Back in September, in this post, Sam analyzed the Coast Guard CCA’s opinion in United States v. Riesbeck, No. 1374 (C.G. Ct. Crim. App. Aug. 5, 2014) (link to slip op.). The CCA affirmed a trial-stage ruling that the appellant’s counsel waived a challenge to the court-martial panel’s composition (the panel appeared to be stacked with female members) by failing to object soon enough. In his analysis, Sam noted that “[RCM] 912(b)(3) provides that the issue is not waived where there is a violation of RCM 502(a)(1).”
On Thursday, December 11, CAAF took the following action in the case that shows that Sam’s analysis was right on:
No. 15-0074/CG. U.S. v. John C. Riesbeck. CCA 1374. On consideration of Appellant’s petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, we conclude that the issue of improper member selection was not waived because of the exception contained in Rule for Courts-Martial (RCM) 912(b)(3) to the timeliness requirement of RCM912(b)(1). On its face, RCM 912(b)(3) provides an exception to waiver where the objection is made on the basis of an allegation that the convening authority selected members in violation of RCM502(a)(1) for reasons other than those listed in Article 25(d)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 825(d)(2) (2012): age, education, training, experience, length of service, and judicial temperament. Furthermore, improper member selection can constitute unlawful command influence, an issue that cannot be waived. United States v. Baldwin, 54 M.J. 308, 310 n.2 (C.A.A.F. 2001). Because the exception of RCM 912(b)(3) should have applied, the question remains whether Appellant was deprived of a fair trial by an impartial panel. Accordingly, it is ordered that said petition is hereby granted on the following issue:
WAS APPELLANT DEPRIVED OF A FAIR TRIAL BY AN IMPARTIAL PANEL?
The decision of the United States Coast Guard Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Coast Guard for remand to the Court of Criminal Appeals for further review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.
CAAF also granted review in two Air Force cases last week.
In the first, CAAF summarily remanded the case for consideration of two issues not raised before the CCA:
No. 15-0051/AF. U.S. v. Franklin G.U. Cruz. CCA 38296. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that Appellant raises issues not previously considered by the Court of Criminal Appeals. Accordingly, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE MILITARY JUDGE ERRED IN FINDING PERSONAL JURISDICTION OVER APPELLANT.
II. WHETHER APPELLANT’S FIFTH AMENDMENT DUE PROCESS RIGHTS WERE VIOLATED.
The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issues under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c)(2012).
The Air Force CCA’s opinion is available here.
In the second, CAAF granted review of another trailer to United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page):
No. 14-0773/AF. U.S. v. Jeremiah L. Thompson III. CCA 38269. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:
WHETHER APPELLANT’S CONVICTIONS FOR POSSESSION AND RECEIPT OF CHILD PORNOGRAPHY MUST BE SET ASIDE BECAUSE SEVERAL DEPICTIONS OFFERED IN SUPPORT OF THE SPECIFICATIONS ARE NOT CHILD PORNOGRAPHY AND ARE CONSTITUTIONALLY PROTECTED, A GENERAL VERDICT WAS ENTERED, AND IT IS IMPOSSIBLE TO DETERMINE WHETHER THE LEGALLY PROTECTED IMAGES CONTRIBUTED TO THE VERDICT.
No briefs will be filed under Rule 25.
I discussed the AFCCA’s opinion in this post.