f-

THE ARMY

Headquarters, Department of the Army

Department of the Army Pamphlet The Legal Basis for United 27-60-148 States Military Action April 1986 in Grenada

Table of Contents Major Thomas J. Romig The Legal Basis for United States Instructor, International Law Division, Military Action in Grenada 1 TJAGSA

Preventive Law and Automated Data "The Marshal said that over two decades Processing Acquisitions 16 ago, there was only Cuba in Latin Amer­ ica, today there are Nicaragua, Grenada, The Advocacy Section 21 and a serious battle is going on in El Sal­ vados. "I Trial Counsel Forum 21 "Thank God they came. If someone had not come inand done something, I hesitate The Advocate 40 to say what the situation in Grenada

would be now. 'JZ Automation Developments 58 I. Introduction Criminal Law Notes 60 During the early morning hours of 25 October 1983, an assault force spearheaded by US Navy Legal Assistance Items 61 'Memorandum of Conversation between Soviet Army Chief Professional Responsibility Opinion 84-2 67 of General Staff Marshal Nikolai V.Ogarkov and Grenadian Army Chief of Staff Einstein Louison, who was then in the t Regulatory Law Item 68 Soviet Union for training, on 10 March 1983, 9uoted in Preface lo Grmactn: A Preliminary Rqorl, released by the Departments of State and Defense (Dec. 16, 1983) [here­ j CLE News 68 inafter cited as Preliminary Report]. 'Statement by Alister Hughes, a Grenadian journalist im- Current Material of Interest 72 Drisoned by the militaryjunta.. on 19 October 1983, after he was released by US Military Forces, qctolrd in N.Y. Times, Oct. 31, 1983, at A12, col. 1. DA Pam 27-80-148 2

SEALS, Marines, and Army Rangers and Air­ States allies6 to strong approval by the US I borne troops landed on the Caribbean island of p~blic,~the Grenadian public,Band most of the Grenada. This was the vanguard of a combined Caribbean nations.e There was in the United US-Caribbean security force composed of States, however, a storm of protest arising from several thousand US soldiers, sailors, and Marines and 300 soldiers and police officers from six of Grenada’s neighboring island^.^ The ePerhaps the strongest criticism came from British Prime operation, code-named “Urgent Fury,” was to Minister Thatcher who stated that “if we’re going to have a pit, for the first time, US forces in direct combat new rule that whenever communism reigns against the will of the people . . . the US. shall enter, then we are going to with Castro’s Cuban force^.^ The reaction have really terrible wars in the world.” Wash. Post, Oct. 31, around the world to this collective military ac­ 1983, at A18, col. 5. For a review of the reaction of other US tion ranged from condemnation by the United allies, see Berlin, supra note 6; Dobbs, France Criticizes Nations General Assembly6 and most United US.Policies on Lebanon, Grenada Invasion, Wash. Post, Nov. 3, 1983, at Al, col. 1; Wall St. J., Oct. 27, 1983, at 1, col. 5; Wash. Post, Oct. 27, 1983, at A26, col. i; but see The Caribbean countries represented included Antigua, St. Vinocur, Invasion of Grenada Wins Allied Backers 4fler Lucia, St. Vincent and the Grenadines, Dominica, Jamaica, Initial Dissent, N.Y. Times, Nov. 3, 1983, at Al, col. 6 and Barbados. The Battle for Grenada, Newsweek, Nov. 7, (following initial disapproval, several US allies indicated re­ 1983, at 68. strained approval). 4There is some question as to whether all the Cubans were ‘An ABC News telephone poll indicated an 8-to-1 mqjority combat forces. In an interview on Grenada, Major General in favor of the US intervention. Hilts, Call-inPoll Supports Trobaugh, Commander of the 82d Airborne Division, stated Invasion qf Gremtla, 8 to 1, Wash. Post, Oct. 30, 1983, at that the captured Cubans included 366 “workers” who A18, col. 1. A Wash. Post-ABC News survey conducted on were mostly construction men, 141 combatants, and 159 28 October 1983, indicated that 65% of the people polled “sympathizers” who appeared to have a dual function of approved of the US intervention in Grenada as opposed to construction worker and combatant. Taubman, ExpertsSay 27% against it. Wash. Post, Oct. 30, 1983, at A18, col. 1. 5 Arms Pacts Sugge.st Moscoici Had Designs on Grenada, N.Y. Times, Nov. 6, 1983, at 22, col. 1. “ACBS poll conducted on Grenada on 3 November 1983, in­ -’ dicated that 91% of those polled said they were glad the US ‘, 2 November 1983, in a vote of 109-to-9, with 27 ab­ troops had come to Grenada and 86% of those polled said stentions, the United Nations approved a resolution “deep­ they felt that they or their family were in danger while ly deploring” the “armed intervention in Grenada” which General Austin was in power. Clymer, Grenadians it called “a flagrant violation of international law.” The WelcomeInvasion, A Poll Finds, N.Y. Times, Nov. 6, 1983, resolution called for the immediate withdrawal of all at 21, col. 1. foreign troops. Interestingly, the General Assembly voted to cut-off debate before the United States and the countries #See Burgess, Most Residents qf Nearby Barbados Appear to of the Organization of Eastern Carribbean States (OECS) Support Grmada Invasion, Wmh. Post, Oct. 29, 1983, at could present additional information. Berlin, U.S. Allies A15, col. 1; Le Moyne, Govmor of Puwto Rico SuppPnrt.9 Join in Lopsided U.N. Vote Condemning In~sionqf. Reagan on Invasion qf Grmncln, N.Y. Times, Nov. 4, 1983, Grenada, Wash. Post, Nov. 3, 1983, at Al, col. 1; Rernstein, at 18, col. 3; Lescaze, Bench Philosopher.? of Caribbean U.N. Assembly Adopts Measure ‘Deeply Dgloring’ Invn­ Island.?Hail Grmatfn Actim, Wall St. J., Nov. 1, 1983, at 1, sion of Isle, N.Y. times, Nov. 3, 1983, at A21, col. 1. col. 3.

The Army Lawyer (ISSN 0364-1287) Editor Virginia 22903-1781. Footnotes, if included, should be typed double-spaced on a separate sheet. Articles should Captain Debra L. Boudreau follow A Una$orm System of Citation (13th ed. 1981) and The Army Lawyer is published monthly by The Judge Ad­ the Uniform System of Military Citation (TJAGSA, Oct. vocate General’s School for the official use of Army lawyers 1984). Manuscripts will be returned only upon specific re­ in the performance of their legal responsibilities. However, quest. No compensation can be paid for articles. the opinions expressed by the authors in the articles do not Individual paid subscriptions are available through the necessarily reflect the views of The Judge Advocate Superintendent of Documents, U.S. Government Printing General or the Department of the Army. Masculine or Office, Washington, D.C. 20402. feminine pronouns appearing in this pamphlet refer to both Issues may be cited as The Army Lawyer, [date], at [page genders unless the context indicates another use. number]. Second-class postage paid at Charlottesville, VA The Army Lawyer welcomes articles on topics of interest and additional mailing offices. POSTMASTER: Send ad­ to military lawyers. Articles should be typed double spaced dress changes to The Judge Advocate General’s School, and submitted to: Editor, TheAmyLawyer, The Judge Ad­ U.S. Army, Attn: JAGS-DDL, Charlottesville, VA 22903­ vocate General’s School, U.S. Army, Charlottesville, 1781. 3 DA Pam 27-60-148

much of the academic and legal communities.1o A. AnOverviezv Many commentators, while tacitly conceding I. Geographic Characteristics that our action may have been illegal under in­ ternational law, declared that the United States Grenada is the southern-most of the Wind­ did the right thing under the circumstances ward Islands of the Caribbean and is approxi­ then existing in Grenada." ' mately ninety miles north of Venezuela. It has a land area of about 133 square miles, the climate This article examines the legal basis for the is tropical, and there is a mountainous rain United States intervention in Grenada. There forest in the center of the island. Its population are actually two aspects of legal analysis in­ of about 110,000 consists primarily of descen­ volved in the use of US military forces to inter­ dants of African slaves as well as some Euro­ vene in the internal affairs of a foreign nation. peans and a few descendants of the original In­ The first relates to the legality of the dian population. Grenada shares a common President's action under US law, i.e., his power cultural background with many of the small, under the Constitution to commit US military English-speaking island nations of the Eastern foces to hostilities without a declaration of war Caribbean region.lS by Congress. This article will not address that issue; rather, it will focus on the legality of the 2. Recent History US action under international law. It is impor­ Grenada, a former British colony, achieved tant to note, however, the failure of the US to independence on 7 February 1974 and Eric act in a certain manner under a signed and rati­ Gairy became the nation's first prime minister. fied treaty would be a violation of law under Grenada adopted a constitution establishing a the Constitution.12 parliamentary system of government and re­ 11. Background tained its membership in the British Common­ wealth of Nations.I4Prime Minster Gairy's ad­ To accurately examine the legal basis for US ministration of Grenada was characterized by action in Grenada, it is necessary to first ex­ corruption and suppression of political op­ ! amine the factual setting in which the decision ponents.16 On 13 March 1979, a coup, led by to intervene was made. Law, after all, should Maurice Bishop, overthrew the Gairy govern­ not be applied in a vacuum. This examination ment. Bishop suspended the constitution and will first focus on the general background of established a People's Revolutionary Govern­ Grenada and then the events leading up to the ment.Ig The political party of the People's collective intervention. Revolutionary Government was the marxist Ww Wall St. J., Nov. 2, 1983, at 30, col. 1 (the article in­ dicates that roughly two-thirds of Harvard University's Law Fcaulty voted to withdraw US troops from Grenada Y3ee Countries of the World And Their Leaders: 1983 Year­ and that a telegram on their behalf was sent to President hook 641-44 (1983) (Grenada). Reagan condemning the invasion); Epstein, Lalo Experts Rehut Rmgan '.s Rationale,for Invasion, The Miami Herald, l4The constitution was enacted on 19 December 1973 and Oct. 30, 1983, at 18A, col. 1; Taylor, E;cperts Question was effective on 7 February 1974. It recognized that the ex­ Legality qf the Invasion qf Grenada, N.Y.Times, Oct. 20, ecutive authority of Grenada was vested in the British 1983, at A19, col. 3; How to Control Reagan's 'Outlamy', Crown and was to be exercised on behalf of the Crown by Manchester Guardian Weekly, Dec. 11, 1983, at 2, col. 1 (a the Governor-General. Grenada Const. ch. lV, 5 57 (1973, letter to the editor signed by eight international law pro­ suspended 1979), reprinted in A. Blaustein & S. Holt, Con­ * fessors from various law schools). stitutions of the Countries of the World, Grenada (1974). "See Harsch, The Case.fmInvading G-renada, The Christian %airy was an eccentric who believed in flying saucers and Sci. Monitor, Nov. 1, 1983, at 3, col. 3; Podhoretz, Proper unconventional religions. Department of Defense, Uses qf Poiurn, N.Y. Times, Oct. 30, 1983, at E 19, col. 4; Grenada: October 26 to November 2, 1983,3(1983) [herein­ c Rosenfeld, Is Intervention Always Wrong?, Wash. Post, after cited as Grenada: October 25 to November 21. Nov. 4, 1983, at A17, col. 1; Taylor, Squaringlntematiwnal IBPeople'sLaw No. 1 of 1979 (March 25, 1979) (suspension Law With Political Imperatives, N.Y.Times, Oct. 30, 1983, of constitution) and People's Law No. 2 of 1979 (March 25, at E 2, col. 3. 1979) (establishment of People's Revolutionary Govern­ 12U.S.Const. art. VI, cl. 2. ment), reprinted in A. Blaustein & S. Holt, supra note 14. DA Pam 27-50-148 4 -z New JEWEL Movement (NJM).17 Bishop With the assistance of the Cubans and the declared that the suspended constitution would Soviets, construction was begun on a large in­ be revised but that a series of People’s Laws ternational airport capable of handling both would replace the constitution pending its revi­ large commercial airliners and military sion.le Bishop suspended the writ of habeas cor­ aircraft.24An interesting aspect of the decision pus,l9 established preventive detention allow­ to build the airport was the NJM’s declaration ing indefinite imprisonment without trial,20and before they assumed power in 1979 that they suppressed freedom of the press and political were against building an international airport freedom.21 because it would lead to “national-cultural pro­ stitution” by the tourist industry.25The Cubans Grenada under Bishop and the NJM looked to and the Soviets upgraded Grenada’sonly radio Cuba and the Soviet Union as role models and station, RadioGrenada, from a one-kilowatt sta­ established close ties with them. In January tion to a seventy-five-kilowatt station that cov­ 1980,Grenada and Cuba were the only Western ered the entire Caribbean.26The new radio sta­ Hemisphere countries to vote against a United tion was renamed Radio Free Grenada, and its Nations resolution condemning the Soviet source for international news was switched Union’s invasion of AfghanistanaZ2Numerous from the British Broadcasting Corporation to agreements were made between Grenada and the Soviet TASS and Cuban Prensa Latina news other communist countries for the supply of networks.27 arms and ammunition and for the training of Grenadian military and political personne1.23 In November 1981, Grenadajoined the Orga­ nization of Eastern Caribbean States (OECS).28

‘’The name stands for The New Joint Endeavor for Wel­ fare, Education, and Liberation Movement. Preliminary Democratic Republic (June 10, 1982) (the agreement for the Report, supra note 1, at 7. ‘ years 1982 through 1985 was to include the political train­ ­ , 1 1SIcI. ing of members of the NJM in East Germany); Agreement lsPeople’sLaw No. 21 of 1979 (April 12, 1979), reprinted in Between the Bulgarian Communist Party and the New A. Blaustein & S. Holt, supra note 14. JEWEL Movement (signed but undated other than noting it is for the period 1982 - 1983) (the agreement provides for 20People’sLaw No.8 of 1979 (March 25, 1979), reprinted in the political training of Grenadians at the political academy A. Blaustein & S. Holt, supra note 14. of the Bulgarian Communist Party); Summary of Prime Minister Bishop’s Meeting With the Soviet Ambassador Wee Langdon, One Grenudian Prisoner’s Stow, Wash. Times, Dec. 15, 1983, at C1, col. 2. See also Preliminary (May 24, 1983) (the summary mentions that the Soviet Report, supra note 1, at 8-13. Union will provide Grenada with two Coast Guard patrol boats, 72,000 roubles worth of 14.5-mm shells for the 22Grenada:October 25 to November 2, supra note 15, at 4. Soviet-supplied BTR armored troop carriers, and an aircraft capable of seating 39 paratroopers; all of these items were 23Taubman,E-ts Say 5 AmPacts Suggest Moscow Had Desigw on Grenada, N.Y. Times, Nov. 6, 1983, at 1, col. 2. to be shipped through Cuba); letter on behalf of General Following the intervention by the US and the Caribbean col­ Hudson Austin from the Grenadian Ambassador in Cuba to lective security force, numerous documents were captured the Vietnamese Ambassador in Cuba (May 23, 1981) (the detailing the extent of the communist connection to letter was a request for training of military personnel and Grenada. A few of those captured documents supporting included a request for a study of captured US military this point are currently on file in the International Law equipment, an assessment of tactics used by the US in Viet­ Division, The Judge Advocate General’s School, US Army: nam, and techniques of mobile warfare). letter from Dmitri Ustinov, Minister of Defense of the 24Thenew airport’s 9,000 foot runway would have given USSR, to General Hudson Austin, State Minister of Defense the Soviets the capability of covering the entire Caribbean and Interior of Grenada (Jan. 19, 1983) (approving the ad­ with MIG-23s stationed in Cuba and Grenada. Preliminary mission of ten Grenadian military officers to a four-year Report, supra note 1,at 6. Soviet military school); letter from General Hudson Austin to Divisional General Ochoa, Vice Minister of Defense for 25Id. the Revolutionary Armed Forces of Cuba (May 16, 1982) 2RId.at 13. (thanking the Cuban government for the special courses in Cuba attended by Grenadian military personnel); Agree­ 271d. ment On Cooperation Between the New JEWEL Movement ZaPeople’sLaw No. 41 of 1981 (Nov. 6, 1981), reprinted in of Grenada and the Socialist Unity Party of the German A. Blaustein & S. Holt, mpra note 14. 5 DA Pam 27-60-148

The members, all former members of the West leaders, Bishop reportedly agreed to stop letting Indies (Associated States) Council of Ministers, Grenada be used as a transit point for revolu­ include: Antigua, Dominica, Grenada, Montser­ tionaries from other Caribbean nations travel­ rat, St. KittsNevis, Saint Lucia and Saint Vin­ ling to Libya for terrorist training.33 cent, and the Grenadines. Grenada is tied to 2, Disintegration of the Party these nations not only by virtue of its member­ ship in the OECS, its common cultural back­ In July and August 1983, a series of events ground, and membership in the British Com­ began that have been characterized as a monwealth, but also by a common currency and “Stalinist purge” of Grenada’s marxist NJM mutual economic interests through membership ~arty.3~Captured minutes of the organizing in the East Caribbean Common Market.2e committee of the NJM, dated 26 July 1983, reflect the following concern about the revolu­ B. Events Leading to US Action tion: “The continued failure of the Party to 1. Relations With the United States transform itself ideologically and organisa­ tionally [sic] and to exercise firm leadership A coolness verging on animosity had existed along a Leninist line in the face of the acute between the governments of the US and political, economic, social, military external Grenada since Bishop’s announcement that the complexitiei [sic] facing the Revolution.”35 At new People’s Revolutionary Government was an extraordinary meeting of the NJM Central going to seek closer ties with Cuba and the Committee, the following was reported: “We Soviet Union. Grenada’s obedient support of need to look at this situation in a special way- the Soviet Union in the United Nations, its ex­ We are seeing the beginning of the disintegra­ treme revolutionary and anti-American tion of the party.’’36At the same time there rhetoric, and its decision to build the interna­ were reports of incidents between the Cubans tional airport, with reports that it was to be and the Grenadian workers at the international used for purposes beyond mere tourist traffic,30 all added to the tensions between Grenada and the US. Security Advisor, had struck some sort of a deal in thelr In what may have been an attempt to alter June 1983 meeting. Id. This is somewhat substantiated in the course of events on Grenada in June 1983, the article by John Goshko where he stated that Bishop’s Bishop sought and received a meeting with top American friends described Bishop as returning to Grenada determined to respond to the American promises of officials in the US g~vernrnent.~’There is some friendlier relations if Grenada moderated its rhetoric and indication that this meeting may have been un­ conduct. Goshko, supm 31, at A17. Possible further sub­ popular with the NJM Central Committee and stantiation comes from a captured document that is hand­ thus may have contributed to Bishop’s down­ written and appears to be the notes taken by a Grenadian fall.32 Under pressure from other Caribbean attending the meeting with Clark and other officials of the Administration. The tone of the notes are upbeat and tend to support what was reported in the news media. Hand­ written notes of what appears to be a memorandum of the Wee Agreement Establishing the East Caribbean Common meeting between Maurice Bishop and William Clark, Ken­ Market, June 11, 1968, 20 I.L.M. 1176 (1981). neth Dam, and other Administration officials, on file in the 30TheGrenadian Minister of Mobilization, Selwyn Strachan, International Law Division, The Judge Advocate General’s stated publicly in 1981 that the USSR would find the new School, US Army. airport “useful because of its strategic location astride vital 33Anderson,supra note 31, at C7. sea lanes and oil transport routes” and that Cuba would use the airport to supply its troops in Africa. Preliminary 3rId. Report, supra note 1, at 30. 36Captured document, Minutes of the Meeting of the Orga­ 3LAnderson,Behind the Purge of Bishop, Wash. Post, Oct. nising [sic] Committee on Monday, July 25, 1983, at 1-2 30, 1983, at C7, col. 4; Goshko, Invasion Caps 4 Years of (l983), on file in the International Law Division, The Judge Tension Between Ministate and the U.S., Wash. Post, Oct. Advocate General’s School, US Army. 26, 1983, at A17, col. 1. SePreliminary Report, supra note 1, at 31 (the comments 32Ande~~n,supra note 31, at C7. Jack Anderson reports are those of LTC Liam James, Deputy Secretary of Defense that Bishop and William Clark, the President’s National and Interior) [emphasis in original]. DA Pam 27-60-148 6 - airp01-t.~'Another extraordinary meeting of the freed him from his house arrest and marched on NJM Central Committee took place over the nearby Fort Rupert where some of Bishop's sup­ three day period of 14-16 September 1983 porters were being held prisoner. Upon arriving where it was decided that the NJM needed to at Fort Rupert, they disarmed the garrison and strengthen its relations with Cuba, the Soviet took over the fort. Within a short time, soldiers Union, and East Germany.aBThe Central Com­ from the People's Revolutionary Army attacked mittee's state of panic was evidenced in the the fort and the crowd surrounding it, firing following statement: "The militia is non-exis­ heavy machine guns from their armored per­ tent, the army demoralized. . . . If this is al­ sonnel carriers directly into the crowd, killing lowed to continue the party will disintegrate in and wounding many, including women and chil­ a matter of 5-6 months. . . . [Tlhe Comrade dren. Bishop and six of his ministers and aids Leader [Bishop] has not taken responsibility, were captured and later executed.46Radio Free not given the necessary guidance . . . is disor­ Grenada announced the deaths and the forma­ ganized very often, avoids responsibilities for tion of a Revolutionary Military Council and the critical areas of work. . . ."3O The Central Com­ institution of a twenty-four-hour shoot-on-sight mittee decided that Bishop must share power curfew. Journalists who arrived at the airport with his deputy and rival, Bernard C~ard.~O were met by the military and forced to depart the country immediatel~.~~ On 27 September 1983, Bishop departed Gre­ nada to visit several Eastern European coun­ 3. Actions of the OECS and the US tries, the Soviet Union, and for an unscheduled The number of nations of the OECS were visit to Cuba. Upon his return, Bishop decided shocked and panicked by the occurrences on to fight the decision of the Central Committee Grenada.d7 News from Grenada included by discrediting Deputy Prime Minister Coard reports of riots, looting, scattered shooting, through a campaign of rumors that hard in­ more executions, and widespread la~lessness.~~ n tended to assassinate Bishop.41 Coard dis­ On 21 October, OECS leaders met in Barbados I avowed knowledge of the plan and resigned his and unanimously (excluding Grenada, which position with the party and the government. On for obvious reasons was not present) decided to 13 October 1983, Bishop was placed under request the US to assist them in restoring order house arrest pending a determination of his in Grenada. This request by the OECS had fol­ On 18 October, five ministers loyal to lowed earlier requests to the US by individual Bishop resigned from the g~vernment.~~ Caribbean leaders.4eAt some point prior to the Throughout this period there were reports of OECS meeting, the Governor-General of Gre­ strikes and demonstrations at key points nada, Sir Paul Scoon, smuggled out of Grenada throughout Grenada.44On 19 October, a crowd a message to the Prime Minister of Barbados re­ of several thousand of Bishop's supporters questing assistance.60 A subsequent written

Waptured document, Minutes of the PoliticaYEconornic Bureau, Aug. loth, 1983, at 6 (1983), on file in the Inter­ 'Vd. at 36; see aLso Nozv to Make it Work,Time, Nov. 14, national Law Division, The Judge Advocate General's 1983, at 21. School, US Army. 4ePrelirninaryReport, supra note 1, at 36. 3nPreliminaryReport, supra note 1, at 32. 47Gwertzman,Steps to the Invasion: No More 'Paper Tiger', 3 ~ . N.Y. Times, Oct. 30, 1983, at 20, col. 4. See also Grenada: October 25 to November 2, supra note 16, at 5. 'Old. at 33. 4nPrelirninaryReport, supra note 1, at 36-37. 4Vd. at 34. *eGwertzrnan,supra note 47, at 20, col. 1; Tyler, supra note dTyIer, Chronology of Events In Grenada,Wash. Post, Oct. 42, at A14, col. 24. 29, 1983, at A14, col. 1. "DeFrank & Walcott, The Invasion Countdm,News­ 43PreliminaryReport, supra note 1, at 36. week, Nov. 7, 1983, at 76; D-Ddy in Grenada,Time, Nov. 7, 44Zd. at 34. 1983, at 27. 7 7 DA Pam 27-60-148 r‘. request, dated 24 October 1983, was delivered possibly another coup was being planned.s7The to the Prime Minister of Barbados requesting US was receiving intelligence assessments on assistance from Barbados, Jamaica, the OECS, the personalities involved in the power struggle and the US.61 The US was informally requested on Grenada; the source of these assessments on 21 October to assist in the collective in­ was the Governor-General, Sir Paul Sco~n.~~ tervention; the formal request from the OECS On 21 October, a US naval task force bound reached President Reagan on 23 October.62 for Lebanon was diverted to the Caribbean. At The US had been closely monitoring the the same time, contingency planning for inter­ events in Grenada since the arrest of Bishop. vention into Grenada began. At approximately The US had reportedly offered, through the seven p.m. on 23 October, President Reagan Prime Minister of Barbados, to assist in rescuing made a tentative decision to intervene in Gre­ Bishop prior to his execution.53 US diplomatic nada as part of the collective security force.sg personnel attempted to travel to Grenada on 19 On 24 October, US officials continued to receive October, but were turned back because the air­ reports that charter flights were being delayed port was clo~ed.5~After passing a request to the or denied landing rights in Grenada.6oAt six Grenadian authorities through St. George’sUni­ p.m. on 24 October, President Reagan signed versity Medical School, two US consular per­ the formal order for US forces to intervene in sonnel from Barbados were allowed to land by Grenada. At midnight on 24 October, in reply to charter flight on 22 October. On 23 October, one assurances from General Austin of the Revolu­ of the American diplomats met with Major tionary Military Council that US citizens were Cornwall, a member of the Revolutionary Mili­ safe on Grenada, the US sent a message to tary Council, to arrange for the evacuation of General Austin asserting that “there was no US citizens. Cornwalldenied that there was any legitimate government on Grenada and that US need for evacuation and demanded that anyone citizens were in danger.”61 As the US forces p‘\ departing use commercial carriers. However, began their landings, the US government noti­ the regional air carrier, LIAT, was no longer fly­ fied the governments of Cuba and the Soviet ing into Grenada. When asked for the identity Union of the intervention and stated that US of the other members of the Revolutionary forces would offer shelter and security to their Military Council, Cornwall reportedly could not people on Grenada.62 or would not provide any other names.65Two more US counsular officials arrived, including 111. The Legal Basis for US Action the Counsul General from Barbados. One US consular official spoke to American students at A. The Stated Reasons the medical school and reported that they were On 25 October 1983, in a statement delivered scared. Continued unsuccessful discussions jointly with Prime Minister Eugenia Charles of with Cornwallled all four diplomatsto conclude Dominica, the chairperson of the OECS, Pres­ that he was stalling for time and seeking to im­ ident Reagan stated that there were three pede the evacuation of US citizens as much as reasons for the United States intervention: possible.56Intelligence reports indicated that the military on Grenada was divided and that

Tyler, supra note 42, at A15, col. 2. s81d. O’Grenada: October 25 to November 2, supra note 15, at 6. 69m. 62Tyler,supra note 42, at A14, col. 5. 6oId. 63Id. at cols. 2-3 6lId. S4PrelirninaryReport, supra note 1, at 37. BZBombingsin Beirut: Reagan Makes His Case, N.Y. Times, 661d. Oct. 28, 1983, at A9, col. 6. (transcript of address by Presi­ dent on Lebanon and Grenada). DA Pam 27-60-148 8

,- First, and of overriding importance, to This is also a result of the reciprocal nature of. protect innocent lives, including up to existing treaties and charters. The second 1,000 Americans whose personal safety is, (“forestalling further chaos”) and third (“res­ of course, my paramount concern. Second, toration of conditions of law and order and of to forestall further chaos. And, third, to governmental institutions”) reasons stated by assist in the restoration of conditions of the President for US intervention are inextric­ law and order and of governmental insti­ ably tied to the OECS request for assistance. tutions to the island of Grenada. . . .63 Since this was, in large part, the basis for the OECS decision to act and its subsequent request In letters on 25 October to the Speaker of the House and the President Pro Tempore of the US for US assistance, these two reasons wil be com­ Senate, the President listed the reasons for the bined under the analysis of the OECS request. US intervention as the “overriding importance 1. Protection of US Citizens of protecting the lives of the United States citi­ zens in Grenada” and “the call for assistance” The number of US citizens on Grenada, from the OECS.64Another justification for the approximately 1100, was fairly substantial in US intervention, announced a few days later, relation to the total population of Grenada.68 was the request by the Governor-General of This accounted for roughly one percent of the Grenada for assistance.6SThe reason given for entire population of Grenada and represented the delay in citing this basis was the need to in­ the largest single group of foreign nationals on sure the safety of the Governor-Generalbefore Grenada.seThe majority of the US citizens were publicly disclosing his request.66In fact, Scoon students and staff at the two campuses of St. was not rescued until almost a day after the in­ George’s University School of Medicine; how­ tervention began.67 ever, several hundred of them were retirees, tourists, et~.~OAlthough the medical students B. Analysis of the Legal for US Action Basis were centrally located around the two medical P Dur to the nature of the stated bases for inter­ school campuses, it would have been difficult to vention and the manner in which they are inter­ locate quickly the other US citizens on the related, there will be some overlap in analysis. island. Under customary international law, every state is viewed as having the right to intervene 03Statementby the President and by the Prime Minister of into a foreign country to protect the rights of its Dominica Eugenia Charles on U.S. Involvement in Grenada, citizen^.'^ This right is regarded as inherent in released by Office of the Press Secretary, The White House, at 1 (Oct. 25, 1983) [hereinafter cited as Statement by Pres­ the powers of the state and has been recognized ident and Prime Minister of Dominica]. by the United States Supreme Court: “Another e4Letters from President Reagan to the Speaker of the privilege of a citizen of the United States is to House and the President Pro Tempore of the US Senate demand the care and protection of the Federal (Oct. 25, 1983), on file in the International Law Division, government over his life, Liberty, and property The Judge Advocate General’s School, US Army. when on the high seas or within the jurisdic­ Wtatement by the Honorable Kenneth W. Dam, Deputy tion of a foreign government.”72This right to Secretary of State, Before the House Committee on Foreign Affairs, at 8 (Nov. 2, 1983), on file in the International Law Division, The Judge Advocate General’s School, US Army. Tyler, supra note 42, at A14, col. 2. Vd.at 9. 6eStatementby President and Prime Minister of Dominica, 07A Navy SEAL team parachuted into the residence of the supra note 63. Governor-General. They secured the Governor-General, but were quickly pinned down by Cuban-manned armored “Tyler, supra note 42, at A14, col. 2. personnel carriers. It was not until 21 hours later that a task force of 250 Marines with 5 tanks and 13 armored personnel ‘[See 1 L. Oppenheim, International Law 276 (H. Lauter­ pacht 7th ed. 1948). carriers were able to rescue the Governor-General and the seals. The Battlefor Grenada, Newsweek, Nov. 7, 1983, at 72SlaughterHouse Cases, 83 U.S. (16 Wall.) 36, 79 (1873) 73. [emphasis added]. 7 9 DA Pam 27-50-148 protect nationals has been viewed by different that other inherent state rights also exist out­ writers as springing from various sources, in­ side the UN Charter. The requirement of an cluding the inherent right of a sovereign to pro­ “armed attack” under Article 51 of the Charter tect nationals abroad, the inherent right of self­ would seem to limit the ability of a state to pro­ defense, and as a form of forcible self-help to tect its citizens by use of force in a foreign coun­ protect human rights.73 No matter what the try. Several commentators have indicated, source, however, it is clear that the right to pro­ however, that the words “armed attack” were tect one’s own citizens in a foreign country gen­ not intended to limit the traditional right of erally has been recognized under customary self-defense but were used instead to demon­ international law. strate a legitimate use of ~elf-defense.~‘If there ever is to be a right of nations to protect their The United Nations Charter seems to prohibit citizens in foreign countries, a restrictive inter­ the use of force in Article 2(4): “All members pretation of the armed attack requirement of shall refrain in their international relations Article 51 would seem to eliminate it. As the the threat or use of force against the ter­ from right to protect one’s citizens is an inherent ritorial integrity or political independence of right of every sovereign state, the armed attack any state, or in any other manner inconsistent requirement does not apply to a state protecting with the Purposes of the United Nations.”74The the lives of its citizens in a foreign country. purposes of the UN, as stated in the Charter, in­ clude taking “collective measures for the pre­ The UN Charter further requires the parties to vention and removal of threats to the peace, and a dispute to seek a solution by “negotiation, en­ for the suppression of acts of aggression or quiry, mediation, conciliation, arbitration, ju­ other breaches of the peace . . . in coqfbrmity dicial settlement, resort to regional agencies or with the principles of justice and international arrangements, or other peaceful means of their law. . . .‘176 This language would seem, how­ own choice.’~3If these procedures are unsuc­ ever, to preserve those generally recognized cessful, then the matter must be referred to the principles of customary international law, at UN Security Council.7eIt seems unreasonable, least in regard to taking collective action. Arti­ however, in today’s Security Council environ­ cle 61 of the United Nations Charter further ment to expect any resolution to be passed or supports the concept of self-defense: “Nothing action taken in light of the frequent use veto. in the present Charter shall impair the inherent The Iranian hostage situation was a clear exam­ right of individllal or collective self-defense if ple of how slow and ineffective UN procedures an armed attack occurs against a Member of the are for resolving these types of problems when United Nations. . . .“78 competing superpower interests are involved. Using the terminology “inherent right” clear­ The US is a signatory to both the Rio Treatyso ly seems to indicate that this right was not and the Charter of the Organization of Amer­ created by the UN Charter but rather is a recog­ ican States.B1Any military action we take in nition of the previously existing right of self­ defense of sovereign states rooted in customary international law. This supports the concept 77Zd. at art 33. Td.at art. 37. WeeJ. Brierly, The Law of Nations 417-20 (6th ed. 1963);L. Goodrich, E. Hambro, & A. Simons, Charter of the United 7aSee1 L. Oppenheim, supra 71, at 626 n.2; Behuniak, The Nations 344-47 (3d rev. ed. 1969). Seizure and Recovery qf the S.S. Mayaguez: A Legal Analysis qf US. Claim, 83 Mil. L. Rev. 69, 71 (1979); BOInter-American Treaty of Reciprocal Assistance Between Lillich, Intervention to Protect Human Rights, 16 McGill the United States of America and other American L.J.206, 207 (1969). Republics, Sept. 2, 1947, 62 Stat. 1681, T.I.A.S. No. 1838 mereinafter cited as Rio Treaty]. TJ.N. Charter art. 2, para. 4. ElRevised Charter of the Organization of American States, Td.at art. 1, para. 1 [emphasis added]. Apr. 30, 1948, 2 U.S.T. 2394, T.I.A.S.No. 2361 (amended ’l6Id.at art. 61 [emphasis added]. 1967) [hereinafter cited as O.A.S. Charter]. DA Pam 27-60-148 10 this hemisphere must be in consonance with Under either of these standards, it would ap­ these treaties. The Rio Treaty states that its pro­ pear that the situation in Grenada supported visions are not to be construed as impairing the the intervention by the OECS and the United rights and obligations of the contracting parties States. There was a period of turmoil on the under the UN Charter.*Z A similar provision is island which began with the arrest of Prime found in the Charter of the Organization of Minister Bishop. The turmoil increased after the American The clear import of both is execution of Bishop and other cabinet mem­ that if a state has a particular right under the bers. There were reports of executions, random UN Charter, then it retains that right under shootings, and lawlessness. The Deputy Prime these two treaties. Minister had previously resigned and there was no clear indication of who was running the It is clear under existing international law country. Intelligence assessments indicated that a state has the right (and an obligation) to that the People’s Revolutionary Army, the only protect its citizens who are in a foreign country. identifiable organization exercising any control Whether the right is inherent or stems from the in the country, was deeply divided, and there right of self-defense, the result is the same if its were indications that a counter-coup was about citizens are legitimately in peril and the foreign to take place. It was clear that the individuals country will not or cannot help them. One stan­ exerting power were significantly more radical dard that has been advanced for intervention to and revolutionary than Bishop and, therefore, protect a state’s citizens in a foreign country believed to be more unstable. The US officials provides that intervention is legal when a who visited Grenada concluded that the “large scale, clear and present danger threatens military was stalling the evacuation of US citi­ the lives of its nationals in another jurisdiction zens. Their contact, Major Cornwall, reportedly wherein law and order has broken down, the a member of the Revolutionary Military Coun­ government refuses to protect their lives, or the cil, did not seem to know the names of any government is actively participating in the law­ other members of the Council. The US students less behavior which threatens their lives.‘’~3~ at the medical school were reportedly scared. Another standard used for the general concept An unprecedented, Draconian twenty-four­ of self-defense is a modified version of the rule hour shoot-on-sightcurfew was in effect on the in the CurolinP case which requires: entire island. This alone would have caused First, an actual infringement or threat of great concern considering the large number of infringement of the rights of the defend­ US citizens on the island. Also significant were ing state; second, a failure or inability on the concerns of the neighboring countries about the part of the other state to use its own the instability of Grenada. They took the un­ legal powers to stop or prevent the in­ precedented step of voting for military inter­ fringement; and third, acts of self-defense vention and requesting US assistance. The strictly confined to the object of stopping situation was so alarming that the Governor- or preventing the infringement and General of Grenada covertly sent a plea for out­ reasonably proportionate to what is re­ side assistance. quired for achieving this object.80 The requirement under the UN Charter to negotiate or otherwise use peaceful means was satisfied in Grenada by the earlier diplomatic 82RioTreaty art. 10. effort by the US. There is no requirement that a 830.A.S.Charter art. 137. state exhaust every avenue short of inter­ 84TheLaw of Limited International Conflict, A Study by the vention if its citizen’s lives are at stake. The Institute of World Policy, Edmund A. Walsh School of situation in Grenada was clearly deteriorating; Foreign Service, Georgetown University, at 30 (Apr. 1965). law and order had broken down and there was a 861 L. Oppenheim, supra note 71, at 268, I1 Hyde, Inter­ real threat to the lives of the US citizens on national Law 409-414 (1906). Grenada. This threat, when viewed in light of

BBEkhuniak,supra note 73, at 75. America’s recent experience involving the f- 11 DA Pam 27-50-148 (­ treatment of its citizens in the Iranian hostage “appears likely to command support of a ma­ crisis, prompted the President to respond with jority of the members of the House of Repre­ force. sentative~”;~~to appoint the other ministers of the government in accordance with the advice One issue that would seem to cause some of the Prime Minister;g4the authority to “con­ problems under this theory justifying the inter­ stitute offices for Grenada, make appointments vention is whether the US response was neces­ to any such office and terminate any such ap­ sary to protect its citizens. First, it must be pointment~”;~~the power to grant pardons;96 remembered that although the largest segment and the power to summon the Grenadian Parlia­ of US citizens in Grenada was in the vicinity of ment into session and the power to dissolve it.97 the two medical school campuses, there were Among the British Commonwealth of Nations, also hundreds of US citizens on other portions there is legal precedent for a Governor-General of the 133square mile island.87Consideringthe to dissolve a government.Os size of the island88 and the number of US citi­ zens dispersed throughout Grenada, it was not Although Bishop’sgovernment suspended the unreasonable to land forces at several points to 1973 constitution shortly after Gairy’s over­ gain access to the US citizens on the island. The throw, it retained the position of Governor- fact that the US forces stayed beyond the time Genera1,OO One can speculate why a marxist required to evacuate its citizens was due to the government would want to retain ties to the necessity of restoring order and functioning of Commonwealth through the Governor-General: governmental institutions pursuant the re­ it would undoubtedly give the new government quests by the Governor-General and the OECS. legitimacy and respectability among the other 2. Request by the Governor-General Eastern Carribean members of the Common­ wealth and among its own people. In People’s The Governor-General of Grenada, Sir Paul Law Number 18, Bishop proclaimed: Scoon, was nominated for that position in 1978 by Prime Minister Gai~y.~OThe actual appoint­ 1. (1) In the exercise of his functions the ment was made by Queen Elizabeth 11. The Governor-General shall act in accordance Governor-General’s position and powers were with the advice of the Cabinet or of a established under the Grenada Constitution of Minister acting under the general authori­ 1973OO which vested the executive authority of ty of the Cabinet except in cases where he Grenada in the Queen and allowed that authori­ is required by those sections of the Con­ ty to be exercised on her behalf by the stitution brought into force by People’s Governor-General.O’His powers under the con­ Law No. 15 of 1979,a People’s Law or any stitution were considerable and included the other law to act in accordance with the ad­ power to declare a state of emergency in vice of any person or authority other than Grenada;OZto appoint a Prime Minister who the Cabinet or in his own deliberate judg­ ment. .... n7A~~ordingto some reports, there would have been approximately 450 US citizens in areas of Grenada other than the medical school. Tyler, supra note 42, at A14, col. 2. 831d. at ch. IV, 5 68(2). nnThemain island is slightly smaller than twice the size of the District of Columbia. s4fd.5 58(4). Y3urgess, Island Awuits Word From Ex-Teacher, Wash. 861d. 5 69. Post, Oct. 30, 1983, at A15, col. 1. 061d.5 72. OnGrenadaConst. ch. 11, 3 19 (1973, suspended 1979), 871d.at ch. 111, § 52. reprinted in, A. Blaustein & S. Holt, supru note 14. OnBurgess,supu note 89, at A15, col. 3. nlId.at ch. IV 5 57. 88People’sLaw No. 3 of 1979 (Mar. 25, 1979), reprinted in Vd. at ch. I, 5 17. A. Blaustein & S. Holt, supra note 14. f­ DA Pam 27-60-148 12 n

2. The Prime Minister shall keep the Revolution, Bishop orally proclaimed the first Governor-General fully informed con­ ten of the new People’s Laws.104People’s Law cerning the general conduct of the govern­ Number 10provided that all laws “shall become ment of Grenada and shall furnish the effective upon oral declaration and/or publi­ Governor-General with such information cation on Radio Free Grenada by the Prime as he may request with respect to any par­ Minister or in the official Gazette under the ticular matter relating to the government hand of the Prime Minister.”’O5Also, among the of Grenada.loo first ten People’s Laws proclaimed by Bishop was the suspension of the constitution. Ar­ Other functions of the Governor-Generalunder guably, the People’s Laws came into being and the People’s Revolutionary Government in­ existed by the force of Maurice Bishop’s per­ cluded appointing the justices of the Court of sonality and position. Once Bishop was exe­ Appeal and the judges and chief justice of the cuted and the position of Prime Minister was High Court.1o1 vacant, the constitution was automatically re­ It should be noted that Bishop merely sus­ instated to fill the legal and political vacuum pended the 1973 constitution by a People’s Law then existing. rather than abolish it. The Declaration of the Under either the 1973 constitution or the Peo­ Grenada Revolution stated that the “People’s ple’s Laws, however, the Governor-General’s Revolutionary Government pledges to return to position was an important office in the govern­ constitutional rule at an early opportunity.”lo2 ment. It was a position of visibility to both the Notwithstanding the issue of the legitimacy of world at large and to the people of Grenada. Bishop’s assumption of power, the legality of Clearly under the People’s Revolutionary the People’s Laws was questionable absent the Government he did not exercise any policy­ abolition of the 1973 constitution. Article 106 making powers. There was, however, the resid- of the 1973 constitution states: “This Con­ ual power to act in accordance with “his own ­ stitution is the supreme law of Grenada and, deliberate judgment.”’06 subject to the provisions of this Constitution, if any other law is inconsistent with this Consti­ In his letter to the Prime Minister of Barbados tution, this Constitution shall prevail and the on 24 October 1983, the Governor-Generalcon­ other law shall, to the extent of the incon­ firmed his earlier message for assistance: sistency, be void.”lo3 Following this line of You are aware that there is a vacuum of reasoning, legally the Governor-General retain­ authority in Grenada following the killing ed all those powers granted to him under the of the Prime Minister and the subsequent 1973 constitution even after its suspension. serious violations of human rights and Another aspect concerning the authority of bloodshed. I am, therefore, seriously con­ the Governor-Generalwas the manner in which cerned over the lack of internal security in the laws of Grenada were promulgated fol­ Grenada. Consequently I am requesting lowing Bishop’s assumption of power and sus­ your help to assist me in stabilising [sic] pension of the constitution. Maurice Bishop, as this grave and dangerous situation. It is my Prime Minister and the charismatic leader of desire that a peace-keeping force should the revolution, was the source of all laws in be established in Grenada to facilitate a Grenada. In the Declaration of the Grenada rapid return to peace and tranquility and

ll’nld.at People’s Law No. 18 (Apr. 2, 1979). lo4Declarationof the Grenada Revolution (March 25, 1979), lI1lfd.at People’s Law No. 14 (Mar. 29, 1979). reprinted in A. Blaustein & S. Holt, supra note 14. 1n2Declarationof the Grenada Revolution, March 28, 1979, Io5People’sLaw No. 10 of 1979 (March 25, 1979), reprinted reprinted in A. Blaustein & S. Holt, supra note 14. in A. Blaustein & S. Holt, supra note 14. ‘Wkenada Const. ch. IX, 5 106 (1973, suspended 1979), loePeople’sLaw No. 18 of 1979 (Apr. 2, 1979), reprinted in reprinted in A. Blaustein & S. Holt, supra note 14. A. Blaustein & Holt, supra note 14. /- 13 DA 27-60-148

also a return to democratic rule. In this approved by the Organization of American connection I am seeking assistance from States, it appears that the Grenadian interven­ the United States, from Jamaica, and from tion, requested by the Governor-General, is the Organization of Eastern Caribbean even morejustified. The Governor-General was States through its current chairman, the not one of the rival factions.vying for power as Hon. Eugenia Charles, in the spirit of the existed in the Dominican Republic situation.”O treaty establishing that organization to The Governor-General was acting in his capaci­

which my country is a signatory.Io7 ty as the only existing-~representative of the government. He had served in that capacity In an interview on British television on 31 Oc­ under both a parliamentary government (Gairy) tober 1983, the Governor-General stated that and a Marxist government (Bishop). His request he had been requested by “responsible people was a legal response in what he believed to be in Grenada” to do something about the situa­ the best interests of Grenada. According to a tion.’08 spokesperson of the British Crown. the In summary, it is clear that the Governor- Governor-Generalhas a “constitutional right to General possessed a position and power in the form a new government.”ll’ The Governor- government under both the 1973 constitution General used the only means available to ac­ and the People’s Revolutionary Government. complish this: a request to the member states of . The situation in Grenada, outlined above, a treaty organization to which Grenada be­ showed a definite breakdown in authority and longed and who shared a common culture and an anarchic situation which showed little indi­ heritage with Grenada. There is a well­ cation of improving. This was also evident in established basis in international law for re­ the Governor-General’srequest for assistance. quests by a lawful authority to another There were, according to the Governor- sovereign for military assitance to establish in­ General, requests from responsible persons on ternal order.1*2 the island for him to act pursuant to his position 3. Request From the OECS to stabilize the situation. Clearly he did not have the capability to correct or stabilize the As indicated in the background section, the situation without outside help. The army was OECS formally requested United States assis­ divided and fighting for power. There was a tance. The reason given for this request was the large number of Cubans and Communist Bloc “relative lack of military resources in the pos­ personnel1ogon the island who presumably had session of the other OECS countries” in com­ more than a passing interest in the outcome of parison to the “level of sophistication and size” the turmoil. of the Grenadian armed f0rces.~l3The OECS governments’ stated intention was to remove In comparing this intervention to the Domin­ the threat in Grenada and to “invite the ican Republic intervention in 1965, which was Governor-Generalof Grenada to assume execu­ tive authority of the country under provisions 107Letterfrom the Governor-General of Grenada to the of the Grenada Constitution of 1973 and to ap­ Prime Minister of Barbados, dated Oct. 24, 1983, on file in point a broad-based interim government to ad­ the International Law Division, The Judge Advocate minister the country pending the holding of General’s School, US Army. general elections. The statement about in­ ‘Ynterview of the Governor-General of Grenada, Sir Paul 4 Scoon, on Oct. 31, 1983, reprinkd in Department of State ll‘Se~O’Brien, 68: U.S. Militmy In&wention: Lair1 and Message, 0112452 Nov. 1983, on file in the International Morality, VI1 The Washington Papers 45-49 (1979). Law Division, The Judge Advocate General’s School, US Ar­ IIIBurgess, supra note 89, at A15, col. 3. my. 1i2S~a1 L. Oppenheim, supra note 71, at 273. lomere were over 900 Cuban and Communist Bloc per­ lI3Statement by Prime Minister Charles, Chairman of OECS, sonnel in Grenada. Of this number, many were military per­ at 3 (undated), on file in the International Law Division, sonnel or intelligence operators. The Connection, Cuba72 The Judge Advocate General’s School, US Army. Newsweek, Nov. 7, 1983, at 77; Preliminary Report, supra note 1, at 1. 1141d.at 4. DA Pam 27-50-148 14

7 viting the Governor-General to assume execu­ ternational Court of Justice, in an advisory tive authority of the country was technically opinion in 1962, found that a UN emergency unnecessary because he already possessed it peace keeping force which had not been under both the 1973 constitution and the Peo­ authorized by the Security Council was not an ple’s Laws. It most surely was included so there “enforcement action” since it involved a would be no misunderstanding as to what the military force with the mission of establishing intervenors’ role in the country would be. peaceful conditions and maintaining se~urity.”~Therefore, under either a theory of The basis for the OECS decision to intervene self-defense or a theory of humanitarian inter­ was Article 8 of the treaty which established vention to establish order, the OECS action was the OECS:l16 legal under the UN Charter. An issue raised in The Defense and Security Committee shall the news medialz0was the fact that the OECS have responsibility for coordinating the ef­ treaty had not been registered with the United forts of Member States for collective Nations as required by Article 102 of the defence and the preservation of peace and Charter.121It was reported, however, that a security against external aggression and copy of the treaty had been submitted in Oc­ for the development of close ties among tober 1982 to the UN for registration but that a the Member States of the Organization in UN request for certain information had delayed matters of external defence and security, the registration.122An official of the UN Secre­ including measures to combat the ac­ tariat stated there had “apparently been a mere tivities of mercenaries, operating with or administrative delay in good faith” on the part without the support of internal or national of the submitting party.lZ3 This clearly does not elements, in the exercise of the inherent invalidate the legality of the treaty. right of individual or collective self­ That the nations of the OECS felt threatened defence recognized by, Article 51 of the by the situation in Grenada cannot reasonably P Charter of the United Nations.11e be questioned. The recent events had con­ As pointed out above in Article 8 and as dis­ firmed their worst fears. They had observed cussed earlier in this article, Article 51 of the their island neighbor rapidly being transformed UN Charter allows for the inherent right of self­ into an armed marxist camp. They had evidence defense. Article 52 of the UN Charter that Grenada was being used as a transit point authorizes the existence and use of regional from which Eastern Caribbean revolutionaries security arrangements for dealing with matters were being sent to terrorist training camps. relating to “maintenance of international peace There were statements by the leadership in and security as are appropriate for regional ac­ Grenada that the new airfield was to be used for ti~n.”~”The inherent right of self-defense Soviet and Cuban military purposes. The under Article 51 is independent of and unim­ moderate element of the NJM had been elimi­ paired by any other article of the UN Charter. nated, and there was a power struggle between Article 53 of the UN Charter, however, restricts at least two elements in the military. Law and enforcement actions under regional security ar­ order in Grenada appeared to have totally rangements to those authorized by the Security broken down. The twenty-four-hour shoot-on­ Council.118 Critical in this limitation is the sight curfew was shocking in its severity. In definition of an “enforcement action.” The In­ light of these facts and the request from the Governor-General, the OECS deemed it neces- lLSTreatyEstablishing the Organization of Eastern Carib­ LIBCertainExpenses of the United Nations, 1962 I.C.J. 151. bean States, June 19, 1981, art. 8, reprinted in XX I.L.M. I2%ylor, Legal Issues Raised About Caribbean Treaty, 1166 (1981). N.Y. times, Nov. 2, 1983, at A17, col. 1. ILeId. W.J.N. Charter art. 102, para. 1. IL7U.N.Charter art. 52, para. 1. Iz2Taylor,supra note 118, at A17, col. 2-3. IlaId. at art 53, para. 1. 1231d. ,- 15 DA Pam 27-50-148

P sary to intervene under the treaty to preserve ther heightened the United States’ interest and the security of the Eastern Caribbean region. concern. The decision to intervene was based on three legal justifications: (1) protection of The OECS vote to intervene was unanimous, United States citizens; (2) the request for excluding Grenada which was not present. assistance by the Grenadian Governor-General; Although the treaty requires unanimous agree­ and (3) the request from the OECS for as­ ment,124it is not reasonable to require agree­ sistance in a combined peace-keeping opera­ ment of the party subject to the intervention. tion. Each of these bases is supportable under Additionally, a convincing argument can be existing international law. When considered as made that the request by the Governor- a whole, the reasons asserted by the United General, the only remaining legitimate person States provided a strong legal justification for in the government with the legal right to speak the intervention. for the government, was tantamount to a vote for intervention by Grenada. V. Epilogue The United States’ acceptance of the request On 15 December 1983, all US combat forces was based on its desire to protect its own citi­ were withdrawn from Grenada. At the request zens in Grenada and to assist the OECS which of the Governor-General, a contingent of about did not have the capability to execute the 250 United States troops and 450 Caribbean operation. Assuming that the OECS decision peace-keeping personnel remained to perform was legal under international law, the US as­ police functions and to help train the Grenadian sistance, despite the fact that it was not a party police force. to the treaty, must logically also be legal. The US had more than a passing interest in the suc­ Elections were held on 3 December 1984 and cess of the OECS intervention since roughly one Herbert Blaize’s moderate New National Party percent of the population of Grenada was US won a landslide victory over remnants of the citizens. This, coupled with the US historic in­ marxist New Jewel Movement, renamed the terest in the welfare of its hemispheric neigh­ Maurice Bishop Patriotic Movement, and Eric bors, provided sufficientjustification for the US Gairy’s right-of-center Grenada United Labor to assist the OECS. Party. These were the first elections in Grenada in more than eight years. The elections were IV. Conclusion monitored by observers from the Organization The combined United States and Caribbean of American States and the British High Com­ peace-keeping operation into Grenada caused a mission for the Eastern Caribbean. flurry of criticism and controversy. Much of the Prime Minister Blaize immediately requested criticism came from some quarters of the that President Reagan continue the presence of academic community, which was quick to find United States military personnel on Grenada for illegality in virtually every aspect of the in­ an indefinite time to complete training the tervention. In contrast to this criticism was Grenadian Security Forces and to assist in overwhelming popular support of the action in police and security functions until the Gre­ the United States, Grenada, and the Caribbean nadians were fully capable of taking over. In area. February, the Department of Defense an­ As discussed above, the United States’ deci­ nounced that redeployment of the remaining sion to intervene was the result of a culmi­ American military personnel would begin in nation of events in Grenada that caused con­ mid-April 1985, and all personnel were ex­ pected to be withdrawn by September 1985. cern both for Grenada’s neighbors and the United States. The presence of a substantial The legaljustifications will be evaluated final­ number of American citizens on the island fur­ ly by legal scholars and historians in the years to come, in part, based on the actions taken by the lz4Treaty Establishing the Organization of Eastern Carib­ United States in Grenada following the inter­ bean States, art. 6, supra note 114. vention of 25 October 1983. I­ DA Pam 27-60-148 16

Preventive Law and Automated Data Processing Acquisitions Wayne J. VanKauwenbergh, Esq. Attorney Advisor, US Amy Aviation Systems Command, St. Louis, MO

I. Introduction during routine preventive maintenance. An ADP system may be substantially altered in the This article identifies some legal problems course of installing OEM engineering changes. peculiar to general purpose Automated Data Processing (ADP) acquisitions. Problems with Also, in the normal course of operations, parts regulatory compliance, i.e., the Brooks Act, wear out and must be replaced. If non-OEM ap­ GSA, DOD and Army regulations, will not be proved (nonstandard) parts are used, machine discussed here because these problems were or system-wide deterioration may occur fully examined by Captain Mark W.Reardon in because a non-OEM part may fail to perform or his article* on ADP in the August 1984 issue of cause other parts to fail (for example, a non­ The Army Lawyer. Instead, this article dis­ standard part continues to perform but causes a cusses the problems of creating a legally en­ current overload to reach five other parts, forceable statement of work, especially for causing them to fail while the nonstandard part maintenance work, and methods for preventing chugs along). Additionally, a non-OEM part may ADP-related legal problems. cause diagnostic software used to locate prob­ 11. ADP Systems lems in an ADP system to become unreliable. Problems in a troubled system or piece of hard­ An “ADP system” is not easily defined. It in­ ware are located by comparing how the diag­ - cludes different items of hardware, e.g., central nostic software performs on the system or hard­ processing units, disk drives, tape drives, con­ ware being scrutinized to how the diagnostic trollers, cathode ray tube terminals, and software should perform on an ideal system or loaders, as well as nonhardware items such as machine. The diagnostic routines are reliable software. When integrated, these individual only if run through hardware substantially com­ elements create an “ADP system.” An “ADP posed of OEM parts, includingreasonably up-to­ system’’ is not only a product of the manufac­ date engineering changes. turer of its constituent elements; it is also the product of those who eventually modify it and If there are nonstandard parts in the hard­ maintain it. ware, or if the necessary OEM engineering changes have not been made, it cannot bede­ The system continues to evolve after the ADP termined whether anomalous diagnostic results equipment is installed and operational. First, are the product of standard parts not func­ the Original Equipment Manufacturer (OEM) of tioning or functioning nonstandard parts. each item of hardware issues engineering Where a sufficient number of nonstandard changes, e.g., newly designed components to e parts have been used, diagnostic software replace or improve parts or panels already in becomes unreliable. Because diagnostic soft­ the hardware. These changes are publicized and * *re is the principal method of locating main­ become part of the standard to which an OEM * dmance problems, once diagnostic software will maintain the hardware. Engineering loses reliability, government oversight of con­ changes are often issued years after a particular tractor maintenance becomes extremely dif­ piece of hardware is initially marketed. These ficult. Also, without reliable diagnostic soft­ new engineering changes are usually installed ware, system problems are free to multiply until a major breakdown occurs. Diagnostic software ‘Reardon, Automated Data A-ocessing Equipment Acqui­ is usually designed by the OEM and updated to sitiun, The Army Lawyer, Aug. 1084, at 10. accommodate engineering changes. There is no IF c 17 DA Pam 27-60-148

easy way to quantify its effectiveness, but it is installation data processing personnel must essential in maintaining ADP system reliability. functionally describe things they are not expert in, and because many of the terms they use are In addition, failing to make required OEM not well-defined even in the industry, the engineering changes and failing to use standard lawyer reviewing the acquisition must take OEM parts may restrict competition for future special care that the contract is sufficiently maintenance contracts because many reputable definite in setting forth the obligations of each OEM and non-OEM vendors of maintenance services will not accept responsibility for a party. “bastardized” system, i.e., not repaired with A good example of the ambiguities inherent in standard OEM parts and OEM engineering ADP is the concept of the Original Equipment changes not made. These vendors will not com­ Manufacturer. A machine manufactured by the mit to long-term maintenance of a machine X Corporation will have the X Corporation as its which may break down due to causes they can­ OEM, right? Not necessarily. To understand not reasonably identify or cure. In this cir­ why, the market structure must be explored. cumstance, the OEM must usually be brought in To reach more hardware customers, some to overhaul the system or, in extreme cases, to OEMs use different marketing devices. To ex­ rebuild hardware. The hardware may have to plain these devices, I have divided these be written off as a complete loss if rebuilding or general scenarios into “High” and “Low” ADP overhauling is not economically justified. equipment; “High” indicating high confidence Finally, your confidence in a non-OEM vend­ in system reliability, “Low” indicating low con­ or of OEM-level maintenance can only be as fidence in system reliability. Not all situations high as your confidence in the OEM itself. It is or vendors fit neatly into this scheme, but, after arguable, for example, that no equipment of a examining it, it is easier to understand the legal financially nonresponsible OEM should be pur­ problems caused by the ADP market structure. p“ chased even through what appears to be a High ADP Equipment financially responsible third party vendor. If the OEM cannot support the vendor with parts 1. OEMfurnished new, state-of-the-artequip­ and engineering changes, the vendor cannot ment with OEM maintenance. This is the ulti­ support your system. mate ADP contract. Obtaining the equipment directly from the OEM means that the hardware Well-supported hardware frequently has a will probably receive engineering changes more useful life of more than ten years, yet some quickly than others using the same brand hard­ Department of Defense systems have deteri­ ware. Maintenance will sometimes be better orated irreparably less than two years after ac­ because contractor personnel will have special­ quisition. Describing a standard of maintenance ized training in the particular product and they in the contract that is legally and practically en­ will be backed by other contractor personnel forceable is one action necessary to prevent this who actually created the software and hard­ premature deterioration. ware. Also, state-of-the-art, premium services III. The ADP Market will be available from the OEM before other vendors create or obtain functional equiva­ The computer is advancing faster lents-for instance, remote diagnosis of than its ability to define itself. New services machine problems by an OEM team at a central­ and are constantLy being marketed’ To ized, national center(over phone lines) is cur­ solicit competitively, our solicitations must con­ rently available from most OEMs but is not per­ tain specifications sufficiently well-defined to formed by many non-OEM vendors. be used in evaluating competing offers. This puts an enormous load on the installation data 2. OEM-authmized third party vendorfurn­ processing personnel who write the specifica­ ishing new, state-of-the-art OEM equipment tions, for they are operators, not manufacturers with OEM-supported maintenance. An OEM­ or maintainers, of ADP equipment. Because our authorized vendor is an independent vendor DA Pam 27-60-148 18 who sells OEM equipment and maintains it with Sometimes, by the terms of the contract be­ OEM-furnished parts and maintenance. How­ tween the original OEM and the third party ven­ ever, these personnel may not have the special­ dor, the third party vendor becomes the OEM of ized training the OEM has, and there may be a the value added machine. Therefore, if a con­ longer wait to obtain OEM engineering changes tract defines maintenance obligations in terms and OEM parts. For certain services, Le., of an “OEM,” but does not designate a par­ remote support, the third party vendor may ticular OEM, an ambiguity may be created. In­ have no equivalent service or may have to sub­ stead of binding the contractor to the standards contract the service to the OEM. Yet, some of the “true” OEM, the third party added-value OEMs market their hardware mostly through vendor may claim that it is the OEM. Because a OEM-authorized vendors. third party added-value vendor may not have any practical technical expertise or ability to 3. OEM equipment maintained by third par­ design ADP equipment, the quality of vendor ty vendor with OEM support. Here, hardware support after system installation may be already owned by the government is main­ dubious. Also, the added-value system may be tained by a vendor who sells only maintenance degraded even before it is installed if hardware services, not hardware. Frequently, this vendor alterations impair compatibility with software takes over hardware that is no longer state-of­ (including diagnostics). By failing to specify a the-art or which other vendors have degraded. competent OEM as the standard for mainte­ In each of the above situations, satisfactory nance, the requirement for OEM engineering performance is usually achieved, although changes and standardized parts in performing there are major exceptions. For instance, one maintenance may be unknowingly waived by OEM-authorized vendor at Aviation Systems the government. Command fell substantially behind in contract­ These problems have, in fact, occurred with required engineering changes. The vendor was /? added-value vendors. For example, what was forced to repair the hardware. Even OEMs may thought to be “name-brand” CPUs purchased neglect engineering changes unless the through an added-value vendor for several customer is careful. Caveat emptor is the rule in Army commands was actually incompatible this industry. with software developed for that name-brand CPU. The government had to contract with the Low ADP Equipment “true” OEM just to make the system work in 1. Third party added-value vendor/system the short term. After about two Years, the integrator (putative OEM). This is a marketing altered hardware had to be replaced at govern­ device used by several OEMs. OEMs customarily ment expense with “true” OEM hardware. furnish hardware, software, engineering 2. Used machine vendorhendor of obsoles­ changes, and maintenance as part of a total cent hardware. There are significant amounts package. When using a “third party added­ of used and new, obsolete ADP equipment on value vendor,” the OEM sells its hardware to an the market. Some is trade-in equipment, and independent vendor on the condition that the some is inventory sold by the OEM to avoid get­ independent vendor must significantly alter the ting caught by the next technological advance. hardware (the “added value”) and/or not repre­ It is not unusual for hardware to be offered as sent it as a product of the The OEM sells OEM. “new” even though it has not been in manu­ the hardware to the added-value vendor at a facture for several years. Statements of work high discount high as 40%) because the (as and evaluation factors must guard against the OEM’s long term engineering support and war­ danger of inferior hardware and hidden costs of ranty obligations cease. The third party vendor, used or new, obsolete ADP equipment. Among selling to the ultimate user, makes money by the facts to be considered are: undercutting competing OEMs and OEM ven­ dors by reducing costs for hardware, engineer­ a. Newer hardware frequently uses less ing changes, parts, and maintenance. I than one-half the total direct and indirect - 19 DA 27-60-148

Pi power (e.g., cooling) used by hardware formance of all OEM diagnostic software. Also, available five years ago and requires fewer vague, unenforceable terms should be avoided maintenance hours over an equal system or clarified. For example, “OEM part or part of life. equal quality.” There is usually no practical b. Costs of power per kilowatt hour and way to ascertain whether non-OEM parts are of per hour maintenance have escalated over equal quality with OEM parts unless the OEM the past several years. has tested and approved them. Once non-OEM c. New hardware acquisitions cost for parts are in the hardware, the diagnostic soft­ comparable capabilities are actually lower ware may not function properly, making it im­ in adjusted dollars than five years ago. possible to determine whether system problems are resulting from nonstandard parts. Only OEM If used or dated hardware is favorably or OEM-approved parts (Ce., parts OEM tested evaluated for acquisition, there is good reason and accounted for in standard diagnostic to suspect either an evaluation mistake, omis­ routines) should be used. Otherwise, mainte­ sion of a relevant evaluation factor or technical nance vendors may use whatever nonstandard requirement, or a misapplication by the tech­ parts will allow the hardware to run for the mo­ nical specification writer of the concept of ment, disregarding long term deterioration. system life. A system life evaluation that is too This innocuous phrase could sink a system. short, for example, will result in undereval­ uating cheaper maintenance and coding costs Another example is “good operating condi­ and lower power usage. The projected length of tion.” What is good operating condition? When the system life, the factors used in the eval­ does bad operating condition commence? This uation, and the technical specification should frequently used standard is, by itself, useless. be reviewed for accuracy and completeness. As always, the best time to catch these problems is Another ambiguous term is “effectiveness in the presolicitation review. 1eveVavailabilitylevel.” This is a common way of measuring performance but which, by itself, IV. What To Check in the Legal Iteview is perfectly meaningless. Basically, it is a frac­ tion showing how long the machine is actually Maintenance obligations in a statement of operational over how long the government de­ work should usually be defined in terms of the sires it to be usable. Generally, if the machine is “true” OEM. Engineering changes required by available for less than ninety or ninety-five per­ the OEM should be required to be regularly in­ stalled and only OEM-approved replacement cent of the time the government desires it, a parts should be used during maintenance. percentage of the monthly maintenance charge Where used equipment is being considered, an is deducted as liquidated damages. This sounds OEM inspection and certificate of maintain­ nice, but in reality the damages provision is ability should be required, at the vendor’s ex­ almost never used because the formula only pense, before hardware is accepted. In addi­ measures the amount of time the machine is ac­ tion, OEM-conducted inspections should be tually not in use due to maintenance problems. written into all ADP equipment contracts as a The amount of time hardware is “down,” ie., prerogative of the contracting officer at govern­ not operational, has almost nothing to do with ment cost or, for systems, a regular part how well it is functioning. In some instances, vital as hardware or a system can go “down” for two + of a vendor’s maintenance routine with the results turned over to the government. It is minutes (e.g., a 99.8% effectiveness level) and notable that Federal Acquisition Regu­ in that two minutes electronically lose several DOD days work. Also, data processing activities lation Supplement 70.200 lists unwillingness or a operate in real time (not on reasonable time as inability of an OEM to support a system as an in­ lawyers do). Even when hardware is perform­ dicator of obsolescence when defining “Obso­ ing at only fifty percent of capacity, it is not lescence Review.” taken off-line. Tomorrow’s work must still be P A contract should require proper per­ done; the data processing activity frequently DA Pam 27-60-148 20 r cannot take partially disabled hardware off­ preventive law at its best. line. Hardware operating 100%of the time at Preventive law should include getting in­ only 50%of normal capacity is still a 100%effi­ volved in the acquisition process early, when cient machine under the formula and no liqui­ the requirement is being defined. One lawyer at dated damages are assessed. Effectiveness level the Aviation Systems Command recently no­ clauses are seldom invoked and are meaningless ticed, for example, that in a statement of work without additional terms, e.g., OEM standards. several different brand name 8-megabyte Cen­ Another concern in the legal review is tral Processing Units were cost evaluated whether the specification writers are using against each other even though one (with com­ brand name descriptions of desired features parable costs over the system life) had, com­ without providing a functional specification. pared to the others, fewer channels for user ac­ This can result in a vague statement of work, or cess, half the expandability of memory core, regulatory problems because the specifications was only capable of processing data at approx­ may be more restrictive than permitted when imately one-third of the speed of the others, brand name descriptions are used. and used substantially more power. By calling this incongruity to the contracting officer’s at­ Are there terms in the solicitation that need tention (the inefficient CPU was eliminated to be defined? To solve the OEM ambiguity de­ from consideration by firming up the specifi­ scribed above, for example, Irecommend that cation), that lawyer probably prevented a “OEM” be defined in solicitations as: follow-on procurement to obtain the lost That manufacturer under whose control a capability, and by steering technical personnel piece of equipment initially becomes to consider expandability possibly prevented identifiable with its final designed func­ future replacement of the CPU to expand the tion (for example, under whose control a overall system. Also, getting involved early in group of parts becomes a Central Process­ the procurement process allows the attorney to ing Unit). Mere modification, alteration, or check Agency Procurement Requests for com­ integration into a larger system shall not, pliance with the appropriate regulations before for the purpose of this solicitation and the they are approved by higher authority and become binding. resulting contract, alter the identity of the Original Equipment Manufacturer. Preventive law can also help avoid acquisi­ Ialso suggest a particular firm be named as the tion strategies that lead to legal problems. Some OEM standard in the contract award. Army activities, for example, have built auto­ mated systems by ordering hardware compon­ ents and maintenance from different require­ V. Beyond Legal Review to Preventive hw ment-type contracts (including some with While ADP approvals and delegations are cen­ added-value vendors) and integrating them. tralized, ADP procurement is not; systems with This kind of split acquisition strategy can build Army-wide implications are purchased through an automated Tower of Babel: different OEMs, non-specialized local support procurement of­ added-value vendors, third party maintenance fices. Nonspecialized legal and technical sup­ vendors, and standards of maintenance shoe­ port is also common. To minimize these dis­ horned into the same ADP system can lead to advantages when dealing in a predatory ADP chaos. An ADP system with faults that cannot market, teamwork is essential. Government be traced to a particular vendor means the in­ technical, procurement, and legal personnel volved contracts are, as a practical matter, should constantly discuss methods for im­ unenforceable. For each system being acquired, proving ADP procurement. Lawyers should act there should ideally be one maintenance vendor as catalysts for this effort. Preventive law in and a clear maintenance standard. A lawyer ADP procurement is a lawyer contributing to a should consider future legal implicationsof pro­ sound acquisition strategy that will lead to long­ posed acquisition strategies and actively lasting, well-functioning ADP systems. This is counsel procurement and technical personnel. ,- 21 r‘ VI. Conclusion tenance services renders these organization and General purpose ADP equipment is revolu­ training efforts ineffective. The maze of regula­ tionizing management and logistics the same tions involved in ADP equipment procurement way special purpose ADP equipment like should not shorten our sights. A procurement is missile guidance systems is revolutionizing com­ not successful merely because it complies with bat strategy and tactics. Like the new auto­ all laws and regulations. A procurement is suc­ mated weapons, our new, general purpose com­ cessful when the organization’s mission is ac­ puters change the way the Department of the complished. Attorneys can play an important Army organizes and trains its personnel. Pro­ role as a part of the total team to improve ADP curing obsolete hardware or substandard main­ systern effectiveness .

The Advocacy Section TRIAL COUNSEL

Mal Counsel Assistance hogmrn, USALSA Table of Contents Trial Counsel’s Guide to Multiplicity 21 Navy Court Fires Torpedo at the Court of Military Appeals 37 Reader’s Note 40

Trial Counsel’s Guide to Multiplicity Captain Timothy Rmzer, TCAP

I. Introduction Indeed, there are too many multiplicity rules. In his final dissenting opinion in a multiplicity Different rules apply depending on whether case, Judge William H. Cook of the US Court of one is testing for multiplicity or charging, find­ Military Appeals accurately depicted the ings, or sentencing and the Court of Military frustration of Army trial counsel faced with the Appeals at times appears to fail to follow its current confusion surrounding the issue of own multiplicity rules, or, at least, seems to ap­ multiplicity of charges. He wrote, “How trial ply them inconsistently. Due to this confusion, practitioners can be expected to proceed in im­ TCAP regularly receives questions from trial plementingthe myriad, fickle rules propounded counsel on whether to charge certain offenses, by this Court, in light of my Brothers’ failure to whether to consolidate and charge hybrid of­ follow even their own dictates, is beyond me.”’ fenses, whether to charge the offenses in course of conduct specifications, or whether ‘United States v. Zupancic, 18 M.J. 378 (C.M;A. 1984). two or more offenses are multiplicious for ~

DA Pam 27-60-148 22

/-5 sentencing. Unfortunately, not only is there no Blockburger v. United States.4 In Blockburger, single bright-line rule on multiplicity, there also the accused was charged separately with three is no single approach that will resolve all multi­ sales of morphine without complying with the plicity questions. As a result, the government’s federal statute. One of the accused’s sales interest in obtaining a just punishment and in violated two separate statutes and resulted in having an accused’s conviction accurately two separate charges. One of the statutes pro­ reflect all of his misconduct is no longer being hibited the sale of morphine that was not in or fully protected. For instance, many charges from the original stamped package, and the that previously would have been allowed to other statute prohibited the sale of the drug stand are now routinely dismissed on appeal, without a written order from the purchaser. even in the absence of a defense objection at Because two separate statutes were violated trial.2 Additionally, confused trial counsel, in­ and each required proof of a separate element timidated by all the multiplicity rules, are fail­ not required by the other, the Court held the ac­ ing to charge the necessary offenses which are cused could be punished separately for each required to protect the government against exi­ charge. This holding became known as the gencies of proof which may arise at trial. Even “elements” test. worse for trial counsel, the confusion surround­ Moreover, the Court held that each successive ing multiplicity will probably not go away, even sale was separately punishable even though in light of the new Manual for C~urts-Martial.~ made to the same buyer within a short period of To help trial counsel understand multiplicity, time. This application of Blockburger to charg­ this article will briefly trace the historic ing successive acts is still good law in the development of the multiplicity rules. It will military. For example, in United States v. then present some of the dilemmas and incon­ Dav.iss,5 the robbery of the victim’s car and the sistencies created by these rules and will offer subsequent robbery of the same victim’smoney ­ some practical approaches and solutions to trial were not multipliciouswhen the intent for each counsel as a means of protecting the govern­ was formed at different times. In military and ment’s interests. Finally, a topical outline of re­ civilian courts, however, each act would not be cent multiplicity cases will be provided in the separately punishable if a statute was intended Appendix to this article with the hope that it to punish a course of conduct (such as the crime will be the best solution to the multiplicity of wrongful cohabitation).6 problem. Instead of worrying about which multiplicity rule to apply, trial counsel will be able to find a case factually similar to his or her 4284 U.S. 299 (1932). own, and charge accordingly. 518M.d. 79 (C.M.A. 1984). Sw abo United States v. Nugent, 11. Historical Background 16 M.J. 419 (C.M.A. 1983) (summary disposition) (90 speci­ fications of wrongful possession, use, transfer, sale, and in­ The military law on multiplicity stems from troduction of drugs were not rnultiplicious where each the Court of Military Appeals’ interpretation of represented a separate incident); United States v. Ennis, 15 M.J. 970 (A.C.M.R. 1983) (41 specifications of willful damage to private property by puncturing tires in one drunken spree were not multiplicious for sentencing); Wnited States v. Bolling, 16 M.J. 901 (A.C.M.R. 1983) (Fore­ United States v. Ziegler, 14 M.J. 860 (A.C.M.R. 1982) man, I., concurring); United States v. Tyler, 14 M.d. 811 (where first rape completely terminated prior to stact of (A.C.M.R. 1982); United States v. Huggins, 12 M.J. 657 second rape, each was separately punishable). cfi United . (A.C.M.R. 1981), rm’d,17 M.J. 345(C.M.A. 1984)(summary States v. Morris, 18M.J.450 (C.M.A. 1984) (assault on same disposition). Cf. United States v. Broce, 36 Grim. L. Rep. victim broken down into separate blows was multiplicious). (RNA) 2308 (10th Cir., .Jan. 9, 1985) (guilty plea did not hSwBraverman v. United States, 317 U.S. 49 (1942)(the ac­ waive right to be free from double jeopardy violation re­ # cused could not be separately convicted and punished for sulting from two conspiracy convictions and punishments each act in furtherance of the conspiracy where the statute at a single trial. proscribed the conspiracy and not the separate acts). This ’Srv. p!nrrrill,z~Ott, Militnrrj StiprrJmrCoutt Pmcticp, The in no way implies that Congress could not have chosen to Army Lawyer, .Jan. 1985, at 63. separately punish each act within the conspiracy. P 23 DA Pam 27-60-148

The Blockburger “elements” test was incor­ United States v. Weaver;17the “integrated oc­ porated in paragraphs 74b(4) and 76a(8) of the currences” test of United States v. Pap;18 and 1951Manual for C~urts-Martial.~Paragraph 266 the test announced in Bumtey itself: the “com­ of the 1961 Manual also added a “rule of bination of like object and insistent-flow-of­ reason’’ forbidding the unreasonable multipli­ events” test. This test was updated in United cation of charges. After 1951, in United States States v. Harrison10to include the “unity-of­ v. Soukup8 the Court of Military Appeals inter­ time and connected-chain-of-events”test of preted the Blockburger “elements” test to United States v. Ir~ing.2~The tests devised by mean that if the statutes prescribed different the court progressively changed from a concern duties, then separate punishments were for whether the offenses were “separate” or authorized. Subsequently, the Court said in merely z “single transaction.”Z’ to whether United States v. Redmi& that even assuming these dwferent offenses should be “treated as a the offenses contained separate elements, the single offense” for punishment.zz Paragraph offenses were not separate if the law imposed 76a(5)of the 1969Manualz3codified the various the same duty (and required the same proof). As tests created by the Court of Military Appeals a result, focusing on the different elements of when interpreting Blockburger and prohibited the statutes charged became less significant,”J multiple punishment for what is in fact one act except where the legislative intent to permit or transaction. As a result, drug offenses occur­ punishment of the same act in more than one ring at the same time and place are now multi­ way was clear.” plicious and subject to only one punishment, whereas under the Blockburger “elements” The focus changed to the facts in evidence and on the duties imposed by statute. The Court test, separate punishments would have been auth0rized.2~ of Military Appeals created various tests to determine if the offenses were within a single The Supreme Court in United States v. Al­ r“‘ “transaction,” and accordingly not separate of­ b ~ , made? ~it clear that the Court of fenses and not separately punishable. Conse­ Military Appeals misinterpreted Blockburger quently, as noted in United States v. Bumy, when developing its various tests for multi­ “no one test is safe and accurate in all circum­ plicity. In Albemuz, the accused was charged stances.”12In Burney, the Court identified the separately with conspiracy to import marijuana “separate duties” test of Soukup;13the Block­ and conspiracy to distribute the same mari­ burger “elements test”;14the “societal norms” juana. The accused received consecutive sen­ test of United States v. Beene;16 the “single­ tences for the charges even though there was impulse” test of United States v. Pearsonls and only one conspiracy which violated the two federal statutes. The Court held that where there are two statutes each listing a punish­ ‘Manual for Courts-Martial, United States, 1951, paras. ment, Congress intended that they are separ­ 74b(4) and 76a(8). [hereinafter cited as MCM, 19511. n2C.M.A.141, 7C.M.R. 17(C.M.A.1953). 171tl., 44 C.M.R.at 128. O4 C.M.A. 161, 15 C.M.R. 161 (C.M.A. 1954). lHIti.,44 C.M.R. at 128. 10CJniiedSCatesv. Posnick; United States v. Brown, 7 C.M.A I 452, 23 C.M.R. 242 (C.M.A. 1957). In4M.J. 332 (C.M.A. 1978). I IlUnited States v. Washington, 1 M.J. 473 (C.M.A. 1976); r”3 M.J. 6 (C.M.A. 1977). I United States v. Hughes, 1 M.J. 346 (C.M.A. 1976). *lBum~y,21 C.M.A.at 73, 44 C.M.R. at 127. 1221C.M.A. 71, 73, 44 C.M.R. 125, 127 (C.M.A. 1971). 2zHarriwm,4 M.J. at 335; Irving;HughP.7. 131d.,44 C.M.R.at 127. 23Manualfor Courts-Martial, United States, 1969 (Rev. ed.), I4Id.,44 C.M.R.at 127. para 76a(5) [hereafter cited as MCM, 19691.

ISM, 44 C.M.R.at 127. 24UnitedStates v. Holsworth, 7 M.J. 184, 187 (C.M.A.1979). p, “Yd. at 74, 44 C.M.R. at 128. 26450U.S. 333 (1981). DA Pam 27-60-148 24

ately punishable unless a different intent was mandated by the fifth amendment’s double expressed. jeopardy protection was again illustrated in the case of Missouri ZI. Hunter.30In this case, the AfterAlberrutz, the Court of Military Appeals Supreme Court held that separate punishments reexamined the issue of multiplicity in United under two Missouri statutes for armed robbery States Baker.26 In Baker, the accused was v. and armed criminal action did not violate dou­ charged with aggravated assault and communi­ ble jeopardy proscriptions where the state cation of a threat. Baker had grabbed and legislature intended to authorize such punish­ choked the victim and threatened to kill her, all ments. Again, the Court of Military Appeals felt of which was done in an attempt to force the compelled to reexamine the issue of multiplicity victim to drive Baker somewhere. The court in light of Missouri Hunter, which post-dated held that the two charges were multipliciousfor v. the Baker decision. The reexamination oc­ sentencing but not for findings. Furthermore, curred in United States DOSS,~~in which the the court rejected the simple application of the v. Court of Military Appeals reiterated that the Blockburger “elements” test because the more lenient treatment provided to military ac­ Manual provided additional tests for multi­ cused, as compared to their civilian counter­ plicity. The court held that two charges were parts, was justified by thirty years of Court of multiplicious for findings if one of the charges Military Appeals’ precedent as recognized by necessarily included all the elements of the the 1969 Manual. other, or if the allegation under one of the charges, as drafted, “fairly embraced” all the With the stroke of the President’s pen, the elements of the other. In rejecting the Baker Manual’s recognition of thirty years of prece­ holding, Judge Cook, in his vigorous dissent, dent was eliminated on 1 August 1984. The urged a return to Blockburger, citing its recent 1984 Manual provision disregards the myriad of interpretation in Albernuz.2T multiplicity tests encompassed in paragraph 7645) of the 1969 Manual and instead Baker is now the preferred test. The Court of prescribes the Blockburger elements test: Military Appeals has been examining the word­ ing of the specifications and, in some cases, When the accused is found guilty of two or refusing to look at the facts to determine more offenses, the maximum authorized whether the specification “fairly embraced” punishment may be imposed for each sep­ the other.28 arate offense. Except as provided [as to conspiracy], offenses are not separate if The rationale of Baker was also applied in an expansive manner to provide the military ac­ each does not require proof of an element cused with even more protection against multi­ not required to prove the other. If the of­ plicious offenses. In United States v. fenses are not separate, the maximum ffollim~lz,~~the accused was charged with rape punishment for those offenses shall be the and communication of a threat. Dismissing the maximum authorized punishment for the threat charge, the court held that it was multi­ offense carrying the greatest maximum plicious for findings with the rape and de­ punishment.32 veloped the new test of “fairly-embraced-as­ Undoubtedly, Rule 1003 will compel the an-integral-means-of-accomplishment” test. Court of Military Appeals to again reexamine the issue of multiplicity in the military. The That the Court of Military Appeals was pro­ court could take several possible approaches to viding more protection than constitutionally the new rule: (1) the court could ignore the new

2e14M.J. 361 (C.M.A. 1983). a0469 U.S.369 (1983). 0714M.J. at 373 (Cook, J., dissenting). 9116M.J. 409 (C.M.A. 1983). Wnited States v. Holt, 16 M.J. 393 (C.M.A. 1983). J2MCM,1984, Rule for Courts-Martial 1003(c)(l)(C) here­ 2816M.J. 164 (C.M.A. 1983). inafter cited as RCM). 26 DA Pam 27-60-148

rule and adhere to Baker and prior precedent;33 Whatever interpretation the Court of Military (2) the court could apply a strict Blockburger Appeals gives to the new Manual rule, the rule and reverse many prior precedents;a4 or Supreme Court is unlikely to resolve the iss~e.3~ (3), and most likely, the court could give new Under any of the above approaches there will vitality to the Blockburger test, but additionally be neither a violation of the accused’s right to apply, as a supplemental test, the rule enunci­ protection under the double jeopardy clause of ated in This latter approach would the fifth amendment nor a substantial federal result in a more narrow and restrictive appli­ questiong8 Moreover, the Supreme Court has cation of Baker in determining whether the granted the Court of Military Appeals great language of one specification “fairly deference in interpreting military law.30Thus, embraced” the factual allegations of another even if the Court of Military Appeals interprets specification. As a result, some prior precedents Rule 1003 in terms of prior military precedent, would have to be rec~nsidered.~~ the Supreme Court would not likely interfere. Consequently, the confusion surrounding the issue of multiplicity would continue. 33Thediscussion to RCM 1003(c)(l)(C)indicates the drafters of the 1984 Manual believed that prior precedents might III. Trial Counsel’s Dilemma continue to be applied. The dilemma caused by this confusion can be 34Adecision to apply Blockburger and reverse prior prece­ dent would be based on the President’s broad authority illustrated by a multiplicity issue that has not under Uniform Code of Military Justice art. 36, 10 U.S.C. tj yet been decided by the Court of Military Ap­ 836 (1982) [hereinafter cited as UCMJ]. to prescribe the rules for courts-martial, including the maximum punish­ ments for offenses. 3SRecentCourt of Military Appeal cases have demonstrated new vitality for Blockburger and a change in the court’s at­ 1983) (bad check multiplicious with larceny); United States titude. In United States v. Isaacs, 19 M.J. 220, 223 (C.M.A. f“. v. McKinnie, 16 M.J. 176 (C.M.A. 1983Xaggravatedassault 1985), Chief Judge Everett wrote concerning multiplicity multiplicious with threat). that “the Court cannot assure that all maximum penalties will be entirely proportionate. Instead, to some extent we 37See Ott, supra note 3. must rely on sentencing and reviewing authorities to see that servicemembers receive fair and equitable punish­ The double jeopardy clause contains three basic pro­ ment.” Contrast this statement with Chief Judge Everett’s tections: “It protects against a second prosecution for the earlier language in United States v. Baker, 14 M.J. at 371: same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it I believe it is more appropriate to endure the present protects against multiple punishments for the same “mess,” rather than to expose military accused to offense.” North Carolina V. Pearce, 396 U.S. 711, 717 the harshness of a strictly applied Blockburger rule. (1969) (footnotes omitted). The Court of Military Appeals Moreover, in the records of trial that I have ob­ has provided more protection in preventing multiple pun­ served, it does not appear to me that the limitations ishments in violation of the double jeopardy clause. Like­ now placed on the operation of that rule have wise, the double joepardy clause provides no protection resulted in sentences that were not “appropriate” or ‘against multiple convictions for the same offense at the were unduly lenient; but I can foresee that the same trial. This fact was recently illustrated in Ohio v. removal of such limitations might lead to sentences Johnson, 104 S. Ct. 2536 (1984), where the accused was that were inappropriately severe and too overreach­ charged with murder, involuntary manslaughter, aggra­ ing by prosecutors in an effort to induce plea bar­ vated robbery, and grand theft. The accused’s guilty plea to gains. the lesser included offenses of grand theft and involuntary manslaughter did not bar his subsequent prosecution for aThekey case which would have to be reconsidered can be the greater offenses of aggravated robbery and murder. easily identified as the cases id which Senior Judge Cook The convictions were allowed on all the offenses. For this felt compelled to dissent: United States v. Allen, 16 M.J. reason, the Court of Military Appeals’ inclination to provide 395 (C.M.A.1983) (bad checks multiplicious with larceny); greater protection by dismissing multiplicious convictions is United States v. Valenzuela, 16 M.J.305 (C.M.A.1983) (at­ not required by the proscriptions of the double jeopardy tempted rape multiplicious with aggravated assault); clause. Accordingly, it is unlikely that any fifth amendment United States v. Holliman, 16 M.J. 164 (C.M.A. 1983)(rape issue will be presented for Supreme Court review. multiplicious with threat); United States v. Jean, 16 M.J. 433 (C.M.A. 1983) (assault multiplicious with resisting ap­ 3nMiddendorfv. Henry, 425 U.S. 26 (1976); Argersinger v. prehension); United States v. Ward, 16 M.J. 377 (C.M.A. Hamlin, 407 U.S. 25 (1972).

I DA Pam 27-50-148 26 P peals.40The issue arose in a case where the trial dence to support it. The only evidence of a counsel charged the accused with premeditated felony murder was the accused’s statement murder under UCMJ art, 118(1).41The case was which was unsworn and inadmissible at trial referred to trial and the accused offered to under Military Rule of Evidence 410 (excluding plead guilty to a lesser offense of involuntary statements made as part of plea negotiation^).^^ manslaughter under UCMJ art. llQ(bX1). As For these reasons, the trial counsel had no part of the plea negotiations, the accused of­ choice but to proceed solely on the premedi­ fered a statement in which he denied any intent tated murder charge. Fortunately, the issue was to kill the victim, explaining that the victim rendered moot when the accused later agreed owed him money from a drug debt. He further to plead guilty to unpremeditated murder under explained that he went to the victim and threat­ UCMJ art. 118(2). ened him with a loaded gun in order to collect As a hypothetical problem, however, assume the debt. The accused then claimed that the vic­ in the above scenario that the accused had tim swung a gym bag to knock the gun away but pleaded not guilty, and the trial proceeded with caused the gun to discharge accidently, which the government introducing evidence of pre­ resulted in the victim being shot to death. Based meditated murder and the accused testifying upon this statement, the trial counsel asked that the killing occurred by accident during the TCAP whether the charge of premeditated course of a robbery. Assume further that the murder fairly included felony murder, could be court members chose to believe the accused and so amended, or whether a separate charge of convicted him of the most serious available felony murder under UCMJ art. 118(4), should lesser included offense-involuntary man­ be added. slaughter. The government would be limited to After researching state and federal law, a maximum punishment of a dishonorable dis­ TCAP advised the trial counsel that felony charge, forfeiture of all pay and allowances, ­ murder and premeditated murder were and confinement for three years.4sThe question separate offenses for charging and findings,42 then is whether the conviction for involuntary but that the Court of Military Appeals likely manslaughter, when charged with premedi­ would find the two offenses multiplicious for tated murder, bars the government under dou­ sentencing because there was only one victim ble jeopardy proscriptions from subsequently and one transacti~n.~~Accordingly, the trial prosecuting the accused for felony murder. counsel was advised that the charge could not If the Court of Military Appeals finds that be amended to include felony murder.44Fur­ felony murder and premeditated murder are ther, trial counsel was advised that an addi­ separate offenses, then the government should tional and separate charge of felony murder not be barred from reprosecuting the accused should not be added because there was no evi­ for felony murder.47Upon conviction for felony murder, however,justice would dictate that the ‘Wnited States v. Dodson, petition grunted, 17 M.J. 298 (C.M.A. 1984); United States v. Hubbard, petition granted, conviction for the lesser offense of involuntary 19 M.J. 216 (C.M.A. 1984). Prior military cases have held manslaughter be set aside.48On the other hand, felony murder to be multiplicious with premeditated murder and the felony. United States v. Teeter, 16 M.J. 68 45Mil. R. Evid. 410. (C.M.A. 1983). 4eMCM, 1984, Part para. 44e(2). 4’10 U.S.C. 5 918(1)(1982). IV, “United States v. Hairston, 16 892 (A.C.M.R. 1983) “Richard V. Callahan, 723 F.2d 1028 (1st Cir. 1983); Watson M.J. (earlier acquittal of larceny by false pretense for selling v. Jago, 558 F.2d 330 (6th Cir. 1977); McFaden v. United fake drugs did not prevent second prosecution for at­ States, 395 A.2d 14 (C.D. App. 1978); Britt v. State, 453 So. tempted sale of the same fake drugs). 2d 1154 (Fla. 1984). 4eLowe v. State, 242 S.E.2d 682 (Ga. 1978Xwhere victim Wee generally People v. Goree, 349 N.W.2d 220 (Mich. had not died at time of aggravated assault conviction, sub­ 1984). sequent prosecution for murder was not barred, but, fol­ “State v. Russell, 678 P.2d 332 (Wash. 1984) (could not lowing murder conviction, lesser included assault convic- amend premeditated murder charge to include felony). tion could be set aside). F 27 DA Pam 27-50-148

P if the court decides that felony murder is “fair­ charged with a single specification of robbery ly embraced” in the factual allegation of pre­ which used the standard language “by means of meditated murder, then the double jeopardy force, steal from the presence of Private First proscription should bar the subsequent prose­ Class Timothy A. Powell, 111, against his will, cution for felony murder. Under this latter ten (10)dollars ($10.00). . . .” During the provi­ theory, the accused’s claim of felony murder dence inquiry, the accused set up the defense of would be a good defense to premeditated claim of right to the larceny element of robbery. murder where only the premeditated murder On appeal, the Court of Military Appeals held was charged.4e that the guilty plea was improvident as to the larceny element and that aggravated assault Indeed, the above described dilemma could was not a lesser included offense or one that be replayed in numerous cases where the Court of Military Appeals has broadly applied the was fairly implied in the robbery offense as charged. The court reasoned that the language Baker test to what should be separate offenses. “by means of force” fairly implied nothing The offenses for which the Baker test has been more than a simple assault.s4The court then af­ too broadly applied can easily be identified by firmed only a simpleassault even though the ac­ looking at the cases in which Judge Cook dis­ cused admitted during providence that he sented.60For example, United States Hol­ as­ v. saulted the victim with a knife. As a result, the limon, the accused was charged with both rape accused’s sentence to a punitive discharge was and communication of a threat. Neither of the set aside. After the Smith decision, trial counsel offenses contained similar elements. However, might question whether the Baker test be the court found that, as alleged, they were fac­ will applied where it would benefit the govern­ tually duplicative where the threat was used to menLs6 complete the rape.61 Consequently, the court dismissed the threat charge as multipliciousfor IV. Trial Counsel’s Solutions findings. The accused’s record will reflect a In solving the multiplicity problem, trial conviction only for rape and not with the fact counsel must first realize that determining what that he threatened to kill the victirn.s2 Again, offenses should be charged and how they under the court’s reasoning, if Hollimon had should be charged rests within the broad dis­ been charged with and acquitted of only the cretion of the government.66A limitation upon rape charge, he could not have been retried for this discretion is the rule that an unreasonable a later discovered threat offense. multiplication of charges which violates the ac­ Aggravating this dilemma is the potential cused’s right to a fair trial will lead to dismissal failure of the court to apply the Baker test to af­ of the case.67Trial counsel, therefore, should firm a “fairly embraced” offense when the always consider whether multiplying the greater offense is set aside. An example is charges is necessary to obtain a just maximum United States w. Smiths3where the accused was punishment. If not, trial counsel might wish to

‘This dilemma could not be circumvented by charging see United States v. McVey, 4 C.M.A. 167, 174, 16 felony murder on the theory of exigencies of proof. If so W3ut C.M.R. 167, 174 (C.M.A. 1964) (under same language, ag­ charged, the defense, after the Government’scase in chief, gravated assault was held a lesser crime of robbery). could merely make a motion for finding of not guilty as to i the felony murder,where there is no evidence of a felony. SsQ~ery,what would have happened had the accused in Motions for finding of not guilty as to a greater offense are Sm.ith been charged with both robbery and awavated now permitted under RCM 917(e). assault? Would not the Court of Military Appeals have dis­ missed the aggravated assault charge as being em­ %‘ee cases in supra note 36. “fairly . braced” in the robbery charge? Compare United States v. 6116M.J. at 167. Glover, 16 M.J. 397 (C.M.A. 1983) with Holliman. 621d.(Cook, J., dissenting). 6BUnitedStates v. Batchelder, 442 U.S. 114 (1979). b314M.J. 68 (C.M.A. 1982). STJnited States v. Sturdivant, 13 M.J. 323 (C.M.A. 1982). DA Pam 27-60-148 28 forego certain charges.68 Similarly, due con­ with a child sexual abuse victim who cannot sideration should be given to the time the gov­ recall the exact dates when the accused ernment wastes on appeal splitting multiplicity molested her. On the other hand, the drawback hairs. of a course of conduct specification is that it will limit the maximum imposable punish­ With these general limitations and consid­ ment.u Trial counsel should not try to get erations in mind, trial counsel are now ready to around this drawback by pleading separate acts approach the multiplicity problem. The first within the course of conduct specification.66 question that should be asked is whether the of­ fenses are part of the same act or transaction or Once trial counsel has determined that the of­ did they occur ~eparately.~~A “transaction” is fenses arose from the same transaction, he or broadly defined “to embrace a series of oc­ she should then determine whether they are currences or an aggregate of acts which are separate under Blockburger and Rule 1003. logically related to a single course of criminal Although the Blockburger test is a rule of con­ conduct.’’6oAs noted earlier, if the offense oc­ struction used to determine the legislative in­ curred separately, then trial counsel can charge tent, and is to be used only when the legis­ them in separate specifications.61 Indeed, lature’s intent is otherwise unclear, trial recently the Army Court of Military Review counsel frequently has neither the time nor the held that assaults upon the same victim sep­ research tools available to investigate con­ arated by fifteen to twenty minutes could be gressional intent. Moreover, Congress has dele­ charged separately.62 Many times, however, gated to the President the authority to pre­ trial counsel will want to charge successive and scribe the punishments for court-martial of­ separate acts in a single course of conduct or fenses.66 Accordingly, only where the Pres­ “mega-spec.”6sThese specifications are useful ident’s intent is clear (e.g., conspiracy and the to avoid unwieldly charge sheets in those situa­ completed offense,67simultaneous larceny from tions where the accused has committed re­ different victimsea) will trial counsel be able to - peated acts of misconduct over a given period bypass the application of Blockburger. In ap­ of time, e.g., bad check, drug abuse, and child plying Blockburger, however, the element of sexual abuse cases. Another advantage of prejudice to good order and disciplineor service course of conduct pleading is that the govern­ discrediting conduct under UCMJ art. 134 ment’s burden of proof is lessened because ex­ should not be used.68 Similarly, violating a act dates and amounts do not have to be lawful order under UCMJ art. 92 should be proven. This can be beneficial when dealing charged with caution.7oOnceBlockburger is ap­ plied, and trial counsel has determined that

SBAlthough some commentators have indicated that the maximum punishment is not an important consideration be­ aUnited States v. Grubbs, 13 M.J. 694 (A.F.C.M.R.1982). cause the accused is rarely sentenced to any punishment approaching the maximum, still the maximum punishment Wnited States v. Maynazarian, 12 C.M.A. 484, 31 C.M.R. is an important consideration in inducing guilty pleas as 70 (C.M.A. 1961); United States v. Thayer, 16 M.J. 846 well as a key factor for sentencing authorities to consider in (N.M.C.M.R.1983); United States v. Langford, 16 M.J. 1090 arriving at a just punishment. See McAtamney, Multi­ (A.C.M.R. 1983). Nothing prevents trial counsel from plicity: A hnctional Analysis, 106 Mil. L. Rev. 116, 169 separately charging separate incidents which are not con­ (1984). tained within the time period alleged in the course of con­ duct specification. Wfaker,14 M.J. at 366. ggUCMJart. 36. gold. at 366. ‘?MCM, 1984, Part IV, para. Sc(8) Wee cases in supra note 6. gBMCM,1984, Part IV, para. 46c(l)(h)(ii) g2UnitedStates v. Robinson, SPCM 20672 (A.C.M.R.31 Oct. 1984). eoDoss,16 M.J. at 414-15 (Cook,J., concurringin the result). WNted States v. Means, 12 C.M.A. 290, 30 C.M.R. 290 ?Osee generally United States v. Lott, 14 M.J. 489 (C.M.A. (C.M.A. 1961); United States v. Carter, CM 19666 (A.C.M.R. 1983) (indecent assault multiplicious for findings with vio­ 10 Sept. 1984). lating regulation proscribing the same assault). - DA Pam 27-60-148 7 each offense contains an element not included counsel should not create new hybrid offenses in the other, then each offense can be sep­ but should instead rely on sound military court arately charged and trial counsel should be re­ decisions (as found in the Appendix to this arti­ quired to go no further. Separate elements in cle) when merging offenses. Examples of of­ each charged offense will almost always allow fenses that might be merged are simultaneous the trial counsel to argue exigencies of proof to possession of different drugs in a single cache;76 justify separate charges and findings7’ aggravated assault used to commit a rape, sodomy, or r~bbery;~Band breach of restriction After determining that the offenses are sep­ that resulted in a brief AWOL.77 arate under Blockburger, trial counsel might still desire to examine the specifications under On the other hand, trial counsel might be able Baker. If the factual allegation of one speci­ to limit the language of specifications to pre­ fication “fairly embraces” the language of vent them from being multiplicious under another specification, trial counsel might desire Baker. A recent example is United States v. to avoid the multiplicity issue and consolidate Wood7a where the accused was charged sep­ these offenses into one specification. In doing arately with larceny, check forgery, and wrong­ this, trial counsel must bear in mind the pro­ ful use of a military identification card of hibitions against duplicitous pleading,72as well another soldier in violation of UCMJ arts. 121, as the limitations on alleging matters in ag­ 123 and 134, respectively. Based upon the prior gravation.73 Also, due consideration should be precedent of United States v. Allen,7@the given to the fact that confusion of court mem­ allegation of a worthless or forged check writ­ bers will be minimized by findings worksheets ten with the intent to obtain an item of value that reflect specifications which follow the would “fairly embrace” the larceny of the same models in the Manual without unnecessary sur­ item. In Wood,however, the forgery specifi­ plusage or various exceptions and substitu­ cation’s mere allegation of falsely making a rc4. tions.74 When consolidating specifications, trial check to a named payee was held not to “fairly embrace” the larceny from the same payee. In distinguishingAllen, the Army Court of Military 71Swgmwally Uberman, Multiplicilq rinrlrr IhP NtJw Manua1,forCourt?-Martial,Viewpoint, Nov. 1984 at 2, 14. Review held there was no allegation that the forgery was the means by which the larceny 72MCM,1984, RCM 307(c)(4) and 906(bX5). A course of,con­ duct specification, combining similar offenses, does not was committed. Thus trial counsel’s skill in violate the rule against duplicitous pleading. Mpn~s.How­ drafting specifications that do not “fairly em­ ever, combining separate and unrelated offenses would brace” each other can prevent appellate dis­ violate the rule against duplicitous pleading. United States missal. However, this desired result may be v. Branford, 2 C.M.R.489(A.B.R. I95l)(reckless and drunk thwarted by defense counsel’s motion to make driving could not be combined in one specification). The the charge more definite and certain. problems created by duplicitous pleading are that the ac­ cused could be convicted of the offense even though ac­ quitted of the separate acts or offenses within the specifica­ At this point in the analysis, trial counsel tion, the accused could be prejudiced with respect to evi­ should be aware that other auxiliary tests for dentiary ruling during trial, and the accused might not he multiplicity might come into play, especially in fully protected against double jeopardy. United States v. determining multiplicity for sentencing. The Robin, 693 F.2d 376 (5th Cir. 1982); United States v. Pavloski, 574 F.2d 933 (7th Cir. 1978). “societal norms” test can be used to bolster the government’s argument that two offenses, each 73Thediscussion to RCM 307(c)(3) provides that “[alggra­ vating circumstances which increase the maximum authorized punishment must he alleged in order to permit ‘“nited States v. Patton, 17 M.J. 405 (C.M.A. 1984). the possible increased punishment. Other matters in aggra­ vation ordinarily should not he alleged in the 76UnitedStates v. Sellers, 14 M.J. 21 1 (C.M.A. 1982) (srrm­

specification. ” mary disposition). 74For example, sometimes in excepting and substituting 77UnitedStates v. Doss, 15 M.J. 409 (C.M.A. 1983). language from a specification, the words of criminality can 7~114M.J.542 (A.c.M.R.19z.4). be omitted and the accused acquitted. United Slates v. Wood, SPCM 17226 (A.C.M.R.9 Mar. 1983). 7916 M.J. 3146 (c.M.A. iwq. DA Pam 27-50-148 30 c containing separate elements, are separate if In this manner, trial counsel can preserve the each violates separate societal norms.8oMost accuracy of the accused’s criminal record and recently, this test was employed to find that avoid the dilemmas noted earlier in this article. adultery and rape were separate offenses for V. Conclusion finding and sentencing.81The adultery offense was held to be a crime against the marital rela­ This article has not attempted to be an ex­ tionship whereas the rape was a crime of haustive or complete discussion of every multi­ violence against the person. plicity test or every multiplicity dilemma which trial counsel might encounter with regard to Another auxiliary test is the single impulse charging, findings, or sentencing. Instead, it has analysis which was first used as a justification focused on the main problems and provided an to limit the maximum punishment where simul­ approach on how to avoid them. Rule 1003 taneous larcenies were committed against dif­ presents the Court of Military Appeals with a ferent victims.82 The rationale was that the unique opportunity to end the dilemmas con­ maximum punishment for larceny depended cerning multiplicity by adopting the bright-line upon the value of the item stolen and unlimited Blockburger rule as modified and advocated by prosecutorial discretion in charging could result Judge Cook. Any cases of unreasonable multi­ in a greater maximum puni~hment.~~This same plication of charges resulting in a violation of rationale, however, is inapplicable to assaults, the accused’s right to a fair trial can be reme­ robberies, and other crimes of violence which died by dismissal of all the charges. In the ab­ are simultaneously committed against different sence of such an approach, the only truly com­ victims.84Such offenses have always been held plete and satisfactory solution to the current to be separate.86 multiplicity confusion is finding a factually Whatever approach trial counsel might elect similar case and proceeding accordingly. TCAP in drafting charges, he or she should be aware hopes the “Topical Outline of Recent Multi- ­ that the primary goal is to insure that all of the plicity Cases” provided in the Appendix to this accused’s criminal conduct is accurately re­ article will provide that complete and satis­ flected. If confronted with a motion to dismiss a factory solution. multiplicious charge, trial counsel should be prepared to argue for consolidation of the of­ Appendix fenses if the arguments for separateness and ex­ Topical Outline of Recent Cases igencies of proof If thejudge does dismiss the charge without consolidation, then presum­ This outline includes Court of Military Ap­ ably the dismissed charge can be “resuscitated” peals daily journal entries through 15 February on appeal if warranted by exigencies of proof.8’ 1985 and all decided opinions through 28 Ft+ ruary 1985. Additionally, note that many Cowl ““SeeUnited States v. Beene, 15 C.M.R.177 (1954). of Military Appeals decisions cited helow i11(’ summary dispositions hidden away in the daily ulUnited States v. Lopez, CM 445099 (A.C.M.R. 8 Feh 1985). journals. These pronouncements usually (w­ tain little or no rationale and are not digestwl in ”MCM, 1984, Part IV, para. 46c(l)(h)(ii). West’s Military Justice Digest. Also note 1 ha1 ”United States v. Florence, 5 C.M.R. 48 (C.M.A. 1952) the cases cited below are arranged topicaally “Ashe v. Swenson, 397 US.436 (1976); United States v. under one offense charged or the other, hi no1 Baker, 2’M.J. 773 (A.C.M.R.1976). both. The unpublished opinions cited in t tic. “United States v. Peterson, 17 C.M.A.548, 38 C.M.R. 346 outline will be furnished to counsel upon r(x­ (C.M.A. 1968); United States v. Cooper, 2 C.M.A. 333, 8 quest. C.M.R. 133 (C.M.A.1953); United States v. Parks,42 C.M.R. A. Inchoate 0ffmw.s. 545 (A.C.M.R.1970); United States v. Dean, 41 C.M.R. 763 (A.C.M.R.1969). 1. Conspiracy. a. MCM, 1984, �’art IV, para. .X;(8):Sc~lxir;i~(~ TJnited States v. Huggins, 17 M.J. 345 (C.M.A.1984). for prinishmrnt purpo.scbs wil h ohiwt 01’ 18 B7UnitedStates v. Zupancic, M.J. 387 (C.M.A. 1984). conspiracy. F 31 DA Pam 27-60-148

b. Single ongoing conspiracy fragmented in­ mary disposition). to nine conspiracy charges to smuggle d. Assault and battery was multiplicious for drugs was multiplicious for finding. finding.. with breach of the peace by en­ United States v. Cum, 15 M.J. 701 gaging in a fist-fight with the person (A.C.M.R. 1983). assaulted. Uniktl Stntes ?I. Moslpy, 16 c. Issue pending: Multiplicity of solicitation M..J. 205 (C.M.A. 1983) (summary dispo­ and conspiracy to commit an offense. sition). United States v. Kauble, 15 M.J. 591 e. Assault charges were multiplicious for (A.C.M.R.), petition granted, 16 M. J. 176 findings with the forcible sodomy charge. (C.M.A. 1983). Unitpd States PI. Withw-spoon,15 M.J. 169 2. Attempts. (C.M.A. 1983) (summary disposition). Ag­ Attempt to commit an offense was multi­ gravated assault was lesser offense of for­ plicious for findings with the completed of­ cible sodomy. United States ?). Kamyal, fense. United States v.Armwwwicz, 16 M.J. -M.J. -(A.C.M.R. 24 Dec. 1984). 418 (C.M.A. 1983). f. Battery, as alleged, was a lesser included B. Assaultive Offenses. offense of the robbery charge. Unitd 1. Assault. Statm 17. Vili, 17 M.J. 437 (C.M.A. 1984) a. Separate blows in a single assault were (summary disposition). multiplicious for findings. United States g. Resisting apprehension was multiplicious v. Morris, 18 M.J. 450 (C.M.A. 1984). with leaving the scene of an accident Two assault specifications perpetrated on where single act and impulse involved. the same victim during a single, uninter­ Unitd Strct(>.y 1). Blnntl, CM 83-5393 rupted scuffle were multiplicious for (N.M.C.M.R. 22 Mar. 1984) (unpub.). findings. United States v. Morris, 18 M.J. h. Provoking language multiplicious for 450 (C.M.A. 1984). Assault (unlawfully findings with resisting apprehension. grab and choke on the throat) was multi­ United Stntes 1). Hrcthnicm?y, S26290 plicious for findings with aggravated (A.F.C.M.R. 6 May 1984) (unpub.). assault (slashing at with a dangerous 2. Aggravated Assault. a. Assault by intentionally inflicting griev­ weapon). United States I). Simmons, 15 M.J. 316 (C.M.A. 1983) (summary dispo­ ous bodily harm was multiplicious for sition). Simple assault was multiplicious findings with robbery. Unitrd Stntw 71. 15 284 1983) with aggravated assault. United Statm PI. Milliken, M.J. (C.M.A. (sum­ Rushing, 11 M.J. 95 (C.M.A. 1981). mary disposition), cit in.9 Unitc4 Stnks ?). b. Assault and communication of a threat Sellm-s, 14 M..J. 211 (C.M.A. 1982) (sum­ were not multiplicious for finding, but mary disposition). Issue pending: were multiplicious for sentencing. United Whether aggravated assault was multi­ States v. Baker, 14 M.J. 361 (C.M.A. plicious for findings with robbery? 1983); but see United State.s v. Hollimon, Uniteti Statrs ?I. Hale, pdition grantc.ri, 16 M.J. 164 (C.M.A. 1983) where com­ 13 M.J. 19 (C.M.A. 1982). munication of threat dismissed as multi­ b. Assault with a knife was multiplicious for plicious for findings with rape. Com­ findings with rape committed upon the munication of threat was multiplicious same victim. llnitmti States 11. Sellm-s, 14 for findings with assault charges where M.J. 211 (C.M.A. 1982) (summary dispo­

the victim, time and circumstances in­ sition), citing Uniteti Stntes I). Thompson, volved were all the same. United States v. 10 M.J. 405 (C.M.A. 1981). Assault with a McKinnq, 15 M.J. 176 (C.M.A. 1983) dangerous weapon was multiplicious for (summary disposition); United Statm v. findings with attempted rape. United Crockett, 15 M.J. 336 (C.M.A. 1983) (sum­ States 71. Vn1mc~Ia,16 M..J. 305 (C.M.A. mary disposition). 1983) (summary disposition), citin.9 c. Assault was multiplicious for findings United Statm 1). Sr.llm-.s, 14 M.J. 211 . with rape. United Statm v. Tylw, 15 M.J. (C.M. A. 1982) (summary disposition). 285 (C.M.A. 1983) (summary disposition) c. Aggravated assault was multiplicious for citing UnitedStates v. %sing, 13 M.J. 98 sentencing, but not findings, with forci­ (C.M.A. 1982) and United States PI. ble sodomy and rape where language of Sellers, 14 M.J. 211 (C.M.A. 1982) (sum­ sexual offenses did not “fairly embrace” DA Pam 27-60-148 32 r

the aggravated assault. United States 7). the same child. Unit4 States 11. Co.r, 18 , Glover, 16 M.J. 397 (C.M.A. 1983). M.J. 72 (C.M.A. 1984). d. Aggravated assault was multiplicious for 2. Indecent Acts. findings with communication of a threat. a. Indecent assault was multiplicious for United States v. Silva, 17 M.J. 428 findings with violating regulation for (C.M.A. 1984) (summary disposition); same assault. United Staks 7). Lott, 14 United States v. Petty, 17 M.J. 408 M.J. 489 (C.M.A. 1983). (C.M.A. 1984) (summary disposition); b. Indecent exposure separate offense from United States v. Simmons, 15 M.J. 316 unlawful entry due to different societal (C.M.A. 1983) (summary disposition); norms. United States v. Burke, United States v. McKinnie, 15 M.J. 176 CM84-0104 (N.M.C.M.R. 29 (Feb. 1984) (C.M.A. 1983). (unpub.). e. Assault intentionally inflicting grievous c. Indecent language merged with rape bodily harm was a LIO of attempted charge for sentencing. Unitmi States v. murder. United States v. McCray, 16 M.J. Twner, 17 M.J. 997 (A.C.M.R. 1984). 122 (C.M.A. 1983Xsummary disposition) 3. Fraternization. citing United States v. Gibson, 11 M.J. a. Issue pending: Multiplicity of fraterni­ 435 (C.M.A. 1981). No exigency of proof zation and adultery. united State.s v. in LIO. Walker, petition granted, 16 M.J. 176 f. Aggravated assault was not multiplicious (C.M.A. 1983); United States v.Jefferson, for sentencing with possession of a 14 M.J. 806 (A.C.M.R. 1982), petition dangerous weapon in violation of regula­ granted, 15 M.J. 328 (C.M.A. 1983). tion. United States v. King, CM84-9241 b. Attempted sale of marijuana and frat­ (N.M.C.M.R. 12 Mar. 1984) (unpub.). ernization were not multiplicious. United g. Violation of regulation by unlawfully States v. Brown, CM 443337 (A.C.M.R. 31 discharging firearm in unauthorized area Aug. 1983)(unpub.).

multiplicious for findings with discharg­ 4. Rape. J ing firearm under circumstances en­ a. Attempted rape and assault with intent dangering human life under Article 134. to commit rape were multiplicious for United States v. Me&, -M.J. ­ findings. United States v. Gibson,11 M.J. (A.C.M.R. 20 Jan. 1985). 435 (C.M.A. 1981). b. Aggravated assault multiplicious for sen­ A. Sex Crimes. tencing but not findings with rape and 1. Sodomy. sodomy. United States v. Glover,16 M.J. a. Forcible sodomy by appellant not multi­ 397 (C.M.A. 1983). plicious for any purpose with forcible c. Communication of a threat was dismissed sodomy by aiding and abetting his co­ as multiplicious for findings with rape. accused. United States v. Lee, 16 M.J. 532 United States v. Hollimon, 16 M.J. 164 (A.C.M.R. 1983). (C.M.A. 1983). Communication of a b. Forcible anal sodomy was multiplicious threat not multiplicious for findings with for sentencing with oral sodomy. United assault with intent to commit rape where States v. Wilkins, CM 442519 (A.C.M.R. words of assault specification did not 18 Mar. 1983) (unpub.). “fairly embrace” the communication of a d. Fellatio was multiplicious for sentencing threat. United States v. Daniel, CM with cunnilingus on the same victim. 443149 (A.C.M.R.31 Oct. 1983) (unpub.). United States v. LancJiord, 15 M.J. 1090 d. Adultery charge dismissed as inconsistent (A.C.M.R. 1983). with rape. United States v. McCrae, 16 e. Attempted sodomy was separate for pun­ M.J. 485 (C.M.A. 1983). Under new MCM, . ishment from rape charge. United States adultery charge was separate for sen­ v. Turner,17 M.J. 997 (A.C.M.R. 1984); tencing with rape. United States v.Lopez, United States v. Rogan, 19 M.J. 646 CM 445099 (A.C.M.R. 8 Feb. 1985) (un­ (A.F.C.M.R. 1984). pub.). f. Sodomy with child under 16 could be e. Charge of nonconsensual indecent acts treated separately for punishment pur­ with another was a lesser included of­ poses with indecent acts committed upon fense of rape. United States v. Cheatham, - 33 DA Pam 27-60-148

-\ 18 M.J. 721 (A.F.C.M.R. 1984); United (summary disposition). State.qv. WntLs, 19M.J. 703(N.M.C.M.R. d. Attempt to hazard a vessel was multi­ 1984). plicious, as pleaded, with willful destruc­ D. Crimes Against ProDertv. tion of military property. UnitedStates v. 1. Larceny. Julien, 17 M.J.427 (C.M.A. 1984) (sum­ a. Simultaneous larceny of different prop­ mary disposition). erty from different victims is multipli­ e. Willful damage to government property, cious for charging, and merger of two willful damage to private property and specifications into one was the appro­ larceny were not multiplicious for sen­ priate remedy. Unitpd States v. Har­ tencing. United States v. Yanke, 18 M.J. el prod^, 17 M.J. 981 (A.C.M.R. 1984); 27 (C.M.A. 1984) (summary disposition). United States v. Pickens, CM 443356 f. Wrongful sale of military property was (A.C.M.R.17 Oct. 1983) (unpub.);MCM, not multiplicious for findings with wrong­ 1984, paragraph 46e(l)(h)(ii). ful concealment of the same property. h. Larceny was multiplicious for sentencing United States v. Wove, 19 M.J. 174 but not findings with false military I.D. (C.M.A. 1986). card charge where language of larceny g. Simultaneous burning of different ar­ specification did not “fairly embrace” ticles of clothing belonging to different false I.D.charge. United States v.Holt, 16 individuals was one offense. United M.J.393 (C.M.A. 1983). States v. Hicks. 19 M.J. 674 (N.M.C.M.R. c. Larceny of an automatic teller machine 1984). card was not multiplicious with the later 3. False Writings. larcenies committed through the un­ a. Larcenies were multiplicious for findings authorized use of the card. United States with bad check offenses where bad 17. Ahdqchein, 19 M.J. 619 (A.C.M.R. checks were alleged as the false pretenses 1984). by which the property was stolen. UniM d. Larceny not multiplicious for sentencing States v. Allen, 16 M.J. 396 (C.M.A. with altering a public record. United 1983); United Slates v. Ward,16 M.J. 377 States v. Ridgeway, 19 M.J. 681 (C.M.A.1983) (summary disposition). But (A.F.C.M. R. 1984). where language of larceny does not “fair­ e. Larceny after robbery was not multipli­ ly embrace” language of bad checks then cious for findings with the robbery. offenses are not multiplicious for find­ United States v. Dimn, __ M.J. __ ings. United States u. Cibbs, 17 M.J. 346 (A.C.M.R.4 Jan. 1985). (C.M.A.1984); United States v. Wood,19 2. Wrongful Destruction, Damage, or Disposi­ M.J. 642 (A.C.M.R.1984). tion of Property; Arson. b. Where language of larceny specification a. Willful damage to government property did not “fairly embrace” the false official was not multiplicious with arson. United statement allegation, then false official States v. Kotulski, 16 M.J. 43 (C.M.A. statement and larceny charge were not 1983). multiplicious for findings. United States b. Numerous willful damages to private v. Wilson, 17 M.J. 319 (C.M.A. 1984) property (41 specifications of puncturing (summary disposition); United Slates v. tires in one drunken spree) were not Lee, 17 M.J.321 (C.M.A. 1984)(summary multiplicious for sentencing. United disposition). States v. Ennis, 16 M.J. 970 (A.C.M.R. c. Larceny not multiplicious for findmgs 1983). 9 with false claim where language of .. c. Wrongful sale or disposition of military larceny specification did not “fairly em­ property was not multiplicious with brace” the false claim as the means by larceny, United States v. West, 17 M.J. which the larceny was accomplished. * 145 (C.M.A. 1984); United States v. Cab­ United States v. Moore, 17 M.J. 318 rm,S23962 (A.F.C.M.R.16 Sept. 1983) (C.M.A. 1984) (summary disposition); (unpub.), United Stales v. McClary, 27 United Stales 1). MCKnight, (A.F.C.M.R. C.M.R. 221 (C.M.A. 1959); even when 15 June 1984) (unpub.). But where lar­ both occur at the same time, United ceny does “fairly embrace” the false r’\ States v. Mott, 18 M.J. 102 (C.M.A. 19841 claim, then charges are multiplicious for DA Pam 27-80-148 34

findings. United States v. Smith, 17 M.J. Johnson, CM 443807 (A.C.M.R. 11 June 320 (C.M.A. 1984) (summary disposition); 1984) (unpub.). United States v. Robertson, 17 M.J. 412 3. Involuntary manslaughter, aggravated (C.M.A. 1984) (summary disposition). assault, and destruction of military property d. Larceny of blank checks was not multi­ were multiplicious for sentencing where ac­ plicious for sentencing with wrongful cused drove truck into a bus stop thereby making and uttering of these checks. killing one bystander and iqjuring another. United States v. Mireles, 17 M.J. 781 United States v. Harris, CM 444674 (A.F.C.M.R. 1983). (A.C.M.R. 18 Apr. 1984) (unpub.). e. The false claim (Art. 132) was multi­ plicious with false official statement. F. Crimes Against Judicial Process. United States v. Spring, 17 M.J. 436 1. Communication of a threat was multiplicious (C.M.A. 1984) (summary disposition). for findings with endeavoring to influence f. Altering U.S. Treasury check with intent testimony where the threat was the means to defraud was multiplicious for findings used to influence the testimony. United with attempted larceny. United States v. States v. Green, 15 M.J. 99 (C.M.A. 1983) Amzstrong, 18 M.J. 141 (C.M.A. 1984) (summary disposition); United States v. (summary disposition); United States v. &Leon, 15 M.J. 378 (C.M.A. 1983) (sum­ Rugin, 13 M.J. 42 (C.M.A. 1982) (sum­ mary disposition). mary disposition). United States v. 2. Issue pending: Whether specification al­ Leader, 13 M. J. 36 (A.C.M.R. 1982). Not leging willful altering of a public record by multiplicious: United States v.Burton,15 changing two specimen numbers on a urin­ M.J. 791 (A.C.M.R. 1983). alysis test record was multiplicious for find­ g. Misuse of I.D. card not multiplicious with ings with specification alleging the wrongful simultaneous forgery due to different endeavor to influence a court-martial by societal norms. United States v. Patton, altering the same document. United States v. CM83-1939 (N.M.C.M.R. 31 Aug. 1983) Jackson, petition granted, 19 M.J. 44 ­ (unpub.). (C.M.A. 1984). h. Issue pending: Multiplicity of forgery and G. Military Crimes. larceny. United States v. Mills, petition 1. Crimes Against Military Superiors. grunted, 18 M.J. 4 (C.M.A. 1984). a. Disrespect was multiplicious for findings E. Homicides. with willful disobedience. United States 1. Felony murder offense was multiplicious for v. Liddell, 15 M.J. 183 (C.M.A. 1983), findings with premeditated murder, rape citing United States v. Virgilito, 47 and sodomy. United States v. Brown, CM C.M.R. 331 (C.M.A. 1973); but also can be 443308 (A.C.M.R. 1983). Issue pending: separately punished, United States v. multiplicity for findings of felony murder Carroll, 18 M.J. 108 (C.M.A. 1984) (sum­ with premeditated murder. United States v. mary disposition). Dohm, petition granted, 17 M.J. 298 b. Communication of a threat was multi­ (C.M.A. 1984). plicious for findings with assault upon a 2. Drunk driving was multiplicious for findings superior NCO in the execution of his of­ with involuntary manslaughter. United fice. United States v. Le&, 13 M.J. 36 States a, McMaster, 15 M.J. 525 (A.C.M.R. (C.M.A. 1982); United States v. Long, 7 1983), petition denied, 16 M.J. 125 (C.M.A. M.J. 342 (C.M.A. 1979) (both cited in 1983); but where recklessness consisted of United Stutes v. Gun&, 14 M.J. 249 more than mere drunkeness, drunk driving (C.M.A. 1982)). and involuntary manslaughter were not c. Disrespect was multiplicious for findings Y multiplicious for findings, United States v. with communication of a threat. United Jordan, 17 M.J. 628 (A.C.M.R. 1983). Multi­ States v. Brown, 18 M.J. 142 (C.M.A. plicity of drunk driving, manslaughter, and 1984) (summary disposition). b aggravated assault. Cmpare United States d. Assault upon, and disobedience of, a 71. BPW, 15 C.M.R. 177 (C.M.A. 1954) with superior commissioned officer were not Illinois v. Vitale, 447 US. 410 (1980). multiplicious for findings with resisting Negligent homicide multiplicious for find­ apprehension. United Stms v.Costello, 17 ings with drunk driving. United States v. M.J. 132 (C.M.A. 1984). e 35 DA Pam 27-60-148 n 2. Disobedience of Orders and Regulations. (C.M.A. 1984); United States v. Rod­ a. Willful disobedience of an order was riguez, 18 M.J. 363 (C.M.A.1984). multiplicious with the failure to obey the 4. AWOLS. same order. Unitpd Stnks 7). LittlP, 15 a. Brief AWOL multiplicious for findings M.J. 333 (C.M.A. 1983). with breach of restriction. United States b. Unlawful entry of a barracks room of v. Morris, 18 M.J. 460 (C.M.A. 1984); female service member under Article 134 United States v. &ss, 16 M.J. 409 (C.M.A. was multiplicious for finding.. with viola­ 1983); UnitedStatesv. Scavinsky, 16 M.J. tion of general order proscribing entry in­ 316 (C.M.A.1983)(summary disposition); to female billet area. Unitptt Statps v. Car­ United States v. Jackson, 15 M.J. 331 rpiro, 14 M.J. 954 (A.C.M.R. 1982),rw ’ti, (C.M.A. 1983) (summary disposition), 15 M.J. 403 (C.M.A.1983), citing Unitpd citing United States v. Posnick, 24 CMR Stal~s?I. htl, 14 M.J. 489 (C.M.A.1983). 11 (C.M.A. 1967); United States v. Boll­ Violation of regulation by accepting cash ing, 16 M.J. 901 (A.C.M.R.1983) (failure gratuity from student trainee to object did not waive multiplicious find­ multiplicious for finding.. with accept­ ings). Where aggravating factor of length ance of graft from the same person under of AWOL pleaded and proved, then Article 134. Unitd Stntm 31. Moorm-, 16 AWOL was not multiplicious for findings M.J. 451 (C.M.A. 1983). with breach of restriction. United States c. Issue pending: Multiplicity for findings of v. Z3iBetl0, 17 M.J. 77 (C.M.A. 1983). offenses of conveying, delivering, and b. AWOL was not multiplicious for sentenc­ communicating classified documents. ing with refusal to obey an order to United States v. Baba, petition granted, return to the military base. United States 18 M.J. 91 (C.M.A. 1984). v. Pettersen, 14 M.J. 608 (A.F.C.M.R. d. Indecent assaults on trainees were mul­ 1982), @‘d, 17 M.J. 69 (C.M.A. 1983). tiplicious for findings with fraternization Failure to obey an order to report not in violation of regulation. United States v. later than 27 February 1981 was multi­ Bishop, 18 M.J. 14 (C.M.A. 1984) (sum­ plicious for fiiding with AWOL com­ mary disposition). mencing on 28 February 1981. United e. Violating post regulation by possessing States v. Hawks, 16 M.J. 316 (C.M.A. certain firearms was not multiplicious for 1983)(summary disposition), citing findings with violating post regulation by United Stales v. Granger,26 C.M.R. 499 failure to register the firearms. United (C.M.A. 1958). States v. McKenan, 17 M.J. 416 (C.M.A. c. AWOL was multiplicious for findings 1984) (summary disposition). with escape from lawful custody. United f, Wrongful purchase of tax-free goods in Statesv. West, 16M.J. 183(C.M.A.1983), violation of general regulation was not citing United States v. Welch, 26 C.M.R. multiplicious for findings with wrongful 36 (C.M.A.1986). Breach of restraint dur­ possession of 80 cartons of cigarettes in ing correctional custody not rnultiplicious violation of a different part of the regu­ with AWOL. United States v. Smith, 17 lation. United States v. Burkhardt, CM M.J. 95 (CMA 1983) (summary disposi­ 444148 (A.C.M.R.30 Dec. 1983)(unpub.); tion); United States v. Kellw, 16 M.J. but see United States v. Lee, CM 444703 624 (ACMR 1983). Unauthorized absence (A.C.M.R.11 May 1984) (unpub.). from accused’s unit not multiplicious for g. Drunk driving in violation of Article 111 findings with charge of escape from was not multiplicious for sentencing with. lawful custody of a named person. United violation of commander’s order not to States v. Johnson, 17 M.J. 83 (CMA 1983). 6 operate a vehicle on post due to appli­ United States v. McKernun, 17 M.J. 416 cation of separate duties’ test. United (CMA 1984) (summary disposition); Statesv.Smeller, 17M.J.938(A.F.C.M.R. UnitedStates v. Lyh, 14 M.J. 771 (ACMR .= 1984). 1982),pet. denied, 16 M.J. 96 (CMA 1983) 3. Conduct Unbeco& an Officer. (AWOL not multiplicious for findings Underlying offense is lesser included of­ with escape from confinement). fense of conduct unbecoming an officer. d. AWOL for over six months was multi­ United States v. Timberlake, 18 M.J. 371 plicious for findings with missing move-

r - 1 DA Pam 2'7-50-148 36

,­ ment through neglect. United States v. cluded offense of distribution of the same Muway, 17 M.J. 81 (CMA 1983); United drug. United States v. Zupancic; United States v. Labella, 17 M.J. 415 (CMA 1984) States v. Zubko, 18 M.J. 387 (C.M.A. (summary disposition); United States v. 1984); United States v. Ansley, 16 M.J. Timblin, 18 M.J. 427 (CMA 1984) (sum­ 584 (A.C.M.R.1983). Possession of mari­ mary disposition). juana in violation of regulation multi­ H. Drug Offenses. plicious for findings with possession of 1. Introduction of Drug. marijuana with intent to distribute.

a. Wrongful- -possession of drug multiplicious United States v. McDonald, 17 M.J. 347 for findings with wrongful introduction (C.M.A. 1984); United States v. Vaughn, of the same drug. United States v. Hill, 18 16 M.J. 129 (C.M.A. 1983); United States M.J. 459 (C.M.A. 1984); United States v. v. Conky, 14 M.J. 229 (C.M.A. 1982) Zupa?zcic, 18 M.J. 378 (C.M.A. 1984); (summary disposition), citing United United States v. Arnold, 17 M.J. 347 States v. Fame, 14 M.J. 309 (C.M.A. (C.M.A. 1084); Unitkd States v. Hendrick­ 1982); United States v. Franklin, 14 M.J. spn, 16 M.J. 62 (C.M.A. 1983); United 309 (C.M.A. 1982). States v. Miles, 16 M.J. 431 (C.M.A. b. Simultaneousdistribution of marijuana to 1983); United States v. Garcia-Lopez, 16 different buyers was not multiplicious for M.J. 229 (C.M.A. 1983); United States v, finding%United States v. Staples, 19 M.J. Vallido, 16 M.J. 63 (C.M.A. 1982) (sum­ 741 (A.F.C.M.R.1984). mary disposition); United States v. c. Wrongful possession of marijuana with Roman-Luciam, 13 M.J. 490 (C.M.A. intent to distribute was multiplicious for 1982) (summary disposition). Wrongful findings with wrongful distribution of the introduction of marijuana was identical substance. United States v. multiplicious for findings with wrongful Brown, 19 M.J. 63 (C.M.A. 1984). possession of a part of the whole intro­ d. Distribution of separate portions of am­ duced two days earlier. United States v. phetamine and cocaine were separate for findings purposes with allegation of ­ DeMeio, 16 M.J. 157 (C.M.A. 1983) (sum­ mary disposition). See also United States possession of amphetamine and coacine v. Moss, 16 M.J. 183 (C.M.A. 1983). where possession charge was not based b. Wrongful introduction not multiplicious on the same substance. United States v. with possession with intent to distribute. Fair, 17 M.J. 1036 (A.C.M.R.1984). United States v. Zupancic. 3. Possession. C. When the amount of a substance pos­ a. Wrongful possession of drug parapher­ sessed is greater than that introduced, a nalia in violation of regulation was multi­ specification alleging possession of the plicious only for sentencing with the excess amount is not multiplicious for fin­ simultaneous possession of hashish. ding with specification alleging introduc­ United States v. Bell, 16 M.J. 204 (C.M.A. tion. United States v. Morrison, 18 M.J. 1983) (summary disposition), citing 108 (C.M.A. 1984) (summary disposition). United States 2). Hughes, 1 M.J. 346 d. Wrongful importation of drug in violation (C.M.A.1976); United States v. Wfm,8 of regulation multiplicious for findings M.J. 66, 70 (C.M.A. 1979); but see pos­ with wrongful possession of the same session of smoking device found in cup drug. United States v. Beclsley, 14 M.J. board below kitchen sink not multipli­ 206 (C.M.A.1982) (summary disposition). cious with possession of hashish stuffed e. Wrongful introduction of marijuana with in the kitchen sink. United States v. intent to distribute not multiplicious with Ramirez, 526999 (A.F.C.M.R. 16 Sept. wrongful distribution. United States v. 1983) (unpub.). Bees&, 16 M.J. 988 (A.C.M.R. 1983). b. Wrongful introduction and possession of Wrongful introduction of marijuana not some drug is multiplicious for findings. multiplicious with possession with intent United States v. Hill, 18 M.J. 469 (C.M.A. to distribute. United States v. Zupartcic, 1984). 18 M.J. 378 (C.M.A. 1984). c. Possession of drug multiplicious for find­ 2. Distribution. ings with the importation of drug into a. Possession of marijuana is a lesser in­ Germany. United States v. Magg, 16 M.J. F 37 DA Pam 27-60-148

183 (C.M.A.1983) (summary disposition); h. Possession of cache of marijuana seized in United States v. Anderson, 16 M.J. 444 one part of town was separate for sen­ (C.M.A.1983) (summary disposition). tencing from sale of marijuana in another d. Two separate possession of drug charges part of town. United States v. Isaacs, 19 were multiplicious for findings when M.J. 220 (C.M.A.1985). both possessions resulted from two sales i. 90 specifications alleging wrongful pos­ of the drug on the same day from one session, use, transfer, sale and intro­ cache of drugs. United States v. Her­ duction of drugs were not multiplicious 4 nandez, 16 M.J. 674 (A.C.M.R.1983). where each specification represented a e. Wrongful possession of residue of mari­ separate incident. United States v. juana in a smoking device multiplicious Nugent, 16 M.J. 419 (C.M.A. 1983)(sum­ for findings with wrongful possession of mary disposition). 1.54 grams of marijuana. United States v. j. Possession of remainder of ISD was not Wilson, 16 M.J. 67 (C.M.A.1982); United multiplicious for sentencing with earlier States v. Anglin, 16 M.J. 1010 (A.C.M.R. transfer and use of a smaller portion of 1983). his LSD cache. United States v. Worden, f. Possession of drugs is a lesser included of­ 17 M.J. 887 (A.F.C.M.r.1984). fense of distribution of the same amount k. Possessionof marijuana in plant form was of drug at the same time and place. multiplicious for findings with possession United States v. Zubko, 18 M.J. 387 of marijuana in hashash form. United (C.M.A. 1984), distinguishing United States v. Smith, CM 445179 (A.C.M.R.22 States v. Maginley, 32 C.M.R.445 (C.M.A. June 1984) (unpub.). 1963) which held that possession not 4. Use. multiplicious with sale of same drug. a. Use of drug was not multiplicious for 8- Simultaneous possession of different sentencing with sale of drug. United drugs was multiplicious for sentencing. States v. Smith, 14 M.J. 430 (C.M.A. United States v. Pattm, 17 M.J. 405 1983). (C.M.A. 1984), citing United States v. b. Use of heroin was multiplicious for find­ P Hughes, 1 M.J. 346 (C.M.A.1976); United ings with possession of the same amount States v. Holsworth, 7 M.J. 184, 187 of heroin at the same time and place. (C.M.A. 1979). Consolidation, not dis­ United States v. Bullington, 18 M.J. 165 missal, was appropriate remedy for simul­ (C.M.A. 1984); United States v. Bulling­ taneous possession of different drugs. ton, 18 M.J. 164 (C.M.A. 1984); United United States v. Archie, CM 443354 States v. Chandler, 18 M.J. 435 (C.M.A. (A.C.M.R.13 Oct. 1983) (unpub.). 1984Xsummary disposition). Navy Court Fires Torpedo at the Court of Military Appeals Ifearfor the stability and soundness of the that a trial court's decision to exclude defense future of military law and its adminis­ evidence of the accused's military duty per­ tration when rules of evidence and other formance was proper under the facts of the procedural and substantive pronounce­ case. This opinion, featuring a well-written, ments issuing from Congress and the sometimes overstated, concurring opinion by President are disregarded and, in their Judge Phillip Barr, takes exception to the inter­ stead, are erected rules based on the per­ pretation of Military Rule of Evidence 404(a)(1)2 4 sonal predilections and procliwities of judges. 2Manual for Courts-Martial, United States, 1984, Military Rule of Evidence 404(aX1) [hereinafter cited in text as Rule] v- In United States v. McConnell, the Navy- provides: Evidence of a person's character or a trait of a Marine Court of Military Review determined person's character is not admissible for the purpose of prov­ ing that the person acted in conformity therewith on a par­

~~ ticular occasion, except: (1) Evidence of a pertinant trait of 'United States v. McConnell, CM 84-2787, slip. op. at 20 the character of the accused offered by an accused or by r": (N.M.C.M.R.,3 1 Jan. 1985) (Barr, J., concurring). the prosecution to rebut the same. DA Pam 27-60-148 98

n by the Court of Military Appeals. effort toward civilianhation-they have all but made the voyage complete.6 In McConnell, the accused was charged with the unlawful use of cocaine in violation of Arti­ In Clemons, the accused was charged with com­ cle 134of the Uniform Code of Military J~stice.~ mitting acts of larceny during a period of time The evidence against the accused consisted of in which he was on duty as the unit charge-of­ the results of a urinalysis. The accused denied quarters. The Court of Military Appeals held 6 ever using cocaine and sought to introduce two that the proffered evidence of the accused’s Enlisted Performance Reports as evidence of good military character and character for law­ military character. He did not introduce them fulness each “evidenced ‘a pertinent trait of as evidence of his general character or his repu­ the character of the accused’.”e tation for law abidingness. One year later, in the case of United States w. On appeal, the court found that the case did Butt,’ the Court of Military Appeals held that not involve a peculiarly military offense or the accused’s good character as a drill instruc­ violation of specific orders, specific military tor was unquestionably admissible where the duties, or a defense concerning the perfor­ accused had been charged with committing an mance of a specific duty or a neglect of such a assault against a trainee while acting in his duty. Furthermore, the court found that there capacity as a drill instructor. Also, on the same was no other theory of the case to which sol­ day, the Court of Military Appeals held in dierly virtue was directly relevant. For these United States w. McNeilP that the trial judge reasons, the court held that the evidence was ir­ had erred when he failed to admit evidence of relevant under Rule 404(a)(1). the accused’s good general military character where the accused had been charged with com­ In his Concurring opinion, Judge Barr focused mitting sodomy upon a officer candidate on the case of United States Clemod and its w. trainee while acting in his capacity as a drill in­ progeny in which the Court of Military Appeals J structor. Further, in the case of United States has construed the meaning of “pertinent trait v. Kahukauwila,~the Court of Military Appeals of character” contained in Rule 404(a)(l). held that the military judge erred when he Judge Barr argues that the Court of Military Ap­ denied the defense an opportunity to present peals has exercised its power to override the evidence of the accused’s excellent work per­ plain meaning of Rule 404(a)(1) and has created formance, his record of dependable leadership, its own rule of relevance regarding character and testimony concerning his outstanding evidence: military appearance. The accused in The true reason the issue in the instant Kahakuuwila was charged with violating Naval case has been raised for consideration is regulations by possessing, transferring, and sell­ that the signals of decision emanating ing marijuana. The manner in which the accus­ from the Court of Military Appeals have ed was charged seemingly provided the Court of both sounded the reincarnation of the old Military Appeals the basis for its decision. The Manual provisions and indicated that pure Court reasoned that: federal law, not the intent of the drafters Here the offense of selling maauana was of the Military Rules of Evidence-and charged as a violation of Naval regula­ hence the President-is to be applied in trials by court-martial. The cases which provide these signals more than hint at an =United States v. McConnell, slip. op. at 6 (Barr, J., con­ curring). O16 M.J. at 47. ‘17 M.J. 442 1984). Wniform Code of Military Justice art. 134, 10 U.S.C. (j 934 (C.M.A. (1982). 817 M.J. 451 (C.M.A. 1984). 416 M.J.44 (C.M.A. 1983). e19 M.J. 60 (C.M.A. 1984). 39 DA Pam 27-60-148

tions. Evidence of the accused‘s perfor­ The accused’s military character is an impor­ mance of military duties and overall tant and sensitive consideration in nearly every military character was admissible to show criminal case. Indeed, it can be the single most that he conformed to the demands of important aspect of a defense case. An example military law and was not the sort of person is the McNeiZ case where, after the accused’s who would have committed such an act in character evidence was disallowed on the violation of regulations.lo merits but introduced during sentencing, the panel members sought to reconsider their find­ Will the McConneZL case cause the Court of ings.13 It is clear that trial counsel are faced Military Appeals to “heave to”? It seems not to with a difficult dilemma in determining have affected the Army Court of Military whether to challenge the admissibility of this Review. On 2 1February 1985, in United States form of evidence and risk reversal of the case v. Addism,ll the accused, a staff sergeant, was on appeal or to refrain from such a challenge. charged with willful disobedience of an order to Indeed, trial counsel must have faced this provide a urine sample, wrongfully ordering a dilemma in Clemons.14Unquestionably, the key subordinate to provide a substitute urine sam­ to this dilemma, notwithstanding the admis­ ple, and obstructing justice. The central issue in sibility of the character evidence, is to prepare this case was whether the accused’s defense an effective cross-examination of witnesses counsel could properly waive the issue of po­ who testify for the accused. In close cases, or in tential unlawful command influence. In review­ cases where the character evidence has no ing this issue, the Army Court of Military logical relevance to the nature of the offme,16 Review gratuitously offered the following com­ the McConnell case provides an excellent basis ment: “Under the facts and circumstances of for thoughtful argument against the admissi­ the case under consideration, we find that evi­ bility of character evidence, especially the type dence of the appellant’sgood military character found relevant by the Court of Military Appeals and his character for lawfulness would have in the Kuhakuuwilu case. been relevant and material at his trial.”12 Even so, the McCmnelZ case has vitality and provides a thought provoking view of the law which has developed around the issue of character evidence. While Judge Barr views the Clemons case as more a gesture of legal altruism than legal acumen, he finds the Piatt and McNeil decisions to be consistent with, and legitimate off-spring of, Clemons and, more ap­ propriately, in consonance with Rule 404(a)(1). He is stridently opposed to the Kahukauwilu 1319M.J.at 62. decision because he sees it not only as an errant “16 M.J. at 45 (trial counsel moved in limine to prevent in­ opinion but one which portends a continued troduction of the appellant’s general good character). misapplication of Rule 404(a)(l) by the Court of 16lJnited States v. McConneEl, slip. op. at 15 (Barr, J., Military Appeals. concurring). In this regard, Judge Barr held: “If the accused in Kahakauwila had been charged under Article 112A, UC- MJ, as now required, the proffered evidence could not be held admissible under the standard set forth in the case. The same result would have been obtained had the charge been laid under Article 134, as a violation of federal statute. Under either of these two methods of pleading a l018i M.J. at 62 drug offense, the only way such evidence could be admis­ sible would be to return to the law of para. 13u, MCM, “United States v. Addison, CM 2512 (A.C.M.R. 21 Feb. 1969-a law which was specifically and unequivocally re­ 1985). jected by the President in promulgating Rule 404(a)(l), Mil. Wd., slip. op. at 6 R. Evid.” Id. DA Pam 27-60-148 40 - Reader’s Note: The “Rescue Doctrine” mefollowing reader’s note was provided by regarding the accused’s responses to the desk Captain J. Rank Burnette, Appellate Counsel, sergeant’s questions on the basis of Article 31. Government Appellate Division, USALSA]: The Army Court of Military Review held that the accused’s responses were admissible pur­ Recently, the Army Court of Military Review, suant to the “military rescue do~trine.”~The in United States v.Jones,’ adopted a limited ex­ military rescue doctrine excuses the traditional ception to the Mirandu and UCMJ art. 31* warning rights requirements when the possi­ warning requirements. Jones concerned an ac­ bility exists of saving human life or avoiding cused who reported to a Military Police desk serious iqjury by rescuing the one in danger, sergeant that someone was “hurt real bad.” and the situation is such that no course of ac­ When the desk sergeant asked how badly the tion other than questioning of a suspect prom­ reported victim was iqjured the accused re­ ises relief. The military rescue doctrine is dis­ plied, “I stabbed him.” The desk sergeant tinguishable from the rule enunciated in People called the dispensary and relayed questions to Riddle,‘ in that an analysis of the the accused concerning the extent of the in­ v. questioner’s subjective motivation is not re­ juries to the victim and queried the accused quired. Rather, the application of the military regarding the location of the iqjured victim. At rescue doctrine is determined through an ob­ trial, the military judge excluded testimony jective examination of the facts preceding ques­ tioning. ‘United States v. Jones, CM 443620 (A.C.M.R. 27 Feb. 1985). %lip. op. at 10-11. Wniforrn Code of Military Justice art. 31, 10 U.S.C. 5831 (1982). ‘148 Cal. Rptr. 170 (Ca. App. 1978).

The Advocate A Journal for Military Defense Counsel

1984 Guilty Plea Checklist

Table of Contents* Topic 0: Instruction on Sentence 49 Topic P: Deliberations and Announcement Topic G: Pretrial Agreement 41 of Sentence 60 Topic H: Findings 43 Topic Q: Record of Trial and Topic I: Multiplicity 43 Authentication 61 Topic J: Assembly of the Court Topic R: Post-trialComment and Review 62 and VoirDire 43 Topic S: Action, Deferment, and Topic K: Sentending: Matters in PromulgatingOrder 63 Aggravation and Rebuttal 44 Topic T Appellate Rights 67 Topic L: Sentencing: Matters in Topic U: Appellate Review 67 Extenuation and Mitigation 46 Topic M: Trial Counsel’sArgument 47 ‘Topics A-F appear in the March 1985 issue of The Any Topic N: Defense Counsel’sArgument 49 hvrym F 41 DA Pam 27-50-148

(? Topic +Pretrial Agreement nize PTA terms and impact). 1. Did the MJ ascertain whether a pretrial agree­ (3) Key #161, 152. ment (PTA) existed? a. Campbell, 17 M.J. 666 (A.F.C.M.R. (a) RCM 9lO(f)(2) provides that parties shall in­ 1983)(MJ must insure that his under­ form MJ if a PTA exists. standing of the PTA is the same as (b) Key #150. the accused’s and counsel for both Elmore, 1 M.J. 262 (C.M.A. 1976)(concuning sides). opinion sets forth MJ’s responsibilities in b. Williams, 13 M.J. 843 (A.C.M.R. dealing with pretrial agreement). 1982) (where sub ma clemency (c) Key #151, 152. agreement (which was not a part of (1) Green, 1 M.J. 453 (C.M.A. 1976) (failure the plea bargain) was conditional on to conduct Elmore inquiry will affect accused giving testimony and not on providence). his guilty plea, and dispute existed (2) King, 3 M.J. 458 (C.M.A. 1977) (Sub­ over whether TC was required to stantial compliance with Green re­ recommend clemency or to consider quired). recommending clemency, FTA terms (e) Wilson, 4 M.J. 687 (N.C.M.R. 1977) were interpreted in accused’sfavor). (non-compliance with Green required (4) Key #301. reversal). Dyer, 5 M.J. 643 (A.F.C.M.R. 1978) (CA 2. If a PTA existed, did the MJ assure on the record: properly ordered limited post-trial hear­ (a) Key #150. ing to correct MJ’s omission during his Cooper, 17 M.J. 1062 (A.F.C.M.R. 1984) inquiry into circumstances surrounding (record did not establish that formal or infor­ PTA). mal PTA existed regarding substitution of (5) Key #321. general discharge for BCD in return for ac­ Cameron, 12 M.J. 598 (A.C.M.R. cused’s cooperation in other cases). 1981)(DC may be guilty of fraud if he (b) That the accused understood the meaning denies the existence of sub ma agree­ and effect of each condition of the PTA by ments and constraints on motions at trial P questioning accused? and then later asserts them on appeal). (1) RCM 91qfX4XA) provides that the MJ (d) That accused understood the sentence limita­ shall insure that the accused under­ tions imposed by the PTA by questioning ac­ stands each condition. cused? (2) Key #150. (1) RCM 91qfX4XA) provides that the MJ Mann, 16 M.J. 671 (A.C.M.R. insure that the accused understands the 1983Xwhere both counsel explained PTA. consequences of guilty plea, MJ con­ (2) Key #151, 152. ducted extensive inquiry, and accused a. Campbell, 17 M.J. 666 (A.F.C.M.R. was not naive recruit, accused was not 1983) (MJ, on the record, must insure pressured into PTA). that the accused understood the sen­ (3) Key #151. tence limitations). I Campbell, 17 M.J. 666 (A.F.C.M.R. b. Craig, 17 M.J. 540 (A.C.M.R. 1983) 1983) (on the record, MJ must insure (MJ’s failure to review PTA sentence that accused understands all PTA limitations did not render plea im­ terms); Crawford, 11 M.J. 336 (C.M.A. provident where inquiry revealed 1981). that accused and counsel had clear (c) That his understanding of the PTA comports understanding of PTA terms). with the understanding of TC and DC regard­ c. Passini, 10 M.J. 108 (C.M.A. 1980) ing each condition of the PTA by questioning (counsel have duty to reveal any dis­ them? crepancy between PTA and their un­ (1) RCM 910(f)(4)(B) provides that the MJ derstanding); Dinkel, 13 M.J. 400 shall insure that the parties agree to the (C.M.A. 1982), G?-iego, 10 M.J. 385 terms. (C.M.A. 1981), Hinton, 10 M.J. 136 (2) Key #150. (C.M.A. 198l), Williamon, 4 M.J. Holicroft, 17 M.J. 1111 (A.C.M.R. 1984) 708 (N.C.M.R. 1977). n (court has obligation to carefully scruti­ DA Pam 27-60-148 42

7 (e) That no sub muagreements exist? (a) Duwson, 10 M.J. 142 (C.M.A. 1981) (post­ Key #El. trial misconduct clause was void because it (1) Campbell, 17 M.J. 666 (A.F.C.M.R. did not render due process). 1983Xon the record,MJ must insure that @) Gibson, 13 M.J. 687 (N.M.C.M.R. 1982) no sub rosa agreements exist between (Dawson was retroactively applicable). the parties). 8. Did TC/SJA attempt to withdraw PTA during (2) See Cum;Passini. course of trial? (3) Rosario, 13 M.J. 562 (A.C.M.R. 1982) Key #EO. (court may consider counsel’s affidavits RCM 705(d)(6)discusses withdrawal. concerning any possible undisclosed (a) William, 17 M.J. 893 (N.M.C.M.R. 1984) pretrial agreements). (generally, if government does not comply 3. Does PTA require accusedko-actor to testify with PTA terms, reviewing court must either against another? order compliance or allow accused to with­ (a) RCM 706(c)(2)(B) provides that an accused draw his pleas). may promise to testify as a witness. (b) Shephardson v. Roberts, 14 M.J. 354 (C.M.A. @) Key #291, 294. 1983) (discussion of government withdrawal 4. Does PTA inhibit exercise of appellate rights? from PTAs). Key #160. (c) Cameron, 12 M.J. 698, 600 n.2 (A.C.M.R. RCM 705(c)(1XB) prohibits any restriction of ap­ 1981) (unilateral withdrawal by government pellant’s exercise of appellate rights. was not authorized under ACMR interpre­ (a) Sharper, 17 M.J. 803 (A.C.M.R.1984) (PTA tation of PTA). terms which inhibited accused from exer­ 9. Is PTA ambiguous? cising his appellate rights were unenforce­ Key #160. able). RCM 91qfX4) provides that if the PTA is am­ (b) Milk, 12 M.J. 1 (C.M.A.1981)(Congresspro­ biguous, MJ should obtain clarification.‘ vided for full appellate review of court­ Cifmtes, 11 M.J. 385 (C.M.A. 1981) (parties’ martial convictions). understanding at trial controlled interpretation 5. Does PTA prohibit motions, objections, etc.? - of meaning and effect of PTA). Key #160, 162. 10. Did the PTA attempt to preserve pretrial mo­ RCM 706(cX1) sets forth prohibited terms. tionsheate a conditional guilty plea? Holland, 1 M.J. 68 (C.M.A. 1976) (PTA which RCM 910(a)(2)provides for conditional pleas. See provided that accused would enter plea prior to Section F, Item 20, in the March 1985 issue of The presentation of evidence on merits or presen­ Amy Lawyer. tation of motions was null and void). 11. If trial by MJ alone, did MJ delay looking at the 6. Did PTA waive Article 32 investigation? Wit­ sentence portion of the PTA until after he had nesses? determined sentence? (a) RCM 705(cXZ)(E)provides for waiver of Arti­ (a) RCM 910(f)(3) provides that MJ ordinarily cle 32 investigation and witnesses. shall not examine any sentence limitation (b) Key #128. contained in the agreement until after an­ Schcbffer, 12 M.J. 425 (C.M.A. 1982) (Article nouncing sentence. 32 waiver may be valid when proposed by ac­ (b) Key #161. cused and DC,but waiver may be improper if Rabago, 10 M.J. 610 (A.C.M.R. 1980) (MJ command or prosecutorial overreaching ex­ should not examine quantum portion until isted). after he has announced the sentence). (c) Key #160. (c) Key #269,326. West, 13 M.J. 800 (A.C.M.R.1982)(accused’s Sullee, 4 M.J. 681 (N.C.M.R.1977) (error for waiver of personal presence of witnesses sta­ judge to base sentence on PTA sentence tioned in Korea was provident where ac­ limits). cused assured MJ that he voluntarily and 12. May defendant enforce PTA& knowingly gave up right to personal appear­ RCM 706(d)(4)provides that the CA may either ance of witnesses). accept or reject accused’s offer to enter into 7. Does the PTA contain ancillary restrictivehn­ PTA . valid provisions? Key #150. RCM 706(c)(l)discusses prohibited terms. 43 DA Pam 27-60-148

Topic H-Findings 2. Are at least three members present for SPCM or 1. RCM 918-924. at least five members present for GCM? MCM 74; UCMJ arts. 61-63. MCM 4a; UCMJ art. 16. 2. Key #246, 246. RCM 806(b) requires the presence of court mem­ (a) Lagan, 16 M.J. 1084 (A.F.C.M.R. 1983) (fail­ bers except in certain situations. ure to make findingsto a charge is immaterial 3. Were a substantial number of members absent because an accused’scriminality is determin­ without CA approval? ed by the findings as to the specifications, (a) Key #91; MCM 41c. not the charge; failure to designate an article RCM 806(b) requires the presence of court of the Code in the charge, or designating the members except in certain situations. wrong article, is also immaterial). Colon, 6 M.J. 73 (C.M.A. 1978) (unexplained (b) Dilday, 47 C.M.R. 172 (A.C.M.R. 1973) absence of 40% of court members required (failure of the court to announce findings as reversal). to a specificationis the equivalent of no find­ (b) Key #321. ing and requires reversal). Flowers, 7 M.J. 669 (A.C.M.R. 1979) (un­ (c) Barnes, 60 C.M.R. 626 (N.C.M.R. 1976) authorized absence of one of seven members (failure of court to make findings as to three was insubstantial). specificationswas not prejudicialwhere each 4. Was counsel allowed adequate voir dire? specification was the only specification Key #92; MCM 6%. under three different charges and the ZICCUS­ RCM 912(d) discusses conduct of voir dire. ed pled guilty to these specifications and (a) Tippitt, 9 M.J. 106 (C.M.A. 1980) (it is ap charges; however, result would be different propriate to allow counsel wide latitude in if there had been more than one specification voir dire, but there is some limit to hypo­ under the charge or if the offenses had been thetical questions). contested). (b) Slubowski, 7 M.J.461 (C.M.A. 1979)(MJ may (d) hmun, 16 C.M.R.346 (A.B.R. 1945) (where conduct voir dire and provide counsel oppor­ court did not expressly find accused guilty of tunity to ask additional questions). the specific allegations contained in the 6. Did any member exhibit “inelastic attitude” dur­ specification but only made findings with ing voir dire? respect to the excepted and substituted Key #88,MCM 6m13). words, findings and sentence must be set RCM 912(fXl)(N) discussion states that an in­ aside). elastic opinion regarding sentence is ground for (e) Massie, 4 C.M.R. 828 (A.F.B.R. 1962) (no challenge. finding of guilty to the specification having (a) Davenpcn-t, 17 M.J. 242 (C.M.A. 1984) (pre­ been announced, a finding of not alty sidposition was overcome by articulate dis­ thereto was the only alternative). claimer by member). T ~ I-Maltiplicityc (b) Hayden, 17 M.J. 749 (A.C.M.R. 1984) (pre­ Multiplicity is a ‘compfkx; Tast-changing topic whose disposition is inelastic when it will not yield scope is outside the 1984 GPC. to the evidence presented and the MJ’s in­ Topic J-Assembly of the Conrt and VoirDire structions; members predisposition was in­ 1. Was rank used as a device for deliberate ex­ elastic when he said there was no place in the clusion of court members? Army for this type of offender and there was (a) MCM 4c. 96% probability he would aaudge a punitive RCM 502(a),(l) sets forth qualifications to discharge). serve as a member. RCM 912(f)(1) sets forth (c) Harris, 13 M.J. 288 (C.M.A. 1982) (dis­ disqualifications to serve as a member. claimers insufficient as matter of law to over­ (b) Key#80. come bias; must be delivered in truthful man­ Yager,7 M.J. 171 (C.M.A. 1979) (routine ex­ ner; and even if sincere may be overcome by clusion of members below E-3 was facts on record). permitted). (d) ’ki.ppitt, 9 M.J. 106 (C.M.A. 1980) (merely (c) Key #86. leaning toward discharge and willingness to Daigle, 1 M.J. 139 (C.M.A. 1976) (generally, consider other evidence was only predispo­ rank may not be used as a device for exclud­ sition, not inelastic attitude). McGowan, 7 ing court members). M.J. 206 (C.M.A. 1979); RQjas, 16 M.J. 902 (N.C.M.R.1983). DA Pam 27-60-148 44 - (e) Kames, 1 M.J. 92 (C.M.A. 1975) (predis­ without new orders). position to discharge accused based on (d) Key #280. nature of offense with inability to conceive Garcia, 16 M.J. 864 (A.C.M.R.1983) (if CA of any mitigating circumstances was in­ excuses member after assembly, good cause elastic). must be established on the record). 6. Did appellant use peremptory challenge? (e) Key #317. Gladden, 1 M.J. 112 (C.M.A.1976)(post-trial Key #92; MCM 62e; UCMJ art. 41. I RCM 912(g) provides that each party may chal­ orders confirming oral orders placing a lenge one member peremptorily. member on the court were subject to rebuttal (a) Holley, 17 M.J. 361 (C.M.A.1984)(MJ has no and discovery by appellate defense counsel). discretion to grant additional peremptory 9. Are 45 of court members present EM if trial with challenge). EM was requested? (b) Harris, 13 M.J. 233 (C.M.A. 1982) (use of MCM 61a; UCMJ art. 2qcX1). peremptory challenge against member RCM 806(b) requires ‘h EM if enlisted accused re­ waives challenge for cause against him unless quested EM. some evidence in record that would have See also Topic D in the March 1986 issue of The used peremptory challenge against someone Army Lawyer. else). Topic K-Sentencing: (c) Brown,13 M.J. 890 (A.C.M.R.1982)(if possi­ Matters in Aggravation and Rebuttal ble, picking law enforcement personnel to See McLeod, Opening the Door: Scope of Government serve on courts-martialshould be avoided; if Evidence on Sentencing, 12 Advocate 77 (1980); Fer­ unavoidable, search carefully for bias). rante, Sentencing Arguments: Defining the Limits of (d) Lenoir, 13 M.J. 462 (C.M.A. 1982) (where Advocacy, 13 Advocate 268 (1981); AR 27-10. challenge for cause erroneously denied, AC- 1. Are Article 16s properly completed in all re­ MR’s reassessment of sentence was not ap­ spects? propriate remedy and sentencing rehearing (a) MCM Chap. XXVI; UCMJ art. 16; MCM, 1984, was required at least). Part V, discusses NJP. r (e) Lee, 31 C.M.R. 743 (A.F.B.R.1961) (even if (b) Key #264. last challenge causes additional members to HUYTZS, 10 M.J. 694 (A.C.M.R.1981) (opin- I be appointed, it is still last peremptory ion contains all relevant case law to date con­ challenge). cerning properly completed DA Form 2627: 7. Did any court members have knowledge of prior NJP record with immaterial mistakes is ad­ convictions not admitted at trial? missible. Material mistakes In NJP record Key #88; MCM 62b. may be supplemented by independent credi­ RCM 912(f) provides various grounds for dis­ ble evidence and considered in sentencing. qualification. Apparently proper NJP record may be shown (a) Watson, 16 M.J. 784 (A.C.M.R.1983) (knowl­ by independent credible evidence to be in­ edge of prior misconduct of accused by admissible. Sometimes, MJ may interrogate members was found not prejudicial). accused to obtain independent evidence (b) Warborg, 36 C.M.R. 188 (C.M.A. 1966) necessary to make NJP record admissible. (without limiting instruction, knowledge by Material omissions in NJP record include member of prior convictions not admitted in failure to advise of right to counsel, failure to evidence was prejudicial). show personal waiver of right to trial, failure 8. Are all court members on orders to sit? to show personal waiver of right to appeal, (a) MCM 61a. and if appeal made, failure to reflect its out­ RCM 912(fXlXB) disqualifies member not come and an appropriate legal review. Lack properly detailed. of legible date in NJP record is immaterial (b) Key #81. omission unless there is double punishment Robertson, 7 M.J. 607 (A.C.M.R. 1979) (initial issue. Failure to object to minor deficiency in orders may appoint EM as long as they serve NJP record is waived unless plain error. only pursuant to accused’s written request (c) Key #272. for trial with EM). Beuudicm, 11 M.J. 838 (A.C.M.R. lg8l) (in­ (c) Key HI. complete Article 16 was Inadmissiblebecause Herrington, 8 M.J. 194 (C.M.A. 1980) (mem­ of illegible signature and elections but was ber excused by CA may return to court waived by failure to object). ch

f , 46 DA Pam 27-50-148 /- (d) Key #314. ticle 16 violated his constitutional right against McCayl,12 M.J. 760 (A.C.M.R.198l)(failure self-incrimination), reversing Spivey, 10 M.J. 7 to object to Article 16 form which did not (C.M.A.1980) and Mutthaus, 6 M.J. 367 (C.M.A. reflect legal review waived defect). 1979). 2. Have NJP records been maintained in accord­ 6. Do specifications in previous convictions and ance with law and regulations? NJP records state an offense? MCM 133c. MCM, 1984, Part V(8) provides that Key #16. the Secretary may prescribe regulations for NJP (a) Atchh, 13 M.J. 798 (A.C.M.R.1982) (Arti­ I records. See AR 27-10, para. 3-16. cle 16 form was admissible even if specifi­ I (a) Dyke, 16 M.J. 426 (C.M.A. 1983) (admission cation was insufficient for a court-martial,as of NJP record without signatures was plain long as accused was apprised of the nature of error requiring sentencing rehearing). the misconduct constituting specific UCMJ (b) Cisneros, 11 M.J. 48 (C.M.A. 1981) (for violation). enlisted accused with less than three years of (b) Eberhardt, 13 M.J. 772 (A.C.M.R.1982)(NJP service, NJP record must be removed from allegation must be sufficient to protect accused’s records after two years). against double punishment). 3. Did trial counsel introduce evidence of military 7. Have the entries in the personnel records been or civilian convictions of the accused? made in accordance with law and regulations? RCM lOOl(bE(3) governs admissibility of con­ MCM 766(2). victions. Note that there is no longer any time RCM 1001(b)(2) discusses introduction of per­ limit. Basically,any conviction is admissible once sonnel records. a sentence has been actjudged, whether or not (a) Key #261. currently under review. Proof is by any evidence Brown,16 M.J. 36 (C.M.A. 1982) (where no I admissible under MRE. evidence that accused apprised of entries of 4. Do summary court-martial convictions reflect adverse matter in his record and offered op­ compliance with Booker (requisite written con­ portunity to make written response, record senWwaivers)? not maintained in accordance with regula­ (a) Key #262. tion and inadmissible). (1) Yanez, 16 M.J. 782 (A.C.M.R. 1983) (b) Key #264. (typewritten entry on unauthenticated Yong, 17 M.J. 671 (A.C.M.R. 1983) (where DD Form 468 containing record of trial NJP records not made or maintained in ac­ by SCM was sufficient proof of Book cordance with departmental regulations, er­ compliance to allow admission of SCM ror to admit over objection; government may promulgating order). not prove NJP by commander’s testimony). (2) Booker, 6 M.J. 238 (C.M.A. 1977) (re­ 8. Did trial counsel introduce letters of reprimand? quirements not met in SCM record itself RCM 1001(b) governs introduction of personnel may be shown by other documents in records. allied papers). (a) Boles, 11 M.J. 196 (C.M.A. 1981) (letter of (b) Key #263. reprimand for uncharged misconduct inad­ (1) Taylor, 12 M.J. 661 (A.C.M.R. 1981) missible). (failure to establish compliance with (b) Bozkter, 12 M.J. 44 (C.M.A. 1981) (likewise, Bookm in SCM was waived by DC’s fail­ even without defense objection where it ure to object). would tend to prejudice accused as to sen­ (2) Booker, 6 M.J. 238 (C.M.A. 1977) tence). (Booker requirements for SCM are the 9. Were all forms properly authenticated? same as for Art. 15; where record failed Key R62. to establish valid waiver of counsel in Juramillio, 13 M.J. 782 (A.C.M.R.1982) (docu­ SCM, it cannot be used to enhance ment showing accused was in RetrainingBrigade punishment in subsequent CM proceed­ inadmissible without evidence authenticated by ings). someone who had a duty to maintain record). 5. Did MJ question accused to establish Book 10. Were accused’s admissions during providency in­ criteria? quiry used in aggravation? Key #264. Brooks, 43 C.M.R. 817 (A.C.M.R. 1971) Suw,16 M.J. 113 (C.M.A.1983) (compelling ac­ (accused’s responses during providence inquiry cused to establish the basis of sdmissibilityof Ar­ may not be considered in determining sentence). ~

DA Pam 27-60-148 46

11. Did government witness recommend specific silent was error, but no prejudice). sentence? (d) Key #326. Key #261,331. Pilgrim, 2 M.J. 1072 (A.C.M.R. 1976), p­ Jenkins, 7 M.J. 604 (A.F.C.M.R. 1979) (MJ tition denied, 3 M.J. 92 (C.M.A. 1977) (MJ’s abused discretion in permitting government wit­ failure to advise accused of right to remain ness to recommend to court that accused be silent was error, but no prejudice). given maximum imposable punishment). 2. Did DC fail to offer available evidence in ex­ 12, Did government rebuttal evidence exceed proper tenuation and mitigation? rebuttal? MCM 76c. Key #166. RCM lOOl(cX1) provides for matters in mitiga­ Shaomake, 6 M.J. 710 (N.C.M.R. 1978) (gov­ tion. E.g.,Wood v. Georgia,460 U.S.261 (1981) ernment may rebut facts but may not impeach (DC has duty to convince court to be lenient; accused’s credibility). failure to do so is 6th amendment violation). Key #262 3. Were character witnesses improperly denied? (a) Annstv, 12 M.J. 766 (A.C.M.R. 1981) Key #186; MCM 76e. (where accused testified that he liked the RCM 1001(e) discusses production of witnesses. Army and wanted to stay in, was error to ad­ (a) Courts, 9 M.J. 286 (C.M.A. 1980) (right to mit rebuttal evidence he was a poor soldier have testimony of witness in trial or sen­ and committed other acts of misconduct). tencing includes only witness whose testi­ (b) Hughm, 6 M.J. 783 (A.C.M.R. 1978)(TC may mony is material). not use administrative discharge request to (b) Scott, 6 M.J. 431 (C.M.A. 1978) (denial of rebut accused’stestimony of desire to remain testimony of material witness at sentencing in service). hearing required sentence rehearing). Key #266. 4. Did MJ preclude or limit accused from testifying Warren, 13 M.J. 278 (C.M.A. 1982) (accused’s about the offenses of which accused had been apparently false testimony may not be used to found guilty? enhance sentence, but may be used to consider Key #261, 262; MCM 7642). likelihood of accused’s rehabilitation). RCM lOOl(c)(2) provides for statements by the 13 Did TC present opinion evidence as part of the accused. Teeter, 16 M.J. 68 (C.M.A. 1983XMJ did case in aggravation? not err in excluding accued’s alibi testimony, RCM 1001(b)(6) provides that TC may present which did not even marginally relate to matters opinion evidence concerning accused’sduty per­ in extenuation or mitigation, during sentencing formance and protential for rehabilitation. phase of trial). Topic L-Sentencing: Matters in 6. What evidence is admissible in extenuation and Extenuation and Mitigation mitigation? 1. Did MJ personally advise the accused of his rights MCM 7643). to allocution (present sworn testimony or un­ RCM 1001(c)(3) deals with the relaxed rules sworn statement, remain silent, witnesses, docu­ of evidence in matters of extenuation or miti­ ments)? gation. (a) MCM 76. Key #261. RCM lOOl(a)(S) requires MJ to personally ad­ Morgan, 16 M.J. 128 (C.M.A. 1983)(if TC on vise accused of allocution rights. sentencing offers part of accused’spersonnel (b) Key #266. records, the DC may require him to produce (1) Noman, 16 M.J. 937 (A.C.M.R. 1983) relevant omitted portions; also, if TC is com­ (MJ’s failure to advise accused of his pelled to produce favorable parts of per­ right to remain silent during presen­ sonnel file, he is not entitled to rebut them). tencing portion of trial was error; no Key #323. prejudice but reassessed sentence any­ Williams, 12 M.J. 1038 (A.C.M.R. 1982Xif way). evidence was admissible under MCM for TC, (2) Hawkins, 2 M.J. 23 (C.M.A. 1976) (MJ’s evidence was also admisible for DC). failure to personally advise accused of 6. Was a summary court-martiaVArticle 16 used to allocution rights is error). impeach a defense witness? (c) Key #323. Key #193, 323; MCM 76d. Barns, 6 M.J. 366 (C.M.A. 1979) (MJ’s RCM 1001(d) discusses rebuttal and surrebuttal failure to advise accused of right to remain during sentencing. e 47 DA Pam 27-60-148

(a) Wawen, 15M.J. 776 (A.C.M.R. 1983)(MJ did argument sua spmk?; sentence was re­ not abuse his discretion by declining to rule assessed); see also Richardscnz, 6 M.J. 645 in advance of accused’s testimony that his (N.C.M.R. 1978); Brooks, 43 C.M.R. 817 previous conviction by summary court­ (A.C.M.R.) petition denied, 43 C.M.R. 413 martial could not be used to impeach him (C.M.A. 1971). where no indication existed that defense was 2. Did TC refer to witnesses who did not testify? prejudiced in any way). (a) MCM 726, RCM 919(b), M.R.E. 512. (b) Wilson, 12M.J. 652(A.C.M.R. 1981)(Art. 15 (b) Key #265, 325. punishments may not be used for impeach­ (1) TC may not comment on failure of ment purposes). defense to call witnesses. (c) Cofield, 11 M.J. 422 (C.M.A. 1981)(summary See generally Taw, 49 C.M.R. 590 court-martial convictions may not be used for (A.C.M.R. 1974). impeachment purposes). (2) ButseeSimmons, 14 M.J. 832 (A.C.M.R. 7. Did any improper cross-examination of ac­ 1982)(TC’s erroneous argument was not cusedldefense witness occur? prejudicial where accused received BCD Key #325; MCM 754 MRE 6ll(b); RCM 1001(d). instead of DD and CA reduced confine­ Donnelly, 13 M.J. 79 (C.M.A. 1982) (no preju­ ment from three years to 18months); see dicial error in allowing TC’s cross-examination of also Shows, 5 M.J. 892 (A.F.C.M.R. defense witness regarding accused’s prior mis­ 1978). conduct). 3. Did TC argue evidence for purposes other than 8. RCM 1001(c) provides that accused may also pre­ for which it was admitted? sent matters in rebuttal. See also MCM 75c(2). (a) See generally M.R.E. provisions. Topic M-Trial Counsel’s Argument (b) Key #193, 323. See Adams, Improper Trial Counsel Argument, 15 Wilson, 12 M.J. 662 (A.C.M.R. 1981)(TCcan­ Advocate 64 (1983); Ferante, Sentenciw Arguments: not use Article 15s to impeach accused’s Defining the Limits of Advocacy, 13 Advocate 268 truthfulness). (1981); CZqton, 15 M.J. 26 (C.M.A. 1983) (complete (c) Key k(236, 332 discussion). Collins, 3M.J. 518(A.F.C.M.R. 1977),ufld6 RCM 919; MCM 1969, para 72. M.J. 256 (C.M.A. 1979) (TC’s argument that RCM 919(c) provides that failure of DC to object to accused’s sale of LSD while assigned to improper argument before MJ begins to instruct the security police organization violated his trust members on findings constitutes waiver of that objec­ was improper, but no prejudice was found). tion. 4. If TC argued a specific intent greater than that 1. Did TC argue facts: encompassed by the charges, did appellant admit (a) Not supported by evidence before the court? the intent or was it proved by the evidence? MCM 726. Key #236. RCM 929(b) provides that arguments may Bethea, 3 M.J. 526 (A.F.C.M.R. 1977) (”C acted properly include reasonable comment on the improperly in attributing to accused a specific evidence, including inferences to be drawn criminal intent neither admitted by him nor therefrom. proved by the evidence). Key #236. 5. Did TC ask court members to put themselves in Smart, 17 M.J. 972 (A.C.M.R. 1984Xcounsel the place of the victim? must limit their arguments to evidence of Key #236, 265. record; MJ had obligation to act sua sponte (a) Hutchinson, 16 M.J. 1056 (N.M.C.M.R. 1983) when fair risk existed that improper argu­ (where TC told jurors that accused had ment would have appreciable effect upon brought agony to decedent’s family, no op­ court members); see also Young,8 M.J. 676 portunity had existed for the family to say (A.C.M.R. 1980), petition denied, 9 M.J. 15 goodbye to the victim, and that fathers could (C.M.A. 1980). perhaps sympathize, the argument was im­ (h) Elicited solely during providence inquiry? proper, but neither inflammatory nor preju­ Key #236, 265. dicial). Browm, 17 M.J. 987 (A.C.M.R. 1984) (where (b) Shamberger, 1 M.J. 377 (C.M.A. 1976) (TC’s trial counsel referred to information drawn argument which suggested that court from accued’s unsworn statement during members place themselves in victim’s hus­ providence inquiry, MJ had duty to stop band’s place exceeded bounds of propriety). DA Pam 27-60-148 - 6. Did TC appeal to class prejudice? would have upon military/civilian relations was Begley, 38 C.M.R. 488 (A.B.R. 1967) (TC acted improper). improperly by addressing his argument to 13. Did TC argue general deterrence to exclusion of enlisted panel members). all other factors? 7. Did TC suggest a specific sentence for the ap­ Key #266. pellant? RCM 1001(g)provides that TC may refer to gen­ Key #266; MCM 76f. erally accepted sentencing philosophies, in­ RCM 1001(g)provides that TC may recommend a cluding general deterrence. specific lawful sentence. F&h>, 17 M.J. 768(A.F.C.M.R.1983Xwhere Pegg, 16 M.J. 796 (C.G.C.M.R. 1983)(TC’s TC emphasized “deterrence,” MJ’s detailed argument raising sentence considerations curative instruction served to cure any preju­ was neither inflammatory nor beyond the dice). bounds of permissible comment on the in­ Kauble, 16 M.J. 691 (A.C.M.R.1983)(where formation before general court-martial general deterrence was merely mentioned as members). one factor for proper consideration in sen­ Baw, 16 M.J. 624 (A.F.C.M.R.1983) (TC’s tencing, MJ did not err in his failure to sua argument on general policies which did not sponte correct TC’s argument); see Watten­ suggest particular sentence was proper). barger, 16 M.J. 1069 (N.M.C.M.R. 1983); Rich, 12 M.J. 661 (A.C.M.R. 1981XTC can Geidl, 10 M.J. 168 (C.M.A. 1981); LaMLia, 9 argue for specific sentence greater than M.J. 100 (C.M.A. 1980). PTA); d. Razor, 41 C.M.R. 708 (A.C.M.R. 14. Did TC cite legal authority to court members? 1970)(TCacted improperly in recommending MCM 72b. a specific sentence). RCM 91W) states that counsel may not cite legal 8. Did argue that he was expressingthe views of authorities when arguing to members on find­ the CA? ings. (a) RCM 1001 (g) provides that TC may not in Rinehart, 24 C.M.R. 212 (C.M.A.1967). argument purport to speak for the CA. 16. Did TC argue his own personal opinions? MCM, 1969, para. 7W. Key #236. (b) Key #236. Horn, 9 M.J. 429 (C.M.A.1980).Falcon, 16 M.J. Kiddo, 16 M.J, 776 (A.C.M.R.1983)(TC may 628 (A.C.M.R. 1983) (TC argued improperly in not in argument purport to speak for CA or expressing personal opinion). refer to views of such an authority). 16. Did TC use language to inflame the passions of 9. Did TC express contempt for court members who the members? would not render a severe sentence? Key #236. Poteet, 60 C.M.R. 73 (N.C.M.R. 1976) (threat­ RCM 919(b) provides that TC should not make ening court members with spectre of contempt or arguments calculated to inflame passions or ostracism if they reject TC’s appeal for a severe prejudices. sentence exceeded the bounds of fair argument. See l’urner, 17 M.J. 997 (A.C.M.R. 1984); Clff- , 10. Did TC misstate the law? ton, 16M.J.26(C.M.A.1983);Nekm, 1M.J.236 Key #236. (C.M.A. 1976); Gama, 43 C.M.R. 376 (C.M.A. I Johnson, 1 M.J. 213 (C.M.A. 1976) (TC cannot 1971); Weller, 18 C.M.R. 473 (A.F.B.R. 1964); argue by implication that plea of not guilty is a Jernigan, 13 C.M.R.396 (A.B.R. 1963). matter in aggravation). 17. Did TC urge that higher ranking witnesses are 11. Did TC comment on appellant’s silence? more credible than lower ranking witnesses? MCM 726; see generally M.R.E. 612. Key #236, 248. Cordon,34 C.M.R.94 (C.M.A. 1983) (TC may not Ruggiero, 1 M.J. 1089 (N.C.M.R.) petition remark on accused’s failure to testify). denied, 3 M.J. 117 (C.M.A. 1977) may not 12. Did TC comment on military-civilian relations? assert that a person has increased credibility MCM 72b. because of his higher grade; man, 44 C.M.R. 63 RCM 9lW) discussion provides that the TC may (C.M.A. 1971). not comment on the probable effect of the court­ 18. Did TC argue that accused liedkommitted per- I martial’s findings on relations between the jury? military and civilian communities. (a) Key #236. I Cook, 28 C.M.R. 323 (C.M.A. 1969) (appeal to %mer, 17 M.J. 997 (A.C.M.R. 1084)(where court to predicate its verdict upon the effect it TC argued from the evidence that mused’s F 49 DA Pam 27-50-148 m testimony on a particular point was false (b) Key #248. under circumstancesin which he would have (1) Huggins, 12 M.J. 667 (A.C.M.R. 1981) known the truth, TC did not exceed the (substantial errors in MJ’s instructions bounds of permissible advocacy by branding on sentencing were not waived by fail­ the testimony a lie). ure to object). (b) Key #325. (2) he,29 C.M.R. 319 (C.M.A. 1960) See Cabebe, 13 M.J. 303 (C.M.A. 1982) (MJ’s (misinstruction by MJ may be cured by incomplete instructions which did not pro­ immediate correction by MJ). vide adequate guidelines of the effect of ap­ 2. Multiplicity. pellant’s possible lying during his testimony The law of multiplicity is changing rapidly. had improper effect on accused’s sentence). Please insure that any sentencing instructions Topic N-Defense Counsel’s Argument reflect current multiplicity law. See Bellows, Th,e Importance of the ClosingArgument 3. Did MJ tailor instructions to the evidence ad­ for the Defense in a Criminal Case, 12 Advocate 82 duced in extenuation and mitigation? (1980). (a) MCM 766(1). 1. Did DC argue directly or indirectly for a punitive RCM 1006(dX4) provides that members discharge without client’s express consent? should consider all matters in extenuation (a) Adam, 17 M.J. 604 (N.M.C.M.R. 1983) (DC and mitigation. did not err in arguing for suspended BCD (b) Key #266, 325. which was consistent with accused’sdesires). (1) Davidson, 14 M.J. 81 (C.M.A. 1982) (b) CJ McNally, 16 M.J. 32 (C.M.A. 1983)(DC er­ (MJ’s general instruction to consider all red in arguing for a BCD where there was no matters in extenuation and mitigation indication in the record that he did so pur­ was inadequate; as a matter of law, MJ suant to accused’s wishes). See also Cox,46 had duty to particularly instruct on pre­ C.M.R. 833 (A.C.M.R. 1972), and Tinch, 43 trial confinement). C.M.R. 565 (A.C.M.R. 1970)(although record (2) Morrison, 41 C.M.R. 484 (A.C.M.R. did not indicate whether accused desired to 1969); Wheeler, 38 C.M.R. 72 (C.M.A. r+- remain in the service or be separated, DC’s 1867) (failure to tailor instructions to argument conceding appropriateness of a evidence presented was error). punitive discharge was overly broad in GCM (3) Cook, 29 C.M.R. 395 (C.M.A. 1960) cases since a dishonorabledischarge could be (failure to instruct on mental impair­ encompassed therein. Sentences reassessed). ment as mitigating factor was error). (c) CJ We6b, 6 M.J. 406 (C.M.A. 1978) (DC’s 4. Did MJ instruct that Confinement at hard labor or argument for a suspended discharge where punitive discharge automatically reduces ap­ accused indicated a desire to remain in the pellant to lowest enlisted grade? Army was error. Sentence reversed). UCMJ art. 68(a). 2. Did DC fail to argue? KolefJ,36 C.M.R. 424 (C.M.A. 1966)(MJ must in­ Key #232 struct on automatic reduction provisions). (a) Sadler, 16 M.J. 982 (A.C.M.R. 1983)(accused 6. Where ivcreased punishment is authorized be­ was denied his right to effective assistance of cause of multiple offenses/prior convictions, did counsel where DC failed during sentencing to MJ so instruct? make an argument on sentence on his RCM 1003(d); MCM, 1969, paras. 76b and 127c. behalf). (a) Cavalier, 17 M.J. 573 (A.F.C.M.R. 1983) (ac­ (b) See Wood v. Georgia, 450 U.S. 261 (1981)@c cused was not entitled to instruction on sen­ has duty to convince court to be lenient; tence that BCD in effect was more severe . failure to do so constituted 6th amendment punishment than confinement at hard labor violation). for one year and total forfeitures). Topic O-Instruction on Sentence (b) Timmons, 13 M.J. 431 (C.M.A. 1982) (failure See MJ Benchbook, Chapter 2, Section V. of MJ to give augmented punishment instruc­ 1. Did the MJ instruct on’the correct maximum tion did not constitute prejudicial error authorized punishment? where neither counsel requested the instruc­ (a) MCM 76b(l), 81d, 110a(l), 127c; UCMJ arts. tion). 18-20. 6. Did MJ instruct on voting procedures: RCM 1005(eX1) provides for instructions on Key #266, 333. the maximum authorized punishment. Horn, 1 M.J. 227 (C.M.A. 1975) (failure to in- DA Pam 27-60-148 so

CC struct on voting procedure was error); Pryor, 41 M.R.E.509, The Army Lawyer, Nov. 1981, at C.M.R. 279 (C.M.A. 1970); Morrison, 41 C.M.R. 1. 484 (A.C.M.R. 1969). (b) Key #246; MCM 76a. That vote would be by secret written ballot? RCM 1008 deals with impeachment of MCM 76b(2). sentence. RCM 1005(e)(2) provides that the MJ shall M.R.E. 509 and 606(b). state the procedures for deliberation and (1) Martinez, 17 M.J. 916 (N.M.C.M.R. voting. 1984) (member may not testify con­ RCM 1006(d)(2)provides that proposed sen­ cerning anything during deliberations tences shall be voted on by secret written except to determine if members were ballot. subjected to extraneous prejudicial in­ That balloting would be on each proposed formation, improper outside influence, sentence in its entirety beginning with the or unlawful command influencej. lightest? (2) Witherspoon, 16 M.J. 252 (C.M.A. 1983) MCM 76b(l). Ciurors cannot impeach their verdict ex­ RCM 1005(d)(2) provides that the MJ shall cept when extraneous information has state the procedures for deliberation and been improperly considered). voting. 2. Did president properly announce sentence? RCM 1006(d)(3)(A) provides that the MJ in­ (a) MCM 76c. struct that the members start voting on the RCM 1007(a)provides that president shall an­ least severe sentence. nounce sentence. Lumm, 1 M.J. 35 (C.M.A. 1975) (MJ erred by @) Key #245. failing to instruct court members to begin Martinez, 17 M.J. 916 (N.M.C.M.R. 1984) with the lightest proposal. Sentence re­ (announcement of findings which failed to versed). mention either that secret written ballot was That adoption of the sentence required con­ taken or that required percentage of mem­ currence of % of the members present? hers concurred was nonprejudicial absent MCM 76b(3). some other indication that members did not - RCM 1005(e)(2) provides that the MJ shall follow MJ’s instructions);see also Jenkins, 12 state the procedures for deliberation and M.J. 222 (C.M.A. 1982). voting. (c) Key #260. RCM 1006(d)(4)(c) addresses this require­ Schultz, 23 C.M.R.363 (C.M.A. 1957) (no ment. reasons need be announced as to why par­ (d) That any sentence which includes confine­ ticular sentence was adjudged). ment at hard labor in excess of ten years re­ (d) Key #266. quires the concurrence of % of the members Perkinson, 16 M.J. 400 (C.M.A. 1983) present? (perusal of sentencing worksheet by MJ, TC, MCM 76b(3). and DC for error prior to reading of sentence RCM 1005(e)(2) provides that the MJ shall by president did not amount to an announce­ state the procedures for deliberation and ment); see also Justice, 3 M.J. 451 (C.M.A. voting. 1977). RCM 1006(d)(4)(B) discusses confinement for 3. Did president use wording which did not reflect more than ten years. intent of the court? Did MJ instruct that the court could consider that MCM 76c. the accused lied? RCM 1007(b) deals with erroneous announce­ Key #266. ment of sentence. Warren, 13 M.J. 278 (C.M.A. 1982) (discusses (a) Liberator, 34 C.M.R. 279 (C.M.A. 1964) prior instructions when accused’s inconsistency (where TC told president of inconsistency on warrants an instruction). sentence work sheet, decision whether to Topic P-Deliberations and reconvene was that of court members). Announcement of Sentence (b) Nicholson, 27 C.M.R. 260 (C.M.A. 1959) (an­ Did any extraneous/outside influence reach nouncement was final if wording, although court members/MJ? not expressing actual intent, was in fact the (a) See Dean, The Deliberative Privilege under wording agreed upon). - ~

61 DA Pam 27-60-148

(c) Robinson, 15 C.M.R. 12 (C.M.A. 1954) (if (b) Key #150, 151. president used wording which did not reflect Rabago, 10 M.J. 610 (A.C.M.R. 1980) (MJ intended wording of members, announce­ should not examine quantum portion until ment was not final and members may correct after sentence has been announced); like­ sentence). wise, Wulters, 5 M.J. 829 (A.C.M.R.1978). 4. Reconsideration. (c) Key #326. (a) If an illegal sentence was announced, did MJ Sallee, 4 M.J. 681 (N.C.M.R.1977) (MJ erred correct by instructing members so that they in basing his sentence on FTA limits). could reconsider? 8. Did MJ obtain accused’slcounsel’s concurrence Key #266; MCM 76c. as to effect of PTA limitations on sentence ad­ RCM 1009(d)(l) states that MJ shall intruct judged? members on procedure for reconsideration. See Lukjanowicz, The Providency Inquiry: An Jones, 3 M.J. 348 (C.M.A. 1977)(MJ may cor­ Examination of Judicial Responsibilities, 13 rect illegal sentence by instructing the Advocate 333 (1980). members so that they may reconsider sen­ RCM 910(f)(4)states the MJ shall insure that ac­ tence, however, reconsidered sentence may cused and parties understand the PTA. not increase punishment). 9. Was the sentence highly inappropriate? (b) If reconsideration occurred, did the MJ in­ Key #267. struct that punishment could not be in­ (a) Smith, 15 M.J. 948 (A.F.C.M.R.1983) (ex­ creased but could be decreased? ception to rule against sentence comparison Key #266; MCM 76d. occurs when other cases are closely related RCM 1009(dX3)deals with view to increasing and sentences are truly disparate; for excep­ and decreasing. tion to apply though: (1) direct correlation Vazquez, 12 M.J. 1022 (A.C.M.R. 1982) (MJ between each accused and their respective must instruct that sentence can be de­ offenses must exist, (2) sentences must be creased/entirely reconsidered). highly disparate, and (3) no good reason for (c) If member requested reconsideration, did MJ substantial difference in punishment must I n properly instruct? exist); likewise, Skinner, 17 M.J. 1042 MCM 76d. (C.G.C.M.R.1984). See also Olinger, 12 M.J. I RCM 1009(c) discusses reconsideration. 458 (C.M.A. 1982). 5. Did any ambiguity exist in the sentence? (b) Walker, 13 M.J. 982 (A.C.M.R. 1982) (dis­ Key #266; MCM 76c. parity exception in closely related case ap­ (a) King,13 M.J. 838 (A.C.M.R.1982Xwhen MJ plied to punitive discharge as well as to initiated reconsideration to rectify ambigu­ length of confinement). ous or illegal sentence prior to announce­ 10. Did MJ communicate with members about sen­ ment, reconsideration balloting requirements tence? i of paragraphs 76c and d were not required Key #325. and MJ did not have to instruct on how to RCM 1007(c) provides that except under M.R.E. ballot). 606, members may not be questioned about their (b) Cragg, 10 M.J. 286 (C.M.A.1981) (sentence deliberations and voting. King, 13 M.J. 838 ambiguities were to be resolved in accused’s (A.C.M.R.1982) (unlawful participation by MJ in favor); likewise, Smith, 43 C.M.R. 660 sentencing deliberations gave rise to rebuttable (A.C.M.R.1971). presumption of prejudice). 6. Did MJ consider providency inquiry responses in sentencing? Topic Q-Record of Trial and Authentication Key #331; MCM 70b. 1. Was the record complete/verbatim? Were testi­ Richardwn, 6 M.J. 654 (N.C.M.R. 1978) (MJ mony/exhibits missing or summarized? erred in considering providency responses in (a) Key #280, 281; MCM 826(1), 83a; UCMJ art. sentencing); likewise, Brooks, 43 C.M.R. 817 19. RCM 1103(bX2) states that the record (A.C.M.R.1971). shall be complete and include exhibits re­ 7. Did the MJ examine quantum portion of the PTA ceived in evidence. prior to announcing sentence? McCullah, 11 M.J. 234 (C.M.A. 1981) (where (a) RCM 910(f)(3) provides that MJ shall not ex­ there is omission from record, every in­ amine any sentence limitation in the PTA un­ ference will be drawn against government til after the .sentence has been announced. regarding prejudice; “complete record” is DA Pam 27-50-148 82 r

not necessarily “verbatim record”; omission 6. Was accused served with copy of record im­ of certain exhibits was substantial). mediately after authentication? 2. Did a recording malfunction occur? Key #300; MCM 82g. Key R81; MCM 82i. RCM 1104(b) provides for TC to cause copy of Skinner, 17 M.J. 1042 (C.G.C.M.R. 1984) record of trial to be served on accused. (where exhibits admitted during time record­ (a) Leslie, 16 M.J. 714 (A.F.C.M.R.1983) (SJA ing equipment was malfunctioning, yet were review or any document utilized in lieu all included in the record, record was “sub­ thereof must be included in record and stantially verbatim’’). served upon accused). Spring, 16 M.J. 669 (A.F.C.M.R. 1983) (b) Beard, 16 M.J. 768 (A.F.C.M.R.1983) (re­ (where, following equipment malfunction, versible error when accused and counsel TC and DC reconstructed their argument on never obtained a copy of ROT for preparation sentence after sentence had been an­ of Goode response); see also Cruz-Rijos, 1 nounced, record found verbatim); likewise, M.J. 429 (C.M.A.1976). Dornick, 16 M.J. 642 (A.F.C.M.R.1983). 7 Certificates of correction. Hall, 6 M.J. 24 (C.M.A. 1978) (summary dis­ (a) Was notice given to parties and hearing held position) (significant omissions in GCM re­ for changes requiring certificate of correc­ quired sentence to be reduced to that of tion after authentication? regular SPCM). Key #280; MCM 82e. Amtt, 3 M.J. 201 (C.M.A. 1977) (un­ RCM 1l04(d)(2) requires notice to all parties. recorded discussion regarding challenges was Anderson, 12 M.J. 196 (C.M.A. 1982)(when, substantial omission). after authentication, it becomes necessary 3. Were any sidebadout-of-court conferences not for the MJ to propose substantive changes in reported? ROT to accurately reflect the proceedings Key #281; MCM 82b(l). pursuant to a Certificate of Correction, he RCM 1103(bX2) discussion states that a verbatim should give notice to all parties and provide transcript includes sidebar conferences. them an opportunity to be heard). ­ 4. Has government rebutted prejudice from sub­ (b) Were procedures for submitting the cer­ stantial omissions? tificate on appeal followed? Key #281; MCM 82e. See Memo from ACMR Clerk of Court, Sub­ McCullah, 11 M.J. 234 (C.M.A. 1981) (where ject: Certification of Correction, dated 10 Ju­ there is omission from record, every inference ly 1981, setting forth ACMR procedures for will be drawn against government regarding submitting certificates of correction during prejudice; where there is substantial omission, appellate review. rebuttable presumption of prejudice arises). Ac­ 8. Did anyone make unauthorized corrections/ cord Eichenlaub, 11 M.J. 239 (C.M.A.1981); see insertions to the record? also mfin, 17 M.J. 698 (A.C.M.R.1983). MCM 82e. ,. 6. Authentication. Harris,44 C.M.R.177 (C.M.A. 1971)(court con­ (a) Has the MJ or proper substitute authenti­ demned adding to or otherwise tampering with cated the ROT? Key #280; MCM 8% UCMJ the record, but found no preJudice). art. 64. Topic B-Post-trial Comment and Review RCM 1104(aX2) deals with authentication. 1. Staff Judge advocate’s post-trial recommenda­ (b) When someone other than MJ authenticates, tion. is the MJ genuinely unavailable for a lengthy (a) Was SJA qualified to act? period of time? RCM 1106(b) governs disqualification of Key &SO; MCM 8u. SJAs. RCM 1104(aX2)(B) deals with substitute (b) RCM 110qd) governs the materials the SJA authentication. shall use in preparing the recommendation. (1) Lott, 9 M.J. 70(C.M.A.1980)(PCSofMN (c) Did the SJA’s recommendation contain the overseas was emergency situation required contents? authorizing authentication by TC). Like­ RCM 1106(dX3) lists the required contents: wise, Miller, 4 M.J. 207 (C.M.A. 1978). (1) The findings and sentence aaudged by (2) Cm-Rijos, 1 M.J. 429 (C.M.A. 1976) the court-martial; (MJ was available so error for TC to (2)A summary of the accused’s service authenticate record). record, to include length and character r”.

, i 83 DA Pam 27-60-148

of service, awards and decorations re­ 2. Matters submitted by the accused. ceived, and any records of noqjudicial (a) RCM 1105 provides that after a sentence is punishment and previous convictions; adjudged in any court-martial, the accused (3) A statement of the nature and duration may submit matters to the convening of any pretrial restraint; authority in accordance with this rule. Mat­ (4) If there is a pretrial agreement, a state­ ters which may be submitted: The accused ment of any action the convening may submit to the convening authority any authority is obligated to take under the written matters which may reasonably tend agreement or a statement of the reasons to affect the convening authority's decision why the convening authority is not obli­ whether to disapprove any findings of guilty gated to take specific action under the or to approve the sentence. Such matters are agreement; and not subject to the Military Rules of Evidence (6) A specific recommendation 89 to the ac­ and may include: tion to be taken by the convening (1) Allegations of errors affecting the legal­ authority on the sentence. ity of the findings or sentence; (d) Did the SJA examine the record for legal er­ (2) Portions or summaries of the record and rors? Under RCM 1106(d)(4), the SJA does copies of documentary evidence offered not have to examine the record for legal er­ or introduced at trial; rors. However, when the recommendation is (3) Matters in mitigation which were not prepared by a staff judge advocate, the staff available for consideration at the court­ judge advocate shall state whether the find­ martial; and ings or sentence should be corrected when an (4) Clemency recommendations by any allegation of legal error is raised in matters member, the militaryjudge, or any other submitted under R.C.M. 1106 or when other­ person. The defense may ask any person for such a recommendation. wise deemed appropriate by the staff judge ! advocate. The response may consist of a (b) Did the accused submit these matters within statement of agreement or disagreement the respective time period? with the matter raised by the accused. No (1) For a general courts-martial and special analysis or rationale for the staff judge ad­ courts-martial with a BCD: vocate's statement is required. RCM 1106(cXl) provides that the ac­ (e) Was the SJA's recommendation served on cused has 30 days after the sentence an­ the accused? nouncement or seven days after the ser­ RCM llOs(fX1) provides that the SJA shall vice of the record of trial on the ac­ cause a copy of the recommendation to be cused, whichever is later. served on the counsel for the accused. (2) For special courts-martial in which a (f) Did the accused designate which counsel will BCD was not aaudged: receive the recommendation? RCM 1105(cX2) provides that the ac­ RCM 1106(fX2) provides that the accused cused has 20 days after the sentence an­ may designate which counsel will be served. nouncement or seven days after the ser­ (g) Did the accused's counsel request a copy of vice of the record of trial on the ac­ the record of trial? cused, whichever is later. RCM 1106(f)(3) provides that, upon request, (3) For summary courts-martial RCM the SJA shall provide a copy of the record of 1105(c)(3) provides that the accused has trial for use in preparation of the response to seven days after the sentence is an­ the recommendation. nounced. (h) Did the accused's counsel submit comments? (c) Did the accused submit matters within the RCM 11Oqfx5) provides that the DC has five time prescribed? days from receipt in which to submit com­ RCM 1105(d)provides that failure to submit ments on the recommendation. matters within the time prescribed waives (i) Did the DC fail to comment? the right to submit such matters. RCM 1106(fx6) provides that failure to com­ Topic S-Action, Deferment, ment shall waive later claim of error with and Promulgating Order regard to such matter in the absence of plain 1. Action by convening authority. error. (a) Before taking action, did the CA consider the required matters? DA Pam 27-60-148 54

Key #267, 301. plied until sentence is ordered into exe­ See MCM 86b. cution). Under RCM 1107(b)(3),the CA shall consider Key #301. the record of trial, SJA’s recommendation, Hall, 3 M.J. 969 (N.C.M.R.1977) (CA and matters submitted by the accused. remitted confinement but then errone­ (b) Forfeitures. ously applied forfeitures prematurely to (1) Are forfeitures based on the pay scale in pay becoming due on or after the date of effect on the date the sentence was ad­ his action; forfeitures are not applied judged? until sentence is ordered executed). Wright, 47 C.M.R.’309 (A.C.M.R.1973) Fergu-son, 44 C.M.R. 701 (N.C.M.R. (amount of forfeitures was calculated at 1971) (forfeitures may not be applied time of sentence even if pay raise oc­ prior to ordering sentence into execu­ curred before CA’s action). tion unless sentence includes unsus­ (2) Are partial forfeitures applied to pay pended confinement. only? (c) Has the CA converted the sentence to a non­ MCM 126h(2). eauivalent punishment?.. RCM 1003(b)(2) states that allowances (1) MCM 88a, 12742). shall be subject to forfeiture only when RCM 1107(dXl) states that the CA may the sentence includes forfeiture of all change a punishment to one of a dif­ pay and allowances. ferent nature as long as the seventy of Key #267,301. the punishment is not increased. Evans, 16 M.J. 951 (A.F.C.M.R.1983) (2) Key #267,301. (forfeitures to allowances set aside). Goetz, 17 M.J. 744 (A.C.M.R.1983) (CA (3) Are there approved forfeitures in excess may change nature of punishment but of 2h pay for 6 months without an ap­ may not approve any sentence which proved discharge or approved confine­ court-martial might not itself have legal- ment for the period of forfeitures? ly adjudged). ­ MCM 88b;Paragraph 6-19f, AR 190-47; Bullington, 13 M.J. 184 (C.M.A. 1982) RCM 1107(dX2). (where BCD was not lawfully adjudged, Stmud, 44 C.M.R.480 (A.C.M.R.1971); CA’s conversion of BCD to 2 months Skinner, 37 C.M.R.588 (A.B.R.1966). CHL cannot cure error). (4) Are TF approved for accused no longer Lof,10 M.J. 266 (C.M.A. 1981) (where in confinement? only reasonable interpretation of CA’s RCM 1107(d)(2) discusses rule when ac­ action was approval of BCD, super­ cused is not in confinement. visory authority did not increase punish­ (6) Do the partial forfeitures specify the ment by approving BCD). amount that will be forfeited per month (3) Key #304. and the number of months? Williams, 6 M.J. 803 (A.C.M.R. 1979) RCM 1003@)(2)states that a sentence to (CA can only change sentence to some­ forfeitures shall state the exact amount thing within level of court’s sentencing in whole dollars to be forfeited each power, and sentence may not be more month and the number of months the severe than original). forfeitures will last. (dl Does the sentence, as approved, exceed the Johnson, 32 C.M.R. 127 (C.M.A. 1962) sentence in companion cases? (failure to include words “per month” #267. resulted in forfeiture for one month). Skinner, 17 M.J. 1042 (C.G.C.M.R. (6) If no confinement was aqjudged/ap­ 1984)(precedent has little application in proved, did the CA improperly apply determining sentence appropriateness forfeitures prior to execution of the because each case has to be judged on sentence? the basis of its own facts). MCM 88d(3), 126h(5); UCMJ art. 57(a). Smith, 16 M.J. 948 (A.F.C.M.R. 1983) Key #267. (sentence comparison should only occur Midkiff, 15 M.J. 1043 (N.M.C.M.R. when other cases are connected or 1983) (where sentence did not include closely related and sentences are truly confinement, forfeitures may not be ap­ disparate; before this exception applies, ,/ 65 DA Pam 27-60-148

three requirements must be met: (1) Mills, 12 M.J.1 (C.M.A. 1981) (where direct correlation between each accused CA failed to comply with PTA after com­ and their respective offenses must exist, pletion of appellate review, filing of ex­ (2) sentences must be highly disparate, traordinary writ was appropriate). and (3) no good reason for substantial (h) Did delay in CA action cause any prejudice to difference in punishment as between of­ appellant? fenders must exist). Key #292. See Olinger, 12 M.J. 458 (C.M.A. 1982). (1) Boldon, 17M.J. 1046(N.M.C.M.R.1984) (e) Does any suspension extend beyond (accused is entitled to dismissal of accused’s period of enlistment? charges if supervising authority’s action MCM 88e. is not completed within a certain num­ RCM 1108(e) provides that separation which ber of days, provided record of trial is terminates status as a person subject to the short in length and offenses involved Code shall result in the remission of the were not serious). suspended portion of the sentence. (2) Echols, 17 M.J.856 (N.M.C.M.R. 1984) Harty, 49 C.M.R. 628 (A.C.M.R. 1974) (SUS­ (15 month delay between trial and pension may not extend beyond current en­ supervisory authority’s action was un­ listment or period of service). reasonable and mandated reversal be­ (f) Do any ambiguities or irregularities exist in cause accused suffered specific preju­ the CA action? dice). (1) MCM 896. (3) McGinn, 17 M.J. 592 (C.G.C.M.R. 1983) RCM 1107(g)provides that if CA’saction (accused’s claim impairment of his abili­ is ambiguous, authority who took am­ ty to obtain employment was some evi­ biguous action may be instructed to dence of prejudice from lengthy, un­ withdraw the original action and explained post-trial delay). substitute a corrected action. (4) Milan, 16 M.J. 730 (A.F.C.M.R. 1983) (2) Key #267. (absent demonstrated prejudice, inordi­ Mussey, 17 M.J. 683 (A.C.M.R. 1983) nate delay after CA acts does not, in and (failure to specify limits of restriction in­ of itself, justify dismissal of charges). cluded in sentence imposed by summary (i) Did CA/subordinate commander grant im­ court-martial was error and rendered munity to a witness whose pretrial state­ sentence ambiguous). ment/testimony was used against the accused (3) Key #332. at trial? House, 15 M.J. 1007 (A.C.M.R. 1983) Key #294. (when CA’s action is ambiguous, ACMR Smith, 1 M.J. 83 (C.M.A. 1979) (CA is pre­ may return case to CA for a new and cluded from reviewing and taking action in a unambiguous action). case where he has granted immunity to a wit­ (8) Does CA action exceed the limits of the PTA ness). as interpreted by parties at trial? Cf. United States v. Newman, 14 M.J. 474 (1) RCM 1007(d)(l) provides that the PTA (C.M.A. 1983) (CA not automatically dis­ may affect what punishments may be qualified). changed by CA. (j) Did the accused receive administrative credit (2) Key #143. for illegal pretrial confinement? Cz&entes, 11 M.J. 385 (C.M.A. 1981) Key #267. (understanding of parties at trial con­ RCM 1107(fX4)(F) provides that when the MJ trolled interpretation of agreement; if has directed that the accused receive credit, CA did not comply with trial under­ the CA shall so direct in the action. standing, court must order compliance (1) Allen, 17 M.J. 126 (C.M.A. 1984) (in or allow accused to withdraw guilty light of the Department of Defense in­ plea). struction requiring that procedures em­ (3) Key #269. ployed by military services for compu­ House, 15 M.J. 1007 (A.C.M.R. 1983) tation of sentence conform to those (PTA must be interpreted within con­ published by the Department of Justice, text of maximum imposable sentence as accused was entitled to sentence credit well as adjudged sentence). for pretrial confinement). DA Pam 27-60-148 66

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(2) Schuring, 16 M.J. 664 (A.C.M.R. 1983) MCM 90a; RCM 1114 (cX2). (administrative credit may be appro­ Are all orders convening the court which priate remedy for illegal pretrial con­ tried the case correctly cited in the CMO? finement). See also Mulia, 6 M.J. 65 MCM 90u; RCM 1114. (C.M.A. 1978); Larner, 1 M.J. 371 Are the appellant’s name, grade, SSN,orga­ (C.M.A. 1976); White, 38 C.M.R. 9 nization, and armed force correctly shown in (C.M.A. 1967). the CMO? 2. Deferment. Are all charges and specifications, including Who deferred confinement? amendments, upon which the appellant was Key #5;MCM 88f. arraigned correctly shown in the CMO? RCM llOl(cX2) provides who may defer con­ RCM 1114(cXl) provides that the order pro­ finement. mulgating the initial action shall set forth the Did the accused sustain his burden on his charges and specifications. deferment request? Are the pleas, findings, and sentence copied Key #304; MCM 8w. verbatim in the CMO? RCM 1 lOl(cX3)provides that the accused has RCM 1114(cXl) provides that the order pro­ the burden to show that his interests and the mulgating the initial action shall set forth the community’s interests in release outweigh pleas, findings, and sentence. the community’s interests in confinement; Does the CMO correctly indicate the number see Trotman v. Huebel, 12 M.J. 27 (C.M.A. of previous convictions considered? 1981). Does the CMO show the date the sentence For judicial review of the deferment de­ was adjudged? cision, was abuse of discretion the standard MCM 90u. used? RCM 1114(c)(2) provides that the promul­ Key #304; MCM 8w. gating order shall state the date the sentence RCM 1 lOl(cX3) provides judicial review only was adjudged. for abuse of discretion. Does the CMO correctly show the sentence ,cI Alicea-Buez, 7 M.J. 989 (A.C.M.R. 1979) announced? (summary denial of deferment request was Is the action of the CA copied verbatim from not abuse of discretion where the defense the record to the CMO? failed to carry its burden by only addressing RCM 1114(c)(1) provides that the order pro­ clemency matters and not addressing facts mulgating the initial action shall set forth the relevant to deferment). action of the CA verbatim. If the CA granted deferment, were unrea­ Is the CMO signed by CA or subordinate “by sonable conditions placed upon the accused? direction’’? Key #304; MCM 88f. RCM 11 14(e) provides that the promulgating RCM 1101(c)(6)provides that an accused may order shall be authenticated by the signature be restricted to specified limits or conditions of the convening or other competent authori­ may be placed on his liberty during the ty, or a person acting under the direction of period of deferment provided it is ordered such authority. for a proper reason and not as a substitute for Was the CA qualified? punishment. (1) Key #84. Did the CA abuse his discretion in rescinding Beauchump, 17 M.J. 690 (A.C.M.R. the deferment? 1983) (where accused’s division com­ Key 804; MCM 88s. mander had an interest in punishing ac­ RCM llOl(cX7)(B) provides that the CA has cused’s willful disobedience, com­ discretion in rescinding deferment; however, mander was disqualified from acting as the accused must be given notice and a CA.) seven-day period to respond before con­ Corcorun, 17 M.J. 137 (C.M.A. 1984) finement may be ordered executed. (CA was an accuser and thus disqual­ 3. Promulgating order. ified to convene CM). Pages A16-1 and A16-2, MCM; Pages A17-1 and Flozuers, 13 M.J. 671 (A.C.M.R. 1982) A17-2 RCM. (CA was disqualified from acting in (a) Does the CMO have the same date as the ac­ defendant’scase where, at behest of TC, tion of the CA who published it? CA withdrew charges against two others r 57 DA Pam 27-60-148 P to allow them to become witnesses 3. Does the appellate request form, or any com­ against defendant). munication from the accused, list any errors/ (2) Key &94. matters to be raised appeal? Decker, 15 M.J. 416 (C.M.A. 1983) Key #311. (SJA’s recommendation that CA grant (a) Awoyo, 17 M.J. 224 (C.M.A.1984)(croStefon immunity did not disqualify either party holding requires appellate DC to identify absent indication that such action would those issues which his client wishes to have create risk that either person would be raised on appeal; DC has minimal responsi­ unable to evaluate objectively and im­ bility of assuring that CMR and CMA atten­ partially all evidence). tion was directed to the points which his Andreas, 14 M.J. 483 (C.M.A. 1933) client desired to have raised); see orostefon, (GCMCA was not disqualified because of 12 M.J. 431 (C.M.A. 1982). invalid promise of transactional im­ (b) Hultum, 16 M.J. 261 (C.M.A. 1983) (court munity to civilian witness made by SJA discussed duties of appellate counsel in cases serving SPCMCA). in which non-frivolous issues existed but Newman, 14 M.J. 474 (C.M.A. 1983) were not raised on the appellate rights form (grant of testimonial immunity to or in correspondence from the accused. defense witness did not disqualify CA). Court held that merely because argument Topic T-Appellate Rights was not frivolous did not mean that argu­ 1. Do the allied papers indicate that the accused ment must be raised by appellate counsel. was advised by the DC of his appellate rights? Court measured appellate counsel by same (a) RCM 1010 provides-that the MJ shall inform standard as that for trial lawyer: was the ap­ the accused of his right to appellate review peal handled with the competency expected and the effect of waiver or withdrawal of of an appellate advocate in the military such rights, and shall inquire of the accused justice system? Court found that appellate to insure that he understands the advice. counsel’s failure to argue the appropriate­ RCM 502(d)(G)(iv) provides that DC must ex­ ness of the sentence was a violation of that plain to the accused his right to appellate standard where the accused claimed at trial review and must advise him concerning the and in a petition for clemency that his ab­ exercise of that right. sence was the result of duress and the MJ had MCM, 48k. recommended suspension of the ED). Note: Appellant may choose to waive ap­ (c) Knight, 16 M.J. 202 (C.M.A. 1983) (court pellate review in most cases. RCM 1110. discussed duties of appellate DC in cases in (b) Key #230, 31 1. See: which issues were raised on appellate rights (l)Sterling, 6 M.J. 601 (N.C.M.R. 1978) form and in correspondence with appellate (circumstances under which TDC may counsel. Court specified several issues to be relieved of post-trial responsibilities “highlight the issues identified by the ac­ or representation). cused” and ordered briefs thereon. The fmd­ (2) Wiles, 3 M.J. 380 (C.M.A. 1977) (af­ ings of guilty of one charge and its specifi­ fidavits showed that no advice was cation were set aside and case was remanded given). to ACMR for further review). (3) Palenitis, 2 M.J. 86 (C.M.A. 1977) Topic U-Appellate Beview (discussion of full range of rights and 1: Waiver. duties of DC). See Saunders,The Resurgent Doctrine of Waiver, 2. Do the allied papers contain an executed “re­ The Amy Lawyer, Aug. 1984, at 24 (this article quest for appellate DC” form? is a broad review of recent waiver cases, and is (a) See RCM 502(dX6), 1202. especially useful concerning effects of the MRE MCM, 48k(3). on waiver); Issues Waived tg Amrident Guilty (b) Key #317. Plea, 13 Advocate 364 (1981); Vitaris, The oplittg Knight, 16 M.J. 691 (A.C.M.R. 1983) (TDC Plea’s Impact on Appellate Raviau, 13 Advocate should insure that appellate representation 236 (1981). request form is attached to record and retain 2. For relevant RCM provision, me MCM, 1984, in­ copy until appellate review has commenced). dex. 3. For relevant cases, see generuUy Key K310-333. DA Pam 27-60-148 88

Automation Developments US Army Legal Services Agency

VDT Regulation Most other JA office functions are local in At least eleven states have considered legis­ nature. The JA office automation system should lation which would regulate video display ter­ be integrated with the local staff section’s minal (VDT) use by workers performing word system for electronic messages and document processing, data entry, and other computer distribution and retrieval. However, the office functions. Proponents of such controls are con­ cannot overlook primary law office functions in cerned about the health of workers performing a rush to embrace local staff integration efforts these functions. Opponents argue that there is or Army TOE efforts. no evidence of harm from VDT use. Neverthe­ USALSA managers have found two educa­ less, such proposals promise to add controversy tional programs particularly helpful in under­ to management of automated office systems (in­ standing modern legal office automation tech­ cluding JAGC office information systems). nology. These programs are the Practising Law Proposals include requirements to offer non- Institute, Computer Seminars (212-765-5700, VDT work to pregnant employees and em­ ext 286), and the Price-Waterhouse, Legal Tech ployees with various medical problems, to pro­ Conferences (212-877-5619). Several special­ vide radiation shielding and testing and ized newsletters also are available in the legal physical examinations, to give notice periods to automation field, including the Leader’s Legal employees before new hardware is installed, to Tech Newsletter, published by Price Water­ limit heat and noise, to provide various lighting, house (212-741-8300), and the Attorney’s Com­ glare reduction, acijustable furniture and other puter Report (404-455-7600). Additionally, for ,-< features at VDT work stations, to mandate rest Army legal offices using the IBM or IBM-com­ or alternative work periods for VDT workers, patible personal computer, PC Week is an ex­ and to mandate a maximum number of work tremely useful guide on IBM standard micro­ hours per day. computer systems (2 12-503-5120). The stakes are high as managers seek to These materials and programs describe the balance newly achieved productivity gains contemporary use of computers in various types against employee health and morale. of legal offices. Understanding this subject is essential to sound long-range planning for the Legal Office Automation Publications JA office information system. and Training Programs Litigation Support Redefined Automation requirements for an Army legal office are not much different than those for a The rapid spread of litigation support tech­ corporate counsel or private law office. The nology to corporate, private, and government primary functions are the same: word pro­ law offices has changed established opinions on cessing, research, attorney support, and case when to employ such systems and on what a management. The differences-accounts re­ litigation support system is capable of ac­ ceivable and profit distribution-are minor. Re­ complishing. The magnitude of this change is quirements for staffing actions vary little be­ similar to that experienced by the engineering tween’corporate and Army legal offices. profession when the hand calculator replaced the slide rule. Standard Army-wide systems will be developed centrally for military justice Litigation support was developed by the IBM (USALSA), claims (Claims Service), and legal Corp. in the late 1960s to support its defense of assistance (TJAGSA) functions. Data elements, the IBM Anti-Twt Case. The Department of forms, reports, and procedures will be standar­ Justice soon foIlowed with its own system. Un­ dized to some degree. til recently, it was believed that automated I

I C

59 DA Pam 27-60-148

P solutions were limited to high-volume, high b. finds and reads data into the com­ stakes anti-trust cases and should be used only puter memory (RAM) faster (usually 10 as a last resort. The costs to automate were fre­ times faster or more with a hard disc). quently eight dollars per document or more. c. elminates “floppy shuffling” (a fre­ Today, lawyers are turning to litigation sup­ quent irritation for busy lawyers, it is time port in a wide variety of cases; in many areas, consuming and an unnecessary barrier to sole practitioners are leading the way. Many of the computer novice). these applications are highly tailored to special­ d. speeds the operation of most pro­ ized practice areas and utilize spreadsheet soft­ grams (amount depends on how frequently ware technology as well as traditional database the program makes “disk accesses” for technology. Essentially, litigation support is be­ data and how often “overlaps” are used in ing redefined to include any software applica­ the program, execution time for a tion designed to assist the attorney in making database manager can be reduced to a decisions on a case or action. tenth or a twentieth of the time of two Vendors of integrated law office systems floppy discs). (Barrister, Informatics, IBM, and others) are e. permits reassignment of RAM to adding powerful litigation support tools to their printer buffers for productivity improve­ mini-line of office computers. Significantly, ment. these support tools may be connected to an IBM PC or other personal computer which will The disadvantages of a hard disc are that it: operate popular commercial software products such as dBASE I1 or I11 or LOTUS 1,2,3.The per­ a. costs $750 or more (depending on size sonal computer connection appears to be an im­ and vendor). portant emerging standard for legal office b. head crashes are possible from dust, p systems. It also provides the flexibility required pollen, or cigarette ashes (this is a problem as the JAGC continues to develop automated for sealed units as well as removable hard systems, many of which will rely on personal discs). computers. c. requires many floppy discs and more According to a recent Amicus Research machine and operator time to back up the Group, Ltd. study, the litigation support in­ contents of a hard disc (30 320k-byte flop­ dustry will grow 17% each year and will have py discs for 1 10-MB hard disc). total revenues of $853 million by 1990. Using .f litigation support systems in a JAGC legal office To solve the question of whether or not to use is still largely untested. Their utility can be a hard disc, you may: determined only after a lengthy trial and error a. buy a second hard disc for back-up process and by sharing experiences (successes (the chance of two hard discs going out at and failures) in The Army Lawyer or by con­ the same time in an office environment is tacting the TJAG Information Management Of­ miniscule). ficer. b. buy a streaming tape back-up (this Hard Discs for the Personal Computer solution costs less and is very fast). The advantages of a hard disc are that it: For either solution, removable cartridges are a. holds more data than floppy disk available which will permit remote storage of drive (e.g., 10-MBhard disc holds 30 times the back-up and efficient back-up scheduling. more data than a 320,000-byte floppy disc). I DA Pam 27-60-148 60

Criminal Law Notes Criminal Law Division, OTJAG

Errors in Records of Trial each offense. See ref D. Ref E is in error in this PO415352 FEB 85 regard, and will be corrected in the next edi­ FM DA WASHDC//DAJA-CL// tion. UNCLAS 5. Per ref F, the record of trial in summary FOR SJA/JA/TDS/MilJudgebegal Counsel/ courts-martial and some special courts-martial Professor of Law/USMA must be reviewed by a judge advocate. The SUBJ: Errors Noted in Records of Trial inked stamps commonly used to document A. R.C.M. 1105, MCM, 1984. review under ref G do not suffice. An inked B. R.C.M. 1106(F),MCM, 4984. stamp may be applied to DD Form 2329 or the C. DA Pam 27-60-139 (Army Lawyer, July 84), promulgating order to reflect legal review, but at pg. 59. records forwarded for review under article 69, D. App 17, MCM, 1984. UCMJ, must have the written review attached E. AR 27-10, 1 Jul84, Pg. 62. covering the matters listed in ref H. See ref 1. F. R.C.M. 1112(A), MCM, 1984. G. Para 94a(2), MCM, 1969 (rev.). H. R.C.M. 1112(D), MCM, 1984. MCM Corrections I. R.C.M. 1112(E), MCM, 1984. The following corrections to Appendix 12, MCM, 1984, should be made: 1. Review of records of trial reveals that errors in post-trial administration, as noted below, 1. Art. 86 (Absence, more than 30 days: Add have occurred in several jurisdictions. “DD. ” r 2. The requirements of refs A and B are being 2. Art. 92 (Violation, failure to obey other misinterpreted in a few jurisdictions. Refs A order): Change “6 yrs.” to “6 mos.” and B operate independently, but both must be 3. Art 98 (Knowingly, intentionally failing to considered in determining the earliest date that comply, enforce code): Change “1 yr.” to “6 the convening authority (CA) may take action. yrs.” In each case, the dates of both the service of the 4. Art. 128 (Assault consummated by bat­ record of trial and the service of the SJA recom­ tery): Change “3 mos.” to “6 mos.” and Change mendation must be documented. The “earliest “213 3 mos.” to “Total.” action date” must be calculated separately 5. Art. 133: Change “As prescribed” to under each rule. The later of these two dates “Total.” will be the correct “earliest action date” for ac­ 6. Art. 134 (Bribery): Change “15 yrs.” to “6 tion on each case, absent written waiver of one yrs. ” or both provisions. For example, service of the 7. Art. 134 (Graft): Change “2 yrs.” to “3 record and the recommendation on the same yrs.” I day will not allow action after five days under 8. Art. 134 (Indecent exposure): Change ref B, because ref A (seven days) is later and “None” to “BCD” and Change “2/3 6 mos.” to controls in this situation. Ref C provides further “Total.” I explanation. 9. Art. 134 (Indecent language-Other cases): I 3. The staff judge advocate personally must Delete “DD” and Change “1 yr.” to “6 mos.” I sign the post-trial recommendation to the con­ 10. Art. 134 (Jumping from vessel into the vening authority. No one should sign the recom­ water): Change “2/3 6 mos.” to “Total.” mendation “for” the SJA. If the SJA is not pres­ 11. Art. 134 (Parole, violation of): Delete en­ ent for duty, a designated subordinate may sign tire entry (not in Part IV, MCM). as “acting staff judge advocate.” 12. Art. 134 (Prisoner, allowing to do un­ 5. In initial promulgating orders, the summar­ authorized act): Dekte entire entry (not in Part ized specification must include the date(s) of IV, MCM). -\ 61 DA Pam 27-60-148

13. Art. 134 (Refusing, wrongfully, to -In time of testify): Change title to “Testify, wrongfully war or while refusing to.” receiving special 14. Art. 134 (Sentinel, lookout, offenses by Pay DD 2yrs. Total or against): Delete the words “offenses by or -Other cses BCD 6mos. Total against” and Delete punishments and categorize 16. Art. 134 (Soliciting another to commit an as follows: offense): Chnge “109e” to “106e.” -Disrespect to None 3 mos. %3 mos. 16. Art. 134

Legal Assistance Items Legal Assistance Branch, Administrative & Civil Law Division, TJAGSA

Tax News HmInstallment Sales Deductibility of Mortgage Interest The summer moving season is rapidly ap Whether service members may deduct the in­ proaching. It appears that with interest rates terest paid on their home mortgages has been coming down, many people will be selling under study for some time. The Treasury De­ homes. The slow real estate market of the past partment recently announced that interest pay­ few years caused many service members to rent ments on a home mortgage will be deductible at their homes rather than sell. It is likely that least through tax year 1986, i.e., any interest legal assistance officers will be asked to give ad­ payments on a home mortgage which are made vice to these homeowners when putting to­ during 1986 or 1986 will be deductible. This gether a sale. Counsel should be aware of a question is, however, still under study and change in the tax law made by the Tax Reform there is no guarantee that home mortgage in­ Act of 1984 concerning installment sales. terest paid beginning in 1987 will be deductible. Often, the real estate seller agrees to finance The issue concerns I.R.C. 266(1) which dis­ 5 part of the purchase by taking back a second 1 allows deductions for amounts which are allo­ mortgage. This generally results in the seller cated to income which is wholly exempt from receiving payment for tlie property in install­ taxes. The position is that because service IRS ments. Under the old law, each installment members receive tax-free BAQ as a housing would be split between a return of capital and allowance, they should not be permitted to some type of gain. If the property had been deduct interest paid on a home mortgage to the depreciated at a rate in excess of the straight extent of their tax-free BAQ. The concern first line rate, then some portion of the gain would arose when the IRS applied this theory to deny be recaptured as ordinary income. Under the an interest deduction to ministers who receive a old law, the characterization of each install­ tax-free parsonage allowance. The final resolu­ ment payment would be split, resulting in the tion of this issue may be found in any tax recaptured ordinary income being spread out reform legislation this year or next, as part of over the various payments. This is no longer the Treasury Department’s plan to change the true. tax characterization of military benefits such as BAQ. For 1985 and 1986, however, military Under I.R.C. Ji 463, for sales of property after homeowners are assured that they can deduct 6 June 1984, any depreciation recaptured will P. their interest payments on a home mortgage. be included in income in the year of sale, even DA Pam 27-60-148 62 .­ though the gain is to be included in income Work-at-Home Plans under the installment method. The result is that Spouses of military members who desire to the seller will have to recognize all of the work are often hampered by the vagaries of depreciation which is to be recaptured in the military service-numerous moves, absence of year of sale, even though he or she may not the member from the home on military duty, receive payments in the year of sale equal to etc. As a result, many choose not to work out­ the recaptured amount. Therefore, it becomes side the home, either full or part-time. Instead, important that the seller arrange the trans­ these spouses may be intrigued by small adver­ action so that he or she will receive enough cash tisements appearing in magazines or news­ up front to cover the tax burden caused by hav­ papers, which frequently read: “Earn $500 a ing to recapture as ordinary income all of the month. Address envelopes in your home. Five accelerated depreciation in the year of sale. dollars provides you with all the information Many service members who have previously you need to start.” rented their homes and have taken depreciation under the Accelerated Cost Recovery System As a result of military family members re­ (ACRS)potentially have this problem. The prob­ sponding to such advertisements, legal assis­ lem will be avoided, however, if the purchaser tance officers receive calls and complaints from obtains new financing and the seller does not those who have lost money on such enterprises. take back a second mortgage. As background when such complaints are re­ ceived and for preventive law handouts when Home Warranties inquiries are received from those who are thinking of getting involved in “work-at-home” Although it is generally true that one who plans, the following information is provided: purchases a home second hand buys at his or her own risk and has no recourse against the Stuffing and addressing envelopes is one of - builder if the contruction is defective, the New the most common work-at-homeplans. The pro­ Jersey Supreme Court recently handed down a moter places an ad in a newspaper or magazine decision which expands the liability of a con­ stating that up to $500 to $800 can be earned tractor. In Aronsohn v. Mandara, 98 N.J. 92 monthly through this type of plan. (1984), the original homeowners hired a con­ To find out how to make this money, how­ tractor to build a patio on the home. The ever, the consumer almost always must pay original owners subsequently sold the home to money. These small payments from consumers, the plaintiffs who sued the contractor for although probably only a few dollars, are the negligent construction. The issue was whether heart of the work-at-home scheme. Dollars sent the contractor should be subject to an action by to companies by hundreds or thousands of in­ the new owners even though there was no terested consumers, usually to an out-of-state privity of contract. The court examined the post office box, for further information or a contract between the original owners and the training manual, insures that the promoter will contractor and found no prohibition against the make a profit. original owners assigning their rights under the contract. The court found that the contractor Often the consumers receive (after sending had made an implied promise of reasonable their money) only a list of companies which are workmanship to the original owners. The court supposedly interested in having consumers analogized that implied promise to a real prop­ stuff and address envelopes for them. Con­ erty covenant which runs with the land and sumers must contact all the companies at their determined that the original owners had as­ own expense and await a possible reply. More signed the promise to the purchasers at the time often than not, the companieson the list ask for of sale. The result was that the second owners additional money before sending details. These were permitted to bring an action against the details may consist of nothing more than contractor for negligent construction under a another list. It is not uncommon to find that contract with the original owners. those companies listed are no longer in busi- fl 63 DA Pam 27-50-148 r“ ness. If the companies are interested, and the In the past, legal assistance officers repre­ chance of that is slim, the consumer typically senting the nonsupported family members of ends up buying envelopes and stamps out of his the soldier could argue that if the soldier’s or her own money and working on a commission receipt of Basic Allowance for Quarters was basis. The magic “commission” and “income” based solely on the member’s requirement to figures advertised rarely materialize. provide support for dependents, then the member should also pay any VHA which the Another popular “work-at-home” promotion member received. is the homemade crafts plan. It often starts out the same way as the envelope-stuffing enter­ A change to 37 U.S.C. 5 403a, contained in the prise: the consumer sends money to the com­ DOD Authorization Act, 1985 (Pub. L. No. pany for the craft kits, the company agrees in 98-525 (1984)), somewhat clarifies this issue. advance to buy back the finished product at an Section 602 of the Authorization Act provides attractive price, and the consumer assembles that if a service member is authorized to receive the crafts at home. Regardless of the high quali­ BAQ at the rate prescribed for a member with ty work done by some consumers, goods are dependents solely by reason of a court order re­ often judged inferior by the company and quiring the member to pay support for depen­ returned. The consumer is then stuck with the dents, then the member is not authorized to goods and the company keeps the consumer’s receive VHA and will receive only BAQ. money. Final DOD Former Spouses’ Other variations involve home mail-order Act Regulation Issued operations and other home-based advertising The final Department of Defense (DOD) rule and mail operations. For example, one type of implementing the Uniformed Services Former plan may be circular: after responding to an ad Spouses’ Protection Act, 10 U.S.C. 5 1408, and for a “get-rich-quick” scheme by sending the amendments to the Act contained in the money for more information to the addressee, DOD Authorization Act, 1985, Pub. L. No. the consumer will often receive information 98-525 (1984), has been issued. telling the consumer how to make money by placing a similar ad in the local newspaper. If The regulation is DOD Directive 1340.16 and the consumer places such an ad, any persons will be codified at 32 CFR 5 63. It was published who respond are merely sent the same plan. at 60 Fed. Reg. 2665 (Jan. 18, 1985) and ef­ fective on 2 January 1985. The draft regulation Clients should be advised to use extreme cau­ was initially published for comment in January tion when considering sending money in 1983 and extensive comments were received. response to any work-at-home offer, especially These comments, and changes made by the when the mailing address is outside the state in DOD Authorization Act, delayed implementa­ which the consumer is located. tion of the final rule. For clients who have lost money in such ven­ VA Attorney Fee Limitations tures, most state attorneys have a consumer Under Attack protection office, division, or bureau and the client may be referred there to lodge a com- Legal assistance attorneys are occasionally Dlaint. consulted by retired military personnel on mat­ Does Support Obligation Include VHA? ters pertaining to adjudications of ’veteran’s benefits, often because of the statutory limit of Legal assistance attorneys often encounter $10 on attorneys fees. The statues, 38 U.S.C. 55 questions concerning a service member’s obli­ 3404(c) and 3405, impose criminal penalties for gation to include any Variable Housing Al­ attorneys who charge more than $10 for repre­ lowance (VHA) received in support payments senting clients before the Veterans Adminis­ the member may be making (or required to tration. make) in the absence of a court order or separa­ tion agreement. Although bills in prior sessions of Congress DA Pam 27-60-148 64

n

which would modify the attorney fee limitation alternative locations for the warnings. One have passed the Senate, a similar proposal in alternative location is that the warning may be the House has never made it out of committee. centered diagonally across the face of the However, in Nat’l Assoc. of Radiation Sur­ solicitation. However, in recent litigation to en­ vivors v. Wulters, 589 F. Supp. 1302 (N.D. Cal. force the regulation, it was argued that under 1984), a federal district court recently held that the prior wording of the regulation, solicitors the $10 statutory cap on attorney’s fees for a were free to print the warning horizontally on VA claim violates due process and the veteran’s the face of the solicitation itself. Additionally, first amendment rights to petition the govern­ some recent solicitations resembling invoices ment for redress of grievances and to speak and have surrounded the required warning with associate freely. printed matter so similar in style and size of The government filed a direct appeal of that type to the warning as to camouflage the warn­ decision to the Supreme Court and on 27 Sep­ ing and render it less conspicuous to the con­ tember 1984, Justice William Rehnquist stayed sumer. an injunction the district court had issued en­ The amended regulation, published at 40 Fed. joining the statutory attorney fee limit. Walters Reg. 5581 (Feb. 11, 1985), clarifies these am­ v. Nat’l Assoc. of Radiation Survivors, No. biguities and rquires that the warning, “THIS IS A-214 (U.S. Sup. Ct., Sept. 27, 1984)). NOT A BILL,” be placed conspiciously on the An excellent synopsis of this case and other page so that it stands apart. Additionally, the cases relating to developments in veteran’s law warning may not be preceded, followed, or sur­ during 1984 may be found at 18 Clearinghouse rounded by words, symbols, or other matter Rev. 1077, January 1985. which reduces its conspiciousness,or which in­ troduces, modifies, qualifies or explains the Forty-Nine State Legislatures warning, such as “Legal Notice Required by - Convening in 1986 Law.” The legislatures of 49 states and Puerto Rico, Legal assistance officers with clients com­ have convened, or will convene, in 1985. Forty­ plaining about such solicitations may advise the five states and Puerto Rico began to meet in clients that all post offices and mail carriers January, Alabama and North Carolina began to have postage-free Consumer Service Cards meet in February, and Florida and Louisiana available for reporting these and other postal began to meet in April. Kentucky is not sched­ complaints. If the problem cannot be resolved uled to hold a regular legislativesession in 1986. using the Consumer Service Card or through direct contact with the local post office, com­ Amended USPS Rule plaints may be forwarded to one of the follow­ on Postal Solicitations ing: The U.S. Postal Service has issued a final rule Consumer Advocate amending the regulation implementing statu­ United States Postal Service tory provisions on the mailing of solicitations in Washington, D.C. 20260 the guise of bills, invoices, or statements of ac­ counts. Generally, such solicitations are con­ Chief Postal Inspector sidered “nonmailable’’ matter in violation of United States Postal Service the Domestic Mail Manual 6 123.4 unless certain Washington, D.C. 20260 warnings are printed on the face of the solici­ tation making it clear that the solicitations are Attorney General Credit Suit Filed merely offers and not bills that have to be paid. The California Attorney General’s Consumer The regulations require warnings to be Law Section has filed suit against a chain of ap­ displayed in capital letters of a color promi­ pliance and electronics stores in the Southern nently contrasting with the background against California area, a financial services operation, which they appear. The regulations also specify and the common officers of these enterprises r 66 DA Pam 27-50-148 charging them with unfair and unlawful prac­ Legal Assistance Publications in DTIC tices, primarily against young, low-ranking Two additional legal assistance publications military recruits. produced by The Judge Advocate General’s The suit names as defendants World Financial School are now available for ordering through Services Center, Inc., its retail stores, Bargain the Defense Technical Information Center. Furnishings, Appliances, and Electronics, and These publications and the numbers by which three corporate officers. Customers were pri­ they may be ordered are: marily young military personnel or others with -All States Guide to State Notarial poor credit histories or no credit experience Laws, DTIC No. B-089092; who were charged exhorbitant prices for ap­ -The Legal Assistance Officer’s Federal pliances and audio and video equipment. The Income Tax Supplement, 1985 edition, stores then transferred the installment sales DTIC NO. B-089093. contracts to World Financial Services, which disclaimed responsibility for the merchandise The 1985 edition of the federal income tax and allegedly used abusive and illegal debt col­ supplement replaces the 1984 edition, which lection practices, such as using profane has been withdrawn from DTIC. Legal assis­ language, harrassing family members and com­ tance offices may wish to retain the 1984 edi­ manders of the military personnel, and the tion, however, to answer questions which may employers of other debtors when the pur­ arise from service members about 1983 tax chasers fell behind in their payments. returns. The suit also alleges that customers were told Information on how to order these publi­ they were required to purchase credit life and cations and other publication produced by disability insurance. Some customers were TJAGSA may be found elsewhere in this issue allegedly charged for insurance without their under the section entitled, “Current Materials consent or knowledge, or charged for insurance of Interest”. that did not exist. Operation Stand-by Contact Persons Legal assistance officers with clients who pur­ Legal assistance officers should be aware of a chased goods from these stores may contact project undertaken by the American Bar As­ California Deputy Attorney General Albert N. sociation’s Standing Committee on Legal Shelden at (619) 237-7764 for further infor­ Assistance For Military Personnel (the LAMP mation. Committee), to foster the creation of “Opera­ tion Stand-by” committees in most states, par­ Wisconsin Consumer Protection Packet ticularly those with a large number of military The Office of Consumer Protection of the personnel. Wisconsin Attorney General has a useful packet Operation Stand-by committees to be of consumer protection materials which legal are created on a state-by-state through the assistance officers may request. Although many basis particular state bar association’s military law of the materials contained within the packet are committee or equivalent, If one exists. State at­ specific to Wisconsin, all can be adapted by torneys invited to place their names on the legal assistance attorneys to produce handouts are Operation Stand-by list for their state and then or fact sheets for local use or articles in installa­ may be contacted by active duty military at­ tion newspapers. torneys who have questions about the law in The packet may be ordered by writing: Office that state. The project is not designed as a refer of Consumer Protection, 123 W. Washington ral service for clients. Instead, it functionsas an Ave.,Post Office Box 7856, Madison, Wisconsin attorney-to-attorney conduit of infomation. 63707. The item appearing below on “work-at­ For example, a legal assistance attorney in home” plans is adapted from one such hand­ Bamberg, Germany may have a question con­ out in the packet. cerning the execution of wiIls in Florida. The DA Pam 27-50-148 66

,­

legal assistance attorney may contact an at­ Maryland torney on the Operation Stand-by list of the Florida State Bar’s Military Law Aid to Ser­ Wallace Dann, Chairman vicemen Committee for an answer to the ques­ Committee on Legal Assistance tion. There is no fee or other charge for the con­ for Military Personnel tact. Rather, it is rendered as a special public Maryland State Bar Association service for military personnel. 305 W. Cheasapeake Ave. Cheasapeake Building, Suite 517 The LAMP Committee currently has seven Towson, Maryland 21204 states participating in the Operation Stand-by project and hopes to add three more states New Jersey within a year. The Legal Assistance Branch has Sanford Rader, Chairman requested complete lists from the seven states State Military Law Committee, and plans to publish these as a part of the next Operation Stand-By revision of the Legal Assistance Officer’sInfor­ Box 621 mation Directory. Perth Amboy, New Jersey 08862 In the interim, legal assistance attorneys may North Carolina contact one of the individuals listed below for further information about their state: Mark S. Sullivan, Director Special Committee on Military Personnel, Connecticut c/o Sullivan and Pearson, P.A. Richard C. Noren, Chairman 1306 Hillsborough Street Connecticut Bar Association Raleigh, North Carolina 27605 Veterans and Military Affairs Committee Virginia Box 191 Putnam, CT 06281 Stephen Glassman, Chairman Special Committee on Military Law District of Columbia 1101 Connecticut Ave., N.W. Neil B. Kabatchnick, Chairman Suite 409 Military Law Committee Washington, D.C. 20036 Bar Association of District of Columbia The foregoing list was compiled by Ms. To­ 1333 New Hampshire Ave., N.W. biane Schwartz, a member of the LAMP Com­ Suite 1100 mittee, who has been appointed by LAMP Com­ Washington, D.C. 20036 mittee Chairman Clayton B. Burton to work on Florida expanding Operation Stand-by to additional states. She has indicated that feedback from John S. Morse, Esq. military attorneys who use Operation Stand-by Military Law Aid To Servicemen Committee lists would be appreciated. Any comments may 4600 W. Kennedy Boulevard be furnished to: Ms. Tobiane Schwartz, 419 6th Tampa, Florida 33609 Street, N.E.,Unit 7, Atlanta, GA 30308.

r,

L 67 DA Pam 27-50-148

1 Professional Responsibility Opinion 84-2 The Judge Advocate General’sProfessional Responsibility Advisory Committee

A conversation between the judge advocate services for the client, we see no absolute re­ of a separate brigade and a soldier facing quirement for this result. However, the reasons elimination proceedings instituted by that for terminating any existing attorney-client brigade led to a complaint that the judge ad­ relationship must be supported in the record. In vocate had engaged in unethical conduct. After this respect, AR 635-200 and AR 15-6 protect a investigation, the judge advocate was found not servicemember who wishes to retain the same to have violated the ABA Model Code of Profes­ military counsel because they afford the right sional Responsibility. However, the Profes­ to individually requested counsel when that sional Responsibility Advisory Committee has counsel is reasonably available. been asked to comment on three questions aris­ In the second situation, where the basis for ing from this situation. elimination is changed and the servicemember The first question is whether “an attorney­ is no longer entitled to a military lawyer, the client relationship [is] formed when a service­ committee believes that the attorney-client member has a counsel for consultation.” The relationship terminates only after all matters answer is yes. The provisions of Army Regu­ encompassing the original relationship have lation 635-200 authorizing a servicemember to been resolved, and counsel has properly ex­ consult military counsel with respect to pending plained the legal implications of the new pro­ P elimination proceedings contemplate that a ceedings to the client. Counsel should continue judge advocate will be made available in a pro­ in the relationship until sure that the client fessional capacity as a lawyer. When legal ad­ understands the new situation. vice is sought from, and given by, a professional The third and final question is whether “a legal advisor in his or her capacity as such, an government counsel, either as command legal attorney-client relationship is formed. This is advisor or trial counsel [may] discuss court­ not affected by the fact that, under the terms in martial or elimination procedures with a which the lawyer’sservices are made available, servicemember who is the subject of a disciplin­ the attorney’s role is limited to that of an ad­ ary or adminsitrative action but who has not yet viser or consulting counsel as distinguished seen counsel.” from an advocate or counsel for representation. Generally, an Army lawyer’s client is the The second question is whether, assuming an Department of the Army and its officers or attorney-client relationship is established as in­ agents acting in their official capacities. With­ dicated above, the relationship continues if the out the consent of the Department of the Army, elimination action is changed. The nature of the an Army lawyer may not undertake represen­ elimination action can change in two ways. tation (either as advisor or advocate) of an in­ First, the servicemember may decide not to dividual servicemember whose interests are ad­ waive administrative board proceedings and verse to that of the organization. See Disci­ thus become entitled to counsel for represen­ plinary Rule 5-105(c). Paragraph 2-4(b), AR tation at the board. Second, the basis for elimi­ 27-1, provides that Army judge advocates may nation may be changed to one in which no only represent individual clients when specifi­ board proceedings are involved. cally “detailed or made available to do so.” The As to the first situation, while the committee Army’s consent to represent individual service­ recognizes that the same counsel normally will members is set forth in such regulations as AR provide both consultation and representational 27-3 (legal assistance program), AR 27-10 DA Pam 27-60-148 68

(defense counsel services), and in AR 15-6 and Unless the judge advocate knows that a ser­ AR 635-200 (consultation and representation vicemember has waived representation by services concerning administrative personnel counsel, all other communications concerning actions). the matter should be made only after the servicemember’s counsel has been informed of Nevertheless, there are situations in which a the meeting and given an opportunity to attend. judge advocate (such as a staff judge advocate, Any other advice given the senricemember claims judge advocate, or trial counsel) is not should be limited to advice to obtain counsel. . permitted to represent individual service­ See Disciplinary Rule 7-104(A). When represen­ members, but is authorized to communicate tation by counsel has been waived and further with a servicemember. Typically these com­ dealings with the servicemember are officially munications concern informing the service­ required, thejudge advocate may conduct them member of (a) the pendency of a proceeding, (b) if he makes it clear that he is not acting as the a decision rendered in a proceeding, or (c) servicemember’s legal counsel, fully discloses various rights which may be available to the the nature of his actual interests in the case servicemember in connection with the proceed­ (especially including any conflicts of interest), ing. and otherwise handles the matter with candor and fairness.

Regulatory Law Item Regulatory Law Office, USALSA

Reports to Regulatory Law Office ters which affect the Army. In accordance with AR 27-40, all judge advo­ The address for the Regulatory Law Office is cates and legal advisors are reminded to con­ Cdr, USALSA, A’ITN: JALS-RL, Falls Church, tinue to report to the Regulatory Law Office Virginia, 22041-6013. The telephone number is (JALS-RL) the existence of any action or pro­ commercial (202) 766-2015 or AUTOVON 289­ ceeding involving communications, transporta­ 2015. tion, or utility services and environmental mat­

CLE News

1. Resident Course Quotas Advocate General’s School deals directly with Attendance at resident CLE courses con­ MACOMs and other major agency training of­ ducted at The Judge Advocate General’sSchool fices. To verify a quota, you must contact the is restricted to those who have been allocated Nonresident Instruction Branch, The Judge Ad­ quotas. If you have not receiveda welcome letter or vocate General’s School, Army, Charlottesville, packet, you do not have a quota. Quota alloca­ Virginia 22903-1781 (Telephone: AUTOVON tions are obtained from local training offices 274-7110, extension 293-6286; commercial which receive them from the MACOMs. Reserv­ phone: (804) 293-6286; FTS: 938-1304). ists obtain quotas through their unit or ARPERCEN, A’ITN: DARP-OPS-JA, 9700 Page 2. TJAGSA cLECourse Schedule Boulevard, St. Louis, MO 63132 if they are non­ unit reservists. Army National Guard personnel May 6-10: 2nd Judge Advocate Operations request quotas through their units. The Judge Overseas (5F-F46). r\ 69 DA Pam 27-60-148

May 13-17: 27th Federal Labor Relations For further information on civilian courses, Course (6F-F22). please contact the institution offering the May 21-24: 20th Fiscal Law Course (5F-F12). course. The addresses are listed below: May 28-June 14: 28th Military Judge Course AAA: American Arbitration Association, 140 (6F-F33). West 6lst Street, New York, NY 10020. (212) June 3-7: 79th Senior Officer Legal Orien­ 383-6616. tation Course (6F-Fl). AAJE: American Academy of Judicial Educa­ June 11-14: Chief Legal Clerks Workshop tion, Suite 903, 2026 Eye Street, N.W., (612-71D/71E/40/60). Washington, DC 20006. (202) 776-0083. June 17-28: JA". ABA: American Bar Association, National In­ June 17-28: JAOAC: Phase VI. stitutes, 760 North Lake Shore Drive, July 8-12: 14th Law Office Management Chicago, IL 60611. (312) 988-6216. Course (7A-713A). ABICLE: Alabama Bar Institute for Continuing July 15-17: Professional Recruiting Training Legal Education, Box CL, University, AL Seminar. 36486. July 16-19: 30th Law of War Workshop AKBA: Alaska Bar Association, P.O. Box 279, (6F-F42). Anchorage, AK 99601. July 22-26: U.S.Army Claims Service Training ALIABA: American Law Institute-American Seminar. Bar Association Committee on Continuing July 29-August 9: 104th Contract Attorneys Professional Education, 4025 Chestnut Course (6F-FlO). Street, Philadelphia, PA 19104. (800)CLE- August 6-May 21 1986: 34th Graduate Course NEWS; (216) 243-1630. (5-27422). ARBA: Arkansas Bar Association, 400 West August 19-23: 9th Criminal Law New Devel­ Markham Street, Little Rock, AR 77201. (501) opments Course (6F-F35). 371-2024. I August 26-30: 80th Senior Officer Legal ARKCLE: Arkansas Institute for Continuing Orientation Course (6F-Fl). Legal Education, 400 West Markham, Little Rock, AR 72201. 3. Civilian Sponsored CLE Courses ASLM: American Society of Law and Medicine, 766 Commonwealth Avenue, Boston, MA July 1985 02216. (617) 262-4990. 7-12: AAJE, The Many Roles of a Judge-and ATLA: The Association of Trial Lawyers of Consequences, Cambridge, MA. America, 1060 31st St., N.W., Washington, 7-12: AAJE, Scholar's Seminar, Cambridge, DC 20007. (202) 965-3600. MA. BNA: The Bureau of National Affairs Inc., 1231 7-12: AAJE, Non-Attorney Judges Academy, 25th Street, N.W., Washington, DC 20037. Cambridge, MA. (800)424-9890; (202) 4524420. 8-12: SBT, Advanced Civil Trial, Fort Worth, CCEB: California Continuing Education of the TX. Bar, University of California Extension, 2300 10-12: PLI, Institute on Employment Law, Shattuck Avenue, Berkeley, CA 94704. (416) San Francisco, CA. 642-0223; (213) 825-5301. 15-19: SBT, Advanced Civil Trial-Personal CCLE: Continuing Legal Education in Colo­ Irljury, Fort Worth, TX. rado, Inc., University of Denver Law Center, 18-19: PLI, Use of Trust,s in Estate Planning, 200 W. 14th Avenue, Denver, CO 80204. Seattle, WA. CICLE: Cumberland Institute for Continuing 21-26: AAJE, Conduct aTrial, Moran, Wy. Legal Education, Samford University, Cum­ 22-26: SBT, Trial-Personal berland School of Law, 800 Lakeshore Drive, Irljury, Houston, TX. Birmingham, AL 36209. Hilton Head, CLEW: Continuing Legal Education for Wis­ r" sc. consin, 906 University Avenue, Suite 309, DA Pam 27-60-148 70

hs

Madison, WI 53706. (608) 262-3833. Center, Room 275, Baton Rouge, LA 70803. DLS: Delaware Law School, Widener College, (504) 388-5837. P.O. Box 7474, Concord Pike, Wilmington, MCLNEL: Massachusetts Continuing Legal Ed­ DE 19803. ucation, Inc., 44 School Street, Boston, MA FBA: Federal Bar Association, 1815 H Street, 02109. N.W., Washington, D.C. 20006. (202) 638­ MIC: The Michie Company, P.O. Box 7587, 0252. Charlottesville, VA 22906. FJC: The Federal Judicial Center, Dolly Madi­ MICLE: Institute of Continuing Legal Educa­ son House, 1520 H Street, N.W., Washington, tion, University of Michigan, Hutchins Hall, DC 20003. Ann Arbor, MI 48109. FLB: The Florida Bar, Tallahassee, FL 32301. MNCLE: Continuing Legal Education, A Divi­ FPI: Federal Publications, Inc., 1725 K Street, sion of the Minnesota State Bar Association, N.W., Washington, DC 20006. (202) 337­ 40 North Milton, St. Paul, MN 55104. 7000. MOB: The Missouri Bar Center, 326 Monroe, GCP: Government Contracts Program, The P.O. Box 119, Jefferson City, MO 65102. George Washington University, Academic (314) 635-4128. Center, T412, 801 Twenty-second Street, NATCLE: National Center for Continuing N.W., Washington, D.C. 20052. (202) 676­ Legal Education, Inc., 431 West Colfax 6815. Avenue, Suite 310, Denver, CO 80204. GICLE: The Institute of Continuing Legal Edu­ NCDA: National College of District Attorneys, cation in Georgia, University of Georgia College of Law, University of Houston, School of Law, Athens, GA 30602. Houston, TX 77004. (713) 749-1571. GTULC: Georgetown University Law Center, NCJFCJ: National Council of Juvenile and 600 New Jersey Avenue, N.W., Washington, Family Court Judges, University of Nevada, DC 20001. P.O. Box 8979, Reno, NV 89507-8978. - HICLE: Hawaii Institute for Continuing Legal NCLE: Nebraska Continuing Legal Education, Education, University of Hawaii School of Inc., 1019 American Charter Center, 206 Law, 1400 Lower Campus Road, Honolulu, South 13th Street, Lincoln, NB 68508. HI 96822. NITA: National Institute for Trial Advocacy, HLS: Program of Instruction for Lawyers, Har­ 1507 Energy Park Drive, St. Paul, MN 55108. vard Law School, Cambridge, MA 02138. (800) 328-4815 ext. 225; (800) 752-4249 ext. ICLEF: Indiana Continuing Legal Education 226; (612) 644-0323. Forum, Suite 202, 230 East Ohio Street, In­ NJC: National Judicial College, Judicial Col­ dianapolis, IN 46204. lege Building, University of Nevada, Reno, IICLE: Illinois Institute for Continuing Legal NV 89557. (702) 784-6747. Education, Chicago Conference Center, 29 NJCLE: Institute for Continuing Legal Educa­ South LaSalle Street, Suite 250, Chicago, IL tion, 15 Washington Place, Suite 1400, 60603. (217) 787-2080. Newark, NJ 07102. ILT: The Institute for Law and Technology, NKUCCL: Northern Kentucky University, 1926 Arch Street, Philadelphia, PA 19103. Chase College of Law, 1401 Dixie Highway, IPT: Institute for Paralegal Training, 235 South Covington, KY 41011. (606) 527-5444. 17th Street, Philadelphia, PA 19103. NLADA: National Legal Aid & Defender As­ sociation, 1625 K Street, N.W., Eighth Floor, KCLE: University of Kentucky, College of Washington, DC 20006. (202) 452-0620. Law, Office of Continuing Legal Education, NMCLE: State Bar of New Mexico, Continuing Lexington, KY 40506. (606) 257-2922. Legal Education, P.O. Box 25883, Albuquer­ LSBA: Louisiana State Bar Association, 210 que, NM 87125. (505) 842-6132. O’KeefeAvenue, Suite 600, New Orleans, LA 70112. (800) 421-5722; (504) 566-1600. NWU: Northwestern University School of Law, LSU: Center of Continuing Professional Devel­ 357 East Chicago Avenue, Chicago, IL 60611. opment, Louisiana State University Law NYSBA: New York State Bar Association, One 71 DA Pam 27-50-148

!- Elk Street, Albany, NY 12207. (618) Program of Advanced Professional Devel­ 463-3200. opment, College of Law, 200 West Four­ NYSTLA: New York State Trial Lawyers As­ teenth Avenue, Denver, CO 80204. sociation, Inc., 132 Nassau Street, New York, UHCL: University of Houston, College of Law, NY 10038. Central Campus, Houston, TX 77004. NYULS: New York University, School of Law, UMCC: University of Miami Conference Cen­ 40 Washington Sq. S., Room 321, New York, ter, School of Continuing Studies, 400 S.E. NY 10012. (212) 598-2756. Second Avenue, Miami, FL 33131. (305) NYUSCE: New York University, School of Con­ 372-0140. tinuing Education, Continuing Education in UMCCLE: University of Missouri-Columbia Law and Taxation, 11 West 42nd Street, New School of Law, Office of Continuing Legal York, NY 10036. (212) 790-1320. Education, 114 Tate Hall, Columbia, MO OLCI: Ohio Legal Center Institute, P.O. Box 65211. 8220, Columbus, OH 43201. UMKC: University of Missouri-Kansas City, PATLA: Pennsylvania Trial Lawyers Associa­ Law Center, 5100 Rockhill Road, Kansas Ci­ tion, 1405 Locust Street, Philadelphia, PA ty, MO 64110. (816) 276-1648. 19102. UMLC: University of Miami Law Center, P.O. PBI: Pennsylvania Bar Institute, P.O. Box Box 248087, Coral Gables, FL 33124. (305) 1027, 104 South Street, Harrisburg, PA 284-4762. 17108. (800) 932-4637; (717) 233-6774. UTCLE: Utah State Bar, Continuing Legal Ed­ PLI: Practising Law Institute, 810 Seventh ucation, 425 East First South, Salt Lake City, I Avenue, New York, NY 10019. (212) 765­ UT 84111. I 6700 ext. 271. VACLE: Joint Committee of Continuing Legal SBM: State Bar of Montana, 2030 Eleventh Education of the Virginia State Bar and the Avenue, P.O. Box 4669, Helena, MT 59601. Virginia Bar Association, School of Law, P SBT: State Bar of Texas, Professional Devel­ University of Virginia, Charlottesville, VA opment Program, P.O. Box 12487, Austin, TX 22901. (804) 924-3416. 78711. (512) 475-6842. VUSL: Villanova University, School of Law, SCB: South Carolina Bar, Continuing Legal Ed­ Villanova, PA 19085. ucation, P.O. Box 11039, Columbia, SC WSBA: Washington State Bar Association, 605 29211. Madison Street, Seattle, WA 98104. SLF: The Southwestern Legal Foundation, P.O. Box 707, Richardson, TX 75080. (214) 690­ 2377. Mississippi Begins Mandatory CLE SMU: Continuing Legal Education, School of On 16 January 1985, the Supreme Court of Law, Southern Methodist University, Dallas, Mississippi authorized the Board of Bar Com­ TX 75275. missioners to implement rules and regulations TBA: Tennessee Bar Association, 3622 West for mandatory CLE, to be effective on and after End Avenue, Nashville, TN 37205. 1 January 1985. All attorneys licensed to prac­ TOURO: Touro College, Continuing Education tice law in Mississippi, unless exempted, must Seminar Division Office, Fifth Floor South, attend a minimum of twelve hours of approved 1120 20th Street, N.W., Washington, DC 20036, CLE each calendar year. Under Rule 2, all ac­ (202) 337-7000. tive duty members of the US Armed Forces are TUCLE: Tulane Law School, Joseph Menick exempt from this requirement. Each service Jones Hall, Tulane University, New Orleans, member, however, must claim the exemption LA 70118. each year before 31 December on a form sup UDCL: University of Denver College of Law, plied by the CLE Commission. To obtain this Seminar Division Office, Fifth Floor, 1120 form, contact the Commission of CLE, Missis­ 20th Street, N.W., Washington, DC 20036, sippi State Bar, PO Box 2168, Jackson, Missis­ (202) 237-7000 and University of Denver, sippi 39225-2168. P DA Pam 27-60-148 72 -. 4. Mandatory Continuing Legal Education Mississippi 31 December annually Jurisdictions and Reporting Dates Montana 1 April annually Jurisdiction Renortina Month Nevada 16 January annually North Dakota 1 February in three year in­ Alabama 31 December annually tervals Colorado 31 January annually South Carolina 10 January annually Georgia 31 January annually Washington 31 January annually Idaho 1 March every third anni­ Wisconsin 1 March annually versary of admission Wyoming 1 March annually Iowa 1 March annually For addresses and detailed information, see the Kentucky 1July annually January 1985 issue of The Army Lawyer. Minnesota 1 March every third anni­ versary of admission

Current Material of Interest

1. TJAGSA Materials Available Through Once registered, an office or other orga­ Defense nization may open a deposit account with the Technical Information Center National Technical Information Center to facili­ tate ordering materials. Information concerning Each year TJAGSA publishes deskbooks and this procedure will be provided when a request materials to support resident instruction. Much for user status is submitted. of this material is useful to judge advocates and r­ government civilian attorneys who are not able Users are provided biweekly and cumulative to attend courses in their practice areas. The indices. These indices are classified as a single School receives many requests each year for confidential document and mailed only to those these materials. Because such distribution is not DTIC users whose organizations have a facility within the School’s mission, TJAGSA does not clearance. This will not affect the ability of have the resources to provide these publica­ organizations to become DTIC users, nor will it tions. affect the ordering of TJAGSA publications through DTIC. All TJAGSA publications un­ In order to provide another avenue of avail­ are classified and the relevant ordering informa­ ability, some of this material is being made tion, such DTIC numbers and titles, will be available through the Defense Technical In­ as published in Army formation Center (DTIC). There are two ways The Lawyer. an office may obtain this material. The first is to get it through a user library on the installation. The followingTJAGSA publications are avail­ Most technical and school libraries are DTIC able through DTIC: (The nine character identi­ “users.” If they are “school” Libraries, they fier beginning with the letters AD are numbers may be free users. The second way is for the of­ assigned by DTIC and must be used when order­ fice or organization to become a government ing publications.) user. Government agency users pay five dollars ADNUMBER TITLE per hard copy for reports of 1-100 pages and seven cents for each additional page over 100, AD BO86941 Criminal Law, Procedure, or ninety-five cents per fiche copy. The neces­ Pretrial Process/JAGS-ADC­ sary information and forms to become regis­ 84-1 (160 p@). tered as a user may be requested from: Defense AD BO86940 Criminal Law, Procedure, Technical Information Center, Cameron Sta­ Trial/JAGS-ADC-84-2 (100 tion, Alexandria, VA 22314. Pgs). (-\ 73 DA Pam 27-50-148

("% ("% AD BO86939 Criminal Law, Procedure, AD BO87842 Environmental Law/JAGS- Posttrial/JAGS-ADC-84-3 (80 ADA-84-5 (176 pgs). PgS). AD BO87849 AR 15-6 Investigations: Pro­ AD BO86938 Criminal Law, Crimes & De­ grammed Instruction/JAGS- fenses/JAGS-ADC-84-4 (180 ADA-84-6 (39 p@). Pgs). AD BO87848 Military Aid to Law Enforce­ AD BO86937 Criminal Law, Evidence/ ment/JAGS-ADA-84-7 (76 JAGS-ADC-84-6 (90 pgs). P@>. AD BO86936 Criminal Law, Constitutional AD BO87774 Government Information Evidence/J AGS-ADC-84-6 PracticesIJAGS-ADA-84-8 (200 Pgs). (301 Pgss). AD BO86935 Criminal Law, Index/JAGS- AD BO87746 Law of Military Installations/ ADC-84-7 (75 PgS). JAGS-ADA-84-9 (268 pgs). AD BO78119 Contract Law, Contract Law AD BO87850 Defensive Federal Litigation/ Deskbook/JAGS-ADK-83-2 JAGS-ADA-84-10 (252 pgs). (360 Pgs). AD BO87845 Law of Federal Employment/ AD BO78095 Fiscal Law Deskbook/JAGS- JAGS-ADA-84-11 (339 PB). ADK-83-1 (230 pgs). AD BO87846 Law of Federal Labor-Man­ AD BO79016 Administrative and Civil agement Relations JAGS- Law, All States Guide to ADA-84-12 (321 pgS). Garnishment Laws & Proce­ AD BO87745 Reports of Survey and Line of dures/JAGS-ADA-84-1 (266 Duty DeterminatiodJAGS- PgS). ADA-84-13 (78 PB). AD BO77739 All States Consumer Law AD BO86999 Operational Law Handbook/ P GuideIJAGS-ADA-83-1 (379 JAGS-DD-84-1 (55 pgs). PEP) The following CID publication is also available AD BO89093 Federal Income Tax LAO through DTIC: Supplement/JAGS-ADA-85-1 (129 Pgs). AD A145966 USACIDC Pam 195-8, Crim­ AD BO77738 All States Will GuiddJAGS- inal Investigations, Violation ADA-83-2 (202 pm). of the USC in Economic AD BO80900 All States Marriage & Divorce Crime Investigations (approx. GuideIJAGS-ADA-84-3 (208 75 PgS). PgS). Those ordering publications are reminded All-States Guide to State AD BO89092 that they are for government use only. Notarial LawdJAGS-ADA-85­ 2 (56 Pgs). AD BO87847 Claims Programmed Text/ JAGS-ADA-84-4(119 PgS).

1 2. Regulations & Pamphlets Number Title Change Date AR 135-32 Retention in an Active Status After Qualification for Retired Pay 15 Feb 85 UPDATE 3 Officer Ranks Personnel 30 Jan 85 UPDATE 11 Reserve Components Personnel 1 Feb 85 DA Pam 27-162 Legal Services - Claims 15 Dec 84 P DA Pam 27-60-148 74 c

9. Articles Martineau, Frivolous Appeals: 2R.e Uncertuin Federal Response, 1984 Duke L.J. 846. Blecker, Beyond ‘1984: Undercover in Aw­ Patterson, Property Rights in the Balance- ica-Sqico to Abscam, 28 N.Y.L. Sch. L. Buryer Court and Constitutional Property, Rev. 823 (1984). The 43 Md. L. Rev. 618 (1984). Brudno, The Nuremberg Experience, 19 Tex. Int’l L.J. 633 (1984). Quirk, State Community Property Laws: Cop­ Craddick, Blood-Alcohol Tests: Neville and Its ing With Federal Tax and Pension Laws, 19 Progeny, 20 Crim. L. Bull. 493 (1984). Gonz. L. Rev. 481 (1983/84). Effland, Will Construction Under the Uniform Sloan & Hall, Coqfidentiality of Psychothera­ Probate Code, 63 Or. L. Rev. 337 (1984). peutic Records, 6 J. Legal Med, 435 (1984). Everett, Some Observations on Appellate Re­ Spak, Military Justice: The Oxynwran of the view of Courts-Martial Convictions-Past, 19805, 20 Cal. W.L.Rev. 436 (1984). Present, and Future, Fed. B. News & J., Dee. Vance, Striking the Balance: Congress and the 1984, at 420. President Under the War Powers Resolution, Guttenberg, The Tax Reform Act of 1984: An 133 U. Pa. L. Rev. 79 (1984). Analysis of Signvieant Provisions 4ffecting Verkuil, A Study of Immigration Procedures, Individuuk, 9 Tax’n Individuals 3 (1986). 31 U.C.L.A. L. Rev. 1142 (1984). Hartigan, From Dean and Crown to the TaxRe­ Wiseman, The “Reasonableness” of the Inves­ form Act of 1984: Taxation of Interest-Free tigative Detention: An “Ad Hoc” Constitu­ Loans, 60 Notre Dame L. Rev. 31 (1984). tional Test, 67 Marq. L. Rev. 641 (1984). Huff, The Irrevocable LVe Insurance bt,38 Comment, Withholding Treatment from Seri­ Ark. L. Rev. 139 (1984). ously Ill and Handicapped Iqfants: Who Levine, Preventing Defense Counsel Error-An Should Make the Decision and How?-An Analysis of Some Ineffective Assistance of Analysis of the Governnzent’s Respme, 33 Counsel Cluims and Their Implications for DePaul L. Rev. 496 (1984). Professional Regulation, 16 U. Tol. L. Rev. Note, FOLA Exemption 3 and the CU: An Ap­ 1276 (1984). proach to End the Confusion and Contro­ Mahoney, Support and Custody Aspects of the versy, 68 Minn. L. Rev. 1231 (1984). Stepparent-Child Relationship, 70 Cornell L. The Conceptual Foundations of Labor Law, 61 Rev. 38 (1984). U. Chi. L. Rev. 946 (1984).

By Order of the Secretary of the Army:

JOHN A. WICKHAM, JR. General, United States Army Chief of Staff

Official: DONALD J. DELANDRO Brigadier General, United States Army The Adjutant General

*U.S. GOVERNMENT PRINTING OFFICE: 1983 - 816:ll