U.S. v. Von Bergen, 67 M.J. 290

Military Justice Personnel: Military Judge: Discretion

1. the military judge abused his discretion in denying appellant an Article 32, UCMJ, investigation on rehearing, where appellant had waived such an investigation in a pretrial agreement when he originally pleaded guilty to possessing but had pleaded not guilty at the rehearing, withdrawn from the pretrial agreement, and requested an investigation; appellant’s original plea was improvident as a matter of law, which had the effect of canceling the pretrial agreement according to its terms, and the effect of the rehearing and appellant’s subsequent withdrawal from the agreement was to place the parties in their pretrial status quo ante

Trial Stages: Pretrial: Investigations (Article 32)

1. the military judge abused his discretion in denying appellant an Article 32, UCMJ, investigation on rehearing, where appellant had waived such an investigation in a pretrial agreement when he originally pleaded guilty to possessing but had pleaded not guilty at the rehearing, withdrawn from the pretrial agreement, and requested an investigation; appellant’s original plea was improvident as a matter of law, which had the effect of canceling the pretrial agreement according to its terms, and the effect of the rehearing and appellant’s subsequent withdrawal from the agreement was to place the parties in their pretrial status quo ante
2. the effect of ordering a rehearing is to place the United States and the accused in the same position as they were at the beginning of the original trial; as one of the first steps in a general court-martial proceeding is an Article 32, UCMJ, investigation, unless the accused waives it, one of the first steps at a rehearing in a general court-martial proceeding should likewise be an Article 32, UCMJ, investigation if not previously afforded to the accused

Trial Stages: Merits: New Trial

1. the effect of ordering a rehearing is to place the United States and the accused in the same position as they were at the beginning of the original trial; as one of the first steps in a general court-martial proceeding is an Article 32, UCMJ, investigation, unless the accused waives it, one of the first steps at a rehearing in a general court-martial proceeding should likewise be an Article 32, UCMJ, investigation if not previously afforded to the accused

Trial Stages: Appeals: Harmless / Prejudicial Error

1. Article 32, UCMJ, errors are tested on direct review for prejudice as defined by Article 59(a), UCMJ
2. appellant was not prejudiced by the military judge’s error in not ordering an Article 32, UCMJ, investigation on a rehearing after the original offense was changed from possession of child pornography as a violation of the CPPA to possession of child pornography under the general article for conduct prejudicial to good order and discipline and service discrediting conduct, where appellant was on fair notice regarding how the offense would be amended after remand, the new offense addressed the same conduct as the original offense, the government relied on much of the same evidence as at appellant’s original court-martial, and witnesses testified about and fully described certain original documentary evidence that had been destroyed before the rehearing

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews a military judge’s decision whether to order relief from a waiver of an Article 32, UCMJ, investigation for an abuse of discretion
2. an appellate court reviews a military judge’s conclusions of law under the de novo standard; if a military judge’s ruling is based on an erroneous view of the law, he has abused his discretion
3. Article 32, UCMJ, errors are tested on direct review for prejudice as defined by Article 59(a), UCMJ