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Latest Blog Posts By Category
- LEGAL SUFFICIENCY OF FACTUAL PREDICATE IN GUILTY PLEA.
In United States v. Ferguson, 68 M.J. 431 (C.A.A.F. 2010) the accused communicated on-line with a police officer posing as a fourteen-year-old boy. During their first conversation, the accused ... - Outside Pressure On Members
United States v. Arriaga , No. 37439, 2009 WL 289806 (A.F. Ct. Crim. App. May. 07, 2010) deals with outside pressure on members. The issue before the court was did the command safety briefings ... - Evidence of a Victim’s Sexual History or Predisposition
In United States v. Dorsey, 16 M.J. 1 (C.M.A. 1983) the Court of Military Appeals (CMA, now CAAF) directly dealt with the issue of when evidence of a victim’s sexual history or predisposition is ...
- How to Inform the Members about Sex Offender Registration
In a previous blog, we discussed some of the issues surrounding informing panel members about Sex Offender Registration. If you and your court martial defense attorney decide that doing so is in your ... - Courses of Action at Sentencing to Avoid Sex Offender Registration
If you are facing a court martial, it is not only important that your military defense lawyer formulate a trial strategy, but also a strategy for the sentencing phase of trial. In doing so, your court ... - Sex Offender Registration
Being properly advised of the consequences of Sex Offender Registration as well as its consequences is a critical piece of properly advising a client. Given that a clients court martial defense lawyer ...
- Lack of Consent
In any Article 120 prosecution alleging a child victim, lack of consent is not an element. That the victim may have consented or that the accused mistakenly believed the victim consented is not an ... - Voluntary Intoxication and Sexual Assault
Given that most military sexual assault and rape cases somehow involve alcohol or being drunk, we get countless questions on whether being drunk is a defense to sexual assault. Simply put, “voluntary ... - Sexual Assault – Common Issues at Trial
If you are charged with aggravated sexual assault while the alleged victim was substantially incapacitated due to alcohol consumption and you contend that the victim consented, then at the time of ...
- Registration as Military Sex Offender
Under Federal law, DoD Instruction 1325.7, and Army Regulation 27-10 (sister services have similar Regulations), those who have been convicted of any of the following offenses must register with the ...
- Denial of Request to Tape Record Article 32 Proceeding is Not a Volation of Confrontation Rights
In United States v. Daniel Garcia, __ M.J. __, No. 1317 (C.G. Ct. Crim. App. June 3, 2010) Seaman Daniel Garcia was convicted, contrary to his pleas, of aggravated sexual assault and wrongfully ... - Request to Tape Record the Article 32 Proceedings
In United States v. Elijah Garcia, 68 M.J. 561 (C.G. Ct. Crim. App. 2009) Seaman Elijah Garcia pled guilty to and was convicted of various offenses, including distribution of a controlled substance ... - WITNESS AVAILABILITY/ALTERNATIVE TO LIVE TESTIMONY.
United States v. Faison, ACM 37464 (A.F. Ct. Crim. App. Apr. 19, 2010) (unpublished) deals with witness availability and alternative to live testimony. At the Article 32 hearing, investigating officer ...
- "Mistake of Fact” Defense
In U.S. v. Guest, 46 M.J. 778, 781 (Army Ct. Crim. App. 1997) the court held that a mistake of fact defense requiring the mistake to be both honest and reasonable may be available under the ... - Desertion and Absent Without Leave
Intent is an important factor in distinguishing “desertion” from “absent without leave” (AWOL). Article 85 UCMJ deals with desertion while Article 86 UCMJ deals with absent without leave. The intent ...
- Spice Use and the Law
The possession, use and transfer of Spice violates: Articles 112a if the mixture contains HU-210 or another controlled substance. Article 92 if it is prohibited by policy or regulation. The "lack of ... - Spice – The Basics
Spice is an olive-colored plant material that can be laced with cannibinoid mimicking compounds. The ingredients of Spice can be several times more potent than the drug marijuana. Spice that contains ...
- Unauthorized Use of Credit Card
The issue before the CAAF in United States v. Lubasky , 68 M.J. 260 (C.A.A.F. 2010) was whether the unauthorized use of another person’s credit and bank cards constitute larceny against that person ... - Crime of Indecent Acts or Liberties With a Child
United States v. Sutton , 68 M.J. 455 (C.A.A.F. 2010) the accused, while home alone with his two step-daughters, asked his 10-year-old to lift her shirt and show him her chest, offering her $20 to do ... - Inchoate Offenses – Conspiracy to Commit Maltreatment of Subordinates
United States v. Harman, 68 M.J. 325 (C.A.A.F. 2010) deals with the evidence required to conviction for conspiracy to commit maltreatment of subordinates. The accused was convicted of several charges, ...
- More Chapter 10 Issues
We recently ran a blog warning Soldiers of the fact that in Post-Trial Chapter 10 situations, the Convening Authority can still approve findings. Another recent trend we are seeing is that many ... - Warning for Post Trial Chapter 10 clients.
We have been hearing of numerous cases in which the client took a post trial Chapter 10 (Discharge in lieu of Court Martial) thinking that the Convening Authority would disapprove the findings of the ...
- TRIAL IN ABSENTIA - REMOVED FOR DISRUPTION
The civilian defendant in United States v. Ward, 598 F.3d. 1054 (8th Cir. 2010) was charged with production and possession of child pornography under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). ... - Lawful inspection under M.R.E. 313 versus an unlawful Fourth Amendment search.
United States v. Rendon, 607 F.3d 982 (4th Cir. 2010) deals with the issues if lawful inspection under M.R.E 313 and unlawful Fourth Amendment search. The issue before the court was simple: was the ... - Scope of Warrant
In United States v. Mann, 592 F.3d 779 (7th Cir. 2010) Mann who was a lifeguard instructor for the Red Cross being investigated for voyeurism. A search warrant for his home covered "video tapes, CD's ...
- What to Consider to Determine Consent
Your military defense lawyer should consider the following to determine consent: 1. What did the PV (purported victim) SAY to the accused before, during, or after the event? Yes (or no) Please do (or ...
- Unreasonable delay
In United States v. Cox, No. 20080819, 2010 WL 3522561 (A. Ct. Crim. App. Jan. 11, 2010) (unpublished) the convening authority took action in this case in sixty-one days after trial, but then the ... - UNCONDITIONAL GUILTY PLEA – DOES NOT WAIVE FAILURE TO STATE AN OFFENSE.
In United States v. Miranda-Zapata, No. 200800865 (N-M. Ct. Crim. App. Jan. 19, 2010) (unpublished) the accused pled guilty, inter alia, to conspiring to distribute morphine. Though not raised by the ...
- Recent C.A.A.F. Grants Involving M.R.E. 412 and Confrontation
The C.A.A.F. has recently granted review in three cases involving M.R.E. 412(b)(1)(C), which may indicate that the C.A.A.F. is reconsidering its decision in Banker. The cases, and the issues granted, ... - PANEL SELECTION AND ARTICLE 25, UCMJ
According to Article 25, UCMJ, the convening authority must select members who, in the convening authority's personal opinion, are "best qualified" based on age, education, training, ... - TRIAL IN ABSENTIA - REMOVED FOR DISRUPTION
The civilian defendant in United States v. Ward, 598 F.3d. 1054 (8th Cir. 2010) was charged with production and possession of child pornography under 18 U.S.C. §§ 2251(a) and 2252(a)(4)(B). ...
- COURT-MARTIAL CONVENING ORDERS
In United States v. Gudger, No. 200900414, 2010 WL 381118 (N-M. Ct. Crim. App. Feb. 4, 2010) (unpublished), review denied, 69 M.J. 189 M-27 (C.A.A.F. 2010) the accused's case was initially ... - CONVENING AUTHORITY - DESIGNATION BY STATUTE OR SERVICE SECRETARY.
In United States v. Smith, 69 M.J. ____ (A. Ct. Crim. App. Aug. 10, 2010) the Acting Commander, Fort Lewis, referred charges against the accused to court-martial. On M-15 appeal, the defense argued ... - Abu Ghraib MP Unit Going Back to Iraq
The Army Reserve unit tarnished by the Abu Ghraib detainee-abuse scandal has been mobilized to return to Iraq in its first deployment since photographs of naked, humiliated prisoners surfaced more ...
- Heresay
Post Crawford v. Washington, 541 U.S. 36 (2004), hearsay was categorized as either testimonial or non-testimonial. “Testimonial” means a statement made under circumstances that would cause a ... - Cross Examination
In United States v. Collier, 67 M.J. 347 (C.A.A.F. 2009), the issue before the Supreme Court was whether the military judge's decision preventing the defense from cross-examining witnesses or ...
- Unreasonable delay
In United States v. Cox, No. 20080819, 2010 WL 3522561 (A. Ct. Crim. App. Jan. 11, 2010) (unpublished) the convening authority took action in this case in sixty-one days after trial, but then the ...
- The Lautenburg Amendment
On September 30, 1996, the Lautenberg Amendment became law. It is now a felony for any person who has been convicted of a misdemeanor crime of domestic violence to ship, transport, possess, or receive ... - What is Conviction?
We get a lot of questions regarding the question of "What is a Conviction?" Because this seems to be a reoccurring question, we put together a short blog to help clarify the issue. Essentially, a ...
- Violation of Confrontation Rights
In Briscoe v. Virginia, 130 S.Ct. 1316 (2010) Mark Briscoe was convicted in a Virginia court for possession with the intent to distribute cocaine and unlawful transportation of cocaine into the ... - PERMISSIBLE TERM - WAIVE ALL WAIVABLE MOTIONS.
In United States v. Kuhn, ACM 37357 (A.F. Ct. Crim. App. Mar. 8, 2010), review denied, 69 M.J. 170 (C.A.A.F. 2010) the accused pled guilty to five specifications of wrongful use of cocaine. Per his ... - How to Prove a Lab Report is Testimonial
Your military defense attorney should, if possible, argue that a lab report is testimonial. If the lab report is testimonial, then the government needs to have the report’s creator testify. To prove ...
- CAUSAL CHALLENGES
Under R.C.M. 912(f)(4), if "objectionable" member does not sit on the panel (for example, if defense counsel uses preemptory challenge to excuse the member), the appellate court will not ... - Probable cause
United States v. Cowgill, 68 M.J. 388 (C.A.A.F. 2010) deals with probable cause. The issue was whether there was sufficient probable cause for a search warrant when a portion of the search warrant ... - Spice Use and the Law
The possession, use and transfer of Spice violates: Articles 112a if the mixture contains HU-210 or another controlled substance. Article 92 if it is prohibited by policy or regulation. The "lack of ...
- Conceding guilt
In United States v. Darling, Army 20070449 (2010) the issue was should counsel concede guilt during sentencing after consistently denying guilt during findings. Darling pled guilty to an AWOL charge ... - The Lautenburg Amendment
On September 30, 1996, the Lautenberg Amendment became law. It is now a felony for any person who has been convicted of a misdemeanor crime of domestic violence to ship, transport, possess, or receive ...
- Conceding guilt
In United States v. Darling, Army 20070449 (2010) the issue was should counsel concede guilt during sentencing after consistently denying guilt during findings. Darling pled guilty to an AWOL charge ... - Unauthorized Use of Credit Card
The issue before the CAAF in United States v. Lubasky , 68 M.J. 260 (C.A.A.F. 2010) was whether the unauthorized use of another person’s credit and bank cards constitute larceny against that person ...
- Commander Responsibilities under Lautenburg
Under the Lautenburg Amendment, all service members that commanders know to have, or have reasonable cause to believe have, a qualifying conviction are non-deployable for missions that require the ...
- Lawful search
United States v. Cote, AFCCA, Misc. Dkt. No. 2009-15, 6 Apr 2010 deals with lawful search of a computer device. Appellee was investigated by the North Dakota Bureau of Criminal Investigation (NDBCI) ...
- LITERAL CONFRONTATION
Briscoe v. Virginia, 130 S.Ct. 1316 (2010) deals with literal confrontation. At trial, the prosecution introduced, in accordance with Virginia law and over defense objection, two certificates of ... - Confrontational Rights
In United States v. Roberts, 69 M.J. 23 (C.A.A.F. 2010) the issue was whether the military judge erred in excluding evidence of relationship such that it violated Robert's constitutional ... - Right to Confront
United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010) deals with the right to confront. The sodomy, extortion, and indecent assault charges stemmed from an allegedly nonconsensual sexual encounter Smith ...
- Heresay
Post Crawford v. Washington, 541 U.S. 36 (2004), hearsay was categorized as either testimonial or non-testimonial. “Testimonial” means a statement made under circumstances that would cause a ... - Challenging Urine Sample Collection (Part I)
If the collection is unlawful, your military defense attorney can file motions under the 4 th Amendment and/or Section III of Military Rules of Evidence (MRE) to suppress in limine to exclude the ... - Admission of Constitutionally Required Evidence
Military Rule of Evidence (MRE) 412 prohibits the admission of evidence offered 1) to prove that an alleged victim of a nonconsensual sex offense engaged in other sexual behavior, or 2) to prove an ...
- Soldier gets life
A U.S. soldier accused of being the ringleader behind a rash of murders last year that targeted Afghan civilians has been sentenced to life in prison. Staff Sgt. Calvin Gibbs, of Billings, Mont., was ... - Grounds for Deportability
A lawful permanent resident (LPR) can be deported for an Aggravated Felony Conviction. Besides being deported, the LPR will be ineligible for most waivers of removal and voluntary departure. The LPR ...
- UNCONDITIONAL GUILTY PLEA – DOES NOT WAIVE FAILURE TO STATE AN OFFENSE.
In United States v. Miranda-Zapata, No. 200800865 (N-M. Ct. Crim. App. Jan. 19, 2010) (unpublished) the accused pled guilty, inter alia, to conspiring to distribute morphine. Though not raised by the ... - IRREGULAR PLEAS
In United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010) the accused served as a judge advocate at Guantanamo Bay, Cuba. While serving at GITMO, he concluded the Government was improperly refusing to ...
- Commander Responsibilities under Lautenburg
Under the Lautenburg Amendment, all service members that commanders know to have, or have reasonable cause to believe have, a qualifying conviction are non-deployable for missions that require the ... - What is Conviction?
We get a lot of questions regarding the question of "What is a Conviction?" Because this seems to be a reoccurring question, we put together a short blog to help clarify the issue. Essentially, a ... - Vehicle Search-Incident-To Arrest
Police can search the vehicle incident to a recent occupant's arrest only when the arrestee is within reaching distance of the passenger compartment at the time of the search or the police have reason ...
- AMBIGUOUS PRETRIAL AGREEMENT PROVISIONS
In United States v. Craven, 69 M.J. 513 (A.F. Ct. Crim. App. 2010), review denied, 69 M.J. 209 (C.A.A.F. 2010) the accused pled guilty pursuant to a pretrial agreement that included this quantum: ...
- Probable cause
United States v. Cowgill, 68 M.J. 388 (C.A.A.F. 2010) deals with probable cause. The issue was whether there was sufficient probable cause for a search warrant when a portion of the search warrant ... - Search and Seizure – Probable Cause
In United States v. Rogers, 67 M.J. 162 (C.A.A.F. 2009) the issue before the court was whether there was probable cause to issue a search authorization to examine the Appellant's hair for drug use. ...
- Right to Confront
United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010) deals with the right to confront. The sodomy, extortion, and indecent assault charges stemmed from an allegedly nonconsensual sexual encounter Smith ... - PEREMPTORY CHALLENGES - INEFFECTIVE ASSISTANCE OF COUNSEL
In United States v. Gabriel, NMCCA 200900429, 2010 WL 380994 (N-M. Ct. Crim. App. Feb. 4, 2010) the accused was convicted of rape, battery, and indecent exposure in contested case before an enlisted ... - VOIR DIRE & CHALLENGES - GENERALLY
Under Article 41(b)(1), UCMJ each side is afforded one peremptory challenge unless new members are detailed. United States v. Arriaga, ACM 37439, 2010 WL 2265581 (A.F. Ct. Crim. App. May 7, 2010) ...
- Sex Offender Registration Advice Form
The use of a sex offender registration advice form is required by U.S. v. Miller, 63 M.J. 452 (C.A.A.F. 2006) and DODI 1325.7. Prior to trial, if you are charged with any offense that requires ... - Registration as Military Sex Offender
Under Federal law, DoD Instruction 1325.7, and Army Regulation 27-10 (sister services have similar Regulations), those who have been convicted of any of the following offenses must register with the ... - Advice on Sex Offender Registration
State and territorial laws are diverse. If your military defense lawyer is uncertain where you may reside, carry on a vocation, or go to school, he will likely (and justifiably) be very cautious when ...
- Member expects a guilty accused to plead guilty
United States v. White, No. 20061313 (A. Ct. Crim. App. Aug. 11, 2010) (unpublished) deals with the issue of a member expecting a guilty accused to plead guilty. During individual voir dire, panel ...
- Sixth Amendment Right to Confront the Witnesses
In LUIS E. MELENDEZ-DIAZ, PETITIONER v. MASSACHUSETTS 2009 U.S. LEXIS 4734, the Supreme Court held that the admission of the certificates violated the petitioner's Sixth Amendment right to confront ... - Cross Examination
In United States v. Collier, 67 M.J. 347 (C.A.A.F. 2009), the issue before the Supreme Court was whether the military judge's decision preventing the defense from cross-examining witnesses or ...
- Crime of Indecent Acts or Liberties With a Child
United States v. Sutton , 68 M.J. 455 (C.A.A.F. 2010) the accused, while home alone with his two step-daughters, asked his 10-year-old to lift her shirt and show him her chest, offering her $20 to do ...
- Immigration Considerations and Court Martials.
A non-citizen will be denied admission to the US for a conviction or admitted commission of a Controlled Substance Offense, or if DHS has reason to believe the individual is a drug trafficker . There ... - Grounds for Deportability
A lawful permanent resident (LPR) can be deported for an Aggravated Felony Conviction. Besides being deported, the LPR will be ineligible for most waivers of removal and voluntary departure. The LPR ...
- Soldier gets life
A U.S. soldier accused of being the ringleader behind a rash of murders last year that targeted Afghan civilians has been sentenced to life in prison. Staff Sgt. Calvin Gibbs, of Billings, Mont., was ... - CAUSAL CHALLENGES - INEFFECTIVE ASSISTANCE OF COUNSEL
In Treesh v. Bagley, 612 F.3d 424 (6th Cir. 2010) on appeal, civilian defendant in death penalty case argued defense counsel was ineffective for not challenging two jurors for cause. The first juror ... - REMOVING MEMBER DURING TRIAL
In United States v. Bolden, 596 F.3d 976 (8th Cir. 2010) the civilian defendant's girlfriend spoke to two jurors during a recess in the trial. Both jurors were questioned about their ...
- The Three-Part Test
To determine whether a statement is testimonial, CAAF used a three-part test in U.S. v. Rankin, 64 M.J. 348, 352 (2007). CAAF considered the following: Was the statement at issue elicited by or made ... - Challenging Urine Sample Collection (Part I)
If the collection is unlawful, your military defense attorney can file motions under the 4 th Amendment and/or Section III of Military Rules of Evidence (MRE) to suppress in limine to exclude the ... - When to Consider Agreeing to a Lab Certificate in Drug Cases
When fighting drug cases , the issue of lab certificates often comes up, specifically whether your military defense attorney should agree to stipulate to those certificates. While all circumstances ...
- PRE-TRIAL RESTRAINT
In UNITED STATES v. ZARBATANY, ACM 37448 (A.F.C.C.A. 2010) Zarbatany received 119 days for PTC credit plus an additional 476 days for unusually harsh PTC conditions. With adjudged confinement of only ... - Violation of R.C.M. 701(a)(2) and R.C.M. 701(a)(6)/Brady
In United States v. Mott, 2009 WL 4048019 (N-M. Ct. Crim. App. Nov. 27, 2009) (unpublished) the court found a violation of R.C.M. 701(a)(2) and R.C.M. 701(a)(6)/Brady One morning during breakfast on ...
- The Lautenburg Amendment
On September 30, 1996, the Lautenberg Amendment became law. It is now a felony for any person who has been convicted of a misdemeanor crime of domestic violence to ship, transport, possess, or receive ... - Immigration Considerations and Court Martials.
A non-citizen will be denied admission to the US for a conviction or admitted commission of a Controlled Substance Offense, or if DHS has reason to believe the individual is a drug trafficker . There ...
- Voluntary Intoxication and Sexual Assault
Given that most military sexual assault and rape cases somehow involve alcohol or being drunk, we get countless questions on whether being drunk is a defense to sexual assault. Simply put, “voluntary ... |
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