United States v. Burston

23 C.M.A. 478, 1 M.J. 76, 50 C.M.R. 497, 23 USCMA 478, 1975 CMA LEXIS 746

Opinion

OPINION OF THE COURT

Per Curiam:

The accused’s conviction for possession of heroin is marred by the failure of the staff judge advocate’s post-trial review to cover the defense of entrapment that was raised by the evidence presented at trial. This omission causes the review to be incomplete on an essential issue and, therefore, unacceptable. United States v Cruse, 21 USCMA 286, 45 CMR 60 (1972); United States v Hooper, 9 USCMA 637, 26 CMR 417 (1958).

The record is returned to the Judge Advocate General of the Army for submission to the Court of Military Review. That court can disapprove the finding of guilty of possessing heroin and reassess the sentence on the remaining charge or order a new post-trial review and action by the convening authority.