At this rate, CAAF will be done issuing this term’s opinions before it’s heard all of the oral arguments. Just one month into oral argument season, CAAF today decided a third argued case. In United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. June 17, 2008), CAAF specified this issue:
WHETHER THE EVIDENCE ON THE ELEMENT OF SERVICE-DISCREDITING CONDUCT WAS LEGALLY SUFFICIENT WHEN: (1) THE SEXUALLY EXPLICIT CONTENT AT ISSUE INVOLVED VIRTUAL MINORS; (2) THE IMAGES OF VIRTUAL MINORS WERE VIEWED ON APPELLANT’S PRIVATELY-OWNED COMPUTER, AND (3) APPELLANT’S ACTIVITY WAS KNOWN ONLY TO LAW ENFORCEMENT PERSONNEL INVOLVED IN THE INVESTIGATION. SEE U.S. v. MASON, 60 M.J. 15 (2004), AND U.S. v. O’CONNOR, 58 M.J. 450 (2003).
Today, two days after hearing oral argument in the case, CAAF vacated the order granting review as improvidently granted. United States v. Brown, __ M.J. ___, No. 08-0260/AF (C.A.A.F. Oct. 17, 2008). In Supreme Court practice parlance, CAAF DIGged it.
On examination of the record, we have determined that the granted issue was based on an incorrect premise, namely that the evidence in the record of the sexually explicit content at issue involved only virtual minors. The record reveals, and the parties agree, that the record includes testimony that the sexually explicit content at issue includes depictions of actual minors.
Under these circumstances, the issue granted by this Court cannot be answered on the facts presented in this case. Upon further consideration of Appellant’s petition for review, we conclude that the record does not establish good cause for review . . . .