Marine Corps Sgt. Matthew W. Simmons wore parts of his uniform while participating in gay porn videos. Imprudent idea. But was it illegal?

In an unusual case, to say the least, the U.S. Navy-Marine Corps Court of Criminal Appeals has sided in part with Sgt. Simmons. The court this week set aside part of his guilty-plea convictions to charges of misusing the uniform. It seems wearing simply part of the official garb during a porn shoot does not, by itself, amount to misuse.

Here's the back story, according to the court's seven-page decision:

"(Simmons) was an active-duty bandsman. He took leave to appear in several commercial pornographic videos that involved sodomy with numerous other men, by his own account being paid $10,000.00 for his performances. Some of the videos included shots of him wearing his Marine dress blue coat with the Marine Corps device, decorations, and rank insignia affixed; others showed him wearing a Marine physical training jacket; and at one point he mentioned that he was a Marine. Out-takes from the videos were used to advertise the videos on a website, and one of those out-takes showed the (him) wearing the blue coat."

The porn, by itself, was not the problem. The uniform was. Sergeant Simmons, a baritone horn player, was charged with and ultimately pled guilty to violating uniform regulations, including the ban on making commercial use of the uniform.

The court concluded, among other things, that the incompleteness of what Sgt. Simmons wore and the totality of his performance could not be construed as looking like an official Marine endorsement of the porn activities. Said the court:

"We are also not satisfied, on the basis of this record, that the appellant’s statements or wear of uniform items may create an inference of service endorsement of the activities depicted. The appellant never wore a complete 'uniform,' so the general public could never receive 'visual evidence of the authority and responsibility vested in the individual by the United States Government.' He did not voice any Marine support for what he was doing or any service views on the propriety or impropriety of his conduct."

In what looks like a very significant victory for Sgt. Simmons, the court ordered a resentencing on a remaining charges, and appeared to rule out any punitive discharge.

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The United States government owes federal prison inmate Brandon Shane Gravatt as much as $324,004,801.68. Or so he says. Unfortunately for him, a federal judge doesn't agree.

Mr. Gravat identifies himself as a 'sovereign citizen' and thus not subject to U.S. laws. There is, evidently, a movement of like-minded individuals. So, in accord with his principles, Mr. Gravat claims the United States was made the trustee of an account created for his benefit and is now required to disburse to him the funds in that account. His Social Security number, according to this theory, is evidence of a contract under which the United States has borrowed money from him.

So Mr. Gravat filed a series of suits, through the U.S. Court of Federal Claims and U.S. District Court, seeking to get his money. Millions and millions and millions of dollars worth of his money. This week, U.S. District Judge Margaret M. Sweeney devoted an 11-page opinion to explaining why he won't get it.

Suffice it to say, Judge Sweeney concludes, that Mr. Gravat's complaints are "nonsensical."

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The Senate Judiciary Committee has scheduled a hearing that sounds rather like a thumbsucker but could prove entertaining. The title for the Oct. 5 hearing has blah-blah-blah written all over it: "Considering the Role of Judges Under the Constitution of the United States."

Which reminds Suits & Sentences of those academic treatises that begin with a title like "Toward a Theory Of..."

But check out the hearing witnesses: Supreme Court justices Antonin Scalia and Stephen Breyer. The two justices have shared many stages together and seem to have a good bantering relationship. This hearing won't make news, unless somebody veers wildly off script, but it might provoke thought.

Peter James Atherton has degrees in electrical and nuclear engineering, and he also has an intriguing claim to make: that he has a protected right to serve on a grand jury.

But in a resolution to a long-running case, U.S. District Judge Henry H. Kennedy knocked Atherton out of the box. Without, apparently, resolving the constitutional question, Judge Kennedy on Monday dismissed the seven-year-old lawsuit.

On April 9, 2001, Atherton had been sworn in as a D.C. Superior Court grand juror for a term scheduled to last 25 days. Two days later, following what appeared to be disagreements with his fellow grand jurors, he was removed.

The question is whether in April 2001, the court officers who removed Atherton should have known that they were violating Atherton's due process rights. David T. Ralston, Jr., and Benjamin R. Dryden of Foley & Lardner represented Atheron pro bono; at one point, getting the case brought all the way up to the D.C. Circuit Court of Appeals.

On Monday, Kennedy concluded that, given the state of the law a the time of Atherton's truncated grand jury service:

"even if a constitutional right exists in serving on a grand jury, defendants could not have reasonably known that their removal of plaintiff from the grand jury in April 2001 violated any clearly established statutory or constitutional rights of which a reasonable person would have known."

 

Judges misuse capital letters. See, e.g., how Supreme Court justices write of our "Nation." Or, consider the latest from U.S. District Judge James E. Boasberg, who writes in a decision rendered Friday:

"On or around June 6, 2011, Plaintiff Mark Freeman filed an incomprehensible Complaint naming scores of Defendants and mentioning everything from his New Jersey high school records to his decision to decline matching funds when running for President of the United States to a settlement conference in the Virgin Islands." 

No way should "Complaint" be capitalized, right?

Or, is Judge Boasberg correct and, say, U.S. District Judge Rosemary M. Collyer wrong when she wrote in a decision earlier in the week:

"This matter is before the Court on its initial review of plaintiff's pro se complaint and application to proceed in forma pauperis."

And what's all this then about the two judges differing, as well, in whether to capitalize "plaintiff"?" Suits & Sentences is so confused.

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It all started with a Gibson guitar strap.

And then, over time, the legal controversy now known as Kidwell v. Federal Bureau of Investigation et. al.  grew to encompass the FBI, the Department of Justice, the state of Florida, the Twentieth Judicial Circuit Court of Florida and a number of individual judges.

On Friday, U.S. District Judge Beryl A. Howell dismissed much but not all of the lawsuit brought by the unhappy plaintiff, Billy Kidwell.

As described by Judge Howell:

This lawsuit originated with the purchase of an allegedly defective Gibson Les Paul guitar and guitar strap by (KIdwell.) Unhappy with his purchase of this musical equipment, the plaintiff filed a prose lawsuit against the Gibson Guitar Corporation in state court in Florida.

The judge in that case apparently dismissed the suit on jurisdictional grounds due to the low amount in controversy... upon refiling his lawsuit in county court in Florida, the plaintiff also added the previous judge as a defendant in the new case. The plaintiff, however, concluded that the new judge who was assigned to his case...is also part of a “clique” of Florida judges and attorneys who conspire to 'fix' cases.  Accordingly, in the instant case, the plaintiff has brought suit against the Gibson Guitar Corporation, affiliated attorneys, Judge Duryea, and Florida judicial entities.

In addition, (Kidwell) is suing the Federal Bureau of Investigation and the U.S. Department of Justice for their failure to investigate or prosecute the “Gibson Guitar Criminals” and the “‘Political Clique’ of corrupt judges [who] were endangering the life of the plaintiff.

A McClatchy story today investigates how Congress messed  up when it rewrote the sexual assault portions of the Uniform Code of Military Justice.

The story delves into how the rewritten Article 120 provisions have confused prosecutors, confounded judges and conflicted with both the Constitution and logic. To get a flavor, here are some observations of the rewritten law offered by military judges:

One, Marine Corps Lt. Col. Raymond Beal II, called it 'horribly flawed.' Another, J.A. Maksym of the U.S. Navy-Marine Corps Court of Criminal Appeals, blasted it as 'poorly written, confusing and arguably absurd.' Yet another, Air Force Col. Don Christensen, called it 'almost incomprehensible.'

'If you had 100 monkeys with a typewriter, they'd probably come up with something like this,' Christensen declared during a 2009 aggravated sexual assault case.

Leicester Bryce Stovell says he is the biological father of millionaire basketball player Lebron James. Nice work if you can get it.

Mr. Stovell claims that LeBron and his mother Gloria James have spread lies about Stovell’s paternity, falsified the results of a paternity test, and made disparaging statements in an effort to silence him. Juicy!

Mr. Stovell is a graduate of Princeton and the University of Chicago Law School.

But this legal action goes no further. In a 21-page opinion worth reading by Miami Heat-haters and lovers alike, U.S. District Judge Colleen Kollar-Kotelly tosses Stovell's lawsuit.

Here is what Stovell alleged, as summed up by Judge Kollar-Kotelly:

In or about mid-March 1984, Stovell met Gloria James at a restaurant/bar in the District of Columbia called "DC Space."  After socializing for a few hours, Gloria James went home with Stovell, and they had sex. She allegedly told Stovell that she was a virgin. Early the next morning, Gloria James told Stovell that she had to return to Ohio. 

There then followed an alleged sequence of events that, well, just have to be read directly in the opinion. Suffice it to say, Stovell claims James falsified DNA test results and in other ways deceitfully denied Stovell's paternal claims. Besides all the missed dad-and-lad bonding opportunities, the judge writes, Stovell says he has "been deprived of commercial opportunities that he could take advantage of as the father of a basketball superstar."

Notes the judge, in explaining one of the multiple reasons for dismissing the case:

Apparently Stovell believes that companies are willing to pay him for being the father of LeBron James. However, any such recovery would be wholly speculative. Stovell also asserts that he suffered damages in the form of lost gifts that LeBron James would have given him and damage to his reputation or professional standing. These claims are also speculative and are not supported by facts alleged in the complaint.

** Turns out, the Blog of the Legal Times grabbed the rebound on this first, Wednesday night, and includes some reax.

The already estimable CAAFlog has now joined forces with the National Institute of Military Justice, with an eye toward creating what the editors intend to be one-stop shopping for military law issues. Check it out.

A federal judge Friday tossed out an intriguing lawsuit filed by Greenpeace, in which the environmental group accused Dow Chemical Co. of corporate espionage.

In a 20-page ruling, U.S. District Judge Rosemary Collyer concluded Greenpeace had not demonstrated any connection between Dow's alleged activities and any injury to Greenpeace.

The allegations themselves seem torn from a political thriller. According to Greenpeace's complaint, Dow hired a firm called Becket Brown International, Inc., which Collyer called "a now-defunct private security firm allegedly composed of former officers of the Secret Service and Central Intelligence Agency." Greenpeace alleged that the BBI operatives sought to surveil, infiltrate and steal confidential information from Greenpeace with the intention of tharting its environmental campaigns.

Among the alleged activities: dumpster-diving by a corporate agent, who sifted through Greenpeace garbage in search of useful information.

Greenpeace activists said they first learned of the alleged spying campaign as a result of a Mother Jones article in 2008.