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Trump's New Executive Order Amendments for Court Martial and Nomination of U.S. Sentencing Commission

EXECUTIVE ORDERS

2018 Amendments to the Manual for Courts-Martial, United States


Issued on: March 1, 2018

By the authority vested in me as President by the Constitution and the laws of the United States of America, including chapter 47 of title 10, United States Code (Uniform Code of Military Justice (UCMJ), 10 U.S.C. 801-946), and in order to prescribe amendments to the Manual for Courts-Martial, United States, prescribed by Executive Order 12473 of April 13, 1984, as amended, it is hereby ordered as follows:

Section 1. Part II, Part III, and Part IV of the Manual for Courts-Martial, United States, are amended as described in Annex 1, which is attached to and made a part of this order.

Sec. 2. The amendments in Annex 1 shall take effect on the date of this order, subject to the following:

(a) Nothing in Annex 1 shall be construed to make punishable any act done or omitted prior to the date of this order that was not punishable when done or omitted.

(b) Nothing in Annex 1 shall be construed to invalidate the prosecution of any offense committed before the date of this order. The maximum punishment for an offense committed before the date of this order shall not exceed the maximum punishment in effect at the time of the commission of such offense.

(c) Nothing in Annex 1 shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to the date of this order, and any such nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action shall proceed in the same manner and with the same effect as if the amendments in Annex 1 had not been prescribed.

Sec. 3. (a) Pursuant to section 5542 of the Military

Justice Act of 2016 (MJA), division E of the National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 Stat. 2000, 2967 (2016), except as otherwise provided by the MJA or this order, the MJA shall take effect on January 1, 2019.

(b) Nothing in the MJA shall be construed to make punishable any act done or omitted prior to January 1, 2019, that was not punishable when done or omitted.

(c) Nothing in title LX of the MJA shall be construed to invalidate the prosecution of any offense committed before January 1, 2019. The maximum punishment for an offense committed before January 1, 2019, shall not exceed the maximum punishment in effect at the time of the commission of such offense.

(d) Nothing in the MJA shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to January 1, 2019. Except as otherwise provided in this order, the MJA shall not apply in any case in which charges are referred to trial by court-martial before January 1, 2019. Except as otherwise provided in this order, proceedings in any such case shall be held in the same manner and with the same effect as if the MJA had not been enacted.

Sec. 4. The Manual for Courts-Martial, United States, as amended by section 1 of this order, is amended as described in Annex 2, which is attached to and made a part of this order.

Sec. 5. The amendments in Annex 2, including Appendix 12A, shall take effect on January 1, 2019, subject to the following:

(a) Nothing in Annex 2 shall be construed to make punishable any act done or omitted prior to January 1, 2019, that was not punishable when done or omitted.

(b) Nothing in section 4 of Annex 2 shall be construed to invalidate the prosecution of any offense committed before January 1, 2019. The maximum punishment for an offense committed before January 1, 2019, shall not exceed the maximum punishment in effect at the time of the commission of such offense.

(c) Nothing in Annex 2 shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to January 1, 2019. Except as otherwise provided in this order, the amendments in Annex 2 shall not apply in any case in which charges are referred to trial by court-martial before January 1, 2019. Except as otherwise provided in this order, proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been prescribed.

Sec. 6. (a) The amendments to Articles 2, 56(d), 58a, and 63 of the UCMJ enacted by sections 5102, 5301, 5303, and 5327 of the MJA apply only to cases in which all specifications allege offenses committed on or after January 1, 2019.

(b) If the accused is found guilty of a specification alleging the commission of one or more offenses before January 1, 2019, Article 60 of the UCMJ, as in effect on the date of the earliest offense of which the accused was found guilty, shall apply to the convening authority, in addition to the suspending authority in Article 60a(c) as enacted by the MJA, to the extent that Article 60:

(1) requires action by the convening authority on the sentence;

(2) permits action by the convening authority on findings;

(3) authorizes the convening authority to modify the findings and sentence of a court-martial, dismiss any charge or specification by setting aside a finding of guilty thereto, or change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification;

(4) authorizes the convening authority to order a proceeding in revision or a rehearing; or

(5) authorizes the convening authority to approve, disapprove, commute, or suspend a sentence in whole or in part.

Sec. 7. The amendment to Article 15 of the UCMJ enacted by section 5141 of the MJA shall apply to any nonjudicial punishment imposed on or after January 1, 2019.

Sec. 8. The amendments to Articles 32 and 34 of the UCM enacted by sections 5203 and 5205 of the MJA apply with respect to preliminary hearings conducted and advice given on or after January 1, 2019.

Sec. 9. The amendments to Article 79 of the UCMJ enacted by section 5402 of the MJA and the amendments to Appendix 12A to the Manual for Courts-Martial, United States, made by this order apply only to offenses committed on or after January 1, 2019.

Sec. 10. Except as provided by Rule for Courts-Martial 902A, as promulgated by Annex 2, any change to sentencing procedures:

(a) made by Articles 16(c)(2), 19(b), 25(d)(2) and (3), 39(a)(4), 53, 53a, or 56(c) of the UCMJ, as enacted by sections 5161, 5163, 5182, 5222, 5236, 5237, and 5301 of the MJA; or

(b) included in Annex 2 in rules implementing those articles, applies only to cases in which all specifications allege offenses committed on or after January 1, 2019.

Sec. 11. The amendments to Article 146 of the UCMJ enacted by section 5521 of the MJA and the new Article 146a enacted by section 5522 of the MJA shall take effect on the day after the report for fiscal year 2017 required by Article 146(c) of the UCMJ (as in effect before the MJA’s amendments) is submitted in accordance with Article 146(c)(1), but in no event later than December 1, 2018.

Sec. 12. In accordance with Article 33 of the UCMJ, as amended by section 5204 of the MJA, the Secretary of Defense, in consultation with the Secretary of Homeland Security, will issue nonbinding guidance regarding factors that commanders, convening authorities, staff judge advocates, and judge advocates should take into account when exercising their duties with respect to the disposition of charges and specifications in the interest of justice and discipline under Articles 30 and 34 of the UCMJ. That guidance will take into account, with appropriate consideration of military requirements, the principles contained in official guidance of the Attorney General to attorneys for the Federal Government with respect to the disposition of Federal criminal cases in accordance with the principle of fair and evenhanded administration of Federal criminal law.

DONALD J. TRUMP

THE WHITE HOUSE,

March 1, 2018.
______________________________________________________

NOMINATIONS & APPOINTMENTS

President Donald J. Trump Announces Bipartisan Group of Nominees to the United States Sentencing Commission


Issued on: March 1, 2018

Today, President Donald J. Trump announced his intent to nominate the following individuals to the United States Sentencing Commission:

If confirmed, Judge William H. Pryor Jr. of Alabama will serve as the Chairman of the United States Sentencing Commission. Judge Bill Pryor serves as a Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, and as Acting Chairman of the United States Sentencing Commission. Judge Pryor was appointed to the Eleventh Circuit in 2004 by President George W. Bush, and was later appointed as a Commissioner of the Sentencing Commission in 2013 by President Barack Obama. Prior to his appointment to the Eleventh Circuit, Judge Pryor served for seven years as the Attorney General of Alabama, where he successfully led a bipartisan effort to create the Alabama Sentencing Commission.

If confirmed, Judge Luis Felipe Restrepo of Pennsylvania will serve as a Commissioner of the United States Sentencing Commission. Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit. Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama. Prior to his elevation to the Third Circuit, Judge Restrepo served for two and a half years as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama. Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

If confirmed, Judge Henry E. Hudson of Virginia will serve as a Commissioner of the United States Sentencing Commission. Judge Henry Hudson serves as a United States District Judge for the Eastern District of Virginia. Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush. Before his appointment to the Federal bench, Judge Hudson served as a Virginia circuit judge for Fairfax County, Director of the United States Marshals Service, as the Senate-confirmed United States Attorney for the Eastern District of Virginia, and as the elected Commonwealth’s Attorney for Arlington County, Virginia.

If confirmed, William Graham Otis of Virginia will serve as a Commissioner of the United States Sentencing Commission. Bill Otis serves as an Adjunct Professor of Law at Georgetown University Law Center. Before joining the faculty at Georgetown, Mr. Otis served in the Federal Government for 29 years. Over this period, Mr. Otis served as Counselor to the Administrator of Drug Enforcement Administration during the George W. Bush presidency, as an Assistant United States Attorney and Chief of the Appellate Division of the United States Attorney’s Office for the Eastern District of Virginia (under both Democrat and Republican Administrations), and as Special Counsel to President George H.W. Bush.

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