CAAF granted review of two cases yesterday.  First is United States v. Oliver, No. 11-0089/AR, in which the granted issues is “WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO DESERTION.”  ACCA’s decision was a summary per curiam affirmance.  United States v. Oliver, No. ARMY 20091109 (A. Ct. Crim. App. Sept. 9, 2010).  The petition was filed on 18 October; CAAF continues to rocket through its petition docket.

Second is United States v. Romanosky, No. 11-0046/NA, with this granted issue:

IN ORDER TO CONVICT AN ACCUSED FOR AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120(c), THE GOVERNMENT MUST PROVE THAT THE VICTIM WAS INCAPACITATED OR SUBSTANTIALLY INCAPABLE OF APPRAISING THE NATURE OF THE SEXUAL ACT.  ARTICLE 120 OF THE UCMJ PROVIDES AN AFFIRMATIVE DEFENSE IF THE ACCUSED CAN SHOW, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE VICTIM USED WORDS OR OVERT ACTS INDICATING AGREEMENT TO THE SEXUAL CONDUCT AT ISSUE AND WAS COMPETENT.  THIS STATUTORY SCHEME VIOLATES DUE PROCESS OF LAW BY PLACING A BURDEN ON THE ACCUSED TO DISPROVE AN ELEMENT OF THE GOVERNMENT’S CASE.

CAAF ordered that no briefs be filed, so it appears to be treating this case as a Medina/Prather trailer. NMCCA’s unpublished decision in the case is available hereUnited States v. Romanosky, No. NMCCA 20100009 (N-M. Ct. Crim. App. Aug. 12, 2010).

In other CAAF trailer news, on Wednesday, CAAF denied not only a motion to stay proceedings, but also the petition in an Article 62 drug testing report case.  United States v. Borgman, No. 11-6001/AF.  The order stated that the denial was “without prejudice to raising the issues asserted during the course of normal appellate review.”

8 Responses to “CAAF grants”

  1. Christopher Mathews says:

    Does anyone happen to know the facts in Oliver? A desertion case doesn’t seem a natural candidate for a legal sufficiency review by CAAF.

  2. Anonymous says:

    In a nutshell, Oliver pleaded guilty to a UA of just under 3 yrs. At the time he went UA, he was on PCS orders from one duty station to another and had sent his household goods to his next duty station. The government went forward on the desertion charge and called one witness, Oliver’s sister, who testified that Oliver had been residing at the family home in Brooklyn for the past three years. She also said that she was unsure why he was home (she thought he had completed his enlistment), and she said that she was unsure if he had a job during that period of time, but he did provide support for his daughter. Oliver testified that he had just reenlisted prior to his UA and had planned to report in to his new duty station. However, he claimed that while he was on leave at his family’s home in NY, he decided to stay past his leave to take care of a problem with his daughter. When that problem was resolved, he turned himself in to military authorities at Ft Hamilton. Officer and enlisted members found him guilty of desertion. That’s about all. Obviously, the legal issue is whether when the evidence is viewed in the light most favorable to the government, any rational factfinder could have found the element of intent to remain away permanently beyond a reasonable doubt. And, of course, the duration of the absence, standing alone, cannot establish the intent required for desertion. Looks like just a long UA to me.

  3. Christopher Mathews says:

    Thanks, Anon 1516.

  4. John O'Connor says:

    Thanks, Anon 1516. Since Oliver took the stand, I assume the Government had a full opportunity to make the standard desertion inquiry — where were his uniforms, dog tags, etc. That he was in the middle of a PCS might mean that some of that stuff was in storage and not discarded (even if he had no intention to return).

  5. Anonymous says:

    Mr. O’Connor – I kid you not. Here is the extent of the TC’s ENTIRE cross-examination of Oliver:

    TC: Specialist Oliver, in the nearly three years that you remained absent, did you ever make any attempt to go get your military property in storage?
    A. No, ma’am.
    TC: Thank you.
    MJ: All right. Any redirect based on that?
    DC: No redirect, Your Honor.
    MJ: Any question from the members?
    [No response.]

    Oliver retook his seat. Defense rested, and TC had no rebuttal. Go figure.

  6. Anonymous says:

    Granting that as a question for review is absurd and negligent. That’s not a question. It’s a legal background and conclusion.

    I know CAAF only occasionally massages the typically (and understandably) slanted QPs of petitioners, but this one screams out for it.

  7. Christopher Mathews says:

    How did he “take care of a problem with his daughter” if he was unemployed for three years? For that matter, how did he take care of himself?

    Was there any evidence that he obtained civilian employment?

  8. John O'Connor says:

    Thanks, Anon 1732. Sometimes the Government gets what it deserves.