CAAF’s docket continues to rocket. On Friday, CAAF cleaned up a case that appears to be a Gogue trailer. United States v. Owens, __ M.J. ___, No. 7-0856/AR [sic] (C.A.A.F. Oct. 24, 2008) (summary disposition). On Tuesday, CAAF issued its second opinion of the court for the term.
Judge Stucky wrote for a unanimous court, overturning a published NMCCA decision dealing with post-trial processing on remand. United States v. Mendoza, __ M.J. ___, No. 08-0246/NA (C.A.A.F. Oct. 28, 2008). The issue is whether upon remand for a new action, the CA must obtain a new recommendation from the SJA and provide the defense with an opportunity to make R.C.M. 1105 and 1106 submissions before taking the new action.
CAAF drew a distinction between a a corrected action and a new action. The former doesn’t require a new SJAR and opportunity for defense submissions while the latter does, held CAAF. (Who nailed that outcome when we first discussed Mendoza here? Beloved CAAFlog commentator JO’C.)
In this case, NMCCA’s remand order didn’t authorize a corrected action but required a new one. CAAF held that the CA erred by taking that new action without a new SJAR or opportunity for defense submissions. CAAF remanded the case to NMCCA to determine whether Petty Officer Mendoza was prejudiced by that omission.