On Tuesday CAAF granted review in the following Army case:

No. 17-0231/AR. U.S. v. Torrence A. Robinson. CCA 20140785. 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 hereby granted on the following issues raised by Appellant:

I. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO ADMIT CONSTITUTIONALLY REQUIRED EVIDENCE UNDER MILITARY RULE OF EVIDENCE 412(b)(1)(C).

II. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR THE SPECIFICATION OF CHARGE I, WHICH INVOLVED AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20.

And the following issue specified by the Court:

III. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SPC VM WAS TOO INTOXICATED TO CONSENT TO A SEXUAL ACT.

Briefs will be filed under Rule 25.

I don’t see an opinion on the Army CCA’s website (meaning the case was summarily affirmed).

Mil. R. Evid. 412 is the military’s rape shield rule, and it prohibits admission of evidence “offered to prove that any alleged victim engaged in other sexual behavior” (Mil. R. Evid. 412(a)(1)) and evidence “offered to prove any alleged victim’s sexual predisposition” (Mil. R. Evid. 412(a)(2)). The rule does, however, contain exceptions, including for:

[E]vidence the exclusion of which would violate the constitutional rights of the accused.

Mil. R. Evid. 412(b)(1)(C). This exception is the one at issue in this case and it is notable for three reasons. First, there isn’t a bright-line where exclusion of evidence violates an accused’s constitutional rights. Second, the exception is still actually in the rule (while a similar exception in Mil. R. Evid. 513 was ordered removed by Congress in the FY15 NDAA and then was removed by Executive Order 13696). Finally, the exception conflicts with the rule’s procedural requirements in a way that CAAF found constitutionally-problematic in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011), but has not been fixed.

CAAF also docketed a writ-appeal in a Navy-Marine Corps case (no opinion is available on the CCA’s website):

No. 17-0315/AF [sic]. Jeremy E. Hassett v. United States. CCA 201600118. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

In a published issued yesterday, in United States v. Dinger, __ M.J. __, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017) (link to slip op.), a three-judge panel of the Navy-Marine Corps CCA affirms a concept that I last noted here: Military retirement isn’t really retirement, it’s merely a change in duty status-

Notwithstanding Barker [v. Kansas, 503 U.S. 594, 605 (1992)] and its implications regarding the tax status of retired pay, we are firmly convinced that those in a retired status remain “members” of the land and Naval forces who may face court-martial. As the appellant was in a retired status during the offenses and the proceedings, he was validly subject to court-martial.

Slip op. at 8.

The appellant, Gunnery Sergeant Dinger, USMC (Ret.), pleaded guilty to two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of receiving, viewing, and possessing child pornography, in violation of Articles 80, 120, 120c, and 134, UCMJ.

All of the offenses were committed after Dinger entered a retired status following the completion of 20 years of enlisted service in the active component of the Marine Corps. The military judge sentenced Dinger to confinement for nine years and a dishonorable discharge, and the convening authority suspended all confinement in excess of 8 years in accordance with a pretrial agreement.

Writing for the panel Judge Rugh explains that:

By act of Congress, the appellant was subject to the UCMJ when he committed the offenses. Art. 2(a), UCMJ (“The following persons are subject to this chapter . . . . Retired members of a regular component of the armed forces who are entitled to pay. . . . [and] Members of the Fleet Reserve and Fleet Marine Corps Reserve.”).

Slip op. at 4 (link to Article 2).

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Audio of today’s oral arguments at the Air Force CCA is available at the following links:

United States v. Morales, No. 39018: Oral argument audio.

United States v. Hudson, No. 37249 (rem): Oral argument audio.

CAAF granted review in three cases last week. All are from the Army:

No. 17-0187/AR. U.S. v. Brian G. Short. CCA 20150320. 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 hereby granted on the following issue:

WHETHER GOVERNMENT COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY MADE IMPROPER ARGUMENT AFTER REPEATEDLY ELICITING INADMISSIBLE TESTIMONY.

Briefs will be filed under Rule 25.

The CCA’s opinion in Short is available here.

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. 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 hereby granted on the following issue:

WHETHER DILATORY POST-TRIAL PROCESSING VIOLATED APPELLANT’S DUE PROCESS RIGHTS AND WARRANTS RELIEF WHEN 782 DAYS ELAPSED BETWEEN DOCKETING AT THE ARMY COURT AND OPINION.

Briefs will be filed under Rule 25.

The CCA’s opinion in Gonzalez-Gomez is available here.

No. 17-0203/AR. U.S. v. David L. Jerkins. CCA 20140071. 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 hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ALLOWING A GENERAL OFFICER MEMORANDUM OF REPRIMAND INTO SENTENCING EVIDENCE WHERE THE REPRIMAND WAS ISSUED TWO WEEKS BEFORE THE COURT-MARTIAL AND CONTAINED HIGHLY PREJUDICIAL AND MISLEADING LANGUAGE.

Briefs will be filed under Rule 25.

The CCA’s opinion in Jerkins is available here.

CAAF also docketed a petition for a writ of prohibition in United States v. Katso (CAAFlog case page):

No. 17-0310/AF. Joshua Katso, Petitioner v. Christopher F. Burne, Lieutenant General, United States Air Force, in his official capacity as Judge Advocate General of the United States, and Katherine E. Oler, Colonel, United States Air Force, in her official capacity as Chief of the United States Air Force Government Trial and Appellate Counsel Division. CCA 38005. Notice is hereby given that a petition for extraordinary relief in the nature of a petition for writ of prohibition was filed under Rule 27(a) on this date.

Finally, CAAF docketed a writ petition in Bergdahl. As the seventh such petition by an increasingly desperate Bergdahl (whose trial is expected to occur this summer), its filing is just barely noteworthy.

This week at SCOTUS: The Court denied certiorari in Howell. The Solicitor General received an extension of time to respond to the cert. petition in Cox, et al. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on April 4, 2017, at the Notre Dame Law School, Notre Dame, Indiana. Additionally, on April 5, 2017, CAAF will hear oral argument at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week, both on March 28, 2017:

At 10 a.m.: United States v. Morales, No. 39018

Issue: WHETHER THE APPLICATION OF EXECUTIVE ORDER 13696 WHICH ELIMINATED THE CON-STITUTIONALLY REQUIRED EXCEPTION TO THE PSYCHOTHERAPIST-PATIENT PRIVILEGE WAS (1) AN ABUSE OF THE MILITARY JUDGE’S DISCRETION OR (2) DEPRIVED APPELLANT OF HIS RIGHT TO CONFRONT HIS ACCUSER, TO COMPULSORY PROCESS, OR TO DUE PROCESS OF LAW.

At 1 p.m.: United States v. Hudson, No.  37249 (rem)

Issues:
I. WHETHER THE MILITARY JUDGE IMPROPERLY ADMITTED EVIDENCE OF UNCHARGED ALLEGATIONS UNDER MILITARY RULES OF EVIDENCE 414 AND 404(B).

VI. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL: (1) FAILED TO PRESENT EVIDENCE OF APPELLANT’S GOOD CHARACTER DURING THE DEFENSE CASE-IN-CHIEF; (2) FAILED TO PRESENT EVIDENCE OF THE CHARACTER FOR UNTRUTHFULNESS OF THE ALLEGED CHILD VICTIMS (CHARGED AND UNCHARGED), AND; (3) OPENED THE DOOR TO EVIDENCE OF THE PRIOR TRIAL.

Disclosure: I am civilian appellate defense counsel in Hudson.

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 April 5, 2017.

A gracious reader directed me to a recent article authored by Dr. Melissa Hamilton in the Boston College Law Review entitled Constitutional Law and the Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder, 8 B.C.L. Rev. E. Supp. 34 (2017). In her article, Dr. Hamilton discusses the United States Court of Appeals for the Sixth Circuit’s August 2016 decision in Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (Justia). That decision is pertinent to military justice practitioners for a couple of reasons.

First, the Sixth Circuit held: “[w]e conclude that Michigan’s [Sex Offender Registration Act (SORA)] imposes punishment.” 843 F.3d at 705. This contrasts with CAAF’s 2014 decision in United States v. Talkington, 73 M.J. 212 (CAAFlog case page), where the Court opined that sex offender registration was “a penalty for committing a crime[,]” 73 M.J. at 215, but did not “constitute punishment for purposes of the criminal law[,]” 73 M.J. at 217.

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CAAF decided the Navy case of United States v. Sager, __ M.J. __, No. 16-0418/NA (CAAFlog case page) (link to slip op.), on  Tuesday, March 21, 2017. Reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concludes that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reverses the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remands the case for further consideration.

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

Aviation Ordnanceman Airman (E-3) Sager was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of one specification of abusive sexual contact in violation of Article 120(d) (2012). That statute criminalizes sexual contact in the same way that Article 120(b) criminalizes sexual acts. The Government charged Sager with two specifications, both related to a sexual encounter between Sager and his roommate. One specification alleged that the roommate was incapable of consenting due to intoxication, while the other alleged that the roommate was asleep, unconscious, or otherwise unaware. The members acquitted Sager outright of the specification implicating intoxication, but returned findings by exceptions to the specification implicating unawareness:

On appeal, Sager asserted that the specification was unconstitutionally vague because it failed to identify how the roommate was otherwise unaware, and also that the finding is factually and legally insufficient because the evidence indicated that the roommate was either asleep or unconscious. Sager’s argument was essentially that the statute’s enumeration of asleep, unconscious, or otherwise unaware creates three separate and distinct theories of criminal liability. The NMCCA, however, rejected this argument, concluding that:

asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.

United States v. Sager, No. 201400356, slip op. at 7 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.). From this conclusion the NMCCA then found that evidence of the roommate’s degree of intoxication or unconsciousness was relevant, and it affirmed the conviction. CAAF then granted review of two issues questioning both the meaning of the statute and the adequacy of the CCA’s review of the evidence:

I. In affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted appellant. Was this error?

II. Article 120(d), UCMJ, prohibits sexual contact on another person when that person is “asleep, unconscious, or otherwise unaware.” Despite these specific statutory terms, the lower court held that “asleep” and “unconscious” do not establish theories of criminal liability, but only the phrase “otherwise unaware” establishes criminal liability. Did the lower court err in its interpretation of Article 120(d), UCMJ?

In today’s opinion Chief Judge Erdmann and the majority answer the second issue in the affirmative, finding that the CCA erred in its statutory interpretation, but decline to answer the first issue, remanding it to the CCA for further review. Judge Stucky, however, would affirm the conviction.

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CAAF decided the Army case of United States v. Lopez, __ M.J. __, No. 16-0487/AR (CAAFlog case page) (link to slip op.), on Monday March 20, 2017. The court finds error and prejudice in the testimony of a witness that gave her opinion of the appellant’s guilt of the offense of indecent liberties with a child, and it reverses that conviction. But it finds the similar testimony of a second witness, whose testimony supported a conviction of rape, to be harmless.

Judge Stucky writes for the court, joined by all but Judge Sparks who concurs in part but dissents from the court’s reversal of the indecent liberties conviction.

A general court-martial composed of officer members convicted Sergeant (E-5) Lopez, contrary to his pleas of not guilty, of rape of his wife and of indecent liberties with a child by exposing his wife’s minor son to pornographic material, both in violation of Article 120 (2006). Lopez was sentenced to confinement for five years, total forfeitures, reduction to E-1, and a dishonorable discharge. The Army CCA summarily affirmed the findings and sentence. CAAF then granted review, specifying the following issue:

Whether the military judge erred by admitting the testimony of appellant’s wife, Mrs. CL, who testified that appellant’s apology to his stepson meant that appellant was “loosely admitting guilt” to criminal conduct, and by also admitting the testimony of Ms. NM, who testified that appellant “had probably raped” his wife because Mrs. CL had recently researched “spousal rape” on the internet.

Human lie detector testimony occurs when a witness gives “an opinion as to whether the [other] person was truthful in making a specific statement regarding a fact at issue in the case.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (CAAFlog case page) (citation omitted). In this case, Judge Stucky’s opinion considers whether human lie detector testimony was improperly admitted in two parts: the first reviewing the testimony of NM (CL’s daughter) to which there was no defense objection at trial, and the second reviewing the testimony of CL to which the defense counsel did object.

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This week at SCOTUS: The Solicitor General received extensions of time to respond to the cert. petitions in Sterling and Dalmazzi. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on April 4, 2017, at the Notre Dame Law School, Notre Dame, Indiana. Additionally, on April 5, 2017, CAAF will hear oral argument at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, March 21, 2017, at 1 p.m.:

United States v. Hoffman, No. 20140172

Issues:
ASSIGNMENT OF ERROR V. THE JUDGE CONDUCTED HIMSELF AND THE TRIAL IN A MANNER THAT UNCONSTITUTIONALLY DEPRIVED APPELLANT OF A FAIR TRIAL.

SPECIFIED ASSIGNMENT OF ERROR I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO PRESENT EVIDENCE OF APPELLANT’S VOLUNTARY ABSENCE FROM THE COURT-MARTIAL AS UNCHARGED MISCONDUCT UNDER MIL. R. EVID. 404(B) AND/OR R.C.M. 1001(B) AS EVIDENCE “DIRECTLY RELATED TO THE OFFENSES” AND AS EVIDENCE OF APPELLANT’S REHABILITATIVE POTENTIAL.

SUPPLEMENTAL ASSIGNMENT OF ERROR I. THE MILITARY JUDGE COMMITTED PLAIN AND PREJUDICIAL ERROR WHEN HE INSTRUCTED THE PANEL THAT IT COULD CONSIDER THE CHARGED SEXUAL MISCONDUCT FOR MIL. R. EVID. 414 PURPOSES [SEE UNITED STATES V. HILLS, 75 M.J. 350 (C.A.A.F. 2016)].

SUPPLEMENTAL ASSIGNMENT OF ERROR II. BY NOT MAKING SPECIAL FINDINGS ON SPECIFICATION 2 OF CHARGE II [WHEN THEY EXCEPTED OUT “ON DIVERS OCCASIONS”], [THE PANEL MADE IT SO] THIS COURT CANNOT CONDUCT AN ARTICLE 66, [UCMJ,] REVIEW AND, THEREFORE, MUST DISMISS THE SPECIFICATION [SEE UNITED STATES V. WALTERS, 58 M.J. 391 (C.A.A.F 2003)].

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 28, 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 will hear oral argument in one case this week, on Friday, Mach 24, 2017, at 10 a.m.:

United States v. Andrews, No. 201600208

Case summary:
In a mixed-plea case, a panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of sexual assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). The military judge also convicted the appellant, pursuant to his pleas, of one specification of unauthorized absence, one specification of flight from apprehension, one specification of making a false official statement, one specification of wrongful use of marijuana, and one specification of larceny, in violation of Articles 86, 95, 107, 112a, and 121, UCMJ, 10 U.S.C. §§ 886, 895, 907, 912a, and 121 (2012). The members sentenced the appellant to confinement for thirty-six months, reduction to pay grade E-1, forfeiture of $1,616.00 pay per month for thirty-six months, and a dishonorable discharge. The convening authority approved forfeitures of $1,566.90 pay per month for thirty-six months and the remainder of the sentence as adjudged.

Issue:
THE TRIAL COUNSEL AND ASSISTANT TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT TO THE MEMBERS. DURING CLOSING ARGUMENT THE TRIAL COUNSEL AND ASSISTANT TRIAL COUNSEL INVENTED ADMISSIONS, REPEATEDLY CALLED SN ANDREWS A LIAR, ACCUSED THE DEFENSE COUNSEL OF NOT BELIEVING THEIR CLIENT, MADE INFLAMMATORY ARGUMENTS, AND MISSTATED THE LAW. WAS THIS PROSECUTORIAL MISCONDUCT?

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Reese, No. 17-0028/CG (CAAFlog case page): Oral argument audio.

United States v. Hendrix, No. 16-0731/AR (CAAFlog case page): Oral argument audio.

CAAF decided the Marine Corps case of United States v. Bartee, __ M.J. __, No. 16-0391/MC (CAAFlog case page) (link to slip op.), on Wednesday, March 15, 2017. A majority concludes that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded, affirming the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for the court, joined by Judges Stucky and Ohlson. Judge Ryan concurs. Chief Judge Erdmann dissents.

CAAF granted review of a single issue:

The systematic exclusion of individuals by rank from the member-selection process is prohibited. Here, the military judge dismissed the panel for violating Article 25, UCMJ, but the convening authority reconvened the exact same panel the same day. Is this systematic exclusion based on rank reversible error?

Lance Corporal (E-3) Bartee demanded trial by a general court-martial composed of members with enlisted representation. The convening authority’s staff judge advocate prepared a draft convening order appointing only officers at paygrade 0-4 and above and enlisted personnel at paygrade E-8 and above, and the convening authority signed that order. But Bartee objected to the composition of the panel on the basis that it improperly excluded members of junior ranks.

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Audio of Wednesday’s oral arguments at CAAF is available at the following links:

United States v. Richards, No. 16-0727/AF (CAAFlog case page): Oral argument audio.

United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page): Oral argument audio.

CAAF review of capital sentences is mandatory. See Article 67(a)(1). The sentence to death for Master Sergeant Timothy Hennis (U.S. Army Ret.), for three specifications of premeditated murder, was affirmed by the Army CCA last October (discussed here) and the case was docketed at CAAF on March 2. On March 6 the court issued the following order:

No. 17-0263/AR. U.S. v. Timothy B. Hennis. CCA 20100304. It is ordered that the briefs of the Appellant and Appellee, and the reply of the Appellant, if any, in the above-captioned case may be filed electronically, but should counsel file said pleadings in a paper format, such pleadings shall conform in all respects to the requirements of Rule 37(a), Rules of Practice and Procedure, with the additional requirement that they be printed on 3-hole pre-punched paper. Additionally, the joint appendix shall be printed on 3-hole pre-punched paper and otherwise comply in all respects with Rule 24(f)(2). The briefs and the reply, if any, shall be divided into the following parts:

Part A shall set forth systemic issues and case-specific issues raised before the Court of Criminal appeals but not previously decided by this Court.

Part B shall set forth all issues not raised before the court below.

Part C shall set forth systemic issues previously decided by this Court but raised to avoid waiver; these issues may be listed without argument as an exception to Rule 24(a), but must cite pertinent authority to support the position taken.

All exhibits cited in the pleadings filed before this Court shall be included in the joint appendix.

It is the third capital case on CAAF’s docket in as many terms. Last term CAAF reinstated the Air Force CCA’s reversal of the capital sentence in United States v. Witt, 75 M.J. 380 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page), and the term before that it affirmed the capital sentence in United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015), cert. denied, __ U.S. __ (Oct. 3, 2016) (CAAFlog case page).

Hennis is one of only four prisoners on military death row, our #2 Military Justice Story of 2016. The others are Gray, Akbar, and Hasan. Witt is pending a sentence rehearing that could return him to death row. Loving’s capital sentence was commuted to life without the possibility of parole.

In this post I analyzed the Army CCA’s decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016). The CCA dissected CAAF’s opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), and identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 (and, presumably, 414):

First, we note the CAAF has previously found instructions that included propensity stemming from charged offenses to be harmless error. Schroder, 65 M.J. at 56-57. As discussed above, while the CAAF found the instruction to be error, the court found it harmless.

Second, we believe the intertwined nature of the conduct in Hills was central to the court’s assessment of prejudice. . . .

Third, when we look at a specification-by-specification analysis, we are unable to find prejudice to appellant when he was convicted of only one offense. . . . when the panel acquitted appellant of the three other specifications of sexual assault, any violation of the presumption of innocence as to those specifications resulted in no prejudice. . . .

Fourth, we are convinced beyond a reasonable doubt that even if no propensity instruction had been given, the results in this trial would have been the same. . . .

Finally, but least importantly, we find, to the extent that the military judge’s instructions were confusing, any confusion in this case was harmless. . . .

75 M.J. at 897-898 (emphasis in original).

On March 3 CAAF granted review:

No. 17-0183/AR. U.S. v. Alan S. Guardado. CCA 20140014. 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 hereby granted on the following issues:

I. WHETHER THE ARMY COURT INCORRECTLY FOUND THAT THE MILITARY JUDGE’S PANEL INSTRUCTIONS WERE HARMLESS ERROR IN LIGHT OF UNITED STATES v. HILLS.

II. WHETHER THE ARMY COURT INCORRECTLY RULED THAT AN OFFENSE DEFINED BY THE PRESIDENT CANNOT PREEMPT A GENERAL ARTICLE 134, UCMJ, OFFENSE, AND THAT PREEMPTION IS NOT JURISDICTIONAL IN SUCH CIRCUMSTANCES.

Briefs will be filed under Rule 25 on Issue I only.

CAAF will hear oral argument in the certified Army case of United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page), on Wednesday, March 15, 2017, after the argument in Richards. A single issue continues an interlocutory Government appeal of a military judge’s ruling suppressing evidence:

Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

Private (E-1) Gurczynski is charged with two specifications of wrongful possession of child pornography, and the suppressed evidence is the images that are the subject of the specifications. These charges are tangentially related to Gurczynski’s commission of sexual offenses with a child (and other offenses) to which he pleaded guilty in 2014 (CCA op. here). The images were discovered on devices seized from Gurczynski pursuant to a warrant that authorized a search for evidence of communications with the child victim.

In his ruling suppressing the images the military judge found that:

“[SA CJP] opened item 18 – the thumb drive – and saw several file names of videos normally associated with child pornography” and “[SA CJP] immediately suspected that these video files were child pornography.” (JA 167) (emphasis added). The military judge did not find SA CJP saw an image preview indicative of child pornography, nor did he find that SA CJP’s suspicion was based on an image preview. (JA 167).

The military judge also found that “[w]ithout seeking or obtaining a new search warrant, [SA CJP] opened one file and viewed it and determined that, based upon his professional experience in such matters, the video was child pornography.” (JA 167).

Appellee’s Br. at 10. The military judge determined that this action exceeded the scope of the warrant and suppressed the resulting images. The Army CCA affirmed. Gurczynski’s brief relies heavily on the military judge’s finding of fact as a basis to affirm the suppression.

The Army Appellate Government Division, however, asserts that the military judge got the facts wrong:

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