United States v. Townsend, __ M.J. ___, No. 07-0229/NA (C.A.A.F. June 28, 2007), continues CAAF's recent fascination with member challenge issues. See, e.g., United States v. Albaaj, __ M.J. ___, No. 07-0002/AR (C.A.A.F. June 21, 2007); United States v. Hollings, 65 M.J. 116 (C.A.A.F. 2007); United States v. Terry, 64 M.J. 295 (C.A.A.F. 2007); United States v. Briggs, 64 M.J. 285 (C.A.A.F. 2007); United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007). The granted issue in Townsend is:
WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT'S CHALLENGE FOR CAUSE AGAINST LIEUTENANT [B].
One interesting sidelight in Townsend is that the military judge in the case was Captain Rolph, now the Chief Judge of NMCCA. See United States v. Townsend, No. NMCCA 200501197, slip op. at 1 (Jan. 12, 2007).
The second granted case is United States v. Wright, __ M.J. ___, No. 07-0412/AR (C.A.A.F. June 28, 2007). This issue there is:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLANT'S PLEA OF GUILTY TO THE SPECIFICATION OF CHARGE I AND TO CHARGE I, FALSE OFFICIAL STATEMENT, PROVIDENT WHEN THE STATEMENT IN QUESTION WAS NOT, IN FACT, FALSE.
The issue sounds reminiscent of ACCA's awful opinion in United States v. Stokes, __ M.J. ___, No. ARMY 20041348 (A. Ct. Crim. App. June 11, 2007), in which it affirmed a finding of guilty to a larceny of military property offense to which the accused had pled guilty, despite ACCA's acknowledgement that the plea was based on a factually untrue assumption. But I can't find an electronic trace of ACCA's opinion in Wright, so I am not sure of the factual scenario that led to the issue.
Finally, United States v. Bolsins, __ M.J. ___, No. 07-0553/NA (C.A.A.F. June 28, 2007), is another Medina trailer. See United States v. Medina, __ M.J. ___, No. 07-0096/AR (C.A.A.F. Apr. 27, 2007) (order). We previously discussed Medina and its trailers here, here, and here. Here's the issue in Bolsins, so the No Man can drool his Pavlovian saliva on his keyboard yet again:
WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AFFIRMING A CLAUSE 2 (SERVICE DISCREDITING CONDUCT) OFFENSE UNDER ARTICLE 134, UCMJ, AFTER IT FOUND CHARGED CLAUSE 3 (CRIME AND OFFENSE NOT CAPITAL) OFFENSE TO BE IMPROVIDENT, ADDED AN ELEMENT TO THE OFFENSE IN CONTRAVENTION OF APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000), JONES v. UNITED STATES, 526 U.S. 227 (1999),AND SCHMUCK v. UNITED STATES, 489 U.S. 705 (1989).
Unlike with the previous two Medina trailers -- Frank and Donnelly -- CAAF ordered briefing in Bolsins. It isn't apparent to me why CAAF wanted briefs filed in this case but not the previous two.
In Bolsins, the accused was charged with, among other offenses, violating a Hawaii statute requiring parents to seek medical attention for their children -- apparently under a FACA theory. See United States v. Bolsins, No. NMCCA 200602408 (N-M. Ct. Crim. App. March 15, 2007). (Bolsins' other five offenses are what required the medical attention for his infant son.) As NMCCA explains: "The specification does not contain the assimilative language, nor does it contain the required elements of criminality from the Hawaiian statute. Missing also is any reference to whether the situs of the offense was an area over which the United States had either exclusive or concurrent jurisdiction." Id., slip op. at 2. I guess if I lived in Hawaii, I'd have better things to do than looking up the correct form for 134(3) offenses as well. But not to worry; the military judge and NMCCA together save the TC from the natural consequences of his "hang loose" attitude:
[T]he military judge informed the appellant that he was going to inquire into the terminal Article 134, UCMJ, offense, even though it was not a part of the Hawaii Revised Statute. The military judge stated the additional element and then provided definitions for both service discrediting conduct and conduct prejudicial to good order and discipline. Thereafter, the military judge elicited facts from the appellant indicating that the appellant believed that his failure to seek medical care for his son was service discrediting. Therefore, with regard to Charge II and its sole specification, we affirm a finding of guilty to the lesser included offense, as stated in the specification, under Clause 2 of Article 134, UCMJ.
Id., slip op. at 3.
There is another curiosity about the Bolsins opinion. NMCCA purports to reasess the sentence under "the principals [sic] set forth in United States v. Cook, 48 M.J. 434, 438 (C.A.A.F. 1998) and United States v. Sales, 22 M.J. 305, 307-09 (C.M.A. 1986)." Id., slip op. at 4. But NMCCA then applied merely the standard for determining sentence appropriateness under Article 66 and NOT the standard for reassessing a sentence. The court wrote: "We find that the sentence continues to be appropriate for the offenses and the offender and affirm the sentence as approved by the convening authority." Nowhere does NMCCA perform the required analysis of whether the original sentence was no greater than that which the military judge would have imposed absent the error.
As CAAF explained in its oft-cited Peoples opinion, sentence reassessment is a "two-step process: first determining what sentence the military judge would have adjudged without [the error] and thereafter deciding . . . what sentence was 'appropriate.'" United States v. Peoples, 29 M.J. 426, 428 (C.M.A. 1990). In this case, NMCCA skipped that first step. CAAF has remanded other cases where a CCA committed this very error. See, e.g., United States v. Richardson, 62 M.J. 323 (C.A.A.F. 2005) (summary disposition). One wonders whether, whatever CAAF's resolution of the Apprendi issue, it will sua sponte remand Bolsins to NMCCA for a proper Sales analysis.