Last week, on November 20, CAAF granted review in another trailer to Phillips:

No. 15-0048/AR. U.S. v. Joshua R. Baker. CCA 20120839. 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 PLEA OF GUILTY TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE 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.

In the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page), CAAF is considering the ultimate offense doctrine for the first time in almost 20 years, with the following granted issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction 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 in the parlance of this court’s earlier opinion, “above the common ruck.”

CAAF heard oral argument in Phillips on October 20, so I don’t expect a decision until next year. Prior to hearing oral argument, the court granted review in three trailer cases: United States v. Nemeth, No. 14-0491/AR, (grant discussed here), United States v. Amaya, No. 14-0558/AR (grant discussed here), and United States v. Twinam, No. 14-0619/AR (grant discussed here). Since hearing oral argument, CAAF has granted review in two additional trailer cases: United States v. Hagstrom, No. 14-0650/AR (grant discussed here), and last week’s grant in Baker.

Whether the court’s continuing grants of trailer cases predicts a major decision in Phillips remains to be seen.

5 Responses to “CAAF grants review in the fifth Phillips trailer”

  1. RKincaid3 (RK3PO) says:

    Is it just me or is the phrase “ABOVE THE COMMON RUCK” a little too amorphous to really be a judicial established principle that can be easily defined? Consider that the dictionary definitions are all over the place: Merriam-Webster; Your Dictionary; and The Free Dictionary all contain pretty diverse descriptions–and all share what we could believe was the court’s intended meaning.
     
    And while I understand that sometimes resorting to pop culture is useful in articulating standards that are common or easily understood, the oft-quoted U.S. v. Loos standard of “ABOVE THE COMMON RUCK” is a terrible example–indeed, it is a colloqial saying from the 1950s (and earlier) and is not in common use today. Yes, I know that I am the LAST person on this site who can assert a currency with pop culture references as I am most decidedly unhip and quite square, but I had to look it up as I had not heard outside the context of this forum and the results, as evinced by the links above, were not really helpful. Even the first court case to use it, U.S. v. Loos 4 U.S.C.M.A. 478 (1954) uses it sans explanation as it were commonly understand. Well, in 1954, it probably was commonly understood. But it is not now, hence all these appeals in twhat are called ulitmate offense “trailer cases.”
     
    As such, no wonder this issue keeps coming up. The courts need to issue specific tools in the form of solid guidance that is both understandable and applicable and which is –as much as possible–unassailable by the passage of time so as to be as rendered useless by the inevitable social changes in pop culture references.

  2. Christian Deichert says:

    Wait a second — we regularly use arcane phrases like “divers occasions,” and it’s “above the common ruck” that gets your knickers in a twist?  :)

  3. stewie says:

    Other terms tried but rejected:
     
    1. Higher than the average pistol belt
    2. Beyond the standard canteen cover
    3. Exceeding the moderate slingload

  4. Christian Deichert says:

    As far as I’m concerned, above the common ruck is not only swell, be George, it’s the bee’s knees.

  5. RKincaid3 (RK3P0) says:

    Ha…like I said–I am anything but hip–but you all are just “a huckleberry above a persimmon!”