United States v. Horowitz

Quinn, Chief Judge

(concurring):

I agree generally with the principal opinion’s discussion of Point I. In the Holt and Varnadore cases it clearly appeared the court members were confused as to their sentence powers. See also my dissent in United States v Cleckley, 8 USCMA 83, 86, 23 CMR 307. No such confusion appears here. Plence, the question is whether the erroneous instruction adversely influenced the court in its deliberations. Considering all the circumstances, including the number and the nature of the offenses, the maximum permissible punishment, and the actual sentence adjudged, I am convinced the error did not confuse or adversely influence the court-martial in its deliberation on the sentence. See United States v Cummins, 9 USCMA 669, 26 CMR 449.

I also agree with the conclusion that the harm resulting from the other erroneous instructions was eliminated by the board of review’s reassessment of the sentence.