# Petition for Writ of Certiorari — McKeel v. United States (No. 06-58) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1168%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2007 ## Text Supreme Court, U.S. FILE A 06-58 JUL13 2006 NO. OFFICE OF THE CLERK IN THE Supreme Court of the United States JOSHUA R. MCKEEL Petitioner V. THE UNITED STATES Respondent On Petition for Writ of Certiorari To The United States Court of Appeals for the Armed Forces FOR WRIT OF CERTIORARI JOHN B. WELLS LAW OFFICE OF JOHN B. WELLS 317 PORTSMOUTH DRIVE = ce SLIDELL, LA 70460-8429 C2 985-641-1855 ¢ ofD S Par 985-649-1536 (fax) — mon Sort “ SEs RICHARD H. MCWILLIAMS p> = LIEUTENANT, JAG Corps, oS ram UNITED STATES NAVAL RESERVE ~ APPELLATE DEFENSE COUNSEL ’-€ : 202-685-7295 II QUESTIONS PRESENTED FOR REVIEW Whether the Convening Authority and the Military Judge Violated the Vicinage Provisions of the Sixth Amendment to the United States Constitution in Allowing the Court-Martial to Proceed in the Northern District of Florida When the Alleged Activity Occurred in the Western District of Texas Whether the Military Judge Violated the Due Process Clause of the Fifth Amendment to the United States Constitution in Not Dismissing the Charge and Specification When the Petitioner Relied to His Detriment on.a Pre-Trial Agreement TABLE OF CONTENTS Questions Presented for Review ..................... i Table of Cited Aap ie chk civic cece il} Basis OF Supper icsiccecces Vi Corporate Disclosure Statement .................... V1 Pertinent Constitutional Provisions, Treaties, Statutes, Ordinances and Regulations ........:..eccceseeeeee Vil Statement oF TG Ge ee ea vic ce cece: l ASguirient . oo. 5 scion ew ore races 2 J The Convening Authority and the Military Judge Violated the Vicinage Provisions of the Sixth Amendment to the United States Constitution in Allowing the Court-Martial to Proceed in the Northern District of Florida When the Alleged Activity Occurred in the Western District Of Tees 5 eee wk rave ees 2 IT The Military Judge Violated the Due Process Clause of the Fifth Amendment to the United States Constitution in Not Dismissing the Charge and Specification When the Petitioner Relied to His Detriment on a Pre-Trial Agreement ............ 7 Conclusion ... « « o section 973(b)(2)(B) of this title. 10 U.S.C. § 815, Article 15 U.C.M.J. Commanding officer's non-judicial punishment (a) Under such regulations as the President may prescribe, and under such additional regulations as may be prescribed by the Secretary concerned, limitations may be placed on the powers granted by this article with respect to the kind and Appendix 29 amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this article to an accused who demands trial by court-martial, and the kinds of courts-martidl to which the case may be referred upon such a demand. However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized hereunder. If authorized by regulations of the Secretary concerned, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may delegate his powers under this article to a principal assistant. (b) Subject to subsection (a), any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial-- (1) upon officers of his command-- (A) restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days; (B) if imposed by an officer exercising general court-martial jurisdiction or an officer of general or flag rank in command-- (i) arrest in quarters for not more than 30 consecutive days; (ii) forfeiture of not more than one-half of one month's pay per month for two months; (iii) restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; (iv) detention of not more than one-half of one month's pay per month for three months; Appendix 30 (2) upon other personnel of his command-- (A) if imposed upon a person attached to or embarked in a vessel, confinement on bread and water or diminished rations for not more than three consecutive days; (B) correctional custody for not more than seven consecutive days; (C) forfeiture of not more than seven days' pay; (D) reduction to the next inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction; (E) extra duties, including fatigue or other duties, for not more than 14 consecutive days; (F) restriction to certain specified limits, with or without suspension from duty, for not more than 14 consecutive days; (G) detention of not more than 14 days' pay; (H) if imposed by an officer.of the grade of major or lieutenant commander, or above-- (i) the punishment authorized under clause A; (ii) correctional custody for not more than 30 consecutive days; (iii) forfeiture of not more than one-half of one month's pay per month for two months; (iv) reduction to the lowest or any intermediate pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades; (v) extra duties, including fatigue or other duties, for not more than 45 consecutive days; (vi) restrictions to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; (vii) detention of not more than one-half of one month's pay per month for three months. _ Appendix 31 Detention of pay shall be for a stated period of not more than one year but if the offender's term of service expires earlier, the detention shall terminate upon that expiration. No two or more of the punishments of arrest in quarters, confinement on bread and water or diminished rations, correctional custody, extra duties, and restriction may be combined to run consecutively in the maximum amount imposable for each. Whenever any of those punishments are combined to run consecutively, there must be an apportionment. In addition, forfeiture of pay may not be combined with detention of pay without an apportionment. For the purposes of this subsection, "correctional custody" is the physical restraint of a person during duty or nonduty hours and may include extra duties, fatigue duties, or hard labor. If practicable, correctional custody will not be served in immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial. (c) An officer in charge may impose upon enlisted members assigned to the unit of which he is in charge such of the punishments authorized under subsection (b)(2)(A)-(G) as the Secretary concerned may specifically prescribe by regulation. (d) The officer who imposes the punishment authorized in subsection (b), or his successor in command, may, at any time, suspend probationally any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under subsection (b), whether or not executed. In addition, he may, at any time, remit or mitigate any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges, and property affected. He may also mitigate reduction in grade to forfeiture or detention of pay. When mitigating-- (1) arrest in quarters to restriction; - Appendix 32 (2) confinement on bread and water or diminished rations to correctional custody; (3) correctional custody or confinement on bread and water or diminished rations to extra duties or restriction, or both; or (4) extra duties to restriction; the mitigated punishment shall not be for a greater period than the punishment mitigated. When mitigating forfeiture of pay to detention of pay, the amount of the detention shall not be greater than the amount of the forfeiture. When mitigating reduction in grade to forfeiture or detention of pay, the amount of the forfeiture or detention shall not be greater than the amount that could have been imposed initially under this article by the officer who imposed the punishment mitigated. (e) A person punished under this article who considers his punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection (d) ty the officer who imposed the punishment. Before acting on an appeal from a punishment of-- (1) arrest in quarters for more than seven days; 2) correctional custody for more than seven days; (3) forfeiture of more than seven days’ pay; (4) reduction of one or more pay grades from the fourth or a higher pay grade; (5) extra duties for more than 14 days; (6) restriction for more than 14 days; or (7) detention of more than 14 days’ pay; the authority who is to act on the appeal shall refer the case to a judge advocate or a lawyer of the Department of Appendix 33 Homeland Security for consideration and advice, and may so refer the case upon appeal from any a imposed - under subsection (b). (f) The imposition and enforcement of disciplinary punishment under this article for any act or omission 1s not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this article; but the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty. (g) The Secretary concerned may, by regulation, prescribe the form of records to be kept of proceedings under this article and may also prescribe that certain categories of those proceedings shail be in writing. 10 U.S.C. § 836, Article 36 U.C.M.J. President may prescribe rules (a) Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals, and procedures for courts of inquiry, may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which may not be contrary to or inconsistent with this chapter. (b) All rules and regulations made under this article shall be uniform insofar as practicable. - Appendix 34 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1168%3A1. Public record. Not legal advice.