This week at SCOTUS: While we don’t have the final orders list yet, we know that The Supreme Court didn’t grant review in any of the seven military justice cases considered during last week’s conference. That leaves only one active petition for cert in a military justice case (with a footnote: Earle Partington has filed a petition for a writ of mandamus):

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, October 8, 2013, at 9.30 a.m.:

United States v. Payne, No. 13-0245/AF (CAAFlog case page)

Issue: Whether the military judge improperly instructed the members of the elements for creation of child pornography.

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

Followed by:

United States v. Passut, No. 13-0518/AF (CAAFlog case page)

Issue: Whether a statement made to an AAFES employee for the purpose of cashing a worthless check satisfies the “official” element of a false official statement.

Case Links:
AFCCA opinion (72 M.J. 597)
Blog post: Published AFCCA decision on false official statements
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Wednesday, October 9, 2013, at 9:30 a.m.:

United States v. Mead, No 13-0459/AR (CAAFlog case page)

Issue: Whether the Army court incorrectly ruled that Pierce credit may be applied against the adjudged sentence where this results in no relief to Appellant and whether the Army court incorrectly ruled that pay lost as a result of prior reduction under Article 15, UCMJ, need not to be restored to Appellant.

Case Links:
ACCA opinion (72 M.J. 515)
Blog post: Another published ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

United States v. Finch, No. 13-5007/AF (CAAFlog case page)

Issues:
I (granted). Where the Article 134 child pornography specifications of which Appellant was convicted did not allege that the images depicted actual minors and where the military judge advised Appellant during the providence inquiry that “there is no requirement that the images in this case include actual images of minors,” is the maximum authorized confinement for each specification limited to four months?
II (certified). If the court finds that the specifications sufficiently alleged that the visual depictions were of actual minors but that the military judge’s definitions were inconsistent with the alleged specifications, what is the appropriate remedy, if any, to be given?

Case Links:
AFCCA opinion
Blog post: CAAF grant on issue dealing with maximum punishment for child pornography offenses
Blog post: An unusual Air Force certification
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2013.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments. However, I’ve been informed that the AFCCA website is not being updated due to a software issue.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on October 8, 2013 (note: this case was previously scheduled to be argued on September 18, 2013):

United States v. Gilbreath:

Case Summary: A general court-martial, consisting of members with enlisted representation, convicted the appellant, contrary to his plea, of one specification of larceny of military property of a value in excess of $500 in violation of Article 121, UCMJ, 10 U.S.C. §921 (2012). Corporal (Cpl) Gilbreath was sentenced to a reduction to pay grade E-1, to forfeit all pay and allowances, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged, and except for the bad-conduct discharge, ordered it executed.

Issues:
I. Article 31(b) warnings must be given before requesting any statement from a suspect subject to the UCMJ. Here, Sgt M suspected that Cpl Gilbreath, a reservist, committed larceny while on active duty. Sgt M questioned Cpl Gilbreath about the larceny without an art 31(b) warning. The military judge ruled that because Cpl Gilbreath was a ready reservist at the time of questioning, he was subject to punishment but not protection under the UCMJ. Did the military judge err?
II. While acting as commanding officer, Captain C suspected Cpl Gilbreath of larceny and ordered Sgt M to investigate. Sgt M then utilized his subordinates in a ploy to contact and aggressively question Cpl Gilbreath about the larceny without an Art 31(b) warning. Did the military judge err when he held that Sgt M was not acting in a disciplinary function and that Cpl Gilbreath did not perceive the questioning to be official?

One Response to “This Week in Military Justice – October 6, 2013”

  1. Canada Dry says:

    I’ll be interested to see what happens with the Gilbreath case. The DA 3881 is clear and explicit in how to conduct rights warnings and advisement, as is Art31. 
    Not sure I understand the distinction between being punished under a code but not being protected by provisions within that code. Also seems to call into question whether statements made were official and could be used against Gilbreath.