § 920(h), our holding would be applicable to any Article 120 offense in which the government alleges that the victim was substantially incapacitated and the accused intends to raise an affirmative defense of consent and/or mistake of fact as to consent. Article 120(t)(14) and Article 120(t)(16) can be remedied by severing out Article 120(t)(16)’s requirement that the accused prove the affirmative defense, by a preponderance of the evidence, from the remainder of the statute. The accused need only raise some evidence of consent. The military judge must then craft appropriate instructions for the members, informing them that the government has the burden of proving the purported victim did not consent beyond a reasonable doubt. See United
States v. Neal, 68 M.J. 289, 304 (C.A.A.F. 2010) (“the military judge has the authority to craft an appropriate instruction ensuring that the burden of proof remains with the government.”). This approach does not invalidate the remainder of the statute as it remains “fully operative as a law.” The government must still prove all elements of the abusive sexual contact charge as well as carry the burden of proving the affirmative defense does not apply[.]
New York Times Sunday Review.
You may remember that CAAF dealt with MSRP in a number of cases. See e.g. United States v. Pena, 64 M.J. 259 (C.A.A.F. 2007)(not cruel and unusual punishment; not an increase in punishment based on the facts; failure to explain this collateral consequence doesn’t make plea improvident).
We do not take lightly the impact of the Mandatory Supervised Release program on Appellant . . . . Likewise, we do not disregard the possibility that the Mandatory Supervised Release program could be imposed in a manner that increases the punishment above the punishment adjudged by a court-martial. The burden, however, is on the party challenging the conditions to demonstrate that there has been an increase above the punishment of confinement imposed at trial.
Now we have Banks v. United States (Commandant, USDB).
I remember studying Miranda and a couple of other significant constitutional law cases in school. We also learned that the case decision didn’t necessarily help the individual. It wasn’t Miranda, but another one got stabbed to death in jail after his case was decided, Escebedo, I think.
So, Professor Friedman alerts us to an irony in:
Here’s an irony of sorts. The Massachusetts Supreme Judicial Court has held the rule of Melendez-Diaz not to be retroactive — and it did so in Commonwealth v. Melendez-Diaz, 2011 WL 3000275 — yes, involving a prior conviction of the same Luis Melendez-Diaz.
Petty Officer Savala was discharged from the naval service 28 July 2011.
Court-Martial Trial Practice Blog