Yesterday CAAF granted review in this Air Force case:
No. 16-0475/AF. U.S. v. Nathan G. Wilson-Crow. CCA 38706. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and the pleadings, it is ordered that said petition is hereby granted on the following issues:
I. WHETHER THE MILITARY JUDGE COMMITTED LEGAL ERROR WHEN HE FOUND THAT SPECIFICATION 2 OF CHARGE I – APPELLANT’S CHILD SEXUAL ABUSE OF A.L. IN VIOLATION OF ARTICLE 120b – CONSTITUTED CHILD MOLESTATION UNDER MIL. R. EVID. 414(d)(2)(a) BECAUSE HE FOUND THAT “CONDUCT PROHIBITED BY ARTICLE 120” INCLUDES ARTICLE 120b OFFENSES.
II. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT, PURSUANT TO MRE 413, IT COULD USE OFFENSES IN ADDITIONAL CHARGE I, TO WHICH APPELLANT PLEADED NOT GUILTY, AS PROPENSITY EVIDENCE IN SUPPORT OF THE REMAINING SPECIFICATIONS OF THAT CHARGE WHICH HE ALSO CONTESTED.
III. WHETHER THE MILITARY JUDGE ERRED WHEN HE 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 OF THAT OFFENSE,” 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.
Briefs will be filed under Rule 25 on Issues I and II only.
The first granted issue is very similar to the issue in United State v. Fetrow, No. 16-0500/AF (CAAFlog case page) (argued Tuesday, October 25, 2016).
The second granted issue was (seemingly) resolved by United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).
The third granted issue is functionally identical to the issue in United States v. McClour, No. 16-0455/AF (CAAFlog case page) (argued Wednesday, November 2, 2016).
The Air Force CCA’s decision is available here but addresses none of the granted issues. The CCA decided the case on February 25, 2016 – two months before the Judge Advocate General of the Air Force certified Fetrow, one month after CAAF granted review in Hills, and four months before CAAF granted review in McClour.