United States v. Von Bergen - U.S. Court of Appeals for the Armed ...

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United States v. Von Bergen, No. 03-0629/AFnotice regarding how the specification would be amended afterremand from this Court based on this Court’s precedents inMartinelli and other cases that have addressed the CPPA. See,e.g., United States v. O’Connor, 58 M.J. 450, 454-55 (C.A.A.F.2003); United States v. Mason, 60 M.J. 15, 18, 20 (C.A.A.F.2004). Second, the new specification addressed the same conductas the original specification. Third, the Government relied onmuch of the same evidence as at Appellant’s original courtmartial,such as Appellant’s statement and testimony ofwitnesses who had statements or stipulations of expectedtestimony admitted as evidence at the 2001 court-martial.Finally, the witnesses testified about the destroyed evidence,including what the images portrayed, how they were found, andhow they were traced to Appellant. In a different context, thedestruction of the original evidence and passage of time mightwell be prejudicial; however, under these circumstances,Appellant was not prejudiced by the military judge’s error innot ordering an Article 32, UCMJ, investigation.DECISIONAccordingly, subject to the foregoing discussion, thedecision of the United States Air Force Court of CriminalAppeals is affirmed.14
United States v. Von Bergen, No. 03-0629/AFRYAN, J. (concurring in the judgment):I concur in the judgment because I agree with themajority’s conclusion that the pretrial agreement (PTA) in thiscase did not waive Appellant’s right to a pretrialinvestigation, pursuant to Article 32, Uniform Code of MilitaryJustice (UCMJ), 10 U.S.C. § 832 (2000), on the amended andrereferred charge. I also agree that while Appellant wasentitled to an Article 32, UCMJ, investigation on the amendedcharge, he was not prejudiced by the lack of such aninvestigation. United States v. Von Bergen, __ M.J. __ (13-14)(C.A.A.F. 2009).The granted issue can be resolved on a simple basis:Whether or not Appellant’s original waiver via the PTA in thiscase was canceled by our order of the rehearing, Von Bergen, __M.J. at __ (10-11), and whether or not the rehearing itselfpermitted Appellant to withdraw from the PTA, 1 id. at __ (11),1 Although the majority opinion finds that the PTA was not ineffect at the rehearing, a portion of the opinion assumes,arguendo, that the PTA did remain in effect. Von Bergen, __M.J. at __ (9, 11-12). Even so, the majority holds thatAppellant subsequently withdrew from the PTA and was thereforeentitled to an Article 32, UCMJ, investigation. Despite theGovernment’s argument that Appellant’s right to withdraw fromthe PTA no longer existed, the majority posits, withoutexplanation, a connection between the order of rehearing andAppellant’s right to withdraw. Brief of Appellee at 7, UnitedStates v. Von Bergen, No. 03-0629 (C.A.A.F. Sept. 5, 2008). Wehave previously stated that the effect of a rehearing isgenerally to “place the United States and the accused in the
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United States v. Von Bergen - U.S. Court of Appeals for the Armed ...

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