Yesterday CAAF granted review in six cases that (excluding McClain, which we mentioned here) look like an effort to clarify the future of Fosler:

No. 09-0519/NA.  U.S. v. Michael S. HODGE.  CCA 200601124.  Review granted on the following issue:

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 OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No. 11-0647/MC.  U.S. v. Marchello K. HANCOCK.  CCA 201000400.  Review granted on the following issue:

AS IN UNITED STATES v. FOSLER, THE ARTICLE 134 SPECIFICATION FAILED TO ALLEGE EITHER POTENTIAL TERMINAL ELEMENT AND THEREFORE FAILED TO STATE AN OFFENSE.  COULD APPELLANT PLEAD GUILTY TO A SPECIFICATION THAT FAILED TO STATE AN OFFENSE?

No. 12-0071/AR.  U.S. v. Robert M. BIGBACK.  CCA 20101044.  Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No. 12-0073/MC.  U.S. v. Mark A. Leubecker.  CCA 201100091.  Review granted on the following issue:

WHETHER THE LOWER COURT MISAPPLIED UNITED STATES v. FOSLER AND UNITED STATES v. WATKINS, IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATIONS STATE AN OFFENSE.

No. 12-0099/AR.  U.S. v. Matthew J. MCCLAIN.  CCA 20090446.  Review granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF POSSESSING CHILD PORNOGRAPHY.

No. 12-0131/AR.  U.S. v. Robert L. MURCHISON.  CCA 20101052.  Review granted on the following issue:

WHETHER THE SPECIFICATION OF ADDITIONAL CHARGE II FAILS TO STATE AN OFFENSE AS IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

7 Responses to “A bunch of new CAAF grants”

  1. Anonymous says:

    Anyone have any idea why CAAF would order briefs in 6 different Fosler cases?

  2. Zachary Spilman says:

    More cowbell.

  3. H Lime says:

    2 votes to grant a petition, right?  Can guess one, but where’s the second?

  4. RY says:

    My guess is there’s some disagreement with the way CCA’s have interpreted Fosler and that it’s a case-by-case analysis (i.e., looking at each spec in play) to determine if the terminal element was implied.  Once they’ve given a few examples of what they meant in Fosler, they can rely on CCA’s to resolve  the issue better in the future.

  5. Peanut Gallery says:

    So if a Fosler trailer gets granted again after remand, does that make it a “double-wide”? 

  6. Dwight Sullivan says:

    Oh, that is good, P.G.  :- )

  7. stewie says:

    If it gets struck down, I say the first sentence should be, “In a tornado decision…”