On April 29 the Air Force JAG certified Fetrow:

No. 16-0500/AF. U.S. v. Justin L. Fetrow. CCA 38631. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT IN ORDER FOR CONDUCT TO CONSTITUTE CHILD MOLESTATION UNDER MIL. R. EVID. 414, THE CONDUCT MUST HAVE BEEN AN OFFENSE UNDER THE UCMJ, OR FEDERAL OR STATE LAW, AT THE TIME IT WAS COMMITTED AND, IF OFFERED UNDER MIL. R. EVID. 414(d)(2)(A)-(C), THAT THE CONDUCT MUST MEET THE DEFINITION OF AN OFFENSE LISTED UNDER THE VERSION OF THE APPLICABLE ENUMERATED STATUTE IN EFFECT ON THE DAY OF TRIAL.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT THE ERRONEOUS ADMISSION OF TWO ACTS OF INDECENT LIBERTIES COMMITTED BY APPELLEE ON HIS CHILD AGE DAUGHTER HAD A SUBSTANTIAL INFLUENCE ON THE MEMBERS’ VERDICT REQUIRING SET ASIDE OF THE FINDINGS AND SENTENCE.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 31st day of May, 2016.

I discussed the Air Force CCA’s opinion in Fetrow here.

Additionally, on May 3 CAAF granted review in three cases:

No. 16-0267/AR. U.S. v. Nathan C. Wilson. CCA 20140135. 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 personally asserted by appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR APPROPRIATE RELIEF UNDER RULE FOR COURT-MARTIAL 917 WHERE THE MILITARY JUDGE IMPROPERLY APPLIED ARTICLE 130, UCMJ, HOUSEBREAKING, TO A MOTOR POOL.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Wilson is available here.

No. 16-0296/AF. U.S. v. Joseph R. Dockery III. CCA 38624. 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 issues:

I. WHETHER THE MILITARY JUDGE ERRED BY GRANTING, OVER DEFENSE OBJECTION, THE GOVERNMENT’S CHALLENGE FOR CAUSE AGAINST MSGT LW.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE DID NOT ERR, AND BY CONCLUDING THAT EVEN IF THE MILITARY JUDGE DID ERR THERE WAS NO PREJUDICE, CONTRARY TO THIS COURT’S PRECEDENT IN UNITED STATES v. PETERS, 74 M.J. 31 (C.A.A.F. 2015), UNITED STATES v. WOODS, 74 M.J. 238 (C.A.A.F. 2015),UNITED STATES V. NASH, 71 M.J. 83 (C.A.A.F. 2012), UNITED STATES v. CLAY, 64 M.J. 274 (C.A.A.F. 2007), AND UNITED STATES v. DALE, 42 M.J. 384 (C.A.A.F. 1995).

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion in Dockery is available here.

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. 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 personally asserted by appellant:

WHETHER THE MILITARY JUDGE UNCONSTITUTIONALLY APPLIED MRE 413 BY DETERMINING THAT A FACTFINDER COULD FIND BY A PREPONDERANCE OF THE EVIDENCE THAT APPELLANT COMMITTED EACH OF THE PRIOR ACTS ALLEGED IN THE THREE SPECIFICATIONS.

Briefs will be filed under Rule 25.

No opinion is available on the Army CCA’s website.

The grants in Wilson and Tafoya are the fourth and fifth cases with Grostefon issues granted this term. The first three are United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), United States v. Nieto, No. 16-0301/AR (discussed here), and United States v. Sewell, No. 16-0360/AR (discussed here).

Additionally, CAAF summary reversed the decision of the Army CCA and remanded for additional proceedings in a case involving a claim of ineffective assistance of counsel also asserted personally by the appellant:

No. 16-0433/AR. U.S. v. James E. Hopkins. CCA 20140913. 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 personally asserted issue:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals will obtain affidavits from civilian and military trial defense counsel that respond to Appellant’s allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a factfinding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

Hopkins is the sixth grant of the term of a Grostefon issue. All six are army cases.

One Response to “Catching up with CAAF’s docket: One certification, three grants (two involving Grostefon issues), and a Grostefon-based summary reversal”

  1. Christian Deichert says:

    Re: Wilson, they do raise a point.  Does a fence-enclosed motor pool count as a “building or structure” for Article 130?  Here’s what the latest judges’ edit of the benchbook says:

    The offense of housebreaking requires an unlawful entry into a building or structure. “Building” includes a (house) (room) (ship) (store) (office) (or) (apartment in a building). A “structure” includes enclosures which are similar to buildings or dwellings, such as (an inhabitable trailer) (an enclosed goods truck) (or) (a railroad freight car) (a tent) (or) (a houseboat).