CAAF issued its opinion in Contreras, No 09-0754/AF, affirming the Air Force Court.  Judge Ryan wrote for the majority.  Judge Baker concurred in the result.

More later.

4 Responses to “CAAF issues Contreras opinion”

  1. Anonymous says:

    Clearly, Baker’s opinion is the better opinion. But, since the goal seems to be finding a way to affirm convictions, I’m sure CAAF will use the majority’s elements-based approach in future, unless that doesn’t get them the result they want. Then they’ll use Baker’s contextual approach. Either way, mission accomplished.

  2. John O'Connor says:

    I admit that I don’t know anything about the history of the MCM limitation on the offense of housbreaking. That said, and allowing for this lack of knowledge, it seems to me that the majority’s test is a good one. My best assumption from the text is that the President didn’t want someone charged with housebreaking because they entered a dwelling to be disrespectful in violation of Article 91, for example. The majority’s rule seems true to my best guess of the limitation’s purpose while having the virtue of clarity. The search for a state law somehwere criminalizing the same conduct strikes me as a disaster of a proposed test.

    Most of all, though, I’m glad the majority dropped a footnote to make clear that by noting that the “UCMJ” provides for criminal liability for civilians, its reliance on this aspect of the UCMJ for purposes of Article 130 is not a statement that those falling within Article 2(a)’s statutory grant of jurisdiction are constitutionally-amenable to trial by court-martial. My view is that most, or maybe all, civilians purportedly falling within Article 2(a) likely cannot constitutionally be court-martialed.

  3. Article16 says:

    That was some good clemency relief to get rid of the rape conviction prior to sending it up.

  4. RY says:

    Agree the test is good. Not convinced the application is. It seems to me Article 2 is what Congress is calling military. All of the categories in Article 2(a) have a military nexus and it’s only by virtue of that nexus that Congress presumably can impose jurisdiction. How then can we effectively call them purely civilians? Maybe the problem (my problem) is using a military article to define non-military personnel for establishing how a military prohibition is not purely military.

    In any event, Contreras was effectively convicted of housebreaking to engage in a consensual act. Seems like something housebreaking was not intended for.