multiplicity Tag Archives — Court-Martial Trial Practice Blog

And while we are on the Coast Guard

November 25, 2010 | The Law Office of Philip D. Cave

There are several decisions:

United States v. Sanchez is back with the same result. There was a time when the SJAR used to be a long and complete and thorough briefing sheet to the commander acting post-trial. Because of a very very few lost cases on post-trial delay and the amount of work required the SJAR has developed into a “I read the case, approve it.” Thus the “advice” has been moved behind closed doors. Can anyone imagine that when a CO wants to talk about granting clemency on a case she doesn’t call in the SJA for advice which, without a written document, is unknown. Yes, we have gotten here because of all of the litigation over the years because of inaccurate or erroneous advice. So, rather than enforce giving “balanced” (see Sanchez), accurate, and correct advice we now have a situation where the CO gets as much unbalanced, potentially biased, and potentially wrong information as the SJA is able to give. What a cure. But the defense does have a role to play in this.

It seems to me that trial defense counsel should go back to the earlier SJAR forms and create a macro document similar to that old SJAR. A tasker for the chief defense counsels at their next annual meeting. Have the paralegal go through the ROT and other documents and basically fill in the data. The CO isn’t going to read through the ROT and the SJA can’t be relied upon to tell her the good stuff. For that matter, why not start the document prior to trial. That way you can prepare for trial better. You are already working on the I-Love-Me book, and the paralegal is often working on the index, so why not go a little further. The AF has a good start with their PDS that’s prepared for court.

NMCCA provides reminder of multiplicity in drug cases

October 24, 2010 | The Law Office of Philip D. Cave

United States v. Pippins, is a reminder that when a person possesses drug for a persons own use and/or distribution, the possession is an LIO of the use or the distribution.

A review of multiplicity in this case centers on whether the appellant’s possession of BZP is in the same act or course of conduct with her use and distribution of BZP. See United States v. Paxton, 64 M.J. 484, 490 (C.A.A.F. 2007); United States v. Teters, 37 M.J. 370, 373 (C.M.A. 1993). Possession is a lesser included offense of both use and, under the facts of this case, distribution. See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2008 ed.), Part IV, ¶ 37d. See also United States v. Zubko, 18 M.J. 378, 385-86 (C.A.A.F. 1984).

Thus, any time an accused is charged with both use and possession or distribution and possession of the same amount, there should be a dismissal for multiplicity.

LTC Lakin sitrep

October 13, 2010 | The Law Office of Philip D. Cave

I happened to have business at MDW today so I stopped by to take LTC Lakin’s pulse for his upcoming court-martial and watch today’s Article 39(a), UCMJ, session.

The writ was denied today. A straight line standard denial [thanks to CAAFLog for a copy].

1. Mr. Jensen was excused from further participation in the case at the specific affirmative consent of LTC Lakin, because he’d been “discharged.” See R.C.M. 506(c).