On the heels of CAAF’s grant of the AFCCA’s Appointments Clause issue in Janssen (CAAFlog case page), on December 19, and its order for expedited briefing, the court granted review of the composition of the AFCCA panel in six more cases on December 23:

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028
No. 14-0060/AF. U.S. v. Jeremy J. GRAWEY. CCA S32029
No. 14-0125/AF. U.S. v. Danny L. ANNIS. CCA 38001
No. 14-0138/AF. U.S. v. Danny M. BURNS. CCA 37847
No. 14-0156/AF. U.S. v. Devon P. JOHNSON. CCA S32047
No. 14-0157/AF. U.S. v. Alphonso K. DIXON. CCA S32061

CAAF ordered no briefs to be filed.

CAAF also granted review of what looks to be a trailer to Winckelmann (CAAFlog case page):

No. 14-0044/AF.  U.S. v. Morgan A. WINN.  CCA 37772.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO ORDER A REHEARING ON SENTENCE.

No briefs will be filed under Rule 25.

The AFCCA decided Winn on May 15, 2013, (link to slip op.), setting aside Appellant’s convictions for indecent acts and indecent exposure, in violation of Article 134, due to factual insufficiency. The court affirmed only Appellant’s conviction for knowingly transferring obscene materials to a the 13-year-old girl, in violation of Article 134 and 18 U.S.C. § 1470. The CCA then reassessed the sentence, adjudged by members, of confinement for 12 months, total forfeitures, reduction to the grade of E-1, and a bad-conduct discharge, and approved the sentence in whole.

4 Responses to “Here come the trailers”

  1. Cap'n Crunch says:

    I am having a tough time disagreeing with AFCCA on Winn, and I usually think they are government hacks.  He sends a picture of his penis to a 13 year old.  Her mother catches him, tells her to stay away from her, and two years later he is back at it.  She turns him into OSI.  The penalty landscape does not change substantially.  Sentencing guidelines in federal court on this one is 18-24 months, and he ended up getting 12 months.  Post Booker, that isn’t mandatory, but I guarantee you a federal judge would have teed him up for every bit of the 12 months.  Look, if I were on AFCCA, would I have knocked a month or two off?  Yes, I would have, to CYA on the opinion and make it that much harder to challenge.  But there is no way that any reasonable jury wasn’t going to give him substantial time on this one, even with the specifications dismissed.

  2. Dude says:

    Cap’n Crunch, I think there is a problem anytime you have a panel of judges purporting to magically be able to tell what a jury would have done.  The hypothetical you posit, that a federal judge would have done the same is comparing apples to oranges since the civilian federal jurisdiction doesn’t rely on jury panels to do sentencing in the first instance.  Further, due to the small size of military juries and the inherent inconsistency that small panels perpetrate, it is impossible to say that the same jury would render the same sentence on the exact same charges and facts twice.  Much less could it be said that their sentence would be of a certain calculable magnitude absent some charges the second time around.  Jury sentencing in the military is a crapshoot each and every time by design.

  3. Cap'n Crunch says:

    @Dude:  In the typical case, I’d agree.  But here, all three specs arise out of the exact same activity; and, what is more, the specs largely merged for purposes of sentencing, with an additional 6 months, so the penalty landscape changed from 10.5 years to 10 years.  On those facts and circumstances, I think it is awfully hard to argue that the penalty would have been any different.  I think using Judge Baker’s concurring factors in Moffeit, we can come to a reasoned conclusion that AFCCA did not, in this instance, abuse its discretion.  (1) change in penalty landscape — there is/was not significant material change in landscape — it went from 10.5 to 10 years — weighing against a rehearing; (2) sentencing by members of judge — this factor weighs in favor of a sentencing rehearing in this case; (3) nature of the remaining offenses — here, the underlying factual predicate did not change; rather, it was the same and the court’s of criminal appeals have (unfortunately) extensive experience with sentencing outcomes in cases involving inappropriate contacts with minors — this weights against a sentencing rehearing; (4) whether the CCA weighed its factors on the decision — the CCA’s analysis is neither extensive, nor thorough, but not devoid of any analysis — which in my view neither weights in favor, nor against rehearing.  On the balance, with two factors weighing against rehearing, one weighing in favor of rehearing, and one relatively neutral factor, I think this is a case that was appropriately re-assessed, instead of remanding for a rehearing.

  4. Dude says:

    @ Cap’n Crunch:  I think your analysis presumes that all of Judge Baker’s Moffeit factors are equally weighted.  I don’t think they are.  I would put great weight in (2) – the accused elected to be tried and sentenced by members, not a panel of judges hand-picked by TJAG.