U.S. v. Givens, 82 M.J. 211

Military Justice Personnel: Military Judge: Discretion

1. at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver
2. in this case, where waiver for untimely filing applied to appellant’s motion to dismiss for an alleged defective preferral, the military judge did not abuse his discretion in not finding good cause for appellant’s delay in filing because the defense could not establish why the factual basis for the alleged defective preferral could not have been explored prior to the entry of pleas

Military Justice Personnel: Convening Authority: Disqualification

1. a person who has been ordered or coerced into preferring charges becomes an accuser within the meaning of Article 1(9), UCMJ, and an accuser is disqualified from acting as a convening authority in that case

Core Criminal Law Subjects: Motions, Generally: Pretrial › Generally

1. RCM 905(b)(1) requires that any pretrial motion asserting defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing, must be raised before a plea is entered; thus, challenges alleging defects in the preferral of the charges must be raised prior to entry of pleas
2. at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver
3. claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause

Trial Stages: Pretrial: Charges and Specifications

1. generally, any person subject to the UCMJ may prefer charges; however, the accuser must state that the charges are true in fact to the best of his knowledge and belief; under RCM 307(b), through the accuser’s signature, preferral signifies that a person has sworn an oath to assure that they have either personal knowledge of or investigated the matters set forth in the charges and specifications
2. a person who has been ordered or coerced into preferring charges becomes an accuser within the meaning of Article 1(9), UCMJ, and an accuser is disqualified from acting as a convening authority in that case
3. RCM 905(b)(1) requires that any pretrial motion asserting defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing, must be raised before a plea is entered; thus, challenges alleging defects in the preferral of the charges must be raised prior to entry of pleas
4. at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver
5. if a commander is coerced into preferring charges that he does not believe are true, the charges are treated as unsigned and unsworn
6. claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause

Trial Stages: Pretrial: Motions

1. RCM 905(b)(1) requires that any pretrial motion asserting defenses or objections based on defects (other than jurisdictional defects) in the preferral, forwarding, or referral of charges, or in the preliminary hearing, must be raised before a plea is entered; thus, challenges alleging defects in the preferral of the charges must be raised prior to entry of pleas
2. at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver
3. claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause
4. per RCM 905(b)(1), any objections asserting a defect in the preferral of charges based upon unlawful command influence needed to be raised prior to the entry of pleas; because in this case, appellant does not assert that he was deterred at trial from objecting to a coerced preferral, alleged defects were waived

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

1. an appellate court reviews whether an appellant has waived an issue, a question of law, de novo.
2. an appellate court reviews a military judge’s determination as to whether there was good cause shown to grant review from waiver for an abuse of discretion, and the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; in an appellate court’s review of good cause shown, it routinely analyzes this exception to waiver as a burden upon the moving party

Trial Stages: Appeals: Waiver

1. at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver
2. claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause
3. an appellate court reviews whether an appellant has waived an issue, a question of law, de novo.
4. per RCM 905(b)(1), any objections asserting a defect in the preferral of charges based upon unlawful command influence needed to be raised prior to the entry of pleas; because in this case, appellant does not assert that he was deterred at trial from objecting to a coerced preferral, alleged defects were waived
5. in this case, where waiver for untimely filing applied to appellant’s motion to dismiss for an alleged defective preferral, the military judge did not abuse his discretion in not finding good cause for appellant’s delay in filing because the defense could not establish why the factual basis for the alleged defective preferral could not have been explored prior to the entry of pleas

Miscellaneous Matters: Command Influence: Generally

1. claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause
2. unlawful command influence is generally reviewed as an accusatory (preferral, forwarding, and referral of charges) or adjudicative (interference with witnesses, judges, members, and counsel) claim
3. in order to determine the applicable rules of law, it is necessary to determine whether an allegation of unlawful command influence in a given case pertains to the preferral of charges, forwarding of charges, referral, trial, or post-trial review
4. a claim of unlawful command influence in the context of the preferral of charges is a claim of accusatory unlawful command influence, and a claim of accusatory unlawful command influence must be reviewed as pretrial defects and must be held to the deadline set out in RCM 905(b)