Is there a Santa? What's in the box? Can I shake it? Who is that for? How did Santa get down the chimney, we don't have one? In that vein, assume Mom tells Dad that Jimmy is asking about Santa and she wants to know what to tell Jimmy. Is it an overt act of a conspiracy for Dad to say that they should tell Jimmy words to the effect of, "Santa has a cloaking device which makes him invisible and yes, he'll be back this year?" They also agree to still put out the milk and cookies on schedule. Mom agreeing, they go to bed never telling Jimmy anything--and of all things, the commissary is out of milk[1] and cookies. It so happens that Dad's commanding officer gets word of this lying to a child and decides on a court-martial to make a point to Dad and all the other dads out there. [1] For those who have been stationed at Lajes, Azores, this was at times a reality. Dad's lawyer however has read NMCCA's decision in United States v. Gomezvillalobos. There, the defense moved in advance of trial to dismiss a conspiracy specification which the military judge denied, with leave to ask for reconsideration or make a 917 motion. At the close of the prosecution’s case, the military judge summarily denied the Defense motion brought under R.C.M. 917. The military judge reasoned: Denied. I continue to find, that there is evidence that has been presented that an agreement existed that after that agreement was formed that an overt action act was performed. That overt act was the agreement to purchase the MDMA, which was separate and apart from the original agreement, which was to distribute a controlled substance and that the agreement to purchase—essentially to front the money was not part of the original agreement. And by agreeing to front the money, that was an overt act to bring out—to accomplish the end state of the agreement; the object of the conspiracy. The issue as to whether the agreement between Appellant and 2ndLt November—that Appellant agreed to purchase drugs from 2ndLt November—was either an overt act in furtherance of a conspiracy to distribute drugs or was merely part of the agreement itself that formed the conspiracy to distribute drugs, is exactly the type of issue that would make an excellent law school final exam question. NMCCA assigns the MJ to the naughty list. Put simply, we find that the “overt act” charged was merely part of the overall agreement to distribute MDMA, and was not in any way independent of that agreement. Therefore, both the charge itself and the evidence adduced at trial were legally insufficient to sustain a conviction, and the military judge should have dismissed Charge I prior to trial (or at the close of the government’s case under Rule for Court-Martial 917). It follows that as the specification under Charge I fails to state an offense, the conviction for Charge I is therefore legally insufficient. NMCCA was not Santa here, in case you were wondering--no offense meant. The appellant has served his Brig time and the remaining charges are sufficient to justify a dismissal at a sentence rehearing. Cheers!Off to enjoy some spiced eggnog which was NOT purchased from Cranford's Supermarket. Blake Stiwel, Santa Ruthlessly Issues a Dishonorable Discharge in a New Air Force Holiday Video. Military.com, December 23, 2022.
"In 2011, Cranford, on active duty in the Army, was charged with possessing and using Spice, an unregulated intoxicant, in violation of a lawful general order. Captain Lease recommended that Cranford be tried by general court-martial and forwarded the charges. Cranford requested to be discharged in lieu of trial by court-martial, acknowledging that the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge for the charge. Cranford admitted guilt and acknowledged that he would qualify for an “other than honorable” (OTH) discharge, potentially barring him from receiving benefits. Cranford recddeived an OTH discharge. Cranford later requested VA benefits. The regional office denied that request, reasoning that Cranford’s discharge status barred him from receiving benefits. The Board of Veterans’ Appeals affirmed the denial, applying 38 C.F.R. 3.12(d)(1), to conclude that Cranford had been discharged under dishonorable conditions and was ineligible for benefits as a non-veteran under 38 U.S.C. 101(2). The Veterans Court and Federal Circuit affirmed, rejecting arguments that the Board mischaracterized his discharge as being “in lieu of a general court-martial,” instead of a summary court-martial and that section 3.12(d)(1) did not apply to him because he had accepted an OTH discharge, not an “undesirable discharge.” An OTH discharge accepted in lieu of a general court-martial is equivalent to an undesirable discharge—despite the military service departments’ shift in terminology." "Justia."The summary is from Justia.com. United States v. Injerd is worth the read. 1. Charging decisions and word choice. 2. How calculating the actual sentence can be a bit complicated under the new rules. 3. The facts, are well, interesting. Of Counsel and Appellant's combined 15 issues, the court focuses on the two assigned errors to find a factual insufficiency for the resisting apprehension conviction, but no error as to the sentence calculation. Charging decisions? An MJ found Appellant guilty of attempting to escape custody, desertion, resisting apprehension, striking a superior noncommissioned officer, failure to obey a lawful order, unlawfully carrying a concealed handgun, assault upon a person in the execution of military law enforcement duties, fleeing apprehension, and resisting apprehension[.] Appellant was acquitted of one specification each of fleeing apprehension and assaulting a superior noncommissioned officer[.] Wexler, Rebecca, The Global Cloud, the Criminally Accused, and Executive Versus Judicial Compulsory Process Powers (October 10, 2022). Texas Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4244186 or http://dx.doi.org/10.2139/ssrn.4244186 U.S. policymakers’ responses to the global data privacy movement are creating a deep structural unfairness in the criminal legal system. In an era of cloud computing, when data about communications and activities occurring anywhere in the world can be stored on servers located anywhere else, access to such data can make the difference between convictions and acquittals. At the same time, a wave of new global data privacy laws risks cutting off cross-border access to digital evidence in criminal investigations. Recognizing the threat to law enforcement interests, U.S. policymakers enacted the CLOUD Act of 2018 to create special procedures for law enforcement to circumvent foreign data privacy laws and access cross-border evidence anyway. Yet no one is creating similar procedures for criminal defense investigators. Mumford, Ann C. and Alldridge, Peter W., The History of Double Jeopardy and Criminal Jurisdiction: US v. Gamble (2019) and R. v. Hutchinson (1677) (October 31, 2022). forthcoming in the Law Quarterly Review, Queen Mary Law Research Paper No. 391/2022, Available at SSRN: https://ssrn.com/abstract=4262990 In 2019, the United States Supreme Court decided the case of US v. Gamble, reaffirming the “dual sovereignty” exception to the double jeopardy protection of the Fifth Amendment. The Court considered the absence of definite information about the English case of R. v. Hutchinson (1677) to be crucial to its decision. Hutchinson has long been cited as authority for the proposition that an acquittal in a foreign court serves as a complete bar to a prosecution in England and Wales of a UK Citizen, for the murder abroad of another UK citizen. It was argued for Gamble that this was the common law of England in 1791, the date of ratification of the US Constitution, and it was incorporated into the meaning of the Fifth Amendment, so that he, having been convicted of an offence in Alabama, could not be tried for the same offence under Federal Criminal Law. The report of Hutchinson usually cited ((1677) 3 Keb 785) is only to a bail hearing and says nothing about double jeopardy. This article sets out a fuller and more accurate account of Hutchinson than was available to the US Supreme Court. Drawing upon a range of sources, including manuscript letters, state papers and plea and controlment rolls, and a contemporary (1678) manuscript report of the decision of the judges, it identifies the actors and explains the relevant law on jurisdiction and the procedure that was adopted. The killing was in Lisbon in December 1675. In 1676 there were two unsuccessful prosecutions in Lisbon. When the alleged killer was in England the victim’s father had him arrested and petitioned the King’s Council to issue a commission under the Criminal Law Act 1541 for Hutchinson to be tried in England. The Council referred to the judges the questions whether the murder in Portugal of an Englishman by an Englishman could be tried in England (and, if so, in which court); and if they could, whether the fact that he had been tried and acquitted in Portugal served as a bar. The judges held that the murder could be in principle be tried in common law courts, where a commission was issued under the Criminal Law Act 1541, but that the Portuguese acquittals were a bar to the proceedings. Far from being ‘feeble’ (as Alito J described it) the evidence is overwhelming that Hutchinson was decided by a meeting of the judges in exactly the manner set out in a footnote in Leach’s report, first published in 1789, of Roche (1775), and that this does represent English common law as it stood in 1791. If the state of English common law at that date is to be treated as dispositive of disputes as to the meaning of expressions in the US Constitution, which is the dominant “originalist” position on its interpretation, then the US Supreme Court should have closer regard to the history. English law on the relationship between double jeopardy and overseas trials should also be reconsidered. Nothing like Volokh Conpiracy doing your work for you. United States v. Rocha. "The U.S. Air Force Court of Criminal Appeals doesn't resolve whether such conduct is substantively constitutionally protected from criminal punishment, but holds that military law didn't put the defendant on notice that the conduct was illegal." https://reason.com/volokh/2022/12/17/military-law-doesnt-clearly-forbid-private-masturbation-with-child-like-sex-doll/ A general court-martial comprised of officer members convicted Appellant, contrary to his pleas, of one specification of indecent conduct—engaging in sexual acts with a sex doll with the physical characteristics of a female child—in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934. 1 Appellant was found not guilty of an unrelated specification of receiving child pornography between May 2018 and May 2019 in violation of Article 134, UCMJ, 10 U.S.C. § 934 (Manual for Courts-Martial, United States (2016 ed.)). 2 The military judge sentenced Appellant to a bad-conduct discharge, 90 days of confinement, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority denied Appellant’s request for waiver of forfeitures, and approved the sentence in its entirety. https://www.senate.gov/legislative/LIS/roll_call_votes/vote1172/vote_117_2_00392.htm
20 Republicans voted Nay and 4 Repulicans did not vote. If you are in the National Guard (or any service for that matter), don't be a member of Homeowners Association and then later sue them for defamation because they reported you to your commander.
See Coe v. Maricopa Meadows Homeowners Association, No. 1 CA-CV 21-0641, Court of Appeals of Arizona, Div. One, Filed December 13, 2022. No. 22-0280/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER MILITARY OFFICIALS ACTED WITH DELIBERATE INDIFFERENCE IN SENDING APPELLANT TO LOWNDES COUNTY JAIL—A CIVILIAN CONFINEMENT CENTER WITH "A HISTORY OF INHUMANE LIVING CONDITIONS"—AND WHETHER APPELLANT SUFFERED CRUEL AND UNUSUAL PUNISHMENT THEREBY WHEN, INTER ALIA, CONFINEMENT OFFICIALS FAILED TO PROTECT HIM FROM PHYSICAL ATTACK, WITHHELD HIS MAIL, WITHHELD VISITORS, AND WOULD NOT LET HIM GO OUTSIDE WHILE HE LIVED IN UNSANITARY CONDITIONS. Note this is an Air Force case where civilian confinement conditions are again in issue. See our earlier posts here and here. |
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