Early last year, in United States v. Clifton, 71 M.J. 489 (C.A.A.F. 2013) (CAAFlog case page), the Government answer to the granted issue asserted that the defense waived any error by affirmatively stating that it had no objection at trial. The appellant responded by asserting that the Government failed to appeal the CCA’s finding of error, making it the law of the case. Chief Judge Baker’s majority opinion – in which the court affirmed the CCA – didn’t resolve whether waiver was a factor. Instead, the majority assumed no waiver and found the error harmless.
But in a concurring opinion, Judge Erdmann set the stage for a recent action by the Air Force JAG:
Under the court’s rules prior to 2007, the government was placed in a difficult situation. The accused had sixty days from the date of the CCA decision to file a petition at this court. The government had thirty days from the date of the CCA decision to certify an issue to this court. The government would often see no need to certify an issue to this court in a case where it may have failed to prevail on every issue before the CCA, but ultimately prevailed in having the conviction affirmed. However, where an accused had filed a petition with this court which had been granted, by the time of the grant the government was often time-barred from certifying an issue, even though the non-appealed issue may have impacted the government’s ability to respond to the accused’s issue.
Because of these filing deadlines, this court would find itself faced with situations where an accused would file a petition asserting that the CCA erred and the government would often respond by arguing that another, non-appealed, portion of the CCA decision was error. However, “[u]nder the ‘law of the case’ doctrine, an unchallenged ruling ‘constitutes the law of the case and binds the parties. As a result, we would spend a good deal of time entertaining arguments as to whether the “law of the case” doctrine should apply to bar litigation of the non-appealed issues or whether the government’s issue was reasonably contained in the granted issue.
In recognition of this situation, we amended C.A.A.F. R. 19(b)(3) in 2006 to give the government thirty days from the date that we granted an issue in which to certify an issue.
Clifton, 71 M.J. at __ (Erdmann, J. concurring at 3-4) (citations and marks omitted). The new rule was effective January 1, 2007. Judge Erdmann then further elaborated:
In light of the rule change, once an issue has been granted by this court, the government should certify any issue upon which it did not prevail at the CCA and which it deems necessary to litigate before this court.
Clifton, 71 M.J. at __ (Erdmann, J. concurring at 7-8) (emphasis added). So, likely with these exact words of Judge Erdmann in mind (and I also recall Judge Ryan giving a government attorney some grief on this issue during a recent oral argument), now here comes the Judge Advocate General of the Air Force:
No. 14-5006/AF & 14-0283/AF. United States, Appellee/Cross-Appellant v. Justin M. PIOLUNEK, Appellant/Cross-Appellee. CCA 38099. Notice is hereby given that a certificate for review of the decision of the Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT IMAGES 8308, 8313, AND 0870 DID NOT CONSTITUTE VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT AS A MATTER OF LAW.
United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. 2013), rev. granted, 73 M.J. 281 (C.A.A.A.F. 2014) (CAAFlog case page), is a decision of the Air Force CCA that put it at odds with CAAF’s decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page). Sam provided an excellent summary of Piolunek in a post titled: AFCCA Invites CAAF to Clarify its Position in Barberi. CAAF then granted review in Piolunek earlier this month (see this post).
[here lies omitted a snarky reference to why a rules change effective in 2007 required emphasis in a concurring opinion in 2013]