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Court of Appeals Sets Aside Conviction After Government Expanded Charged Time Period Mid-Trial

The Court of Appeals for the Armed Forces recently decided the case of United States v. Simmons, and set aside one of the guilty findings and the sentence. Senior Airman Simmons had been charged with, among other offenses, extortion for threatening to post intimate pictures of his victim unless she performed a sex act. The Government originally charged that SrA Simmons had committed this offense over a five month period from August-December 2014. At trial, the victim testified that SrA Simmons actually made his threats to post her pictures in late 2013. After the Government rested its case, the prosecutors asked the military judge if they could expand the charged time frame to begin in October 2013. The defense objected, but the military judge allowed this change. SrA Simmons was convicted of the offense.

On appeal, the Air Force Court of Criminal Appeals affirmed the conviction. The Court of Appeals for the Armed Forces agreed to review the question of whether the military judge erred when she allowed this change to the charged time frame during the trial.

Rule for Courts-Martial 603 governs changes to specifications and charges. The version of the rule in place at the time of SrA Simmons’ court-martial stated that minor changes could be made at any time before the verdict was announced as long as the change did not prejudice a substantial right of the accused. Major changes, on the other hand, could not be made after arraignment over an accused’s objection. At trial, the military judge considered the change to the time frame to be a minor change and allowed it. The Court of Appeals for the Armed Forces found it to be a major change. Their decision was based upon three factors: 1) the change increased the charged time frame by 279 days; 2) it was made in the middle of trial; and, 3) the change in timing now allowed the prosecutors to argue that additional offenses were committed because of the extortion threat.

The Court of Appeals noted that when the Government realizes that it has charged an offense incorrectly, it is not left without recourse. Rule for Court-Martial 603 allows the Government to withdraw the incorrect charge and prefer the corrected version. The Court noted that requiring specificity and accuracy on the charge sheet is an essential step to ensuring the fundamental fairness of the criminal justice process because it gives an accused proper notice of the Government’s evidence and informs them of what they will need to defend against.

The Court reversed the guilty finding on the extortion charge and set aside the sentence. The case will return to the Air Force Court of Criminal Appeals for either a reassessed sentence or an order to conduct a new sentencing hearing.

If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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