Tuesday, September 25, 2007

CAAF grants review of three cases

In his unforgettable commentary on United States v. Gallagher, 65 M.J. 601 (N-M. Ct. Crim. App. 2007), Guert wrote: "Judge Vollenweider, M.R.E. 404(b) called. I am afraid it is bad news. Your decision has less than a year to live." The late Commodore is now one step closer to being proved correct. Today's daily journal update included a grant of review in Gallagher on the following issues:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE SEARCH OF APPELLANT'S CLOSED BRIEFCASE, LOCATED IN THE GARAGE OF APPELLANT'S HOME, DID NOT EXCEED THE SCOPE OF HIS WIFE'S CONSENT TO SEARCH THE AREAS OF THE HOME OVER WHICH SHE HAD ACTUAL OR APPARENT AUTHORITY.

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT THE EVIDENCE OF THE CONTENT OF APPELLANT'S COMPUTER HARDDRIVE WAS PROPERLY ADMITTED AND WAS NOT THE PRODUCT OF AN UNLAWFUL SEARCH.

United States v. Gallagher, __ M.J. ___, No. 07-0527/MC (C.A.A.F. Sept. 24, 2007).

United States v. Allende was litigated before the Navy-Marine Corps Court by our very own Super Muppet and the formidable, albeit vowelless, LCDR Ng. United States v. Allende, No. NMCCA 200001872 (N-M. Ct. Crim. App. July 11, 2006). NMCCA disapproved three months of the accused's confinement and all of the forfeitures. See id., slip op. at 16. But Petty Officer Allende might win even more relief. Today's daily journal update included the following granted issues:

WHETHER THE LOWER COURT PROPERLY EVALUATED PREJUDICE AFTER IT FOUND THAT THE TRIAL COUNSEL ERRONEOUSLY AUTHENTICATED THE RECORD.

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHERE 2,484 DAYS ELAPSED BETWEEN THE ADJOURNMENT OF APPELLANT'S TRIAL AND COMPLETION OF ARTICLE 66, UCMJ, REVIEW, INCLUDING 734 DAYS IN PANEL.

United States v. Allende, __ M.J. ___, No. 06-0908/NA (C.A.A.F. Sept. 24, 2007).

CAAF also granted review of two issues in United States v. Greatting, __ M.J. ___, No. 07-0575/MC (C.A.A.F. 2007). The Navy-Marine Corps Court provides us with this overview of the case:

At the time of the offenses, the appellant was a military policeman and a staff sergeant in the Marine Corps. He was the Staff Noncommissioned Officer-in-Charge of the K9 section for Marine Corps Base Camp Pendleton, with up to 17 dogs and 19 Marines under his supervision. He was responsible for ensuring that dogs and dog handlers were properly trained, that proper records of the training were kept, and that the kennels were run according to U.S. Marine Corps and U.S. Navy standards.

The appellant was convicted of conspiring with subordinates to not properly train the dogs, to conceal unauthorized dogs in the kennels, to make and submit false training records for the dogs, and to steal food and kennel services that belonged to the Government.


United States v. Greatting, No. NMCCA 200401945, slip op. at 7 (N-M. Ct. Crim. App. March 29, 2007).

Before trying SSgt Greatting, Judge Chester had presided over the trial of four companion cases. Id., slip op. at 2. During voir dire, Judge Chester said that he had discussed the accused's companion cases with the relevant staff judge advocate and possibly the deputy staff judge advocate. Judge Chester told one or both of them that, with respect to the case of one of SSgt Greatting's alleged co-actors who was also a staff sergeant, "I thought they sold the case too low given his culpability, his admissions in the Court, given the severity of his conduct, and the repercussions of his conduct on the junior Marines that were involved in the section, the security of this installation." Id. at 3. The civilian defense counsel challenged Judge Chester for cause, but Judge Chester denied the challenge. Id., slip op. at 3-4. NMCCA rejected Appellant's argument that Judge Chester erred by remaining on the case. Id., slip op. at 4-6. CAAF granted review of the following two issues:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO RECUSE HIMSELF AFTER HE PRESIDED OVER FOUR COMPANION CASES AND WHEN HE PROVIDED SENTENCING ADVICE TO THE STAFF JUDGE ADVOCATE REGARDING THE FACTS ASSOCIATED WITH APPELLANT'S COURT-MARTIAL.

WHETHER THE LOWER COURT ERRED BY FAILING TO DISAPPROVE THE BAD-CONDUCT DISCHARGE WHEN SUCH RELIEF MIGHT HAVE REMEDIED THE VIOLATION OF APPELLANT'S RIGHT TO SPEEDY POST-TRIAL PROCESSING.

5 comments:

Jason Grover said...

Although my name is on the case, Elysia Ng did all the hard work; she wrote and filed the CCA brief. But can you believe 734 days in panel? And, as I recall, there was no oral argument to slow things down. The case was big, but not crazy big (1100 some pages I think). NMCCA got out Quintanilla, a 3000 page death-penalty case, faster than that (about 9 months in panel, with oral argument). I look forward to seeing how the government deals with the Court's delay. When it is over two years, it is a tough sell to say that the Court was just doing its job very carefully. What I think will be most interesting how CAAF deals with CCA's Tardif relief if CAAF finds a due process violation. This will be fun to listen to when it is argued.

Anonymous said...

CAAF shouldn't have to get to the delay issue. Chester should have recused himself after giving sentencing advice to the SJA. Do some trial judges have a death wish? I think Chester must have missed the judges' class at Charlottesville on the Appearance of Impropriety 101.

No Man said...

I concur with Anonymous. I don't think the oral argument will feature much on PTD. This case falls into the JO'C paradigm, why go there when you don't have to? Like a TC pursuing risky strategies and borderline evidence in a slam dunk case, why didn't Judge Chester pass the case to another Marine Corps' judge? It's not like the case was tried in Diego Garcia, they have a few GCM qualified judges at Pendleton.

Jason Grover said...

I think we have our cases confused. I was referencing Allende with the interesting delay issue, not the one involve Col Chester (Greatting).

John O'Connor said...

Well, No Man has correctly decribed O'Connor's Law. That said, I don't know the facts of this case, and therefore don't know the extent to which it should apply here. I should add that I served under Colonel Chester and hold him in high regard.

Funny aside re Col Chester. When Col Chester was OIC of the LSSS at Pendleton, I got a case from 1st Combat Engineer Battalion where a Marine had been caught with a cache of explosives in his garage in Escondido. That drew some press attention, and even more so when I found out that the same Marine had been court-martialed before for stealing explosives but had been retained. When I told then-Lt Col Chester what I discovered (because I assumed that the failure to boot the Marine last time might garner press attention), Lt Col Chester asked me "what idiot retained this guy the first time," or words to that effect. I then had to say, "uhh, sir, you were the MJ."