Friday, July 27, 2007

CAAF grants review of indecent assault/controlled substance distribution issues

As noted and discussed over in the Sacramentorium, today's CAAF daily journal update included a grant of review in United States v. Mitchell, __ M.J. ___, No. 07-0225/MC (C.A.A.F. July 25, 2007). CAAF granted one issue raised by the defense and specified another:

WHETHER APPELLANT'S GUILTY PLEA TO INDECENT ASSAULT AS A PRINCIPAL WAS IMPROVIDENT WHERE THE PROVIDENCE INQUIRY DOES NOT ESTABLISH THAT APPELLANT POSSESSED THE SPECIFIC INTENT TO GRATIFY HIS LUST OR SEXUAL DESIRES.

WHETHER APPELLANT'S GUILTY PLEA TO DISTRIBUTING MARIJUANA WAS PROVIDENT WHEN APPELLANT TOLD THE MILITARY JUDGE THAT THE SUBSTANCE HE DISTRIBUTED WAS NOT MARIJUANA.

When the case was before NMCCA, it generated an unpublished per curiam opinion by the trio of Wagner, Vincent, and Stone. United States v. Mitchell, No. NMCCA 200501185 (N-M. Ct. Crim. App. Sept. 18, 2006) (per curiam) [No Man: available here (and yes, there is no citation to legal authority in this paragraph)]. The opinion didn't address the second, specified, issue, but provided this analysis of the first:
The appellant pleaded guilty, as an aider and abettor, to the offense of indecent assault upon Ms. C by encouraging another Marine to have nonconsensual intercourse with Ms. C. The actual perpetrator of the indecent assault against Ms. C was another Marine, LCpl Beckham. On appeal, the appellant now claims that his plea of guilty was improvident because the military judge did not elicit facts that demonstrated he encouraged LCpl Beckham to commit the indecent assault against Ms. C with the specific intent to gratify the appellant's lust or sexual desires. We disagree. There is no requirement that the appellant must have intended to gratify his, that is, the appellant's, lust or sexual desires when he encouraged LCpl Beckham to commit the indecent assault. Such a requirement would essentially do away with all aider and abettor liability for specific intent offenses. Rather, the appellant was required to admit that he intended that LCpl Beckham commit the indecent assault for the purpose of satisfying LCpl Beckham's lust or sexual desires. Since the providence inquiry and the stipulation of fact make it abundantly clear that the appellant intended LCpl Beckham to have sexual intercourse with Ms. C, we find that the appellant's plea of guilty was providently made. This assignment of error is without merit.

Id., slip op. at 2.

3 comments:

No Man said...

My NKO access is non-existent right now, so I'll ask our CAAFlog readers this provocative question, possibly more provocative to at lest one reader. Did that panel actually sign off on a PC opinion on that issue without a single citation to legal authority, or did CAAFlog unbelievably forget to insert the (citations omitted) parenthetical? That seems like a . . . whole lotta law to discuss without at least one citation. I won't discuss motives or reasons, but that just seems to me like a proposution that should be supported with at least a gratuitous cite for the benefit of trial counsel everywhere.

Anonymous said...

No cites. Pretty judicious, eh. Of course, judges are presumed to know the law.

Guert Gansevoort said...

The failure to cite authority is particularly troubling when a reading of the Manual and the Statutes involved commands the opposite result of that adopted by the panel.