CAAF Grants

As CAAFlog noted, this evening CAAF released its Daily Journal for Thursday, 16 August noting the granting of six petitions for review--2 of the cases are from the Coast Guard.

In United States v. Holbrook, No. 1251 (C.G.C.C.A. Jan. 10, 2007), the accused was convicted of fraudulent enlistment in violation of Article 83, UCMJ. CAAF granted on the following issue:

No. 07-0350/CG. U.S. v. Tom K. HOLBROOK. CCA 1251. Review granted on the following issue:

WHETHER APPELLANT'S PLEA TO FRAUDULENT ENLISTMENT (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO ELICIT FACTS SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW HE LIED ABOUT A MATERIAL FACT RELEVANT TO HIS QUALIFICATIONS FOR ENLISTMENT.

He raised the same issue before the CCA. He is claiming that the military judge was required to get him to admit that he knew the lies he told the recruiter were material when he made them--"at the time he knowingly made false statements to the recruiter, Appellant was not certain that truthful answers would prevent him from enlisting."

The element of the offense in question reads as follows:

That the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding qualifications of the accused for enlistment or appointment.

Its hard to believe that any judge would believe that this element requires that the accused know he is lying about a material fact. The accused just has to know he is lying. For the plea to be provident, an accused must acknowledge that the false information he provided to the recruiter was material--would have affected the decision to approve his enlistment or would have changed how his enlistment was handled (perhaps more investigation or requiring a waiver)--but there is no requirement that the accused know the information is material at the time he makes the false statements.

As CAAFlog would say: EGAD!