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RE: U.S. v. 1st Lt Patrick T. Burke - Notice of Appeal
Neal,
First, congratulations on the verdict! You certainly called that one.
Second, the trial counsel is insane. (Sorry, I couldn't resist.)
Under Article 62, a finding that "is, or that amounts to, a finding of not guilty" can't be the subject of an Article 62 appeal. The first two words of an R.C.M. 922(a)(4) verdict are "not guilty." Additionally, the Supreme Court has held that the double jeopardy clause prohibits retrial of a not guilty by reason of insanity verdict. Burks v. United States, 437 U.S. 1, 15 (1978).
You may want to consider making a filing with the military judge challenging the 72-hour letter due to the unappealability of the verdict. Alternatively, I become the acted chief of Air Force Appellate Defense again next Wednesday. I'll be more than happy to detail myself to the case and move to have it dismissed if the government actually dockets it with AFCCA.
Semper Fi,
DHS
Dwight H. Sullivan
Senior Appellate Defense Counsel
Air Force Appellate Defense Division
(AFLOA/JAJA)
1500 West Perimeter Road, Suite 1100
Joint Base Andrews, MD 20762
240-612-4773
DSN: 612-4773
Fax: 240-612-5818
-----Original Message-----
From: Neal Puckett [mailto:neal@puckettfaraj.com]
Sent: Saturday, October 15, 2011 9:27 PM
To: Sullivan, Dwight H CIV USAF AFLOA/JAJA
Cc: Faraj Haytham; Doser-Pascual, Ranae L Capt MIL USAF AFLOA/JAJD
Subject: Fwd: U.S. v. 1st Lt Patrick T. Burke - Notice of Appeal
Dwight,
MJA case. Client found NG only by reason of lack of mental responsibility of all charges and specifications Thurs at 1600L at Dyess AFB.
Am I reading that the Govt is appealing this finding? Is this possible? Are we in the Twilight Zone?
S/f,
Neal
Neal A. Puckett, Esq.
LtCol, USMC (Ret)
Senior Partner
Puckett & Faraj, PC
703.706.9566
www.puckettfaraj.com
Begin forwarded message:
From: "Kouba, Dustin B Capt USAF ACC 7 BW/JA" <Dustin.Kouba@dyess.af.mil>
Date: October 15, 2011 18:05:41 EDT
To: "VAN DALEN, MATTHEW D LtCol USAF AETC AFLOA/JAT" <matthew.van_dalen.1@us.af.mil>, "'Puckett Neal'" <neal@puckettfaraj.com>, "Doser-Pascual, Ranae L Capt MIL USAF AFLOA/JAJD" <ranae.doser-pascual@pentagon.af.mil>
Cc: "ALBERTSON, KIRK W Capt USAF AMC AFLOA/JAJG" <kirk.albertson@us.af.mil>, "Harris, Ervin N Capt USAF ACC 7 BW/JA" <Ervin.Harris@dyess.af.mil>, "Mann, Elizabeth A SSgt USAF ACC 7 BW/JA" <Elizabeth.Mann@dyess.af.mil>
Subject: U.S. v. 1st Lt Patrick T. Burke - Notice of Appeal
Lt Col Van Dalen, Mr. Puckett & Capt Doser-Pascual,
Attached please find the Governmentâs Notice of Appeal in the case of U.S. v. 1st Lt Patrick T. Burke dated 15 October 2011. Please contact me with any questions or concerns.
Very respectfully,
Dustin B. Kouba, Capt, USAF
Trial Counsel
7 Lancer Loop, Ste 223
Dyess AFB, TX 79607
DSN: 461-2035
Comm: 325-696-2035
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