CAAF granted review and ordered briefing in two new cases last week:

No. 16-0423/AR. U.S. v. Joseph R. Haverty. CCA 20130559. 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 specified by the Court

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20, WHICH PROHIBITS REQUIRING THE CONSUMPTION OF EXCESSIVE AMOUNTS OF ALCOHOL AS AN INITIATION RITE OF PASSAGE.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Haverty is available here. The granted issue (specified by the court) is similar to the issue in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN CONDUCTING ITS ARTICLE 66(c), UCMJ, REVIEW BY FINDING AS FACT ALLEGATIONS THAT SUPPORTED CHARGES OF WHICH APPELLANT WAS ACQUITTED TO AFFIRM THE FINDINGS AND SENTENCE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion in Rosario is available here. The case involves a conviction of sexual harassment but acquittals of related sexual contact and assault offenses. Affirming the harassment conviction, the CCA noted that “when the same evidence is offered in support of two separately charged offenses, as the physical encounters were here, ‘an acquittal on one [may] not be pleaded as res judicata of the other.'” Slip op. at 4 (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)) (marks in original).

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