Air Force Court Martial Appeal: Larceny and Drug Use
Material prejudice from error
In United States v. Moore, 67 M.J. 753 (A.F. Ct. Crim. App. 2009) the Appellant pled guilty, and was found guilty, at a judge alone special court-martial, for wrongful use of alprazolam (Xanax), divers uses of marijuana, and larceny. The adjudged and approved sentence was a bad-conduct discharge, five months confinement, and reduction to E-1. The issue in this case was whether the use of Appellant’s positive urinalysis tests, conducted after the period of charged marijuana use, were improper evidence in aggravation. The Court concluded that it was plain error to permit the documents and the Appellant suffered material prejudice because of the error.
The AFCCA’s analysis in the case reinforces the importance of complying with the specific requirements of R.C.M. 1001. “[T]he question is not whether the appellant’s continued use of marijuana while pending court-martial charges is aggravating—certainly it is, and it has a direct impact on good order and discipline. The question is whether the subsequent uses make the former use aggravating in a way consistent with the limitations of R.C.M. 1001(b)(4) and case precedent. We find that it does not.” The ACCA analyzed the two limitations on aggravation evidence: (1) it should be directly connected to the charged offenses; and (2) it should pass a M.R.E. 403 balancing. In this case, the positive urinalysis tests after the charged period were not “directly related” to the charged offenses. When the aggravation evidence is uncharged misconduct, it must involve a continuous course of conduct with the charged offense. Regarding uncharged drug use specifically, the court applied the test from United States v. Hardison, 64 M.J. 279, 282 (C.A.A.F. 2007), that held uncharged misconduct should be “closely related in time, type, and/or often outcome, to the convicted crime.” In Hardison, the court held that past service drug use failed this test when there was a three-year gap between the pre-service use and the charged use. Although though the time separation in this case was just a few months, the ACCA still did not find the uncharged misconduct to be “directly related” absent any specific evidence showing the uses were related; “[t]o conclude otherwise would simply result in the conclusion that all drug usage is aggravating to any charged drug usage.” The Court acknowledges that the limitations in R.C.M. 1001 have been criticized, but points out the government has other options when the rules prohibit admitting uncharged misconduct in aggravation; the government could “incorporat[e] the essence of that misconduct in opinion testimony, refer additional charges, or try to admit it under R.C.M. 1001(b)(2) as properly maintained personnel records.”
An experienced military lawyer can successfully challenge a guilty verdict and have it overturned. If you have been held guilty by a court martial, consult with an experienced court martial lawyer. Court martial attorneys understand the complex rules and procedures of military law and can use them to your advantage. Consult with a military attorney if you are facing court martial. A military attorney can provide you with invaluable advice and service that can save your military career.
