In the Supremes

SCOTUSBlog has a petition for the day which may have some military justice impact if granted.

Hart v. United States. The response is due 29 September 2011.

Here is the QP:

Whether 18 U.S.C. § 2422(b) – which makes it a crime "to knowingly persuade, induce, entice, or coerce any individual who has not attained the age of 18 years to engage in… any sexual activity for which any person can be charged with a criminal offense" – requires a jury to come to a unanimous verdict on a single, specific underlying criminal offense for which the defendant could be charged.

Here’s a possible hook into current military practice (and I think you can substitute the two-thirds for the unanimous). Does this set up a Walters–like issue? I’ll cite from United States v. Trew, 68 M.J. 364 (C.A.A.F. 2009), a case I had at trial.

When the phrase “on divers occasions” is removed from a specification, the effect is “that the accused has been found guilty of misconduct on a single occasion and not guilty of the remaining occasions.” United States v. Augspurger, 61 M.J. 189, 190 (C.A.A.F. 2005). “If there is no indication on the record

which of the alleged incidents forms the basis of the conviction, then the findings of guilt are ambiguous and the Court of Criminal Appeals cannot perform a factual sufficiency review. United States v. Walters, 58 M.J. 391, 396-97 (C.A.A.F. 2003).” United States v. Wilson, 67 M.J. 423, 428 (C.A.A.F. 2009).

While it’s is not a “divers occassions” the charge does allege different, and thus divers methods, of violating the statute. What if some members thought my client was enticing and others thought coercing, and they all voted guilty by two-thirds, but two thirds didn’t agree on the entice or the coerce?

The second QP asks about double jeopardy concerns for a conviction on both 18 U.S.C. § 2422 and 18 U.S.C. § 2251. I have one of these cases and I’m not sure this would be applicable to court-martial when charged under Article 134, UCMJ, depending on how it was charged.

See prior petitions of note.

White v. Illinois, a crime lab report case will be argued 6 December 2011.