This week at SCOTUS: The petition for certiorari in Grafmuller v. United States, No. 12-6499 was denied last week, and the Chief Justice granted an extension of time to file a petition in Behenna v. United States, No. 12A4406, to January 3, 2013.

There are two active petitions for certiorari in military justice cases:

Fry v. United States, No. 11-1395 (pending conference on November 9).
Easton v. United States, No. 12-210 (pending a response from the SG, due on November 19).

This week at CAAF: CAAF will hear oral argument in one case this week, at the University of Oklahoma School of Law in Norman, Oklahoma:

Wednesday, November 7, 2012, at 3:00pm: United States v. Irizarry, No. 12-0451/AF.

Issue:
Whether the military judge erred by denying a defense motion to suppress an item seized by Appellant’s first sergeant during a warrantless entry into Appellant’s off-base home.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Law student amicus
Blog post: Argument preview

This week at the ACCA: The AFCCA will hear oral argument in two cases this week:

Wednesday, November 7, 2012, at 10:00am: United States v. Sotelo, No 2010267

Issues:
I. If the government charges the mere possession of distastesful japanese anime cartoons, and if a soldier is going to plead guilty to that charge, then the military judge has to establish the proper factual predicate for such a charge. This military judge did not, and therefore there is a substantial basis in law and fact to question the plea.
II. Prosecuting “essentially” a violation of § 1466a(b)(2) through article 134, UCMJ, is unconstitutional as applied to PFC Sotelo because it criminalizes the possession of materials that are neither child pornography under Ferber nor obscene under Miller.
III. If this court finds that this is not “essentially” a violation of § 1466a case, then it is governed by United States v. Brisbane and United States v. Wilcox. Consequently, because the military judge never elicited facts establishing a direct and palpable connection between the military mission and the japanese anime cartoons, there is a substantial basis in law and fact to question Private Sotelo’s plea.
IV. The military judge advised PFC Sotelo that he faced a maximum period of confinement of twenty years. Notwithstanding receiving a twelve-month sentence to confinement, in fact, the maximum period of confinement PFC Sotelo faced for the offenses to which he pled guilty was ten years and four months. The military judge erred to appellant’s substantial prejudice when he relied on an erroneous interpretation of the law and both advised and sentenced PFC Sotelo accordingly.

Thursday, November 8, 2012, at 10:00am: United States v. Gorski, No. 20100480

Issues:
I. Whether appellant’s guilty plea to distribution of child pornography is improvident because there is no evidence of actual distribution to a known third party. (citations omitted)
II. If appellant’s guilty plea to distribution of child pornography is improvident because there is no evidence of actual distribution to a known third party, may this court affirm the lesser-included offense of attempted distribution of child pornography?

This week at the AFCCA: There are no scheduled oral arguments posted on the Air Force CCA’s website.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: There are no scheduled oral arguments posted on the Navy-Marine Corps CCA’s website.

One Response to “This Week in Military Justice – 4 November 2012”

  1. Michael Lowrey says:

    From the Associated Press:

    The public is expected to get its first glimpse Monday at the evidence against U.S. Army general facing court-martial on sex crimes charges, a rare criminal case against a high-ranking officer that has thus far been shrouded in secrecy. An Article 32 hearing is scheduled at Fort Bragg for Brig. Gen. Jeffery A. Sinclair, who was sent home from Afghanistan and later charged Sept. 26 with a long list of crimes that include forcible sodomy, wrongful sexual conduct, violating orders, engaging in inappropriate relationships, misusing a government travel charge card, and possessing pornography and alcohol while deployed.

    More: http://www.rockymounttelegram.com/news/ncwire/hearing-set-general-charged-sex-crimes-1331117