This week at SCOTUS: The Court further extended the time for the Solicitor General to provide the requested response in Sullivan to March 30. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, February 23, 2016, at 9:30 a.m.:

United States v. Gay, Nos. 15-0742/AF & 15-0750/AF (CAAFlog case page)

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by failing to remand appellant’s case for a hearing pursuant to United States v. Dubay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding appellant’s post-trial solitary confinement. See United States v. Ginn, 47 M.J. 236 (1997).

Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) abused its discretion and committed legal error by reaching its decision that Article 66, UCMJ, grants it the authority to grant sentence appropriateness relief for post-trial confinement conditions even though there was no violation of the Eighth Amendment or Article 55, UCMJ, in direct contravention of this court’s binding precedent.

Case Links:
AFCCA opinion
Blog post: The AFCCA finds that using solitary confinement to avoid violating Article 12 isn’t cruel and unusual, but deserves relief
Blog post: The Air Force JAG certifies two cases to CAAF
Blog post: CAAF specifies an additional issue in Gay
Appellant’s brief (granted issue)
Appellee’s (Government) brief (granted issue)
Cross-appellant’s (Government) brief (certified issue)
Cross-appellee’s brief (certified issue)

Followed by:

United States v. Atchak, No. 16-0054/AF (CAAFlog case page)

Issue: Whether the Air Force Court of Criminal Appeals erred in setting aside and dismissing the specifications of aggravated assault without authorizing the convening authority to order a rehearing for the lesser included offenses of assault consummated by a battery.

Case Links:
AFCCA opinion
Blog post: Two Air Force certifications, and a grant in a Marine Corps case
Appellant’s (Government) brief
Appellee’s brief

Wednesday, February 24, 2016, at 9:30 a.m.:

United States v. Caldwell, No. 16-0091/AR (CAAFlog case page)

Issue: Whether the military judge committed plain error when he instructed the panel using a negligence standard for maltreatment of a subordinate in violation of Article 93.

Case Links:
ACCA opinion (summary disposition)
Blog post: CAAF grants review of a Grostefon issue
Appellant’s brief
Appellee’s (Government) brief

Followed by:

United States v. Williams, No. 16-0053/AF (CAAFlog case page)

Issue (specified by the court): Whether the United States may file successive motions for reconsideration of a decision of the Court of Criminal Appeals, and thereby effectively extend the 60-day filing deadline for a certificate of review of such decision. See CAAF Rules of Practice and Procedure 19(b)(3); 22(b)(3); and 34(a).

Case Links:
AFCCA opinion
Blog post: Two Air Force certifications, and a grant in a Marine Corps case
Blog post: Three new CAAF grants
• Appellant’s (Government) brief
Appellee’s brief

This week at the ACCA: The Army CCA’s website is not accessible to the public (discussed here). However, I can report that the CCA will hear oral argument in two cases this week:

Wednesday, February 24, 2016 at 10 a.m.: United States v. Allen, No. 20130521

Issues:
I. [Whether t]he findings that the appellant committed sexual assault are factually and legally insufficient.
II. [Whether t]he military judge erred by not replaying testimony after a panel member requested a transcript of testimony and telling the panel members that replaying testimony would cause a delay.

Thursday, February 25, 2016 at 10 a.m.: United States v. Mitchell, No. 20150776

Issue: Whether the military judge erred in suppressing Appellee’s cell phone and the evidence from it by holding that unlocking his cell phone constituted a testimonial act and law enforcement re-initiated communication with Appellee in violation of the Edwards rule.

Note: This is a government appeal under Article 62.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in two cases on Wednesday, February 24, 2016:

At 10 a.m.: United States v. Hackler (before the CCA en banc)

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant contrary to his pleas, of one specification of assault consummated by battery and one specification of adultery, in violation of Articles 128 and 134, UCMJ, 10 USC §§ 928 and 934 (2012). The members sentenced Appellant to reduction to pay grade E-1, ninety days hard labor without confinement, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and, except for the bad-conduct discharge, ordered the sentence executed.

Issue: Equal protection requires the law to treat similarly-situated individuals alike. The offense of adultery treats heterosexual and homosexual servicemembers disparately in two ways: 1) adultery applies only to heterosexuals by requiring sexual intercourse for criminal liability and punishment to attach; 2) adultery denies homosexuals the same marriage-fostering enforcement of fidelity afforded heterosexual servicemembers. The UCMJ has no equivalent offense for same-sex sexual relations. Does equal protection require setting aside appellant’s conviction for adultery?

At 1 p.m.: United States v. Chikaka

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant contrary to his pleas, of attempted abusive sexual contact, orders violations, wrongful sexual contact, abusive sexual contact, obstructing justice, indecent language, and adultery in violation of Articles 80, 92, 120, and 134, UCMJ, 10 U.S.C. §§ 880, 892, 920, and 934 (2012). The members sentenced the appellant to a reduction to pay grade E-1, twelve years’ confinement, forfeiture of all pay and allowances, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, order it executed.

Issues:
I. Only relevant evidence is admissible. Over defense objection, the military judge admitted on the merits “operation restore vigilance,” a campaign plan to “fully operationalize the commandant’s guidance” from the heritage tour; a photo of the commandant posing with an accuser’s grandfather as sentencing evidence; and then allowed appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence in this case. Did the military judge abuse his discretion?
II. Disjunctive pleading is improper because it creates ambiguity and may fail to inform an accused of what he must defend against. Here, the Government charged 18 specifications with alternate theories of liability, all pleaded disjunctively to create 65 possible theories of liability. Did the members’ general verdict of guilt without exceptions or substitutions create an ambiguous verdict that prevents this court from reviewing this case for factual sufficiency?

5 Responses to “This Week in Military Justice – February 22, 2016”

  1. k fischer says:

    Re: US v. Chikaka
     

    I. Only relevant evidence is admissible. Over defense objection, the military judge admitted on the merits “operation restore vigilance,” a campaign plan to “fully operationalize the commandant’s guidance” from the heritage tour; a photo of the commandant posing with an accuser’s grandfather as sentencing evidence; and then allowed appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence in this case. Did the military judge abuse his discretion?
     

    Why stop there?  I’m surprised that the TC didn’t attempt to admit into evidence POTUS statement that anybody caught “engaging in this stuff will be [inter alia] dishonorably discharged, period.”  Sounds like the MJ would have entertained letting that piece of evidence in, as well.  
     
    What is really troubling is that a Marine Corps trial counsel and military judge does not understand that this evidence is also violation of Article 37 and MRE 403.  Perhaps the DC only objected based on MRE 401, but certainly the MJ should have sustained the objection without hearing the specific basis.  You have a TC who got convictions on what sounds like 18 specifications of a whole lot of wrong, so he or she attempts to screw a perfectly good case up by presenting this completely irrelevant and unfairly prejudicial evidence of UCI.
     
    And, how many other Marines heard how TC Schmedlap convinced MJ Snuffy into admitting heritage tour evidence for sentencing, and decided to do the same?  

  2. a.j. smith says:

    What’s funny about the picture of the CMC and the operation restore vigilance evidence is that this case was tried at MCRD, Parris Island…ground zero for CMC UCI issues. Trust me, we objected under every possible basis.

  3. Charlie Gittins says:

    Who was the MJ?  Sounds like he needs some refresher training in  . . . well, the law?

  4. k fischer says:

    AJ,
     
    Congrats on surviving the sentencing phase of the trial.  If I were DC on the case, then I think I would have melted or exploded like the bad guys in Raiders of the Lost Ark when they opened the Ark of the Covenant, or in the very least, had a stroke.  Unbelievable.

  5. President Comacho says:

    looks like we have a cast and story line for Idiocracy II’s courtroom scene