This week at SCOTUS: Daniels filed this brief in opposition to the Solicitor General’s petition. In other news, the Solicitor General received a second extension of time to file the requested response to the petition in Richards, and the Court denied the cert. petitions in Livingstone and Camacho.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF will hear oral argument in one case this week, on Wednesday, October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah:

United States v. Rice, No. 19-0178/AR (CAAFlog case page)

Issue: Whether the double jeopardy clause of the Fifth Amendment requires dismissal of Appellant’s convictions.

Case Links:
ACCA opinion (78 M.J. 649)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 30, 2019.

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

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

CAAF will hear the first oral argument of the October 2019 Term in United States v. Rice, No. 19-0178/AR (CAAFlog case page), on Wednesday, October 16, 2019, at noon, at the J. Reuben Clark Law School at Brigham Young University in Provo, Utah. The court will review the Army CCA’s published decision that found a double jeopardy violation but did not give any remedy, with a single granted issue:

Whether the double jeopardy clause of the Fifth Amendment requires dismissal of Appellant’s convictions.

Colonel (O-6) Rice wrongfully possessed and distributed child pornography. The evidence of his crimes was strong; his wife discovered the materials and reported them to the police. He was eventually prosecuted in both federal court and at a court-martial for reasons that remain unexplained but that the Army CCA described as a “debacle which we are now compelled to review.” United States v. Rice, 78 M.J. 649, 651 (A. Ct. Crim. App. Dec. 18, 2018).

Rice’s misconduct was discovered in 2013. In 2014, he was indicted by a grand jury on two counts of violating 18 U.S.C. § 2252A, one alleging possession of child pornography and the other alleging receipt or distribution of child pornography. In 2015 – while the federal charges were proceeding to trial – charges based on the same misconduct were referred for trial by general court-martial, including three specifications of service discrediting conduct in violation of Article 134 (clause 2) for possessing and distributing child pornography.

After a jury trial, Rice was convicted of both civil offenses on May 6, 2016, but sentencing was deferred. Rice then moved to dismiss the court-martial charges on the basis of double jeopardy, arguing that they were a successive prosecution of one of the two civil offenses. The military judge denied the motion, and Rice entered conditional pleas of guilty (preserving his double jeopardy objection) on October 24, 2016, and was sentenced to confinement for five years and a dismissal. Rice then returned to District Court for sentencing on the federal civil offenses, where he also made a double jeopardy claim. The District Court agreed that the double jeopardy clause was violated and it dismissed the possession conviction on that basis. It did not dismiss the receipt/distribution conviction, and for that offense Rice was sentenced to imprisonment for 142 months (11 years, 10 months).

Rice renewed his double jeopardy objection to the court-martial prosecution on appeal, and the Army CCA agreed that a double jeopardy violation occurred. Specifically, the CCA concluded that Rice’s possession conviction in the District Court was legally duplicative of his court-martial convictions because his possession conviction under 18 U.S.C. § 2252A “necessarily proved every element of being a crime not capital under clause three of Article 134, UCMJ.” 78 M.J. at 654. Yet that conclusion turned on the CCA’s interpretation of the three separate clauses of Article 134 as constituting a single (and singularly broad) offense:

the government may not obtain two convictions at the same court-martial on two specifications that are identical save for what clause of Article 134 is alleged. An accused may be convicted only once for possessing child pornography under clauses one, two, or three for the same conduct. . . .

Clause three of Article 134 incorporates the entire federal criminal code. The three clauses of Article 134 are disjunctive, and therefore it does not matter for Blockburger purposes which terminal elements are alleged because all three may be alleged and only one need be proven in any given specification. See Williams, 78 M.J. at 546-47. Thus, under the unique circumstances of appellant’s two prosecutions, the elements of his District Court conviction for possession of child pornography were duplicated in each of his court-martial convictions for possession of child pornography. The government placed appellant in jeopardy twice.

78 M.J. at 654. Nevertheless, despite finding a double jeopardy violation the CCA granted Rice no relief on the basis that doing so would be an undeserved windfall:

appellant sought and received dismissal of the District Court possession count that caused a double jeopardy violation. Appellant’s motion to the District Court was predicated on the court’s inability to render a lawful sentence. Appellant, however, went beyond asking merely that no sentence be imposed, and sought dismissal of the possession count entirely. Once appellant secured dismissal of the possession count on grounds unrelated to his factual guilt or innocence, the United States was free to pursue other charges based on the same course of conduct.

Thus, while we agree appellant was subjected to jeopardy twice, we conclude he has already received his remedy and is not entitled to what the Supreme Court has described as an “unjustified windfall[].”

78 M.J. at 656 (citations omitted).

Read more »

Audio of the recent oral argument at the Air Force CCA in United States v. Lee, No. 39531, is available on the CCA’s website (here) and on our oral argument audio podcast (here).

Last month – in advance of the NMCCA withdrawing its opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (decision analyzed here and here) – the Air Force CCA issued a published decision in United States v. Ballard, __ M.J. __, No. 39440 (A.F. Ct. Crim. App. Sep. 30, 2019) (link to slip op.), in which the CCA rejected a constitutional challenge to court-martial jurisdiction over retired members. Writing for a three-judge panel of the CCA, Judge Lewis explained:

We conclude Appellant was undoubtedly a retired member of the regular Air Force entitled to retired pay at the time he was recalled to active duty for purposes of facing a court-martial. He committed all of the offenses to which he pleaded guilty while on active duty. We note our superior court has repeatedly upheld the exercise of court-martial jurisdiction in the face of challenges similar to one Appellant makes in this case. See, e.g., United States v. Sloan, 35 M.J. 4, 7 (C.M.A. 1992), overruled on other grounds by United States v. Dinger, 77 M.J. 447, 453 (C.A.A.F. 2018); Pearson v. Bloss, 28 M.J. 376, 378–80 (C.M.A. 1989); United States v. Hooper, 26 C.M.R. 417, 421–25 (C.M.A. 1958). We find the Congress acted well within the authority entrusted to them by the Constitution’s Make Rules Clause when they permitted court-martial jurisdiction of retired members of a regular component of the armed forces who are entitled to pay in Article 2(a)(4).

Slip op. at 7-8.

Read more »

Last week CAAF granted review in this Army case:

No. 19-0411/AR. U.S. v. Norman L. Clark, Sr. CCA 20170023. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID THE MILITARY JUDGE ERR IN APPLYING R.C.M. 914?

II. IF THE MILITARY JUDGE ERRED, UNDER WHAT STANDARD SHOULD THIS COURT ASSESS PREJUDICE?

III. WAS THERE PREJUDICE UNDER THE APPLICABLE STANDARD OF REVIEW?

Briefs will be filed under Rule 25.

R.C.M. 914 is the military’s version of the Jencks Act (18 U.S.C. § 3500), and it was last considered by CAAF in the interlocutory case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page), in which the court unanimously affirmed the trial-stage ruling of a military judge that stuck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation.

The Army CCA’s opinion in Clark is available here.

It’s time again for our annual tradition of end-of-term number crunching.

 

Part I: Overview

CAAF heard oral argument in 32 cases in the 2018 term, resulting in 30 authored opinions of the court, 1 per curiam opinion, and 1 summary disposition. The court also issued 1 per curiam decision without hearing oral argument (or even granting review), in McGriff. Summaries of each case, with links to CAAFlog case pages, are on the October 2018 Term page.

That number of oral arguments is well below average for the court over the prior ten years (average of 38.3 arguments per term). It’s also fewer than the 36 arguments heard last term, and much less than the 42 arguments heard the term before.

CAAF had a moderate summary disposition docket. By my count the court issued summary dispositions in 36 cases; a number that is about average (and includes the summary disposition of the writ petition in Hasan, which was heard at oral argument). That 36, however, includes the denial opinion in McGriff (while denials are not normally included in my count of summary dispositions).

Of the 30 authored opinions of the court:

  • Chief Judge Stucky wrote 7.
  • Judge Ryan wrote 6.
  • Judge Sparks wrote 6.
  • Judge Maggs wrote 6.
  • Judge Ohlson wrote 5.

The 32 cases heard at oral argument break down by service as follows:

  • Army: 20 (63%).
  • Air Force: 7 (22%).
  • Navy: 2 (6%).
  • Marine Corps: 2 (6%).
  • Coast Guard: 1 (3%).

I score the Government divisions as the winner in a whopping 25 of the 32 (78%) cases heard at oral argument. That’s by far the most lopsided Government win rate since we started calling it in the 2010 Term Stats; the next-best term for the Government divisions was the 2011 Term, at 23 of the 35 (66%) cases heard at oral argument.

 

Part II: Dissents

Of the 30 authored opinions of the term, 18 were unanimous (no separate opinions). The Government divisions prevailed in 15 (83%) of those 18 unanimous opinions.

An additional 2 cases (Haynes and Lewis) involved only separate concurring opinions, for a total of 20 authored opinions with no dissents (67% of the total of 30 authored opinions). The Government divisions prevailed in 17 (85%) of those 20.

The other 10 authored decisions produced a total of 12 separate dissenting opinions. Broken down by judge:

  • Chief Judge Stucky dissented 2 times and wrote 1 dissenting opinion (this includes his dissent in Navarette).
  • Judge Ryan dissented 1 time and wrote 1 dissenting opinion.
  • Judge Ohlson dissented 5 times and wrote 5 dissenting opinions.
  • Judge Sparks dissented 3 times and wrote 2 dissenting opinions (this includes his partial dissent in Frost).
  • Judge Maggs dissented 3 times and wrote 3 dissenting opinions.

6 cases drew just 1 dissenting vote (Hale, Cooper, Perkins, Hyppolite, Navarette, and Stout), and 4 cases drew 2 dissenting votes (Criswell, Tovarchavez, Gleason, and Frost).

Overall, the dissenters were equally split between siding with the Government divisions and the defense; there were a total of 14 dissenting votes in the 10 cases with dissents and the Government divisions got 7 of those 14 votes, as follows:

  • Chief Judge Stucky dissented 2 times, siding with the Government division in 1 of the 2 dissents.
  • Judge Ryan dissented 1 time, siding with the Government division.
  • Judge Ohlson dissented 5 times, siding with the defense in all 5 dissents.
  • Judge Sparks dissented 3 times, siding with the Government division in 1 out of the 3 dissents.
  • Judge Maggs dissented 3 times, siding with the Government division in all 3 dissents.

Another interesting statistic is the comparison of who wrote for the court compared with when there were dissents. In order of least-dissenters to most:

  • Judge Ryan wrote for the court in 6 cases, with dissent in 1 case.
  • Judge Ohlson wrote for the court in 5 cases, with dissent in 1 case.
  • Chief Judge Stucky wrote for the court in 7 cases, with dissent in 2 cases.
  • Judge Sparks wrote for the court in 6 cases, with dissent in 3 cases.
  • Judge Maggs wrote for the court in 6 cases, with dissent in 3 cases.

 

Part III: Individual Judge Statistics

Chief Judge Stucky wrote a total of 8 opinions this term: 7 opinions of the court and 1 dissenting opinion. A Government division won in all 7 opinions of the court that he authored. Chief Judge Stucky was with the majority in 29 (97%) of 30 cases with authored opinions. He voted for the Government division in 24 (80%) of those 30 cases, and he dissented from none of the Government divisions’ 23 victories in cases with authored opinions (I score his dissent in Navarette as siding with the defense).

Judge Ryan wrote a total of 9 opinions this term: 6 opinions of the court, 2 concurring opinions, and 1 dissenting opinion. A Government division won in 4 (67%) of the 6 opinions of the court that she authored. Judge Ryan was with the majority in 29 (97%) of 30 cases with authored opinions. She voted for the Government division in 24 (80%) of those 30 cases, and she dissented from none of the Government divisions’ 23 victories in cases with authored opinions.

Judge Ohlson wrote a total of 11 opinions this term: 5 opinions of the court, 1 concurring opinion, and 5 dissenting opinions. A Government division won in 2 (40%) of the 5 opinions of the court that he authored. Judge Ohlson was with the majority in 25 (83%) of 30 cases with authored opinions. He voted for the Government division in 18 (60%) of those 30 cases, and he dissented from 5 (22%) of the Government divisions’ 23 victories in cases with authored opinions.

Judge Sparks wrote a total of 8 opinions this term: 6 opinions of the court and 2 dissenting opinions. A Government division won in 4 (67%) of the 6 opinions of the court that he authored. Judge Sparks was with the majority in 27 (90%) of 30 cases with authored opinions. He voted for the Government division in 22 (73%) of those 30 cases, and he dissented from 2 (9%) of the Government divisions’ 23 victories in cases with authored opinions.

Judge Maggs wrote a total of 11 opinions this term: 6 opinions of the court, 2 concurring opinions, and 3 dissenting opinions. A Government division won in 5 (83%) of the 6 opinions of the court that he authored. Judge Maggs was with the majority in 25 (83%) out of 30 cases with authored opinions. He voted for the Government division in 26 (87%) of those 30 cases, and he dissented from none of the Government divisions’ 23 victories in cases with authored opinions.

 

Part IV: Civilian Counsel and the Appellate Defense Divisions

Civilian defense counsel argued 7 (22%) of the 32 cases argued at CAAF this term: (Forbes, Briggs, Smith, Gleason, Voorhees, Frost, and Hyppolite).

Of those 7 arguments by civilian counsel, the defense won in 3 (43%) (Briggs, Gleason, and Frost).

In cases argued by military appellate defense counsel, the defense won in 4 out of 25 (16%).

On the Government division side one civilian attorney argued one case (Briggs).

All 4 cases where military defense counsel argued and won were from the Army (Tucker, Tovarchavez, English, and Navarette).

The oral argument success rates for military defense counsel at each of the four appellate defense divisions was:

  • Army Appellate Defense: 4 out of 17 (24%).
  • Air Force Appellate Defense: 0 out of 4.
  • Navy-Marine Corps Appellate Defense: 0 out of 3.
  • Coast Guard Appellate Defense: 0 out of 1.

 

Part V: Certified and Specified Issues

CAAF heard oral argument in 3 cases with issues certified by a Judge Advocate General: Cooper, Perkins, and Hyppolite. Of those, 1 was from the Air Force, and 2 were from the Navy and Marine Corps.

The Government divisions won in all three.

CAAF also issued summary dispositions in two cases with certified issues: Collins and Daniels. Both were Mangahas / Briggs trailers. In both cases CAAF rejected the certified issues.

CAAF specified issues for oral argument in 2 cases: Hale and Stout. The specified issues were dispositive in one (Stout).

 

Part VI: The Courts of Criminal Appeals

Of the 32 cases heard at oral argument in the 2018 term, the CCAs were represented as follows:

  • 7 (22%) were from the Air Force CCA.
  • 20 (63%) were from the Army CCA.
  • 1 (3%) were from the Coast Guard CCA.
  • 4 (13%) were from the Navy-Marine Corps CCA.

One of those 32 arguments, however, one was the writ petition in Hasan that didn’t involve direct review of a CCA’s decision.

Of the 31 oral arguments involving review of a CCA’s decision:

  • The Air Force CCA was reversed in 1 out of 7 cases (14%).
  • The Army CCA was reversed in 6 out of 19 cases (32%).
  • The Coast Guard CCA was reversed in 0 out of 1 case.
  • The Navy-Marine Corps CCA was reversed in 1 out of 4 cases (25%).

CAAF also summarily reversed and remanded 8 CCA decisions. Of those 8 summary reversals:

  • 7 were from the Army CCA.
  • 1 was from the Navy-Marine Corps CCA.

 

Part VII: Extraordinary Relief

CAAF considered 18 petitions for extraordinary relief during the 2017 term. All but one were denied in one form or another.

The one not denied was the petition for a writ of habeas corpus in Collins, that CAAF granted.

 

Part VIII: A Preview of the 2019 Term

CAAF begins the 2018 term with 20 cases on its docket. That includes one capital appeal (Hennis) that was docketed in 2017 and in which CAAF’s review is mandatory. It also includes two certified cases (Armendariz and Easterly).

Other notable cases include CAAF’s grant of review in the Navy cases of Bess and Jeter (as a Bess trailer) with issues questioning whether a convening authority’s selection of members was improper due to the racial composition of the panels. The court also granted review in Jessie and Guinn (as a Jessie trailer) to consider a former policy of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, that prohibited prisoners convicted of child sex offenses from having any contact with children, including their own biological children.

The first argument of the term – next week at Brigham Young University, Provo, Utah – is in Rice and presents a double jeopardy challenge to the prosecution of an Army Colonel for the wrongful possession and distribution of child pornography. The Government prosecuted Rice in both District Court and by court-martial (in that order), and Rice may win dismissal of both cases.

Other recent grants can be reviewed in our CAAF Grants category.

CAAF’s schedule includes just 23 oral argument dates for the 2018 term. That’s fewer than the 24 scheduled argument days for the 2018 term (of which only 18 were used, though one was lost to inclement weather), the 30 scheduled argument days for the 2017 term (of which only 19 were used; one lost to weather), and the 27 scheduled argument days in the  2016 term (of which only 23 were used).

That schedule suggests that CAAF antiticaptes hearing about 38 oral arguments in the 2019 term. That number is average for the past decade, as shown by this chart from CAAF’s FY18 Annual Report:

Note: On this chart, the FY is a year greater than the term year (so FY18 covers the 2017 term)

As always, we will track and analyze the court’s activity as the term develops.

On July 31, a three-judge panel of the NMCCA issued an astonishing opinion in United States v. Begani, No. 201800082 (N.M. Ct. Crim. App. Jul 31, 2019) (link to slip op.), concluding that Articles 2(a)(4) and 2(a)(6) of the UCMJ – which apply court-martial jurisdiction to retired members of the regular components – violates the Due Process Clause’s guaranty of equal protection of the laws because it does not also apply court-martial jurisdiction to retired reservists.

I analyzed the decision in a pair of posts here and here, the latter of which called the opinion fundamentally flawed because reserve (non-regular) retirement is a pension while regular retirement is very much not; a significant distinction between reserve and regular retirees that justifies their different treatment under the UCMJ.

In this order issued last week, the NMCCA withdrew the opinion and announced en banc reconsideration:

Upon consideration of Appellee’s Motion for Reconsideration and Suggestion for En Banc Consideration, filed on 4 September 2019, it is, by the Court, this 1st day of October 2019,
ORDERED:

1. That the Motion is GRANTED. The Court En Banc will consider the case.

2. That the Court’s 31 July 2019 decision is hereby WITHDRAWN.

3. That no briefs or arguments will be accepted unless required by further order of the Court.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF (and the first of the 2019 term) is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 30, 2019.

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

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

On Monday – the last day of the 2018 term – CAAF granted review in this Marine Corps case:

No. 19-0376/MC. U.S. v. R. Bronson Watkins. CCA 201700246. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. A CONFLICT OF INTEREST EXISTS WHERE THE INTERESTS OF AN ATTORNEY AND DEFENDANT DIVERGE ON A MATERIAL FACTUAL OR LEGAL ISSUE, OR A COURSE OF ACTION. THREATS BY REGIONAL TRIAL COUNSEL AND A REGIONAL TRIAL INVESTIGATOR TOWARDS CIVILIAN DEFENSE COUNSEL CREATED A CONFLICT OF INTEREST BETWEEN CIVILIAN COUNSEL AND APPELLANT. DID THE MILITARY JUDGE ERR IN DENYING CIVILIAN COUNSEL’S MOTION TO WITHDRAW?

II. THE SIXTH AMENDMENT GUARANTEES AN ACCUSED THE RIGHT TO RETAIN COUNSEL OF HIS OWN CHOOSING. BEFORE TRIAL, AND AFTER HIS CIVILIAN COUNSEL MOVED TO WITHDRAW—CITING A PERCEIVED CONFLICT OF INTEREST—APPELLANT ASKED TO RELEASE HIS CIVILIAN COUNSEL AND HIRE A DIFFERENT COUNSEL. DID THE MILITARY JUDGE ERR BY DENYING THIS REQUEST?

III. DID THE LOWER COURT ERR IN RATIFYING THE MILITARY JUDGE’S DENIAL OF APPELLANT’S REQUEST FOR CONFLICT-FREE COUNSEL, WHERE IT: (A) FOUND THE REQUEST WAS IN “BAD FAITH,” BASED ON ALLEGED MISBEHAVIOR BY APPELLANT OCCURRING BEFORE THE RTC’S UNEXPECTED THREATS; AND, (B) TREATED THE MILITARY JUDGE’S FINDING THAT APPELLANT’S REQUEST FOR COUNSEL WAS “OPPORTUNISTIC,” AS A FINDING OF FACT INSTEAD OF A CONCLUSION OF LAW?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. It reveals that:

The appellant was represented by a civilian defense counsel, retired Marine Corps judge advocate Mr. W. After an angry off-the-record exchange between Mr. W and the Regional Trial Counsel, LtCol K, Mr. W moved to withdraw from the case and the appellant stated that he no longer wished to be represented by Mr. W. The military judge did not permit Mr. W to withdraw, and the appellant claims on appeal that Mr. W was encumbered by a conflict of interest.

Slip op. at 3. The CCA found no conflict of interest and affirmed.

Last Wednesday CAAF granted review in this Army case:

No. 19-0382/AR. U.S. v. Gerald R. Carter, Jr. CCA 20160770. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following assigned issue:

I. WHETHER TRIAL DEFENSE COUNSEL WERE INEFFECTIVE FOR FAILING TO INTRODUCE EXCULPATORY EVIDENCE IN THEIR POSSESSION.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO ORDER A MISTRIAL FOR THE CHARGES AND SPECIFICATIONS.

And the following personally asserted issue:

III. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY ADMITTING EVIDENCE OF HISTORICAL CELL-SITE LOCATION INFORMATION. See CARPENTER v. UNITED STATES, 138 S. Ct. 2206 (2018).

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The IAC issue is based on evidence that the appellant’s brother – not the appellant – committed the charged offenses, and the fact that the appellant’s military defense counsel did not introduce that evidence at trial. The mistrial issue (while not discussed in the CCA’s opinion) involves an intentional discovery violation by the prosecution that was exposed during the trial. The judicial error issue is the Grostefon issue related to the admission of cell-site information.

Disclosure: I represented the appellant in my personal capacity during review of his case by the Army CCA.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA’s website is unreachable.

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week on Monday, September 30, 2019, at 10 a.m.:

United States v. Lee, No. 39531

Issue:
Whether the military judge abused his discretion in refusing to give a defense-requested instruction that the panel could consider reasonable mistake of fact as to consent as a factor when evaluating whether appellant’s conduct was indecent.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, October 3, 2019, at 10:00 a.m.:

United States v. Nichol, No. 201800286

Case Summary: A general court-martial consisting of members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of forcible rape, in violation of Article 120(a)(1), UCMJ (10 U.S.C. § 920 (2012)), two specifications of sexual assault, in violation of Article 120(b)(1)(B), UCMJ (10 U.S.C. § 920), and one specification of rape, in violation of Article 120(a)(5), UCMJ (10 U.S.C. § 920). The members sentenced Appellant to 25 years’ confinement, reduction to paygrade E-1, total forfeitures, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged

Issues:
[I]. Did the military judge err in admitting over Defense objection AOAN D.B.’s out-of-court statement pursuant to Military Rule of Evidence 801(d)(1)(B)(i) and (ii)?

[II]. Did the Appellant waive objection on appeal to the military judge’s admission of Ms. D.R.’s out-of-court statement?

Disclosure: I represent the appellant in my personal capacity and will argue this case.

CAAF granted review in this Army case on Tuesday:

No. 19-0384/AR. U.S. v. Michael J. Guinn. CCA 20170500. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE ARMY COURT CONDUCTED A VALID ARTICLE 66 REVIEW WHEN IT FAILED TO CONSIDER APPELLANT’S FIRST AND FIFTH AMENDMENT CLAIMS EVEN WHILE ENTERTAINING HIS EIGHTH AMENDMENT CLAIMS.

II. WHETHER APPELLANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY A CONFINEMENT FACILITY POLICY THAT BARRED HIM FROM ALL FORMS OF COMMUNICATION WITH HIS MINOR CHILDREN WITHOUT AN INDIVIDUALIZED ASSESSMENT DEMONSTRATING THAT AN ABSOLUTE BAR WAS NECESSARY.

No briefs will be filed under Rule 25.

The Army CCA’s website is down, but the CCA’s opinion is available here.

The case is a trailer to United States v. Jessie, No. 19-0192/AR (grant discussed here). Jessie challenges a confinement policy of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children. The appellant challenged the application of the policy to him as a denial of his First and Fifth Amendment rights. The policy was changed after it was challenged.

This week at SCOTUS: The cert. petition in Briggs has been rescheduled and will not be considered at the Oct. 1 conference. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Friday, September 27, 2019, at 10:00 a.m.:

United States v. Ayalacruz, No. 201800193

Case Summary: A special court-martial consisting of officer members convicted Appellant, contrary to his pleas, of one specification of dereliction of duty, in violation of Article 92, UCMJ (10 U.S.C. § 892), one specification of simple assault, in violation of Article 128, UCMJ (10 U.S.C. § 928), and one specification of disorderly conduct, in violation of Article 134, UCMJ (10 U.S.C. § 934). The members sentenced Appellant to a reprimand, reduction to paygrade E-1, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged.

Issues:
I. Did the military judge violate Appellant’s constitutional protection against double jeopardy when he instructed the court members to revise the announcement of their findings?

[II]A. Did the court members acquit Appellant of both elements of simple assault in the second announcement of their findings through improper exception and substitution?

[II]B. Did the language substituted by the court members in the second announcement of their findings fail to state an offense?

CAAF granted review in two cases yesterday.

The first is this Navy case, in which the court ordered that no briefs be filed:

No. 19-0198/NA. U.S. v. Willie C. Jeter. CCA 201700248. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID THE CONVENING AUTHORITY VIOLATE EQUAL PROTECTION WHEN HE SHOWED A PATTERN OF CONVENING AT LEAST THREE ALL WHITE MEMBERS’ PANELS FOR GENERAL COURTS-MARTIAL, INCLUDED RACE AND GENDER IDENTIFIERS IN MEMBERS’ QUESTIONNAIRES, REMOVED FIVE MINORITY MEMBERS FROM APPELLANT’S ORIGINAL CONVENING ORDER, AND ULTIMATELY ISSUED A CONVENING ORDER CONSISTING OF ONLY WHITE, MALE MEMBERS FOR APPELLANT’S COURT-MARTIAL, WHERE APPELLANT WAS AN AFRICAN-AMERICAN OFFICER?

II. DID THE DEFENSE SHOW SOME EVIDENCE OF UNLAWFUL COMMAND INFLUENCE IN THE FORM OF COURT PACKING WHEN IT SHOWED THE CONVENING AUTHORITY REMOVED FIVE MINORITY MEMBERS AND REPLACED THEM WITH FIVE WHITE MEN, CONVENED A MEMBERS’ PANEL WITH ALL WHITE MEN IN THIS CASE AND AT LEAST TWO OTHER CASES WITH AFRICAN-AMERICAN ACCUSED, AND INCLUDED RACE AND GENDER IDENTIFIERS ON THE MEMBERS’ QUESTIONNAIRES?

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA’s opinion is available here. Based on CAAF’s order that no briefs be filed, the case looks to be a trailer to United States v. Bess, No. 19-0086/NA (grant discussed here).

The second is this Army case:

No. 19-0297/AR. U.S. v. Adrian Gonzalez. CCA 20160363. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following assigned issue:

WHETHER THE ARMY COURT ABUSED ITS DISCRETION BY REASSESSING THE SENTENCE AFTER DISMISSING THE MOST EGREGIOUS SPECIFICATION, AND OFFERING THE CONVENING AUTHORITY THE OPTION TO APPROVE AN EXCESSIVE SENTENCE FOR THE REMAINING SPECIFICATION IN LIEU OF A REHEARING.

And the following issue specified by the Court:

WHETHER APPELLANT WAIVED OR FORFEITED HIS OBJECTION TO THE ARMY COURT’S INSTRUCTIONS TO THE CONVENING AUTHORITY.

Briefs will be filed under Rule 25.

The Army CCA’s opinion (prior to remand) is available here, but I can’t find an opinion post-remand. The granted issue raises substantially the same question as is raised in United States v. Wall, No. 19-0143/AR (last noted here).

Back in May, CAAF granted review in this Army case:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following specified issue:

WHETHER, AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE THE CONVENING AUTHORITY MAY APPROVE.

Briefs will be filed under C.A.A.F. R. 25.

I noted the grant in this post.

Yesterday, CAAF asked for additional briefs on whether the issue it specified is ripe for review:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the briefs of the parties on the issue granted review on April 29, 2019, it is ordered that the parties file supplemental briefs on the following additional issue:

WHETHER THE GRANTED ISSUE IS RIPE FOR REVIEW BY THIS COURT AT THIS TIME.

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.