CAAF’s daily journal for January 15, 2015 (yesterday) shows a new grant:

No. 14-0685/AF. U.S. v. Wilber J. McIntosh, Jr. CCA 37977. 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:


Briefs will be filed under Rule 25.

The AFCCA heard oral argument in this case (audio available here). It considered and rejected the issue granted review by CAAF in an unpublished opinion available here. It also denied a petition for reconsideration en banc (order available here).

The daily journal also shows this order in the certified Air Force case of United States v. Bowser, No. 15-0289/AF (CAAFlog case page), our #10 military justice story of 2014:

No. 15-0289/AF. U.S., Appellant v. Roy A. Bowser, Appellee. CCA 2014-08. On consideration of the certificate for review and Appellant’s brief in support of the certified issues, dated January 5, 2015, under C.A.A.F. R. 15(a), and MODEL RULES OF PROF’L CONDUCT R. 3.3(a)(2) adopted therein, we find they fail to address United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014), and United States v. Browers, 20 M.J. 356 (C.M.A. 1985) as possible controlling or adverse authority. Appellate courts can and should require re-briefing to address deficiencies. See Passmore v. Estell, 607 F.2d 662, 664 (5th Cir. 1979), cert. denied, 446 U.S. 937 (1980). Accordingly, it is ordered that, within 10 days of the date of this Order, Appellant will file an amended brief addressing the deficiency noted. No extensions of time will be granted.

Appellee’s brief, currently due on January 26, 2015, will instead be filed within 10 days of the filing of Appellant’s amended brief. Any reply brief by Appellant will be filed within 5 days of the filing of Appellee’s brief.


Notably, this order comes exactly one day before the one year anniversary of CAAF’s January 16, 2014, order that rejected the Government’s initial brief in United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014) (CAAFlog case page).

13 Responses to “A grant, and an order for the Government to re-brief a certified case”

  1. The Silver Fox says:

    It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood… – TR

  2. Dew_Process says:

    It is a tad more than coincidence I think that these cases come out of the AF Appellate Government shop.  Add to that the “certification” issues via the AF TJAG as extensively discussed on this blog and you have to scratch your head – especially considering the rather strong language in the Bowser Order noted above.

  3. Phil Cave says:

    Therefore, in addition to not excluding evidence as that term is used in Article 62, UCMJ, the rulings were in furtherance of the military judge’s well-established responsibility to manage her cases. Indeed, by the time she denied the government’s request for a continuance at trial, the military judge had already granted at least six. Notably, two of the granted continuances occurred after the military judge had warned the parties to be prepared for trial. While it is true that the last continuance requested was for only one day, the well-articulated record allows us to conclude that the military judge’s rulings were ones of case management intended to protect both the rights of the accused and the effective administration of justice.

    And therefore are not appealable – see Vargas.  

  4. The Silver Fox says:

    Bowser was a dismisal with prejudice.  How is Vargas controlling?

  5. Zachary D Spilman says:

    Because Bowser is an Article 62 appeal in which the certified issues (discussed here) are focused on the military judge’s denial of a Government request for a continuance:

    I. Whether the military judge abused his discretion by failing to grant trial counsel a brief continuance to consult with their supervisory attorneys, finding prosecutorial misconduct and bad faith for the first time seventeen days after the notice of appeal was filed, and dismissing all charges and specifications with prejudice.

    II. Whether the Air Force Court of Criminal Appeals erred when, contrary to Article 62(b), UCMJ, it requested facts outside of the record solicited in oral argument to “partially inform [its] decision as to whether the military judge abused his discretion.”

    III. Whether the Air Force Court of Criminal Appeals erred when it concluded that dismissal with prejudice was appropriate despite expressly finding 1) trial counsel’s request for a continuance was reasonable and 2) “the record contains [ ] information inconsistent with [the military judge’s] findings of fact.”

    Emphases added.

    The AFCCA’s decision in Bowser framed the case as presenting two questions:

    First, did trial counsel have a valid basis to refuse to comply with the military judge’s order to produce the interview notes for an in camera review?

    Second, did the military judge abuse his discretion in dismissing the charges and specifications with prejudice rather than electing some less drastic remedy?

    Slip op. at 12 (discussed here). The CCA answered both questions in the negative. In particular, on the first question, the CCA “emphatically answer[ed] this question in the negative.” Slip op. at 12. And on the second question the CCA noted:

    [E]ven with the benefit of more than three months of consultation, reflection and research, the Government still believes it had no obligation to comply with a military judge’s order for in camera review. Therefore, even if the military judge had granted a brief continuance for trial counsel to consult with JAJG, it is apparent that the Government still would not have produced the notes for in camera review. The military judge did not abuse his discretion in his choice of remedy.

    Slip op. at 18. Rather than ask CAAF to review the CCA’s answers on these two discreet issues (a review that would employ the same highly-deferential standard of abuse of discretion), the certified issues seek a much broader review, including a review of “whether the military judge abused his discretion by failing to grant trial counsel a brief continuance.”

    Well, CAAF decided Vargas just last month, holding that because an order denying a continuance is not a ruling that holds Government evidence inadmissible or denies the introduction of admissible evidence, it is not appealable under Article 62. So if the Government is going to send the denial of a continuance request in Bowser to CAAF under Article 62, it seems perfectly sensible that CAAF would ask the Government to explain why the court has jurisdiction to consider that issue.

  6. DCGoneGalt says:

    Silver Fox:  I think Teddy Roosevelt had actual warriors in mind with that quote.  I doubt Roosevelt had in mind an AFTJAG sitting at his desk and deciding to certify these cases.  Considering The Gubmint actions in Bowser and AFCCAs Wright decision released Friday, the word “bull” came to mind but is sure wasn’t followed by the word “moose”.

  7. The Silver Fox says:

    I think we’d all better hold our horses until CAAF posts the briefs online.  That is, if they decide to grant oral argument, of course. 

  8. stewie says:

    Wild horses run free!!

  9. DCGoneGalt says:

    The procedural history of the Wright case is what it is, those horses escaped the barn long ago. 

  10. Phil Cave says:

    There is a 100% chance there will be oral argument in this case, as with any CAAF case which is not decided summarily.

  11. The Silver Fox says:

    That’s what I mean, Mr. Cave.  No guarantee they will not summarily affirm the CCA like they did last term with a few certified cases.

  12. anon says:

    As Mr. Spilman noted, CAAF the issued certified by the AF logically raised the issue in Vargas and Browers. My issue is more basic . . . it does not appear that the AF even raised the issue of denial of continuance as a separate basis for appeal at the CCA under Article 62.  The CCA opinion stated its basis for review pretty clearly.
    Regardless of whether the MJ’s decision dismissing with prejudice for discovery violations were proper . . and now Vargas, how can the CAAF possibly review the MJ’s decision to denying a continuance when the issue was not raised or specifically ruled upon by the CCA?  One of three things have happened: (1) the AF has modified its position and raised a issue anew under the garb of its certification before CAAF; (2) this issue was raised before the CCA and due to confusion from the reader (me) it was missed; or (3) I forgot to eat my Wheaties this morning I got lost in the weeds. 

  13. Zachary D Spilman says:

    Well, anon, it’s not unusual for CAAF to consider an issue not raised at the CCA. Or even one not raised by the parties at any stage. See, e.g., United States v. Moss, 73 M.J. 64 (C.A.A.F. 2014) (CAAFlog case page).

    Moreover, when reviewing a case under Article 62, CAAF “reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the prevailing party at trial.” United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page). See also United States v. Feltham, 58 M.J. 470, 474 (C.A.A.F. 2003) (“When reviewing a decision of a Court of Criminal Appeals on a military judge’s discretionary ruling, we typically have pierced through that intermediate level and examined the military judge’s ruling.”).