UCMJ Tag Archives — Page 38 of 51 — Court-Martial Trial Practice Blog

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.

Major Hasan update

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

The military will formally discipline at least six officers, most from Walter Reed Army Medical Center in Washington, for failing to take action against Fort Hood gunman Nidal Malik Hasan, according to people familiar with the matter.

Officials said the move reflects the military’s belief that the Nov. 5 assault could have been prevented if Hasan’s superiors had alerted authorities to his increasing Islamic radicalization.

Dallas News reports. Judge Pohl has been scheduled to start the Article 32, UCMJ, hearing on 1 March.

Interview techniques

February 8, 2010 | The Law Office of Philip D. Cave

The Reid Technique is one of the more known and familiar interrogation and interview techniques used by law enforcement. We mostly become familiar with interrogation methods because of court-martial pretrial motions practice to suppress coerced or false confessions. The value of various police interrogation techniques is not limited to police interrogations. A trial counsel or a defense counsel preparing for a court-martial can benefit from knowing, understanding, and practicing some of the law enforcement interview and interrogation techniques. (NOTE, it is unethical for an attorney to lie during a witness interview, be careful, that is one technique that is not permitted. And it is unethical for a counsel to fail to identify themselves as a prosecutor or defense counsel when interviewing witnesses.)

Before I begin an interview, especially with a complaining witness in sexual assault case, I want to know about that person. At the first contact, and from then on, I constantly assess the person: their emotions, their physical and emotional responses, their word choice, their mannerisms. I’m doing that because I want to establish rapport. (You should of course do the same to the client.) I’ve said this many times, but I’ve frequently been the one to educate the prosecution witnesses on the process and what’s going on and why. That has benefitted me and my client numerous times. The “victim” appreciates you for telling them what’s going on. I cannot remember how many times a “victim” tells me that no one will tell them what’s going on. Defense counsel — this is your moment to establish rapport.

If you establish rapport with a witness you will get more information, the witness will respond better to you, and the witness may be less antagonistic to the client. I had not realized that at least one author calls this “isopraxis.” I know it as mirroring.

Stolen Valor update

February 7, 2010 | The Law Office of Philip D. Cave

I noted earlier that some accused of violating the Stolen Valor Act are challenging it’s constitutionality in situations where the person was a braggart, but did not gain or attempt to gain through the fraud. Here is a new case of someone who likely did gain – a city job?

M. McBride

Contributed photo

in Houston Chronicle

A Houston man was charged on Friday with allegedly impersonating a U.S. Army general by wearing a uniform decorated with more military honors than earned by famed Gen. George Patton.

The FBI charged 44-year-old Michael P. McManus with five federal misdemeanors, accusing him of unlawfully wearing an unauthorized uniform embellished with some of the U.S. military’s most distinguished combat medals.

He is one of about 50 people charged under the 2006 Stolen Valor Act, which makes it a federal crime to falsely claim to have received a medal from the military, regardless of whether the accused does not try to profit from the deception.

One man bilked a Veterans Affairs program out of huge sums of money, while a woman received some $40,000 in tuition after telling employees at her university that she was an Air Force pilot flying in Iraq on weekends.

The Houston Chronicle reports.

According to the Department of Justice, McManus did actually serve in the Army between the years of 1984 and 1987. However, he never achieved a rank higher than private first class, nor did earn the Military Combat Awards and insignia he is accused of wearing.

As we first pointed out Friday night, those medals include two Distinguished Service crosses, a Purple Heart and a medal around his neck indicating he was the commander of the British Empire.

ABC reports.

Up periscope – WE 070210

February 7, 2010 | The Law Office of Philip D. Cave

Not going too far, how about you?

Meanwhile – – –

A Robins Air Force Base master sergeant was dishonorably discharged and sentenced to 50 years in prison after he was found guilty of engaging in sexual contact with several minors, according to The Robins Rev-Up, the Robins Air Force Base installation newspaper.

Quantico Brig suicide update

February 5, 2010 | The Law Office of Philip D. Cave

Capt. Michael A. Webb, 46, of Coto de Caza, Calif., was found unresponsive Sunday at 7:21 a.m. and was later pronounced dead at the scene, said Lt. Col. Roger Galbriath.

Webb had been placed under pretrial restraint as a result of the serious nature of his misconduct, because he failed to report to Quantico Marine Corps base when ordered, and because he was determined by an independent reviewing officer to be a flight risk.

InsideNoVA.com reports.

CAAF and Abu Ghraib

February 4, 2010 | The Law Office of Philip D. Cave

CAAF has decided two cases related to Abu Ghraib: United States v. Harman, and United States v. Smith.

The issue in Harman was factual sufficiency and the conviction and sentence was affirmed.

Appellant admitted to investigators that she took a new detainee, who had been placed on a box with a hood over his head, affixed his fingers with wires, and told him he would be electrocuted if he fell off the box. Appellant then photographed the victim who stood on the box for approximately an hour. Appellant admitted it was her idea to attach these wires, though military intelligence officials had not asked her or her colleagues to do so. Appellant thought this was permissible because “[w]e were not hurting him. It was not anything that bad.”

917 on steroids

February 4, 2010 | The Law Office of Philip D. Cave

In 1988 the Court of Military Appeals decided Griffith. I have used the case from time to time, not often successfully. But here is a recent example of what I call 917-on-steroids. I was pleasantly surprised that it was the judge who first raised the Griffith possibility.

R.C.M. 917 allows the defense to make a motion (or the MJ sua sponte) for a finding of not guilty at the close of the prosecution case or at the close of the evidence. I have just completed one of the infamous Army TCS/Reserve TDY cases. The E-8 accused was charged with conspiracy with two others to steal using fraudulent rent receipts, false official statement, theft of funds in excess of $500.00, and two specifications of fraud under Article 132, UCMJ. The standard or amount of evidence is so low that it is hard to obtain an R.C.M. 917 dismissal.

At the close of the prosecution case they had not introduced evidence of a delta between the amount alleged to have been stolen and that to what the accused would have been entitled, and had not introduced evidence that the travel claim vouchers were actually signed and submitted by the accused. Rather than grant a 917 motion, the judge allowed the prosecution time to rethink their case and potentially request they be allowed to reopen. After the interlude the judge kicked the can and referenced Griffith, again giving the prosecution more opportunity to reopen. The military judge is permitted to take such a course of action. See e.g. United States v. Ray, 26 M.J. 468 (C.M.A. 1988).

Up periscope – WE300110

February 4, 2010 | The Law Office of Philip D. Cave

The Army has charged an Illinois National Guardsman in Afghanistan with possession of child and adult pornography, and his family has come to his defense, arguing that he was the target of a personal vendetta.

Army Times reports. This is an ongoing case that started because the kids mother sent him a photograph of a child. In the photograph you can apparently see her crack.

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Up periscope

February 3, 2010 | The Law Office of Philip D. Cave

I have commented before about suicides and military justice, Military Suicides.

Marine Capt. Michael A. Webb has died of an apparent suicide in the brig at Quantico while awaiting court martial, a base public affairs officer said Tuesday.

Inisde NoVa reports.