United States v. Riverarosado

71 M.J. 94, 2012 CAAF LEXIS 18

• Court: Court of Appeals for the Armed Forces
• Decided: January 5, 2012
• Docket: No. 12-0028/AR
• Status: Published

Opinion

CCA 20090924. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE FOUND APPELLANT GUILTY OF SPECIFICATION 1 OF CHARGE I BASED ON HIS BELIEF THAT APPELLANT HAD COMMITTED THE SIMILAR OFFENSES ALLEGED IN SPECIFICATIONS 2 AND 3.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry and consideration on the granted issue. The Court of Criminal Appeals will obtain affidavits related to the assigned issue from the military judge and other appropriate persons who attended the Bridging the Gap session after trial. The affidavits should be limited to determining what statements were made by the military judge in the session. See United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009). If the court, after reviewing the affidavits, determines that a fact-finding hearing is necessary, see United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997), that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will conduct its Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006), review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]