CAAF granted review in two cases last week. One was another ultimate offense doctrine case:
No. 14-0650/AR. U.S. v. Kenneth E. Hagstrom. CCA 20121058. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEAS OF GUILT TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSES AT ISSUE WERE THE MINOR OFFENSES OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT’S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER’S OFFICE TO LIFT THE DUTY “ABOVE THE COMMON RUCK.”
No briefs will be filed under Rule 25.
Notably, this is the fourth trailer to United States v. Phillips, No. 14-0199/AR (CAAFlog case page), which was argued on October 20.
The other grant was in a Navy case:
No. 14-0744/NA. U.S. v. Allyssa K. Simmermacher. CCA 201300129. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corp Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHEN THE GOVERNMENT DESTROYS EVIDENCE ESSENTIAL TO A FAIR TRIAL, THE RULES FOR COURTS-MARTIAL REQUIRE THE MILITARY JUDGE TO ABATE THE PROCEEDINGS. HERE, THE GOVERNMENT NEGLIGENTLY DESTROYED THE SOLE PIECE OF EVIDENCE THAT PROVIDED THE BASIS FOR APPELLANT’S CONVICTION PRIOR TO BOTH THE REFERRAL OF CHARGES AND THE ASSIGNMENT OF DEFENSE COUNSEL. SHOULD THE MILITARY JUDGE HAVE ABATED THE PROCEEDINGS?
Briefs will be filed under Rule 25.
The NMCCA’s opinion is available here. The CCA affirmed the appellant’s conviction for wrongful use of cocaine despite the fact that the Government destroyed the appellant’s urine sample one year after it tested positive (in accordance with standard policy), preventing the appellant from obtaining a retest.
This is the second CAAF grant in a Navy case in a month (the other was United States v. Castillo, No. 14-0724/NA (CAAFlog case page)), and they occur after a term in which CAAF didn’t hear oral argument in any Navy cases.