In United States v. Tuscan, 67 M.J. 592 (C.G. Ct. Crim. App. 2009) the Appellant shared an off-base house with two other Coast Guard personnel. The three personnel occasionally socialized with four local teenagers who were juniors in high school. This socializing sometimes included playful wrestling between the male participants. This case resulted from “horseplay [that] got out of control.” The victim, one of the teenagers, was “handcuffed, hog-tied, slapped around with a belt,” with the Appellant subsequently pointing a handgun owned by his roommate at the victim when he was tied up. Sentencing evidence established the crime significantly influenced the victim’s social behavior, making him much more introverted. The roommate who owned the handgun was tried first and was reduced from E-4 to E-1 and fined $5000, with the provision if he did not pay the fine he would be confined for sixty days. The Court ruled that there was no error in sentencing. The CGCCA used the three-step test from United States v. Lacy, 50 M.J. 286 (C.A.A.F. 1999): (1) are the cases “closely related,” (2) if so, whether the sentences are “highly disparate,” and (3) can the government prove a “rational basis for the disparity?” The Court concluded the cases were closely related because both individuals faced the exact same charges and specifications, which were all based on the same misconduct. In the absence of analysis, the CGCCA also found the two sentences “highly disparate.” Ultimately, however, the CGCCA found a rational basis for the disparity. The “Appellant’s initiative with the gun escalated the horseplay and victimized [the victim] (and discredited the Coast Guard) to a significantly greater extent than [the co-actor’s] role. This Court finds that the disparity in the sentence is justifiable as a matter of law.” The CGCCA also observed that the Appellant’s service record “was not as clean” as the co-actor’s record. Despite finding no error, the Court used its Article 66 authority to approve only six months of the twelve month sentence.

In United States v. Anderson, 67 M.J. 703 (A.F. Ct. Crim. App. 2009), the issue was if there was a sentencing disparity between the sentences of the Appellant and his co-actor? The Court ruled that there was no sentence disparity. The Court applied the three step process from United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999), to analyze any potential sentence disparity. First, the Court found that the two cases were “closely related” as both individuals were charged with crimes concerned with shooting the same victim, and both individuals were convicted of obstructing justice. Next, the AFCCA looked to determine whether the sentences were “highly disparate.” After reviewing other cases on sentence disparity, the AFCCA said that adjudged sentences should be compared. In this case, there was no disparity. In fact, the co-actor’s adjudged sentence of seventeen years was greater than the Appellant’s fifteen-year sentence. Even though the analysis should have been complete at this point, the AFCCA, “assum[ed] for the sake of analysis” that approved sentences must be compared. The Court did not find disparity in the five-year difference between the approved sentences. One factor the Court used in this analysis was the difference between the authorized maximum punishment and the actual punishment received for each co-actor. Finally, despite observing no disparity in both the adjudged and approved sentences, the AFCCA found it necessary to still use the third step of the Lacy analysis. The Court looked to see if there was a “reasonable basis” for any disparity. The AFCCA concluded “a rational, if not compelling” basis for any disparity; the Appellant “shot someone, A1C FN did not.” The AFCCA also considered that the Appellant’s plea was to “unintentionally shooting” the victim, not to the greater offense he was convicted of, and that A1C FN pled guilty to the charged offenses and cooperated with the government.

The Appellant in United States v. Sanders, 67 M.J. 344 (C.A.A.F. 2009) was found guilty, despite his pleas, by a judge alone general court-martial, of forcible sodomy, assault, and indecent assault. The adjudged and approved sentence was a dishonorable discharge, confinement for fourteen years, and reduction to E-1. The Air Force Court of Criminal Appeals (AFCCA) confirmed the findings and sentence. The military judge admitted at the time of sentencing a handwritten letter found in the Appellant’s cell. The letter was the Appellant’s Last Will and Testament. The Appellant alleged the letter was improper rehabilitation evidence, improper aggravation evidence, highly prejudicial because of its attack on the judge’s credibility, and would not pass the M.R.E. 403 balancing test. The CAAF concluded that if there was error in admitting the letter, the error was not prejudicial. The Court never analyzed whether there was error in the case. The Court simply said if there was error, it was not prejudicial since “the military judge stated that she would not consider the personal attack on her” in the letter.Applying the principle that the “military judge is presumed to know the law and apply it correctly,” the CAAF found “no indication that the military judge gave significant weight to the rest of the letter in arriving at the adjudged sentence.” The Court also observed the severity of the crimes and the fact that the Appellant only received a fourteen year sentence when facing life without the possibility of parole.

United States v. Foster, 40 M.J. 140 (C.M.A. 1994). Citing Schmuck, the Court held: “One offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the charged offense” (emphasis omitted). This formulation of the test for multiplicity and lesser included offenses caused a significant issue for offenses charged under Art. 134, which needs proof of an element not required for proof of offenses under Arts. 80–132: that the conduct was prejudicial to good order and discipline or service-discrediting. The Court held that the phrase “necessarily included” in Art. 79 “encompasses derivative offenses under Article 134.” An offense under Art. 134 may, “depending on the facts of the case, stand either as a greater or lesser offense of an offense arising under an enumerated article.” This is because “the enumerated articles are rooted in the principle that such conduct per se is either prejudicial to good order and discipline or brings discredit to the armed forces; these elements are implicit in the enumerated articles.”
United States v. Weymouth, 43 M.J. 329 (C.A.A.F. 1995). The Court refined its holdings in Teters and Foster, adopting the “pleadings-elements” approach: “In the military, the specification, in combination with the statute, provides notice of the essential elements of the offense” (emphasis omitted). The CAAF cautions that it did not retreat to the “fairly embraced” test rejected in Teters: “Either the elements alleging the greater offense (by the statute and pleadings) fairly include all of the elements of the lesser offense or they do not. As alleged, proof of the greater offense must invariably prove the lesser offense; otherwise the lesser offense is not included.”

UCMJ Provisions regarding lesser included offenses include Articles 59(b) and 79. Article 59(b) provides that any reviewing authority with the power to approve or affirm a finding of guilty may approve or affirm, instead, so much of the finding as includes a lesser included offense. According to Article 79, UCMJ an accused can be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein. In 1989, the Supreme Court abandoned the “fairly embraced” test for lesser included offenses and held that Fed.R.Crim.P. 31(c) should be construed to include only those lesser included offenses established by the statutory elements. Under this approach, “one offense is not ‘necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense.” (United States v. Schmuck, 489 U.S. 705, 716–721 (1989)).

In United States v. Bailey, No. 200800897 (N-M. Ct. Crim. App. Sep. 29, 2009) (unpublished), the N-MCCA concluded the that the two specifications were multiplicious for findings and the military judge erred while not dismissing the wrongful sexual contact specification upon finding the accused guilty of the “more aggravated abusive sexual contact” specification. The MCM lists wrongful sexual contact as an LIO of abusive sexual contact “depending on the factual circumstances.”. The Court noted that “the only significant difference between the specifications [is] the additional element of placing the victim in fear,” which was demonstrated in the contested portion of the trial. Hence, the military judge erred and there was prejudice in the form of an additional conviction, as well as increased punitive exposure. The Court also concluded that the conviction for the specification is an unreasonable multiplication of charges. Even though the specifications were merged for sentencing, corrective action with respect to the findings was necessary. The Court set aside the wrongful sexual conduct finding and dismissed the specification.

In United States v. Craig, 67 M.J. 742 (N-M. Ct. Crim. App. 2009) the Court had to decide if the military judge committed plain error by not declaring the charges of receipt and possession of child pornography multiplicious? The Court determined that these two specifications were not facially duplicative and hence military judge did not commit plain error by failing to dismiss these specifications as multiplicious. First, the Court reasoned that the conduct of possessing the media was distinct from the receipt of the media. Next, citing United States v. Campbell, 66 M.M. 578, 581 (N-M. Ct. Crim. App. 2008) and United States v. Planck, 493 F.3d 501, 504 (5th Cir. 2007), the N-MCCA reasoned that, after receiving the image, “he duplicated and embedded some of the images into media on which they were not then present.” Though the images on the hard drive “might appear identical to the originals when viewed, the duplicates on the CD are distinct electronic files, created by [the accused], and embedded into different media.” The charges of receipt and possession “address at least two criminal actions by the [accused] each of which occurred at a different time within the charged time period and involved separate media.”

Are the charges of receiving and possessing child pornography under Article 134, UCMJ, multiplicious? This was the issue before the N-MCCA in United States v. Purdy, 67 M.J. 780 (N-M. Ct. Crim. App. 2009). The Court determined that the conviction for both offenses was proper and the military judge did not commit plain error. The accused pled guilty to these two charges and a guilty plea waives any multiplicity issues in the absence of plain error. Plain error occurs when the specifications at issue are “facially duplicative.” In this case, the Court observed that possession “requires more than mere receipt . . . It requires an exercise or an ongoing opportunity to exercise exclusive dominion over the images.” More simply, “it requires the opportunity to look at the images later without the necessity of revisiting the web site.” In this case, the act of saving the images to the CD-ROM “was a clear exercise of dominion . . . separate and apart” from his receipt of the images at an earlier point in time.

United States v. Biagase, 50 M.J. 143 (C.A.A.F. 1999) differentiates standards for determining unlawful command influence at the appellate level and the duty of the military judge during assessment of motions at trial. Military discharge Unlawful command influence is most often exerted on members of any of the following populations: (1) subordinate commanders, (2) potential panel members, and (3) potential witnesses. Military court It can be exerted by commandersand also those acting with the “mantle of command authority,” and may be intentional or inadvertent. When the issue of unlawful command influence has been raised, Europe non judicial punishment the burden shifts to government to establish either there was no unlawful command influence or that the unlawful command influence will not influence the proceedings or, if raised on appeal, did not affect the proceedings.

Burden at both levels is the same – proof beyond a reasonable doubt that there was no unlawful command influence or that the unlawful command influence did not impact the decision or sentence.

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Tim Bilecki is an experienced criminal defense attorney who represents military personnel in high-profile, international cases.

In Melendez-Diaz v. Massachusetts, 541 U.S. 36 (2009), the Court was confronted with the issue whether affidavits reporting the results of forensic analysis that showed that material seized by the police and associated to a defendant was cocaine were “testimonial,” making the affiants “witnesses” subject to the defendant’s right of confrontation under the Sixth Amendment. Europe ucmj offenses The court ruled that the affidavits were “testimonial” statements, and the affiants were “witnesses” under the Sixth Amendment; admission of the affidavits violated the defendant’s right to confrontation. According to the Sixth Amendment in every criminal prosecution, the accused shall enjoy the right…to be confronted with the witnesses against him. This clause guarantees a defendant’s right to challenge those ‘who bear testimony’ against him, and that the witness’s testimony against a defendant is therefore inadmissible except when the witness appears at trial or, if the witness is unavailable, the defendant had a previous opportunity for cross-examination. Manual courts martial The Court observed that the affidavits are within the “core class of testimonial statements” as provided by the Court in Crawford v. Washington, 541 U.S. 36 (2004). Noting that its description of the core class mentioned affidavits twice, the Court held that a “certificate of analysis” was an “affidavit,” because it was a solemn declaration or affirmation made for the objective of proving certain fact. Besides being “affidavits”, the Court noted that the certificates of analysis were also made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a subsequent trial. Code of military justice The sole purpose of the certificates was to provide “prima facie evidence” about the tested substance. The Court concluded that the analysts who prepared the certificates would have been aware of this purpose, because it was reprinted on the certificates.

The Court held that the Sixth Amendment contemplated only two types of witnesses: Those “against him,” as guaranteed by the Confrontation Clause, and those “in his favor,” as guaranteed by the Compulsory Process Clause. There was, observed the Court, no “third category of witnesses, helpful to the prosecution, however somehow safe from confrontation.

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Timothy Bilecki is an aggressive trial lawyer who only takes military criminal defense cases.