This week at the Supremes: There aren’t any anticipated military justice developments at the Supremes this week, with the exception of a possible response for the SG to Loving’s cert petition.
This week at CAAF: Today marks the end of the first half of CAAF’s current term. Once CAAF posts Friday’s daily entry journal entries, we’ll take a quick statistical look at the current term. In more meaningful developments, CAAF will hear three oral arguments this week, including in the two cases for which Project Outreach arguments were scrapped due to “Snowmageddon.” (For those of you outside the D.C. area, “Snowmageddon” is what our local news outlets dubbed the unusually heavy snowfall we experienced this month.) This is an all-Naval week at CAAF. On Tuesday, CAAF leads off with argument in United States v. Serianne, No. 10-5001/NA. The certified issues in Serianne are:
I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT THE DUTY IMPOSED ON SAILORS BY CHIEF OF NAVAL OPERATIONS INSTRUCTION 5350.4C TO NOTIFY THEIR COMMANDING OFFICER OF AN ARREST BY CIVIL AUTHORITY FOR AN ALCOHOL-RELATED OFFENSE COMPELLED A TESTIMONIAL COMMUNICATION THAT WAS INCRIMINATING.
II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT NO EXCEPTION TO THE FIFTH AMENDMENT SELF-INCRIMINATION CLAUSE, INCLUDING THE REGULATORY EXCEPTION DEVELOPED IN CALIFORNIA v. BYERS, APPLIES TO THE REPORTING REQUIREMENT IN CHIEF OF NAVAL OPERATIONS INSTRUCTION 5350.4C.
Tuesday’s second argument is the much-anticipated United States v. Diaz, No. 09-0535/NA, where the granted issues are:
I. WHETHER THE LOWER COURTS MISREAD THE SCIENTER AND NATIONAL SECURITY ELEMENTS OF THE ESPIONAGE ACT.
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN REJECTING AS IRREGULAR APPELLANT’S PROFFERED GUILTY PLEA TO A VIOLATION OF ARTICLE 133.
III. WHETHER THE EVIDENCE OF THE CIRCUMSTANCES UNDER WHICH AN ACCUSED ACTED, INCLUDING HIS MOTIVE, IS RELEVANT TO A CHARGE UNDER ARTICLE 133.
On Thursday, CAAF will hear oral argument in one case, United States v. Yammine, No. 09-0720/MC. The granted issue in Yammine is: “WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO COMMIT SODOMY OR INDECENT ACTS WITH A MINOR.”
This week at the CCAs: On Tuesday, the Coast Guard Court will conduct its make-up Snowmageddon-delayed Project Outreach argument at Howard University’s law school. The following assignment of error in United States v. Garcia will be argued: “THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO EXCLUDE PE 3, A VIDEOTAPE OF THE POLICE INTERROGATION OF APPELLANT, WHEN NO ARTICLE 31(B) RIGHTS WERE GIVEN.” Army web sites are down at the moment, so I don’t know whether ACCA has any arguments scheduled this week. Neither NMCCA’s nor AFCCA’s web site lists an oral argument for this week.
This week at the trial level: An Article 39(a) session is scheduled for tomorrow and members selection is scheduled to begin on Tuesday in the capital court-martial of United States v. Hennis at Fort Bragg. But Judge Boyle of the United States District Court for the Eastern District of North Carolina is still considering a habeas petition from Hennis that could potentially derail the trial. Here’s a link to a Fayetteville Observer article providing a preview of the court-martial.