CAAF granted review in two cases yesterday. The first grant is in a case that was certified by the Judge Advocate General of the Air Force back in November (discussed here):
No. 17-0086/AF. United States, Appellant/Cross-Appellee v. Patrick Carter, Appellee/Cross-Appellant. CCA 38708. 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. THE AIR FORCE COURT OF CRIMINAL APPEALS DISMISSED THE CHARGE AND SPECIFICATIONS IN THIS CASE IN 2013 AND AGAIN IN 2016. BUT IT EXCEEDED THE EIGHTEEN-MONTH PRESUMPTION OF UNREASONABLE DELAY BEFORE DOING SO EACH TIME. HAS APPELLEE BEEN DENIED DUE PROCESS WHERE HE COMPLETED HIS SENTENCE TO THREE YEARS OF CONFINEMENT 158 DAYS BEFORE THIS COURT AFFIRMED THE LOWER COURT’S FIRST DISMISSAL OF THIS CASE ON AUGUST 2, 2013?
II. WHETHER APPELLEE’S PROSECUTION FOR CHILD ENDANGERMENT WAS BARRED BY THE STATUTE OF LIMITATIONS WHERE MORE THAN FIVE YEARS HAD ELAPSED AND APPELLEE WAS NOT BROUGHT TO TRIAL WITHIN 180 DAYS OF THIS COURT’S AFFIRMANCE OF THE LOWER COURT’S DISMISSAL OF THAT SPECIFICATION.
III. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, WAS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.
IV. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.
V. WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. § 949b(b)(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPPELLATEMILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OF HIS DESIGNEE.
Briefs will be filed under Rule 25 on Issues I and II only.
The second involves a specified issue in a Coast Guard case:
No. 17-0143/CG. U.S. v. Ernest M. Ramos. CCA 1418. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:
WHETHER APPELLANT WAS ENTITLED TO ARTICLE 31(b), UCMJ, WARNINGS AT ANY POINT DURING HIS INTERROGATION BY CGIS, AND IF SO, WHETHER HE WAS PREJUDICED BY THE ADMISSION OF ANY OF HIS STATEMENTS.
Briefs will be filed under Rule 25.
The Coast Guard CCA’s opinion is available here and reveals that:
On the morning of 8 April 2014, Appellant, stationed in Seattle, Washington, reported to his division officer that a civilian with whom his wife had a business had made threats against Appellant and his wife and had said he knew where Appellant worked. Appellant mentioned that the business involved recreational marijuana, but that his name was not on the paperwork of the business. Appellant’s division officer called upon his superior, the operations officer, to whom Appellant repeated his story. The operations officer called upon his superior, the executive officer, to whom Appellant repeated his story in the presence of the operations officer.
The executive officer took steps to notify security officials of the threat, including calling Coast Guard Investigative Service (CGIS). CGIS requested to talk with Appellant. Thereafter, Appellant was interviewed by CGIS agents, to whom he repeated his story with further details.
The military judge concluded, and the CCA affirmed, that the appellant’s interrogation by CGIS was not for a law enforcement or disciplinary purpose.