Court Martial Lawyer - Military Defense Attorney

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.

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.

Sexual Assault in the Army, Navy Air Force and Marine Corps Reporting Policy

Sexual Assault in the Army, Navy Air Force and Marine Corps Reporting Policy from DoDD 6495.01, October 6, 2005

Note: If you are accused of a sex crime in the military, then contact an experienced sex crime court martial lawyer.

E3.1.1. The Department of Defense recognizes the potential impact restricted reporting may have on investigations and the ability of the alleged offender’s commander to hold the offender accountable. However, this policy decision represents the judgment that such risks have been carefully considered but were outweighed by the overall interest in providing sexual assault victims this form of support.

E3.1.2. This enclosure provides the framework for the confidential reporting program and its policies. The SAPRO will coordinate specific implementation details consistent with this policy, in conjunction with the Military Departments. This SAPR Program requires extensive, in-depth training for DoD personnel and specialized training for Commanders, Senior Enlisted Leaders, VA, SARC, investigators, law enforcement, chaplains, HCP, healthcare personnel, and legal personnel.
E3.1.3. See restricted reporting as defined in enclosure 2.

E3.1.4. The Department of Defense is committed to ensuring victims of sexual assault are protected, treated with dignity and respect, and provided support, advocacy and care. DoD policy also strongly supports effective command awareness and prevention programs, as well as law enforcement and criminal justice procedures that enable persons to be held accountable for their actions, which includes appropriate criminal dispositions for sexual assault. To achieve these dual objectives, DoD policy prefers complete reporting of sexual assaults to activate both victims’ services and accountability actions. However, recognizing a mandate of complete reporting may represent a barrier for victims to access services when the victim desires no command or law enforcement involvement, there is a need to provide an option for confidential restricted reporting.

E3.1.5. Assuring privacy and providing a confidential disclosure option for sexual assault victims is critical to discharging the military’s commitment to providing care and support for victims of sexual assault. Sexual assault is one of the most under-reported violent crimes in our society and in the military. Although the victim’s decision to report is a crucial step following a sexual assault, reporting is often precluded by the victim’s desire for no one to know what happened. The Commanders have a responsibility to ensure community safety and due process of law, but they must also recognize the importance of protecting the privacy of victims under their command. Subject matter experts agree that a system which promotes privacy and confidentiality can have a positive impact in bringing victims forward to provide information about being assaulted.

Sexual Assault Court Martial Attorney Michael Waddington represents Army, Navy, Air Force and Marine Corps servicemembers facing UCMJ actions.

Department of Defense Sexual Assault Reporting - UCMJ Sex Crimes

CONFIDENTIAL REPORTING PROGRAM FOR VICTIMS OF SEXUAL ASSAULT - from DoDD 6495.01, October 6, 2005

E3.1.6. Recognizing these DoD interests as a matter of DoD policy, Service members who are sexually assaulted will now have the following reporting options:

E3.1.6.1. Unrestricted Reporting. A Service member who is sexually assaulted and desires medical treatment, counseling, and an official investigation of his or her allegation should use existing reporting channels (e.g., chain of command, law enforcement, or report the incident to the SARC). When notified of a reported sexual assault, the SARC will immediately assign a VA. Additionally, at the victim’s discretion or request, the healthcare provider shall arrange a SAFE (see paragraph E2.1.13.) to be conducted, which may include the collection of evidence. Details regarding the incident will be limited to only those personnel who have a legitimate need to know.

E3.1.6.2. Restricted Reporting. Restricted reporting allows a sexual assault victim to confidentially disclose the details of his or her assault to specified individuals and receive medical treatment and counseling, without triggering the official investigative process. Service members who are sexually assaulted and desire restricted reporting under this policy may only report the assault to the SARC, VA, or healthcare personnela HCP. However, consistent with current policy, they may also report the assault to a chaplain. Although a report to a chaplain is not a restricted report under this policy or the provisions of this Directive, it is a communication that may be protected under the Military Rules of Evidence (MRE) or applicable statutes and regulations. The restricted reporting process does not affect any privilege recognized under the MRE. This Directive and its policy on restricted reporting is in addition to the current protections afforded privileged communications with a chaplain, and does not alter or affect those protections.

E3.1.6.2.1. Healthcare personnelHCP will initiate the appropriate care and treatment, and report the sexual assault to the SARC instead of reporting the assault to law enforcement or the command. When notified of a reported sexual assault, the SARC will immediately assign a VA. The assigned VA will provide the victim accurate information on the reporting process, including both restricted and unrestricted reporting procedures. Additionally, at the victim’s discretion or request, the healthcare providerHCP, if appropriately trained and/or supervised, shall conduct a SAFE, which may include the collection of evidence. If the healthcare provider is not appropriately trained to conduct a SAFE, the healthcare providerHCP shall help arrange for a properly-trained DoD healthcare providerHCP, if available. In the absence of a DoD healthcare providerHCP, the victim will be appropriately referred to a non-DoD healthcare providerHCP for the SAFE. When SAFE is performed at local civilian medical facilities, those facilities are bound by State and local laws, which may require reporting the sexual assault. The victim will acknowledge, in writing, his or her understanding of restricted reporting, the exceptions to, and limitations on, restricted reporting. This acknowledgement will also include the victim’s understanding that restricted reporting may limit the ability of the Government to prosecute the assailant and an understanding of the reasons DoD policy favors unrestricted reporting.

ENCLOSURE 3

E3.1.6.2.2. Restricted reporting is intended to give victims additional time and increased control over the release and management of their personal information, and to empower them to seek relevant information and support to make more informed decisions about participating in the criminal investigation. A victim who receives appropriate care and treatment, and is provided an opportunity to make an informed decision about a criminal investigation, is more likely to develop increased trust that his or her needs are of primary concern to the command and may eventually lead the victim to decide to pursue an official investigation. Even if the victim chooses not to pursue an official investigation, this additional reporting avenue gives the senior commander a clearer picture of the sexual violence within the command, and enhances the senior commander’s ability to provide a safe environment and contributes to the well-being and mission-readiness of all of its sService members.

E3.1.7. In cases where a victim elects restricted reporting, the SARC, assigned VA (whether uniformed or civilian), and healthcare personnelHCPs may not disclose covered communications to law enforcement or command authorities, either within or outside the Department of Defense, except as provided in paragraph E3.1.8. For purposes of public safety and command responsibility, the SARC shall report information concerning sexual assault incidents, without information that could reasonably lead to personal identification of the victim or the alleged assailant, to the senior commander (see paragraph E2.1.10.) within 24 hours of the sexual assault report.

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

Court Martial Lawyer Sexual Assault Policy

Army Policy, DoD Guidance, Regulations, and Memorandums

Army Court Martial Lawyer - Navy Court Martial Attorney - Air Force Military Lawyer

The 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.

Marine Court Martial Lawyer
Court Martial Lawyer Sexual Assault

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

Sex Assault Court Martial Lawyer - Validity of Discharge Certificate after Military Service

Sex Assault Court Martial Lawyer - Validity of Discharge Certificate

The issue of validity of discharge certificate has been discussed in Schaefer v. Geren, 607 F. Supp. 2d 61 (D.C. 2009). The Court had to decide whether the ABCMR acted arbitrarily, capriciously, and against the law when it concluded that Schaefers first discharge was without legal effect. The Court found that the ABCMR did not act arbitrarily, capriciously, or contrary to law when it concluded that Schaefers first discharge was without legal effect as the USADPA revoked the authority to issue the discharge prior to Schaefer got the discharge certificate. Schaefer, citing Smith v. Vanderbush, 47 M.J. 56 (C.A.A.F. 1997), argued that because he received a facially valid discharge certificate that was not revoked until after his discharge, the Army had to bear the burden of any administrative errors ‚ in this case, the error involving the computer notification system. In Vanderbush, as in this case, the Army intended to flag the Soldiers personnel file, but failed to do so.

The Schaefer court distinguished Vanderbush, observing that in that case the underlying basis of Sergeant Vanderbushs administrative discharge (received before his adjudged punitive discharge was executed) was valid; that is, he had reached his ETS date and his service obligation had ended. In contrast, the Court observed that in Schaefers case the Army (through USAPDA) revoked the authority for Schaefers first discharge well before the Fort Benning transition point issued him his discharge certificate. The Court ruled: When the underlying authority for the discharge is timely revoked, and error in delivering a discharge certificate does not effectuate a valid discharge. citing United States v. Williams.

Michael Waddington is a Court Martial Lawyer that defends Army, Air Force, Navy and Marines worldwide in court martial cases.

Fort Stewart court martial lawyer - 6th Amendment Right to counsel

Fort Stewart court martial lawyer - 6th Amendment Right to counsel

In United States v. Wiechmann, 67 M.J. 456 (2009), the issue was whether SM was denied his 6th Amendment Right to counsel when the SJA did not accept one of the two detailed defense counsel. The court concluded that even though the convening authority violated of the SMs 6th Amendment Rights, it was harmless since LtCol [S] was continuously able to advise the SDC from the background. Even though the defendant does not have the right to more than one detailed counsel, the person authorized by regulations prescribed under section 827 of this title (Article 27) to detail counsel, in his sole discretion . . . may detail additional military counsel as assistant defense counsel. Article 38(b)(6) UCMJ. The convening authority may not interfere with or impede a lawyer-client relationship created between an accused and detailed defense counsel, which was established during LtCol [Ss] initial detail as SMs defense counsel. The court also faulted the convening authority for not seeking information from officials at the departmental level prior to refusing to recognize LtCol [S] as SMs counsel.

The court ultimately found that the convening authoritys action burdened LtCol [Ss] representation of his client in various respects: (1) the Article 32 proceeding was conducted without a full opportunity for LtCol [S] to prepare and participate; (2) LtCol [S] was excluded from pretrial disposition negotiations which the Government had with the SDC, the less experienced defense counsel; (3) LtCol [S] was unable to represent SM in pretrial procedural matters, including a scheduling conference or by requesting a continuance. Under the circumstances, the prosecutions actions violated Appellants right to the assistance of counsel.

In evaluating the case, the court looked for 1) structural error -- an error so serious that no proof of prejudice is required -- or 2) whether the error should be tested for prejudice. Finding no structural error, the court ruled that while the convening authority committed a violation of the SMs 6th Amendment Rights, it was harmless as LtCol [S] was continuously able to advise the SDC from the background.


Michael Waddington is a Fort Gordon court martial lawyer that defends military members in the Army, Air Force, Navy and Marines worldwide in court martial cases.

San Diego Court Martial Attorney Writing used to refresh memory

Writing used to refresh memory San Diego Court Martial Attorney

If the witness uses a writing to refresh his or her memory for the purpose of testifying, either (1) when testifying, or (2) prior to testifying, when the military judge holds it is needed in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to interrogate the witness thereon, and to submit in evidence those portions that relate to the testimony of the witness.


When it is claimed that the writing has privileged information or matters which are not related to the subject matter of the testimony, the military judge must examine the writing in camera, excise any privileged information or portions not so related, and order delivery of the remainder to the party entitled thereto.

Any portion withheld over objections must be attached to the record of trial as an appellate exhibit. If a writing is not produced or delivered according to order as per the rule, the military judge must make any order justice requires, except that if the prosecution decides not to comply, the order must be one striking the testimony or, if in the discretion of the military judge it is determined that the interests of justice so required, declaring a mistrial.

This rule does not prohibit disclosure of information required to be disclosed under other provisions of these rules or the Manual for court martial.

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

Scope of examination Yongsan Court Martial Attorney

Scope of examination - Yongsan Court Martial Attorney

Cross-examination should be restricted to the subject matter of the direct examination and matters affecting the credibility of the witness. The military judge can, in the exercise of discretion, permit inquiry about additional matters like on direct examination.
In United States v. Stavely, 33 M.J. 92 (1992) the court ruled that if cross-examination goes to witness credibility, military judge must afford counsel wide latitude. In United States v. Barnard, 32 M.J. 530 (A.F.C.M.R. 1990), the court held that an accused who chooses to testify on the merits is subject to same cross-examination as any other witness. Here, TC did not impermissibly comment on right to counsel when he asked accused if he saw a lawyer before making a pretrial statement.
In United States v. Mason, 59 M.J. 416 (2004), the court held that it was error to allow the trial counsel to ask on re-direct if the accused had ever requested a re-test of the DNA evidence in his case, because the question tended to improperly shift the burden of proof in the case to the defense.
According to the 1995 Amendments to Drafters Analysis if a witness is unable to testify because of intimidation by the proceedings, fear of the accused, emotional trauma, or mental or other infirmity, alternatives to live in-court testimony may be correct.

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

Sex assault court martial lawyer - Impeachment with Prior Statements

Sex assault court martial lawyer - Impeachment with Prior Statements

Evidence that on a prior occasion a witness made a statement inconsistent with his or her present testimony is perhaps the most effective and most frequently employed attack on witness credibility. Saying one thing on the stand and something different earlier creates a doubt as to the truthfulness of both statements. A prior inconsistent statement creates doubt on the general credibility of the declarant. Such evidence is considered only for purposes of credibility, not to prove the correctness of the contents (avoiding a hearsay issue). Thus, a limiting instruction would be appropriate.

A witness can be impeached with competent evidence to demonstrate that he or she made a previous statement, oral or written, inconsistent with his or her in-court testimony. Such evidence may be:
Intrinsic: controlled by 613(a), involving interrogation of the witness regarding the prior statement, or
Extrinsic: controlled by 613(b), involving extrinsic proof (testimony or documents) of the earlier inconsistent statement.

Impeachment, alone, is not the only possible use of a previous inconsistent statement. According to Rule 801(d)(1)(A), such statements are admissible substantively, and may be considered by the fact-finder for the truth of the matter asserted, as an exemption to the rule against hearsay if three requirements are met: The statement is inconsistent with the declarants testimony; the declarant made the statement under oath subject to the penalty of perjury; and the statement was made at a trial, hearing, or other proceeding, or in a deposition.

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