United States v. Lewis

61 M.J. 512, 2005 CCA LEXIS 117, 2005 WL 884371
CourtNavy-Marine Corps Court of Criminal Appeals
DecidedApril 15, 2005
DocketNMCCA 200200089
StatusPublished
Cited by2 cases

This text of 61 M.J. 512 (United States v. Lewis) is published on Counsel Stack Legal Research, covering Navy-Marine Corps Court of Criminal 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. Lewis, 61 M.J. 512, 2005 CCA LEXIS 117, 2005 WL 884371 (N.M. 2005).

Opinion

WAGNER, Judge:

A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of attempted distribution of ecstasy; conspiracy to use and distribute controlled substances; use of ecstasy (two specifications), ketamine, LSD, and methamphetamine on divers occasions; possession of ketamine; possession of ecstasy with intent to distribute; and distribution of ecstasy (two specifications), in violation of Articles 80, 81, and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 881, and 912a. The appellant was sentenced to a dishonorable discharge, confinement for 5 years, total forfeiture of pay and allowances, and reduction to pay grade E-l. Pursuant to a pretrial agreement, the convening authority approved the sentence as adjudged, but suspended all confinement in excess of 42 months.

The appellant claims that (1) he suffered unlawful command influence because the actions of the trial counsel and staff judge advocate forced the recusal of the military judge originally detailed to his court-martial; (2) he was denied a speedy trial under Article 10, UCMJ, 10 U.S.C. § 810; and (3) he was denied a speedy review of his court-martial.

After carefully considering the record of trial, the appellant’s three assignments of error, the Government’s response, and the appellant’s reply brief, we conclude that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. Arts. 59(a) and 66(e), UCMJ, 10 U.S.C. §§ 859(a) and 866(e).

Facts

The appellant was one of a large number of Marines stationed at Camp Pendleton, California, who used, possessed, and distributed ecstasy, ketamine, LSD, and metham[514]*514phetamine together, primarily at off-base “raves.” Civilian authorities initially arrested and charged the appellant on 17 March 2001, when he attempted to sell ecstasy to an undercover police officer. He was immediately processed and released back to his command. The appellant was returned to duty with no restrictions imposed on his freedom. At the same time, there was an ongoing Naval Criminal Investigative Service (NCIS) investigation into drug activity in and around Camp Pendleton. During the course of the investigation, the appellant was implicated in additional drug use and distribution.

On 14 August 2001, the appellant and several other Marines were placed in pretrial confinement based on allegations that they had threatened two civilian females involved in the drug activity under investigation by NCIS. On 20 August 2001, the appellant, along with several other Marines, was afforded a magistrate’s hearing into his continued pretrial confinement as required by Rule for Courts-Martial 305 (i)(2), Manual For Courts-Martial, United States (2000 ed.). The magistrate did not find the appellant to be a flight risk, but did continue pretrial confinement because he felt the appellant would likely engage in further criminal conduct if not confined.

Civilian authorities waived jurisdiction over the pending drug charges, and on 22 August 2001, charges were preferred against the appellant for those offenses as well as drug activity gleaned from the NCIS investigation. The appellant was not, however, charged with communicating a threat.

An additional charge was preferred on 24 August 2001, the same day that the Article 32, UCMJ, investigation was ordered. The appellant retained civilian defense counsel on 26 August 2001. The defense requested 46 days of delay from 6 September to 22 October 2001. During that delay, the appellant waived his right to an Article 32, UCMJ, investigation and charges were referred on 24 October 2001.

The appellant was arraigned on 7 November 2001 before Major (Maj) W, a military judge in the Sierra Judicial Circuit. Captain (Capt) Weston, USMC, was the detailed trial counsel. Civilian defense counsel’s presence was waived for arraignment. Neither side had any voir dire or challenge of the military judge at the initial arraignment. The appellant entered pleas on 18 December 2001 before Maj W, with civilian defense counsel now present.

On 14 January 2002, Maj W called the court to order to hear motions. At this time, Capt Weston requested and received permission to conduct voir dire of the military judge. During the course of the voir dire, Capt Weston questioned Maj W’s impartiality because she had presided over two companion cases, because of Maj W’s prior professional relationship with the civilian defense counsel while the latter was on active duty, because of Maj W’s social interaction with the civilian defense counsel, and because Maj W had expressed her displeasure to another trial counsel in a court-martial occurring over a year before wherein the trial counsel inquired into whether there had been ex-parte contact with the civilian defense counsel regarding an upcoming case.

At the end of the voir dire, Capt Weston moved for the military judge’s recusal. The motion was denied. Capt Weston then presented a written motion he had previously prepared asking the military judge to reconsider her ruling. The motion was subsequently denied. Capt Weston requested a continuance to file a Government appeal of the ruling under R.C.M. 908(a), but the request was denied.

On 15, 16, and 17 January 2002, the court heard evidence on the defense motion to dismiss for prosecutorial misconduct and unlawful command influence. During the course of the motion, Capt Weston conducted all examination and cross-examination of witnesses for the Government. He was called as a Government witness on the motion and was examined by a third trial counsel detailed to the case solely for that purpose. Capt Weston’s direct testimony alone takes up 47 pages of the record of trial, and his entire testimony takes up 120 pages of this 1068-page record of trial, over ten percent of the entire trial and a majority of the motion. The assistant trial counsel presented argument on the motion.

[515]*515While litigating the motion, the defense called the staff judge advocate for 1st Marine Division, Lieutenant Colonel (LtCol) Can-ham, as a witness. He testified that he had advised Capt Weston in the course of preparing for trial regarding trial tactics, as he did with all trial counsel. He had specifically advised Capt Weston regarding the voir dire of and motion requesting recusal of the military judge. He had not assisted Capt Weston in drafting the motion or obtaining the affidavits, but had assisted him by researching and providing citations to authority. LtCol Canham had also spoken by telephone with the Head of Appellate Government, Colonel (Col) Rose Favors, regarding the voir dire and challenge of Maj W. LtCol Canham testified that Col Favors characterized the military judge as “obviously lying” during the voir dire.

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Related

United States v. Lewis
63 M.J. 405 (Court of Appeals for the Armed Forces, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
61 M.J. 512, 2005 CCA LEXIS 117, 2005 WL 884371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lewis-nmcca-2005.