FY07 Jurisprudence

There appear to be three published military appellate opinions so far in Fiscal Year 2007 -- two from the Air Force Court and one from the Navy-Marine Corps Court. [Note to self: throw a "New Fiscal Year's Eve" party on 30 September 2007.]

United States v. Falcon, NMCCA No. 200401483 (N-M. Ct. Crim. App. 10 Oct 2006), is in the "Armed Forces Court of Appeals and Published Courts of Criminal Appeals" file in LEXIS, though curiously it doesn't seem to be on either NMCCA's own web site or WESTLAW. This case, which aggravates a pre-existing split among the CCAs, seems destined to go to CAAF. The main issue in the case is whether the so-called "gambler's defense" applies to a bad-check charge under Article 123a.

As Judge Stone explained for the unanimous three-judge panel, the gambler's defense "stands for the proposition that prosecutions under Article 134 for making and uttering worthless checks in support of gambling transactions cannot be maintained where there is no showing of dishonor in failing to maintain sufficient funds for payment of the check upon its presentment." Judge Stone also explained neither CAAF nor NMCCA had yet addressed whether the defense applies to an Article 123a violation. The Army and Air Force Courts has split on the issue, with the Army Court ruling that it did and the Air Force Court ruling that it didn't. NMCCA agreed with the Air Force Court.

This disagreement among the CCAs seems ripe for CAAF's resolution.

The newest published military appellate decision is United States v. Attucks, __ M.J. ___, No. ACM 35946 (A.F. Ct. Crim. App. 31 Oct 2006), available at https://afcca.law.af.mil/content/afcca_opinions/cp/attucks-35946.pub.pdf. Attucks seems to be a very straightforward application of CAAF case law to: (1) support conviction of two separate 112a offenses for smoking a blunt that, unknown to Attucks, contained cocaine as well as marijuana; and (2) reject a challenge to the unit sweep that resulted in detection of those controlled substances' metabolites in Attucks' urine.

The other published Air Force case is United States v. Vieira, __ M.J. ___, No. ACM 35727 (A.F. Ct. Crim. App. 11 Oct 2006), available at https://afcca.law.af.mil/content/afcca_opinions/cp/vieira-35727.pub.pdf. While I would want to do far more research before reaching a final opinion on the subject, Vieira's holding strikes me as wrong. SSgt Vieira was charged with child sex offenses. The charges were initially dismissed without prejudice on speedy trial grounds. The charges were then repreferred and he was ultimately convicted. The initial charges were received by the officer exercising SCM jurisdiction within the statute of limitations period. But the Air Force Court assumed without deciding that all of Vieira's misconduct occurred more than five years before the second set of charges was received after the first set had been dismissed. No matter, ruled the Air Force Court, because the second set of charges was received "within 180 days after dismissal and they allege the same acts that were dismissed, without prejudice." The Air Force Court explained:

Article 43(g)(1), UCMJ, does not bar the prosecution of charges or specifications that are dismissed as defective or insufficient for any cause even if the statute of limitations has expired, as long as the new charges and specifications: 1) are received by an officer exercising summary court-martial jurisdiction within 180 days after the dismissal and; 2) allege the same acts or omissions that were alleged in the dismissed charges or specifications.

But the initial charges WERE NOT "dismissed as defective or insufficient for any cause." UCMJ art. 43(g)(1), 10 U.S.C. 847(g)(1). There was nothing wrong with the charges. Rather, the charges were dismissed because the military judge ruled that 127 of the 221 days of pretrial delay were attributable to the government. So based on Article 43(g)'s plain wording, the 180-day post-dismissal escape hatch doesn't seem to be available in this context.

There might be some reason why Article 43(g) should be read differently, but if so, the Air Force Court certainly doesn't bother to explain it. Like Falcon, Vieira is a case that CAAF should review.

--Dwight Sullivan