Neal, Faraj:
By the way, there is a lot more background on this, particularly at Dyess
that I am still dealing with the fall out of. I have a Fosler-type case
that was overturned by the MJ after we filed a post-trial motion based on
the new Fosler case law. Basically, the only thing our guy was found guilty
of was a 134 offense. They amended the charge sheet at trial; MJ held it
was a minor change under current law. We argued it was a major change to
add the terminal element. After trial, the Fosler decision came out and
before the MJ authenticated the record we filed a post-trial motion for him
to reconsider his ruling that it was a minor change. The MJ agreed that
under the new case law it was a major change and dismissed the findings and
sentence as to that charge. The Government has filed its notice to file a
62a appeal regarding the MJ's post-trial ruling. As such I do not recommend
that we agree to allow them to amend the charge sheet. It is a major change
and the charge fails to state an offense without the terminal element (see
attached ruling from my case). What we probably should do is file a motion
to dismiss the 134 charge(s) for failing to state an offense.
I am unavailable for a 32 prior to our scheduled trial day.
/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
-----Original Message-----
From: Puckett Neal [mailto:neal@puckettfaraj.com]
Sent: Thursday, September 22, 2011 4:39 PM
To: Doser-Pascual, Ranae L Capt MIL USAF AFLOA/JAJD; Faraj Haytham
Subject: Fwd: Fosler Ruling
Haytham and Ranae,
Fosler issue and ruling in AF case attached. TC was Capt Harris (at Dyess
supervising U.S. v. Burke). He called today to ask if we could either not
object to adding the terminal element in our 134 offense or schedule another
Art 32 between now and 11 Oct. Told him that Haytham and I were booked so,
no, we probably couldn't attend a 32. Not sure how they'll handle that, or
whether we should just accede to his request to add the terminal element
language as a pen change to the Art 134 offense on the Burke case charge
sheet. He implied that if we can't work this out (32 or no objection)
pretrial, they might choose to re-prefer and take him to a new 32 and
court-martial post-trial. Not sure they'd go to that trouble, but they
might be tempted when we win. Though Col Sullivan opines that they have to
bring all known (and properly pled) charges to the same trial and that
Fosler has been out since May. So they've had plenty of time to fix the
defect and we might could win on that issue second time around. Frankly I'm
not inclined to let them just do it if we can leverage this to our client's
advantage in any way. The other fix would be ordering you, Ranae, to attend
a 32 even in our absence. Then there would be error but current case law
calls for that error to be tested for prejudice, and there may not be very
much. So the decisions we make now about this might either make the charge
sheet have one less charge but subject our client to a second process, on
which we may prevail procedurally. Or we can all (or one of us) go (at
additional expense to the client) and do another 32. Or we can not object,
give them what they want on the assumption that an additional throwaway
charge of leaving the scene of an accident doesn't really tip the scales
either way. Seeking your learned input here. Have attached the earlier
case, motion and ruling.
Neal
Neal A. Puckett, Esq
LtCol, USMC (Ret)
Puckett & Faraj, PC
1800 Diagonal Rd, Suite 210
Alexandria, VA 22314
703.706.9566
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Begin forwarded message:
From: "Sullivan, Dwight H CIV USAF AFLOA/JAJA"
<Dwight.Sullivan@pentagon.af.mil>
Date: September 22, 2011 4:04:41 PM EDT
To: Puckett Neal <neal@puckettfaraj.com>
Subject: FW: Fosler Ruling
Dwight H. Sullivan
Acting Chief
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: White, Nathan A Capt MIL USAF AFLOA/JAJA
Sent: Thursday, September 22, 2011 4:04 PM
To: Sullivan, Dwight H CIV USAF AFLOA/JAJA
Subject: Fosler Ruling
Sir,
Attached.
V/R,
Nathan A. White, Captain, USAF
Appellate Defense Counsel (AFLOA/JAJA)
Joint Base Andrews, MD 20762
Phone: (240) 612-4782 Fax: -5818
Toll free: 1-800-414-8847 (clients)
<Ruling on Def motion to Reconsider wrt Amendment of Charge - Brissette.pdf>