28 July 2010

Statute of Limitations

In Article 43, UCMJ (10 U.S.C. § 843), Congress set out the statute of limitations with respect to offenses under the Uniform Code of Military Justice.  For almost all offenses, a person may not be tried if the offense was committed more than five years before the receipt of sworn charges by an officer exercising summary court-martial jurisdiction over the command.  Also, a person may not be given an Article 15 for an offense that was committed more than two years before the imposition of punishment.

There are, however, several exceptions to the general rule.  To know if any of these exceptions apply, you really should seek the advice of an attorney that specializes in military law.  Some of the more common exceptions are the following:

a)  A person charged with absence without leave or missing movement during wartime, or with any offense punishable by death may be tried and punished at any time without limitation.

b)  Another relatively new exception dealing with child-abuse cases is a result of a 2005 and 2007 amendment.  Under these amendments, a person charged in a child abuse case may be tried at anytime through the life of the child-victim or for five years, whichever is longer.   If the case arises from allegations before 24 November 2003, be sure to pay very close attention to whether the amendment applies and if so, how. 

c)  For continuing offenses, the date the offense is committed is considered to be the last day of the offense; note however, that absence without leave and desertion are not considered to be continuing offenses but rather to have occurred on the day the soldier absented himself.  See United States v. Tunnell, 23 M.J. 110 (1986).

d)  Periods in which the accused is absent without authority, fleeing from justice, absent from a territory in which the United States has power to apprehend him, in the custody of civil authorities, or in the hands of the enemy are excluded in computing the period of limitations under Article 43 UCMJ.

e)  During wartime, the President has the power to extend the period of limitations for offenses for which it may be detrimental to national security to try during the period of hostilities.  Similarly, Article 43(f) extends the statute of limitations for certain offenses committed during wartime. 

f)  Finally, other statutes may toll the statute limitation under Article 43.   See, United States v. Doutry, 48 MJ 102 (1998).

In computing the statute of limitations, fractions of a day are excluded, and neither the date the offense was committed nor the date of receipt of charges by the summary court-martial convening authority are counted. Tunnell, 23 M.J. at 110.  Additionally, a “year” is deemed to be a calendar year, not 365 days.  Tunnell, 23 M.J. at 112.

Article 43 (g) provides that, if the charges or specifications are dismissed as defective or insufficient for any cause and the statute of limitations has run or will expire in the next 180 days, the government has 180 days from the date of dismissal to forward the new charges or specifications to the summary court-martial convening authority.  A violation of the statute of limitations is not an absolute bar to try offenses. A motion to dismiss because of a violation of the statute of limitations is waived if it is not raised by the defense prior to adjournment R.C.M. 907(b)(2)(B).  The waiver rule will not apply if the accused is unaware of his right to raise the statute of limitations and the military judge fails to inform the accused of his right to assert the statute. The requirement to inform the accused of this right also applies to guilty pleas. See United States v. Fahey, 33 M.J. 920 (A.C.M.R.1991).

Once the accused raises the issue of the statute of limitations, R.C.M. 905(c)(2)(B) places the burden of persuasion upon the government to show, by a preponderance of the evidence, that the limitations period has not elapsed.

25 July 2010

TCS Fraud Article

A recent article in the Warrior Citizen, discusses the Army Reserve Command Office of the Staff Judge Advocate's efforts to step up TCS Fraud prosecutions.  The article details how the Defense Finance and Accounting Service and the Army Criminal Investigation Division along with the Staff Judge Advocate are actively pursuing those who have or are currently defrauding the government. 

The SJA office, with a five year statute of limitations, is looking at anyone that looks like they may have committed TCS Fraud.  They are looking at both currently mobilized soldiers and even those that have retired or been de-mobilized. 

It does not appear that this crime is limited to just junior ranking soldiers.  The article cites the results of nine different courts-martial (three involved a Lieutenant Colonel, one a Captain, two a Master Sergeant, one a Sergeant First Class and one a Sergeant).  Most of these individuals were recalled to active duty for court-martial.

If you, or someone you know, is being investigated for TCS Fraud, get ahead of the game by contacting the Law Offices of David E. Coombs.  Mr. Coombs has successfully defending soldiers accused of defrauding the government.     

24 July 2010

Guantanamo Conviction Upheld

The Court of Appeals for the Armed Forces (CAAF) unanimously affirmed the convictions and sentence of LCDR Matthew Diaz.  The opinion by CAAF may be read here. 

The high-profile court-martial conviction of former Navy Lt. Cmdr. Matthew Diaz, resulted in him being sentenced to six months of confinement for leaking classified information from Guantanamo Bay.  The case arouse from Diaz's service with the Joint Task Force Guantanamo Bay.  Diaz, as a deputy staff judge advocate, had provided to the Center for Constitutional Rights the names of some 551 detainees, inside a Valentine's Day card. 

The court rejected most of Diaz's issues on appeal.  The appellate judges did find the trial judge erred in denying Diaz the opportunity to present evidence about his motives in leaking the Guantanamo detention information, but concluded this error was essentially harmless.

20 July 2010

A Commander's Disciplinary Options

Prosecutorial Discretion: In civilian communities, police and prosecutors exercise discretion in deciding whether an offense should be charged and offenders punished. In the military, commanders make this decision. Once the investigation is complete, the commander must make a decision about how to dispose of the case. Throughout the investigation, the commander has a lawyer (judge advocate) available to assist and provide advice. With the assistance of his lawyer, the commander decides whether a case will be resolved administratively, through a nonjudicial punishment action under Article 15, UCMJ, or referred to trial, and what the charges will be. The disposition decision is one of the most important and difficult decisions facing a commander. Each commander in the chain of command has independent, yet overlapping discretion to dispose of offenses within the limits of the officer’s authority. The commander at the lowest level makes the initial decision regarding disposition. Under the Uniform Code of Military Justice (UCMJ), superior commanders may not seek to improperly influence the subordinate commander’s exercise of independent judgment or disciplinary action. However, nothing prevents a superior commander from withholding authority to himself or herself to dispose of offenses in individual cases or types of cases (e.g., officers, senior NCOs, drug cases, DUI).

Levels Of Disposition: Charges can be disposed of at four levels within the military justice system: (1) by the unit commander who exercises immediate Article 15, UCMJ, jurisdiction over the accused; (2) by the summary court-martial convening authority (normally a battalion or squadron commander); (3) by the special court-martial convening authority (normally a brigade or wing commander); and (4) by the general court-martial convening authority (normally a general officer who is commanding). Each commander or convening authority within the military justice chain has a range of available options and each commander exercises discretion in selecting one of the available options or makes a recommendation to a higher commander. As charges progress up the military justice chain, the convening authority has more options available. Any higher-level convening authority has all the powers and alternatives of any lower-level convening authority or commander. Thus a summary court-martial convening authority has available all the options of the immediate commander and additional alternatives as a convening authority. Similarly, a special court-martial convening authority is empowered to convene a summary court-martial as well as a special court-martial. Finally, a general court-martial convening authority possesses all the powers of the subordinate commanders and convening authorities.

Commander’s Range Of Options: The commander has a number of options available for the resolution of disciplinary problems. Briefly summarized, they are as follows:

1. The commander may choose to take no action. While this may seem to be unusual, the circumstances surrounding an event actually may warrant that no adverse action be taken. The preliminary inquiry might indicate that the accused is innocent of the crime, which the only evidence is inadmissible, or the commander may decide that other valid reasons exist not to prosecute. A subordinate commander's decision not to take action is not binding on a superior commander’s independent authority to take action.

2. The commander may initiate administrative action against a servicemember. The commander might determine that the accused committed an offense, but that the best disposition for this offense and this offender is to take administrative rather than punitive action. A commander can initiate action against the servicemember, alone or in conjunction with action under the UCMJ. Administrative action is not punitive in character; instead, it is meant to be corrective and rehabilitative. Administrative actions include measures ranging from counseling or a reprimand to involuntary separation.

3. The commander may dispose of the offense with nonjudicial punishment. Article 15, UCMJ, is a means of handling minor offenses requiring immediate corrective action. A minor offense is one for which the maximum sentence imposable at a court-martial would not include a dishonorable discharge or confinement in excess of one year. If a commander imposes Article 15 punishment for a minor offense, trial by court-martial is barred. If a commander imposes Article 15 punishment, but the offense is not minor, later trial by court-martial is not barred. Nonjudicial punishment hearings are non-adversarial. They are not a “mini-trial” with questioning by opposing sides. The commander conducts the hearing. The servicemember may request an open or closed hearing, speak with an attorney about his case, have someone speak on his behalf, and present witnesses who are reasonably available. The rules of evidence do not apply. In order to find the servicemember “guilty,” the commander must be convinced that the servicemember committed the offense. Generally speaking, the UCMJ and Manual for Courts-Martial establish maximum punishment limits based on the rank of the commander imposing punishment and the rank of the servicemember being punished. The servicemember has a right to appeal the imposing commander’s decision to the next-higher commander.

4. The commander may dispose of the offenses by court-martial. If the commander decides that the offense is sufficiently serious under the circumstances to warrant trial by court-martial, the commander may exercise the fourth option, preferring (initiating) charges and forwarding them to a commander possessing court-martial convening authority. Whenever charges are forwarded to a superior commander for disposition, the subordinate commander must make a personal recommendation as to disposition, to include the level of court that the subordinate commander believes to be appropriate. Here again, the commander first has the benefit of legal advice from his attorney (judge advocate).

The Accuser and How Charges Are Filed: The person who signs the charge sheet and attests to the accuracy of the charges is known as the accuser. Charges are filed under the Uniform Code of Military Justice by act of “preferral.” Although, any person subject to the Uniform Code of Military Justice may prefer charges, in most instances the unit commander prefers the charges.

Preferral Process: Charges are preferred (formally initiated) when the accuser, under oath, signs them before a commissioned officer of the armed forces authorized to administer oaths. The accuser must also state that he has personal knowledge or has investigated the matters set forth therein and believes they are true in fact to the best of his or her knowledge and belief. When an immediate commander acts as accuser, the commander may rely on the information developed in an investigative report.

13 July 2010

Promotion to Lieutenant Colonel

Mr. Coombs was recently selected for promotion to Lieutenant Colonel in the U.S. Army Reserves. After his promotion, he will continue in his current reserve position as a professor of trial advocacy at the Army's Judge Advocate General's Legal Center and School.

05 July 2010

Yet Another Great Result!

SYNOPSIS OF CASE: SSG S. was charged with violating a no contact order in violation of Article 91 and with two specifications of aggravated sexual assault of a child in violation of Article 120, UCMJ. In December of 2006, SSG S. took leave to see N.T. SSG S. had known N.T. for three years and had developed a very close relationship with her despite the fact she was only 13 years old. Their relationship was with the approval of N.T.’s mother. During his visit, SSG S. began his sexual relationship with N.T. SSG S. told N.T. that he loved her and that he wanted to marry her. N.T. told SSG S. that she loved him and wanted to marry him too. Over the course of his visit, SSG S. engaged in sexual intercourse with N.T. on two separate occasions.

After visiting N.T. in December, SSG S. referred to N.T. as his fiancée. He told several members in his unit that he was engaged to be married, including SFC H., his superior noncommissioned officer. SSG S. told SFC H. that he was upset that he could not get married sooner to his fiancée. When SFC H. inquired as to why they could not get married, SSG S. told him that his fiancée was 14 years old and could not marry him legally until she turned 16. Based upon this statement, he issued a no contact order to SSG S. He told SSG S. that he was not supposed to have any additional contact with N.T. Shortly after the no contact order, SSG S. deployed to Iraq.

SSG S. returned from his deployment in March of 2008. He was then sent to Redstone Arsenal for the Basic Noncommissioned Officers Course, near his hometown and approximately two hours from N.T’s grandparents’ house, where she was staying. On the night of August 8, 2008, SSG S. drove to N.T.’s grandparents’ home to pick her up. In order to meet SSG S., N.T. had to sneak out of her bedroom window. The two drove around for a while before SSG Smith drove to a parking lot where they had sexual intercourse in the car. Afterwards, they drove to a nearby McDonald's to have dinner. After dinner, N.T. and SSG S. drove back to a parking lot to have sexual intercourse again with N.T. It was at this time that local law enforcement officer arrived in a marked police car. Upon discovering that the SSG S. was 31 and N.T. was 15, the officer arrested him.

SYNOPSIS OF RESULT: The government initially offered SSG S. a seven year sentence cap. Due to an intensive pretrial negotiation, the defense was able to secure a three year sentence cap. After putting on a strong sentencing case, the military judge sentenced SSG S. to be reduced to E-1 and to 12 months confinement. The military judge then recommended that the convening authority defer the confinement for 12 months and if no additional misconduct is done to disapprove the confinement in its entirety.

BEST GUESS FOR THE RESULT: A well thought out sentencing case that capitalized on every bit of mitigation evidence available in order to help persuade the military judge that SSG S. should be given a lenient sentence. First, the defense, over government objection, was allowed to use a confessional statement to supplement the stipulation of fact during the providence inquiry. The government and defense had a very difficult time agreeing on any of the facts. Consequently, the stipulation was rather bare bones. In order to give the military judge a more complete picture, the defense offered a confessional statement for use during the providence inquiry. The confessional statement was basically the defense’s desired version of the stipulation of fact complete with all of our mitigation evidence. During the sentencing case, the defense capitalized on several good soldier witnesses, including one via telephonic testimony. Finally, by spending several hours preparing SSG S., the defense was able to humanize him and his story. This effort resulted in the outstanding outcome at trial.

“Sticking it to the Man Since 1980”