CAAF decided the Navy case of United States v. Andrews, __ M.J. __, No.17-0480/NA (CAAFlog case page) (link to slip op.), on Tuesday, May 22, 2018. Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, CAAF concludes that any improper argument by the prosecution in this particular case was harmless and affirms the decision of the Navy-Marine Corps CCA.

Judge Ohlson writes for a unanimous court.

Quartermaster Seaman Apprentice (E-2) Andrews pleaded guilty to fleeing apprehension, making a false official statement, wrongful use of marijuana, and larceny. But he pleaded not guilty to three sexual offenses. After a contested trial before members, Andrews was convicted of one of those three offenses: sexual assault of a person who was incapable of consenting due to impairment by alcohol.

The prosecution’s closing argument, however, crossed the line, and the Navy-Marine Corps CCA found that the trial counsel committed severe prosecutorial misconduct during that argument. Nevertheless, the CCA concluded that the misconduct did not prejudice Andrews. CAAF then granted review of a single issue questioning that no-prejudice conclusion:

The lower court found severe prosecutorial misconduct. Then it affirmed the findings and sentence, giving its imprimatur to the prosecutorial misconduct in Appellant’s case. Did the lower court err?

Judge Ohlson’s opinion for the unanimous CAAF affirms the CCA’s action, but only after a lengthy and unexpected analysis of why the issue was not waived by the failure of Andrews’ defense counsel to object to some of the improper arguments at trial. That analysis is unexpected because the question of whether the failure to object to improper argument waives, rather than merely forfeits, any error was not clearly raised by the granted issue in this case, but rather is clearly raised in a different case still pending before CAAF: United States v. Burris, No.17-0605/AR (CAAFlog case page) (argued – by me for Major Burris – on Thursday, March 22, 2018).

Nevertheless, the Navy-Marine Corps Appellate Government Division asserted waiver in its brief to CAAF and during oral argument (previewed here) (audio here), and CAAF rejects it.

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CAAF decided the Air Force case of United States v. Barker, __ M.J. __, No. 17-0551/AF (CAAFlog case page) (link to slip op.), on Monday, May 21, 2018. Reviewing a written statement from a child pornography victim that was admitted during the sentencing phase of a court-martial under Rule for Courts-Martial 1101A – the President’s implementation of the Article 6b right of an alleged victim to be reasonably heard – CAAF concludes that the statement was not admissible under that rule because the victim did not actually participate in the proceeding (and perhaps didn’t even know about the appellant’s prosecution). Nevertheless, the court concludes that the erroneous admission of the statement was harmless because the appellant pleaded guilty and was sentenced by a military judge alone, the defense sentencing case was weak, and the prosecution’s sentencing case was otherwise strong. Accordingly CAAF affirms the findings, sentence, and decision of the Air Force CCA.

Judge Ryan writes for the court joined by all but Chief Judge Stucky, who dissents (because he would find the issue waived by the pretrial agreement).

Airman First Class (E-3) Barker pleaded guilty, pursuant to a pretrial agreement, to possession and viewing child pornography. A general court-martial composed of a military judge alone sentenced Barker to confinement for 30 months, reduction to E-1, total forfeitures, and a bad-conduct discharge.

During the sentencing phase of the court-martial the prosecution offered an exhibit consisting of three victim-impact letters dated December 2011, January 2013, and September 2013. All of the letters pre-dated Barker’s offenses. The defense made numerous objections to admission of the letters, but the military judge admitted the exhibit in its entirety.

On appeal, the Air Force CCA considered the letters under two different rules: R.C.M. 1001(b)(4), which allows the prosecution to present evidence in aggravation, and R.C.M. 1001A, which implements a crime victim’s Article 6b(a)(4)(B) “right to be reasonably heard at . . . [a] sentencing hearing relating to the offense.” The CCA found (in a published decision analyzed here) that “[w]hile the Prosecution did not indicate whether they were offering the statements under R.C.M. 1001(b)(4) or R.C.M. 1001A(e), both the trial defense counsel and the military judge treated the Prosecution’s offer as a victim exercising her right to be reasonably heard under R.C.M. 1001A.” United States v. Barker, 76 M.J. 748, 754 (A.F. Ct. Crim. App. 2017). The CCA then found that the December and September statements “lacked any evidence that would have permitted the military judge to determine that they were authentic and, if authentic, relevant to Appellant’s court-martial.” 76 M.J. at 756. The January statement, however, “indicated that it was written by the victim of the ‘Vicky series’ child pornography, one video of which Appellant downloaded.” Id. at 756. Accordingly, the CCA found that the January statement was admissible under R.C.M. 1001A, but the December and September statements were not. Nevertheless, the CCA concluded that the improperly-admitted statements were harmless because “all three statements were from the same victim.” Id. at 757.

CAAF then granted review of two issues challenging the CCA’s conclusion that the January statement was admissible and the improper consideration of the other statements was harmless:

I. Whether the Court of Criminal Appeals erred when it held proper foundation had been laid to admit evidence in aggravation.

II. Whether the Court of Criminal Appeals improperly conducted a review of the prejudice resulting from the military judge’s erroneous admission of evidence in aggravation.

Writing for the majority, Judge Ryan concludes that the January statement was not admissible as a statement of a crime victim under R.C.M. 1001A (and does not address whether it might have been admissible as evidence in aggravation under R.C.M. 1001(b)(4) because that issue was not before the court). But the majority concludes that the erroneous admission of the statement was harmless.

Chief Judge Stucky dissents – even though he agrees with the majority’s conclusions that the statement was improperly admitted under R.C.M. 1001A but was harmless – because he finds that a term of the pretrial agreement served to waive this issue and precludes Barker from raising it on appeal. Accordingly, Chief Judge Stucky would would vacate the grant of review as being improvidently granted.

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This week at SCOTUS: The Solicitor General filed this brief in opposition to the cert. petition in Gray. 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 has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 23, 2018, at 10 a.m.:

United States v. Jesko, No. 20160439

Issues:
I. WHETHER THE MILITARY JUDGE IMPROPERLY APPLIED MIL. R. EVID. 413 UNDER UNITED STATES V. HILLS BY CONSIDERING CHARGED MISCONDUCT FOR CHARGE I, SPECIFICATIONS 2-4?

II. WHETHER THE MILITARY JUDGE IMPROPERLY APPLIED MIL. R. EVID. 413 UNDER UNITED STATES V. WRIGHT BY CONSIDERING UNCHARGED MISCONDUCT FOR CHARGE I, SPECIFICATIONS 2-4?

III. EVEN IF THE MILITARY JUDGE IMPROPERLY APPLIED MIL. R. EVID. 413 BY CONSIDERING CHARGED AND/OR UNCHARGED MISCONDUCT, WAS THE EVIDENCE SO OVERWHELMING THAT ANY ERROR DID NOT CONTRIBUTE TO THE FINDINGS OF GUILTY FOR CHARGE I, SPECIFICATIONS 2-4?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

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

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

Air Force Colonel Jeremy S. Weber recently published an article in the Cleveland State Law Review entitled, “Whatever Happened to Military Good Order and Discipline?” 66 Clev. St. L. Rev. 123 (2017).

Colonel Weber’s article starts by exploring the marked decline in the use of the Uniform Code of Military Justice’s “general article,” Article 134, Uniform Code of Military Justice (UCMJ), which criminalizes “all disorders and neglects to the prejudice of good order and discipline.” Id. at 153-156. Colonel Weber posits that commanders have been less willing to use the “general article” to punish offenders for several reasons.

First, the general article has never been perceived as particularly fair:

Its broad scope has long been recognized as the ‘most comprehensive and potentially most subject to abuse; hence its traditional British nickname, “the Devil’s Article.’”

Id. at 131 (citation omitted).

But, there may be another reason as well – a more fundamental one. Commanders may not be holding their subordinates to the “good order and discipline” standard because nobody really knows what that phrase means.

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CAAF’s decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015) (CAAFlog case page), was the #7 Military Justice Story of 2015 because a unanimous CAAF found the appellant’s conviction of aggravated assault (based on engaging in sexual activity without disclosing to his partners that he was HIV-positive) to be legally insufficient due to a no more than a 1-in-500 chance that the appellant would actually infect his partners with HIV. In so deciding, CAAF expressly overruled two significant cases addressing the issue. However, with only a citation to Canadian law, CAAF affirmed a conviction for the lesser included offense of assault consummated by a battery, explaining that:

Here, Appellant’s conduct included an offensive touching to which his sexual partners did not provide meaningful informed consent. See R. v. Cuerrier, [1998] 2 S.C.R. 371, 372 (Can.) (“Without disclosure of HIV status there cannot be a true consent.”). He is therefore guilty of assault consummated by battery

74 M.J. at 68.

Last month the Navy-Marine Corps CCA issued a published opinion in United States v. Forbes, __ M.J. __, No. 201600357 (N.M. Ct. Crim. App. Apr. 24, 2018) (link to slip op.), that applies Gutierrez to affirm “convicting a service member of sexual assault for failing to inform a sexual partner of his HIV status before engaging in an otherwise-consensual sexual act.” Slip op. at 4 (emphasis added).

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The Army CCA’s website is now accessible from the public internet.

A reader called my attention to military justice provisions in the House Armed Services Committee’s markup of the National Defense Authorization Act for Fiscal Year 2019 (H.R. 5515). The Committee’s report (dated today) is available here. The legislation as sent to the full House is available here. An excerpt containing just the military justice provisions (Title V, Subtitle D) in Word format is available here.

The legislation includes six military justice provisions:

Sec. 531. Minimum confinement period required for conviction of certain sex-related offenses committed by members of the Armed Forces.

Sec. 532. Punitive article in the Uniform Code of Military Justice on domestic violence.

Sec. 533. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces.

Sec. 534. Modification of Military Rules of Evidence to exclude admissibility of general military character toward probability of innocence in any offense not strictly related to performance of military duties.

Sec. 535. Improved crime reporting.

Sec. 536. Oversight of registered sex offender management program.

Two of these proposals are particularly bad.

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Over on Just Security Christopher Fonzone has a recent post that’s a mostly helpful summary and introduction to his longer American Constitution Society (ACS) Issue Brief entitled What the Military Law of Obedience Does (and Doesn’t) Do.  Allow me to differ with him on a few points based on my own recent analyses related to this topic (here and here), as well as my experience as a military lawyer.

Part of Mr. Fonzone’s post could cause serious misunderstandings.  Specifically, he says that military law “makes clear that members of the military have a dual obligation to both obey ‘lawful’ orders and disobey ‘manifestly’ or ‘patently’ illegal ones.”  Actually, military law requires disobeying of all unlawful orders, whether or not they are “manifestly” illegal or not. I think the confusion arises because of how a legal inference operates in military law.

Here’s what the Manual for Courts-Martial (an executive order authorized by 10 U.S.C. §836) says about obedience to orders in ¶14 b(2)(a)(i):

An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (Italics added)

Put another way, there’s an inference of legality for all but “patently” illegal orders.  That is not, however, the same thing as implying that even orders known to be illegal can be obeyed so long as they are not “manifestly” or “patently” illegal.  To the contrary, actual knowledge of the illegality would overcome the inference, and obligate the military member to disobey the order.

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Last year, in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), a unanimous court found no requirement to show prejudice in the case of an objected-to major change (functionally rendering it a structural error), and reversed a conviction of sexual abuse of a child. CAAF also explained that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense, and reversed a conviction of a novel violation of Article 134 that was intended to charge obstruction of justice but omitted elements of that enumerated offense.

CAAF’s decision left Reese convicted of making false official statements and marijuana offenses, and CAAF remanded the case to the Coast Guard court to reconsider the adjudged sentence. Reese had pleaded guilty to all of those offenses except for one specification of making a false official statement (he had contested the charges that CAAF reversed), and he was originally sentenced by a general court-martial composed of a military judge alone to confinement for five years, reduction to E-1, and a dishonorable discharge. On remand, the Coast Guard CCA reassessed the sentence and granted a huge reduction, affirming only confinement for three months, reduction to E-1, and a bad-conduct discharge (discussed here).

At that point, Reese could have petitioned CAAF for a second review, but he didn’t. Apparently, however, he wanted to, and his appellate defense counsel failed to act. On May 4th, the Coast Guard CCA issued this order denying Reese a writ of error coram nobis filed because:

Reese III [the sentence reassessment opinion] became final when, on 18 September 2017, Petitioner’s opportunity to file a petition for review by the CAAF expired without a petition being filed. Articles 67(b) and 76, UCMJ. On 23 February 2018, Petitioner, through new appellate counsel, filed a motion for this court to reconsider our decision in Reese III, which we denied. Petitioner then filed a motion for en banc reconsideration, which we again denied.

Petitioner now asks that we issue a writ of error coram nobis to set aside his reassessed sentence and remand for a sentence rehearing or, in the alternative, set aside the bad-conduct discharge. He bases this on alleged ineffective assistance of appellate counsel when, contrary to his stated desires, they failed to file a timely petition for review with the CAAF. He also requests oral argument.

Reese v. United States, No. 001-18 (C.G. Ct. Crim. App. May 4, 2018) (link to order).

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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 has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, the Army CCA will hear oral argument in two cases this week:

Wednesday, May 16, 2018, at 10 a.m.:

United States v. Mobley, No. 20160795

Issue: Whether the military judge committed plain error by not dismissing or merging Specification 3 of the Charge as multiplicous with Specification 2 of the Charge in light of United States v. Forrester.

Thursday, May 17, 2018, at 10 a.m.:

United States v. Wilson, No. 20160342

Issues:
Assignment of Error I. Whether the military judge committed plain error by permitting Dr. Kennedy to act as a human lie detector.

Assignment of Error III. Whether defense counsel were ineffective for failing to object to Dr. Kennedy’s inadmissible testimony.

Supplemental Assignment of Error I. Whether defense counsel was ineffective in failing to introduce medical records demonstrating that the charged offenses could not have taken place on 8 June 2007.

Supplemental Assignment of Error II. Whether defense counsel was ineffective in failing to introduce evidence that the basic noncommissioned officer course required appellant to reside in the barracks.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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

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

Members of reserve components are subject to the UCMJ, but only when actually performing reserve duty. For example, Article 2(a)(3) limits jurisdiction to:

Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

Notably absent is the time between periods of inactive-duty training. Such training typically occurs in four-hour blocks, with breaks during lunch and overnight (creating interesting jurisdictional questions when reservists commit misconduct during a break). Congress eliminated those jurisdictional gaps in the Military Justice Act of 2016, amending Article 2(a)(3) to specifically include:

(i) Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations.

(ii) Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.

(iii) Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations.

Sec. 5102, National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 Stat. 2894, 2895 (Dec. 23, 2016).

But back in January the Air Force CCA issued a published decision in a case involving the current rule. In United States v. Hale, 77 M.J. 598 (A.F. Ct. Crim. App. Jan 19, 2019) (link to slip op.), a three-judge panel explained:

This case is essentially about a reserve officer who committed travel fraud. The principal issue on appeal is Appellant’s status at the time of each offense and whether the court-martial had jurisdiction over each of the specifications for which Appellant was convicted. As a threshold matter, we find that the court-martial lacked jurisdiction over one of the larceny specifications, but had jurisdiction over the lesser-included offense of attempted larceny. We also modify part of the charged time-frame of a second larceny specification by exception and substitution.

The convictions relate to lodging reimbursements for periods when the appellant (a lieutenant colonel) stayed with relatives but created and submitted receipts for lodging expenses (in violation of regulations and despite the appellant incurring no actual expense). The jurisdiction issue, however, arises from the fact that it’s not clear when the appellant committed some of the misconduct; whether during a four-hour period of inactive-duty training or not.

On Wednesday CAAF granted review:

No. 18-0162/AF. U.S. v. James M. Hale. CCA 39101. 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 granted on the following issues raised by appellate defense counsel:

I. THE LOWER COURT FOUND AS A MATTER OF LAW THAT PERSONAL JURISDICTION DOES NOT EXIST OUTSIDE OF THE HOURS OF INACTIVE-DUTY TRAINING. THE LOWER COURT PROCEEDED TO FIND PERSONAL JURISDICTION EXISTED OVER APPELLANT BECAUSE HE WAS “STAYING” WITH HIS IN-LAWS. WAS THIS ERROR?

II. WHETHER THE LOWER COURT ERRED WHEN IT CONCLUDED THE MILITARY JUDGE CORRECTLY INSTRUCTED THE MEMBERS THEY COULD CONVICT APPELLANT FOR CONDUCT “ON OR ABOUT” THE DATES ALLEGED IN EACH SPECIFICATION

And the following issue specified by the Court:

III. WHETHER THE LOWER COURT ERRED IN CONCLUDING THE COURT-MARTIAL HAD JURISDICTION OVER SPECIFICATION 2 OF ADDITIONAL CHARGE I, AS MODIFIED TO AFFIRM THE LESSER INCLUDED OFFENSE OF ATTEMPTED LARCENY.

Briefs will be filed under Rule 25.

Monday’s daily journal has this entry:

No. 18-0228/AR. United States, and ST, Appellees v. Colby Morris, Appellant. CCA 20180088. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

The filing involves a petition for extraordinary relief in the nature of a writ of mandamus that was granted by the Army CCA last month, in United States and ST v. Lieutenant Colonel Shahan, Military Judge, and Morris, No. 20180088 (A. Ct. Crim. App. Apr. 18, 2018) (link to slip op. (on CAAFlog)).

Last year, in a case with a similar (but different in a significant way) procedural posture, CAAF ruled 3-2 that it lacks jurisdiction to consider a writ-appeal of a CCA’s action on an alleged victim’s Article 6b writ peition. See Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).

But this writ-appeal is different because the petition was brought by both the prosecution and the alleged victim; “pursuant to the All Writs Act, 28 U.S.C. § 1651 and Article 6b, Uniform Code of Military Justice, 10 U.S.C. § 806b.” Slip op. at 1 (emphasis added). So it’s a hybrid petition, and jurisdiction may exist under Article 66 (for the CCA) and Article 67 (for CAAF), and not merely under Article 6b.

The case also raises an interesting question about Mil. R. Evid. 412, the military’s rape shield rule.

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Yesterday CAAF summarily reversed in a Hills / Guardado trailer:

No. 18-0002/AR. U.S. v. Elmer F. Hoffmann III. CCA 20140172.

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that (1) Appellant did not waive the error resulting from the improper propensity instructions as we do not construe the failure to object to what was the settled law at the time as an intentional relinquishment of a known right, and (2) the error was not harmless beyond a reasonable doubt. Accordingly, it is, by the Court, this 7th day of May, 2018,

ORDERED:

That said petition is hereby granted on the following issues:

I. WHETHER APPELLANT WAIVED ANY ERROR RESULTING FROM THE MILITARY JUDGE’S IMPROPER PROPENSITY INSTRUCTION AT A TRIAL PRIOR TO THIS COURT’S OPINION IN UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE ARMY COURT INCORRECTLY PLACED THE BURDEN OF PERSUASION ON APPELLANT FOR THE THIRD PRONG OF THE PLAIN ERROR TEST IN VIOLATION OF THE CONSTITUTIONAL STANDARD THAT THIS COURT HAD ARTICULATED IN PLAIN ERROR CASES SINCE UNITED STATES v. POWELL, 49 M.J. 460 (C.A.A.F. 1998).

The decision of the United States Army Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing is authorized to the extent that the charges and specifications are not barred by the statute of limitations. See United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). See also United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998) (stating that the circuits are in agreement “that extending a limitations period before the prosecution is barred does not violate the Ex Post Facto Clause”).

(emphasis added). A footnote clarifies that the appellant’s name is spelled with two Ns (the CCA’s opinion uses only one N).

I last mentioned this case in this post where I first discussed a series of Army CCA decisions holding that the failure to object to improper argument waives any error. CAAF subsequently granted review of that issue in a number of cases, including in United States v. Burris, No.17-0605/AR (CAAFlog case page), which I argued before CAAF on March 22, 2018.

Yesterday’s summary disposition in Hoffmann does not directly answer the issue presented in Burris, however the court’s observation that the failure to object to settled law is not a waiver is important. It’s also consistent with CAAF’s waiver precedent; specifically United States v. Harcrow where the court observed that changes in the law after trial “opened the door for a colorable assertion . . . where it was not previously available.” 66 M.J. 154, 157-158 (C.A.A.F. 2009). I discussed Harcrow (and how I think it applies to a Hills issue) in this post in which I analyzed the Army CCA’s opinion in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017), pet. filed, __ M.J. __, No. 17-0592/AR (C.A.A.F. Sep. 14, 2017).

Additionally, while much of the recent waiver mania is based on the mere failure of defense counsel to object, the Supreme Court applies a very different test for waiver:

Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.

United States v. Olano, 507 U.S. 725, 733 (1993) (citations omitted).

On Friday CAAF denied two writ-appeal petitions:

No. 18-0167/NA. Charles M. Burleson, Appellant v. United States, Appellee. CCA 200700143. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is hereby denied.

No. 18-0180/MC. Luiji R. Pierre, Appellant v. United States, Appellee. CCA 201300257. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

I discussed the NMCCA’s decisions in these cases last month, in this post. Both decisions rejected retroactive application of CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

CAAF previously rejected a writ-appeal petition raising the same issue in the Air Force case of  Lewis v. United States, 76 M.J. 829 (A.F. Ct. Crim. App. Sep. 20, 2017) (discussed here), pet. denied, 77 M.J. 106 (C.A.A.F. Nov. 13, 2017).

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 has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, the Army CCA will hear oral argument in one case this week, on Friday, May 11, 2018, at 10 a.m.:

United States v. Manning, No. 20130739

Issues:
I. Whether the military judge misinterpreted the definition of “exceeds authorized access” in the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a) (Specification 13 of Charge II)?

II. Whether the evidence was legally and factually sufficient to sustain Appellant’s conviction for stealing, purloining, or converting the “USF-I GAL” (Specification 16 of Charge II)?

III. Whether the evidence was factually sufficient to sustain Appellant’s convictions for stealing, purloining, or converting items of a value of $1,000 or more (Specifications 4, 6, 8, 12, and 16 of Charge II)? (Update: This issue was removed in an amended notice of hearing)

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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

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