CAAF granted review in two cases on Monday. The court also called upon Senior Judge Cox to sit in place of Judge Ohlson in Newton (Judge Ohlson recused himself from participation in that case – discussed here).
The first new grant is United States v. Bennitt, No. 12-0616/AR. This is the second trip to CAAF for this case. Last term the court reversed the appellant’s conviction for involuntary manslaughter for his distribution of prescription opioid painkillers to his 16 year-old girlfriend, who overdosed and died while in the appellant’s barracks room in 2009. United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page). CAAF then remanded the case to the Army CCA for a sentence reassessment, and the CCA affirmed the original sentence. The CCA did so because it was convinced that even without the manslaughter conviction the appellant would have been sentenced to no less than what he received. This prompted me to write a post titled: Bennitt’s sentence remains the same, in which I predicted that CAAF will tell us how the CCA can possibly be convinced of this fact.
And now CAAF will do that:
No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Review granted on the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY RE-AFFIRMING APPELLANT’S APPROVED SENTENCE AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.
Briefs will be filed under Rule 25.
The other new grant is in a case involving the ultimate offense doctrine:
No. 14-0619/AR. U.S. v. Aaron J. TWINAM. CCA 20120384. Review granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF FAILURE TO OBEY AN ORDER OR REGULATION.
No briefs will be filed under Rule 25.
I’ve been following the revival of the ultimate offense doctrine since last October when I covered the Army CCA’s opinion in United States v. Phillips, No. 20120585 (A. Ct. Crim. App. Sep. 23, 2013) (unpub. op.), rev’d on recon., 73 M.J. 572 (A. Ct. Crim. App. Jan. 31, 2014) (en banc), and rev. granted, 73 M.J. 408 (C.A.A.F. Jun. 3, 2014) (CAAFlog case page).
Twinam is the third Phillips trailer granted by CAAF (the others are Nemeth and Amaya), definitively creating an ultimate offense doctrine trailer park. And yes, I do get excited about stuff like this.