In United States v. Reimers, the Appellant challenges the constitutionality of UCMJ art. 134(3).
For the first time on appeal, Appellant argues that Clause 3 of Article 134, UCMJ (“Clause 3”), is unconstitutional as applied to servicemembers because it denies equal protection of the law. Appellant argues that a defendant in civilian federal court enjoys more constitutional rights than does a military accused, such as entitlement to grand jury indictment, jury size, and the requirement of a unanimous jury verdict. Consequently, according to Appellant, the Government’s election of the military forum under Clause 3 deprives him and other servicemembers of equal protection under the law because civilian federal prosecutors declined to prosecute those offenses. Appellant asks this court to set aside and dismiss Specification 2 of Charge VI (making a silencer) and Specification 5 of Charge VI (selling a firearm to a known felon), which were charged under Clause 3.
In In reKK, the complaining witness sought a writ because the military judge denied a government requested continuance so she could be available for trial. (The writ of course gets such a continuance.) The court finds no basis to issue a writ.
What Petitioner has not identified is any right to have the accused’s courtmartial dates set such that they accommodate either her or her victims’ counsel’s schedule. Instead, Petitioner’s potential absence more directly impacts the ability of the Government to present its case, which is to say that if Petitioner’s live testimony is important to the Government’s case, then it is the Government which would seek relief in order to ensure Petitioner’s presence. In this case, the Government requested a continuance for this very reason. That request was denied, and the Government has not sought relief from our court. Just as Petitioner has no legal ability to force the Government to call her as a witness, Article 6b, UCMJ, does not provide Petitioner with authority to challenge—on the Government’s behalf—the military judge’s substantive ruling on the continuance motion with respect to such matters as her availability. Victims involved in court-martial proceedings do not have the authority to challenge every ruling by a military judge with which they disagree; but they may assert their rights enumerated in Article 6b, UCMJ, in the Manual for Courts-Martial, and under other applicable laws.
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