This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking two cases:
- Howell v. United States, No. 16-536 (resp. requested, due Dec. 23) (CAAFlog case page)
- Sterling v. United States, No. 16A353 (cert. pet. due Dec. 23) (CAAFlog case page)
This week at CAAF: CAAF will hear oral argument in four cases this week:
Tuesday, December 6, 2016, at 9:30 a.m.
United States v. Rosario, No. 16-0424/MC (CAAFlog case page)
Issue: Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.
United States v. Commisso, 16-0555/AR (CAAFlog case page)
Issue: Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.
Wednesday, December 7, 2016, at 9:30 a.m.:
United States v. Boyce, No. 16-0546/AF (CAAFlog case page)
Issue: The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority’s subsequent referral of charges unlawfully influenced by the threat to his position and career?
• AFCCA opinion
• Blog post: CAAF specifies an issue involving Air Force Lieutenant General Franklin
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page)
Issue [specified by CAAF on November 21 (discussed here)] : Whether the issues granted for review are moot where the record reflects that: Martin T. Mitchell took an oath purporting to install him as a judge of the U.S. Court of Military Commission Review (CMCR) on May 2, 2016; the Air Force Court of Criminal Appeals (AFCCA) issued an opinion in the underlying case with Judge Mitchell participating in his capacity as an AFCCA judge on May 12, 2016; and the President did not appoint Mitchell to the CMCR until May 25, 2016.
• AFCCA opinion
• Blog post: CAAF to review whether an appellate military judge can sit on both a CCA and the CMCR
• Blog post: CAAF grants oral argument to the Military Commissions Defense Organization as amicus in support of neither party in Dalmazzi
• Blog post: Potential mootness in Dalmazzi
• Appellant’s brief on specified issue
• Appellee’s (Government) brief on specified issue
This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 13, 2016.
This week at the AFCCA: The Air Force CCA’s website is inaccessible.
This week at the CGCCA: The Coast Guard CCA will hear oral argument in United States v. Bailey on Thursday, December 8, 2016, at 10 a.m.. The argument will occur in the Navy-Marine Corps Court of Criminal Appeals Courtroom at 254 Charles Morse St. SE, Washington Navy Yard, Bldg. 58, Washington, DC, 20374. The granted issues are:
I. A CRIMINAL STATUTE IS UNCONSTITUTIONALLY VAGUE IF A PERSON CANNOT REASONABLY DISCERN WHETHER THE CONTEMPLATED CONDUCT IS CRIMINAL. HERE, SN BAILEY WAS CONVICTED OF ENGAGING IN A SEXUAL ACT WITH LH WHEN SHE WAS “INCAPABLE OF CONSENTING DUE TO IMPAIRMENT” IN VIOLATION OF ART. 120(B)(3) OF THE UCMJ. THE LAW DOES NOT DEFINE WHAT LEVEL OF IMPAIRMENT RENDERS A PERSON INCAPABLE OF CONSENTING. IS THE STATUTE VOID FOR VAGUENESS?
II. THE MILITARY JUDGE MUST GIVE ALL NECESSARY INSTRUCTIONS THAT ARE PROPERLY REQUESTED BY THE PARTIES. HERE, THE MILITARY JUDGE REFUSED TO INSTRUCT THE MEMBERS ON A LEGALLY CORRECT DEFINITION OF “INCAPABLE” AS REQUESTED BY THE DEFENSE TO AVOID UNCONSTITUTIONAL VAGUENESS. THIS WAS ERROR.
The Court directs the parties to address the following:
1. The effect on the issues, if any, of United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016).
2. Whether the military judge, having denied the defense’s proposed instruction, should have given some other instruction on the subject.
3. Whether Pease affects the analysis of the sufficiency of evidence
This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.