CAAF will hear oral argument in the Army case of United States v. Erikson, No. 16-0705/AR (CAAFlog case page), on Wednesday, March 1, 2017, at 9:30 a.m. The court will review a military judge’s exclusion of evidence that the alleged sexual assault victim made a prior (and ostensibly false) allegation of sexual assault against a different soldier; evidence that was offered to show the alleged victim’s motive to fabricate the allegation against the appellant:

I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Specialist (E-4) Erikson was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of two specifications of sexual assault and one specification of adultery in violation of Articles 120 and 134. The members sentenced Erikson to confinement for three years, reduction to E-1, and a bad-conduct discharge. The convening authority disapproved one of the sexual assault specifications and approved the adjudge sentence. The Army CCA summarily affirmed.

In advance of trial Erikson’s defense counsel sought a ruling on the admissibility of the alleged victim’s prior allegation. The defense theory was that at the time of both the prior allegation and the allegation against Erikson the alleged victim was in a failing relationship and the allegation was made to “attempt[] to avoid or resolve conflicts by making false accusations.” App. Br. at 5 (quoting record). “The defense [also] claimed that SPC BG [the alleged victim] knew she would receive favorable treatment each time she reported the sexual incidents, which gave her a motive to fabricate each report.” App. Div. Br. at 9. The other alleged perpetrator was acquitted of the allegation at a summary court-martial.

The military judge denied Erikson’s motion to admit evidence of the other allegation, concluding that “the ‘defense failed to establish any similarity of the assault involved with [the other alleged offender] in May 2013 to the facts of this case which allegedly occurred in 2014’ and that it would lead to a trial within a trial and the probative value would be substantially outweighed.” App. Br. at 6 (quoting record). The military judge based his ruling in part on Mil. R. Evid. 412, which is the military’s rape shield statue.

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CAAF will hear oral argument in the Army case of United States v. Feliciano, No. 17-0035/AR (CAAFlog case page), on Tuesday, February 28, 2017, after the oral argument in Hukill. The case presents two issues related to the appellant’s convictions of attempted sexual assault:

I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

Private (E-2) Feliciano was convicted of two specifications of attempted aggravated sexual assault in violation of Articles 80 and 120(c) (2006). Both specifications arose out of a sexual encounter in Feliciano’s barracks room with a female soldier who had been drinking. A third soldier witnessed the encounter and told Feliciano to stop, warning him that “if he continued along that they would definitely get him for rape, and that will be 25 to life and that people would probably also rape him in jail.” App. Br. at 4 (quoting record). Upon hearing this Feliciano ceased sexual contact with the alleged victim (who later returned to her own barracks room where she spent the night with the other soldier).

The members were not instructed on the defense of voluntary abandonment, which “is raised when the accused abandons his effort to commit a crime under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.” App. Br. at 10 (citations omitted). The members were instructed on the defense of mistake of fact as to consent, however they were instructed that any mistake needed to be reasonable. That is the standard for a general intent crime, but an attempt requires specific intent.

The Army CCA affirmed without considering either of the issues before CAAF. I noted the CCA’s opinion in this post for its suggestion that it might be proper to prohibit an accused from referencing sex offender registration in an unsworn statement.

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CAAF will hear oral argument in the Army case of United States v. Hukill, No. 17-0003/AR (CAAFlog case page), on Tuesday, February 28, 2017, at 9:30 a.m. The court will review the decision of the Army CCA issued in the wake of CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016 – that functionally held that Hills does not apply in a judge-alone trial because there is no risk that a military judge would apply an impermissibly low standard of proof.

Specialist (E-4) Hukill was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape and abusive sexual contact. Hukill was sentenced to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge. The two offenses involved separate alleged victims, and the prosecution was allowed to use evidence of each alleged offense as evidence of Hukill’s propensity to commit the other alleged offense. At the time of Hukill’s trial such use was believed to be consistent with Mil. R. Evid. 413. Last June, however, in Hills, a unanimous CAAF concluded that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit other charged offenses. But the Army CCA found that because Hukill was tried by a military judge alone, the improper use of the charged offenses for propensity purposes was harmless:

We are satisfied that his view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk that the military judge would apply an impermissibly low standard of proof concerning both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that the military judge did not hold the government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the military judge applied a lesser standard in adjudicating the charges against the appellant.

United States v. Hukill, No. 20140939, slip op. at 3 (A. Ct. Crim. App. Aug. 16, 2016) (op. on recon.) (link to slip op.). CAAF then granted review of two issues:

I. Whether, in a court-martial tried by military judge alone, the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

II. Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the court of military commission review were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Court of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.

The phrasing of the first issue is odd, considering that in Hills CAAF unambiguously held “that admitting charged conduct as M.R.E. 413 evidence was an abuse of discretion.” 75 M.J. at 353. This is because “neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.” 75 M.J. at 350. Hills stated a clear principle of law that is contrary to the ruling of the military judge in Hukill. Because there is no discretion to misapply the law, the military judge’s erroneous admission of charged offenses for propensity purposes was an abuse of discretion. The real issue is whether that error was harmless.

Yet in its brief in Hukill the Army Appellate Government Division re-litigates Hills despite the fact that the Government did not seek certiorari of CAAF’s decision.

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This week at SCOTUS: A petition for certiorari was filed last week in Cox, et al., v. United States, No. 16-1017. A copy of the petition is available here. The case raises the same questions as presented in Dalmazzi v. United States, No. 16-961 (CAAFlog case page), on behalf of six petitioners in whose cases CAAF vacated its grant of review in light of Dalmazzi. As noted here, the Court called for a response to the cert. petition in Dalmazzi. Additionally, Dalmazzi filed a supplemental brief (available here).

The Solicitor General filed the requested response in Howell. Finally, numerous amicus briefs have been filed in Sterling. Links to many of them are available in this press release from the First Liberty Institute, which supports Sterling. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, February 28, 2017, at 9:30 a.m.:

United States v. Hukill, No. 17-0003/AR (CAAFlog case page)

Issues:
I. Whether, in a court-martial tried by military judge alone, the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

II. Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the court of military commission review were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Court of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.

Case Links:
ACCA opinion
• ACCA opinion on reconsideration
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Feliciano, No. 17-0035/AR (CAAFlog case page)

Issues:
I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

Case Links:
ACCA opinion
Blog post: CCA opinion analysis
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview

Wednesday, March 1, 2017, at 9:30 a.m.:

United States v. Erikson, No. 16-0705/AR (CAAFlog case page)

Issues:
I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Case Links:
ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief

Followed by:

United States v. Ahern, No. 17-0032/AR (CAAFlog case page)

Issue: Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Case Links:
ACCA opinion
• Blog post: The Army CCA interprets Mil. R. Evid. 304(a)(2)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, March 2, 2017, at 10 a.m.:

United States v. Rucker, No. 20140845

Issue: Whether the evidence is legally and factually insufficient to support a conviction as to any specification or charge.

This week at the AFCCA: The Air Force CCA will here oral argument in one case this week, on Thursday, March 2, 2017, at 10 a.m.:

United States v. Miller, No. 38922

Issues:
I. Whether the military judge erred by admitting text messages as a “fresh complaint” and a prior consistent statement.

II. Whether the acquittal under R.C.M. 917 of the words “on divers occasions” in Specifications 2 and 3 of the Charge rendered the subsequent verdict to those specifications ambiguous under United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), thereby precluding this court from conducting its review under article 66(c).

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 24, 2017.

Update: The links are fixed.

The Coast Guard redesigned its website and, in the process, broke our links to the Coast Guard CCA’s website.

The new Coast Guard website is awful, emphasizing pictures and graphics over substance, and I can’t find any working links to the Coast Guard legal community’s pages.

If any reader has a working link to the Coast Guard CCA’s website, please post it in the comments or send me email at zack@caaflog.com

Thanks.

Here is CNN’s coverage of the military judge’s denial of SGT Bergdahl’s motion to dismiss the charges against him based on President Ttump’s campaign trail comments calling Bergdahl a “traitor” and saying that he should be shot. Bergdahl, as you probably know and CNN reports, “faces charges of desertion and endangering fellow soldiers after he disappeared from his base in Afghanistan in June 2009 and was held in captivity by the Taliban until May 2014,” until a prisoner swap returned him to US custody. Here is CNN’s link to a copy of the 8-page decision from Colonel Nance, the judge in the case. 

A reader brought my attention to a recent article published in the Washington University Law Review.  In his article, Unraveling Unlawful Command Influence, 93 Wash. U. L. Rev. 1401 (2016), Professor Monu Bedi, of DePaul University College of Law, offers a comparative analysis of how the military and civilian jurisdictions handle allegations of prosecutorial misconduct and contrasts that with the approach that military courts take when a commander, as opposed to the prosecuting lawyer, is the person who has committed the misconduct.  In evaluating each of these scenarios, Professor Bedi plots them along a continuum that values “systemic integrity” on one end and “individual autonomy” on the other.

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CAAF decided the Marine Corps case of United States v. Rosario, __ M.J. __, No. 16-0424/MC (CAAFlog case page) (link to slip op.), on Wednesday, February 22, 2017. The court affirms the Navy-Marine Corps CCA’s consideration of facts supporting sexual assault allegations that resulted in acquittals in the court’s review of a conviction of sexual harassment, concluding that the facts that form the basis for both acquittals and convictions are permissible considerations during a CCA’s review of convictions.

Judge Sparks writes for a unanimous court.

Sergeant (E-5) Rosario was convicted contrary to his plea of not guilty, by a special court-martial composed of members with enlisted representation, of one specification of sexual harassment on divers occasions in violation of Article 92. Rosario was also charged with three unlawful touchings in violation of Articles 120 and 128, however he was acquitted of all of those offenses. The members sentenced Rosario to reduction to E-1 and a bad-conduct discharge.

The basis for the sexual harassment charge was, at least, a series of inappropriate comments that Rosario made to a female subordinate. On appeal Rosario asserted that the evidence was insufficient to sustain a conviction of sexual harassment. The NMCCA rejected this challenge, concluding that the touchings forming the bases of the other charges (of which Rosario was acquitted) were evidence “offered in support of two separately charged offenses” – the sexual harassment offense and the 120/128 offense –  and that under such circumstances “an acquittal on one may not be pleaded as res judicata of the other.” United States v. Rosario, No. 201500251, slip op. at 4 (N-M. Ct. Crim. App. Jan. 28, 2016) (link to slip op.) (marks and citation omitted).

CAAF then granted review of two issues:

I. Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.

II. Whether the military judge erred when he instructed the members, “If based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Today’s opinion makes relatively short work of the first issue, and summarily rejects the second in light of the court’s opinion in United States v. McClour, __ M.J. __ (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).

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Today the Supreme Court called for a response to the cert. petition in Dalmazzi v. United States, No. 16-961 (CAAFlog case page). Prior to this action the case was scheduled for conference on March 3. The response is due on March 24.

From the Macon Telegraph:

A Robins Air Force Base airman was sentenced to life Wednesday for the premeditated murder of his pregnant fiancee and her unborn daughter.

Charles Amos Wilson III, 30, a support member of the 461st Aircraft Maintenance Squadron, will not be eligible for parole, according to statement released by the public affair’s office at the base.

A three-fourths majority of a military court-martial panel of 13 officers and enlisted personnel rendered the life-without-parole sentence.

Full story here. Our prior coverage here and here. H/t CD

CAAF decided the Army case of United States v. Nieto, __ M.J. __, No. 16-0301/AR (CAAFlog case page) (link to slip op.), on Tuesday, February 21, 2017. Considering the validity of a search authorization that was primarily based on military investigators’ experience-based assertions regarding how people use portable electronic devices, CAAF finds that the authorization lacked probable cause and reverses the appellant’s conditional pleas of guilty and the summary affirmation of the Army CCA.

Judge Ohlson writes for the court joined by all but Judge Stucky, who dissents.

Specialist (E-4) Nieto entered conditional pleas of guilty to numerous offenses that were discovered after he was accused of using a cell phone to surreptitiously record other soldiers using the toilet at Forward Operating Base Azizullah, Kandahar Province, Afghanistan. After Nieto’s apprehension, an Army Criminal Investigation Division (CID) special agent obtained authorizations to seize and search Nieto’s cell phone and also his laptop. The allegation did not involve the laptop, but the agent sought to include the laptop in the authorization based on his experience that “Soldiers using their cell phones to photograph things . . . back those up to their laptops . . .” Slip op. at 4 (quoting record). A second agent obtained a second authorization with the additional commentary that:

About 1024, 4 Jun 13, [Appellant] admitted to using his cellular telephone to view and record Soldiers utilizing the latrine while at FOB Azi Zullah [sic], Afghanistan. [Appellant] admitted to masturbating to the images on his cellular telephone of Soldiers utilizing the latrine.

It is my [i.e., SA Dunn’s,] experience as a CID Special Agent that persons who would use a portable digital media recorder would also transfer the media from a portable device to a computer station or storage device. Persons who view and record sexual acts often times store and catalog their images and videos on larger storage devices such as a computer or hard drive.

Slip op. at 5 (quoting record) (marks in original). Incriminating evidence was found on the laptop (leading to additional charges) but the cell phone “revealed nothing relevant to CID’s investigation.” Slip op. at 5 (marks omitted).

At trial Nieto unsuccessfully challenged the search authorizations as lacking probable cause to search the laptop, and his conditional pleas preserved his right to continue that challenge on appeal. The Army CCA summarily affirmed. CAAF then granted review of one issue:

Whether the military judge erred in denying Appellant’s motion to suppress the evidence seized from Appellant’s laptop computer

Today’s opinion finds no probable cause to seize the laptop based on “an insufficient nexus between Appellant’s cell phone and his laptop that can be inferred based on the particular facts presented to the military magistrate.” Slip op at 10 n.4. This conclusion echoes the conclusion in United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page), where a unanimous CAAF rejected the adequacy of an asserted intuitive relationship between a child enticement offense and the possession of child pornography as a basis for probable cause. But Judge Stucky, who was the author of CAAF’s opinion in Hoffman, dissents from today’s opinion and decries it as “a constellation of shortcomings with regard to the law of probable cause, the facts of this case, and the application of law to fact.” Diss. op. at 10.

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This week at SCOTUS: The cert. petition in Dalmazzi is scheduled for conference on March 3. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on February 28, 2017.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week, both on Wednesday, February 22, 2017:

At 10 a.m.: United States v. Robinson, No. 20150120

Issue: WHETHER SPECIALIST ROBINSON WAS DENIED HIS 6TH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE THAT WOULD HAVE DISCREDITED THE ALLEGED VICTIM’S CLAIMED LEVEL OF INTOXICATION AND ALSO FAILED TO OFFER EVIDENCE THAT THE ALLEGED VICTIM INVITED SPECIALIST ROBINSON INTO HER ROOM PRIOR TO THE ALLEGED SEXUAL ACTIVITY TAKING PLACE.

At 1 p.m.: United States v. Franks, No. 20140952

Issues:
I. THE MILITARY JUDGE REVERSIBLY ERRED BY RULING THAT SECOND LIEUTENANT FRANKS’ FEAR OF COMMITTING SUICIDE COULD NOT SUPPORT THE DEFENSE OF DURESS.

II. THE EVIDENCE WAS FACTUALLY AND LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR DESERTION, BECAUSE THE ALLEGED IMPORTANT SERVICE WAS SPECULATIVE AND NON-IMMINENT.

III. THE EVIDENCE WAS FACTUALLY AND LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR CONDUCT UNBECOMING AN OFFICER AND GENTLEMEN, BECAUSE THERE WAS NO EVIDENCE OF A GUILTY MIND, AND THE MILITARY JUDGE REVERSIBLY ERRED BY REFUSING TO INSTRUCT ON MENS REA.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 2, 2017.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA website shows no scheduled oral arguments.

Military jurisprudence concerning the proper victim to charge in an electronic theft case was cumbersome after CAAF’s 2014 decision in United States v. Cimball Sharpton, 73 M.J. 299 (CAAFlog case page).* In that case, the Court held that Cimball Sharpton had stolen from the Air Force when she misused her government purchase card – she had not stolen from the card-issuing bank or the vendors where the card had been illicitly used.

In its June 2016 decision, United States v. Williams, 75 M.J. 129 [Update: link corrected] (2016) (CAAFlog case page), CAAF lamented its “unfortunate choice of language in Cimball Sharpton” (75 M.J. at 134) and set about clarifying the applicable standard:

We reiterate, in the usual case of a credit card or debit card larceny, the “person” who should be alleged in the specification is a person from whom something was obtained, whether it is goods or money.

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CAAF granted review in two cases yesterday. The first grant is in a case that was certified by the Judge Advocate General of the Air Force back in November (discussed here):

No. 17-0086/AF. United States, Appellant/Cross-Appellee v. Patrick Carter, Appellee/Cross-Appellant. CCA 38708. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. THE AIR FORCE COURT OF CRIMINAL APPEALS DISMISSED THE CHARGE AND SPECIFICATIONS IN THIS CASE IN 2013 AND AGAIN IN 2016. BUT IT EXCEEDED THE EIGHTEEN-MONTH PRESUMPTION OF UNREASONABLE DELAY BEFORE DOING SO EACH TIME. HAS APPELLEE BEEN DENIED DUE PROCESS WHERE HE COMPLETED HIS SENTENCE TO THREE YEARS OF CONFINEMENT 158 DAYS BEFORE THIS COURT AFFIRMED THE LOWER COURT’S FIRST DISMISSAL OF THIS CASE ON AUGUST 2, 2013?

II. WHETHER APPELLEE’S PROSECUTION FOR CHILD ENDANGERMENT WAS BARRED BY THE STATUTE OF LIMITATIONS WHERE MORE THAN FIVE YEARS HAD ELAPSED AND APPELLEE WAS NOT BROUGHT TO TRIAL WITHIN 180 DAYS OF THIS COURT’S AFFIRMANCE OF THE LOWER COURT’S DISMISSAL OF THAT SPECIFICATION.

III. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, WAS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.

IV. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

V. WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. § 949b(b)(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPPELLATEMILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OF HIS DESIGNEE.

Briefs will be filed under Rule 25 on Issues I and II only.

The second involves a specified issue in a Coast Guard case:

No. 17-0143/CG. U.S. v. Ernest M. Ramos. CCA 1418. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER APPELLANT WAS ENTITLED TO ARTICLE 31(b), UCMJ, WARNINGS AT ANY POINT DURING HIS INTERROGATION BY CGIS, AND IF SO, WHETHER HE WAS PREJUDICED BY THE ADMISSION OF ANY OF HIS STATEMENTS.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here and reveals that:

On the morning of 8 April 2014, Appellant, stationed in Seattle, Washington, reported to his division officer that a civilian with whom his wife had a business had made threats against Appellant and his wife and had said he knew where Appellant worked. Appellant mentioned that the business involved recreational marijuana, but that his name was not on the paperwork of the business. Appellant’s division officer called upon his superior, the operations officer, to whom Appellant repeated his story. The operations officer called upon his superior, the executive officer, to whom Appellant repeated his story in the presence of the operations officer.

The executive officer took steps to notify security officials of the threat, including calling Coast Guard Investigative Service (CGIS). CGIS requested to talk with Appellant. Thereafter, Appellant was interviewed by CGIS agents, to whom he repeated his story with further details.

The military judge concluded, and the CCA affirmed, that the appellant’s interrogation by CGIS was not for a law enforcement or disciplinary purpose.

Audio of Wednesday’s oral argument before the NMCCA in United States v. Dinger, No. 201600108, is available here.