On Friday, September 30, 2016 – the last day of the September 2015 Term, which is the last September term (discussed here) – CAAF granted review in five trailer cases.

First, the court granted, set-aside, and remanded in a trailer to United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page):

No. 16-0697/AR. U.S. v. Douglas E. Reynolds, Jr. CCA 20140856. 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:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT OTHER CHARGED MISCONDUCT.

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 consideration of the granted issue in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

I can’t find an opinion on the Army CCA’s website (indicating that the CCA summarily affirmed the findings and sentence). This is the fifth such case reversed by CAAF since the court decided Hills.

Next, CAAF granted review in two trailer cases to the Air Force case of United States v. McClour, No. 16-0455/AF (grant discussed here):

No. 16-0579/AF. U.S. v. William P. Smith, Jr. CCA 38728. 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, BY INSTRUCTING THE MEMBERS THAT THEY LACK THE POWER OF JURY NULLIFICATION, THE MILITARY JUDGE ERRED AND MATERIALLY PREJUDICED APPELLANT’S RIGHT TO BE TRIED BY A PANEL VESTED WITH ITS FULL PREROGATIVE.

No briefs will be filed under Rule 25.

No. 16-0674/AF. U.S. v. James M. Kmet. CCA 38755. 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 THE AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, “IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

No briefs will be filed under Rule 25.

The AFCCA’s decision in Smith is available here and its decision in Kmet is available here. These are the third and fourth trailer cases to McClour. All but one (Taylor, discussed here) are from the Air Force.

Finally, CAAF granted review in two trailers to the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here):

No. 16-0693/AR. U.S. v. Marcos A. Bustamante. CCA 20150486. 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 issues:

WHETHER JUDGE HERRING AND JUDGE BURTON, WHO CURRENTLY SIT ON THE CMCR, ARE STATUTORILY AUTHORIZED TO ALSO SIT ON THE ACCA.

WHETHER JUDGE HERRING AND JUDGE BURTON’S SIMULTANEOUS SERVICE ON BOTH THE CMCR AND ACCA VIOLATES THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

No briefs will be filed under Rule 25.

No. 16-0720/AR. U.S. v. Robert S. Echols. CCA 20160126. 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 issues:

WHETHER CMCR JUDGE JAMES HERRING IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY CCA.

WHETHER JUDGE JAMES HERRING’S SERVICE ON BOTH THE CMCR AND ARMY CCA VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

I can’t find opinions in either case on the Army CCA’s website (indicating that the CCA summarily affirmed the findings and sentence). There are now three Dalmazzi trailers at CAAF, all from the Army.

Disclosure: I represent – in my personal capacity – an appellant who has also raised a Dalmazzi issue at CAAF.

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