United States v. Cruz

United States Court of Military Appeals

United States v. Cruz

23 C.M.A. 238

CourtUnited States Court of Military Appeals

DecidedNovember 29, 1974

DocketNo. 28,909

StatusPublished

This text of 23 C.M.A. 238 (United States v. Cruz) is published on Counsel Stack Legal Research, covering United States Court of Military Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Cruz, 23 C.M.A. 238 (cma 1974).

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Opinion

OPINION OF THE COURT

Quinn, Judge:

With others, the accused and Williams, members of the same company, were involved in an incident that resulted in their separate prosecution for several offenses in violation of the Uniform Code of Military Justice. The day before the accused’s trial by a general court-martial, convened by the base commander, Williams entered into a pretrial agreement with the battalion commander, which provided, in material part, for trial of the charges against him by special court-martial and that he would testify for the Government against the accused.

Williams testified for the Government at the accused’s trial, which resulted in findings of guilty. In his review of the record, the staff judge advocate called attention to the agreement between Williams and the battalion commander, who was the subordinate of the base commander, but indicated that the latter was "in no way preclud[ed]” by the agreement from acting as reviewing authority in the accused’s case. Apparently, the staff judge advocate was not aware of our contrary determination in a similar situation in United States v Dickerson, 22 USCMA 489, 47 CMR 790 (1973), which had been decided about 2 months before the accused’s case came before him.

The record indicates Williams testified in regard to only one of the several offenses of which the accused was convicted. If that offense were eliminated and the sentence appropriately reassessed, the accused would receive a full measure of relief. Accordingly, the record of trial is returned to the Judge Advocate General for resubmission to the Court of Military Review. In its discretion, the court can set aside the convening authority’s action and direct review of the record by another competent authority, or it can set aside the findings of guilty of the specification as to which Williams testified (specification 1, Charge I), dismiss that specification and reassess the sentence on the basis of the remaining findings of guilty, with due regard to the probable impact of the dismissed offense on the court members in the imposition of sentence at trial.

Judge Cook and Senior Judge Ferguson concur.

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OPINION OF THE COURT

Quinn, Judge:

With others, the accused and Williams, members of the same company, were involved in an incident that resulted in their separate prosecution for several offenses in violation of the Uniform Code of Military Justice. The day before the accused’s trial by a general court-martial, convened by the base commander, Williams entered into a pretrial agreement with the battalion commander, which provided, in material part, for trial of the charges against him by special court-martial and that he would testify for the Government against the accused.

Williams testified for the Government at the accused’s trial, which resulted in findings of guilty. In his review of the record, the staff judge advocate called attention to the agreement between Williams and the battalion commander, who was the subordinate of the base commander, but indicated that the latter was "in no way preclud[ed]” by the agreement from acting as reviewing authority in the accused’s case. Apparently, the staff judge advocate was not aware of our contrary determination in a similar situation in United States v Dickerson, 22 USCMA 489, 47 CMR 790 (1973), which had been decided about 2 months before the accused’s case came before him.

The record indicates Williams testified in regard to only one of the several offenses of which the accused was convicted. If that offense were eliminated and the sentence appropriately reassessed, the accused would receive a full measure of relief. Accordingly, the record of trial is returned to the Judge Advocate General for resubmission to the Court of Military Review. In its discretion, the court can set aside the convening authority’s action and direct review of the record by another competent authority, or it can set aside the findings of guilty of the specification as to which Williams testified (specification 1, Charge I), dismiss that specification and reassess the sentence on the basis of the remaining findings of guilty, with due regard to the probable impact of the dismissed offense on the court members in the imposition of sentence at trial.

Judge Cook and Senior Judge Ferguson concur.

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Bluebook (online)

23 C.M.A. 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cruz-cma-1974.