This week at SCOTUS: A petition for certiorari was filed last week in Cox, et al., v. United States, No. 16-1017. A copy of the petition is available here. The case raises the same questions as presented in Dalmazzi v. United States, No. 16-961 (CAAFlog case page), on behalf of six petitioners in whose cases CAAF vacated its grant of review in light of Dalmazzi. As noted here, the Court called for a response to the cert. petition in Dalmazzi. Additionally, Dalmazzi filed a supplemental brief (available here).

The Solicitor General filed the requested response in Howell. Finally, numerous amicus briefs have been filed in Sterling. Links to many of them are available in this press release from the First Liberty Institute, which supports Sterling. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, February 28, 2017, at 9:30 a.m.:

United States v. Hukill, No. 17-0003/AR (CAAFlog case page)

Issues:
I. 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 purposes to prove propensity to commit the charged sexual misconduct.

II. Whether Judge Paulette V. Burton and Judge Larss G. 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.

Case Links:
ACCA opinion
• ACCA opinion on reconsideration
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Feliciano, No. 17-0035/AR (CAAFlog case page)

Issues:
I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

Case Links:
ACCA opinion
Blog post: CCA opinion analysis
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview

Wednesday, March 1, 2017, at 9:30 a.m.:

United States v. Erikson, No. 16-0705/AR (CAAFlog case page)

Issues:
I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Case Links:
ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Ahern, No. 17-0032/AR (CAAFlog case page)

Issue: Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Case Links:
ACCA opinion
• Blog post: The Army CCA interprets Mil. R. Evid. 304(a)(2)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, March 2, 2017, at 10 a.m.:

United States v. Rucker, No. 20140845

Issue: Whether the evidence is legally and factually insufficient to support a conviction as to any specification or charge.

This week at the AFCCA: The Air Force CCA will here oral argument in one case this week, on Thursday, March 2, 2017, at 10 a.m.:

United States v. Miller, No. 38922

Issues:
I. Whether the military judge erred by admitting text messages as a “fresh complaint” and a prior consistent statement.

II. Whether the acquittal under R.C.M. 917 of the words “on divers occasions” in Specifications 2 and 3 of the Charge rendered the subsequent verdict to those specifications ambiguous under United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), thereby precluding this court from conducting its review under article 66(c).

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 24, 2017.

2 Responses to “This Week in Military Justice – February 27, 2017”

  1. Alex Lasurdo says:

    What about the two CAAF cases scheduled for Wednesday, including the blockbuster U.S. v. Ahern?

  2. Zachary D Spilman says:

    Thanks. Post corrected.