TRIAL STAGES: Initial Review: Deferral

2017 (October Term)

United States v. Mooney, 77 M.J. 252 (Article 57(b) provides that a member’s sentence to confinement runs from the date it is adjudged; however, it may be deferred by the convening authority under Article 57a(b); if it is not deferred, then the sentence to confinement would run concurrently with any state sentence an accused was serving; Congress has constrained the power of the convening authority to defer sentences without the request of the accused to when certain conditions are met; under the UCMJ, these prerequisites are: (1) the member is in the custody of a state or foreign county, (2) the member is temporarily returned by that state or foreign country to the armed forces for trial by court-martial, and (3) after the court-martial, the member is returned to that state or foreign country under the authority of a mutual agreement or treaty); under the cannon of statutory construction expressio unius est exclusio alterius (the inclusion of one is the exclusion of others), it follows that when Congress expressly provided for deferment when a member is in custody of a state or foreign country, it intended to exclude when a member is in custody of the federal government).  


United States v. Emminizer, 56 MJ 441 (Article 57, as amended, enables the convening authority, upon application by the accused, to defer adjudged forfeitures prior to taking formal action on the sentence).

United States v. Key, 57 MJ 246 (an accused has the burden of showing entitlement to deferment of forfeitures or reduction in grade under Article 57(a)(2), UCMJ, 10 USC 857(a)(2)).

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