United States v. Benedict

55 M.J. 451, 2001 CAAF LEXIS 1195, 2001 WL 1141998
CourtCourt of Appeals for the Armed Forces
DecidedSeptember 27, 2001
DocketNo. 00-0617; Crim.App. No. 1083
StatusPublished
Cited by19 cases

This text of 55 M.J. 451 (United States v. Benedict) is published on Counsel Stack Legal Research, covering Court of Appeals for the Armed Forces primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Benedict, 55 M.J. 451, 2001 CAAF LEXIS 1195, 2001 WL 1141998 (Ark. 2001).

Opinions

Chief Judge CRAWFORD

delivered the opinion of the Court.

On September 4-6, 1996, pursuant to his pleas, appellant was convicted of making false official statements and larceny, between July 1993 and February 1996, in violation of Articles 107 and 121, Uniform Code of Military Justice, 10 USC §§ 907 and 921, respectively. On February 14, 1997, the convening authority approved the sentence imposed by officer and enlisted members of 1 year’s confinement, a fine of $5,000, and reduction to pay grade E-4. We granted review of the following issues:

I. WHETHER THIS CASE SHOULD BE REMANDED TO THE COURT OF CRIMINAL APPEALS FOR A DETERMINATION AS TO: (A) WHETHER IT WAS ERROR TO ADMINISTRATIVELY REDUCE APPELLANT 14 DAYS AFTER HE ENTERED CONFINE[452]*452MENT; AND (B) THE IMPACT, IF ANY, OF UNITED STATES V GORSKI, 47 MJ 370 (1997) UPON APPELLANT’S RETIRED PAY.
II. WHETHER THE CONVENING AUTHORITY FAILED TO SELECT THE COURT-MARTIAL MEMBERS IN ACCORDANCE WITH ARTICLE 25, UCMJ, 10 USC § 825 BECAUSE HE WAS PRESENTED WITH AN IMPERMISSIBLE FAIT ACCOMPLI AS TO THE COMPOSITION OF THE PANEL. SEE UNITED STATES V. MARSH, 21 MJ 445 (CMA1986).

Based on the Government’s concession, we order a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), to determine whether appellant was reduced in grade 14 days after entering confinement and (2) whether automatic forfeitures were assessed against appellant’s retirement pay. Final Government Brief at 9-10. Such hearing should be held in an expeditious manner. As to Issue II we hold that the convening authority selected the court members in accordance with Article 25.

FACTS — ISSUE II

Pursuant to a semi-annual solicitation of court members, Commander (CDR) James E. Litsinger, Deputy of the Administration Division, 13th Coast Guard District, received approximately 30 nominees to serve on a court panel to sit for 6 months. The solicitation for the member pool is done whether or not a court-martial is scheduled. He then culled out those officers who were near retirement, pending transfer orders, or on critical temporary duty. Because of the request for enlisted members, he also sent out more questionnaires for potential enlisted members. However, because the pool was small, Captain (CAPT) Sinclair, the Chief of Staff of the District, encouraged the command to send in other nominees for a much larger pool. None of the questionnaires were removed. Of the nominees submitted, none were from CDR Litsinger’s district. He forwarded the remaining nominations to “the convening authority.” However, he admitted that rather than sending those directly to the convening authority, he sent them through CAPT Sinclair. In his note, CDR Litsinger asked the Chief of Staff to “select” 9 prospective members. CDR Litsinger testified that the convening authority personally selected the members. CDR Litsinger testified that sometime later a secretary in his office received a list of members from “the front office” with a note that said, “These folks have been selected.” She then prepared a convening order based on that list.

The convening authority specifically told CDR Litsinger and the Staff Judge Advocate (SJA), Captain Judith Hammond, that he selected the court members. To “avoid bringing the convening authority in,” the judge played back CDR Litsinger’s testimony that the admiral personally selected the members. CAPT Sinclair testified that he received a package of member questionnaires from the administrative officer. Several prospective members had been eliminated because of service on a prior court-marital. CAPT Sinclair then testified as follows:

I screened through the names, developed a list of — I don’t recall how many, might have been six or so, for nomination for this court. I screened the names to look for those who I thought would be available, we didn’t know when this court would be convened, so we didn’t know when — what exact window of opportunity we were aiming at. So, I looked for those who were generally available. Those who seemed to meet the criteria of not having direct knowledge of the case, the best I could determine. I didn’t know who all the witnesses might be, so we just took what appeared to be those who wouldn’t have direct knowledge. From that list I gave the secretary the shorter list and asked her to have the convening order prepared for recommendation to the District Commander.
Q [TC]: Do you recall when that recommended convening order came back to the Admiral’s office or if it ever did?
A: Came back to be presented to him?
Q: Yes.
A: No. It was a few days later, I guess.
[453]*453Q: Do you recall a meeting when that recommended convening order was presented to the Admiral?
A: I checked the typing of the convening order, it appeared to be correct. It was all the same names that I had checked off on the handwritten list, and I presented that to the District Commander and said “Here’s who I recommend you consider for the upcoming court.”
Q: Prior to that presentation, did you have any discussion with the Admiral regarding the composition or the recommended composition?
A: None at all. No.
Q: Do you know whether or not the members’ questionnaires were made available to the Admiral?
A: I do not recall. No, I don’t recall. They were in a manila folder but I don’t remember if I sent them with the convening order or not.
Q: Would you have substituted anyone if the Admiral had asked to have anyone substituted?
A: It didn’t come up, so I don’t — I don’t think I would have without discussing why. If there was any reason why. As it worked out, subsequently, some people on that court did have other conflicts and I think at least one may have become a witness and had to be eliminated. So there was a later process to generate additional members.
Q: That was a — there was some other action taken by a different Admiral, I believe.
A: Pardon?
Q: Admiral Spade actually did that amendment later on?
A: Yes. When — I think we eliminated maybe four, for various reasons. Once the date had been set and we knew of specific conflicts and had to eliminate one or two people for that, I think at least one became a witness and had to be eliminated. So then we went through the same process, essentially, to generate additional members,
Q: Captain, you testified that there was an amendment to this convening order at some later time. Do you know whether or not Admiral Spade was provided with the members’ questionnaires in conjunction with that selection and relief of officers in that amendment?
A: As with the first selection, there was a folder with questionnaires in it, but I don’t recall if that went in with the— actually, I wouldn’t have knowledge of whether that folder went in with the convening order that I had drafted for his consideration. Because it was routed through.

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Cite This Page — Counsel Stack

Bluebook (online)
55 M.J. 451, 2001 CAAF LEXIS 1195, 2001 WL 1141998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-benedict-armfor-2001.