UCMJ Tag Archives — Page 37 of 51 — Court-Martial Trial Practice Blog

Coast Guard appellate case of interest – and providency

February 23, 2010 | The Law Office of Philip D. Cave

Is a false marriage certificate to claim otherwise unauthorized allowances an official document? No, it would be the presentation of that document as showing an entitlement that is the false statement, not the marriage certificate itself. The court also found the appellant’s plea to a conspiracy to commit a false official statement as improvident. The providency issue seems as much related to the military judge’s questioning method, rather than a factual basis. This was a not untypical plea where the military judge had to help the accused through providency by getting yes / no answers to leading questions.

United States v. McClary.

Here are some stream-of-consciousness thoughts for the defense counsel.

Up periscope WE210210

February 22, 2010 | The Law Office of Philip D. Cave

Pilot Online reports:

Five sailors could offer testimony contradicting the government’s main witness in the controversial prosecution of three Navy SEALs accused of mistreating a suspected Iraqi terrorist.

But whether they’ll take the stand is in question after the government denied their requests for immunity on Friday.

Col Murphy retired at O-2 rank (corrected)

February 22, 2010 | The Law Office of Philip D. Cave

An Air Force colonel will be forced to retire as a first lieutenant, an Air Force review determined.

Col. Michael D. Murphy, convicted in April 2009 by a general court-martial for failing to tell the Air Force he was disbarred as an attorney in 1984, will be retired from the Air Force effective April 1 as a first lieutenant, Air Force spokesman Lt. Col. Barbara Carson said Monday.

By operation of 10 U.S. Code Sec. 1407, his monthly retirement check will be based on the amount of his last check. That last check will be based on his being an O-2 with 20 plus years of service. $4377.30 is the current rate for over 20 years, still nothing to sniff at under the circumstances.

Interesting ACCA case pending

February 21, 2010 | The Law Office of Philip D. Cave

In United States v. Willis, No. ARMY 20071339, which is being argued on Thursday, the issue is: “WHETHER THE PROSECUTION AGAINST APPELLANT WAS BARRED BY A GRANT OF DE FACTO IMMUNITY WHEN THE GOVERNMENT AGREED TO DISMISS CHARGES IF APPELLANT PASSED A POLYGRAPH EXAMINATION AND APPELLANT PASSED A POLYGRAPH EXAMINATION.”

h/tip CAAFLog.

Concerned about alcohol abuse

February 14, 2010 | The Law Office of Philip D. Cave

The Navy’s largest overseas installation has seen a significant drop in incidents of drinking and driving over the last two years, thanks in part, to a persistent sobriety checkpoint program, according to base officials.

Stars & Stripes reports.

The answer to alcohol related incidents, including deaths, injury, and property damage is simple. Treat alcohol as the drug that it is. Treat alcohol the same way any other drug use is treated in the military. Alcohol is considered the number one drug of abuse is it not. Ban alcohol use unless it is prescribed.

Civilian jurisdiction

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

CAAFLog reports:

Sens. Leahy and Kaufman and Rep. David Price introduced companion bills in the Senate and House titled the “Civilian Extraterritorial Jurisdiction Act” (CEJA?), on Feb. 2, 2010. H.R. 4567 and S. 2979 create a new section 3272 in title 18.

Major Hasan update

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

[L]ate Friday afternoon, the Army said the hearing has been moved to June 1 in response to a defense request.

KWTX.com reports. Although they still persist in referring the to Article 32, UCMJ, hearing as equivalent to a grand jury.

UA mom

February 11, 2010 | The Law Office of Philip D. Cave

Both Hutchinson and her civilian attorney, Rai Sue Sussman, are happy with the results. In a press release from Sussman’s office, Hutchinson said that she is "excited to know what will happen to me, and that I am not facing jail.

“Alexis is pleased because she now will have closure and knows what is going to happen to her," Sussman told Truthout. "She is no longer waiting to possibly go to trial and jail, all the while trying to figure out what to do with her child. She feels she was treated unfairly overall, but is relieved with this outcome."

Jeff Paterson, the director of the soldier advocacy group Courage to Resist, which has assisted Hutchinson, felt that the administrative discharge was a victory all around.

Pantano for Congress

February 11, 2010 | The Law Office of Philip D. Cave

Three Republicans are vying for the nomination to run for the seat and all three are military vets — but only one has the kind of star power that comes with a personal story that extends from Hell’s Kitchen in Manhattan to the fast-money world of Wall Street, and includes film-making, a best-selling book, an appearance on "The Daily Show" and charges of murdering two Iraqi civilians.

But before the GOP gets too excited about seeing former Marine 1st Lt. Ilario Pantano take a seat in Congress, it had better face up to the fact that the former infantry officer isn’t your typical Red stater. . . .

April 2004 found him leading a platoon in Mahmudiya, Iraq, where he had in custody two Iraqis he suspected were involved in anti-coalition activities. According to various accounts, Marines had already searched the men’s car and found no weapons. But when weapons were found in a nearby house, Pantano wanted the car stripped down for another search.

Collateral consequences

February 11, 2010 | The Law Office of Philip D. Cave

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.