Jim - no, it depends on how the CG's SJA worded it. The CG's can completely disregard the Art 32 Officer's recommendation; BUT if the CG's SJA says in his Art 34 letter that there are no reasonable grounds to go forward, the CG can not refer the charges. I still haven't found the letter I'm looking for. I'm going to ping Maj McConnell for a copy. -----Original Message----- From: jim rowe [mailto:jroweusmc@yahoo.com] Sent: Thursday, November 10, 2011 15:54 To: Shinn Capt Scott R Subject: Re: US v. Rowe - Defense Motion to Dismiss rgr, you are saying it depends on how the article 32 investigator worded it in his findings? ________________________________ From: Shinn Capt Scott R <scott.shinn@usmc.mil> To: jim rowe <jroweusmc@yahoo.com> Cc: Haytham Faraj <haytham@puckettfaraj.com> Sent: Thursday, November 10, 2011 2:48 PM Subject: RE: US v. Rowe - Defense Motion to Dismiss Jim, Haytham is working on the other motions. I'm not sure what he intends on filing - he's got a game plan and is filling me in, but we haven't gotten to that part yet. Re: your question below, we'd need to look at the Art 34 letter - I haven't found them yet in the thousands of pages of emails/statements/investigation/etc yet. It depends on what the SJA said in his Art 34 advice letter. If the SJA said that the charges should NOT go forward, then we should file a motion for improper referral, not a motion to dismiss. We're working on it though. ~Russ -----Original Message----- From: jim rowe [mailto:jroweusmc@yahoo.com] Sent: Thursday, November 10, 2011 15:40 To: Shinn Capt Scott R Subject: Re: US v. Rowe - Defense Motion to Dismiss ok, are we going to motion to dismiss the sexual assault charge on the grounds of the article 32 findings that what my accusers alleges, even if it were true, does not constitute sexual assault? ________________________________ From: Shinn Capt Scott R <scott.shinn@usmc.mil> To: jim rowe <jroweusmc@yahoo.com> Cc: Haytham Faraj <haytham@puckettfaraj.com> Sent: Thursday, November 10, 2011 2:27 PM Subject: RE: US v. Rowe - Defense Motion to Dismiss Jim, Ha - roger. Honestly, there are lawyers out there who don't fully understand the difference between multiplicity and unreasonable multiplication of charges. Here's a stab at breaking it down purple. Multiplicity is defined as the charging of a single criminal act or offense as multiple separate charges or specifications. What this means is that the government can't break what should be one offense into separate offenses in order to raise the punishment level or increase the appearance of criminality. The common way to tell if charges are multiplicious is what's called the "elements test." Every criminal charge is broken down into elements - take Art 128 - Assault Consummated by a Battery: Element (a) That the accused did bodily harm to a certain person; and Element (b) That the bodily harm was done with unlawful force or violence. Now, look at Art 120 - Wrongful Sexual Contact Element (a) That the accused had sexual contact with another person; Element (b) That the accused did so without that other person's permission; and Element (c) That the accused had no legal justification or lawful authorization for that sexual contact. Harm is defined as any offensive touching which covers both of the (a)'s and "unlawful" in 128 marries up to 120's "no legal justification" and "w/o permission" in (b)/(c) in 120. So, when you get down to brass tacks - Wrongful Sexual Contact is really an Assault Consummated by a Battery, but sexual in nature. SO - the government can't charge BOTH. They have to pick [This applies in your case, because they did charge both - along with forcible sodomy which we think also subsumes Art 128.] Unreasonable multiplication of charges is when the charges offenses are considered separate and the defendant can be found guilty of all of them, but in the interest of justice, they are merged for sentencing purposes. So, Adultery, Sodomy, and Indecent Act - if it was all the same course of conduct, then the Judge can merge them and reduce the total max punishment the defendant would be facing. In the motion I just filed, we are arguing that both have occurred and we're asking the Judge to a) reduce the # of charges you are facing on the merits (not guilty vs. guilty) AND if you are found guilty of something, to merge them for sentencing purposes to reduce the total punitive exposure you would be facing. Make sense? ~Russ -----Original Message----- From: jim rowe [mailto:jroweusmc@yahoo.com] Sent: Thursday, November 10, 2011 14:58 To: Shinn Capt Scott R Cc: Haytham Faraj Subject: Re: US v. Rowe - Defene Motion to Dismiss Russ, when you get a chance can you break this down barney style for me. ________________________________ From: Shinn Capt Scott R <scott.shinn@usmc.mil> To: Hale LtCol Charles C <charles.c.hale@usmc.mil> Cc: Haytham Faraj <haytham@puckettfaraj.com>; Combe Capt Peter C <peter.combe@usmc.mil>; jeffrey.hoey@navy.mil Sent: Thursday, November 10, 2011 1:08 PM Subject: US v. Rowe - Defene Motion to Dismiss Good afternoon and Happy Birthday, sir - I am the newly detailed defense counsel for Capt Rowe, replacing Maj McConnell. Mr. Faraj and I respectfully submit to Court and opposing counsel the attached Motion to Dismiss - Multiplicity/Unreasonable Multiplication of Charges. V/r, S. Russell Shinn Captain, US Marine Corps Officer-in-Charge Defense Counsel Assistance Program Marine Corps Defense Services Organization 703.614.0885 (w) 703.470.0671 (c) "Marines Defending Marines"
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