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Sir, Acknowledging motions are due today, the Defense wanted to inform you that we intended to file a motion to dismiss for failure to state an offense as to Charge IV, an alleged violation of UCMJ, Article 134. Our motion would be based on
the recent C.A.A.F. decision in U.S. v. Fosler as the subject charge does not include a terminal element. However, Trial Counsel, Capt Kouba, informed us today that the Government intends to withdraw and re-prefer the Article 134 charge tomorrow morning.
Pending the Government’s action of withdrawing the charge that would be the focus of our motion, the Defense does not believe a motion to dismiss would be necessary. However, if the Government does not withdraw the charge as they have indicated, we likely
will file a motion to dismiss at that time. There are no other motions the Defense intends to submit at this time. If we determine a motion is necessary following the new preferral, we will inform all parties in a timely manner. V/r Ranae Ranae L. Doser-Pascual, Capt, USAF AFLOA/JAJD Deputy Chief Policy and Training Joint Base Andrews NAF, MD DSN: 612-4792 COMM: 240-612-4792 |