United States v. DRAHER

• Court: Navy-Marine Corps Court of Criminal Appeals
• Decided: December 27, 2024
• Docket: 202300163
• Status: Published

Opinion

This opinion is subject to administrative correction before final disposition.

Before KISOR, DALY, and MIZER Appellate Military Judges

_________________________

UNITED STATES Appellee

v.

Daniel A. DRAHER, Jr. Gunnery Sergeant (E-7), U.S. Marine Corps Appellant

No. 202300163

Decided: 27 December 2024

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges: Kevin S. Woodard (arraignment and motions) Eric A. Catto (motions and trial)

Sentence adjudged 2 February 2023 by a general court-martial con- vened at Marine Corps Air Station Cherry Point, North Carolina, con- sisting of officer and enlisted members. Sentence in the Entry of Judg- ment: no punishment.

For Appellant: Mr. Phillip Stackhouse (argued) Lieutenant Christopher B. Dempsey, JAGC, USN (on brief)

For Appellee: Major Candace G. White (argued) Lieutenant Commander James P. Wu Zhu, JAGC, USN (on brief) United States v. Draher, NMCCA No. 202300163 Opinion of the Court

This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2.

PER CURIAM: Appellant was convicted, contrary to his pleas, of one specification of vio- lating a lawful general order, in violation of Article 92, Uniform Code of Mili- tary Justice [UCMJ], by wrongfully consuming an alcoholic beverage. 1 Appellant asserts two assignments of error (AOEs): (1) whether the Gov- ernment engaged in unlawful command influence (UCI) by interfering with Appellant’s right to counsel; and (2) whether the Government violated Appel- lant’s Article 38(b), UCMJ, rights by interfering with his established attorney- client relationship. After careful consideration of the record, as well as the briefs of appellate counsel, oral argument, and in light of this Court’s opinion in United States v. Negron, we find merit in both assignments of error. 2 Accordingly the findings and sentence are SET ASIDE and the Charge and its Specification are DISMISSED WITH PREJUDICE.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

1 10 U.S.C. § 892.

2 United States v. Negron, No. 202300164 __ CCA LEXIS ___ (N-M. Ct. Crim. App.

Dec. 27, 2024) (unpublished) (Appellant and the appellant in Negron were tried to- gether in a common trial pursuant to Rule for Courts-Martial 812).