Courts of Criminal Appeals

Army Court of Criminal Appeals

United States v. Lathrop

ACCA gives one month sentence relief for a 211 day delay. The concurring judge would have given the credit also for a due process violation and would have granted 98 days of sentence relief vice the one month granted. 

It appears that the post-trial memo was rather cursory, failed to account for the delay between 29 December 2023 and 5 April 2024, and,

Until its certification, the one-volume ROT exhibits efficient, reasonable post-trial processing. However, once the ROT was certified, reasonable diligence ended, and dilatory post-trial processing began. This ROT was certified on 29 December 2023, but not put in the mail until 5 April 2024. This ROT was not mailed for over three months—longer than it took to transcribe, authenticate, and certify it.​

Judge Schlack finals the partial dissent with,

Said differently -- considering the record sat certified for months, it is reasonable for the public to perceive the delay was done to ensure the government got its pound of flesh. Considering the government also benefits from agreements to plead guilty, this is troublesome from both an integrity and fairness standpoint.

Navy-Marine Corps Court of Criminal Appeals

United States v. Pedicini.

This case is the third Article 62 appeal in a short span of time. A majority of the panel declined to decide the issue because the Government failed to provide timely notice of the appeal--thus the court lacks jurisdiction.

This case highlights the complex and intertwined nuances of the UCMJ and the timelines and requirements that different decisions or actions have on different parties. At issue is the question of when did the Article 62 clock start for the Government? This calculation touches on various rules and statutorily established events. In this case, the initial confusion, at least on the part of the Government,21 came when, while entering findings, the military judge stated, “For Charge IV, Article 134: Specifications 2 through 4 and 6 through 7 are conditionally dismissed pending appellate review.”22 This statement was neither a general finding nor a dismissal of the charges in strict compliance with R.C.M. 907.23 Rather it appears to be a comingling of the concerns found in R.C.M. 907(b)(3)(B)’s discussion24 and a simultaneous attempt to satisfy R.C.M. 906(b)(12)(A). What is clear is that the specifications were dismissed. The proceedings with regard to Specifications 2 through 4 and 6 through 7 of Charge IV were terminated, which neither side disputed at the time. The announcement, regardless of later R.C.M. 802 conferences, bench briefs or other actions shy of reconsideration pursuant to R.C.M. 905(f) by the court, terminated the proceedings as to those specifications. That termination had two relevant effects: (1) it allowed the Government to appeal the ruling under Article 62 and (2) started the Government’s statutory clock for filing such an appeal.

While there was a lot of discussions post-announcement of the dismissal pending appellate review, there was no request for reconsideration (which resets the notice date, see Smith at NMCCA (published).

Ultimately, the majority concludes that the 72-hour clock started on 19 April 2024 and that giving notice on 29 May was way out of time. There is a dissent.

On 19 April 2024, the military judge, during entry of findings, in relevant part stated: “[f]or Charge IV, Article 134: Specifications 2 through 4 and 6 through 7 are conditionally dismissed pending appellate review.”

Note to trial counsel from the dissent. Whenever the word "dismissed" pops up, the better course would be to ask specifically for a reconsideration, as they might have done here, and at the same time submit the notice of appeal (and tell the MJ and Appellate Government it's done out of an excess of caution).

In Flores-Galarza, the trial judge made a ruling, suppressing evidence. The ruling was made on 27 May 1994.12 After the court ruled, the trial counsel advised that the government was contemplating an appeal under Article 62. The trial counsel further advised the military judge that “written notice of an appeal is required within 72 hours. Seventy-two hours would be Monday, [30 May 1994] a holiday.” To which the military judge responded: “[y]ou can make it Tuesday [31 May 1994].” In doing so, the military judge extended the government’s 72-hour statutory timeline by a day so that the deadline would not toll on a holiday. The Flores-Galarza Court found that the military judge lacked the authority to extend the seventy-two hour statutory notice window and thus, the Court lacked jurisdiction to hear the appeal. I agree with the analysis and holding, but that is not what occurred in this case.

The dissenting judge also has another cautionary note.

I also write separately to note my concern with the military judge's apparent expansive reading of the purpose and scope of R.C.M. 802. It is clear that there were multiple R.C.M. 802 conferences held in this case. Unfortunately, the several R.C.M. 802 conferences were inadequately summarized on the record. It is also apparent that the military judge led a lengthy discussion related to the issue of the “conditional dismissal” during one or more R.C.M. 802 conferences. That discussion should have been litigated on the record, and not in an R.C.M. 802 conference. Indeed, the fact that trial counsel sent the 19 April 2024 email seeking clarification as to whether there was a final ruling on the conditional dismissal issue is evidence of the confusion created by the expansive use of R.C.M. 802 conferences in this case.

United States v. Brown

Appellant invites us to extend our holding in [United States v. Wadaa, 84 M.J. 652, 654 (N-M. Ct. Crim. App. 2024)] and require the summary of offense portion of the Entry of Judgment [EOJ] to identify the named victim and to include the location of the offense. We decline to do so. Appellant also argues that the disposition of three charged offenses was incorrectly annotated on the EOJ. We disagree. However, we agree with Appellant that the EOJ in his case is incorrect in that it did not document his request for, and the convening authority’s approval of, deferment and waiver of automatic forfeitures. We find no prejudicial error, but modify the EOJ and direct that it be included in the record.

NMCCA declines to extend Wadaa as requested by the Appellant, not because that extension is prohibited but because it is not required.