U.S. v. Day, 83 M.J. 53

Core Criminal Law Subjects: Crimes: Article 80 - Attempts Offenses on/after 1 Jan 2019

1. attempted conspiracy is a viable offense under the UCMJ

Core Criminal Law Subjects: Crimes: Article 81 - Conspiracy Offenses on/after 1 Jan 2019

1. attempted conspiracy is a viable offense under the UCMJ

Trial Stages: Merits: Guilty Pleas

1. a waiver by operation of law may result from an unconditional guilty plea
2. an unconditional guilty plea generally waives all defects which are neither jurisdictional nor a deprivation of due process of law

Trial Stages: Merits: Pretrial Agreements

1. an accused may intentionally relinquish a waivable objection in a plea agreement by including a clause waiving all waivable motions

Trial Stages: Appeals: Court of Appeals for the Armed Forces

1. the CAAF cannot review waived issues

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when an appellant forfeits an argument, an appellate court can review it only for plain error
2. to establish plain error, an appellant has the burden to demonstrate: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right of the accused

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

1. whether an appellant has waived an objection is a legal question that an appellate court reviews de novo
2. when an appellant forfeits an argument, an appellate court can review it only for plain error
3. to establish plain error, an appellant has the burden to demonstrate: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right of the accused

Trial Stages: Appeals: Waiver

1. the CAAF cannot review waived issues
2. waiver can occur either by a party’s intentional relinquishment or abandonment of a known right or by operation of law; a waiver by operation of law happens when a procedural rule or precedent provides that an objection is automatically waived upon the occurrence of a certain event and that event has occurred
3. an accused may intentionally relinquish a waivable objection in a plea agreement by including a clause waiving all waivable motions
4. a waiver by operation of law may result from an unconditional guilty plea
5. an unconditional guilty plea generally waives all defects which are neither jurisdictional nor a deprivation of due process of law
6. in this case, where the military judge unambiguously advised appellant that a motion to dismiss for failure to state an offense was not waivable, neither appellant’s guilty plea nor the plea agreement including a clause waiving all waivable motions prevented appellant from raising the issue of failure to state an offense on appeal
7. in this case, although appellant did not waive her argument that the attempted conspiracy offenses did not state offenses under the UCMJ, she nonetheless forfeited this argument by failing to raise it before the military judge