In addition to Jones (discussed here), CAAF granted review in two additional cases last week:

No. 14-0322/MC. U.S. v. Matthew A. GILBREATH. CCA 201200427. Review granted on the following issues:

I. WHETHER INDIVIDUAL READY RESERVISTS, SUBJECT TO PUNISHMENT UNDER THE UCMJ, ARE ENTITLED TO THE PROTECTIONS OF ARTICLE 31(b) WHEN QUESTIONED BY SENIOR SERVICE MEMBERS ABOUT SUSPECTED MISCONDUCT COMMITTED ON ACTIVE DUTY.

II. WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT APPELLANT’S STATEMENTS WERE ADMISSIBLE UNDER ARTICLE 31(b), UCMJ, AND MILITARY RULE OF EVIDENCE 305.

Briefs will be filed under Rule 25.

I analyzed the NMCCA’s decision in Gilbreath in a December, 2013, post titled: NMCCA finds that Article 31(b) does not apply to inactive reservists. I think CAAF’s grant is some evidence that United States v. Jones, No. 14-0071/AR (CAAFlog case page), is going to be a major decision about the application of Article 31(b) and the standard articulated in United States v. Duga, 10 M.J. 206, 210 (C.M.A. 1981).

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499. Review granted on the following issue:

WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA), 18 U.S.C. SECTION 2250(a) (2006), APPLIED TO APPELLANT AS A RESULT OF EITHER THE ATTORNEY GENERAL’S 2007 INTERIM RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v. LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v. REYNOLDS, 710 F.3d 498 (3d Cir. 2013.)

Briefs will be filed under Rule 25.*

*  Judge Ohlson has recused himself from participation in this case.

I mentioned Newton back in January (in this post). The Army CCA’s opinion is available here. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of four offenses: Rape of a child under the age of twelve years in violation of Article 120; indecent acts in violation of Article 120; wrongfully sending a picture of himself to his natural daughter, who was under eighteen years of age, focused on his genital area, showing an erection underneath his clothing in violation of Article 134; and knowingly failing to register as required by the Sex Offender Registration and Notification Act, 18 U.S.C. § 2052(a) in violation of Article 134. He was sentenced to confinement for 30 years, total forfeitures, and a dishonorable discharge. The convening authority reduced the term of confinement by one year.

The Government charged the 134 offenses in the conjunctive, alleging both prejudice to good order and discipline and conduct of a nature to bring discredit upon the armed forces. The members convicted the appellant as charged. On review the CCA noted that the Government presented no evidence that the conduct was prejudicial to good order and discipline, and found the Article 134 convictions legally and factually insufficient to sustain appellant’s convictions for conduct in violation of Clause 1 of Article 134, UCMJ.” Slip op. at 3. But it otherwise affirmed the convictions as service discrediting.

Judge Ohlson’s recusal in Newton is presumably due to his prior service with the Department of Justice.

One Response to “Two additional CAAF grants”

  1. Sea Lawyer says:

    Gilbreath is such a fun case.  If the CAAF can get past the threshold question of applicability, which I think it can, I do not see how it can find a conversation about a missing weapon is anything but an official one–from either perspective.  That said, the standard of review will likely play a big role here.  If there is no evidence to suggest the MJ’s findings of fact are clearly erroneous, Appellant may have a tough hill to climb.