On 31 August 2007, AFCCA remanded the case of United States v. McDaniel to the convening authority due to an Emminizer issue.  United States v. McDaniel, No. ACM 36649 (A.F. Ct. Crim. App. Aug. 31, 2007) (per curiam).  Not until 13 March 2009 did the record return to the Air Force Court.  Seventeen days later, the Air Force Court issued its opinion in the case.  United States v. McDaniel, No. ACM 36649 (f rev) (A.F. Ct. Crim. App. March 30, 2009) (per curiam). In the opinion, the Air Force Court noted a probable Moreno violation, but concluded it was harmless beyond a reasonable doubt.  Id., slip op. at 2.   Strangest of all, the opinion noted that “this case came before this Court for further review with no additional assignments of error.”  Id.  That notation is strange because the court didn’t wait to receive a defense submission before deciding the case and the defense’s briefing deadline hadn’t run — in fact, it wasn’t yet close to running.

Yesterday, CAAF summarily reversed and remanded.  CAAF observed that “Appellant asserts, without contradiction by Appellee [who had filed a 10-day letter], that he was not permitted an appropriate opportunity to submit assignments of error to the Air Force Court of Criminal Appeals before that court decided his case.”  United States v. McDaniel, __ M.J. ___, No. 09-0642/AF (C.A.A.F. Oct. 18, 2009).  Citing United States v. Roach, 66 M.J. 410 (C.A.A.F. 2008), CAAF set aside the Air Force Court’s opinion and remanded the case to the Air Force Court “for a new review under Article 66, UCMJ, with assistance of counsel under Article 70, UCMJ.”

Comments are closed.