U.S. v. Chapa, 57 M.J. 140

Core Criminal Law Subjects: Motions, Generally: Burden

1. the defense bears the burden of raising an issue of compliance with any of the procedures addressed in RCM 305 by making a motion that specifically focuses the attention of trial participants on the alleged shortcoming

Trial Stages: Pretrial: Pretrial Confinement

1. the defense bears the burden of raising an issue of compliance with any of the procedures addressed in RCM 305 by making a motion that specifically focuses the attention of trial participants on the alleged shortcoming
2. any issue regarding failure to conduct the 48-hour review of pretrial confinement is waived by failure to specifically raise the issue at trial, and an asserted violation of one provision of RCM 305 is not sufficient to preserve the issue whether another provision was violated
3. any issue founded on noncompliance with RCM 305 was waived where: (1) appellant did not assert that his restriction was tantamount to confinement, nor did he assert any violations of RCM 305; (2) the defense request for relief focused solely on Article 13; (3) defense counsel’s question about the commander’s review of his decision to seize appellant’s personal property was insufficient to raise and preserve the issue because it addressed only the seizure of appellant’s property and not the restraints on his liberty, and because it was too general to alert the military judge or the Government to a complaint that formal review processes were not followed; (4) defense counsel had the opportunity to ask the commander whether the conditions on appellant’s liberty were reviewed in accordance with RCM 305(h) and (i), or to present other evidence of noncompliance, but he did not avail himself of that opportunity
4. because appellant did not establish a factual predicate for his asserted violation of RCM 305, he has not overcome the waiver provisions of RCM 905(e) by demonstrating plain error

Trial Stages: Appeals: Preservation of Error / Plain Error

1. because appellant did not establish a factual predicate for his asserted violation of RCM 305, he has not overcome the waiver provisions of RCM 905(e) by demonstrating plain error

Trial Stages: Appeals: Waiver

1. any issue regarding failure to conduct the 48-hour review of pretrial confinement is waived by failure to specifically raise the issue at trial, and an asserted violation of one provision of RCM 305 is not sufficient to preserve the issue whether another provision was violated
2. any issue founded on noncompliance with RCM 305 was waived where: (1) appellant did not assert that his restriction was tantamount to confinement, nor did he assert any violations of RCM 305; (2) the defense request for relief focused solely on Article 13; (3) defense counsel’s question about the commander’s review of his decision to seize appellant’s personal property was insufficient to raise and preserve the issue because it addressed only the seizure of appellant’s property and not the restraints on his liberty, and because it was too general to alert the military judge or the Government to a complaint that formal review processes were not followed; (4) defense counsel had the opportunity to ask the commander whether the conditions on appellant’s liberty were reviewed in accordance with RCM 305(h) and (i), or to present other evidence of noncompliance, but he did not avail himself of that opportunity