2004) (original writ filed after direct appeal sat at NMCCA
for more than four years).
result, NMCCA offers the best glimpse into the mind of CCAs in sentence
Unlike the Army court, NMCCA spelled out all issues raised by
66) The NMCCA determined that the issue was not whether or not the possession of Spice was illegal; rather, it was whether the possession with intent to distribute the substance was prejudicial to good order and discipline, in violation of Article 134.
Based on testimony from a Navy Criminal Investigative Service (NCIS) agent that spice was a "huge problem in the military" and evidence that the appellant had distributed spice in the barracks, on a military installation and to other Marines, the NMCCA held that "a reasonable fact finder could have found beyond a reasonable doubt that the appellant's wrongful possession of Spice with intent to distribute was prejudicial to good order and discipline in the armed forces.
Next, following the military precedent, which in turn follows the state majority view, the NMCCA stated that "the focus of indecent exposure is on the victim and not the location of the crime.
Judge Heimann would have reversed the case applying the same reasoning as the NMCCA in Hockemeyer.
100) the NMCCA
noted three sources to find the meaning of terms not
To avoid deportation, the alien filed a petition for a writ of coram nobis in the NMCCA
which asked the NMCCA
to vacate his conviction because he received ineffective assistance of counsel when his counsel not only failed to warn him of the implications of his conviction regarding his continued residence in the United States, but actually told him that by pleading guilty, he avoided any immigration consequences.
In the first review of the case, the NMCCA
applied the standard from the landmark case of United States v.
14) There was no proof at his trial that the images he possessed were not virtual, and accordingly, his two convictions for violations of Article 134 were overturned by the Navy and Marine Corps Court of Criminal Appeals (NMCCA
); the NMCCA
affirmed his conviction for violating Article 133 and affirmed the sentence.
Walker the NMCCA
discussed the issue of defense access to evidence.