The other day I commented about Grostefon issues. Well, here is another example of Grostefon possibly working for the Appellant.
On Thursday CAAF granted review in the Air Force case of United States v. Yanez:
No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue:
Safeguarding the Commander’s Authority to Review the Findings of a Court-Martial, Andrew S. Williams, Brigham Young University, June 5, 2013, 28 BYU Journal of Public Law (April 2014, Forthcoming)
Abstract:“Do you really think that after a jury has found someone guilty, and dismissed someone from the military for sexual assault, that one person [the commander], over the advice of their legal counselor, should be able to say, ‘Never mind’?” Senator Claire McCaskill recently posed this question in a hearing before the Senate Armed Services Committee, as she and others expressed outrage over the disapproval of a sexual assault conviction by a military commander. Her question reflects a justifiably profound respect for the verdicts of juries, one that runs deep in American legal tradition, but reveals a basic misunderstanding about the court-martial panel in the military.
Most are now familiar with the NMCCA decision in United States v. Howell. In that case, compared to several others, the court found there was UCI affecting the trial and granted the appeal in Howell’s favor. Howell is not out of legal jeopardy, because the court decided:
A rehearing may be ordered.
And it is reported that Howell is still in pretrial confinement., while a decision is made on whether to conduct a retrial or administratively separate him with an OTH.
I posted at CAAFLog about a search conducted in the defense counsel offices at Camp Pendleton.
Here Marine Corps Times reports some of the fallout, including it looks like one of the photos we put up on CAAFLog.
In the wake of a controversial search of Camp Pendleton, California, defense attorneys’ offices by military investigators, the senior Marine prosecutor who planned the search has been ordered off a number of cases and reassigned to a new job.
I have commented before that an Appellant sometimes gets a grant on a Grostefon issue, and sometimes wins something.
Unfortunately for Cerion R. ALLEN, he got a Grosty grant, but the victory was Pyrrhic.
No. 14-0519/AR. U.S. v. Cerion R. ALLEN. CCA 20120742. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we agree with Appellant’s personally asserted contention that the facts established during the plea inquiry and in the stipulation of fact demonstrate only a single conspiracy. Appellant was convicted of one conspiracy to commit robbery (Specification 2 of Charge II) and one conspiracy to commit burglary (Specification 3 of Charge II), but the plea inquiry and stipulation of fact show that there was only one agreement between Appellant and his co-conspirators to break into and rob the alleged drug house. Therefore, Specification 3 of Charge II should be consolidated with Specification 2 of Charge II to become a single specification. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United States v. Reliford, 27 M.J. 176 (C.M.A. 1988) (summary disposition). Although the conspiracy offenses are consolidated, we are satisfied that Appellant suffered no prejudice as to his sentence. Accordingly, it is ordered that said petition is granted on the following personally asserted issue[.]
On a historical note – – –
On 20 May 2014, the DOD released a copy of “Final report and recommendations from Defense Department (DoD) Good Order & Discipline Panel, 1997-1998.”
Of the many places on the web to find information, governmentattic.org posts its DOD related FOIA releases here.
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).
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.
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.
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.
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