United States v. Simmons. His third appearance brings him some sentence relief.
An officer panel originally convicted of four sexual assaults of a child, extortion, and producing CP. He was sentenced to 12 years, TF, RiR, and a DD in 2017.
On his first look at AFCCA, the case was returned for posttrial errors.
On reappearance, the AFCCA affirmed 11 years, 11 months, and 20 days confinement because of posttrial delay.
CAAF set aside the finding of guilty for extortion in United States v. Simmons, __ M.J. ___, 2022 CAAF LEXIS 205 (C.A.A.F. 2022).
Appellant timely appealed the decision of the CCA and this Court granted review of the following issue:
The defense vigorously objected to the Government’s motion, arguing that “during the government’s case-in-chief, they failed to elicit any testimony that the extortion occurred during [the] time period [originally charged] . . . . And so the amendment here, this major change here, is made to cure a defect in their presentation of the evidence.” The defense further stated: “Now our particular concern here, one, is of a notice type nature, particularly given that the government is moving to amend the charge sheet, . . . basically [just] before instructions [begin].” The civilian defense counsel also argued that “the dumping [of] 250 pages of text messages on me the night before trial, . . . hardly constitutes notice,” and that he might have cross-examined the complaining witness differently if the Government had acted in a timely manner. In addition, the defense noted that by enlarging the charged time frame, the Government was now alleging that Appellant extorted CL when she was still a minor, and although age is not an element of the offense, her young age made the alleged offense “absolutely more serious” and could result in “an enhanced sentence.” For these reasons, civilian defense counsel concluded, the Government’s proposed amendment to the charge sheet was “highly prejudicial.”
Simmons, Slip op. at 4. The AFCCA then reassessed the sentence and affirmed confinement of nine years, 11 months, and 20 days.
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