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United States Army Court of Criminal Appeals
March 31, 2009, Decided
[*667] OPINION OF THE COURT
A military judge sitting as a general court-martial convicted appellant, consistent with his pleas, of failing to obey a lawful regulation (four specifications), conduct unbecoming an officer, and mishandling classified information (four specifications) in violation of Articles 92, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 933, and 934 [hereinafter UCMJ]. The military judge sentenced appellant to a dismissal and confinement for one year. [**2] Although a pretrial agreement limited confinement to ten months, the convening authority approved only six months confinement and a dismissal. The case is before the court for review pursuant to Article 66, UCMJ.
We have considered the entire record of trial, appellant's two assignments of error, the matter appellant personally raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the government's reply thereto. We find appellant's assignments of error merit discussion and relief. 1 We hold, as a matter of due process, appellant was not on fair notice that his conduct, arising from simply negligent possession of child pornography, violated Article 133, UCMJ, under the facts and circumstances of this case. Accordingly, we set aside and dismiss Charge II and its Specification alleging a violation of Article 133, UCMJ, and reassess appellant's sentence.
In 2001, appellant was an Apache helicopter pilot in command of Headquarters and Headquarters Company, 160th Special Operations Aviation Regiment (Airborne), Fort [*668] Campbell, Kentucky. He deployed to Afghanistan for Operation Enduring Freedom where, according to his annual personnel evaluation, he "performed brilliantly" and provided "inspirational leadership" to his soldiers during combat operations. While redeploying from Afghanistan in late December 2001 or January 2002, appellant packed some classified materials in his bags that he brought to his residence in Kentucky. 2
On 1 August 2002, appellant conducted a permanent change of station move from Fort Campbell to Special Operations Command Pacific, Camp H.M. Smith, Hawaii. Appellant shipped the classified materials to Hawaii with his household goods, [**4] and once again maintained them at his residence in Aiea, Hawaii. In July 2005, after appellant moved to another location in Hawaii, his then-spouse consented to a command search of the residence. The government recovered the classified materials during the search. As a result, appellant was charged with and pled guilty to numerous offenses involving his mishandling of classified information both in Kentucky and Hawaii. 3
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
67 M.J. 666 *; 2009 CCA LEXIS 322 **
UNITED STATES, Appellee v. Major KENDALL M. AMAZAKI, JR., United States Army, Appellant
Subsequent History: [**1] Motion granted by United States v. Amazaki, 2009 CAAF LEXIS 815 (C.A.A.F., June 26, 2009)
Review denied by United States v. Amazaki, 2009 CAAF LEXIS 1118 (C.M.A., Oct. 9, 2009)
Prior History: Headquarters, 8th Theater Sustainment Command. Donna M. Wright, Military Judge, Lieutenant Colonel James H. Robinette II, Staff Judge Advocate (pre-trial), Colonel James W. Herring, Jr., Staff Judge Advocate (post-trial).
child pornography, diskette, military, conduct unbecoming, notice, images, specifications, fair notice, images of child pornography, confinement, classified, sentence, regulation
Military & Veterans Law, Courts Martial, Pretrial Proceedings, Charges & Specifications, Military Justice, Judicial Review, Standards of Review, Trial Procedures, Pleas, General Overview, Military Offenses, Conduct Unbecoming Officers, Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Governments, Legislation, Vagueness, General Article, Convening Authority, Findings