BY ANDREW KALLOCH
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On Thursday, February 5, the Army Court of Criminal Appeals (ACCA) heard oral arguments in a case involving an appellant convicted of distributing 81 kilograms of cocaine, laundering almost a quarter-million dollars, and illegally transporting firearms while serving as part of the United States’ counter-narcotics effort in Colombia. The case, U.S. v. Staff Sergeant Daniel Ross, was presided over by Brigadier General Clyde J. Tate II, the Chief Judge of the Army Court of Criminal Appeals, who described the case as, “the most complex scheme to buy, sell, and move drugs,” he had ever seen before the ACCA. The event was hosted by the National Security and the Law Association.
The ACCA was created by federal statute to hear appeals in particularly serious cases involving Army personnel. It sits in three judge panels and possesses powers similar to federal appeals courts within the context of proceedings under the Uniform Code of Military Justice. The attorneys for both parties are normally officers of the Judge Advocate General corps, although defendants may on occasion retain civilian counsel. The ACCA is bound only by the decisions of two higher courts-the Supreme Court of the United States and the U.S. Court of Appeals for the Armed Forces.
BG Tate was joined on the panel by Colonel Paul P. Holden, Jr., a Senior Judge on the ACCA, and Lieutenant Colonel Gregory E. Maggs ’88, an Associate Judge on the ACCA. The major issues argued before the Court were whether the appellant, by not objecting at trial, had waived his right to appeal on the issue of corroboration and whether a “continuous course of conduct” had been established such that corroboration of each particular “transaction” was unnecessary for judgment. Lieutenant Colonel Jonathan Potter argued the case for the appellant (Lieutenant Colonel Mark Tellitocci on the brief). The Government was represented by Captain Mark Goodson (Major Lisa Gumbs on the brief). Because the proceeding was an official ACCA proceeding, the Massachusetts State Flag, which usually hangs to the right of the bench in Ames Courtroom was removed.
The appellant, SSG Ross, was the purported leader of conspiracy involving six other U.S. soldiers, several U.S. citizens, and one or more Colombian co-conspirators. His offenses occurred over a two-year period during which appellant was assigned as a mission supervisor for aerial electronic surveillance flights over Colombia. His unit’s mission was to assist the Colombian government and U.S. commanders suppress narcotics trafficking.
Acting pursuant to the conspiracy, appellant used U.S. military aircraft to smuggle a total of 81 kilograms of cocaine on flights from a Colombian Air Force base to an airfield on the Fort Bliss, Texas, military installation. The appellant sent a total of $244,000 in U.S. currency on military flights to Colombia at various times to pay for the cocaine and, on one occasion each, traded and received firearms in partial payment for cocaine. His distribution involved transactions in Florida, Louisiana, and other Texas locations. Appellant’s offenses were discovered after Drug Enforcement Administration electronic surveillance in Colombia revealed an Army sergeant had shipped 46 kilos of cocaine to El Paso, Texas, sold 26 of the 46 kilos, and needed to sell the remaining 20 kilos before returning to Colombia for duty.
During a question and answer session that followed the arguments, the Judges noted that ACCA proceedings are open to the public, with very rare exceptions in highly sensitive national security matters. The oral argument at Harvard required ID for entry, however that regulation, according to a member of the National Security and the Law Association, was dictated by the University, not the ACCA.
Most questions focused on the strategy of oral argument. BG Tate stated that while lawyers “need to have the ability to be flexible” and answer the questions the judges pose, they must also be able to turn the argument back toward their message. LTC Tellitocci added, “The trick is, you don’t know what a court will be interested in. Therefore, you have to focus on really small details and know the record as well as you can.”
Sarah Miller ’09, Co-President of the NSLA, contributed to this report.