The CAAF has decided United States v. Vazquez.
RYAN, J., delivered the opinion of the Court, in which ERDMANN, J., and EFFRON, S.J., joined. BAKER, C.J., and STUCKY, J., each filed separate opinions concurring in the result.
[T]the Judge Advocate General of the Air Force asked this Court to consider the following questions:
I. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED BY HOLDING THAT APPELLEE WAS
NOT AFFORDED A FUNDAMENTALLY FAIR TRIAL, AS
GUARANTEED BY MILITARY DUE PROCESS AND THE
UCMJ, WHEN TWO REPLACEMENT COURT MEMBERS
DETAILED AFTER TRIAL ON THE MERITS HAD BEGUN
WERE PRESENTED RECORDED EVIDENCE PREVIOUSLY
INTRODUCED BEFORE THE MEMBERS OF THE COURT
IN COMPLIANCE WITH ARTICLE 29, UCMJ, AND
II. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED BY FAILING TO FIND WAIVER OR
BY FAILING TO CONDUCT A PLAIN ERROR
ANALYSIS; INSTEAD, THE COURT INCONGRUOUSLY
FOUND THE ALLEGED VIOLATION OF APPELLEE’S
RIGHT TO MILITARY DUE PROCESS WAS PER SE
PREJUDICIAL DESPITE DECLARING THAT THE ERROR
WAS NOT STRUCTURAL.
Appellee has not shown that the application of Article 29(b), UCMJ, 10 U.S.C. § 829(b) (2006), and R.C.M. 805(d)(1) was unconstitutional as applied to him, and the military judge’s decision to proceed in accordance with the procedure set out by Congress in Article 29(b), UCMJ, was not an abuse of discretion. Accordingly, the AFCCA’s decision is reversed.