United States v. Benton

U S Air Force Court of Military Review

United States v. Benton

14 M.J. 736

CourtU S Air Force Court of Military Review

DecidedOctober 7, 1982

DocketACM 23521

StatusPublished

This text of 14 M.J. 736 (United States v. Benton) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Benton, 14 M.J. 736 (usafctmilrev 1982).

Pincite

Opinion

DECISION

PER CURIAM:

Pursuant to mixed pleas, the accused stands convicted of possession and transfer of methaqualone, and use and possession of marijuana. The approved sentence extends to a bad conduct discharge, confinement at hard labor for 75 days, forfeiture of $100 per month for three months, and reduction to the grade of Airman First Class.

The accused contends that the convening authority was disqualified from acting on this ease because he had granted immunity to four potential prosecution witnesses. Of the witnesses so immunized, two did not testify at trial, and the two who did testified solely as to offenses of which the accused was found not guilty by the court.

We find that the convening authority was not disqualified from taking action in this case. A convening authority who grants immunity to a prosecution witness is normally thereafter disqualified from taking action on the record. United States v. White, 10 U.S.C.M.A. 63, 27 C.M.R. 137 (1958); United States v. Christopher, 9 M.J. 911 (A.C.M.R.1980). The reason for such disqualification is that the convening authority’s impartiality becomes suspect if he is required to assess the credibility of a witness after he has granted the witness immunity. United States v. Sierra-Albino, 23 U.S.C.M.A. 63, 48 C.M.R. 534 (1974). If the convening authority is not required to assess such credibility then he is not disqualified from acting on the record. United States v. Bosman, 9 M.J. 784 (A.C. M.R.1980). He is not disqualified if the accused pleads guilty. United States v. Hernandez, 3 M.J. 916 (A.C.M.R.1977). If an accused is acquitted of an offense then the convening authority is not required to assess the credibility of the witnesses who testified regarding that offense. We therefore find that the convening authority was not disqualified from taking action on this case.

In the remaining assignment of error the accused contends that the evidence presented by the prosecution was insufficient to support a conviction of the offenses to which the accused pleaded not guilty. We have examined the record of trial and resolve this assignment of error adversely to the accused. Accordingly, the findings of guilty and sentence are

AFFIRMED.

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DECISION

PER CURIAM:

Pursuant to mixed pleas, the accused stands convicted of possession and transfer of methaqualone, and use and possession of marijuana. The approved sentence extends to a bad conduct discharge, confinement at hard labor for 75 days, forfeiture of $100 per month for three months, and reduction to the grade of Airman First Class.

The accused contends that the convening authority was disqualified from acting on this ease because he had granted immunity to four potential prosecution witnesses. Of the witnesses so immunized, two did not testify at trial, and the two who did testified solely as to offenses of which the accused was found not guilty by the court.

We find that the convening authority was not disqualified from taking action in this case. A convening authority who grants immunity to a prosecution witness is normally thereafter disqualified from taking action on the record. United States v. White, 10 U.S.C.M.A. 63, 27 C.M.R. 137 (1958); United States v. Christopher, 9 M.J. 911 (A.C.M.R.1980). The reason for such disqualification is that the convening authority’s impartiality becomes suspect if he is required to assess the credibility of a witness after he has granted the witness immunity. United States v. Sierra-Albino, 23 U.S.C.M.A. 63, 48 C.M.R. 534 (1974). If the convening authority is not required to assess such credibility then he is not disqualified from acting on the record. United States v. Bosman, 9 M.J. 784 (A.C. M.R.1980). He is not disqualified if the accused pleads guilty. United States v. Hernandez, 3 M.J. 916 (A.C.M.R.1977). If an accused is acquitted of an offense then the convening authority is not required to assess the credibility of the witnesses who testified regarding that offense. We therefore find that the convening authority was not disqualified from taking action on this case.

In the remaining assignment of error the accused contends that the evidence presented by the prosecution was insufficient to support a conviction of the offenses to which the accused pleaded not guilty. We have examined the record of trial and resolve this assignment of error adversely to the accused. Accordingly, the findings of guilty and sentence are

AFFIRMED.

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14 M.J. 736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-benton-usafctmilrev-1982.

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