July Decisions -- Air Force Court

This will be a bit out of order, but here are a couple of the July decisions of the Air Force Court of Criminal Appeals.

Name: United States v. Pedro R. Venegas, ACM 36913
Decided: 31 July 2008
UCMJ Articles: 112a
Sentence: 4 months of confinement, Bad-Conduct Discharge (BCD), reduction to E-1
Issue(s): voluntariness of a confession; sufficiency of evidence
Status: Unpublished

Summary:

Pursuant to a guilty plea, A1C Venegas was convicted of possession and distribution of methamphetamine. On appeal, he argued pro se, via United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), that: (1) his confession was involuntary; and (2) the evidence was insufficient to support his conviction for possession of meth.

The Court, using a totality of the circumstances test, held that his confession was voluntary because: (1) he was of average intelligence; (2) he did not suffer from a mental disability; (3) he was properly advised of his rights; (4) he understood his rights; (5) the interrogation was not lengthy; and (6) the interrogators did not make physical contact with him or threaten him.

The Court then held that the evidence was sufficient to support A1C Venegas's conviction. The Court noted that it had to construe all evidence in a light most favorable to the Government. The Court stated that the test was, after construing the evidence in a light most favorable to the Government, it was convinced beyond a reasonable doubt that A1C Venegas was guilty.

Name: United States v. Christopher M. Key, ACM S31341
Decided: 31 July 2008
UCMJ Articles: 134
Sentence: 12 months of confinement, BCD, reduction to E-1
Issue(s): severity of sentence, appellate power
Status: Unpublished

Summary:

Pursuant to a guilty plea, Amn Key was convicted of possession of child pornography and sentenced to, inter alia, a BCD. On appeal, he argued that the punitive discharge was inappropriately severe. The Court first cited Article 66(c) of the UCMJ and relevant case law for the proposition that it had the power to "lessen the rigor of a sentence," if justice required. The Court rejected Amn Key's appeal and held that the sentence was not inappropriately severe because: (1) he "perpetuate[d] a market that wrecks havoc on the lives of the youngest and most vulnerable members of our society"; and (2) the conduct was "a clear departure from the norms of society and expected standards of conduct in the military."

New Feature

In an effort to focus this blog a bit and to keep up on current military law, I've decided to add case thumbnails. In that vein, below is a summary of August 2008 opinions of the Air Force Court of Criminal Appeals:

Name: United States v. Johnny Francisco, ACM 36773
Decided: 04 August 2008
UCMJ Articles: 87, 92, 107, 134
Sentence: 9 months' confinement, Dishonorable Discharge (DD), reduction to E-1
Issue(s): pretrial agreement (PTA) provisions; guilty plea providency; deferment of automatic forfeitures; Speedy Trial: appellate process
Status: Unpublished

Summary:

Pursuant to a PTA, SSgt Francisco pled guilty to numerous charges arising out of his failure adequately to prepare for a deployment. On appeal, he asserted five issues, namely that: (1) a provision in his PTA requiring him to release mental health records violated public policy; (2) his plea to negligently failing to prepare for deployment was improvident; (3) the Article 134 charge for making statements that he would threaten to hurt or kill himself to avoid deploying was unconstitutional; (4) his plea to the same charge was improvident because he did not establish that his actions were prejudicial to good order and discipline; and (5) post-trial, the convening authority received delayed and/or incorrect advice on his request to defer forfeitures/reduction in grade to his prejudice. The Court, apparently sua sponte, raised a sixth issue: that the delay in appellate review violated SSgt Francisco's Speedy Trail rights.

SSgt Francisco's PTA required that he sign a release of mental health records once the military judge (MJ) accepted his guilty plea. The Court first found that he entered into the PTA freely and voluntarily. The Court, while expressing doubts as to the utility of such a provision, held that the provision did not violate public policy.

SSgt Francisco next argued that his plea to the charge of negligently failing to prepare for deployment was improvident because he did, in fact, complete his deployment processing. Nevertheless, the Court held that his plea was provident because it was only through extraordinary measures by his unit and other base agencies that he completed his deployment processing by the prescribed date.

SSgt Francisco next argued that his plea to the Article 134 charge of making statements that he would not deploy and would say that he was going to hurt or kill himself to avoid deploying was improvident and/or unconstitutional. The Court first held that SSgt Francisco waived his right to challenge the charge (at least on the grounds on which he challenged it) by freely and voluntarily entering into a PTA waiving "all waivable motions." The Court then held that his plea was provident (in that he established th element of prejudicial to good order and discipline) because, inter alia, he was a noncommissioned officer (NCO) and made his claims to junior members.

SSgt Francisco next argued that the convening authority received incorrect or late advice on his request to defer automatic forfeitures/reduction in grade. Although the Court found an error in the convening authority's action and mandated correction, the Court upheld the the decision on automatic forfeitures.

Finally, the Court sua sponte raised a Speedy Trial issue with regard to appellate processing. The Court found that the 24 month delay between the time that it received the record of trial (ROT) and the decision was facially unreasonable. Nevertheless, the Court held that the delay was harmless.

Name: United States v. Chad Candiff, ACM S31319
Decided: 04 August 2008
UCMJ Articles: 112a
Sentence: 2 months' confinement, Bad Conduct Discharge (BCD), reduction to E-1
Issue(s): Staff Judge Advocate Recommendation (SJAR)
Status: Unpublished

Summary:

SrA Candiff asked that his sentence be reduced by 30 days because there was no addendum to the SJAR and no way to know that his clemency request was received by the convening authority. In response to SrA Candiff's brief the Government submitted an affidavit from the convening authority's staff judge advocate (SJA) with the SJAR addendum as an attachment. The Court held that this was sufficient evidence that SrA Candiff's clemency matters were received and reviewed by the convening authority.

Dollar v. Euro

This is some good news. For me.