Two new CCA published opinions: one dead zombie and one riddle solved

December has brought us warm weather and two new NMCCA published opinions. Both are in the LEXIS "CAAF and published CCA opinions" file, though (predictably) neither is on either NMCCA's web site or WESTLAW.

A zombie is “killed” by a sharp blow to the head. In United States v. Tingler, __ M.J. ___, 2006 CCA LEXIS 329 (N-M. Ct. Crim. App. Dec. 14, 2006), the Navy-Marine Corps Court tries to kill the Swiderski zombie. In United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977), the Second Circuit held that two individuals who jointly obtain drugs are not guilty of distribution when they transfer the drugs between the two of them for their personal use. Military courts have so marginalized Swiderski that a sharp blow to its head seems hardly necessary. But, when dealing with the undead, it pays to be safe. The Navy-Marine Corps Court observed, “The validity of the Swiderski reasoning is in considerable doubt among the federal circuits. ‘No other circuit has followed the Second Circuit in Swiderski.’ United States v. Washington, 41 F.3d 917, 920 n.2 (4th Cir. 1994).” Tingler, 2006 CCA LEXIS 329, at *12. Bash! “We hold that sharing an illegal drug between two servicemembers is distribution and not ‘personal use.’ We expressly reject Swiderski's applicability to drug offenses alleged under the UCMJ.” Id. Wham! “Assuming arguendo that Swiderski does apply to military courts-martial, we are confident that it does not control the appellant's case because it is factually distinguishable . . . .” Id. at *12-*13. Pow! Okay, Judge Carver, you can stop hitting it with the shovel – I think it’s really dead now. But wait! There’s more! “Even if the Swiderski holding is inapplicable or distinguishable, can the appellant be convicted of distribution of cocaine by sharing cocaine with FA Robbins after FA Robbins originally provided the cocaine to the appellant?” Id. at *18. Of course he can. Finally, NMCCA declined to give relief even though it had to send the case back to the CA for a new action TWICE, because the first time it was sent back to the CA, his action contained the same ambiguity as the original action. Blam! Wow, I hope that Moreno doesn’t turn into a zombie!

In Unites States v. Pflueger, __ M.J. ___, 2006 CCA LEXIS 328 (N-M. Ct. Crim. App. Dec. 5, 2006), NMCCA solves that age-old riddle: is there a practical difference between remission of a BCD and appellate disapproval of a BCD? NMCCA tells us that the answer is yes, with the latter being more favorable to the accused. (NMCCA’s solving of this riddle is bad news for the Columbus Clipper, who had planned to pass many a Kabul night by pondering this very question. Sorry, Marcus, looks like you’ll have to buy a few extra Sudoku books.) CAAF had remanded Pflueger to NMCCA to answer a series of questions concerning the practical effect of a remitted BCD. United States v. Pflueger, 61 M.J. 272 (C.A.A.F. 2005) (summary disposition). NMCCA explained that “[b]ecause the punitive discharge remained part of the adjudged and approved sentence after it was remitted, it continued to qualify the appellant for automatic forfeitures until it was disapproved in our decision of 30 July 2004.” Pflueger, 2006 CCA LEXIS 328, at *5-*6. The disapproval of the BCD, on the other hand, entitled the accused “to repayment of all amounts that were taken from his pay as a result of automatic forfeitures.” Id. at *8. Accordingly, NMCCA concluded, an appellate decision declining to affirm a BCD that has already been automatically remitted provides meaningful relief to the accused. Kablouie! Whoops -- I thought I saw a zombie.

--Dwight Sullivan