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 www.puckettfaraj.com www.twitter.com/puckettfaraj The information contained in this electronic message is confidential, and is intended for the use of the individual or entity named above. If you are not the intended recipient of this message, you are hereby notified that any use, distribution, copying of disclosure of this communication is strictly prohibited. If you received this communication in error, please notify Puckett & Faraj, P.C. at 703-706-9566 or via a return the e-mail to sender. You are required to purge this E-mail immediately without reading or making any copy or distribution. 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)
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Ruling on Def motion to Reconsider wrt Amendment of Charge - Brissette.pdf
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