It’s a busy week at CAAF and the CCAs. Please post a comment if I missed something.

This week at the Supremes:  On 3 Oct 11 the Supreme Court denied the IFP motion in White v. United States. The petitioner has until 24 October to resubmit in booklet format. I am unaware of any other recent military justice developments at the Supreme Court.

This week at CAAF: CAAF opens its oral argument this week with arguments scheduled for Tuesday 11 Oct and Wednesday 12 Oct. The following cases are scheduled:

Tuesday:

United States v. Schumacher, No. 11-0257/MC

Summary:  GCM conviction of assault, disobedience of an order, and communicating a threat.  Issues:

    1. WHETHER THE MILITARY JUDGE ERRED IN REFUSING TO GIVE A SELF-DEFENSE INSTRUCTION.
    2. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

Unites States v. Stanley, No. 11-0143/AR

Summary:  GCM conviction of premeditated murder, possession of marijuana with intent to distribute, distribution and use of methamphetamine, AWOL, failure to obey an order, and adultery. Issues:

    1. WHETHER THE MILITARY JUDGE’S INSTRUCTIONS ON SELF-DEFENSE WERE INCORRECT AND INCOMPLETE, AND IF SO, WHETHER THE LOWER COURT ERRED IN CONCLUDING THAT THIS CONSTITUTED HARMLESS ERROR.
    2. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

Wednesday:

United States v. Morrissette, No. 11-0282/AR

Summary:  GCM conviction of participating in gang initiations, obstructing justice, indecent acts, disobeying an order and use of ecstasy. Issues:

    1. WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION WAS VIOLATED WHEN HE WAS PROSECUTED FOR OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED STATEMENTS.
    2. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

United States v. Pierce, Nos. 11-0239/AR and 11-5004/AR

Summary: GCM conviction of attempted indecent acts with a child, attempting to communicate indecent language to a child, and using the internet to attempt to entice a child in violation of 18 U.S.C. § 2422. Issues:

    1. (raised by petitioner) WHETHER THE ARMY COURT OF CRIMINAL APPEALS INCORRECTLY FOUND THAT THE MILITARY JUDGE’S FAILURE TO INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS HARMLESS BEYOND A REASONABLE DOUBT.
    2. (specified by the court) WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE COMMERCE” WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.
    3. (certified by the JAG) WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. § 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE OR FOREIGN COMMERCE,” WAS ERRONEOUS.

United States v. Goodman, No. 11-0389/AR

Summary: GCM conviction of sexual harassment, maltreatment of subordinates, making a false official statement, wrongful sexual contact, indecent exposure and bigamy. Issues:

    1. WHETHER APPELLANT’S PLEA OF GUILTY TO FAILURE TO OBEY A GENERAL REGULATION (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO SECURE A DISCLAIMER OF THE MISTAKE OF FACT DEFENSE WHEN IT WAS RAISED DURING THE PROVIDENCE INQUIRY.
    2. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

This week at the CCAs: 

On Tuesday 11 October 2011 the Army CCA will hear oral argument in United States v. Moreno, No. 20100120. The issues are:

    1. WAS APPELLANT PROPERLY ORDERED TO ACTIVE DUTY FOR TRIAL BY COURT-MARTIAL? SEE ARTICLE 2(d), UCMJ, 10 U.S.C. § 802(d). SEE ALSO ARMY REG. 27-10, LEGAL SERVICES: MILITARY JUSTICE [HEREINAFTER AR 27-10] CHAPTER 21, PARA. 21-3 (16 NOVEMBER 2005), ARMY REG. 135-200, ACTIVE DUTY FOR MISSIONS, PROJECTS, AND TRAINING FOR RESERVE COMPONENT SOLDIERS [HEREINAFTER AR 135-200] CHAPTER 7 (30 JUNE 1999) AND RULE FOR COURTS-MARTIAL 204.
    2. IF THE ORDER DID NOT COMPLY WITH ARTICLE 2, UCMJ, 10 U.S.C. § 802, DID THE COURT-MARTIAL HAVE JURISDICTION TO HEAR APPELLANT’S CASE?
    3. DID THE SECRETARY OF THE ARMY OR HIS DESIGNEE APPROVE APPELLANT BEING ORDERED TO
      ACTIVE DUTY? IF NOT, MAY HIS SENTENCE TO CONFINEMENT BE AFFIRMED BY THIS COURT? SEE ARTICLE 2 (d)(5), UCMJ, 10 U.S.C. § 802(d)(5) and AR 27-10 PARA. 21-3 j.
    4. DID THE APPELLANT’S COURT-MARTIAL HAVE JURISDICTION TO TRY APPELLANT FOR MISCONDUCT COMMITTED OVER THE ENTIRE PERIOD ALLEGED IN SPECIFICATION 3 OF CHARGE I? IF NOT, WHAT IMPACT WOULD THE LACK OF JURISDICTION HAVE ON THE APPELLANT’S PLEA AND WHAT IMPACT WOULD IT HAVE ON THE FINDINGS AS TO THAT SPECIFICATION? SEE ARTICLE 2 (d)(2)(A) UCMJ, 10 U.S.C. § 802(d)(2)(A).

On Wednesday 12 October 2011 the N-MCCA will hear oral argument in United States v. Redd. Argument will be heard at the U.S. Naval Academy as part of Project Outreach.

Summary: Appellant plead and was found guilty of two specifications of violating a lawful order, in violation of Article 92, Uniform Code of Military Justice by having consensual sexual relations with others on his ship. The general court-martial, composed of members with officer and enlisted representation, convicted the appellant, contrary to his pleas, of rape, aggravated sexual contact, indecent exposure, and adultery in violation of Articles 120 and 134, UCMJ. The members sentenced the appellant to five years confinement, total forfeitures, reduction to the pay grade of E-1, and a dishonorable discharge. Issues:

  1. IN A PROSECUTION FOR FORCIBLE RAPE OR AGGRAVATED SEXUAL CONTACT UNDER ARTICLE 120(A)(1) OR 120(E), THE GOVERNMENT MUST PROVE THAT THE ACCUSED TOOK “ACTION TO COMPEL SUBMISSION” OR “ACTION TO OVERCOME OR PREVENT RESISTANCE” OF ANOTHER. THESE ARE WORDS OF SPECIFIC INTENT. DID THE MILITARY JUDGE ERR BY OMITTING THIS LANGUAGE FROM HIS INSTRUCTION ON THE ELEMENTS OF THESE OFFENSES, THEREBY FREEING THE GOVERNMENT OF ITS BURDEN TO PROVE SPECIFIC INTENT?
  2. MISTAKE OF FACT AS TO CONSENT IS A DEFENSE TO A SPECIFIC INTENT CRIME WHEN THAT MISTAKE IS HONEST, YET UNREASONABLE. THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT MISTAKE OF FACT AS TO CONSENT WAS A DEFENSE TO FORCIBLE RAPE AND AGGRAVATED SEXUAL CONTACT ONLY IF THE MISTAKE WAS REASONABLE UNDER THE CIRCUMSTANCES. WAS THIS INSTRUCTION ERROR?
  3. WHETHER THE EVIDENCE IS FACTUALLY AND LEGALLY SUFFICIENT TO SUSTAIN AIRMAN REDD’S CONVICTIONS FOR FORCIBLE RAPE AND AGGRAVATED SEXUAL CONTACT.
  4. A SPECIFICATION IS CONSTITUTIONALLY DEFICIENT IF IT DOES NOT ALLEGE ALL OF THE ELEMENTS OF THE CHARGED OFFENSE AND FAIRLY INFORM THE ACCUSED OF WHICH HE MUST DEFEND. AIRMAN REDD’S FORCIBLE RAPE AND AGGRAVATED SEXUAL CONTACT SPECIFICATION OMITTED THE FIRST HALF OF THE STATUTORY DEFINITION OF FORCE. WERE THESE SPECIFICATIONS CONSTITUTIONALLY DEFICIENT?

2 Responses to “This Week in Military Justice – 9 October 2011”

  1. No Man says:

    A message to Chief Judge Baker (or his law clerk) or the Rules Cmte–Can you please make this term the “End of the ALL CAPS Question Presented” term?

    A message to Heads of the respective Appellate Government and Defense shops–Can you please make this term the “End of the Dense Legal Citations in Questions Presented” term?

    My reasons for both requests are admittedly entirely selfish, I find reading TWIMJ painful with both of those features.

  2. Christian Deichert says:

    Seconded.