CAAF today issued its opinion in United States v. Nerad, the last argued case that had remained undecided.  CAAF remanded the case to the Air Force Court for further consideration.  The opinion is available here.

Judge Ryan wrote for the majority in an opinion joined by Chief Judge Effron and Judge Erdmann.  Judge Baker concurred in the result.  Judge Stucky dissented.

Over the weekend, I’ll crunch some numbers and post some end o’ the term stats.

15 Responses to “CAAF issues what is probably its final opinion for the term”

  1. Anonymous says:

    It is a pretty stupid hole in the law. The fix should either be raising the age of consent to 18 and thus balancing the two offenses, or raise the age for Clause 1 and 2 offenses for possessing images to 18. Either one is fine. Probably not the proper role of the CCA so while I agree with the outcome I understand that the CCA probably overstepped it’s authority in reaching that outcome.

    Still, the idea that you can have actual sex with someone legally, but heaven forbid she send you a picture of her naked or you become a registered sex offender, seems manifestly silly.

    But it is a fix that has to happen somewhere else other than the CCA.

  2. John O'Connor says:

    There’s a little bit for everybody here. Thankfully, the majority correctly held that the CCAs do not have unfettered discretion to disapprove findings just because they fell like it. But I’m left wondering from the majority opinion when a CCA can actually disapprove a legally and factually correct finding for any reason other than as a remedy for some other error or constitutional deprivation (such as unreasonable posttrial delay).

    I’m sympethetic to Judge Stucky’s view on the scope of CCA powers re legally and factually correct findings. At bottom, Judge Baker might have the best view, that a simple remand to explain the CCA’s reasoning might have further focused the issues, and allowed the court to make a more concrete decision.

  3. Christopher Mathews says:

    I recall a couple of cases in which the scope of the service courts’ authority under the “should be approved” language of Article 66(c) became an issue.

    Although I’m sure it wasn’t issued simply to draw clarification, the AFCCA’s Nerad decision was pretty clearly destined to do so. It was a perfect example of what we used to call “CAAFbait.”

  4. soonergrunt says:

    So my clueless eternal newbie question is this:
    What next for Airman Nerad? If I read that whole thing correctly, he doesn’t have anywhere else to go at this point, even though the idea that he should register as a child molester is absurd.

  5. Gene Fidell says:

    I wish the Court had made clear what SrA Nerad’s Article 67(a)(2) textual claim was. See Maj. Op. at 23-24.

  6. Anonymous says:

    so is there any hook upon which the CCA can save this ruling? Anything they can use to have CAAF say, oh well, if that’s the reason, good enough for us?

  7. Late Bloomer says:

    Sure…it’s called factual sufficiency. It’s also a hook that CAAF can’t use. Of course, there’s always that pesky problem of a guilty plea.

    Jut my opinion, but this is good law applied to the wrong case.

    I hope young defense counsel out there will not be discouraged from challenging Art 134 under circumstances such as these. This can’t be the conduct Congress intended to criminalize.

  8. Look, pal says:

    This case jumped the tracks when the accused pled guilty. I hope the defense counsel did not advise him to do that.

  9. A wise judge once said... says:

    If it be not of reason, then it hath no place in the law

  10. too many guilty pleas says:

    We don’t know if he pled guilty as part of an under-the-table agreement that the prosecutor wouldn’t bring a more serious charge. Maybe they would have charged him with distribution of the alleged CP or something like that.

  11. Anonymous says:

    There is no hook for the CCA. With the lack of legal (versus equitable) standards they employed, the CCA has boxed themselves into a corner from which they cannot escape. They simply didn’t like the collateral consequence of Appellant’s guilty plea, a consequence Appellant fully acknowledged at trial.

  12. Anonymous says:

    We don’t know if he pled guilty as part of an under-the-table agreement that the prosecutor wouldn’t bring a more serious charge.

    One would hope not, that would open a totally different can of worms because of the sub rosa agreement.

  13. Anonymous says:

    The CCA can just call it an unreasonable multiplication of charges and walk away quietly and successfully. It should have done that in the first place, but sometimes it just likes to toss out a line as CaafBait and see if Caaf will bite.

  14. Anonymous says:

    what’s the multiplication? I thought this was the only charge that was due to the activity with the under-aged women.

  15. Anonymous says:

    Anon 2312 is right; there is no unreasonable multiplication here. Plus, the CCA already declared the finding was factually and legally sufficient. How can they honestly go back now and say there is a sufficiency problem; they can’t with a straight face. This was no “CAAFbait;” this was an erroneous decision pure and simple.