Navy-Marine Corps Court of Criminal Appeals (NMCCA) Digest
Jan 1, 2000 – Current Term

  1. First Principles
    1. Jurisdiction
      1. Generally
      2. In Personam
        1. Sherman 201200031 (21 June 12) ("We review questions of personal jurisdiction de novo. ...A service member becomes subject to court-martial jurisdiction upon enlistment and jurisdiction attaches once action with a view to trial of that person is taken. R.C.M. 202(c)(1). Actions with a view to trial include pretrial restraint and preferral of charges. R.C.M. 202(c)(2); ... Once it attaches, jurisdiction continues "for all purposes of trial, sentence, and punishment, notwithstanding the expiration of that person's term of service." R.C.M. 202(c); .... However, jurisdiction terminates once a valid discharge is executed. R.C.M. 202(a), Discussion; ...To be considered valid, a discharge must include: 1) delivery of a valid discharge certificate; 2) a final accounting of pay; and 3) completion of the "clearing" process required under appropriate service regulations for separation. ...Thus, it is immaterial whether the service member reaches his or her expiration of service if court-martial jurisdiction has attached and the service member has not been validly discharged.")
        2. Lawanson 201200187 (31 Aug 12) (no personal jurisdiction over accused after he was given DD 214, final pay settlement)
        3. Lawanson 201200187 (31 Aug 12) (no personal jurisdiction over accused after he was given DD 214, final pay settlement)
      3. Subject Matter
        1. Smith 201100594 (27 Dec 12) (Jurisdiction over officer's fraudulent appointment once she received pay and allowances)
        2. Velazquez 200602421 (16 Aug 07) (Subject matter jurisdiction exists over acts of consensual adultery)
      4. Of Trial Court
        1. Pieper 201100487 (8 May 12) (18 U.S.C. §2252A does not apply extraterritorially at Naval Air Facility Atsugi)
        2. Castillo 201200020 (31 May 12) (jurisdiction valid where charges preferred by retired member of armed forces)
        3. Castillo 201200020 (31 May 12) (jurisdiction valid where charges preferred by retired member of armed forces)
      5. Of Courts of Criminal Appeals
        1. Suttle NMCCA 201100030 (21 Oct 11)(No jurisdiction to consider legality of confinement in military brig where appellant held under the Status of Forces Agreement with Japan).
        2. Wuterich 68 M.J. 511 (N.M.Ct.Crim.App. 2009) (Jurisdiction to adjudicate government's appeal of MJ's order quashing government subpoena to a third party television news company under Article 62 of the UCMJ)
        3. Dossey 66 M.J. 619 (N.M.Ct.Crim.App. 2008) (Jurisdiction under Article 62 because a mistrial "terminates the proceedings" before the particular court-martial to which a charge has been referred)
      6. Continuing Jurisdiction and Remands
        1. Lee 72 M.J. 581 (N.M.Ct.Crim.App. 2013) (Court had continuing jurisdiction even though all charges and specifications upon which the court authorized a rehearing had been withdrawn and dismissed because the rehearing was not independent of the preceding court-martial and appeal and it involved a charge and two specifications directly drawn from the same operative facts and events that gave rise to the original trial and charges that were the subject of the rehearing order)
    2. Constitutional Matters
      1. Generally
      2. Confessions
        1. Lee 72 M.J. 581 (N.M.Ct.Crim.App. 2013) (Court had continuing jurisdiction even though all charges and specifications upon which the court authorized a rehearing had been withdrawn and dismissed because the rehearing was not independent of the preceding court-martial and appeal and it involved a charge and two specifications directly drawn from the same operative facts and events that gave rise to the original trial and charges that were the subject of the rehearing order)
        2. Lee 72 M.J. 581 (N.M.Ct.Crim.App. 2013) (Court had continuing jurisdiction even though all charges and specifications upon which the court authorized a rehearing had been withdrawn and dismissed because the rehearing was not independent of the preceding court-martial and appeal and it involved a charge and two specifications directly drawn from the same operative facts and events that gave rise to the original trial and charges that were the subject of the rehearing order)
      3. Confrontation
        1. Brown 201100516 (28 Nov 12)(right not violated by presence of victim advocate with minor victim during testimony)
        2. Porter 201100188 (28 Jun 12)(pages of machine-generated data in drug lab report also included signatures that appeared to certify that controls and standards were met; after Bullcoming and Sweeney those certifications converted the pages into testimonial hearsay granting appellant the right to confront the signers; denial of that right was not harmless beyond a reasonable doubt)
        3. Cabrera-Frattini 65 M.J. 950 (N.M.Ct.Crim.App. 2008) (Confrontation satisfied by deposition of child witness who was unavailable at trial)
        4. Smith 201100433 (28 Sep 12) (Military judge's limitations on defense ability to cross-examine sexual assault victim about her mental condition and personal history did not violate Confrontation Clause)
      4. Cruel and Unusual Punishment
        1. Parker 65 M.J. 626, 629 (N.M.Ct.Crim.App. 2007) (Atkins v. Virginia held that imposition of the death penalty on the mentally disabled constitutes cruel and unusual punishment but did not define who meets that standard; Court adopts definition from American Association on Intellectual and Developmental Disabilities)
        2. Walker 66 M.J. 721 (N.M.Ct.Crim.App. 2008) (Confinement for more than ten years on death row, during appellate review, not cruel and unusual punishment)
      5. Double Jeopardy
        1. Walker 66 M.J. 721 (N.M.Ct.Crim.App. 2008) (error in initial trial that led to retrial did not fall within exception to Constitution's general prohibition against retrial after conviction, violating Double Jeopardy clause)
        2. Fields 201100455 (12 Apr 12) (appellant protected from Double Jeopardy by whole record, not only specifications)
        3. Miles 71 M.J. 671 (N.M.Ct.Crim.App. 2012) (Terminal element charged in the disjunctive did not implicate Double Jeopardy)
        4. Sullivan� 200602356 (18 Jul 2007) (Rejecting Double Jeopardy challenge to offenses dismissed with prejudice by Convening Authority under PTA where new charges brought upon the discovery of new evidence)
      6. Due Process
        1. Lee 200600543 (21 Feb 13) (The timeline necessitating appellate review of complex issues and a rehearing, which affords due process, is not itself a due process violation.)
        2. Juckniewitz 201200441 (28 Feb 13) (Due Process required consideration of appellant's understanding of PTA term, notwithstanding that literal, objective interpretation might deny him relief)
        3. Stigall 201200265 (30 Nov 12) ("We readily conclude that the over 8-month delay by the CA in taking his action, combined with the apparent loss of the record, resulting in nearly ten years passing prior to docketing, without explanation, is facially unreasonable and establishes a violation of the appellant's due process right to timely appellate review"; but error was harmless due to discharge adjudged at a separate court-martial)
        4. Valentin 201000683 (17 May 12) (Where CA failed to act within 120 days, due process not violated because record was 15 volumes, with 1900 pages of transcript and 1000 pages of exhibits, numerous transcription errors required correction, and appellant was unable to show "particularized anxiety" with a nexus to post-trial delay)
        5. Hickerson 71 M.J. 659 (N.M.Ct.Crim.App. 2012) (It was not plain error for violation of appellant's right to notice where the government failed to allege the underlying state statute making appellant's sexual activity a crime but the judge took judicial notice of the relevant statute and appellant raised no objection)
        6. Garner 67 M.J. 734 (N.M.Ct.Crim.App. 2009) (right to notice satisfied where appellant was properly apprised of the theory of liability under which he was pleading guilty when service-discrediting conduct was added to the charge sheet, appellant made no objection to the addition, and MJ explained the separate theories of liability)
        7. Garner 67 M.J. 734 (N.M.Ct.Crim.App. 2009) (right to notice satisfied where appellant was properly apprised of the theory of liability under which he was pleading guilty when service-discrediting conduct was added to the charge sheet, appellant made no objection to the addition, and MJ explained the separate theories of liability)
        8. Garner 67 M.J. 734 (N.M.Ct.Crim.App. 2009) (right to notice satisfied where appellant was properly apprised of the theory of liability under which he was pleading guilty when service-discrediting conduct was added to the charge sheet, appellant made no objection to the addition, and MJ explained the separate theories of liability)
      7. Equal Protection
        1. Garner 67 M.J. 734 (N.M.Ct.Crim.App. 2009) (right to notice satisfied where appellant was properly apprised of the theory of liability under which he was pleading guilty when service-discrediting conduct was added to the charge sheet, appellant made no objection to the addition, and MJ explained the separate theories of liability)
        2. Gaines 61 M.J. 689 (N.M.Ct.Crim.App. 2005) (Lack of fixed terms for appellate judges of the Navy and Marine Corps does not violate Equal Protection)
        3. Gaines 61 M.J. 689 (N.M.Ct.Crim.App. 2005) (Lack of fixed terms for appellate judges of the Navy and Marine Corps does not violate Equal Protection)
        4. Gaines 61 M.J. 689 (N.M.Ct.Crim.App. 2005) (Lack of fixed terms for appellate judges of the Navy and Marine Corps does not violate Equal Protection)
      8. First Amendment
        1. Wuterich 68 M.J. 511 (N.M.Ct.Crim.App. 2009) (a reporter's privilege does not apply in military courts-martial under the First Amendment)
      9. Right to Counsel
        1. Saberon 201200103 (5 Mar 2013) (military judge did not deny right to counsel of choice after carefully balancing Miller factors and finding appellant's request for additional continuance untimely)
      10. Right to Present a Defense
      11. Right to Jury Trial
      12. Right to Speedy Trial
        1. Haridat 201100275 (10 Jan 12) (delay in proceedings not violation of right when Government exercises due diligence)
      13. Search and Seizure
        1. Murray 201200295 (21 Aug 12) (MJ did not abuse discretion by concluding SANE exam was not search incident to lawful arrest)
        2. Bowles 201100010 (31 Oct 11) (command assessment of network vulnerability, which led to the discovery of child pornography on the appellant's external hard drive, was not a search for Fourth Amendment purposes)
        3. Strader 200600385 (3 Apr 08) (search of appellant's computer by his roommate and civilian acquaintance was private, not Fourth Amendment, search; police search that stayed within bounds of the private search also not a Fourth Amendment search)
        4. Weston 66 M.J. 544 (N.M.Ct.Crim.App. 2008) (motion to suppress denied, even though appellant refused to consent to the search of his home, because his wife possessed apparent authority and voluntarily consented while appellant was not present)
      14. Self-Incrimination
        1. Serianne 68 M.J. 580 (N.M.Ct.Crim.App. 2009), affirmed by 69 M.J. 8 (C.A.A.F. 2010) (compelled disclosure of a civilian arrest was an incriminating testimonial communication in violation of the Fifth Amendment and no regulatory exception or military necessity applied to permit the compulsion)
        2. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (right not implicated by Government's assertion that appellant was "cocky" during interview)
        3. Mott 200900115, (30 Apr 12) (waiver is valid where waiver is voluntary, knowing and intelligent)
  2. Military Justice Personnel
    1. Defense Function
      1. Generally
      2. Responsibilities
        1. Danley 70 M.J. 556 (N.M.Ct.Crim.App 2011) (" Unfortunately, since Blunk, improper disclosure of client communications has been a recurring subject of appellate litigation.... We emphasize once again, as we did in Williams, �defense counsel should not place such information before the court-martial, the staff judge advocate, or the convening authority.'")
      3. Detailed Military Counsel
      4. Individual Military Counsel
        1. Danley 70 M.J. 556 (N.M.Ct.Crim.App 2011) (" Unfortunately, since Blunk, improper disclosure of client communications has been a recurring subject of appellate litigation.... We emphasize once again, as we did in Williams, �defense counsel should not place such information before the court-martial, the staff judge advocate, or the convening authority.'")
      5. Civilian Counsel
      6. Appellate Counsel
      7. Experts, Investigators�Appointment to Defense Team
      8. Effective/Ineffective Assistance of Counsel
        1. McGuire 201000611 (13 Jan 12) (appellant claimed IAC because his DC did not object to the inappropriate assessment of maximum sentence but it was corrected on appeal so no analysis of IAC was made)
        2. Hutchins 200800393 (20 Mar 12) (failure to provide evidence of mental health based on defense strategy was not IAC)
        3. Jones 201100592 (20 Mar 12) (appellant was advised to seek local counsel for specifics of state law matter, not IAC)
        4. Valentin 201000683 (17 May 12) (not IAC when strategy of DC was not fully understood by appellant)
    2. Prosecution Function
      1. Generally
      2. Trial Counsel
      3. Discretion
      4. Misconduct
        1. Harris 66 M.J. 781 (N.M.Ct.Crim.App. 2008) (no prosecutorial misconduct where prosecutor prudently asked defense witness whether he wanted to consult counsel and forwarded witness's affidavit containing admissions of criminal conduct beyond his jurisdiction to the police, and did not ask police to coerce witness into changing his story or discourage him from testifying)
        2. Pimienta 66 M.J. 619 (N.M.Ct.Crim.App. 2008) (not plain error when TC called appellant a liar when charged with making a false official statement)
        3. Boyer 201100523 (27 Dec 12) (misconduct where TC urged members to protect victim, disparaged accused and defense counsel, argued facts not in evidence)
    3. Military Judge
      1. Generally
      2. Qualifications and Appointment of
      3. Duties and Responsibilities
        1. Glowner 201100013 (26 Jul 11) (MJ did not err in failing to determine if appellant understood the consequences of and desired a BCD because appellant made numerous statements requesting a BCD, one would have been awarded even if not requested, and there was no allegation by appellant that the request was error)
      4. Instructions
        1. Stratton 201000637 (26 Jan 12) (MJ erred in his instructions that non-forcible sodomy under Art. 125 was an LIO of forcible sodomy)
        2. McGuire 201000611 (31 Jan 10) (MJ denied request for a voluntary intoxication instruction for Art. 133 offense, but if error existed it was harmless)
        3. Roumer 201100081 (31 Jan 12) (MJ did not give instruction on advanced consent and because there was no evidence to raise that as a defense, it was not an error)
        4. Valentin 201000683 (17 May 12) (incorrect instruction of constructive force as it pertains to rape of a child)
        5. Scogin 201200003 (31 Aug 12) (proper false exculpatory statement instruction where accused gave specific explanations instead of general denials of guilt)
        6. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (MJ implicitly included concept of "cool mind" in instruction regarding premeditated murder)
      5. Conduct/Misconduct, Recusal/Disqualification
        1. Bremer __ M.J. __ (N.M.Ct.Crim.App. 2013) (MJ displayed an apparent bias when he made "hyperbolic" statements during a PME with student judge advocates prior to the court-martial, and, in response to a defense motion to disqualify himself, acted much like a witness or advocate)
        2. Young 201200135 (28 Feb 13) (military judge's examination of accused became argumentative and demeaning, causing a reasonable question about fairness and impartiality of court-martial)
        3. Young 201200135 (28 Feb 13) (military judge's examination of accused became argumentative and demeaning, causing a reasonable question about fairness and impartiality of court-martial)
        4. Smith 201100433 (28 Sep 12) (military judge did not abandon his impartiality by making sue sponte objections)
        5. Boudreaux 201100606 (29 Mar 12) (MJ was not disqualified because she supervised TC of a companion case)
        6. Gifford 201200169 (14 Feb 13) (MJ did not abuse discretion in not recusing himself when he had presided over appellant's prior special court-martial in which appellant pled guilty because the cases were completely unrelated)
        7. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (MJ's exposure to general facts of the case through involvement in two related cases did not require MJ to recuse himself when voir dire questioning did not reveal any inherent bias, MJ did not act as trier of fact in appellant's case or offer any opinion regarding the credibility of witnesses, and there was no evidence of partiality connected to the prior cases)
    4. Court Members
      1. Generally
      2. Challenges for Cause
        1. Lugo 201200102 (29 Jan 13) (Member's prior experience as SAVI/SAPR did not establish implied or actual bias)
        2. Moore 201200342 (8 Jan 13) (member not inflexible on sentence where he had trouble agreeing to "no punishment")
        3. Hutchins 200800393 (20 Mar 12) (member who had training on "dead check" that appellant performed was not a valid cause challenge)
        4. Valentin 201000683 (17 May 12) (judge properly tested for bias of members)
        5. Walker 201100463 (26 Sep 12) (peremptory challenge of same member waives appeal of challenge for cause)
      3. Eligibility/Selection
        1. Pump 201200383 (27 Dec 12) (CWO5 is commissioned officer for purposes of convening order)
      4. Enlisted Members
      5. Impeachment of Verdict/Sentence
      6. Interrogation by Members
      7. Peremptory Challenges
        1. Walker 201100463 (26 Sep 12) (peremptory challenge of same member waives appeal of challenge for cause)
      8. President of Courts-Martial
      9. Pretrial Publicity
        1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (no abuse of discretion in denying motion for a change in venue because pretrial publicity did not result in prejudice among the members)
    5. Staff Judge Advocate
      1. Generally
      2. Pretrial Advice
        1. McCoy 200101209 (20 Apr 06) (discussing SJA's prosecutorial pretrial role and finding no need for disqualification on the basis of comments that he believed the allegations against appellant)
        2. McCoy 200101209 (20 Apr 06) (discussing SJA's prosecutorial pretrial role and finding no need for disqualification on the basis of comments that he believed the allegations against appellant)
      3. Post-Trial Recommendation
        1. Smith 201100594 (27 Dec 12) (If SJA identifies error he must provide reasoned guidance to CA concerning how to cure it)
      4. Qualifications/Disqualifications
    6. Convening Authority
      1. Generally
      2. Referral
      3. Immunity, Grants of
        1. Walton 201000508 (20 Sep 11) (no de facto immunity when there was neither an indication that the interrogating official had authorization to immunize appellant nor an indication that appellant relied upon statements made during the interview suggesting immunity)
      4. Clemency
      5. Action
        1. Warp 201200111 (17 Jan 13)(action need not state CA considered clemency matters)
        2. Warren 71 M.J. 505 (N.M.Ct.Crim.App. 2012)(CA action must be considered as a whole to determine if facially clear or ambiguous; mention of discharge in "Execution" implies that it is approved)
        3. Valentin 201000683 (17 May 12) (error in court-martial order did not affect outcome of trial)
        4. Hall 201200207 (23 Oct 12) (no prejudice where CA viewed court-martial order that did not state a charge had been dismissed)
        5. Cheatum 201100534 (29 Mar 12) (CA unlawfully altered initial action pursuant to RCM 1107(f)(2) but with no prejudice)
        6. Collins 201100538 (29 Mar 12) (CA not required to provide in action a provision for deferment of automatic forfeitures)
        7. Johnson 201100629 (5 Apr 12) (CA failed to take action required by PTA)
        8. Gillespie 201200024 (12 Apr 12) (CA's action was inconsistent with PTA)
        9. Tarniewicz 70 M.J. 543 (N.M.Ct.Crim.App. 2011) (Language suggesting that CA's action executed a punitive discharge was a legal nullity)
      6. Disqualification
        1. Tarniewicz 70 M.J. 543 (N.M.Ct.Crim.App. 2011) (Language suggesting that CA's action executed a punitive discharge was a legal nullity)
  3. Core Criminal Law Subjects
    1. Crimes
      1. Article 77: Principals
        1. Caldwell 70 M.J. 630 (N.M.Ct.Crim.App. 2011), reversed on other grounds at Caldwell, __ M.J. __ (C.A.A.F. 2013) (Appellant's actions of viewing a friend place a belt in their purse and indicating their approval was enough to sustain a guilty plea of aiding and abetting larceny)
        2. Caudill 65 M.J. 756 (N.M.Ct.Crim.App. 2007) ("a plea of guilty to any offense which is premised on an Article 77, UCMJ, theory of liability is sufficiently complex to require that the relevant elements and definitions be clearly explained by the military judge prior to the acceptance of a guilty plea;" appellant's guilty plea to introduction of methamphetamines with intent to distribute was set aside due to MJs failure to fully explain the relevant elements and definitions of the charge)
        3. Baez 201200218 (18 Dec 12) (guilty plea was held provident even though the MJ improperly defined the term "use" because the appellant proffered his history of drug use, indicating he understood the proper definition)
      2. Article 78: Accessory After the Fact
        1. Baez 201200218 (18 Dec 12) (guilty plea was held provident even though the MJ improperly defined the term "use" because the appellant proffered his history of drug use, indicating he understood the proper definition)
        2. Baez 201200218 (18 Dec 12) (guilty plea was held provident even though the MJ improperly defined the term "use" because the appellant proffered his history of drug use, indicating he understood the proper definition)
        3. Baez 201200218 (18 Dec 12) (guilty plea was held provident even though the MJ improperly defined the term "use" because the appellant proffered his history of drug use, indicating he understood the proper definition)
        4. Baez 201200218 (18 Dec 12) (guilty plea was held provident even though the MJ improperly defined the term "use" because the appellant proffered his history of drug use, indicating he understood the proper definition)
      3. Article 79: Conviction of Lesser Included Offenses
        1. Miergrimado 200501128 (22 Feb 07), affirmed at 66 M.J. 34 (C.A.A.F. 2008)(appellant was charged with attempted premeditated murder but ultimately convicted on attempted voluntary manslaughter after shooting a fellow Marine in the neck following an altercation; Article 79 automatically puts defense council on notice to the possibility of a lesser included offense instruction and, as such, the conviction was valid for while premeditation was a contested issue, the heat of passion standard for voluntary manslaughter could be found beyond a reasonable doubt by a rational fact trier)
        2. Miergrimado 200501128 (22 Feb 07), affirmed at 66 M.J. 34 (C.A.A.F. 2008)(appellant was charged with attempted premeditated murder but ultimately convicted on attempted voluntary manslaughter after shooting a fellow Marine in the neck following an altercation; Article 79 automatically puts defense council on notice to the possibility of a lesser included offense instruction and, as such, the conviction was valid for while premeditation was a contested issue, the heat of passion standard for voluntary manslaughter could be found beyond a reasonable doubt by a rational fact trier)
      4. Article 80: Attempts
        1. Hickerson 71 M.J. 659 (N.M.Ct.Crim.App. 2012) (appellant took a substantial step toward completion of the crime of attempted enticement of a minor in de-conflicting his work schedule, discerning when her mother would be absent, ensuring she was not a police officer, discussing specific sexual activity, and asking her what items she wanted him to bring)
        2. Garner 67 M.J. 734 (N.M.Ct.Crim.App. 2008) (MJ did not abuse discretion in accepting appellant's guilty plea to attempting to entice a minor to engage in illegal sexual activity because appellant's "grooming" behavior and an expressed suggestion to meet in person constitute a "substantial step" of the offense)
      5. Article 81: Conspiracy
        1. Holmes 201100602 (18 Dec 12)(evidence of involvement, failure to stop others made conviction factually sufficient without evidence of direct communications amounting to agreement)
        2. Ayers 201200097 (31 Aug 12)(no substantial basis for questioning plea where conduct shows meeting of the mind, even absent direct proof of agreement)
        3. Dominique 201000658 (22 Nov 11)(plea improvident where alleged agreement was implicit, military judge made repeated efforts to determine proof of agreement and what benefit appellant derived from it, but nothing beyond appellant's one-word replies demonstrated "meeting of the minds.")
        4. Dominique 201000658 (22 Nov 11)(plea improvident where alleged agreement was implicit, military judge made repeated efforts to determine proof of agreement and what benefit appellant derived from it, but nothing beyond appellant's one-word replies demonstrated "meeting of the minds.")
      6. Article 82: Solicitation
        1. Dominique 201000658 (22 Nov 11)(plea improvident where alleged agreement was implicit, military judge made repeated efforts to determine proof of agreement and what benefit appellant derived from it, but nothing beyond appellant's one-word replies demonstrated "meeting of the minds.")
      7. Article 83: Fraudulent Enlistment, Appointment or Separation
        1. Smith 201100594 (27 Dec 12) (Officer's fraudulent appointment complete once she received pay and allowances)
        2. Farano 60 M.J. 932 (N.M.Ct.Crim.App. 2005) (crime of fraudulent enlistment was not complete until appellant began receiving pay when the misrepresentation of facts that led to his fraudulent enlistment occurred at an earlier date; however, the variance in date alleged in the specification was not fatal)
        3. Adams 200300980 (24 Jan 05) (improvident guilty plea to fraudulent enlistment when the plea and the stipulations of fact listed different dates for the crime and significant issues of fact, such as the types of health or law enforcement issues that were concealed, were left unresolved)
      8. Article 84: Effecting Unlawful Enlistment, Appointment or Separation
      9. Article 85: Desertion
        1. Adams 200300980 (24 Jan 05) (improvident guilty plea to fraudulent enlistment when the plea and the stipulations of fact listed different dates for the crime and significant issues of fact, such as the types of health or law enforcement issues that were concealed, were left unresolved)
        2. Adams 200300980 (24 Jan 05) (improvident guilty plea to fraudulent enlistment when the plea and the stipulations of fact listed different dates for the crime and significant issues of fact, such as the types of health or law enforcement issues that were concealed, were left unresolved)
        3. Adams 200300980 (24 Jan 05) (improvident guilty plea to fraudulent enlistment when the plea and the stipulations of fact listed different dates for the crime and significant issues of fact, such as the types of health or law enforcement issues that were concealed, were left unresolved)
      10. Article 86: Absence without Leave
        1. Hall 201200219 (31 Jan 13)
        2. Johnson 201200049 (24 Oct 12) (no further inquiry required where, during providency, appellant stated the date that he became available for pick-up following period of UA; court will not speculate on appeal whether he may have become available even earlier)
      11. Article 87: Missing Movement
        1. Johnson 201200049 (24 Oct 12) (no further inquiry required where, during providency, appellant stated the date that he became available for pick-up following period of UA; court will not speculate on appeal whether he may have become available even earlier)
        2. Johnson 201200049 (24 Oct 12) (no further inquiry required where, during providency, appellant stated the date that he became available for pick-up following period of UA; court will not speculate on appeal whether he may have become available even earlier)
        3. Johnson 201200049 (24 Oct 12) (no further inquiry required where, during providency, appellant stated the date that he became available for pick-up following period of UA; court will not speculate on appeal whether he may have become available even earlier)
        4. Johnson 201200049 (24 Oct 12) (no further inquiry required where, during providency, appellant stated the date that he became available for pick-up following period of UA; court will not speculate on appeal whether he may have become available even earlier)
        5. Johnson 201200049 (24 Oct 12) (no further inquiry required where, during providency, appellant stated the date that he became available for pick-up following period of UA; court will not speculate on appeal whether he may have become available even earlier)
        6. Butler 200401515 (23 May 06) (transit was deemed a movement when an unauthorized absence that equated to a 8.3 nautical mile change from one port to another because it is not considered a minor change from a berth to a nearby berth)
        7. Etter 200600422 (21 Mar 07) (a servicemember missed a bus ride during his deployment to Iraq which constituted a missing movement as transportation to Iraq will not be segmented, therefore there is no meaningful distinction between the various modes of transportation necessary to get the unit to their new designated location)
        8. Barrow 200601268 (27 Mar 07) ("general knowledge" about a ship's pre-deployment movements does not meet the legal and factual sufficiency standard to sustain a missing movement conviction, especially when appellant was not in the same chain of command and his peers had "no idea" if appellant affirmatively knew about the ship's movement)
        9. Strayer 200602358 (20 Sep 07) (the mention of a PTSD diagnosis in an unsworn statement only raised the mere possibility of using that defense; therefore, the military judge did not abuse his discretion by accepting his guilty plea when the accused appeared to be mentally competent during the court martial proceedings)
        10. Mixon 201100665 (30 Apr 12) (an IED dog handler's failure to obtain required immunizations in order to deploy to Afghanistan, then receiving them after deployment, was deemed a missing movement as he deprived his unit of a specialized skill that would lessen the risk of harm to his fellow Marines)
        11. Mixon 201100665 (30 Apr 12) (an IED dog handler's failure to obtain required immunizations in order to deploy to Afghanistan, then receiving them after deployment, was deemed a missing movement as he deprived his unit of a specialized skill that would lessen the risk of harm to his fellow Marines)
      12. Article 88: Contempt Toward Officials
      13. Article 89: Disrespect Toward a Superior Commissioned Officer
        1. Prest 200800579 (31 Aug 09) (voluntary intoxication may negate the specific intent required for the offense of disrespecting or disobeying a commissioned superior officer if the intoxication so impairs the accused's mental faculties that specific intent cannot be formed; substantial drug use over the course of a day and night equates to severe intoxication)
        2. Prest 200800579 (31 Aug 09) (voluntary intoxication may negate the specific intent required for the offense of disrespecting or disobeying a commissioned superior officer if the intoxication so impairs the accused's mental faculties that specific intent cannot be formed; substantial drug use over the course of a day and night equates to severe intoxication)
        3. Carromero 200602334 (5 Feb 08) (despite raised voices or yelling that may have occurred while the statement it was still voluntary and admissible, therefore, purposefully disrespectful words or actions directed to superior noncommissioned officers who were attempting to carry out their duties were not viewed to be trifle or de minimus)
      14. Article 90: Assaulting or Willfully Disobeying Superior Commissioned Officer
        1. Carromero 200602334 (5 Feb 08) (despite raised voices or yelling that may have occurred while the statement it was still voluntary and admissible, therefore, purposefully disrespectful words or actions directed to superior noncommissioned officers who were attempting to carry out their duties were not viewed to be trifle or de minimus)
        2. Midlam 200101884 (6 May 05) (disobeying an order that prohibited alcohol in designated areas on base without prior approval willfully ignored an instruction from a commissioned officer that was meant to regulate individual conduct as opposed to providing general guidelines for military functions)
        3. Midlam 200101884 (6 May 05) (disobeying an order that prohibited alcohol in designated areas on base without prior approval willfully ignored an instruction from a commissioned officer that was meant to regulate individual conduct as opposed to providing general guidelines for military functions)
        4. Midlam 200101884 (6 May 05) (disobeying an order that prohibited alcohol in designated areas on base without prior approval willfully ignored an instruction from a commissioned officer that was meant to regulate individual conduct as opposed to providing general guidelines for military functions)
        5. Midlam 200101884 (6 May 05) (disobeying an order that prohibited alcohol in designated areas on base without prior approval willfully ignored an instruction from a commissioned officer that was meant to regulate individual conduct as opposed to providing general guidelines for military functions)
        6. Midlam 200101884 (6 May 05) (disobeying an order that prohibited alcohol in designated areas on base without prior approval willfully ignored an instruction from a commissioned officer that was meant to regulate individual conduct as opposed to providing general guidelines for military functions)
        7. Bowers 200600137 (10 Jan 08) (an order from a superior officer that demands immediate compliance must be executed at that moment without first consulting with an attorney)
        8. Muhammad 200400030 (31 May 06) (a mistaken belief regarding the tenants of the Muslim religion does not render the appellant's disobedience of failing to adhere to an order to obtain an anthrax inoculation any less intentional)
      15. Article 91: Insubordinate Conduct Toward Warrant Officer
        1. Muhammad 200400030 (31 May 06) (a mistaken belief regarding the tenants of the Muslim religion does not render the appellant's disobedience of failing to adhere to an order to obtain an anthrax inoculation any less intentional)
      16. Article 92: Failure to Obey Order or Regulation
        1. Meinero 201200112 (27 Dec 12) (spice conviction factually insufficient where no evidence of order's substance)
        2. Simmons 70 M.J. 649 (N.M.Ct.Crim.App. 2012) (Secretary of Defense properly delegated his authority to issue lawful general regulations to Under Secretary for Personnel and Readiness; order was punitive because it was published with a view toward governing conduct, not stating guidelines)
        3. Medina 68 M.J. 587 (N.M.Ct.Crim.App. 2009), affirmed at 69 M.J. 462 (C.A.A.F. 2011) (appellant was derelict in the performance of his duties by engaging in a relationship with the victim when, with knowledge of victim's rank, appellant made several sexual advances toward the victim, attended a private gathering of hers, and inappropriately touched her, counter to the customs and regulations of the Marine Corps)
        4. Jackson 61 M.J. 731, 735 (N.M.Ct.Crim.App. 2005) (Article 1165 of the U.S. Navy Regulations is punitive, and "the regulation prohibits certain types of relationships. Included are those relationships that are unduly familiar and do not respect differences in grade or rank. Furthermore, the relationships must also be prejudicial to good order and discipline or of a nature to bring discredit upon the naval service. The regulation specifically lists four examples of how the circumstances of a relationship could be prejudicial to good order and discipline or could bring discredit upon the naval service. Those circumstances include relationships that call into question a senior's objectivity; result in actual or apparent preferential treatment; undermine the authority of a senior; or compromise the chain of command. Were the appellant to have pled not guilty, the Government would�have been required to prove the elements of the charged offense, to include the fact that the appellant engaged in a relationship of the type herein described. Thus, just as the existence of a general regulation prohibiting fraternization is a factual predicate to acceptance of a guilty plea to an alleged violation of Article 92(1), UCMJ, the plea inquiry must also establish a factual basis for the existence of a relationship"; plea improvident where facts showed limited interactions short of a relationship)
      17. Article 93: Cruelty and Maltreatment
        1. Chappell 200602354 (14 Aug 07) (altering the chain of command by promoting a lesser servicemember at the expense of demoting another equates to maltreatment)
        2. Zacatelco 200700588 (25 Nov 08) (Despite denying maltreatment when first questioned, testimony from serviceman during a cross examination that confirmed they were either physically struck themselves by an officer or witnessed the hazing of subordinates is sufficient evidence to establish a maltreatment conviction)
        3. Midlam 200101884 (6 May 05) (A superior will not be criminally liable for a consensual sexual relationship with a subordinate, however, encouraging a subordinate that is known to be alcohol-dependant to consume alcohol constitutes maltreatment)
        4. Hughes 200602336 (11 Oct 07) (in order to make a teaching point during a night raid, appellant pointed a gun in the face of his subordinate which constituted maltreatment as there were other less threatening alternatives that would have made the same point effectively)
      18. Article 94: Mutiny and Sedition
      19. Article 95: Resistance, Flight, Breach of Arrest, and Escape
        1. Hughes 200602336 (11 Oct 07) (in order to make a teaching point during a night raid, appellant pointed a gun in the face of his subordinate which constituted maltreatment as there were other less threatening alternatives that would have made the same point effectively)
        2. Hughes 200602336 (11 Oct 07) (in order to make a teaching point during a night raid, appellant pointed a gun in the face of his subordinate which constituted maltreatment as there were other less threatening alternatives that would have made the same point effectively)
        3. Ledbetter 200500009 (10 July 08) (when appellant ignored the warnings of an on-duty serviceman to not enter a restricted area while highly intoxicated, the ensuing struggle to stop the appellant by grabbing his wrist and forcing him to the ground represented a resistance to apprehension)
        4. Ledbetter 200500009 (10 July 08) (when appellant ignored the warnings of an on-duty serviceman to not enter a restricted area while highly intoxicated, the ensuing struggle to stop the appellant by grabbing his wrist and forcing him to the ground represented a resistance to apprehension)
        5. Ledbetter 200500009 (10 July 08) (when appellant ignored the warnings of an on-duty serviceman to not enter a restricted area while highly intoxicated, the ensuing struggle to stop the appellant by grabbing his wrist and forcing him to the ground represented a resistance to apprehension)
        6. Harcrow 200401923 (30 Oct 06) (An escape from custody and subsequent unauthorized one month absence are treated as separate criminal acts due to their distinct elements and separate military societal issues, especially considering the time duration component present in an unauthorized absence that is not present in an escape)
        7. O'Neal 201100307 (17 May 12) (A combined assault charge for shoving fellow officers too allow for a subsequent escape from custody are an unreasonable multiplication of charges)
      20. Article 96: Releasing Prisoner without Proper Authority
        1. O'Neal 201100307 (17 May 12) (A combined assault charge for shoving fellow officers too allow for a subsequent escape from custody are an unreasonable multiplication of charges)
      21. Article 97: Unlawful Detention
      22. Article 98: Noncompliance with Procedural Rules
      23. Article 99: Misbehavior Before the Enemy
      24. Article 100: Subordinate Compelling Surrender
      25. Article 101: Improper Use of a Countersign
      26. Article 102: Forcing a Safeguard
      27. Article 103: Captured or Abandoned Property
      28. Article 104: Aiding the Enemy
      29. Article 105: Misconduct as a Prisoner
      30. Article 106: Spies
      31. Article 106a: Espionage
        1. O'Neal 201100307 (17 May 12) (A combined assault charge for shoving fellow officers too allow for a subsequent escape from custody are an unreasonable multiplication of charges)
      32. Article 107: False Official Statements
        1. Carrico 201200098 (14 Feb 13) (Appellant's statement false in certain particulars, even if parts of it were literally true)
        2. Mitcham 201200060 (29 May 12) (failure to state offense for false official statement when government failed to expressly or impliedly allege that the statements were made with intent to deceive; but not prejudicial when appellant had notice of the element through MJ's explanation of the offense and elements for appellant's guilty plea)
        3. Morgan 65 M.J. 616 (N.M.Ct.Crim.App. 2007) (statement made to civilian law enforcement authorities was not "official" because it was not made in the line of duty since appellant was on leave, several hundred miles away from his place of duty, his contact with civilian law enforcement had no relation to his duties as a Sailor, he was not in uniform when interviewed, and was not accompanied by an official command representative)
        4. Morgan 65 M.J. 616 (N.M.Ct.Crim.App. 2007) (statement made to civilian law enforcement authorities was not "official" because it was not made in the line of duty since appellant was on leave, several hundred miles away from his place of duty, his contact with civilian law enforcement had no relation to his duties as a Sailor, he was not in uniform when interviewed, and was not accompanied by an official command representative)
        5. Morgan 65 M.J. 616 (N.M.Ct.Crim.App. 2007) (statement made to civilian law enforcement authorities was not "official" because it was not made in the line of duty since appellant was on leave, several hundred miles away from his place of duty, his contact with civilian law enforcement had no relation to his duties as a Sailor, he was not in uniform when interviewed, and was not accompanied by an official command representative)
        6. Morgan 65 M.J. 616 (N.M.Ct.Crim.App. 2007) (statement made to civilian law enforcement authorities was not "official" because it was not made in the line of duty since appellant was on leave, several hundred miles away from his place of duty, his contact with civilian law enforcement had no relation to his duties as a Sailor, he was not in uniform when interviewed, and was not accompanied by an official command representative)
        7. Holmes 65 M.J. 684 (N.M.Ct.Crim.App. 2007) (guilty plea improvident when appellant took a car for a joyride and then lied to a customs agent and a California Highway Patrol officer as to the ownership of the car because there was no indication of a connection to appellant's military duties and status, so the statements were not "official"; but appellant conceded that statements made to a Special Agent of the CID investigating the theft of the car were "official")
        8. Edwards 200900650 (27 May 10) (statement to county police officer giving a false name was not "official" when the officer pulled appellant over for a broken headlight, not for any purpose connected to appellant's military status or duties)
      33. Article 108: Military Property of the United States�Sale, Loss, Damage, Destruction, or Wrongful Disposition
        1. Carrico 201200098 (14 Feb 13) (Items purchased with unit credit card were military property)
        2. Plahs 201100647 (12 July 12) (MJ failed to elicit sufficient facts concerning suffering of wrongful disposition of ammunition)
      34. Article 109: Property Other than Military Property of the United States�Waste, Spoilage, or Destruction
        1. White 61 M.J. 521 (N.M.Ct.Crim.App. 2005) (factually insufficient with respect to mens rea of willfulness in damaging non-military property when appellant jumped in front of a car after drinking alcohol because of an argument with his wife)
        2. Martinezmaldonado 62 M.J. 697 (N.M.Ct.Crim.App. 2006) (improvident guilty plea when appellant disconnected wires on an already inoperable CD player, but his intent was not to damage it)
      35. Article 110: Improper Hazarding of Vessel
        1. Martinezmaldonado 62 M.J. 697 (N.M.Ct.Crim.App. 2006) (improvident guilty plea when appellant disconnected wires on an already inoperable CD player, but his intent was not to damage it)
        2. Banks 200401015 (31 May 06) (appellant's confession to setting two fires was sufficiently corroborated by extrinsic evidence because expert testimony stated the fires were intentionally set, appellant was in the vicinity both times, and he provided specific details and sketches of the circumstances and locations)
      36. Article 111: Drunken or Reckless Operation of Vehicle, Aircraft, or Vessel
        1. Banks 200401015 (31 May 06) (appellant's confession to setting two fires was sufficiently corroborated by extrinsic evidence because expert testimony stated the fires were intentionally set, appellant was in the vicinity both times, and he provided specific details and sketches of the circumstances and locations)
        2. Hartley 200601202 (24 Apr 07) (legally and factually sufficient conviction of drunken operation of a motor vehicle when appellant's sworn statement and witness testimony provided strong circumstantial evidence that appellant operated his truck shortly after having consumed six to eight beers)
        3. Cooper 200401699 (24 Feb 05) (improvident guilty plea to reckless driving in case involving crash in wet conditions because during MJ's inquiry, appellant only admitted to simple negligence, not gross negligence or recklessness)
      37. Article 112: Drunk on Duty
        1. Cooper 200401699 (24 Feb 05) (improvident guilty plea to reckless driving in case involving crash in wet conditions because during MJ's inquiry, appellant only admitted to simple negligence, not gross negligence or recklessness)
      38. Article 112a: Wrongful Use, Possession, etc. of Controlled Substances
        1. Wittig 201200183 (25 Sep 12) (plea to specification alleging 71 marijuana plants provident where some were mature plants and others "cuttings")
        2. Wittig 201200183 (25 Sep 12) (plea to specification alleging 71 marijuana plants provident where some were mature plants and others "cuttings")
        3. Wittig 201200183 (25 Sep 12) (plea to specification alleging 71 marijuana plants provident where some were mature plants and others "cuttings")
        4. Wittig 201200183 (25 Sep 12) (plea to specification alleging 71 marijuana plants provident where some were mature plants and others "cuttings")
      39. Article 113: Misbehavior of Sentinel or Lookout
        1. Apodaca 201100008 (13 Sept 11) (Plea improvident where appellant's impairment was due to drug other than alcohol)
        2. Apodaca 201100008 (13 Sept 11) (Plea improvident where appellant's impairment was due to drug other than alcohol)
      40. Article 114: Dueling
      41. Article 115: Malingering
        1. Bowman 201100505 (30 Apr 12) (malingering found where appellant asked another to shoot him)
        2. Hall 201200207 (23 Oct 12) (feigning illness to medical personnel at a local hospital and providing a false official statement regarding that feigned illness was not UMC)
        3. Schwartz 61 M.J. 567 (N.M.Ct.Crim.App. 2005) (malingering found where appellant refused to receive anthrax vaccine after receiving a lawful order to do so)
        4. Schwartz 61 M.J. 567 (N.M.Ct.Crim.App. 2005) (malingering found where appellant refused to receive anthrax vaccine after receiving a lawful order to do so)
      42. Article 116: Riot or Breach of Peace
        1. Harcrow 200300913 (16 May 05) (breach of peace when appellant intentionally discharged a fire extinguisher, setting off the fire alarm and causing fire and emergency personnel to respond to the scene)
      43. Article 117: Provoking Speeches or Gestures
        1. Zapp 200700844 (30 Oct 08) (guilty plea improvident when the focus was solely on whether the words were said and MJ failed to inquire into specific circumstances usually deemed significant in determining whether words are provoking)
        2. Zapp 200700844 (30 Oct 08) (guilty plea improvident when the focus was solely on whether the words were said and MJ failed to inquire into specific circumstances usually deemed significant in determining whether words are provoking)
      44. Article 118: Murder
        1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) ("The CAAF and this court have long recognized the relevance of the �cool mind' concept in cases dealing with premeditated murder"; verbatim use of that term not required in instructions, just that judge explain premeditated design to kill)
        2. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) ("The CAAF and this court have long recognized the relevance of the �cool mind' concept in cases dealing with premeditated murder"; verbatim use of that term not required in instructions, just that judge explain premeditated design to kill)
        3. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) ("The CAAF and this court have long recognized the relevance of the �cool mind' concept in cases dealing with premeditated murder"; verbatim use of that term not required in instructions, just that judge explain premeditated design to kill)
        4. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) ("The CAAF and this court have long recognized the relevance of the �cool mind' concept in cases dealing with premeditated murder"; verbatim use of that term not required in instructions, just that judge explain premeditated design to kill)
        5. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) ("The CAAF and this court have long recognized the relevance of the �cool mind' concept in cases dealing with premeditated murder"; verbatim use of that term not required in instructions, just that judge explain premeditated design to kill)
      45. Article 119: Manslaughter
        1. Pimienta 66 M.J. 610 (N.M.Ct.Crim.App. 2008) (involuntary manslaughter where appellant mishandled his firearm with culpable negligence, causing the weapon to fire and resulting in the death of the victim)
        2. Pimienta 66 M.J. 610 (N.M.Ct.Crim.App. 2008) (involuntary manslaughter where appellant mishandled his firearm with culpable negligence, causing the weapon to fire and resulting in the death of the victim)
        3. Markert 65 M.J. 677 (N.M.Ct.Crim.App. 2007) (involuntary manslaughter when appellant, with culpable negligence, shot the victim in the head, even though victim's life actually ended when life support disconnected)
      46. Article 119a: Death or Injury of an Unborn Child
      47. Article 120
        1. Markert 65 M.J. 677 (N.M.Ct.Crim.App. 2007) (involuntary manslaughter when appellant, with culpable negligence, shot the victim in the head, even though victim's life actually ended when life support disconnected)
          1. Holmes 201100602 (20 Dec 12)(expert may testify that victim was substantially capacitated where his professional definition matched legal definition)
          2. Barrett 201000330 (29 Feb 12)(charge referred alleged aggravated sexual assault of child, which was not yet in existence as a specific offense, and the Government later tried to transform it into one of carnal knowledge, the change was not on record, court dismissed because this charge was not originally referred)
          3. Hancock 201100466 (29 Mar 12)(Art. 120 k is not unconstitutionally vague or overbroad)
          4. Rheel 201100108 (20 Dec 11)(Article 120(k)'s prohibition of "indecent conduct" not void for vagueness or overbroad; appellant on notice that sexually provocative text messages and photograph were within prohibition)
          5. Barbier 201100326 (12 Apr 12)(indecent conduct not limited to situations involving violation of a person's reasonable expectation of privacy and without the person's consent, making his guilty plea provident)
          6. Redd 201000682 (29 Dec 11)(force element does not require proof of specific intent)
          7. Gifford 201200169 (14 Feb 13) (legally and factually sufficient where victim consumed large quantities of alcohol and displayed impairment such that appellant could not reasonably have a mistaken belief of consent)
          8. Kennedy 201100624 (26 Apr 12) (sexual assault even though no eyewitness testified that they saw appellant touch victim's genitalia, but witnesses saw the victim lying on the floor unconscious with his pants on and then shortly thereafter observed the appellant beside the victim with his head close to victim's exposed genitalia)
      48. Article 121: Larceny and Wrongful Appropriation
        1. Campbell __ M.J. __ (N.M.Ct.Crim.App. 2013) (maximum punishment for a specification aggregating larceny charges is the "greater than $500.00" maximum punishment if the maximum punishment for the individual larcenies had they been charged as separate specifications is greater than or equal to that punishment)
        2. Campbell __ M.J. __ (N.M.Ct.Crim.App. 2013) (maximum punishment for a specification aggregating larceny charges is the "greater than $500.00" maximum punishment if the maximum punishment for the individual larcenies had they been charged as separate specifications is greater than or equal to that punishment)
        3. Campbell __ M.J. __ (N.M.Ct.Crim.App. 2013) (maximum punishment for a specification aggregating larceny charges is the "greater than $500.00" maximum punishment if the maximum punishment for the individual larcenies had they been charged as separate specifications is greater than or equal to that punishment)
        4. Campbell __ M.J. __ (N.M.Ct.Crim.App. 2013) (maximum punishment for a specification aggregating larceny charges is the "greater than $500.00" maximum punishment if the maximum punishment for the individual larcenies had they been charged as separate specifications is greater than or equal to that punishment)
        5. Campbell __ M.J. __ (N.M.Ct.Crim.App. 2013) (maximum punishment for a specification aggregating larceny charges is the "greater than $500.00" maximum punishment if the maximum punishment for the individual larcenies had they been charged as separate specifications is greater than or equal to that punishment)
        6. Campbell __ M.J. __ (N.M.Ct.Crim.App. 2013) (maximum punishment for a specification aggregating larceny charges is the "greater than $500.00" maximum punishment if the maximum punishment for the individual larcenies had they been charged as separate specifications is greater than or equal to that punishment)
      49. Article 122: Robbery
        1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (appellant was mentally responsible and able to form the specific intent required to rob the victim)
      50. Article 123: Forgery
        1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (appellant was mentally responsible and able to form the specific intent required to rob the victim)
      51. Article 123a: Making, Drawing, or Uttering Check, Draft, or Order without Sufficient Funds
        1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (appellant was mentally responsible and able to form the specific intent required to rob the victim)
      52. Article 124: Maiming
        1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (appellant was mentally responsible and able to form the specific intent required to rob the victim)
        2. Shaw 200600728 (22 Mar 07) (appellant had intent to cause injury to his son where he had been informed by multiple sources prior to the incidents charged that actions such as shaking an infant could reasonably be expected to cause injury)
        3. Williams 2992992264 (19 Oct 05) (maiming when appellant stabbed victim in an attempt to force victim to release him from fireman's carry and stabbing resulted in permanent lung scarring)
        4. Williams 2992992264 (19 Oct 05) (maiming when appellant stabbed victim in an attempt to force victim to release him from fireman's carry and stabbing resulted in permanent lung scarring)
      53. Article 125: Sodomy
        1. Stratton 201000637 (26 Jan 12) (MJ erred in his instructions that non-forcible sodomy under Art. 125 was an LIO of forcible sodomy, since Lawrence/Marcum factors must also be proven)
        2. Useche 70 M.J. 657 (N.M.Ct.Crim.App. 2012) ((1) sodomy with a handcuffed, crying, and mentally retarded person in a barracks falls outside the liberty interest in Lawrence, (2) charged with forcible sodomy and then convicted of consensual sodomy does not present a valid material variance that is substantially prejudicial, (3) elements of offense are statutory and are not found in Marcum)
      54. Article 126: Arson
        1. Clark 61 M.J. 707 (N.M.Ct.Crim.App. 2005) (factually insufficient to support aggravated arson but sufficient to support simple arson when appellant and co-conspirators planned to burn their battalion command post building in order to destroy a urine sample and appellant drove co-conspirators to the scene, dropped them off, waited for them to set the fire, then drove them away)
        2. Smith 200301101 (17 Dec 04) (aggravated arson because even though the specific compartment to which appellant set fire was temporarily vacant it regularly served as berthing for embarked air wing personnel and was intended to fill that role again in the near future, so it was an inhabited dwelling)
      55. Article 127: Extortion
      56. Article 128: Assault
        1. Weller 201100043 (30 Apr 12) (assault by battery is an offense under Article 128, in addition to assault by attempt and by offer)
        2. Desierto 201200046 (24 Oct 12) (specification states an offense where it alleges assault consummated by battery, not assault by attempt or offer)
        3. Desierto 201200046 (24 Oct 12) (specification states an offense where it alleges assault consummated by battery, not assault by attempt or offer)
        4. Desierto 201200046 (24 Oct 12) (specification states an offense where it alleges assault consummated by battery, not assault by attempt or offer)
      57. Article 129: Burglary
        1. Desierto 201200046 (24 Oct 12) (specification states an offense where it alleges assault consummated by battery, not assault by attempt or offer)
        2. Allison 200000637 (24 Nov 04) (entering victim's barracks room was a breaking to satisfy the element for burglary with intent to commit rape even though victim had intentionally left the door unlocked)
        3. Collins 201000020 (17 Feb 2011) (conviction for burglary set aside because underlying sexual assault conviction was set aside; retrieving a shirt and covering alleged victim with a blanket was insufficient to prove intent to commit sexual assault, and intent to commit adultery cannot support burglary charge)
      58. Article 130: Housebreaking
        1. Collins 201000020 (17 Feb 2011) (conviction for burglary set aside because underlying sexual assault conviction was set aside; retrieving a shirt and covering alleged victim with a blanket was insufficient to prove intent to commit sexual assault, and intent to commit adultery cannot support burglary charge)
      59. Article 131: Perjury
        1. Collins 201000020 (17 Feb 2011) (conviction for burglary set aside because underlying sexual assault conviction was set aside; retrieving a shirt and covering alleged victim with a blanket was insufficient to prove intent to commit sexual assault, and intent to commit adultery cannot support burglary charge)
      60. Article 132: Frauds Against the United States
        1. Smith 200600156 (16 Oct 07) (MJ instruction using the word "presenting" instead of "making" for the first element of the offense was an insubstantial and harmless error when MJ used language similar to the definition of "making" in defining the element)
        2. Hernandez 200501599 (12 Jun 07) (factually sufficient for conviction when appellant filed a document establishing her dependent son's location knowing her resided somewhere else in order to collect increased BAH to which she was not entitled)
        3. Hernandez 200501599 (12 Jun 07) (factually sufficient for conviction when appellant filed a document establishing her dependent son's location knowing her resided somewhere else in order to collect increased BAH to which she was not entitled)
        4. Hernandez 200501599 (12 Jun 07) (factually sufficient for conviction when appellant filed a document establishing her dependent son's location knowing her resided somewhere else in order to collect increased BAH to which she was not entitled)
      61. Article 133: Conduct Unbecoming an Officer and Gentleman
        1. McGuire 201000611 (31 Jan 12) (though specification was poorly crafted, it sufficiently stated criminality, included elements of crime, sufficiently informed appellant of what he must defend against, and protected him from double jeopardy)
      62. Article 134: General Article Terminal Element
        1. Miles 71 M.J. 671 (N.M.Ct.Crim.App. 2012) (Clauses 1 and 2 are not separate elements creating separate offenses, but different theories of liability for the same offense; thus charging in the disjunctive, while disfavored, does not automatically render the specification defective)
        2. Rauscher 201000684 (27 Sept 11) (" a violation of the General Article...has two statutory elements...: (1) a disorder or neglect, and (2) prejudice to good order and discipline; or alternatively (1) conduct (2) that is of a nature to bring discredit upon the armed forces....For either "alternative theory of prosecution," the first element (disorder, neglect, or conduct) may consist of a number of discrete facts.").
        3. Hickerson 71 M.J. 659 (N.M.Ct.Crim.App. 2012) (existence of federal statute not an element for clause 3 offense)
        4. Humphries trailers
          1. Barrett 201000330 (30 May 13) (appellant's inappropriate relationship with two minors provided overwhelming and uncontroverted evidence of service discrediting conduct)
          2. Valentin 201000683 (31 Jan 13) (evidence overwhelming and "essentially uncontroverted")
          3. Harris 201000341 (27 Dec 12) (notice evident in pretrial motion)
          4. Lonsford 201100022 (20 Dec 12) (notice evident in previous trial, pretrial motion, voir dire, opening)
          5. Magnan 201000414 (6 Dec 12) (no evidence in record of notice, therefore specification disapproved)
          6. Redd 201000682 (24 Oct 12) (no evidence of notice in record of missing terminal element)
        5. Phillips 200900568 (28 Dec 11) (appellant's conduct still of a nature to bring discredit upon the service, even though private)
      63. Article 134: Abusing Public Animal
      64. Article 134: Adultery
        1. Gifford 201200169 (14 Feb 13) (legally sufficient conviction of adultery when appellant had a consensual sexual relationship with a woman who was not his wife and had non-consensual sexual intercourse with her while she was unconscious from excessive drinking)
        2. Alexander 201100672 (31 Oct 12)(effect on good order and discipline is measured by consequences of conduct, not position of guilty parties)
      65. Article 134: Assault, with Intent to Commit Murder, Voluntary Manslaughter, Rape, Robbery, Sodomy, Arson, Burglary, or Housebreaking
        1. Assault with Intent to Commit Murder
          1. Rauscher 201000684 (27 Sep 11) (the specification of aggravated assault provided notice that there was a chance it could be heard at a trial raising issues relating to assault to commit murder charges
        2. Assault with Intent to Commit Voluntary Manslaughter
          1. Assault with Intent to Commit Voluntary Manslaughter
        3. Assault with Intent to Commit Rape
          1. Assault with Intent to Commit Rape
        4. Assault with Intent to Commit Robbery
          1. Assault with Intent to Commit Robbery
        5. Assault with Intent to Commit Sodomy
          1. Assault with Intent to Commit Sodomy
        6. Assault with Intent to Commit Arson
        7. Assault with Intent to Commit Burglary
        8. Assault with Intent to Commit Housebreaking
      66. Article 134: Bigamy
        1. Assault with Intent to Commit Housebreaking
        2. Barsic 200400830, (28 Nov 06) (appellant's reliance on a "prospective" divorce decree that contained several blank lines was not a reasonable step to ensure that his first marriage had legally ended)
      67. Article 134: Bribery and Graft
        1. Barsic 200400830, (28 Nov 06) (appellant's reliance on a "prospective" divorce decree that contained several blank lines was not a reasonable step to ensure that his first marriage had legally ended)
        2. Barsic 200400830, (28 Nov 06) (appellant's reliance on a "prospective" divorce decree that contained several blank lines was not a reasonable step to ensure that his first marriage had legally ended)
      68. Article 134: Burning with Intent to Defraud
        1. Barsic 200400830, (28 Nov 06) (appellant's reliance on a "prospective" divorce decree that contained several blank lines was not a reasonable step to ensure that his first marriage had legally ended)
        2. Zaruba 201000382 (31 May 12) (specifications alleging "burning an automobile with the intent to defraud an insurer" and "solicitation of a fellow Marine to burn an automobile with the intent to defraud" were not multiplicious)
      69. Article 134: Check, Worthless, Making and Uttering �- by Dishonorably Failing to Maintain Funds
        1. Zaruba 201000382 (31 May 12) (specifications alleging "burning an automobile with the intent to defraud an insurer" and "solicitation of a fellow Marine to burn an automobile with the intent to defraud" were not multiplicious)
        2. Killingsworth 200201785 (6 May 05) (31 specifications of check fraud were multiplicious with charge of conduct unbecoming an officer)
        3. Lockwood 63 M.J. 602 (N.M.Ct.Crim.App. 2006) (appellant instructing his bank to stop payment on a check that he knew to be fraudulent was not enough to make his plea to dishonorable failure to maintain funds improvident)
      70. Article 34: Child Endangerment
      71. Article 134: Child Pornography
        1. Rapp 201200303 (30 Apr 13) (Guilty plea improvident where appellant was not conscious of which images were in prosecution exhibit and gave vague descriptions of sexually explicit conduct that did not match the exhibit)
        2. Sanschagrin 201200333 (29 Jan 13) (Receipt and possession not UMC)
        3. Sanschagrin 201200333 (29 Jan 13) (Receipt and possession not UMC)
      72. Article 134: Cohabitation, Wrongful
        1. Sanschagrin 201200333 (29 Jan 13) (Receipt and possession not UMC)
        2. Sanschagrin 201200333 (29 Jan 13) (Receipt and possession not UMC)
      73. Article 134: Correctional Custody � Offenses Against
      74. Article 134: Debt, Dishonorably Failing to Pay
        1. Sanschagrin 201200333 (29 Jan 13) (Receipt and possession not UMC)
        2. Wallace 200100296 (30 Apr 2004) (failure to repay appellant's boyfriend for the debt she incurred when she used his credit card at an auto dealership constituted a dishonorable failure to pay a debt, especially considering his many efforts to collect the debt which included a small claims court claim)
      75. Article 134: Disloyal Statements
        1. Wallace 200100296 (30 Apr 2004) (failure to repay appellant's boyfriend for the debt she incurred when she used his credit card at an auto dealership constituted a dishonorable failure to pay a debt, especially considering his many efforts to collect the debt which included a small claims court claim)
        2. Wallace 200100296 (30 Apr 2004) (failure to repay appellant's boyfriend for the debt she incurred when she used his credit card at an auto dealership constituted a dishonorable failure to pay a debt, especially considering his many efforts to collect the debt which included a small claims court claim)
      76. Article 134: Disorderly Conduct, Drunkenness
        1. Wallace 200100296 (30 Apr 2004) (failure to repay appellant's boyfriend for the debt she incurred when she used his credit card at an auto dealership constituted a dishonorable failure to pay a debt, especially considering his many efforts to collect the debt which included a small claims court claim)
        2. Gutenmakher 201000420 (15 Feb 11) (factual basis for the terminal element was not satisfied by providence inquiry)
        3. Gutenmakher 201000420 (15 Feb 11) (factual basis for the terminal element was not satisfied by providence inquiry)
      77. Article 134: Drinking Liquor with Prisoner
      78. Article 134: Drunk Prisoner
      79. Article 134: Drunkenness - Incapacitation for Performance of Duties Through Prior Wrongful Indulgence in Intoxicating Liquor or any Drug
      80. Article 134: False or Unauthorized Pass Offenses
        1. Gibson 201000669 (30 Aug 11) (due to the significance a liberty pass holds in a foreign country and foreign relations, forgeries and deceptive misuses of passes could cast the service in a negative light and usurp a commander's prerogative to issue passes to deserving military service members)
        2. Gibson 201000669 (30 Aug 11) (due to the significance a liberty pass holds in a foreign country and foreign relations, forgeries and deceptive misuses of passes could cast the service in a negative light and usurp a commander's prerogative to issue passes to deserving military service members)
      81. Article 134: False Pretenses, Obtaining Services Under
        1. Hall 200600764 (3 Jul 08) (the charges of larceny and obtaining services through false pretenses were not UMC; larceny was when appellant removed cash from the ATM and obtaining services under a false pretense was when he obtained the ATM service of providing cash to a user)
        2. Hall 200600764 (3 Jul 08) (the charges of larceny and obtaining services through false pretenses were not UMC; larceny was when appellant removed cash from the ATM and obtaining services under a false pretense was when he obtained the ATM service of providing cash to a user)
        3. Hall 200600764 (3 Jul 08) (the charges of larceny and obtaining services through false pretenses were not UMC; larceny was when appellant removed cash from the ATM and obtaining services under a false pretense was when he obtained the ATM service of providing cash to a user)
        4. Hall 200600764 (3 Jul 08) (the charges of larceny and obtaining services through false pretenses were not UMC; larceny was when appellant removed cash from the ATM and obtaining services under a false pretense was when he obtained the ATM service of providing cash to a user)
      82. Article 134: False Swearing
        1. Klimek 200200975 (18 May 06) (appellant's conviction set aside where evidence did not establish whether the swearing occurred before or after the oath of enlistment)
        2. Klimek 200200975 (18 May 06) (appellant's conviction set aside where evidence did not establish whether the swearing occurred before or after the oath of enlistment)
        3. Klimek 200200975 (18 May 06) (appellant's conviction set aside where evidence did not establish whether the swearing occurred before or after the oath of enlistment)
      83. Article 134: Firearm, Discharging � Through Negligence
        1. Weller 201100043 (30 Apr 12) (negligent discharge and assault with a dangerous weapon not UMC)
      84. Article 134: Firearm, Discharging � Willfully under such Circumstances as to Endanger Human Life
        1. Weller 201100043 (30 Apr 12) (negligent discharge and assault with a dangerous weapon not UMC)
        2. Weller 201100043 (30 Apr 12) (negligent discharge and assault with a dangerous weapon not UMC)
        3. Weller 201100043 (30 Apr 12) (negligent discharge and assault with a dangerous weapon not UMC)
      85. Article 134: Fleeing Scene of Accident
      86. Article 134: Fraternization
        1. Weller 201100043 (30 Apr 12) (negligent discharge and assault with a dangerous weapon not UMC)
        2. Hood 200300827 (N.M.Ct.Crim.App. 2006) (appellant's convictions on two counts of fraternization were upheld; the first count, involving a female ensign, had sufficient evidence to show an improper relationship even though appellant was acquitted of a rape charge; the second count, involving a male enlisted, also had sufficient evidence to convict as the two men referred to each other by first names and drank extensively together in a non-sanctioned manner)
      87. Article 134: Gambling with Subordinate
      88. Article 134: Homicide, Negligent
        1. McMurrin 69 M.J. 591 (N.M.Ct.Crim.App. 2010) (appellant's negligent homicide conviction, as a lesser included offense of involuntary manslaughter, was set aside because "negligent homicide includes at least one element not explicitly included in the offense of involuntary manslaughter")
        2. Westhoven 201000132 (9 Nov 10) (appellant's guilty plea to negligent homicide was affirmed as the drugs he provided the victim, while not the only drugs in his system, were the proximate cause of his death)
        3. Holmes 200800501 (8 Oct 09) (self defense can be a defense to negligent homicide; the MJ's failure to instruct as such required negligent homicide conviction to be set aside)
        4. Young 2002001120 (26 Aug 05) (appellant's conviction of negligent homicide for operating a water turret on a rescue truck was upheld as his operation of the turret was found to be the proximate cause of the victim's death)
      89. Article 134: Impersonating a Commissioned, Warrant, Noncommissioned, or Petty Officer, or an Agent or Official
        1. Sanford 200500993 (6 Nov 06) (appellant's actions of creating fictitious orders for a reservist did not constitute impersonation of an officer; "the gravamen of the military offense of impersonation does not depend upon the accused deriving a benefit from the deception or upon some third party being misled, but rather upon whether the acts and conduct would influence adversely the good order and discipline of the armed forces")
      90. Article 134: Indecent Language
        1. Rheel 201100108 (20 Dec 11) (indecent language and indecent act not multiplicious where photo and accompanying text message formed basis for each)
        2. Rheel 201100108 (20 Dec 11) (indecent language and indecent act not multiplicious where photo and accompanying text message formed basis for each)
        3. Green 200800005 (28 Aug 08) (a servicemember's exclamations and sounds after pulling down a fellow Marine's shirt in order to expose her breasts were indecent language)
        4. Johnson 200900141 (25 Aug 09) (although the content of a text message sent to a female Marine in the midst of an argument with her former long-term boyfriend was meant to frighten her, the court could not view the crude language as indecent after considering the circumstances)
      91. Article 134: Jumping from Vessel into the Water
        1. Johnson 200900141 (25 Aug 09) (although the content of a text message sent to a female Marine in the midst of an argument with her former long-term boyfriend was meant to frighten her, the court could not view the crude language as indecent after considering the circumstances)
        2. Johnson 200900141 (25 Aug 09) (although the content of a text message sent to a female Marine in the midst of an argument with her former long-term boyfriend was meant to frighten her, the court could not view the crude language as indecent after considering the circumstances)
      92. Article 134: Kidnapping
        1. Gonzalez 20110436 (12 Apr 12)(use of word "detain" in place of model language did not cause specification to fail)
        2. Thompson 200600807 (11 Dec 07) (when appellant carried his wife into a car and sped down the street it could not be determined if the purpose was to momentarily detain her during their argument or to actually kidnap her)
        3. Thompson 200600807 (11 Dec 07) (when appellant carried his wife into a car and sped down the street it could not be determined if the purpose was to momentarily detain her during their argument or to actually kidnap her)
      93. Article 134: Mail � Taking, Opening, Secreting, Destroying, or Stealing
        1. Thompson 200600807 (11 Dec 07) (when appellant carried his wife into a car and sped down the street it could not be determined if the purpose was to momentarily detain her during their argument or to actually kidnap her)
        2. Falcon 65 M.J. 582 (N.M.Ct.Crim.App. 2006) (because appellant opened, secreted and stole the contents of the two packages at the same time and location, the separate charges were unreasonably multiplied)
        3. Falcon 65 M.J. 582 (N.M.Ct.Crim.App. 2006) (because appellant opened, secreted and stole the contents of the two packages at the same time and location, the separate charges were unreasonably multiplied)
      94. Article 134: Mails � Depositing or Causing to be Deposited Obscene Matters in
        1. Johnson 200900141 (25 Aug 09) (guilty plea improvident where content of a text message was more akin to communicating a threat than indecent language)
      95. Article 134: Misprision of Serious Offense
        1. Richardson 201100018 (28 Jul 11) (misprision set aside where appellant was a principal to the arson)
        2. Richardson 201100018 (28 Jul 11) (misprision set aside where appellant was a principal to the arson)
        3. Morgan 200401114 (10 Apr 07) (false official statement and misprision not UMC)
      96. Article 134: Obstructing Justice
        1. Wylie 201200123 (6 Nov 12)(adequate factual basis for plea where MJ defined PGOAD to appellant and he described concealing himself and trying to avoid trial)
        2. Harris 201000341 (27 Dec 12) (government did not charge terminal element, but notice clear from military judge's draft instructions and appellant's pleadings)
        3. Caudill 65 M.J. 756 (N.M.Ct.Crim.App. 2007) (a guilty plea to obstructing justice was improvident because appellant did not admit that her conduct was wrongful or prejudicial to good order and discipline)
        4. Fleming 201000439 (14 Jul 11) (during the plea inquiry the appellant admitted that any information obtained from his cell phone, and his decision to delete the incriminating videos, could spark a criminal investigation)
      97. Article 134: Wrongful Interference with an Adverse Administrative Proceeding
        1. Sanders 200500657 (31 May 07) (consuming a detoxification drink before appellant's urinalysis, in order to hide his methamphetamine use, constituted a wrongful interference with an administrative proceeding)
      98. Article 134: Pandering and Prostitution
        1. Mitchell 200602365 (7 Aug 07) (Lawrence v. Texas does not affect prosecution for pandering)
        2. Mitchell 200602365 (7 Aug 07) (Lawrence v. Texas does not affect prosecution for pandering)
      99. Article 134: Parole, Violation of
      100. Article 134: Perjury � Subornation of
      101. Article 134: Public Record, Altering, Concealing, Removing, Mutilating, Obliterating, or Destroying
        1. Mitchell 200602365 (7 Aug 07) (Lawrence v. Texas does not affect prosecution for pandering)
        2. Mitchell 200602365 (7 Aug 07) (Lawrence v. Texas does not affect prosecution for pandering)
        3. Mitchell 200602365 (7 Aug 07) (Lawrence v. Texas does not affect prosecution for pandering)
      102. Article 134: Quarantine: Medical, Breaking
        1. Mitchell 200602365 (7 Aug 07) (Lawrence v. Texas does not affect prosecution for pandering)
      103. Article 134: Requesting Commission of an Offense
      104. Article 134: Restriction, Breaking
        1. Mitchell 200602365 (7 Aug 07) (Lawrence v. Texas does not affect prosecution for pandering)
        2. Edwards 200600836 (21 Feb 07) (willful disobedience of a superior commissioned officer and breaking restriction not UMC)
        3. Edwards 200600836 (21 Feb 07) (willful disobedience of a superior commissioned officer and breaking restriction not UMC)
      105. Article 134: Seizure: Destruction, Removal, or Disposal of Property to Prevent
        1. Edwards 200600836 (21 Feb 07) (willful disobedience of a superior commissioned officer and breaking restriction not UMC)
      106. Article 134: Self-injury without Intent to Avoid Service
      107. Article 134: Sentinel or Lookout � Offenses Against or By
      108. Article 134: Soliciting Another to Commit an Offense
        1. Edwards 200600836 (21 Feb 07) (willful disobedience of a superior commissioned officer and breaking restriction not UMC)
        2. Useche 70 M.J. 657 (N.M.Ct.Crim.App. 2012) (appellant's offer to give his consensual and non-consensual sodomy victim a thousand dollars, provided she dropped the charges against him, was properly affirmed as solicitation of another to commit the offense of obstructing justice)
      109. Article 134: Stolen Property: Knowingly Receiving, Buying, Concealing
        1. Moreno 72 M.J. 521 (N.M.Ct.Crim.App. 2013)(thief cannot be prosecuted for concealing property he stole)
        2. Bishop 201000464 (13 Sep 11)(specification alleging conspiracy to sell stolen property did not state an offense)
      110. Article 134: Straggling
      111. Article 134: Testify: Wrongful Refusal
      112. Article 134: Threat or Hoax Designed or Intended to Cause Panic or Public Fear
      113. Article 134: Threat, Communicating
        1. White 62 M.J. 639 (N.M.Ct.Crim.App. 2006) ("in order for communication of a threat to be unlawful, there must be evidence of a �wrongful intent;'" the communication at hand was a threat by the appellant to release information meant to embarrass the underage victim if she spoke about their sexual relationship)
        2. White 62 M.J. 639 (N.M.Ct.Crim.App. 2006) ("in order for communication of a threat to be unlawful, there must be evidence of a �wrongful intent;'" the communication at hand was a threat by the appellant to release information meant to embarrass the underage victim if she spoke about their sexual relationship)
        3. White 62 M.J. 639 (N.M.Ct.Crim.App. 2006) ("in order for communication of a threat to be unlawful, there must be evidence of a �wrongful intent;'" the communication at hand was a threat by the appellant to release information meant to embarrass the underage victim if she spoke about their sexual relationship)
      114. Article 134: Unlawful Entry
        1. Rosales 201200363 (12 Feb 13) (appellant's action of pushing the victim back into her room before sexually assaulting her were grounds for unlawful entry)
        2. Rosales 201200363 (12 Feb 13) (appellant's action of pushing the victim back into her room before sexually assaulting her were grounds for unlawful entry)
      115. Article 134: Weapon � Concealed, Carrying
        1. Meyer 201100567 (29 Aug 12)(error for MJ to provide members with state statute after refusing to take judicial notice of it or providing some means to authenticate it; error not to instruct on inference of unlawfulness)
        2. Meyer 201100567 (29 Aug 12)(error for MJ to provide members with state statute after refusing to take judicial notice of it or providing some means to authenticate it; error not to instruct on inference of unlawfulness)
        3. Meyer 201100567 (29 Aug 12)(error for MJ to provide members with state statute after refusing to take judicial notice of it or providing some means to authenticate it; error not to instruct on inference of unlawfulness)
      116. Article 134: Wearing Unauthorized Insignia, Decoration, Badge, Ribbon, Device, or Lapel Button
        1. Meyer 201100567 (29 Aug 12)(error for MJ to provide members with state statute after refusing to take judicial notice of it or providing some means to authenticate it; error not to instruct on inference of unlawfulness)
        2. Smith 201100594 (27 Dec 12) (continuous and grandiose misrepresentations and lies about rank legally and factually sufficient)
    2. Defenses
      1. Generally
      2. Affirmative Defenses
        1. Barnes 60 M.J. 950, 954 (N.M.Ct.Crim.App. 2005) ("An affirmative defense negates guilt by canceling out the existence of some required element of the offense or by showing some justification or excuse that bars the�imposition of liability.)
        2. Barnes 60 M.J. 950, 954 (N.M.Ct.Crim.App. 2005) ("An affirmative defense negates guilt by canceling out the existence of some required element of the offense or by showing some justification or excuse that bars the�imposition of liability.)
        3. Barnes 60 M.J. 950, 956 (N.M.Ct.Crim.App. 2005) ("[W]here the evidence proffered by an accused in support of an affirmative defense in response to a Government motion in limine is insufficient as a matter of law to support the affirmative defense, a pretrial ruling precluding the presentation of the defense at trial is appropriate. ...To entitle the accused to present an affirmative defense to the trier of fact, his proffer must meet the minimum standard as to each element of the defense, so that if the trier of fact finds it to be true, it would support the defense.")
      3. Accident
      4. Defense of Property
      5. Duress
        1. Barnes 60 M.J. 950, 956 (N.M.Ct.Crim.App. 2005) ("[W]here the evidence proffered by an accused in support of an affirmative defense in response to a Government motion in limine is insufficient as a matter of law to support the affirmative defense, a pretrial ruling precluding the presentation of the defense at trial is appropriate. ...To entitle the accused to present an affirmative defense to the trier of fact, his proffer must meet the minimum standard as to each element of the defense, so that if the trier of fact finds it to be true, it would support the defense.")
        2. Barnes 60 M.J. 950, 956 (N.M.Ct.Crim.App. 2005) ("[W]here the evidence proffered by an accused in support of an affirmative defense in response to a Government motion in limine is insufficient as a matter of law to support the affirmative defense, a pretrial ruling precluding the presentation of the defense at trial is appropriate. ...To entitle the accused to present an affirmative defense to the trier of fact, his proffer must meet the minimum standard as to each element of the defense, so that if the trier of fact finds it to be true, it would support the defense.")
      6. Entrapment
      7. Former Jeopardy
      8. Gambler's Defense
      9. Impossibility
      10. Innocent Ingestion
      11. Innocent/Inadvertent Possession
      12. Justification
      13. Lack of Mental Responsibility
        1. Smith 201100594 (27 Dec 12) (Lack of mental responsibility instruction based on RCM 706 did not impermissibly depart from Article 50)
        2. Tanner 201200250 (30 Nov 12) (no abuse of discretion in accepting plea where MJ inquired about mental responsibility in line with Phillippe)
        3. Miller 201200184 (20 Nov 12) (limited evidence of brain injury suffered years before offenses to which appellant pled guilty did not present substantial conflict with his plea)
        4. Mancillas 200401950 (17 Apr 12) (Appellant carries burden to show by clear and convincing evidence that he lacked mental responsibility at the time of the offenses)
      14. Mistake of Fact
        1. Thomas 201200203 (31 Jan 13) (not raised by the evidence)
      15. Necessity
      16. Obedience to Orders
      17. Self-Defense
    3. Evidence
      1. Generally
      2. Accomplice Testimony
      3. Authentication
        1. Lubich 201100378 (19 Apr 12) (testimony of a cyber forensics examiner from NCIS as to the contents of and method of obtaining the data was sufficient to authenticate computer-generated reports of appellant's NMCI account)
      4. Balancing
        1. Valentin 201000683 (17May 12) (letters from appellant to wife showing consciousness of guilt pass balancing test)
        2. Brown 201100516 (28 Nov 12) (judge erred in failing to conduct balancing test, but harmless because nurse practitioner's testimony passes balancing test)
      5. Character
        1. Abdirahman 66 M.J. 668 (N.M.Ct.Crim.App. 2008) (admission of witness testimony to bolster rape victim's character for truthfulness when defense implied that her testimony was unreliable because of inconsistencies in her testimony was error because it did not put her truthfulness at issue; but it was not plain error because the witness had limited experience with the victim so his opinion on her truthfulness was not prejudicial to appellant)
        2. Brown 201100516 (28 Nov 12) (presence of victim advocate next to child victim of sexual abuse during victim's testimony was not improper bolstering of victim's credibility)
        3. Morgan 201200141 (27 Dec 12) (not an opinion on truthfulness of victim's allegation when witness said "[s]he's always truthful with me")
      6. Confessions and Admissions
        1. Generally
        2. Admission by silence
        3. Art 31
          1. Hutchins 200800393 (20 Mar 12) (appellant waived rights, gave confession, later invoked right to counsel; prior confession is admissible)
          2. Skinner 201000555 (29 July 11) (appellant's statement was properly admitted even though agents did not warn appellant of every offense charged later, because their warning oriented him to the general nature of the crime he was suspected of committing)
        4. Corroboration
        5. Invocation of rights
          1. Western 201100651 (29 Aug 12) (appellant initiated communication after invoking right to counsel, thus second rights waiver voluntary)
          2. Mask 201100399 (14 Aug 12) (appellant's statement that lawyer told her not to speak to social worker was not clear exercise of her constitutional right)
        6. Motions to suppress
        7. Rule of completeness
          1. Foisy 69 M.J. 562, 567 (N.M.Ct.Crim.App. 2010) (explaining two distinct rules of completeness and holding that "where the Government links two statements by constructing them as a statement and a �supplement' to that statement, the Government may not deconstruct those statements for purposes of trial where admission of the second statement standing alone would create a misimpression on the part of the fact finder as to an accused's actual admissions. The rule of completeness is neither a sword with which an accused might introduce evidence to avoid the crucible of cross-examination, nor a shield behind which the true nature of an accused's admissions may be hidden.")
        8. Subsequent confessions
        9. Voluntariness
          1. Western 201100651 (29 Aug 12) (appellant initiated communication after invoking right to counsel, thus second rights waiver voluntary, even where NCIS agent said later meeting in the presence of counsel would be impossible due to budget constraints)
        10. Warnings
      7. Credibility
      8. Expert/Scientific Testimony
        1. Holmes 201100602 (18 Dec 12) (MJ has no sua sponte duty to hold Daubert for Government witness where no defense objection)
        2. Kilarski 201100329 (29 Feb 12) (distinguishing between admissibility of expert testimony and testimonial hearsay in drug reports)
        3. Wallace 201100300 (30 Mar 12) ( no error where defense expert testimony examining victim's mental health was suppressed because of its prejudicial effect)
        4. Smith 201100433 (28 Sep 12)(hearsay statements relevant to expert's opinion could not be disclosed to the members)
        5. Brimeyer 201100141 (28 Jun 12)(defense expert's explanation of false allegation rates not plain error where defense did not object even though it knew what expert would say)
        6. Abdirahman 66 M.J. 668 (N.M.Ct.Crim.App. 2008) (abuse of discretion in allowing nurse practitioner who examined rape victim to provide an opinion on whether victim's physical and emotional conditions were "common" or "not common" compared with other rape victims where government failed to provide notice to the defense of an expert witness, provide an adequate foundation to qualify the nurse an expert, and establish that her testimony was reliable)
        7. Brown 201100516 (28 Nov 12) (expert testimony of a nurse practitioner regarding her examination of child sexual abuse victim was admissible when trial counsel merely asked for a general outline of the interview of victim's medical history and the physical examination but defense counsel elicited specific details of the sexual abuse and perpetrator)
      9. Hearsay
        1. Generally
          1. Mitchell 201100346 (29 Feb 12)(MJ abused discretion in allowing hearsay during presentencing)
          2. Lubich 201100378 (19 Apr 12)(computer �generated reports of appellant's NMCI account were not statements for hearsay purposes)
        2. Adoptive Admissions
        3. Business entries
          1. Tearman 70 M.J. 640 (N.M.Ct.Crim.App. 2012)(not testimonial portions of lab report properly admitted as business records)
        4. Excited utterances
          1. Abdirahman 66 M.J. 668 (N.M.Ct.Crim.App. 2008) (admission of hearsay statements of rape victim as excited utterances was clearly erroneous when the statements did not immediately follow the startling event, the statements were not spontaneous, and MJ did not make findings of fact to support his conclusion that the victim was still in a state of excitement)
          2. Ignacio 201100062 (8 Nov 11) (hearsay statements made to military superiors were admissible under the excited utterance exception when the speaker awoke to abusive sexual contact from appellant, shoved appellant away, and promptly left and recounted the event to those superiors)
        5. Medical exception
          1. Brown 201100516 (28 Nov 12) (statements made by child sexual abuse victim to nurse practitioner during examination fell within the medical exception)
          2. Brimeyer 201100141 (29 Jun 12) (statements made by child sexual abuse victims to licensed clinical social worker in her capacity as their therapist were admissible as statements made for purposes of medical diagnosis or treatment when the children understood that talking to her about their problems was part of the process of "getting better")
        6. Public records and reports
        7. Residual hearsay
        8. State of mind
        9. Statement against interest
      10. Immunized Testimony
      11. Impeachment
        1. Smith 201100433 (28 Sep 12)(victim's mental health condition relevant to bias or competency to testify)
      12. Inferences
      13. Instructions on
      14. Intent
      15. Judicial Notice
        1. Meyer 201100567 (29 Aug 12)(error for MJ to provide members with state statute after refusing to take judicial notice of it or providing some means to authenticate it)
      16. Motive
      17. Opinion Testimony
      18. Other Acts
        1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012)(appellant's statements about an earlier drive-by shooting did not pass Reynolds test for admission in murder trial)
        2. Hickerson 71 M.J. 659 (N.M.Ct.Crim.App. 2012) (appellant's earlier statements acknowledging sexual conversations with minors online were admissible because there was no dispute that appellant made the statements, the statements were highly probative of his intent towards enticement of a minor and receiving and possessing child pornography, and the prejudice did not outweigh the probative value; however, online chats between appellant and adults containing references to his past sexual acts with minors were not admissible because they exceed the scope of culpability reflected in the offenses charged and provided little probative value, but error was harmless for findings and sentencing)
        3. Pimienta, 66 M.J. 610 (N.M.Ct.Crim.App. 2008) (no abuse of discretion in admitting witness testimony of incidents of appellant mishandling his weapon and receiving counseling on proper use because it was highly probative of his knowledge and training and thus demonstrates lack of accident or mistake, and any prejudice did not outweigh this probative value)
      19. Plan or Design
      20. Plea Negotiations
      21. Polygraph
        1. Wheeler 66 M.J. 590 (N.M.Ct.Crim.App. 2008) (MJ erred in excluding evidence of polygraph examinations focused on surrounding circumstances because it denied appellant from presenting factual evidence of his understanding and perception of the polygraph examinations relevant to the voluntariness and credibility of his confession)
      22. Prejudice
      23. Prior Consistent Statements
        1. Thomas 201200203 (31 Jan 13)(prior consistent statement properly rebutted motive to lie implied by defense counsel)
        2. Carrico 201200098 (14 Feb 13)(prior consistent statement need only rebut one of defense counsel's implied motives or biases)
      24. Prior Convictions
      25. Prior Inconsistent Statement
      26. Privileges
        1. Generally
          1. Wuterich 68 M.J. 511 (N.M.Ct.Crim.App. 2009) (a reporter's privilege does not apply in military courts-martial under the MRE as a principle of common law generally recognized in the trial of criminal cases in the US district courts because the federal common law is not sufficiently developed in this area)
        2. Attorney-client
          1. Valentin 201000683 (17 May 12)(severance of attorney-client relationship with civilian counsel)
          2. Hutchins 68 M.J. 623 (N.M.Ct.Crim.App. 2010), remanded on other grounds at 69 M.J. 282 (C.A.A.F. 2011) (an established attorney-client relationship was not properly severed when appellant did not consent to severance, defense counsel's departure from duty did not constitute good cause for severance, and government did not rebut the presumption of prejudice attached to improper severance of an attorney-client relationship)
        3. Classified information
        4. Communications to clergy
        5. Husband-wife privilege
          1. Pearce 201100110 (28 Nov 12) (no error when military judge compelled appellant's wife to testify against appellant regarding his adulterous conduct because they were offenses against her)
        6. Mental examination
        7. Psychotherapist-patient privilege
          1. McGuire 201000611 (31 Jan 12)(communications between appellant and ER doctor admissible because no reasonable expectation of confidentiality or psychotherapist/patient relationship)
      27. Proffers
      28. Public Records
      29. Rebuttal
      30. Relevance
      31. Rule of Completeness
      32. Scientific Evidence
        1. Pimienta 66 M.J. 610 (N.M.Ct.Crim.App. 2008) (no error for admission into evidence of photographs of the deceased because they served the legitimate purpose of making the coroner's expert medical testimony easier to understand and were probative of the steps taken to attempt to save the deceased's life, and any prejudice did not outweigh the probative value)
      33. Search and Seizure
        1. Generally
        2. Apprehension/arrest
        3. Automobile exception
        4. Bodily views and intrusions
        5. Commanders
        6. Consent
        7. Derivative evidence
        8. Exclusionary rule
        9. Expectations of privacy
        10. Good faith exception
        11. Inevitable discovery
          1. Weston 66 M.J. 544, 552-53 (N.M.Ct.Crim.App. 2008) ("When the Government establishes by a preponderance of the evidence that routine procedures of a law enforcement agency would inevitably find the same evidence, the rule of inevitable discovery applies even in the absence of a prior or parallel investigation"; evidence obtained during search of appellant's home fell within the inevitable discovery doctrine because the agents had enough information to obtain search authorization to seize appellant's computer in a timely manner)
        12. Investigatory stop
          1. Adams 201100324 (15 Mar 12) (investigation following initial traffic stop based on reasonable suspicion was valid since was limited to confirming or dispelling that suspicion, and all evidence within that scope was admissible)
        13. Neutral and detached
        14. Plain view
        15. Probable cause
        16. Stop and frisk
        17. Warrants
        18. Wiretaps
      34. Sexual Assault and Child Molestation
        1. Smith 201100433 (28 Sep 12) (Defense not permitted to ask victim about past sexual assault allegations where it made no showing they were false)
        2. Perry 201100273 (31 Jul 12) (MJ did not abuse discretion excluding evidence of victim's prior sexual behavior because insufficient nexus between prior conduct and facts of case)
        3. Key 71 M.J. 566 (N.M.Ct.Crim.App. 2012) (words of victim shortly before assault encompassed the offenses and should not have been excluded under MRE 412)
      35. Stipulations
        1. Rapp 201200303, *12 (30 Apr 2013) ("While it is not required that the elements of an offense be set out separately from the supporting evidence in a stipulation of fact, it is a best practice.")
      36. Summaries
      37. Suppression
      38. Transcripts of Audio Recordings
      39. Uncharged Misconduct
      40. Waiver
    4. Witnesses
      1. Ake Appointments
      2. Child Witness
      3. Confrontation
        1. Smith 201100433 (28 Sept 12) (restrictions on cross-examination of victim did not violate Confrontation Clause)
        2. Porter 201100188 (28 June 12) (portions of drug lab report were testimonial hearsay and appellant had no opportunity to confront declarants)
        3. Alicea 201100366 (12 Jan 12) ( portions of drug lab report were testimonial hearsay and appellant had no opportunity to confront declarants)
        4. Kilarski 201100329 (29 Feb 12) ( portions of drug lab report were testimonial hearsay and appellant had no opportunity to confront declarants)
      4. Experts
        1. Brimeyer 201100141 (28 Jun 12) (defense expert's explanation of false allegation rates not plain error where defense did not object even though it knew what expert would say)
      5. Impeachment of
        1. Smith 201100433 (28 Sep 12) (Defense not permitted to ask victim about past sexual assault allegations where it made no showing they were false)
      6. Oaths
      7. Production of
        1. Mauceri 201000573 (28 Jul 11) (no abuse of discretion when MJ denied motion to compel production of a witness because the testimony was on a collateral matter not relevant to the offenses charged)
      8. Scope of Permissible Testimony
      9. Sequestration
    5. Burdens, Standards, Presumptions, Inferences
      1. Trial Burdens, Standards
        1. Generally
        2. Affirmative defenses
        3. Appointment of experts
        4. Clergy privilege
        5. Confessions and admissions
        6. Consent to search
        7. Immunity
        8. Lack of mental responsibility
          1. Mott 200900115, (30 Apr 12) (defense not established)
        9. Lawfulness of orders/regulations
        10. Marital privilege
        11. Pretrial punishment
        12. Pretrial punishment
        13. Selection of members
      2. Trial Presumptions, Inference
      3. Appellate Burdens, Standards, etc
        1. Generally
        2. Admission/suppression of evidence
        3. Capital case
        4. Command influence
        5. Continuance
        6. Instructions
        7. Presumptions
        8. Presumptions
        9. Selection of court members
      4. Appellate Presumptions, Inferences
    6. Motions, Generally
      1. Pretrial
        1. Generally
          1. Howard 201200077 (31 Jan 13) (no abuse of discretion in denying motion for continuance to consult with psychiatrist submitted one business day before the trial because the request was untimely and defense could accomplish its stated goals by "cross-examin[ing] the victim instead of inviting a battle of the experts")
          2. McCoy 201100080 (11 Aug 11) (no abuse of discretion in denying motion for continuance to obtain civilian counsel when the request was made the eve of trial and appellant expressed satisfaction with his uniformed defense counsel)
        2. Severance
          1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (military judge abused discretion by failing to sever two factually distinct murders)
      2. Merits
      3. Burden
      4. Standing
      5. Motions to Dismiss
  4. TRIAL STAGES
    1. Pretrial
      1. Charges and Specifications
        1. McGuire 201000611 (31 Jan 12) (though specification was poorly crafted, it sufficiently stated criminality, included elements of crime, sufficiently informed appellant of what he must defend against, and protected him from double jeopardy)
        2. Adams 201100324 (15 Mar 12) (rights advisory informed appellant of investigation of fraud and put her on notice of later-charged BAH fraud)
        3. Cepeda 200400992 (19 Apr 06) ("When a charge employs �on or about' language, the Government is not required to prove the specific date alleged in the charge"; proof of date three weeks earlier not a material variance)
      2. Competence of the Accused
      3. Discovery
        1. Wuterich 68 M.J. 511 (N.M.Ct.Crim.App. 2009) (DVDs containing outtakes of interview of accused were discoverable because they contained specific, material information and detail not present in any other statements and because they bear directly on the observations, impressions, and information of the appellee, making them relevant and material, necessary, and not cumulative)
      4. Investigations (Article 32)
        1. Weller 201100043 (30 Apr 12) (government should record Art. 32 hearings but there is no statutory requirement)
        2. Hall 201000671 (6 Dec 11) (no abuse of discretion in denying Article 32 hearing because there was no impropriety in Investigating Officer's communications with trial counsel that were ministerial in nature)
      5. Pretrial Advice
      6. Pretrial Restraint
      7. Pretrial Confinement
        1. Six 201100016 (18 Aug 11) (abuse of discretion in continuing pretrial confinement after finding by probable cause rather than preponderance of the evidence that appellant committed certain offenses pretrial confinement was necessary to ensure appellant's presence at trial, and lesser forms of punishment were inadequate; however, despite the use of the incorrect standard, the requirements were met by a preponderance of the evidence)
        2. Jenkins 201000663 (9 Aug 11) (lesser forms of restraint are not required to be tried and found inadequate before confinement can be ordered)
      8. Pretrial Restriction
      9. Pretrial Punishment
        1. West 201200189 (21 Mar 13) (unlawful intent to punish when appellant was confined in a civilian facility for one month before first visit from command and when appellant signed a PTA agreeing to lesser pretrial restraint, but appellant was then confined to a duty hut)
        2. Wyly 201100005 (31 Oct 11) (not unlawful pretrial punishment when appellant freely and voluntarily entered into the PTA, thus appellant knowingly waived rights)
        3. Campbell 201100079 (6 Sept 11) (not pretrial punishment when command failed to bring appellant to his medical appointments because this lack of diligence was not intentional or punitive, resulting from delays in his requests due to a unit transfer, appellant was seen by brig medical staff, and did not assert any actual harm or prejudice)
      10. Motions
      11. Referral
    2. Merits
      1. Pleas, generally
      2. Guilty Pleas
        1. Mental responsibility
          1. Peacock 201100596 (30 Apr 12) (plea provident where appellant questioned extensively at trial about mental health as defense, and military judge, trial defense counsel, and 706 evaluation all concurred that appellant was competent)
          2. Pieper 201100487 (8 May 12) (military judge not obligated to inquire further about mental responsibility)
          3. Hayes 201000366 (31 May 12) (statement did not require military judge to inquire about defense of mental responsibility)
          4. Velez 201100456 (12 Sep 12) (appellant's mention of PTSD in unsworn statement did not require further inquiry)
        2. Mitcham 201200060 (29 May 12) (failure to allege intent to deceive did not prejudice appellant where he stipulated to the same and military judge explained the element during providency)
        3. Pabon-Baez 201200218 (31 Oct 12) (whether plea was provident depends on the accused's awareness of facts and law, not military judge's technical listing of elements)
        4. Johnson 201200049 (24 Oct 12) (no further inquiry required where, during providency, appellant stated the date that he became available for pick-up following period of UA; court will not speculate on appeal whether he may have become available even earlier)
        5. Dominique 201000658 (22 Nov 11) (plea improvident where alleged agreement was implicit, military judge made repeated efforts to determine proof of agreement and what benefit appellant derived from it, but nothing beyond appellant's one-word replies demonstrated "meeting of the minds.")
        6. Hancock 201100466 (29 Mar 12) (MJ's questions during providence inquiry were leading and conclusory to establish a provident plea)
        7. Castro 20110453 (31 Jan 12) (appellant was advised that he could not receive fine as well as total forfeitures but MJ advised him of potential punishments during plea inquiry and that he could also potentially receive a fine and appellant acknowledged that he understood which is sufficient notice of potential punishments)
      3. Pretrial Agreements
        1. Porter 201100605 (19 Apr 12) (agreed upon interpretation of PTA whether correct or not is law of the case)
        2. Froio 20100029 (30 Apr 12) (military judge's incorrect explanation of PTA did not make plea improvident, but entitled appellant to relief under Article 66(c))
        3. Griffitts 201000673 (20 Oct 11) (Convening Authority did not breach PTA term in which he agreed to confine appellant at Miramar if conditions were met; appellant was not confined at Miramar because conditions not met)
        4. Hodge 200601124 (28 Jul 11) (guilty plea was voluntary even though appellant did not receive everything he was promised under the PTA because appellant failed to take action required by him and actually received greater benefit)
        5. Mitchell 62 M.J. 673, 675 (N.M.Ct.Crim.App. 2006) ("If a provision that prohibited an accused from even mentioning potential constitutional violations during his court-martial is not violative of public policy, we fail to see how a provision dealing with an issue that is not of constitutional dimension and is not specifically prohibited by R.C.M 705(c)(1) could be so held. Accordingly, we hold that the pretrial�agreement provision in which the appellant waived the issue of unreasonable multiplication of charges is not violative of public policy and is thus enforceable.")
      4. Confessional Stipulations
      5. Motions
      6. Trial Procedures
        1. Generally
        2. Arraignment
        3. Forum election
        4. Oaths
        5. Rebuttal
        6. Voir dire
        7. Withdrawal of charges
      7. Multiplicity for Findings
      8. Argument
        1. Boyer 201100523 (27 Dec 12) (improper argument where TC urged members to protect victim, disparaged accused and defense counsel, argued facts not in evidence)
        2. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (right to self-incrimination not implicated by Government's assertion that appellant was "cocky" during interview where interrogator testified to same)
        3. Hickerson 71 M.J. 659 (N.M.Ct.Crim.App. 2012) (no error during sentencing where, because the statement was not under oath and was inconsistent with appellant's other testimony, TC asked the members to give appellant's unsworn statement less credibility because it closely tracked applicable law; no error during sentencing where TC alluded to portions of appellant's online chats describing his sexual preference for children because they were properly admitted into evidence and focused on appellant's rehabilitative potential; however, improper argument during sentencing where TC referenced a Biblical passage suggesting harsh punishment for sins against children after appellant had taken bible classes but was not pleading for leniency based on religious belief, but the error was harmless)
        4. Abdirahman 66 M.J. 668 (N.M.Ct.Crim.App. 2008) (references to the evidence as "undisputed" during closing was an improper reference to appellant's decision not to testify where only appellant could have contradicted the victim's testimony of the rape; but error was harmless because of MJ's curative instruction)
        5. Pimienta 66 M.J. 619 (N.M.Ct.Crim.App. 2008) (no material prejudice when TC used the pronoun "we" in closing arguments because MJ instructed that arguments of counsel are not evidence and TC comments were not as egregious as in Fletcher; no prejudice when TC commented that no evidence was asserted to contradict that appellant shot the deceased because it merely reflected the evidence and strength of the government's case, was intended to focus members on the issue of whether appellant's culpable negligence caused deceased's death, trial defense counsel conceded that appellant shot deceased, and MJ instructed members not to take adverse inference from appellant's absence)
      9. Instructions
        1. Generally
        2. Lesser-included offenses
          1. Hutchins 200800393 (20 Mar 12) (instruction on LIO of voluntary manslaughter and provocation while not instructing on operational environment impact was not error)
        3. Affirmative defenses
          1. Medina 68 M.J. 587 (N.M.Ct.Crim.App. 2009) affirmed at 69 M.J. 462 (C.A.A.F. 2011) (MJ's instructions on affirmative defense of consent to charge of aggravated sexual assault omitting appellant's burden of proving the defense of consent by a preponderance of the evidence did not prejudice appellant when those instructions benefited him by removing the burden to prove the defense of consent)
        4. Accomplice testimony
        5. Divers occasions
      10. Findings
        1. Knapp 201100556 (28 June 12) (instruction erroneously implied that acquittal required 2/3 of panel)
        2. Miles 71 M.J. 671 (N.M.Ct.Crim.App. 2012) (A general guilty verdict to an Article 134 offense charged disjunctively attaches a guilty verdict to both theories of liability)
        3. Saxman 69 M.J. 540 (N.M.Ct.Crim.App. 2010) (appellate review of conviction for knowing possession of child pornography was precluded for ambiguity when the Members failed to specify which four of the twenty-two video files they had found the appellant guilty of possessing)
      11. Mistrial
        1. Dossey 66 M.J. 619 (N.M.Ct.Crim.App. 2008) (Abuse of discretion in declaring a mistrial when MJ demonstrated no effort to determine whether there was manifest necessity for a mistrial by inquiring into the facts, inquiring into the views of the parties, and considering less drastic measures)
      12. New Trial
    3. Sentence and Punishment
      1. Evidence
        1. Frost 201200190 (30 Nov 12) (MJ did not abuse discretion in refusing to admit BUPERS Instr 1640.22 as evidence for appellant)
        2. Soto 201100680 (15 May 12)(victim impact statements used in aggravation)
        3. Miles 71 M.J. 671 (N.M.Ct.Crim.App. 2012) (testimony about the effect of child pornography on children depicted proper in aggravation)
        4. Law 201100286 (21 Sep 12) (evidence in aggravation at murder trial not plain error where Government called 23 witnesses)
        5. Mitchell 201100346 (29 Feb 12) (MJ abused discretion in allowing hearsay during presentencing)
        6. Jenkins 201100420 (10 May 12) (judicial notice of congressional findings regarding child pornography not an abuse of discretion)
      2. Unsworn Statements
      3. Argument
      4. Capital Punishment
      5. Credits
      6. Multiplicity for Sentencing
        1. Garner 67 M.J. 734 (N.M.Ct.Crim.App. 2008) (unreasonable multiplication of charges for sentencing where appellant was charged with attempted indecent language to a child under sixteen years and attempting to entice a minor to engage in illegal sexual activity because both offenses were achieved in part through the exact same explicit language)
      7. Instructions
      8. Lawfulness of Sentence
        1. Ruby 201100430 (10 Jan 12) (military judge could properly correct sentence from BCD to DD before adjournment even after reading the PTA)
        2. McGuire 201000611 (31 Jan 12) (sentence reassessed where MJ erred in calculating maximum confinement)
        3. Castro 201100453 (31 Jan 12) (fine legally enforceable even where sentence does not include enforcement provision)
        4. Altier 201000361 (30 Apr 12) (sentence rehearing not in excess of original BCD sentence)
        5. Reich 201200222 (23 Oct 12) (dishonorable discharge not inappropriately severe for conspiracy, sale of military property offenses)
        6. Smith 201100594 (27 Dec 12) (Where "peculiar mental condition contributed significantly" to appellant's misconduct, court reduced confinement portion of sentence)
      9. Cruel and Unusual Punishment
      10. Forfeitures
        1. Generally
        2. Adjudged
          1. Addison 201200296 (28 Nov 12) (adjudged forfeitures must be calculated at reduced rate where reduction also adjudged)
        3. Mandatory
          1. Mitchell 201100346 (29 Feb 12) (automatic forfeitures returned to appellant where he served excess confinement)
      11. Fine/Contingent Confinement
      12. Mandatory
    4. Post-Trial Hearings
      1. Authority for
      2. Findings and Rulings
      3. DuBay/Factfinding Hearings
        1. Mancillas 200401950 (17 Apr 12) (Appellant carried burden to show that he became mentally incompetent at some point after trial and was no longer able to assist in further hearings or his appeal)
    5. Initial Review
      1. Generally
        1. Danley 70 M.J. 556 (N.M.Ct.Crim.App. 2011) (in limited circumstances, colorable showing of possible prejudice required for post-trial error is self-evident)
      2. Preparation of Record of Trial
        1. McAllister 201100085 (29 Dec 11) (record was substantially complete and verbatim despite loss of original recording, errors in transcript of rehearing, and certain missing documents)
      3. Authentication of Record of Trial
        1. Roberts 201100437 (20 Mar 12) (errors in record were not prejudicial)
      4. Post-Trial Recommendation
        1. Thompson 201200146 (31 May 12) (SJAR failed to include judge's recommendation for clemency but appellant received it anyway, thus no prejudice)
        2. Snook 200201598 (8 Aug 07) ("The appellant's counsel must bring errors and omissions in the SJAR to the attention of the CA after a copy of the SJAR is delivered or, in the absence of plain error, they are waived.")
      5. Post-Trial Submissions
      6. Action
        1. Chenoweth 201200238 (29 Jan 13)
        2. O'Neal 201100307 (19 Jan 12)(convening authority's action regarding the sentence was unclear)
        3. Northrup 201100478 (23 Feb 12) (CA considered matters outside the record, contrary to RCM 1107, which the appellant was not notified of or given the opportunity to rebut)
        4. Davis 201100489 (15 Mar 12) (CA action fails to provide that BCD will be remitted upon successful completion of suspension period, but error is not prejudicial)
        5. Hall 201200207 (23 Oct 12) (no prejudice where CA viewed court-martial order that did not state a charge had been dismissed)
        6. Warren 71 M.J. 505 (N.M.Ct.Crim.App. 2012) (distinguished from Wilson, in which a dishonorable discharge was specifically excepted from approval, because the discharge was not explicitly approved or disapproved but was mentioned when excepting it from execution, implying that the discharge was approved)
      7. Clemency
        1. Danley 201000677 (8 Nov 11) (action set aside where trial defense counsel, as part of clemency waiver, improperly disclosed appellant's confidential communication that he did not wish to remain in Marine Corps)
      8. Deferral
      9. Revocation of Suspensions
        1. Danley 201000677 (8 Nov 11) (action set aside where trial defense counsel, as part of clemency waiver, improperly disclosed appellant's confidential communication that he did not wish to remain in Marine Corps)
        2. Danley 201000677 (8 Nov 11) (action set aside where trial defense counsel, as part of clemency waiver, improperly disclosed appellant's confidential communication that he did not wish to remain in Marine Corps)
        3. Clark 201100655 (26 Apr 12) (results of a vacation must be forwarded to officer exercising general court-martial jurisdiction)
        4. Price 201000193 (18 Apr 13) (Vacation hearing officer's prior involvement in disciplining the petitioner did not disqualify him; his stated unwillingness to reconsider the results of earlier disciplinary boards was error, but not one related to a clear and indisputable right, and issuance of a writ of mandamus was not necessary or appropriate in this case)
      10. Execution of Sentences
    6. Writs and Interlocutory Appeals
      1. Generally
        1. Lawanson 201200187 (31 Aug 12) (3 conditions must be met before extraordinary relief in the form of a writ of mandamus)
        2. Williams 200301656 (14 Feb 12) (6 threshold requirements for writ of coram nobis)
        3. Williams 200301656 (14 Feb 12) (6 threshold requirements for writ of coram nobis)
        4. Williams 200301656 (14 Feb 12) (6 threshold requirements for writ of coram nobis)
        5. Williams 200301656 (14 Feb 12) (6 threshold requirements for writ of coram nobis)
      2. Collateral Attack
      3. Appropriateness of Forum
      4. All Writs Act
      5. Article 62 Appeal
    7. Appeals
      1. Generally
        1. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (appellant receives protection of case law formulated while his case is on direct review)
      2. Courts of Criminal Appeals
        1. Generally
        2. Factual sufficiency
          1. McCoy 200101209 (20 Apr 06) ("In exercising the duty imposed by this �awesome, plenary, de novo power,' ...this court may judge the credibility of witnesses, determine controverted questions of fact, and substitute its judgment for that of the military judge or court-martial members.")
          2. Rankin 63 M.J. 552, 557 (N.M.Ct.Crim.App. 2006) ("Reasonable doubt...does not mean the evidence must be free from conflict.")
          3. McDowell 34 M.J. 719, 721 (N.M.C.M.R. 1992) ("While this Court has fact-finding powers, Article 66(c), UCMJ, 10 U.S.C. § 866(c), and Mil.R.Evid. 201(f), we are not prepared to fill in evidentiary gaps by noticing an essential fact for the first time on appeal. An accused is entitled to know at the time of trial upon what evidence he is being convicted.")
          4. Meinero 201200112 (27 Dec 12) (spice conviction factually insufficient where no evidence of order's substance, or that appellant actually used spice)
          5. Lucas 201100372 (28 Aug 12) (forcible rape conviction factually insufficient based in part on inconsistencies in victim's testimony)
          6. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (an appellant receives the benefit of intervening caselaw between his conviction and Art. 66(c) review; evidence which would not be properly admitted under current law not considered)
        3. Sentence appropriateness
          1. Sentence appropriateness
          2. Castro 201100453 (31 Jan 12) (fine was appropriate punishment for larceny, even though victim not the government, because of repeated nature of offenses and the abuse of his position)
          3. Gober 201100632 (29 Mar 12) (sentence inappropriately severe in light of appellant's combat service and evidence of mental health problems following combat losses in his squad)
          4. Gober 201100632 (29 Mar 12) (sentence inappropriately severe in light of appellant's combat service and evidence of mental health problems following combat losses in his squad)
          5. Griffin 201100646 (30 Mar 12) (where appellant and his co-conspirator entered into a sham marriage, stole the same amount of money, and pled guilty to identical offenses, and appellant received 6 months confinement but his co-conspirator received 3, there was no rational basis for the sentence disparity)
          6. Moore 201100670 (24 May 12) (lawful disparity of sentence of appellant and co-conspirator where each had different charges and misconduct)
          7. Quevedo 201200288 (31 Oct 12) (48 months not highly disparate with co-conspirator's 20 months, even though initial charges similar, where appellant guilty of additional misconduct)
      3. Court of Appeals for the Armed Forces
      4. Cumulative Error
        1. Abdirahman 66 M.J. 668 (N.M.Ct.Crim.App. 2008) (cumulative impact of errors in rape case that preserved and enhanced the stature of the government's central witness could have substantially affected the judgment in the trial and, thus, required that the findings be vacated)
      5. Invited Error/Open Door
      6. Harmless/Prejudicial Error
        1. Sweeney 200900468 (23 Feb 12)(admission of testimonial hearsay was harmless beyond a reasonable doubt)
      7. Preservation of Error/Plain Error
        1. Jimenez 201100187 (29 Nov 11) (admission of civilian detective's sentencing testimony about unrelated murder was not proper in aggravation, but did not rise to level of plain error in judge-alone trial)
        2. Mullins 200200988 (14 May 09) (CCA considers state of law at time of trial when determining plainness or obviousness of the error)
        3. Quiroz 53 M.J. 600, 606 (N.M.Ct.Crim.App. 2000) ("Given our broad and unique authority bestowed by Congress in Article 66(c), UCMJ, to affirm only such findings and sentence as we find correct in law and fact and determine, on the basis of the entire record, should be approved, we believe that we are never required to apply forfeiture. Furthermore, when reviewing issues of unreasonable multiplication of charges raised for the first time on appeal, we have concluded that we will not apply forfeiture. 18 However, if an accused affirmatively, knowingly, and voluntarily relinquishes the issue at trial, we may apply waiver.")
      8. Grostefon
      9. Law of the Case
        1. Porter 201100605 (19 Apr 12) (agreed upon interpretation of PTA whether correct or not is law of the case)
        2. Barnes 60 M.J. 950, 955 (N.M.Ct.Crim.App. 2005) ("The appellant's subsequent plea of guilty to the lesser offense of unauthorized absence terminated by apprehension ordinarily would have waived any claimed affirmative defense of duress. ... However, the military judge's unchallenged ruling that the issue of duress was preserved for appeal became the law of the case and thereby conditioned the appellant's plea.")
      10. Remedies
        1. Generally
        2. DuBay/Factfinding
        3. Evidentiary hearing
        4. Rehearing
        5. Remand
        6. Sentence reassessment
      11. Reconsideration
      12. Scope of Review
      13. Standards of Review, Burdens, etc.
        1. Sentence reassessment
      14. Waiver
        1. Belcher 201200079 (18 Sep 12) (unconditional guilty plea waives pretrial defects)
        2. Morgan 201200141 (27 Dec 12) (waiver of improper opinion where DC said MJ's approach "would be perfect")
        3. Jenkins 201100420, *3 (10 May 12) ("Military appellate courts have examined several factors when analyzing waiver, including whether the waiver was part of the overall trial strategy, whether the right was known at the time of the trial, whether the defense had knowledge of and an opportunity to examine the evidence, whether the appellant had an opportunity to object to the evidence, and whether the appellant alleges ineffective assistance of counsel with regard to the waiver.")
        4. Jespersen 201100623 (31 May 12) (waiver of UMC where appellant entered into PTA, signed 2 stipulations of fact, pled guilty to separate specifications, and his counsel said he had no motions and agreed that receipt and distribution were two separate criminal acts and that separate punishment was appropriate)
    8. Petition for New Trial
      1. Generally
      2. Newly Discovered Evidence
      3. Appellate Review
  5. MISCELLANEOUS MATTERS
    1. Command Influence
      1. Generally
        1. Jespersen 201100623 (31 May 12) (waiver of UMC where appellant entered into PTA, signed 2 stipulations of fact, pled guilty to separate specifications, and his counsel said he had no motions and agreed that receipt and distribution were two separate criminal acts and that separate punishment was appropriate)
        2. Stevens 201000401 (31 Jan 12) (previous opinion was erroneously given back to original CA when it was ordered to be given to new CA, therefore allowing the original CA to improperly influence the new CA who ordered a rehearing, making the error unprejudicial, and also, evidence at sentencing hearing showed loss of trust by CA in appellant, though appearing to be UCI, court finds it is proper as evidence in aggravation)
        3. Hutchins 200800393 (20 Mar 12) (comments by Secretary of Navy about clemency were not UCI)
        4. Salyer 201200145 (23 Oct 12) (officer-in-charge phone call to military judge's superior, and trial counsel's voir dire of military judge, did not create actual UCI, and any apparent UCI was cured by new military judge)
        5. Harris 66 M.J. 781 (N.M.Ct.Crim.App. 2008) (no UCI through witness interference when appellant met his initial burden in alleging intimidation of a defense witness into recanting a truthful and exculpatory statement, but government showed beyond a reasonable doubt that the allegations were not substantial because the witness not only recanted the statement but also explained he was appellant's friend, had been offered money by appellant, and believed he could not get into trouble)
      2. Members
        1. Morrison 66 M.J. 508 (N.M.Ct.Crim.App. 2008) (not UCI for excluding junior officers from consideration as members because there was no evidence the CA was influenced by improper motives or failed to apply the proper criteria, some junior officers were detailed to the pool of prospective members even though they were successfully challenged, and some of the members found appellant not guilty of one allegation showing they were not "stacked")
      3. Chain of Command
        1. Wylie 201200088 (30 Nov 12) (Commander's message about seriousness of sexual assault, released after appellant's court-martial, did not constitute UCI even though it mentioned result of appellant's court-martial)
        2. Saracoglu 201000447 (9 Aug 11) (apparent UCI where, at formation, company commander read news article related to appellant's case and warned company not to commit similar misconduct; presumption of prejudice rebutted)
      4. Burdens
    2. Speedy Trial
      1. Generally
      2. Rule for Courts-Martial 707
      3. Article 10
        1. Foster 201200235 (2 Feb 13) (no violation of right to speedy trial because appellant made no demand for a speedy trial, there was no indication defense was impaired, and the government's reasons for the delay of reviewing the computer files and forensic analysis and identifying additional potential victims were reasonable)
        2. Wyly 201100005 (31 Oct 11) (no violation of right to speedy trial where appellant initially filed but then voluntarily withdrew his Article 10 motion and the PTA he signed stated he was not compelled to waive his right to a speedy trial)
      4. Sixth Amendment Right to Speedy Trial
      5. Post-Trial
        1. Stigall 201200265 (30 Nov 12)(nearly 10-year delay between trial and first appellate review, while facially unreasonable, resulted in no prejudice)
        2. Valentin 201000683 (17 May 12) (delay resulted in no prejudice and continued confinement did not show a "particularized anxiety" with a nexus to the post-trial delay)
        3. Beasley 201200293 (31 Oct 12) (124 days between sentence and CA action not a Due Process violation)
        4. Parker 71 M.J. 594 (N.M.Ct.Crim.App. 2012) (facially unreasonable 19 year delay did not violate Due Process where some was attributable to appellant's requests for extensions and a multi-year stay related to appellant's mental condition)
        5. Abdirahman 66 M.J. 668 (N.M.Ct.Crim.App. 2008) (appellant did not establish that he was prejudiced by post-trial delay because it did not result in any confinement that otherwise would not have been served, the denial of citizenship was not a final decision and not clearly a result of his court-martial conviction, and his claim of impairment of defense at rehearing did not identify a specific harm he would suffer at rehearing)
        6. Bush 67 M.J. 508 (N.M.Ct.Crim.App. 2008) affirmed at 68 M.J. 96 (C.A.A.F. 2009) (post-trial delay of over seven years was a violation of appellant's due process right to speedy post-trial where appellant provided adequate detail regarding his denial of employment due to a lack of discharge papers, but the error was harmless because appellant failed to independently corroborate his assertions of employment prejudice and to assert ongoing prejudice, and the government met its burden to show error was harmless)
        7. Harris 66 M.J. 781 (N.M.Ct.Crim.App. 2008) (no violation of rights because appellant failed to assert any non-speculative resulting prejudice, even without the delay appellant would have served his convinement before the CA could reasonably haveacted, and the delay was not so egregious to trigger a presumption of prejudice)
        8. Miller 66 M.J. 571 (N.M.Ct.Crim.App. 2008) (affirming MJ's order dismissing charges against accused with prejudice due to violation of right to speedy trial when accused was in pretrial confinement for 140 days, the government failed to obtain a mental exam through the judiciary or military chain of command and failed to monitor the progress of the exam, even though accused did not demand a speedy trial and prejudice was minimal)
        9. Adams 65 M.J. 552 (N.M.Ct.Crim.App. 2006) (a five year post-trial delay, on a 357 page case file with "few, if any, complexities," gives rise to a presumption of prejudice under a Barker four-prong analysis, even though the appellant took five years to file for a speedy review; however, the constitutional error was held "harmless beyond a reasonable doubt" as there was no appellate issue that would afford relief to the appellant)
    3. Manual for Courts-Martial
      1. Generally
      2. Force and Effect
    4. Multiplicity and Lesser Included Offenses
      1. Generally
      2. Lesser Included Offenses
        1. Dalton 71 M.J. 632 (N.M.Ct.Crim.App. 2012) (involuntary manslaughter is an LIO of unpremeditated murder)
        2. Rauscher 201000684 (27 Sep 11) (aggravated assault is LIO of assault with intent to commit murder, even where specification of the latter lacked terminal element)
        3. Apodaca 201100008 (13 Sep 11) (dereliction of duty is LIO of misbehavior of sentinel or lookout)
        4. McMurrin 69 M.J. 591 (N.M.Ct.Crim.App. 2010) (negligent homicide is not an LIO of involuntary manslaughter)
        5. Fletcher 201000421 (25 Aug 11) (unlawful entry is not an LIO of burglary)
        6. Wilkins 201000289 (29 Nov 11) (abusive sexual contact is an LIO of aggravated sexual assault)
      3. Multiplicity
        1. Jordan 201100621 (30 Nov 12) (specification alleging penetration multiplicious with one charging that appellant's penis touched victim's vagina)
        2. Alexander 201100421 (31 Jan 12) (purchase/possession of illegal substances not factually the same and therefore not multiplicious)
        3. Breedlove 201100628 (28 Feb 12) (facts of multiple larceny specs are the same, so specs are consolidated)
        4. Peila 201100500 (24 Jan 12) (multiplicity issue was waived since DC agreed explicitly with military judge that charges were not multiplicious)
        5. Dixon 201200124 (31 July 12) (charges under both Art 91 and 128 for assaulting NCO were facially duplicative)
      4. Unreasonable Multiplication of Charges
        1. Quiroz 53 M.J. 600, 606 (N.M.Ct.Crim.App. 2000) ("Given our broad and unique authority bestowed by Congress in Article 66(c), UCMJ, to affirm only such findings and sentence as we find correct in law and fact and determine, on the basis of the entire record, should be approved, we believe that we are never required to apply forfeiture. Furthermore, when reviewing issues of unreasonable multiplication of charges raised for the first time on appeal, we have concluded that we will not apply forfeiture. 18 However, if an accused affirmatively, knowingly, and voluntarily relinquishes the issue at trial, we may apply waiver.")
        2. Roberts 201200042 (26 Jul 12) ("When an ultimate offense is committed through separate means from which the appellant can also be charged, individually charging both the means and the ultimate offense can be evidence of UMC.")
        3. Sanschagrin 201200333 (29 Jan 13) (Receipt/poss not UMC)
        4. Sohm 201200378 (10 Jan 13)(larceny/false official not UMC)
        5. Sohm 201200378 (10 Jan 13)(larceny/false official not UMC)
        6. McGuire 201000611 (31 Jan 12) (officer drinking in presence of enlisted member, UMC for Art 133 and 134 charges)
        7. Alexander 201100421 (31 Jan 12) (no UMC because they were aimed at different criminal acts, purchasing and possessing steroids, UMC when there are multiple specs of possessing steroids through two week period)
        8. Yanez 201100374 (31 Jan 12) (appellant charged for two specs that MJ said would be merged for sentencing and sentence adjudged reflects that so error of UMC is harmless)
        9. Weller 201100043 (30 Apr 12) (negligent discharge of a weapon/assault with dangerous weapon are not UMC)
        10. O'Neal 201100307 (17 May 12) (escape from custody, assault on person in execution of their office as master at arms, assault on petty officer are UMC)
        11. Jespersen 201100623 (31 May 12) (receipt of child pornography/wrongful distribution of child pornography not UMC)
        12. Zaruba 201000382 (31 May 12) (solicitation/burning with intent to defraud not UMC)
        13. Hall 201200207 (23 Oct 12) (malingering not UMC with false official statement)
        14. Everett 201200239 (17 Oct 12) (finding UMC in two specifications under Art. 107 for statements made in the same interview)
        15. Acabeo 201200270 (31 Aug 12) (UMC where one act charged under two different general regulations)
      5. Tests
    5. Nonjudicial Punishment (Article 15)
      1. Generally
      2. Charges Based on Prior Nonjudicial Punishment
        1. Wallace 201100300 (30 Mar 12) (sexually offensive misconduct was not minor and not barred from prosecution after prior NJP, but credit given for punishment)
        2. Velez 201100456 (12 Sep 12) (even if not raised as error, CCA may award credit for prior NJP for same conduct)
    6. Professional Responsibility/Ethics
      1. Generally
      2. Conflicts of Interest
        1. Lee 70 M.J. 535 (N.M.Ct.Crim.App. 2011) (conflict of interest when defense counsel was assigned as a direct subordinate of the prosecutor)

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