Yesterday, CAAF docketed a certification of the Air Force CCA’s decision in United States v. Morita, 73 M.J. 548 (A.F.Ct.Crim.App. Jan 10, 2014) (my analysis of the CCA’s opinion is here) (link to slip op.):

No. 14-5007/AF. U.S. v. Steven S. MORITA. CCA 37838. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:


That brings the total number of Air Force cases with certifications on CAAF’s docket for this term to eleven:

  1. United States v. Arriaga, No. 13-5008/AF, __ M.J. __ (C.A.A.F. Sep 23, 2013) (summary disposition) (plain error issue).
  2. United States v. Lindgren, No. 13-5009/AF, __ M.J. __ (C.A.A.F. Sep 23, 2013) (summary disposition) (plain error issue).
  3. United States v. Finch, 73 M.J. 144 (C.A.A.F. 2014) (CAAFlog case page) (cross-certification).
  4. United States v. McPherson, No. 14-5002/AF (CAAFlog case page) (Article 12 issue).
  5. United States v. Wilson, No. 14-5003/AF (cert. discussed here) (CCA op. discussed here) (Article 12 issue).
  6. United States v. Burns, No. 14-5001/AF (discussed here) (factual sufficiency issue).
  7. United States v. McIntyre, No. 14-6005/AF (cert. discussed here) (CCA op. discussed here) (corroboration issue).
  8. United States v. Seton, No. 14-6008/AF (cert. discussed here) (CCA op. discussed here) (lost evidence issue).
  9. United States v. McDowell & DeMario, No. 14-5005/AF (cert. discussed here) (CCA op. discussed here) (gov’t writ pet.).
  10. United States v. Piolunek, No.s 14-5006 & 14-0283/AF (CAAFlog case page) (cross-certification).
  11. United States v. Morita, No. 14-5007/AF (cert. discussed here) (CCA op. discussed here) (subject matter jurisdiction).

An additional interesting statistic is that of the last ten cases added to CAAF’s master docket, eight are Air Force cases, and seven of those eight involve certified issues. The ten cases, in chronological order of docketing, are: Wilson, Torres, Burns, McIntyre, Piolunek, Seton, Wagner (Army), McDowell, Carrasquillo (Army), and Morita.

10 Responses to “The Air Force JAG certified cases list goes to eleven”

  1. Dew_Process says:

    Will we see a dozen, or a “baker’s” dozen?  Or perhaps a new CAAFlog award, e.g., “The Black CAAF” with a Darth Vader helmet?
    It’s not like the AF CCA is a radical collective of flaming-liberal jurists or anything!  Who has a link to the “metrics” as the AF JAG hierarchy is fond to cite during Article 6 visits?
    One can only wonder if the words “abuse of process” will seep into the CAAF’s lexicon.

  2. Tami (a/k/a Princess Leia) says:

    At least this seems like a more appropriate use of authority.

  3. LT Caffey says:


  4. Sea Lawyer says:

    Is the USAF JAG committing UCI on all other services?  Hear me out.  Service JAGs have authority to certify cases.  CAAF has an obligation to hear them.  Service JAGs are not limited in how many cases they may certify to the CAAF.  So a service JAG conceivably could certify a great number of cases simply to clog the CAAF’s docket, thereby preventing good faith defense appeals from hitting the CAAF’s docket.  Of course, a service JAG can also certify a case for the defense.  But as we all know, that rarely happens. 
    I am not suggesting a service JAG would certify a case simply to clog a docket.  Such a filing may qualify as frivolous.  But if I am a government-friendly service JAG (as likely as a defense friendly service JAG, or even a government friendly Judge, etc.), am I not happy about the ancillary benefit my multiple certifications will have in preserving convictions at the CCA level?  Those cases, due to impossibility, simply will not make it up to the CAAF.  Or at least, not for a while.

  5. k fischer says:

    Sea Lawyer, 
    Can’t CAAF deny review, or do they actually have to hear the case?

  6. Tami (a/k/a Princess Leia) says:

    k fischer:
    CAAF has to review all cases that TJAG certifies under Article 67(a)(2).  That’s why it’s so galling that AF TJAG certified the case w/ the deposition issue.

  7. Cap'n Crunch says:

    Maybe CAAF needs to amend its rules.  Sure, it has to hear the case, but there is absolutely no requirement that it do so by scheduling briefs or allowing oral argument.  Perhaps a rule amendment to require, with any certification, a memorandum of law by TJAG, as to the issues, and, if the issue presents no substantial question of law, CAAF resolves the issue summarily.

  8. Michael Lowrey says:

    Didn’t CAAF handle a certified Navy case involved whether a servicemember had been discharged before charges were brought last term via  a summary disposition w/o oral arguments?

  9. Matt says:

    k fisher, CAAF has to review every certified case, but they don’t have to take argument on them.  The Army TJAG recently certified a case where ACCA ordered a sentence rehearing and CAAF simply summarily affirmed.

  10. Nathan A. White says:

    @K Fischer, as Matt says, CAAF has to review the case, but can summarilly decide the case.  I don’t think it happened before US v. Brissette in March 2012, but there’s been a few since then. 
    Morita is a good case for CAAF to review because of the jurisdictional issue (disclosure:  I wrote the brief to AFCCA).  The gov’t’s argument was that a reservist could subject themselves to UCMJ jurisdiction by issuing fraudulent activation orders.  The defense’s argument was that UCMJ jurisdiction cannot attach through fraud and the appropriate venue for hearing the case is in the appropriate USDC.  AFCCA didn’t buy the “jursdiction through fraud” argument and it would be good to have CAAF weigh in on this issue.