Article 32 Proceedings re: Documents Related to the Court-Martial of Specialist Timothy F. Canjar

RECORD OF PROCEEDINGS OF
COURT-MARTIAL
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( ) ( ) : RECORD OF TRIAL of .. ~ (b)~5, h{f) (L)-~ CANJAR,· TIMOTHY F .. ~ . SPECIALIST (E4) (Name:. Las~ First, ~iddle Initia/) . (Social Security Nuinber) (Rank) HHC, 320th MP B'n Camp Bucca, a.OOth· MP Bde U. S .. ARMY Iraq· (Unit/command Name) (Branch ofS8rvice) (Station or Ship) By GENERAL COO·RT-MARTIAL Convened by COMMANDER (Tit/e of Convening Authority) Coalition Land Forces Component. Corrimand· Third U.8~ Army .. U .. 8. Army Forces Central Cornrnapd (UnitlCommand of Convening Authority) Tried at .' Camp Doha, Kuwait APO AE 09304 on 15 November 2003 (Place or Places of Trial) (Date or Dates ofTrial) .. ..
INDEX RECORD
Article 39(a) Sessions:
On 15 November 2003 .R­1
Introduction of Counsel .. R­2
Challenges R­-­
Arr'aig'nment R­7
Motions. R­--
Pleas R­9
Prosecution evidence R­--
Defense evidence R­--
Instructions on findings R­--
Findings R­--
Prosecution evidence R­--
Defense evidence R­--
Sentence R­--
Appellate rights advisement R­--
Proceedings In revision. R­-­

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DO Form 490, MAY 00, Page 1
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1 'or luBtruct:Lo... a. to preparat:Lo.. at copte. at record, .ee back cover or appeJld:Lce. 13 ...d 14, JIC/t, 1995 2 It ot tor'
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DO Form 490, MAY 00, Page 3
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1 PROCEEDINGS OF A GENERAL COURT-MARTIAL
2 The military judge called the Article 39{a) session to order at Camp
3 Doha, Kuwait, at 1057, 15 November 2003, pursuant to the following
4 orders:
5
6 Court-Martial Convening Order Number 6, Headquarters, Coalition
7 Forces Land Component Command, Camp Doha, Kuwait, dated 3 July 2003.
8
9 [END OF PAGE]

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CORRECTED CO(---)
DEPARTMENT OF THE ARMY
COALITION FORCES LAND COMPONENT COMMAND
HEADQUARTERS THIRD UNITED STATES ARMY
UNITED STATES ARMY FORCES CEN"TRAL COMMAND
APOAE 09304
COURT-MARTIAL CONVENING ORDER 3 July 2003 ~ER 6
A general court-ma.rtial is hereby convened with the fol1o\ving members and'shall meet at
ARCENT IKuwait, unless otherwise directed:
*These members are excused when the accused requests to be tried by a panel consisting of enlisted arid officer memberS.
The following members are detailed to the court-martial when the accused requests enlisted members under Article 25(C), UeMJ:
:MEMBERS SGM SGM SGM SGM MSG
BY COMMAND OF LTG McKIERNAN:
Criminal Law NeOle
DISTRIBUTION:
Each Member Selected

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1 MJ: This Article 39(a) session is called to order. 2 TC: This court-martial is convened by Court-Martial Convening 3 Order Number 6, Headquarters, Third United States Army, Coalition 4 Forces Land Component Command, dated 3 July 2003, copies of which 5 have been furnished to the military judge, counsel and the accused 6 and which will be inserted at this point in the record. 7 The charges have been properly referred to this court for trial 8 and were served on the accused on 9 November 2003. 9 " The prosecution is ready to proceed with the arraignment in the
10 case of The United States versus Specialist Timothy F. Canjar. 11 The accused and the following persons detailed to this court are 12 present:
13 L~EUTENANT COLONEL M~L~TARY JUDGE;
14 CAPTAIN _ TRIAL COUNSEL; and ~(t)rZI
15 CAPTAIN ASSXSTANT TRIAL COUNSEL; h{t){t) -1­

16 MAJOR DEFENSE COUNSEL.
17 The members are absent.
18 Master Sergeant been detailed reporter for
19 this court and has been previously sworn..

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20 TC: All members of the have been detailed to this 21 court by Colonel members of the prosecution are 22 qualified and certified under Article 27(b) and sworn under Article 23" 42(a) Uniform Code of Military Justice. No member of the prosecution
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1 has acted in any manner which might tend to' disqualify us in this
2 ceurt-martial.
3 MJ: Thank .yeu. All right, Specialist Canjar yeu are currently
4 represented. by Majer _ She is yeur detailed military defense
5 ceunsel and she is previded to' yeu at no. expense to' yeu. Yeu also.
6 have the right to' request a different military lawyer to' represent
7 yeu and if that persen were reasenably available he er she weuld be
8 appe.inted to represent yeu also. free ef charge. If yeur request fer
9 anether military lawyer were granted, hewever, yeu weuld net have the
10 right to' keep the services ef Majer yeur detailed defense
11 ceunsel because yeu're nermally entit-led to' enly O.ne .military
12 ceunsel. Yeu ceuld ask her superiors to' let yeu keep yeur detailed
13 ceunsel, but YO.ur request weuld nO.t have to' be granted.
14 In additiO.n, yO.U have the right to' be represented by a
15 civilian lawyer. A civilian lawyer wO.uld have to' be previded by yeu
16 at no. expense to' the· gevernment. ·If YO.u are represerited by a
17 civilian lawyer, YO.u can also. keep YO.ur military lawyer O.n the case
18 to' assist YO.ur civilian lawyer, O.r yeu cO.uld excuse yeur military
19 lawyer and be represented O.nly by YO.ur civilian lawyer.
20 Do. yO.U understand that?
21 ACC: Yes, YO.ur Honer.
22 MJ: De yeu have any questiO.ns abeut your rights to' cO.unsel?
23 ACC: No., YO.ur HO.ner.
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1 MJ: By whom do you wish to be represented? 2
ACC: Major -b{C)-l.. 3 MJ: By Major _ alone then? ~(1){~\-L 4 ACC: Yes, Your Honor.
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5 MJ: Please enter your detail and qualifications Major_ 6 DC: Your Honor, I've been detailed to this case by Lieutenant
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7 Colonel RDC of Region VIII U. S Army Trial Defense 8 Service. Qualified and certified under Article 27(b) UCMJ, sworn 9 under Article 42(a) UCMJ. I have not acted in any manner which might
10 tend to disqualify me from this case. 11 MJ: Thank you. I too have been properly certified, sworn and 12 detailed to this court-martial. Counsel for both sides appear to 13 have the requisite qualifications and all personnel required to be 14 sworn have been sworn. Please announce the general nature of the 15 charges in this case. 16 TC: The general nature of the charges in this c~se is violation 17 of Article 92 UCMJ, failure to obey a lawful order; violation of 18 Article 93 UCMJ, dereliction of duty, four Specifications; violation 19 of Article 107 UCMJ, false official statement; violation of Article 20 128 UCMJ, assault consummated by a battery, four Specifications.
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21 These charges were preferred by First Lieutenant 22 and forwarded with recommendations as to disposition by 23 Lieutenant Colonel and investigated by Lieutenant
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1 Colonel The general nature of the additional
2 charges, violation of Article 134'UCMJ, obstruction of justice and
3 violation of Article 81 UCMJ, conspiracy to obstruct justice. These
4 charges were preferred by Major forwarded with
5' recommendat~ons as to disposition by Lieutenant. Colonel 4IIIIIIII
6 S~.
7 Your Honor, are you aware of any matter which might be a .
8 ground for challenge against you?
9 MJ: I am not. Does either side desire either to question me or
10 challenge me?
11 TC: No, Your Honor.
·12 DC.: The defense does not, Your Honor.
13 MJ: Were the additional charges investigated?
14 TC: Yes 'they were, Your Honor.
15 MJ: Okay, I just didn't hear. So the same Lieutenant Colonel
16 who did the original charges investigated these as well.
17 TC: That's correct, Your Honor.
18 MJ: Thank you.
19 TC: . Lieutenant colonelllllllll ~~
20 MJ: .And I'm sorry, did you all say you don't have any questions
21 or challenge for me?
22 TC: Yes Your Honor, we do not have questions.
23 MJ: And you don't either?
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DC: Do not.
MJ: Roger. I know of nothing that would be a ground for challenge against me. All right, Specialist Canjar, you have the right to be tried by a court consisting of at least five officer
I
members. They would be commissioned and or warrant officers. Also, if you request it you would be tried by a court consisting of at least one-third enlisted soldiers, but none of those enlisted soldiers would come from your company and none of them would be junior to you.
Do you understand what I've said so far?
ACC: Yes, Your Honor.
MJ: If you are tried by a court with members, the members will vote by secret written ballot and two-thirds of the members must agree before you could be found guilty of any of these offenses. If you were found guilty then two-thirds must also agree in voting on a sentence and if that sentence included confinement for more than 10 years, then three-fourths would have to agree. You also have the right to request a trial by military judge alone, and if approved there will be no court members and the judge alone will decide whether you are guilty or not guilty and if found guilty the judge alone will determine your sentence.
Do you understand the difference between trial before
members and trial before a military judge alone?
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1 ACC: Yes, Your Honor.
2 MJ: Do you understand the choices that you have then?
3 ·Ace: Yes, Your Honor.
4 MJ: _Major _ are you prepared to enter a choice of forum

. today? ~{,),.-z, ~(1){c)-t­
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6 DC: ·No, Your Honor, defense requests to defer choice of forum.
7 MJ: Very well.. So Specialis~ Canjar, I expect that you will
5&:-/I.--C­
8 continue to discuss your options with Major_and that at some
9 time prior to trial you'll notify the court and the gdvernment of
10 your choice as to how you wish to be tried. All right?
11 Ace: Yes, Your Honor.
12 MJ: The accused will now be. arraigned.
·13 TC: All parties to the trial have been furnished with a copy of
14 the charges. Does the accused want them read?
15 DC: No· thank you.
16 MJ: The reading may be omitted.

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1 TC: The charges are signed by First Lieutenant 2 II, a person subject to the Code as accuser; are properly sworn to 3 before a commissioned officer of the Armed Forces authorized to 4 administer oaths; and are properly referred to this court for trial 5 by Lieutenant Geheral David D. McKiernan, the Convening Authority. ( V.
~~i;~ ?,.t)-L 6 The additional charges are signed by Major~ , a person subject to the Code as accuser, are properly sworn 8 to before a commissioned officer of the Armed Forces authorized to 9 administer oaths; and are properly referred to this court for trial 10 by Lieutenant General David D. McKiernan, the Convening Authority. 11 MJ: Thank you. Before I ask for the accused's plea, I would 12 "note for the record that I asked the trial counsel to mark as an 13 Appellate Exhibit, Appellate Exhibit I which is entitled direction of 14 the convening authority and dated B November 2003. It specifically 15 states that Lieutenant Gen~ral McKiernan, the commander of Third Army 16 considered the recommendations of the Staff Judge Advocate and 17 directed that the charges and specifications against Specialist 18 Timothy F. Canjar be referred for trial by general court-martial
..,
19 convening order number six, this headquarters, dated 3 July 2003. 20 The reason that I asked the trial counsel to have that marked as an 21 Appellate Exhibit is that it is not clear from the refer"ral 22 documents, that is the charge sheet block 14, that the intent of the 23 Convening Authority was that the original charges be tried in
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·1 conjunction with the additional charges. I would note for the 2 record, however, that the charges and specifications pending against 3 Specialist Canjar on the 8th of November 2003 were i~deed the original
. 4 charges preferred against him on 13 July 2003 and the additional 5 charges preferred against him on the 27th of September 2003; and 6 therefore, I am convinced that the court has jurisdiction to hear all 7 of the charges and specifications against Specialist Canjar and that 8 it was the ~ntent of the Convening Authority to have them all tried 9 at one trial as opposed to a separate trial for the additional
10 charges. Major I expect that you'll look into that after 11 today and if you is an issue with regards to 12 defective referral then hear a motion for--motion to dismiss 13 for lack of jurisdiction.
\, (C)-1., ~ 1ft) (~)-2.
14 DC: Yes ma'am.
15 MJ: All right. , please rise.

16 .[Accused and counsel directed. ]
17 MJ: Timothy F. Canjar, how do you plead? Before
18 accepting your I advise you that any motions to dismiss or
19 grant any appropriate relief should be made at this time.
20 Major_ will speak for you.
21 DC: Your Honor, the defense requests to defer pleas and motions
22 and plea at this time.
23 MJ: please be seated.

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1 [The accused and counsel did as directed.]
2 MJ: All right. Prior to this . nt aya SeS~i held in
3 chambers, present were Major l.n~aPtal.n
4 and myself. In addition, Cap who is the defense counsel
5 for a co-accused and Captain who is the defense counsel
6 for another co-accused were also present. The primary purpose of
7 that 802 session was to develop trial dates for both motions and the
8 trial. I asked the defense counsel what motions they anticipated and
9 was informed that there are a couple of issues that will need
10 immediate litigation so';' that the train stops moving if it needs t,o.
11 The first of those is that the defense will raise a motion for a new
12 Article 32 investigation and a defective referral based on the fact
13 that the convening authority apparently ignored the recommendation of
14 the 32 investigating officer to dismiss four specifications against
15 Specialist Canjar. He apparently also disregar~ed the recommendation
16 17 to dismiss five specifications against Master sergean~and, "~ 01'}')j b (:,) {cJ-5 four specifications against S~aff Sergeant ~o that's the
18 first issue. The second issue is that the defense intends to request
19 today that the government detail an investigative assistant to the
20 defense te~to be cloaked with attorney-client privilege under
21 United States versus Toledo to provide investigation assistance here
22 in Kuwait and also apparently in CONUS, is that right?
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1 DC: Yes, Your Honor. And just for the record, Kuwait and Iraq,
2 Your Honor.
3 MJ: Okay. Obviously that has. not been $:.erv~f on thegQverrimentt'

1.;., ",
4 yet, certainly not ripe for me. Governme~t will decide whether or 5 not they're inclined to detail somebody to assist the defense and if 6 they don't, then it becomes ripe and I expect that we will litigate 7 that issue as to whether they are entitled to an investigative 8 assistant. At any rate, as to 'those two issues I expect to hear-­9 see the defense pleadings on those issues not later than the 24~ of
10 November. Government response not later than the 1st of December and 11 we will litigate those motions on the 3rd and 4ili of. December, here. in 12 Camp Doha, Kuwait. Also the government--excuse me, the defense 13 intends to serve a discovery request on the government today, that 14 the government anticipates being able to answer each issue in the 15 discovery request affirmatively, so I don't expect any issues, but to 16 the extent that there are any of those issues ripe for litigafion on 17 the 3rd and 4th of December we'll hear those~ that da¥ as well. Past 18 that the defense does anticipate raising a motion for' mUltiplicity 19 under Teeters and Blockburger and or an unreasonable mUltiplication 20) of charges under Quiroz and an Article 13 motion and possibly an 21 unlawful command inf~uence motion; though the defense has not done 22 the research on that to determine whether or not a basis lies for 23 that issue or not.
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1 As to any other motions, those that I've mentioned and any others
2 that you generate between now and trial, I expect to see the
3 pleadings not later than the 10th of December and to see the
4 government response not later than the 17th of December.
5 Government informed me that they desire to try the cases,
6 the co-accused cases in this order: United States versus tIIIIII
7 first, United States versus second, United States versus
8 Canjar third. And that they have seventeen witnesses flying from the
9 United States and that they have Iraqi witnesses that are not
10 permitted into Kuwait, so they anticipate the need for a bifurcated
11 trial, that is to hold part of the trial in Iraq to hear the
12 testimony of the Iraqi witnesses and part of the trial here in Camp
13 Doha to hear the remainder of the witnesses. Defense did indicate
14 that they anticipate requesting one or more witnesses from the United
15 States and to the extent that that is an issue then we may need to
16 li.tigate that prior to tria1. I have thus set the 12th of January
17 aside for motions if needed. Though in United States versus Canjar
18 in particular, it seems to me that even if there's an issue with
19 overseas witnesses, we can probably litigate that on the 20th of
20 January as opposed to the 12th of January. You all consider that.
21 The 20~ of January, I will hear the motions on mUltiplicity and
22 Article 13 and an unlawful command influence to the extent that one
23 lies and any other motions that are raised. We won't try the case of
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1 United States versus Canjar until 30 January beginning at 0900. It
.2 will continue through the weekend and I've set aside through the 4th
3 of February, which is .the following Wednesday. b{C)-s.: ~(1)(C)-~
4 Te: Your Honor, I know we have Master Serge~21
5 through 24; 25 through 28 is Staff Sergeant _ and you want to
6 skip a day?
7 MJ: We can if you·want.
8 TC: Well I'm just--you said the 30th thro~gh the 2nd, so that

13 MJ: Right, because we're not starting until 1300 on SUnday. 14 But that's a good point. For this record United
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15 will be tried 20 through 24 January---­16 DC: Twenty-one ma'am? 17 MJ: Right, but well .. And then United 18 states versus be tried on ~he 20th of January and then 19 again the 25th through the 29th and United States versus Canjar will be 20 tried on the 20th of January and then the 30th through the 4th. To the 21 extent that those dates slide, fine, but count on starting on the 22 30th • All right? 23 TC: Okay, thank you ma'am.
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