United States v. Marshall
United States Court of Appeals for the Armed Forces
67 M.J. 418 (2009)
- Written by Salina Kennedy, JD
Facts
Captain Kreitman directed Staff Sergeant Fleming to go to the local police station and assume custody of Private Bradley W. Marshall (defendant). Fleming went to the police station, retrieved Marshall, and returned him to the company offices. At the company offices, Fleming told Marshall that his pretrial confinement orders were being prepared and instructed him to sit down and not leave his seat without an escort. Marshall was allowed to step outside to take smoking breaks and, on one of his breaks, he walked away from the company offices. Marshall was charged with escaping Kreitman’s custody and was tried by a military judge sitting as a special court-martial. At trial, the United States government (plaintiff) presented no evidence that Marshall had been in Kreitman’s custody but instead argued that Fleming had acted as Kreitman’s agent. Marshall’s counsel moved for a finding of not guilty based on the absence of evidence that Marshall had been in Kreitman’s custody. The military judge denied the motion and convicted Marshall, by exceptions and substitutions, of escaping from the custody of Fleming. The Army Court of Criminal Appeals affirmed the conviction. Marshall appealed, arguing that there was a fatal variance between the offense for which he was initially charged and the offense for which he was convicted.
Rule of Law
Issue
Holding and Reasoning (Stucky, J.)
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