19 March 2010

Drug Lab Reports and the Confrontation Clause

Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009)

In an unusual 5-4 split, Justice Scalia, writing for the majority, concluded that drug lab reports were within the core class of testimonial statements covered by the Confrontation Clause.

Under Melendez-Diaz, the Government can not use a drug lab report as evidence against an accused unless that accused waives his right to cross-examine the analyst who prepared the report. In reaching this conclusion, the Court emphasized that the Government “may not ignore constitutional rights simply because compliance is inconvenient or expensive.”

The question for us in the military is since lab reports are within the core class of testimonial statements covered by the Confrontation Clause, who does the Government have to call as a witness in a court-martial? We may have the answer to this question soon.
The CAAF in United States v. Blazier, 68 M.J. 240 (2009), is dealing with this very issue. The opinion has not been released yet, but the issue in front of them is whether the appellant was denied meaningful cross-examination of a government witnesses when the military judge did not compel the government to produce each lab official who handled the appellant’s urine sample and instead allowed an expert toxicologist to testify to the results of the lab report.

Edwards' Rule Limited

Maryland v. Shatzer, 130 S. Ct. ___, 175 L. Ed. 2d 1045 (Feb. 24, 2010).

Edwards v. Arizona (1981) bars police from initiating questioning with criminal suspects who have invoked their right to counsel. Shatzer was in prison when he was initially questioned. He was returned to the general prison population after he invoked the right to counsel.
Two and a half years later police reinitiated interrogation. On the second encounter, Shatzer waived his Miranda rights. Maryland courts suppressed the confession, but the Supreme Court reversed, and in doing so created an arbitrary period of 14 days in which Edwards’ prophylactic rule expires after a break in custody.
“Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his March 2006 statements. Accordingly, we reverse the judgment of the Court of Appeals of Maryland, and remand the case for further proceedings not inconsistent with this opinion.”

08 March 2010

Team Wounded Warrior Project

Here is a recent email sent from Team Wounded Warrior Project. If you can help, it would be greatly appreciated by your fellow brothers and sisters in arms:

During CPT Matt Cavanaugh's two tours in Iraq, he saw fellow soldiers suffer devastating wounds and watched the impact on their lives and families as they struggled to recover. On Veteran's Day 2008, he launched Team Wounded Warrior Project. He dedicated himself to raising money and awareness on behalf of the Wounded Warrior Project.

Since Team WWP's creation he has raised nearly $45,000 and has become the Wounded Warrior Project's top individual fundraiser. He has spoken to numerous audiences, received national press coverage, and touched millions of Americans through Team WWP's efforts.

On February 25th Family and Morale, Welfare and Recreation Command selected Cavanaugh as the Army's Athlete of the Year; the award was presented to him by Gen. Ann E. Dunwoody, commanding general, U.S. Army Materiel Command; Gen. Martin E. Dempsey, commanding general, U.S. Army Training and Doctrine Command; and Gen. Gordon R. Sullivan, USA, Ret., AUSA president. The award is given for his public service and superior athletic performances over the demanding 2009 Team WWP schedule that included the US National Cross Country Championships, marathons, and ultra-distance races from 50 to 114 miles. Team WWP's goal is to help the more than 30,000 Veterans of the wars in Iraq and Afghanistan who have returned home without limbs, severe burns, Traumatic Brain Injury, and Post Traumatic Stress Disorder.

During the recovery process, America's severely wounded are pushed beyond their physical and mental limits on a daily basis. These individuals simply need more than the government is able to provide them, and Team WWP feels compelled to help by taking on this challenge. As someone that's spent two years in Iraq, Cavanaugh will tell you that when people ask him what they can do for Iraq and Afghanistan Veterans, he doesn't hesitate to advise that this is the best support program that he's encountered.

To support Team WWP, visit it's official Web site: www.mattcavanaugh-teamwwp.blogspot.com. This site provides access to race updates, photos, Cavanaugh's training diary, and, most importantly, the link to Team WWP's secure donation server where contributions can be made directly to the Wounded Warrior Project. A donation immediately generates a receipt for tax purposes.

"Please remember the African proverb: If you want to go quickly, go alone. If you want to go far, go together", said Tom Cocchiarella, Team WWP partner. "Our support, together, can have a powerful, tangible impact on these severely wounded men and women. 2009 proved that and our 2010 season will be even greater. I humbly ask you to join us in support of America's wounded heroes and their families. If people would donate one dollar per mile for one or more of the events we can continue to support our wounded veterans one mile at a time," he added.

ABOUT TEAM WOUNDED WARRIOR PROJECT Team Wounded Warrior Project works directly in support of it's parent organization, the Wounded Warrior Project, which is a non-profit (IRS Section 501(c)(3)) organization whose core mission is to "honor and empower [severely] Wounded Warriors." One hundred percent of donations go straight to the Wounded Warrior Project.

BAH Fraud - OHA Fraud

Fraud Crack Down

The Army is taking steps to crack down on Basic Allowance for Housing (BAH) and Overseas Housing Allowance (OHA) Fraud. By conducting random audits and targeted investigations, the Army is zeroing in on soldiers that they believe have committed a crime.

Soldiers typically get caught engaging in fraud through audits of housing allotments and when the command or law enforcement compares Leave and Earning Statements with other documents, revealing a discrepancy. The typical methods of BAH/OHA Fraud are the following:

1. Using a false home of record to get a higher BAH Rate – BAH rates are set by location, pay grade and dependency status. For example, an E-6 with dependents claiming San Francisco, California as his home of record would receive $2,766.00 under the 2010 BAH rates. If that same E-6 claimed his dependents instead lived in Killeen, Texas he would only receive $1,116.00. BAH is a lump sum entitlement, meaning that a soldier can pocket the difference between their set allowance and the rent they pay;

2. Dependent-rate BAH claimed when there are no dependents – (typically claiming to still be married when the soldier is actually divorced with no children);

3. Using a false rental agreement to get a higher OHA rate – OHA is used to cover rent or mortgage, but unlike BAH, soldiers can’t pocket the difference;

In the past two years, there has been a substantial increase in BAH/OHA fraud cases. The vast majority of these cases involve amounts taken in the range of $15,000 to more than $60,000. The offenders come from both enlisted and officer ranks.

Crime and punishment

The Army believes that it is the soldier’s responsibility to properly report their family and living situation to ensure a correct entitlement. If the Army believes that you have fraudulently received BAH or OHA entitlements, they will typically charge you with larceny (of the amount not entitled) and submitting a false official statement (submitting a false BAH/OHA authorization form). In order to be convicted of either offense, the government must prove that you knew that you were not entitled to receive the money and that you kept it with the intent of never returning it. The government also must prove that you knowingly completed a BAH/OHA form with the intent to deceive.

Occasionally, there will be an honest mistake where you did the right thing and through some circumstance did not notice an overpayment for a given time period. In these cases, you should not be charged with a crime, but merely required to pay the money back. The government does not always look into the innocent possibilities when dealing with BAH/OHA Fraud.

Mr. Coombs has successfully defended both officer and enlisted soldiers faced with BAH/OHA Fraud charges. He knows how to put forth your best defense, and ensure that every possible angle is explored. If you are being investigated for BAH/OHA fraud, get ahead of the game by contacting Mr. Coombs for a free consultation.

01 March 2010

Judicial Notice

1. Counsel’s Objective. To admit proof of easily ascertained or generally known facts in order to save the time and costs of more formal methods of proof.

2. Key points.

a. Goal of Rule 201: to seek notice of “almanac-type facts” to avoid the cumbersome, time-consuming proof process. For example:
(i) That 6 February 2010 was a Saturday.
(ii) That a gram is equal to about 1/29 ounce.
(iii) That the distance from Heidelberg to Kaiserslautern is about 100 kilometers.
(iv) That it was still daylight at 2000 hours on 15 July at Fort Riley, Kansas.
(v) That a post’s speed limit is 25 mph unless otherwise posted.

b. How to do it. Counsel simply ask you to “take judicial notice of the fact that....” Additionally, the rule allows you to take judicial notice sua sponte.

c. Counsel should have something to back up their request for judicial notice. Ideally, the request for judicial notice will be in pleading format (standard caption with the topic being “Request for Judicial Notice”). Counsel should attach their documentary proof to the request and provide an advance copy to opposing counsel. The request should be marked as an appellate exhibit.

d. In deciding upon whether to take judicial notice, a military judge may rely upon otherwise inadmissible evidence, such as affidavits, letters, or other hearsay.

e. The taking of judicial notice is not a substitute for the rigors of proof. The members are not bound by a military judge's finding of judicial notice. Even if the military judge instructs the panel that she has taken judicial notice of certain facts, the panel, as the fact-finder, is as free to disregard it as it is to rely on it. Therefore, it would seem that the opponent of the judicially noticed fact should still be allowed to offer evidence to rebut it.

f. A military judge should not take judicial notice of matters that are clearly opinion or matters of inference. For example, a military judge should refuse to take judicial notice of the fact that possession of a certain amount of illegal drugs is proof of intent to distribute. Such a matter is best left for argument because it is not inherently subject to unquestioned objective proof.