United States v. Mercier

75 M.J. 643 (2016)

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United States v. Mercier

United States Coast Guard Court of Criminal Appeals
75 M.J. 643 (2016)

Facts

Mercier (defendant) was charged with several offenses, including one charge (specification six) of communicating indecent language to CM, a civilian woman. At Mercier’s Article 32 hearing, the United States government (plaintiff) did not present any direct evidence of Mercier’s alleged statements in support of specification six. The preliminary-hearing officer, finding that there was no probable cause to support the specification, recommended against referring it to a general court-martial. In his Article 34 advice to the convening authority, the staff judge advocate recommended the referral of specification six to a general court-martial in spite of the preliminary-hearing officer’s recommendation. In support of his advice, the staff judge advocate stated that CM was expected to testify at Mercier’s trial and that her expected testimony provided probable cause for the specification. The convening authority referred all charges, including specification six, to a general court-martial. At trial, the military judge granted Mercier’s motion to dismiss specification six, finding that the Article 34 advice was defective because it relied on CM’s expected trial testimony rather than on evidence presented at the Article 32 hearing. The government appealed.

Rule of Law

Issue

Holding and Reasoning (Judge, J.)

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