CAAF granted review in three cases last Thursday. The first involves an issue of unreasonable multiplication of charges:

No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. 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 PUNISHING THE SAME TRANSACTION OF OBTAINING CHILD PORNOGRAPHY WITH FOUR CONVICTIONS UNREASONABLY EXAGGERATES APPELLANT’S CRIMINALITY AND TRIPLES HIS PUNITIVE EXPOSURE, CONSTITUTING AN UNREASONABLE MULTIPLICATION OF CHARGES.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that the appellant downloaded child pornography and then copied it to multiple devices, leading to the four separate specifications.

The second grant involves an issue similar to the issue in United States v. Sager, No. 16-0418/NA (CAAFlog case page) (argued on  Tuesday, November 15, 2016):

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. 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 GOVERNMENT PROVED BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SR WAS “OTHERWISE UNAWARE” OF SEXUAL CONTACT.

Briefs will be filed under Rule 25.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

The final grant involves whether CAAF’s decision in Hills (our #3 Military Justice Story of 2016) applies in judge-alone trials – an issue currently pending before CAAF in two cases: United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Jan. 3, 2017) (discussed here):

No. 17-0087/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. 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, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 AND 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

The Army CCA’s opinion is available here. The court applied Hukill and affirmed.

3 Responses to “Three new CAAF grants”

  1. Vulture says:

    Zach.  You were asking how many people the CAAF has jurisdiction over.
    I am looking at all these grants and don’t see a single military related offense.  There have been few I recent memory and where a military court seems like it should be considering military offenses it raises the question “who does it serve?”
    One could argue that we are not a war (ACCA might disagree) ergo no reason for military offenses.  But people have been having sex all along and CAAF has had no problem finding cases on that subject.
    I’m not citing to any numbers and I will admit that my logic is prospective.  The trend, though, does indicate a preoccupation (for lack of a better word) that shows that CAAF is subject to outside influences that derails its chartering purposes.

  2. Zachary D Spilman says:

    Well Vulture, I think your comment that “a military court seems like it should be considering military offenses” overlooks the fact that military law (rightly or wrongly, but I think rightly) treats many common-law offenses differently. The child pornography offense in Forrester is one such example. As a violation of Article 134, the basis for criminal liability is prejudice to good order and discipline or the potential for discredit to the service, not merely the contraband nature of the images. 

    That’s why I thought the reach of the court’s decisions was an important note. CAAF isn’t just reviewing military offenses; it’s reviewing offenses by the military.

  3. Vulture says:

    Good point.
    Still, these offenses took have been taking place all along.  Not just in recent history.  Equally, the removal of homosexual activities would seem to detract from that as they are not really a determent to good order and discipline.