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Wednesday, April 30, 2008
Living to fight another day
CAAF has remanded a case to the Navy-Marine Corps Court to consider an issue that appellate defense counsel apparently raised for the first time before CAAF. United States v. Roberts, __ M.J. ___, No. 08-0283/MC (C.A.A.F. Apr. 29, 2008) (summary disposition). CAAF granted review of "WHETHER THE MEMBERS ERRED WHEN THEY FOUND APPELLANT GUILTY OF STEALING 'MILITARY' PROPERTY IN ALL OF THE SPECIFICATIONS OF CHARGE I, WHEN THE PROPERTY WAS OWNED BY A NON-APPROPRIATED FUND INSTRUMENTALITY," and sent the case back to the Navy-Marine Corps Court to consider that issue in the first instance.
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4 comments:
Along with the temporary-reservist appellate defense counsel, Judges Geiser, Kelly, and Couch missed this one. I am sorry, but the issue of whether this money constituted military property was a fairly obvious one.
The appellant, a gunnery sergeant (E-7), served as bookkeeper for the Augmented Dining Fund (ADF) at The Basic School (TBS) in Quantico, Virginia. The ADF was a nonappropriated fund used to fund mess nights for officers at TBS. The fund was tax exempt and would help front the costs for mess nights for the junior officers attending TBS. The officers would pay the fund back dollar for dollar.
Kudos to the new appellate defense counsel who boldly asserted the error. CAAF is being somewhat kind in not playing the role of Alex Trebek and requiring such errors to be phrased in the form of an IAC. I hope the new appellate defense counsel is equally bold in asking for a new panel to avoid the old panel's subconscious incentive to protect its verdict.
Just because the money is nonappropriated doesn't make it non-military. By definition, military property includes "all property, real or personal, owned, held, or used by one of the armed forces." Mess night seems to qualify as a military use. The MCM definition only excludes retail property from the BX/PX - and that exclusion apparently was to accommodate an earlier bad precedent from CAAF.
How do we know the CCA judges didn't consider & reject any infirmity in the finding on this basis . . . just because they didn't list every possible unraised, meritless issue they thought about & rejected in considering the case?
Doesn't their affirmance of the findings mean they were satisied the evidence was sufficient on each & every element, and wouldn't it have been an element that the property was military property? If they didn't think the property was "military property," then they couldn't have affirmed.
Seems to me this decision assumes that the CCA judges aren't doing their jobs unless they explicitly spell it out in the decision. Sounds like in this case the mil prop issue must necessarily have been considered & rejected (implicity) in affirming the findings.
The armed forces uses the highways. Hence, highways are military property? Nice try. The issue needs to be litigated.
Your defense of CCA is valiant. "How do we know the CCA judges didn't consider & reject any infirmity in the finding on this basis" Well, because they usually tell us. "While not raised as an issue by appellate defense counsel, we note that . . ."
You are right, though. It is possible they considered it. But any "close call" needs to be written-up. These judges were put on their court for their experience and knowledge...and to share it...not keep it to themselves.
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