Court Martial Lawyer - Military Defense Attorney

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Air Force Court Martial Appeal: Larceny and Drug Use

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.

Court Martial Lawyer - Accessory After the Fact UCMJ Article 78

Court Martial Lawyer - Accessory After the Fact UCMJ Article 78

a. MAXIMUM PUNISHMENT: Maximum authorized for principal offense, but not death, no more than 1/
2 confinement authorized for principal offense, and not more than 10 years.
b. MODEL SPECIFICATION:
I n t h a t _ ( p e r s o n a l j u r i s d i c t i o n d a t a ) , k n o w i n g t h a t ( a t / o n b o a r d — l o c a t i o n ) , o n o r a b o u t
__________, __________ had committed an offense punishable by the Uniform Code of Military Justice,
to wit: __________, did, (at/on board—location) on or about __________, in order to (hinder) (prevent) the
( a p p r e h e n s i o n ) ( t r i a l ) ( p u n i s h m e n t ) o f t h e s a i d _ , ( r e c e i v e ) ( c o m f o r t ) ( a s s i s t ) t h e s a i d
__________ by __________.
c. ELEMENTS:
(1) That (state the alleged offense), an offense punishable by the
Uniform Code of Military Justice, was committed by (state the name of
the principal) at (state the time and place alleged);
(2) That the accused knew that (state the name of the principal) had
committed such offense;
(3) That the accused thereafter (state the time and place alleged)
(received) (comforted) (assisted) (state the name of the principal) by
(state the manner alleged); and
(4) That the accused (received) (comforted) (assisted) (state the name
of the principal) in order to (hinder) (prevent) (his) (her) (apprehension)
(trial) (punishment).
d. DEFINITIONS AND OTHER INSTRUCTIONS:
The accused may be found guilty as an accessory after the fact only if,
i n a d d i t i o n t o a l l o t h e r e l e m e n t s o f t h e o f f e n s e , y o u a r e s a t i s f i e d
beyond a reasonable doubt that:
NOTE 1: Elements of principal’s offense. Here, the members must be instructed on the
elements of the offense allegedly committed by the principal. The instructions given should
be those setting forth the elements of the pertinent offense and should be carefully tailored
to include such factors as value, amount, or other essential ingredients which might affect
the maximum punishment.
NOTE 2: Principal offense housebreaking or burglary. In cases in which the offense alleged
to have been committed by the principal is burglary or housebreaking, the members should
be advised as to the relevant elements of the particular offense or offenses which the
158 DA PAM 27–9 • 15 September 2002
ARTICLE 78
evidence indicates the principal may have intended to commit inside the house, building, or
structure involved.
N O T E 3 : M a x i m u m p u n i s h m e n t f o r p r i n c i p a l o f f e n s e a f f e c t e d b y v a l u e . I f t h e o f f e n s e
c o m m i t t e d b y t h e p r i n c i p a l i s o n e f o r w h i c h t h e m a x i m u m p u n i s h m e n t i s g r a d u a t e d
according to the value of the property, damage, or amount involved, and if the allegations
and evidence will support a finding as to specific value, damage, or amount, the element(s)
of the instruction should be phrased so as to set out that value, damage, or amount. For
example, if the offense committed by the principal is larceny, element 1 of the instruction
should state: “That larceny, an offense punishable by the Uniform Code of Military Justice,
of property of a value of (state the value alleged) was committed by (state the name of the
principal) at (state the time and place alleged).” Offenses other than larceny and wrongful
appropriation which require similar modification of the instruction include: simple arson
( A r t i c l e 1 2 6 ) , f r a u d a g a i n s t t h e U n i t e d S t a t e s ( A r t i c l e 1 3 2 ) , k n o w i n g l y r e c e i v i n g s t o l e n
property (Article 134), and other offenses in violation of Articles 103, 10 8, 109, and 123a.
When value, damage or amount is in issue an instruction in accordance with Instruction 7-
16, Value, Damage, or Amount, should be given.
NOTE 4: Conviction of the principal not required. Conviction of the principal of the offense
to which the accused is allegedly an accessory after the fact is not a prerequisite to the trial
of the accused. Furthermore, evidence of the acquittal or conviction of the principal in a
separate trial is not admissible to show that the principal did or did not commit the offense.
Sex Assault Court Martial Lawyer

Court Martial Crimes - Aiding Article 77

Court Martial Crimes - Aiding Article 77

3–1–1. PRINCIPALS—AIDING, ABETTING, COUNSELING, COMMANDING, OR
PROCURING (ARTICLE 77)

a. This paragraph does not contain any instructions, but will assist the military judge in formulating
instructions when issues of vicarious liability are raised by the evidence.

b. Article 77 does not define an offense; it merely makes clear that a person who did not personally
perform an act charged may still be criminally responsible for that offense.

c. See Instruction 7-1-4 for the instructions on the vicarious liability of co-conspirators.

d. When the evidence shows that the accused is the person who actually committed the offense, the military
judge should use that Chapter 3 instruction corresponding to the offense charged.

e. If the evidence shows that the accused did not actually commit the offense, but may be criminally
responsible as one who aided and abetted, commanded, counseled, procured, or caused the commission of
the offense, the military judge should follow the guidance in Instruction 7-

1. Depending on the evidence,
one, two, or all of Instructions 7-1-1 through 7-1-3 will be given.

f. As Instruction 7-1 indicates, when instructing on an offense in which the accused is not the one who
actually committed the offense, the military judge should:

(1) Give the elements of the offense charged indicating that the actual perpetrator, and not the accused, is
the one who is alleged to have committed the offense.

(2) After all the elements of the charged offense have been given, add the following element: “That
(state the name of the accused) ((aided and abetted) (counseled) (commanded) (procured) (caused)) (state
the name of the actual perpetrator) ((to commit) (in committing)) the offense of (state the alleged offense)
by (state the manner alleged).”

(3) Give the instructions and definitions of the offense charged, remembering that “the accused” as used
in those instructions and definitions will refer to the actual perpetrator and not the accused at trial.

(4) Give Instructions 7-1-1 through 7-1-3 as required by the evidence.
156 DA PAM 27–9 • 15 September 2002

Scope of Criminal Liability - Military Court Martial Law

Military Court Martial Law

SCOPE OF CRIMINAL LIABILITY - Principal Liability Defined

From the Crimes and Defenses Deskbook, JA 337 July 2009

Published by the Criminal Law Department, The Judge Advocate General's Legal Center and School, U.S. Army Charlottesville, VA

I. PRINCIPALS. UCMJ ART. 77 - Principal Liability Defined.

1. Text. “Any person punishable under this chapter who: (1) commits an offense
punishable by this chapter or aids, abets, counsels, commands, or procures its
commission; or (2) causes an act to be done which if directly performed by him
would be punishable by this chapter; is a principal.” Article 77.

2. Purpose. Article 77 directs that a person need not personally perform the acts
necessary to constitute an offense to be guilty of that offense. It eliminates the
common law distinctions between principals in the first degree, principals in the
second degree, and accessories before the fact. All of these parties to an offense
are deemed principals, are equally guilty of the offense, and may be punished to
the same extent.

B. Who are “Principals?” The MCM creates two categories of individuals that can be
guilty of an offense as a principal: 1) Perpetrators & 2) Other Parties.

1. Perpetrators. “A perpetrator is one who actually commits the offense, either
by the perpetrator’s own hand, or by knowingly or intentionally inducing or
setting in motion” acts by an agent or instrument which results in the commission
of the offense. MCM, pt. IV, ¶ 1b(2)(a).

a) United States v. Perry, 27 M.J. 796 (A.F.C.M.R. 1988) (holding
accused liable as a perpetrator where, although accused never touched the
stolen property, he directed another airman to grab a paper bag that had
been left temporarily unguarded at a local bar).

b) Suppose Person A intentionally causes an innocent Person B to
commit an offense’s act against Person B’s will. The offense’s mens rea
requirement may be satisfied by Person A’s criminal intent. In such a
case, only Person A is guilty of a crime. United States v. Minor, 11 M.J.
608 (A.C.M.R. 1981) (holding accused liable as a principal to sodomy,
where accused makes himself a party to the co-accused’s threat
compelling a victim’s boyfriend to commit sodomy on victim).

c) Authority of government “agent” or “decoy,” however, may prevent
liability as a perpetrator. United States v. Sneed, 38 C.M.R. 249 (C.M.A. 1968). Accused proposed theft of military property to two other soldiers.
Soldiers informed military authorities and were told to go along with the proposal. Accused subsequently directed one Soldier to load military property on a truck and directed the other Soldier to drive away with the military property. Because the Soldiers were government “agents or decoys,” the government never lost control or possession of the military
property and their acts did not constitute a wrongful taking. Under the
circumstances, the accused never acquired possession, dominion, or
control; conviction for larceny reversed, and lesser included offense of
attempted larceny affirmed. See also United States v. Klink, 14 M.J. 743
(A.F.C.M.R. 1982) (larceny upheld where accused, along with assistance
of two government operatives, actually took goods from a government
warehouse, carried them to a

Military Lawyer - Court Martial Appealed due to " Bad Mouthing Army "

Military Lawyer - Court Martial Appealed due to "Bad Mouthing Army"

Derogatory remarks about the Army

United States v. Scheuerman, 67 M.J. 709 (A. Ct. Crim. App. 2009) is a case that involved deeogatory remarks regarding the Army. The Appellant’s platoon sergeant from the time period after the second AWOL testified during presentencing. He testified that he saw the Appellant “degrade” the Army to new soldiers by telling them they did not know what they were getting into and how bad the Army was. The platoon sergeant considered this “badmouth[ing]” of the Army had a negative affect on the Army. The military judge overruled a defense objection that the government was using specific instances of conduct to establish rehabilitative potential.

On appeal, the Appellant asserts the platoon sergeant’s comments were improper rehabilitation evidence, improper aggravation evidence, and also failed M.R.E. 403 balancing. The ACCA ruled that the military judge did not error by allowing the derogatory statements. Though it was improper rehabilitation evidence, it was proper aggravation evidence, and preclusion of evidence under one sub-section of R.C.M. 1001 does not preclude admission under a separate sub-section of R.C.M. 1001. The ACCA found that “Appellant’s poor attitude toward military service, which, in part, motivated his multiple AWOL periods, is a circumstance surrounding his offenses.”

“Essentially, appellant repeatedly made derogatory remarks about his victim and now complains those remarks should not be considered in his sentencing. We disagree; appellant’s remarks demonstrate a lack of remorse for the offenses of which he was convicted and, as such, are relevant in fashioning an appropriate sentence.” Although the military judge did not conduct a M.R.E. 403 balancing on the record, the ACCA found no abuse of discretion in a trial by military judge alone where the subject statements “clearly undermine[d] morale, order, and discipline in the military.

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.

Judges - United States Court of Appeals for the Armed Forces

§ 942. Art. 142. Judges

(a) Number.— The United States Court of Appeals for the Armed Forces consists of five judges.
(b) Appointment; Qualification.—
(1) Each judge of the court shall be appointed from civilian life by the President, by and with the advice and consent of the Senate, for a specified term determined under paragraph (2). A judge may serve as a senior judge as provided in subsection (e).
(2) The term of a judge shall expire as follows:
(A) In the case of a judge who is appointed after March 31 and before October 1 of any year, the term shall expire on September 30 of the year in which the fifteenth anniversary of the appointment occurs.
(B) In the case of a judge who is appointed after September 30 of any year and before April 1 of the following year, the term shall expire fifteen years after such September 30.
(3) Not more than three of the judges of the court may be appointed from the same political party, and no person may be appointed to be a judge of the court unless the person is a member of the bar of a Federal court or the highest court of a State.
(4) For purposes of appointment of judges to the court, a person retired from the armed forces after 20 or more years of active service (whether or not such person is on the retired list) shall not be considered to be in civilian life.
(c) Removal.— Judges of the court may be removed from office by the President, upon notice and hearing, for—
(1) neglect of duty;
(2) misconduct; or
(3) mental or physical disability.
A judge may not be removed by the President for any other cause.
(d) Pay and Allowances.— Each judge of the court is entitled to the same salary and travel allowances as are, and from time to time may be, provided for judges of the United States Courts of Appeals.
(e) Senior Judges.—
(1)
(A) A former judge of the court who is receiving retired pay or an annuity under section 945 of this title (article 145) or under subchapter III of chapter 83 or chapter 84 of title 5 shall be a senior judge. The chief judge of the court may call upon an individual who is a senior judge of the court under this subparagraph, with the consent of the senior judge, to perform judicial duties with the court—
(i) during a period a judge of the court is unable to perform his duties because of illness or other disability;
(ii) during a period in which a position of judge of the court is vacant; or
(iii) in any case in which a judge of the court recuses himself.
(B) If, at the time the term of a judge expires, no successor to that judge has been appointed, the chief judge of the court may call upon that judge (with that judge’s consent) to continue to perform judicial duties with the court until the vacancy is filled. A judge who, upon the expiration of the judge’s term, continues to perform judicial duties with the court without a break in service under this subparagraph shall be a senior judge while such service continues.
(2) A senior judge shall be paid for each day on which he performs judicial duties with the court an amount equal to the daily equivalent of the annual rate of pay provided for a judge of the court. Such pay shall be in lieu of retired pay and in lieu of an annuity under section 945 of this title (article 145), subchapter III of chapter 83 or subchapter II of chapter 84 of title 5, or any other retirement system for employees of the Federal Government.
(3) A senior judge, while performing duties referred to in paragraph (1), shall be provided with such office space and staff assistance as the chief judge considers appropriate and shall be entitled to the per diem, travel allowances, and other allowances provided for judges of the court.
(4) A senior judge shall be considered to be an officer or employee of the United States with respect to his status as a senior judge, but only during periods the senior judge is performing duties referred to in paragraph (1). For the purposes of section 205 of title 18, a senior judge shall be considered to be a special government employee during such periods. Any provision of law that prohibits or limits the political or business activities of an employee of the United States shall apply to a senior judge only during such periods.
(5) The court shall prescribe rules for the use and conduct of senior judges of the court. The chief judge of the court shall transmit such rules, and any amendments to such rules, to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives not later than 15 days after the issuance of such rules or amendments, as the case may be.
(6) For purposes of subchapter III of chapter 83 of title 5 (relating to the Civil Service Retirement and Disability System) and chapter 84 of such title (relating to the Federal Employees’ Retirement System) and for purposes of any other Federal Government retirement system for employees of the Federal Government—
(A) a period during which a senior judge performs duties referred to in paragraph (1) shall not be considered creditable service;
(B) no amount shall be withheld from the pay of a senior judge as a retirement contribution under section 8334, 8343, 8422, or 8432 of title 5 or under any other such retirement system for any period during which the senior judge performs duties referred to in paragraph (1);
(C) no contribution shall be made by the Federal Government to any retirement system with respect to a senior judge for any period during which the senior judge performs duties referred to in paragraph (1); and
(D) a senior judge shall not be considered to be a reemployed annuitant for any period during which the senior judge performs duties referred to in paragraph (1).
(f) Service of Article III Judges.—
(1) The Chief Justice of the United States, upon the request of the chief judge of the court, may designate a judge of a United States court of appeals or of a United States district court to perform the duties of judge of the United States Court of Appeals for the Armed Forces—
(A) during a period a judge of the court is unable to perform his duties because of illness or other disability;
(B) in any case in which a judge of the court recuses himself; or
(C) during a period when there is a vacancy on the court and in the opinion of the chief judge of the court such a designation is necessary for the proper dispatch of the business of the court.
(2) The chief judge of the court may not request that a designation be made under paragraph (1) unless the chief judge has determined that no person is available to perform judicial duties with the court as a senior judge under subsection (e).
(3) A designation under paragraph (1) may be made only with the consent of the designated judge and the concurrence of the chief judge of the court of appeals or district court concerned.
(4) Per diem, travel allowances, and other allowances paid to the designated judge in connection with the performance of duties for the court shall be paid from funds available for the payment of per diem and such allowances for judges of the court.
(g) Effect of Vacancy on Court.— A vacancy on the court does not impair the right of the remaining judges to exercise the powers of the court.

Army Sexual Assault Policy, DoD Guidance and Regulations

Army Sexual Assault Policy, DoD Guidance, Regulations, and Memorandums from http://www.sexualassault.army.mil/policy_reg.cfm

The Army Sexual Assault Prevention and Response Program reinforces the Army's commitment to eliminate incidents of sexual assault through a comprehensive policy that centers on awareness and prevention, training and education, victim advocacy, response, reporting, and accountability. Army policy promotes sensitive care and confidential reporting for victims of sexual assault and accountability for those who commit these crimes.

The goals of the Sexual Assault Prevention and Response Program are:

• Create a climate that minimizes sexual assault incidents, which impact Army personnel, Army civilians, and family members, and, if an incident should occur, ensure that victims and subjects are treated according to Army policy.


• Create a climate that encourages victims to report incidents of sexual assault without fear.


• Establish sexual assault prevention training and awareness programs to educate Soldiers.


• Ensure sensitive and comprehensive treatment to restore victims' health and well-being.


• Ensure leaders understand their roles and responsibilities regarding response to sexual assault victims, thoroughly investigate allegations of sexual assault, and take appropriate administrative and disciplinary action.

Army Sexual Assault Policy Links

AR 600-20: Army Command Policy

DoD Guidance, Regulations, and Memorandums

DoD Directive 6495.01: Sexual Assault Prevention and Response (SAPR) Program

DoD Instruction 6495.02 - Sexual Assault Prevention and Response Program Procedures

Army Regulation 27-10: Rights of Crime Victims

MEDCOM Regulation 40-36: Medical Facility Management of Sexual Assault (Dec 2004)

Army Regulation 350-1: Army Training and Leader Development

Military Treatment Facility (MTF) Management of Reported Alleged Sexual Assault Cases - Payment For Exams and Kits

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Sex Assault Court Martial Lawyer Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions and court martials.

TITLE 10 - CHAPTER 47 - SUBCHAPTER I - § 801 - UCMJ Definitions

TITLE 10 > Subtitle A > PART II > CHAPTER 47 > SUBCHAPTER I > § 801

§ 801. Article 1. Definitions

In this chapter:
(1) The term “Judge Advocate General” means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.
(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.
(3) The term “commanding officer” includes only commissioned officers.
(4) The term “officer in charge” means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.
(5) The term “superior commissioned officer” means a commissioned officer superior in rank or command.
(6) The term “cadet” means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.
(7) The term “midshipman” means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.
(8) The term “military” refers to any or all of the armed forces.
(9) The term “accuser” means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.
(10) The term “military judge” means an official of a general or special court-martial detailed in accordance with section 826 of this title (article 26).
[(11) Repealed. Pub. L. 109–241, title II, § 218(a)(1), July 11, 2006, 120 Stat. 526.]
(12) The term “legal officer” means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command.
(13) The term “judge advocate” means—
(A) an officer of the Judge Advocate General’s Corps of the Army or the Navy;
(B) an officer of the Air Force or the Marine Corps who is designated as a judge advocate; or
(C) a commissioned officer of the Coast Guard designated for special duty (law).
(14) The term “record”, when used in connection with the proceedings of a court-martial, means—
(A) an official written transcript, written summary, or other writing relating to the proceedings; or
(B) an official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.
(15) The term “classified information” means
(A) any information or material that has been determined by an official of the United States pursuant to law, an Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security, and
(B) any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 (42 U.S.C. 2014 (y)).
(16) The term “national security” means the national defense and foreign relations of the United States.