United States v. Desiderio

31 M.J. 894, 1990 CMR LEXIS 1490, 1990 WL 193911
CourtU S Air Force Court of Military Review
DecidedNovember 7, 1990
DocketACM 28676
StatusPublished
Cited by5 cases

This text of 31 M.J. 894 (United States v. Desiderio) 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. Desiderio, 31 M.J. 894, 1990 CMR LEXIS 1490, 1990 WL 193911 (usafctmilrev 1990).

Opinion

DECISION

LEONARD, Senior Judge:

Appellant pleaded guilty to and was convicted of use of methamphetamine. He was sentenced to a bad conduct discharge, confinement for 4 months, forfeiture of all pay and allowances, and reduction to airman basic. On appeal, he asserts two errors for our consideration. We find no prejudicial error.

I

First, appellant maintains that the service of charges upon him was ineffective because the service was not accomplished by trial counsel as required by R.C.M. 602. Appellant’s charge sheet (Department of Defense Form 458) reflects that his charges were served by a Staff Sergeant (SSgt) Strickland. Block 15 of that charge sheet has SSgt Strickland’s name in the location for the typed name of trial counsel and her signature in the space for the signature of the trial counsel. There is no indication on the charge sheet that SSgt Strickland was signing or acting on the behalf of the trial counsel.

Appellant did not raise this issue of ineffective service of charges during his trial. Arguably, failure to do so waives appellate review. R.C.M. 905(b)(1) and (g) provide that a failure to assert, at trial, an issue dealing with defects in the procedural aspects of preferral, forwarding, investigation or referral of charges will waive that issue unless it relates to a jurisdictional defect. See also W. Winthrop, Military Law and Precedents, 157 (2d ed. 1920). R.C.M. 905(b)(1) does not specifically include defects in service of charges in the listing of defects waived. However, the Discussion following R.C.M. 905(b)(1) provides examples of nonjurisdictional defects that would be waived and directs the reader’s attention to R.C.M. 307; 401-407; 601-604.

Although we do not approve of the manner in which service of charges is reflected on appellant’s charge sheet, we would still find no prejudice in his case even absent waiver. R.C.M. 602 provides:

The trial counsel detailed to the court-martial to which charges have been referred for trial shall cause to be served on each accused a copy of the charge sheet, (emphasis added).

Prior to the 1984 version, manuals for courts-martial set forth trial counsel’s responsibility with respect to service of charges as follows:

Immediately upon receipt of charges referred to him for trial, he will serve a copy of the charge sheet, as received and corrected by him, on the accused____

MCM, para. 44h (1969 rev.); MCM, para. 44h (1951); MCM U.S. Air Forces, para. 41e (1949). Such wording seems to indicate a need for personal service by the trial counsel. However, throughout this same time period, the statutory basis for this manual provision was more permissive in nature and provided that the trial counsel “shall

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Cite This Page — Counsel Stack

Bluebook (online)
31 M.J. 894, 1990 CMR LEXIS 1490, 1990 WL 193911, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-desiderio-usafctmilrev-1990.