Sunday, July 15, 2007

A new published NMCCA opinion: Larry Holmes comes out of retirement.

Who could forget fine work of Lieutenant Commanders Belsky and Fulton in the epic cases of Staff Sergeants Teffeau and Finch? Staff Sergeants Finch and Teffeau plied young recruits with alcohol one January afternoon in Kansas and, before the night was through, one of the recruits was dead, having driven her mustang into a local lake. Staff Sergeant Finch tried unsuccessfully to save her before going for help at a local farmhouse. Staff Sergeant Teffeau made several false statements to civilian rescuers and law enforcement about the events of that afternoon, and he later pleaded guilty to making false official statements. LCDR Belsky failed to convince the CAAF that Teffeau’s statements to local officials were not “official” for purposes of Article 107 because they were made to civilian law enforcement. United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2003).

Apparently LCDR Belsky has been seeking a rematch for four years. But any good rematch requires a good contender. Enter Private Larry D. Holmes. The Marine Corps version of the Easton Assassin unlawfully borrowed a car off of the base “lemon lot” and drove it to the other legal black hole in Latin America: Tijuana. On the return trip across the border, he was questioned by U.S. customs agents and later the CHiPs. Naturally, he lied to both of them about how he had come to be in possession of what was certainly a fine automobile. Private Holmes then deployed to Iraq where a special agent of the NCIS was able to bust the case of the wrongfully appropriated vehicle wide open. Naturally, in addition to the wrongfully appropriated vehicle, the Marine Staff Judge Advocate charged the Assassin with three false official statements: one for the customs agent, one for the Officer Francis Llewellyn Poncherello, and one for Mark Harmon. Private Holmes pleaded guilty to all charges.

LCDR Belsky raised the same argument he had raised in Teffeau: the Assassin (this one in name only) had not made false official statements to the civilian authorities because the statements were not official. The Navy-Marine Corps Court of Criminal Appeals, not faced with a dead teenager this time, agreed. United States v. Holmes, M.J. (N-M. Ct. Crim. App. July 9, 2007). In a well-crafted opinion by the conscience of the Court, LtCol Couch, the court found no “nexus exists between the basis” for the civilian questions “and appellant’s military duties and status.” The Court, like the CAAF in Teffeau, relied upon Solorio v. United States, 483 U.S. 435 (1987), for its nexus test.

All living practitioners in the Navy-Marine Corps should read this published decision. Making a false official statement is one of the favorite add-on charges of the overzealous SJA/TC. Take for example the cases of Teffeau and Finch. In a case involving a promising dead teen in a lake, why not charge false official statement too? How about some seatbelt violations? And we still don’t know who was really driving the car.

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