CAAF’s daily journal has been updated only through Thursday, but it’s already clear that last week was a busy one at the court.

On Monday, Chief Judge Baker welcomed Judge Ohlson to the court at the beginning of the day’s oral arguments in United States v. Hines, No. 13-5010/AR (CAAFlog case page), and United States v. Knapp, No. 13-5012/AF (CAAFlog case page). Judge Ohlson asked numerous questions during the arguments and appears to be a lively addition to the court.

Next, on Tuesday the court granted review in an Army case about instructional error:

No. 14-0029/AR.  U.S. v. Ronald J. DAVIS.  CCA 20100815. Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE’S FAILURE TO INSTRUCT ON THE AFFIRMATIVE DEFENSE OF DEFENSE OF PROPERTY WAS HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

Appellant was convicted of multiple offenses, including one specification of simple assault with an unloaded firearm after he pointed the weapon at a houseguest who didn’t leave his property when asked. The Army CCA heard oral argument back in May (link to TWIMJ entry) and issued an unpublished opinion on July 15, 2013 (available here), in which it found that the military judge erred in failing to sua sponte instruct the members on defense of property, but that:

Even if a panel concluded [the victim of the assault] heard appellant’s direction to leave his property, no rational panel could conclude appellant’s initiation of physical violence and threats of deadly force to expel [the victim] from the property in front of his house were reasonable under the facts presented in this case. Nor would any rational panel conclude that appellant believed his use of force in this manner, or his brandishing of a firearm, was a necessary action in response to the trespass. We hold that it is clear beyond a reasonable doubt that a rational panel would have rejected any defense of property claim under these circumstances and would have found appellant guilty of assault in the absence of the instructional error. The omission of the defense of property instruction did not contribute to appellant’s conviction and the instructional error in this regard was harmless beyond a reasonable doubt.

Slip op. at 5.

Then, on Thursday the court granted review in an Air Force case about appellate judicial notice:

No. 14-0119/AF.  U.S. v. Charles W. PAUL.  CCA S32025.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

Briefs will be filed under Rule 25.

Appellant was convicted of multiple offenses, including wrongful use of 3,4-methylenedioxymethamphetamine (“Ecstasy”), on divers occasions. But when he was tried by a special court-martial composed of a military judge alone, the Government failed to either introduce evidence to prove that Ecstasy is a controlled substance or ask the trial judge to take judicial notice of that fact. In an unpublished opinion dated August 23, 2013 (available here), the Air Force CCA determined:

The fact that Ecstasy is a Schedule I controlled substance is indisputable. See 21 C.F.R. § 1308.11(d)(11). We have the authority to take judicial notice of indisputable facts. United States v. Williams, 17 M.J. 207, 214 (C.M.A. 1984).

Slip op. at 4. So the CCA took appellate judicial notice and affirmed the conviction. The court rationalized its decision in this paragraph:

The Government is not ordinarily permitted a second chance to prove an element of an offense which has been overlooked at trial. It is incumbent on trial counsel to properly prepare their case and provide legal and competent evidence on each and every element of the charged offense. The Government should not be in a position of needing this Court to take judicial notice of domestic law on appeal. It is a very rare case where this Court would be willing to judicially notice a matter which could, and should, have been judicially noticed at trial. Because judicial notice in this case involves a question of domestic law rather than an adjudicative fact, and there is no question that Ecstasy is a Schedule I controlled substance under the laws of the United States, we are taking the extraordinary step of judicially noticing domestic law on appeal. We are convinced that, had the Government requested the military judge to take judicial notice that Ecstasy is a Schedule I controlled substance at trial, the military judge would have done so, even over a possible objection by the defense.

Slip op. at 5.

CAAF also issued its first published decision of the term on Thursday, unanimously affirming the Army CCA and rejecting the appellant’s claim to additional credit for prior punishment in United States v. Mead, No 13-0459/AR (opinion) (CAAFlog case page). The court finds that the trial military considered the prior punishment and specifically awarded credit for it, and that the appellant is not entitled to additional credit for pay he lost because of the prior reduction in rank. Judge Stucky wrote for the court. I anticipate posting a fully opinion analysis on Monday.

And finally, CAAF summarily reversed three more Air Force cases because the CCA panel that decided them was improperly constituted. By my count that brings the total to 13 cases summarily reversed because of the improper appointment of a civilian judge to assist the beleaguered Air Force court (our coverage of the AFCCA’s backlog is summarized in the second paragraph of my argument preview in United States v. Merritt, No. 13-0283/AF (CAAFlog case page)).

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