Back in May, GOP presidential nominee Donald Trump released a list (available here) of people that he would consider for nomination to the Supreme Court. On Friday he released an additional list (available here). A familiar name appears on that list: CAAF’s Judge Margaret Ryan.

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

This week at CAAF: The next scheduled oral argument at CAAF is on October 11, 2016.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Tuesday, September 27, 2016, at 10 a.m.: United States v. Keen, No. 20150168

Issue: WHETHER THE MILITARY JUDGE ACTED AS COUNSEL OR LEGAL OFFICER AS TO ANY OFFENSE CHARGED OR IN APPELLANT’S CASE GENERALLY OR FORWARDED CHARGES IN APPELLANT’S CASE WITH A PERSONAL RECOMMENDATION AS TO DISPOSITION WHEN HE WAS CHIEF OF MILITARY JUSTICE AT III CORPS?

Thursday, September 29, 2016, at 10 a.m.: United States v. Williams, No. 20130446

Issues:
I.A. WHETHER THE MILITARY JUDGE FAILED TO ADDRESS THE INCONSISTENCIES THAT AROSE WHEN APPELLANT PLEADED GUILTY TO SPECIFICATION 4 OF CHARGE VI (CONSENSUAL INDECENT ACTS) BUT WAS LATER FOUND GUILTY OF SPECIFICATION 1 OF CHARGE VI (RAPE BY FORCE) BASED ON THE SAME SEXUAL ACT?

I.B. WHETHER THE MILITARY JUDGE FAILED TO ADDRESS THE INCONSISTENCIES THAT AROSE WHEN APPELLANT PLEADED GUILTY TO SPECIFICATION 3 OF CHARGE IX (PATRONIZING A PROSTITUTE) BUT WAS LATER FOUND GUILTY OF SPECIFICATION 1 OF CHARGE VI (RAPE BY FORCE) FOR THE SAME SEXUAL ACT?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 7, 2016.

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’s website shows no scheduled oral arguments.

Having closed many of its military confinement facilities, the Air Force often relies on civilian jails and prisons to house military inmates. Two years ago, in the companion Air Force cases of United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), and United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page), CAAF held that the Article 12 prohibition against confining service members in immediate association with non-service member aliens applies even when a service member is confined in a civilian facility. But CAAF also held that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of that prohibition.

The Air Force responded to McPherson and Wilson by using solitary confinement to avoid co-mingling. That, predictably, led to other complaints. In United States v. Gay, 74 M.J. 736 (A.F. Ct. Crim. App. Jun. 12, 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016) (CAAFlog case page), the AFCCA held that solitary confinement (where the appellant was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed in response to a complaint of co-mingling in violation of Article 12, was not cruel and unusual punishment but is deserving of relief under the CCA’s Article 66(c) sentence-appropriateness power, and CAAF affirmed the CCA’s grant of sentencing relief under such circumstances.

Recently, however, the AFCCA denied relief to an appellant who suffered similar deprivations because “unlike the situation in Gay, Appellant in the present case—despite having mechanisms to do so—made no complaint regarding any condition of his confinement before raising the matter on appeal.” United States v. Garcia, No. 38814, slip op. at 8 (A.F. Ct. Crim. App. Aug. 16, 2016) (link to slip op.). This is not the only factor, however, as the CCA also finds that “nothing regarding Appellant’s confinement strikes us as especially unusual or egregious.” Id.

Yesterday CAAF granted review of an issue involving two lay opinions. Notably, the issue was specified by the court:

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943.  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 specified by the Court:

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.

Briefs will be filed under Rule 25.

I can’t find an opinion on the Army CCA’s website and so assume that the CCA summarily affirmed.

In United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) (CAAFlog case page), CAAF held that because sex offender registration is a collateral consequence of the conviction and not the sentence, a military judge did not err in instructing the members that they could disregard the appellant’s discussion of sex offender registration in his unsworn statement during the sentencing phase of the court-martial.

Talkington was a significant decision, but also a limited one. In particular, the unsworn statement was the only source of information about registration in Talkington, meaning that the issue was a fact not in evidence because “the ‘unsworn statement is not evidence.’” United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (quoting United States v. Breese, 11 M.J. 17, 23 (C.M.A. 1981)).

After CAAF decided Talkington, military judges began to give instructions that functionally told members to disregard registration when determining a sentence. However, in a recent unpublished decision the Army CCA suggests that military judges should go further and “limit unsworn statements to the matters allowed under the rules.” United States v. Feliciano, No. 20140766, slip op. at 9 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).

A footnote elaborates:

Consider the following: Were a military judge to prevent an accused from mentioning sex offender registration during an unsworn statement, such an action will almost certainly be harmless error. Since the panel may be instructed to ignore the information during deliberations, there cannot be prejudice from excluding in the first instance what the panel would be told to ignore in the second.

Id., slip op. at 9 n.4.

In United States v. Henegar, __ M.J. __ (N.M. Ct. Crim. App. Aug. 18, 2016) (link to slip op.), the NMCCA addresses the apparent tension between the Article 56 mandatory minimum punishment of dismissal or dishonorable discharge for a conviction of an attempt to commit certain sex offenses, and language in the Manual for Courts-Martial that states:

Any person subject to the code who is found guilty of an attempt under Article 80 to commit any offense punishable by the code shall be subject to the same maximum punishment authorized for the commission of the offense attempted, except that in no case . . . shall any mandatory minimum punishment provisions apply . . .

MCM, Part IV, ¶4.e.

Writing for the court, Senior Judge Palmer explains that the statute prevails and the mandatory minimum applies:

we cannot effect a Presidential directive which “clearly contradicts the express language of the Code,” even if it purports to “unambiguously give[] an accused greater rights than those conveyed by higher sources[.]” United States v. Davis, 47 M.J. 484, 486 (C.A.A.F. 1998). Indeed, the Rules for Courts-Martial acknowledge that a Congressional statute imposing a mandatory minimum must prevail, even if it precludes a court-martial from adjudging a lesser punishment to the benefit of the accused. See RULE FOR COURTS-MARTIAL 1002, MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) (“[E]xcept when a mandatory minimum sentence is prescribed by the code, a court-martial may adjudge any punishment authorized in this Manual”) (emphasis added).

Here, the appellant pleaded guilty to a specification of attempted sexual assault of a child, Article 120b(b), UCMJ, in violation of Article 80, UCMJ. Congress unambiguously provided in Article 56(b), UCMJ, that punishment adjudged for this offense “must include, at a minimum . . . [a] dishonorable discharge.” Article 56(b), UCMJ, is coherent within a statutory scheme (including Articles 18 and 56(a), UCMJ) that generally allows the President to set limits on punishment. But Congress’s specific mandatory minimum punishment statute prevails over statutes allowing the President to generally limit minimum punishment. We find the President’s statement in MCM, Part IV, ¶4.e, that no “mandatory minimum punishment provisions apply” to Article 80, UCMJ, clearly contradicts Article 56(b), UCMJ, for attempted sexual assault of a child (among other offenses). Thus, we conclude the mandatory dishonorable discharge term, as set forth by Congress, applies to the appellant.

Slip op. at 5-6 (marks in original).

Text of the changes to the MCM signed by the President on Friday (discussed here) are available at the following links:

Federal Register (PDF)

Word Document

PDF

CAAF granted review in three new cases last week:

No. 16-0484/AF. U.S. v. Christopher L. Oliver. CCA 38481. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following re-drafted issue:

WHETHER WRONGFUL SEXUAL CONTACT WAS A LESSER-INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The CCA did not address (seemingly because the appellant did not raise) the granted issue.

No. 16-0530/AF. U.S. v. Patrick A. Shea. CCA S32225. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN, OVER APPELLANT’S TIMELY OBJECTION, THIS CASE WAS ASSIGNED TO A PANEL THAT DID NOT INCLUDE ALL THREE OF THE JUDGES FROM THE ORIGINAL DECISION.

II. WHETHER A REASONABLE OBSERVER WOULD QUESTION THE IMPARTIALITY OR INDEPENDENCE OF THE COURT OF CRIMINAL APPEALS AFTER WITNESSING THE REMOVAL OF JUDGE HECKER FROM THIS CASE ON REMAND FOLLOWING THE GOVERNMENT’S ALLEGATIONS THAT HER IMPARTIALITY HAS BEEN IMPAIRED BY THE DECISION OF THE JUDGE ADVOCATE GENERAL, WHO IS HIMSELF PART OF THE GOVERNMENT, TO ASSIGN HER TO PERFORM NON-JUDICIAL ADDITIONAL DUTIES WITHIN THE GOVERNMENT.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinon is available here but does not address the granted issues.

No. 16-0611/AF. U.S. v. Richard K. Price, Jr. CCA S32330. 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 said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FORCING APPELLANT TO ADMIT TO MISCONDUCT GREATER THAN WAS NECESSARY FOR A PROVIDENT PLEA.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The CCA analyzed and rejected the granted issue, concluding: “We find no abuse of discretion by the military judge in this case. The military judge was responsible for ensuring Appellant provided a proper factual basis for his plea. In this light, his questions were appropriate in determining whether Appellant’s use and distribution of various controlled substances on “divers” occasions was provident.” Slip op. at 3.

In an unpublished decision in United States v. Ahern, No. 20130822 (A. Ct. Crim. App. Aug. 24, 2016) (link to slip op.), a three-judge panel of the Army CCA interprets Mil. R. Evid. 304(a)(2) which states:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

At issue is the trial counsel’s closing argument that the appellant’s failure to deny sexual abuse of his step-daughter during a pretext phone call with the child’s mother was “because he is guilty.” This issue sparked a lot of discussion when I noted the CCA’s oral argument of the case in this TWIMJ post.

The CCA ultimately affirms the appellant’s child sex assault (and similar offense) convictions because the child’s mother “testified that appellant had repeatedly admitted to having sex with [the child],” the child herself gave “detailed testimony about his misconduct,” the appellant was not silent but rather called the mother’s allegations crazy, and “the same conversations that government counsel argued were evidence of guilt [] were argued by appellant as evidence of his innocence.” Slip op. at 3.

But before reaching that conclusion the CCA makes a first-impression interpretation of Mil. R. Evid. 304(a)(2) and concludes that:

Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation. Whether an accused is aware of an investigation should be determined using the same objective test as is used in the Article 31(b) context. Jones, 73 M.J. at 362 [(CAAFlog case page)].

Slip op. at 11.

The CCA’s analysis is reproduced after the break.

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Earlier this year, in the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), CAAF determined that it lacks jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. Article 6b(e) gives an alleged victim the right to petition a court of criminal appeals for mandamus to enforce various protections, but CAAF determined that the review ends at the CCA.

Subsequently, in  H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, __ M.J. __, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here), the Coast Guard CCA expanded Mil. R. Evid. 513 (the psychotherapist-patient privilege) to also include the psychotherapist’s conclusions (diagnoses) and resulting treatments. The Coast Guard court’s decision was issued under Article 6b(e), and I noted CAAF’s limited jurisdiction at the time, writing:

Another interesting twist is CAAF’s limited jurisdiction to review this decision. CAAF just recently determined that it does not have jurisdiction over Article 6b petitions. See EV v. United States & Martinez, __ M.J. __ (C.A.A.F. Jun. 21, 2016) (CAAFlog case page). However, the accused could seek a writ himself challenging the military judge’s application of the CCA’s decision, and that writ could even be sought directly from CAAF. See CAAF R. 4(b). Alternatively, the military judge could apply the CCA’s decision, the accused could be convicted, and CAAF could review the decision in the ordinary course of appeal. Cf. United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (CAAFlog case page) (CAAF declined an interlocutory challenge to the AFCCA’s reversal of a military judge’s suppression ruling, but then reinstated the suppression ruling on appeal after conviction).

The accused, however, didn’t file an original writ. Rather, he filed a writ-appeal with CAAF (petition discussed here).

Last Friday, CAAF ordered briefs on the question of whether it has jurisdiction to review the accused’s appeal:

No. 16-0678/CG. Thomas J. Randolph, Appellant v. HV., Appellee and United States, Respondent. CCA 001-16. On further consideration of the writ-appeal petition from the decision of the United States Coast Guard Court of Criminal Appeals rendered pursuant to Article 6b, Uniform Code of Military Justice, it is ordered that the Appellant and Appellee submit briefs on the following specified issue:

WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION OVER A WRIT-APPEAL PETITION FILED BY AN ACCUSED WHO IS SEEKING REVIEW OF A COURT OF CRIMINAL APPEALS’ DECISION RENDERED PURSUANT TO ARTICLE 6b(e), UCMJ.

It is further ordered that the United States be substituted for the military judge as a party respondent, that the United States submit a brief on Issue II in the writ-appeal petition and on the issue specified in this Order, that the Appellate Government and Appellate Defense Divisions of the Army, Navy-Marine Corps and Air Force are invited to submit amicus curiae briefs on the issue specified in this Order, that all briefs mentioned in this Order be filed on or before September 30, 2016, and that oral argument will be heard on October 11, 2016, as previously scheduled. Appellant, Appellee, and the United States will each be allotted 20 minutes to present oral argument.

Articles 120(b)(3)(A) and 120(d) prohibit sexual activity with a person who is incapable of consenting due to impairment by any drug, intoxicant, or other similar substance.

In recent decision in United States v. Newlan, No. 201400409 (N.M. Ct. Crim. App. Sep. 13, 2016) (link to slip op.), a three-judge panel of the NMCCA finds that a military judge erred when he defined impairment under Article 120 as:

“Impaired” means any intoxication which is sufficient to impair the rational and full exercise of the mental or physical faculties.

Slip op. at 8 (quoting instructions). This definition was drawn from language in the Manual for Courts-Martial that defines impairment under Article 111 (drunken or reckless operation of vehicle, aircraft, or vessel). See MCM, Part IV, ¶ 35.c.(6).

Writing for the panel, Judge Rugh explains that:

Article 120(b)(3)(A), UCMJ, does not prohibit engaging in sexual acts with a person who is drunk or impaired by alcohol. Put more plainly, mere impairment is no more the standard under Article 120(b)(3)(A), UCMJ, than the SAPR-perpetuated “one drink and you can’t consent” axiom is the standard. And litigants and military judges who fixate solely on the term “impairment” do so at their peril.

Instead, the statute establishes a required level of impairment. In other words, sexual acts are prohibited only when the person’s impairment rises to the level of rendering him or her “incapable of consenting to the sexual act.” Art. 120(b)(3)(A), UCMJ.

Slip op. at 10 (emphasis in original). By appropriating the Article 111 definition of impaired, “the military judge’s instructions failed to provide the members with an accurate, complete, and intelligible statement of the law.” Slip op. at 12.

The opinion is the latest in a number of recent decisions that reach the blindingly-obvious conclusion that intoxicated or otherwise impaired people can legally consent, despite popular misconceptions to the contrary (see our #9 military justice story of 2015).

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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 three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 11, 2016.

This week at the ACCA: The Army CCA will hear oral argument in three cases this week. One of these arguments, on Friday, will occur at Boston University School of Law:

Wednesday, September 21, 2016, at 10 a.m.: United States v. Sosa, No. 20140869

Issues:
I. WHETHER THE MILITARY JUDGE’S FAILURE TO PROPERLY INSTRUCT ON THE ELEMENTS OF AGGRAVATED ASSAULT WAS HARMLESS BEYOND A REASONABLE DOUBT?

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS THE HIV STATUS OF SPC SS BECAUSE ITS PREJUDICIAL EFFECT OUTWEIGHED ITS PROBATIVE VALUE AND BECAUSE THE GOVERNMENT WAS UNABLE TO PRODUCE A POSSIBLE ALTERNATIVE SOURCE OF SPC SS’S HIV?

Wednesday, September 21, 2016, at 1 p.m.: United States v. Mazzie, No. 20140923

Issues:
THE ASSIGNED ERROR: WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO HIS SUBSTANTIAL RIGHT TO DUE PROCESS WHERE TRIAL COUNSEL FAILED TO DISCLOSE THE FACTS OF AN ARMY REGULATION 15-6 INVESTIGATION OF A KEY GOVERNMENT WITNESS PRIOR TO TRIAL, IN VIOLATION OF BRADY V. MARYLAND AND RULE FOR COURTS-MARTIAL 701.

THE SPECIFIED ISSUE: WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE AT TRIAL WHEN HIS COUNSEL FAILED TO INVESTIGATE POTENTIAL IMPEACHMENT EVIDENCE OF GOVERNMENT WITNESSES, FAILED TO UTILIZE ANY IMPEACHMENT EVIDENCE ON CROSS-EXAMINATION OF GOVERNMENT WITNESSES, AND  FAILED TO FURTHER INVESTIGATE THE ARMY REGULATION 15-6 INVESTIGATION INTO MS. DENISE LYONS OR FILE A MOTION TO COMPEL PRODUCTION OF THE AVAILABLE PARTS OF THE INVESTIGATION PRIOR TO TRIAL.

Friday, September 23, 2016, at 10:30 a.m., at Boston University School of Law: United States v. Bostik, No. 20140880

Issue: IN DENYING THE DEFENSE’S MOTION TO SUPPRESS STATEMENTS, DID THE MILITARY JUDGE ERR WHEN HE FOUND THAT PRIVATE FIRST CLASS BOSTICK RE-INITIATED THE CID INTERVIEW AFTER HE INITIALLY INVOKED HIS RIGHT TO COUNSEL?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 7, 2016.

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’s website shows no scheduled oral arguments.

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals.

Yesterday CAAF granted review in a trailer case from the Army:

No. 16-0714/AR. U.S. v. Mattie L. Brown. CCA 20140346. 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 ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

Today the President signed an executive order amending the Manual for Courts-Martial. The announcement – but not text of the actual changes – is available here.

This is the second such order this year (the first was Executive Order 13,730 of May 20, 2016, discussed here). It’s hard to predict the contents of this EO since there isn’t a clear list of proposed amendments still pending presidential action. However, there’s a pile of significant changes that are long overdue, like the Part IV materials for the current version of Article 120 (that took effect in June 2012) and a revision to Mil. R. Evid. 412 to incorporate CAAF’s opinions in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011), and United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2011), that found constitutional deficiencies with the current rule. These (and more) changes were labelled the residuum EO by the Joint Service Committee in 2015 (discussed here).

The Air Force CCA has joined the Army and Navy-Marine Corps CCAs in applying CAAF’s decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Like the Army court, the Air Force court finds that reversal is not required when charged offenses are considered for propensity purposes in a trial by military judge alone.

In Hills, a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

In United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), the ACCA concluded that CAAF’s decision in Hills does not apply in judge-alone trials.

In United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (discussed here), the NMCCA applied Hills to a trial with members, and set aside the findings.

Now, in United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (link to slip op.) (link fixed), the AFCCA reaches a similar conclusion to that reached by the ACCA in Hukill, affirming sex offense convictions in a case where a military judge alone considered the charged offenses as propensity evidence.

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