Monday, January 05, 2009

CAAF issues opinion in Marine Corps case

CAAF issued a per curiam opinion today in United States v. Thompson, __ M.J. ___, No. 08-0334/MC (C.A.A.F. Jan. 5, 2009) (per curiam). Here's a link. More later.

10 comments:

Anonymous said...

The court neglected to answer the key question - whether a military court can ever substitute a closely related offense for the one overturned on appeal. If the closely related offense doctrine has been overruled, the court should say so. Let's not hide the ball.

Dew_Process said...

Anon 1716 - I agree that the opinion could have been clearer, but unless it's a bona fide LIO, a "closely related" offense that has a different element than the charged offense, violates Jones/Apprendi etc.

Anonymous said...

But what about Sapp?

Anonymous said...

Government conceded the issue.

dreadnaught said...

How does the Court not mention Fuller, Foster, or Brinson? Does this opinion leave unchanged the ability of a CCA to approve a 134, as long as it is not classified as closely related? Fuller, 54 M.J. 107 holds,"every enumerated offense under the UCMJ is per se prejudicial to good order and discipline or service-discrediting." Thus, NMCCA should have been able to approve a 134. This opinion leaves a number of questions unanswered.

Dwight Sullivan said...

Yo Dread-mon,

Actually, I think the opinion provides pretty clear answers. In Fuller, Foster, and Brinson, the relevant appellate court declined to uphold the original finding and instead upheld a finding to an LIO (a general disorder in the case of Brinson). Had NMCCA struck down kidnapping and upheld a general disorder based on the same conduct, that would have been permissible.

Where NMCCA went astray -- and I think CAAF's opinion makes this clear -- was in upholding a finding of guilty that had elements that weren't contained within the original charge. Picture a Venn diagram in which the original finding's elements are in red and the reduced finding's elements are in yellow. As long as the reduced finding's circle is entirely orange, then the CCA is free to affirm that finding instead. But if any of the reduced finding's circle remains yellow, then in a contested case, a CCA may not substitute a finding of guilty to that offense for the original offense.

Once again, Venn diagrams conquer all.

Jeff Stephens said...

This decision also makes me hopeful for the outcome of U.S. v. McCracken, argued at CAAF several weeks ago. In that case, NMCCA set aside a conviction for indecent assault and affirmed the LIO of indecent acts, finding insufficient evidence for lack of consent of the victim to sexual acts, but that the presence of Appellant's roommate in the room made any consensual sexual acts per se indecent--not a government theory presented at trial. I admit some severe bias as McCracken's first appellate defense counsel, but I think that this case, while much closer, still has the same Apprendi issue of proof of an additional element, the presence of the roommate, not presented at trial. Any thoughts?

Dew_Process said...

Bur see, US v. Conliffe, supra.

dreadnaught said...

CAAFLog,

Tracking on the Venn diagrams. NMCCA was clearly wrong to approve reckless endangerment, because “wrongful and reckless” and “likely to produce death or grievous bodily harm” are unarguably not elements of kidnapping.

Under your explanation, which appears to be correct, NMCCA may approve the LIO of a general disorder. Thus, Thompson is a taxonomy case. If NMCCA, in its subsequent opinion, renames the LIO from “reckless endangerment” to “general disorder” then God’s in his Heaven – All’s right in the world!

Query: may the general disorder carry the same punishment as reckless endangerment?

One additional question arising from Conliffe: what about preemption doctrine? The Conliffe majority notes the military “preemption doctrine” bars the government from charging an accused under Article 134(1), UCMJ, and Article 134(2), UCMJ, for conduct that is appropriately charged under an enumerated article . . .” While kidnapping is not an enumerated article, it is a listed 134. Is it appropriate for a CCA to not find one of the elements of a listed 134, then approve a 134(1) or (2) with all of the elements except the one not found? In Thompson, NMCCA finds the element of “holding for a period” to be missing. Thus, may NMCCA approve a LIO that is kidnapping sans “holding for a period” and call it a general disorder?

As always, looking forward to your thoughts.

Dwight Sullivan said...

Yo Dread-mon,

The maximum punishment for a general disorder is confinement for one month and forfeiture of two-thirds pay for one month. See MCM, Pt. IV, para. 73e(2). My guess is that's the lowest max punishment in the MCM.

The max punishment for reckless endangerment is a BCD, total FF, and confiement for a year. MCM, Pt. IV, para. 100a(e).

But affirming a finding of guilty to reckless endangerment doesn't appear to be among the options that CAAF gave to NMCCA. Thompson's decretal paragraph provides: "The record is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals to reassess Appellant's sentence in light of this Court's action on the reckless endangerment specification or to order a rehearing." So it looks like NMCCA has only two options: (1) reassess the sentence on the basis that Spec 2 of Charge V is dismissed; or (2) kick the case back to the trial level. If NMCCA were to instead affirm a reckless endangerment conviction to Spec 2 of Charge V, we might have another Allbery situation with NMCCA playing the role of AFCCA.