Thursday, August 02, 2007

The Air Force Court posted 2 published opinions today

The first is United States v. Pariso, __ M.J. ___, No. ACM 36671 (A.F. Ct. Crim. App. July 31, 2007).

Senior Airman Pariso was found guilty of using the prescription drug Tylenol III. The providence inquiry indicated that he injected melted Tylenol III tablets with a syringe, as a result of which he stopped breathing before a visit to the emergency room successfully revived him. He was sentenced to a BCD, confinement for 60 days, and reduction to E-1.

The defense raised two issues on appeal: (1) whether the providence inquiry invalidated the plea because Pariso indicated that he or his fiance may have obtained the Tylenol III with a prescription; and (2) whether the sentence was inappropriately severe. Held: no and no.

During the Care inquiry, Pariso indicated that the prescription would not have been recent and that he didn't use the Tylenol III in the intended manner. He also admitted that he had no authority to use the Tylenol III and that he wasn't using it for medical purposes. The Air Force Court held:

[A] service member who knowingly uses a controlled substance without legitimate medical reason for doing so has wrongfully used the drug in the same way a physician who knowingly prescribes a controlled substance without a legitimate medical reason is guilty of "wrongfully" dispensing the substance in violation of the [Controlled Substances Act, 21 U.S.C. 801, 802, 841(a)(f)]. Once an individual uses the controlled substance for some purpose other than medical treatment, the use is no longer legally justified or authorized and is wrongful.

Id., slip op. at 4.

The Air Force Court rejected the sentence appropriateness challenge in a single sentence supported by a citation to United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988). That page of Healy features a discussion of the distinction between "justice" and "clemency" -- which was presumably the proposition that the Air Force Court had in mind when citing it.

The second is United States v. Gatewood, __ M.J. ___, No. 36722 (A.F. Ct. Crim. App. July 30, 2007) (per curiam).

Gatewood involves an unsuccessful plain error challenge to the propriety of the TC's closing argument. "In the first statement complained of by the appellant, trial counsel referred to the 'Core Values' of the Air Force (integrity, service before self, excellence) and briefly described how the appellant failed to live up to them." Id., slip op. at 2. I must admit to being somewhat relieved that the court determined that this was proper argument, since a few years ago I whipped out a Marine Corps Values card while making my closing argument as recorder in an admin discharge board.

"The second and third statements made by trial counsel the appellant asserts were improper referred to the appellant's pregnancy and, essentially, her fitness as a mother." Id., slip op. at 2-3. The court essentially ruled that the defense had opened the door to such argument by basing much of its E&M case on Airman Basic Gatewood's responsibilities as a mother and the adverse effect that confinement would have on her "relationship with her soon-to-be daughter." Id., slip op. at 3.


John O'Connor said...

Worried about your argument at an admin board? Those things are the wild, wild west. You can argue almost anything (like the tried and true, "well if he didn't do this, he pobably did something else we don't know about.").

When I was at Legal Team Delta, we had a grunt first lieutenant do the admin boards. To say he was a non-lawyer is the height of understatement. And I mean that in a good way.

Bill said...

Must be a slow day at AFCCA. I don't see much in either of these opinions that warrants publishing.