This week at the Supremes:  There are no anticipated military justice developments on my radar screen for this week.

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term.  By my count, six argued cases remain undecided:  Ellerbrock (Mil. R. Evid. 412), Gaddis (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Fosler (whether Article 134’s terminal element must be alleged on charge sheet), Sweeney (application of Melendez-Diaz), and Baker (identification evidence).

This week at the CCAs:  AFCCA will hear oral argument tomorrow at 1400 in United States v. Clark, No. ACM 37494, on this issue:  “Whether the military judge erred by allowing Government witnesses to testify about what they observed on surveillance video days after the alleged theft where the video was subsequently destroyed.” 

ACCA will hear oral argument on Thursday at 1000 in United States v. McClain, No. ARMY 20090446, on these specified issues:

I.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF POSSESSING CHILD PORNOGRAPHY UNDER ARTICLE 134, UCMJ, SPECIFICATION 1 OF THE CHARGE, BECAUSE THE FACT-FINDER RELIED UPON SA DEVINNY’S LAY TESTIMONY, WHICH WAS ERRONEOUSLY ADMITTED UNDER MILITARY RULE OF EVIDENCE 701.

II.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF DISTRIBUTING VISUAL DEPICTIONS OF MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT TO INTERNET USERS UNDER ARTICLE 134, UCMJ, SPECIFICATION 2 OF THE CHARGE, BECAUSE THERE WAS NO EVIDENCE SHOWING THAT APPELLANT ACTUALLY DISTRIBUTED VIDEOS TO ANOTHER PERSON.

III.  SPECIFICATIONS 1 AND 2 OF THE CHARGE WERE MULTIPLICIOUS AND ALSO CONSTITUTED AN UNREASONABLE MULTIPLICATION OF CHARGES UNDER UNITED STATES v. QUIROZ, 55 M.J. 334 (C.A.A.F. 2001).

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