Thursday, November 09, 2006

Add one case, subtract another

In its 3 November daily journal, CAAF granted review of a new case and resolved an old one.

CAAF granted review in the Army case of United States v. Young. On their face, the issues seem stunningly uninteresting: a legal sufficiency challenge to a marijuana distribution charge, the burning legal question of whether a possession with intent to distribute marijuana charge is an LIO of a distribution of marijuana charge, and post-trial delay. CAAF ordered briefs on the first two issues only.

In the Air Force case of United States v. Barrett, on 22 August 2006, CAAF had granted review of an issue concerning whether the military judge's findings instructions and her later decision to order a proceeding in revision violated the Walters line of cases. See United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003). Walters deals with the problem of ambiguous findings arising when an accused is charged with committing an offense on divers occasions but is found guilty by exceptions and substitutions of only a single instance of misconduct without specifying which alleged act constituted the basis for the finding of guilty. CAAF has ruled that such findings make appellate review impossible because the appellate court doesn't know which conduct resulted in a conviction and which conduct produced an acquittal.

As the Air Force Court's unpublished opinion makes clear, Barrett was charged with distributing Percocet on divers occasions. United States v. Barrett, No. ACM 35790 (A.F. Ct. Crim. App. 28 Feb 2006), available at Before Walters was decided, the members found him guilty by exceptions and substitutions of distribution on a single occasion. Once CAAF announced its decision in Walters, the military judge recognized the problem and ordered a proceeding in revision for the members to specify the one distribution that resulted in the conviction.

The Air Court upheld that procedure. But not so fast -- the Air Force appellate government division conceded error at CAAF. CAAF accepted the concession, dismissed the affected specification, and remanded the case to the Air Force Court to either reassess the sentence in light of the remaining specifications or order a rehearing on sentence.

--Dwight Sullivan

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