Update: While I initially noted five grants of review, I only wrote about four. I eventually realized that I failed in counting to five and now update this post to include the fifth grant (in Bailey).

Some interesting cases recently joined CAAF’s docket, with a certification and five grants of review.

The certification is from the Army involving the proper victim of a larceny under Article 121:

No. 17-0329/AR. U.S. v. Randy L. Simpson Jr. CCA 20140126. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY FINDING A SUBSTANTIAL BASIS IN LAW AND FACT TO QUESTION APPELLANT’S PLEA IN LIGHT OF THE SUPREME COURT DECISION IN UNITED STATES v. SHAW, 137 S.CT. 462 (2016), AND THE COURT OF APPEALS FOR THE ARMED FORCES DECISION IN UNITED STATES v. CIMBALL-SHARPTON, 73 M.J. 299 (C.A.A.F. 2014).

Appellant will file a brief under Rule 22(b) in support of said certificate on or before May1, 2017.

The Army CCA’s decision is available here. The case involves a guilty plea to larcenies from a bank account under the name of Credit First National Association (CFNA) (a financial institution) but operated by JPMorgan Chase. The larcenies were committed by fraudulent electronic transfers. Simpson pleaded guilty to larceny from CFNA, but the CCA reversed the plea after concluding that the proper victim is the financial institution, JPMorgan Chase.

I think the CCA’s opinion in Simpson is right and consistent with CAAF’s recent precedent regarding the proper victim of a larceny under Article 121. See United States v. Williams, 75 M.J. 129 (C.A.A.F. Feb. 23, 2016) (CAAFlog case page) (unauthorized use of debit card is larceny from financial institution or merchants, not account holder); United States v. Endsley, 74 M.J. 216 (C.A.A.F. Jan 14, 2015) (summ. disp.) (discussed here) (unauthorized use of debit card is larceny from merchants, not account holder). The opinion is, however, inconsistent with a prior opinion of the CCA on nearly-identical facts (others participated in stealing from the account) that affirmed the guilty plea and wasn’t reversed by CAAF. See United States v. Tauaese, No. 20120176 (A. Ct. Crim. App. Jan. 30, 2014) (available here), pet. denied, 73 M.J. 418 (C.A.A.F. 2014) (account holder was the victim). Nevertheless, I suspect CAAF will affirm in Simpson (possibly summarily).

Next, CAAF granted review in two trailer cases involving the use of charged sexual offenses for propensity purposes, which was found to be error in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016:

No. 17-0253/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, 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 IN LIGHT OF UNITED STATES v. HILLS AND THAT ERROR WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

No briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. CAAF is considering the application of Hills in judge-alone cases in United States v. Hukill, No. 17-0003/AR (CAAFlog case page).

No. 17-0222/AF. U.S. v. Yogendra Rambharose. CCA 38769. 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 MILITARY JUDGE ABUSED HER DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER M.R.E. 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

No briefs will be filed under Rule 25.

The AFCCA’s opinion is available hereRambharose was a members case but the CCA concluded the use of charged offenses for propensity was harmless beyond a reasonable doubt.

CAAF also granted review in a case that presents a Confrontation Clause challenge to Mil. R. Evid. 513:

No. 17-0199/AF. U.S. v. Ricky D. Chisum, Jr. CCA S32311. 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 MILITARY JUDGE’S FAILURE TO CONDUCT AN IN CAMERA REVIEW OF AND FAILURE TO DISCLOSE THE MENTAL HEALTH RECORDS OF AB AK AND AB CR DEPRIVED APPELLANT OF HIS RIGHT TO CONFRONT THE SOLE WITNESSES AGAINST HIM IN VIOLATION OF THE SIXTH AMENDMENT TO THE CONSTITUTION.

Briefs will be filed under Rule 25.

I discussed the AFCCA’s published opinion (75 M.J. 943) in this post. The CCA found that the military judge abused his discretion by failing to conduct an in camera review of the mental health records of the two prosecution witnesses whose testimony was the primary evidence that the appellant wrongfully used cocaine, however it concluded that the error was harmless.

Finally Next, CAAF granted review of a case challenging the legal sufficiency of a conviction for kidnapping by inveiglement, which is pronounced in-vey-gull-ment and means to entice or lure:

No. 17-0224/AR. U.S. v. Jorge F. Acevedo. CCA 20150076. 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:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED JUDGE BURTON’S MILITARY COMMISSION, BUT SEE UNITED STATES v. ORTIZ, NO. 16-0671/AF (C.A.A.F. 9 FEB. 2017).

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE BURTON WAS NOT AN APPELLATE MILITARY JUDGE UNDER THE UCMJ, BUT SEE UNITED STATES v. ORTIZ, NO. 16-0671/AF.

III.  WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL VIOLATED THE APPOINTMENTS CLAUSE, BUT SEE UNITED STATES v. ORTIZ, NO. 16-0671/AF.

IV. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CHARGE OF KIDNAPPING BY INVEIGLEMENT.

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

Unfortunately (for our curiosity about the facts), the Army CCA summarily affirmed without a written opinion.

Finally, CAAF granted review in a Coast Guard case of an issue that questions whether the military judge should have instructed the members on the meaning of the term incapable in a case involving alleged sexual activity with a person who was incapable of consenting due to impairment by an intoxicant; something defined in United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page):

No. 17-0265/CG. U.S. v. Colby C. Bailey. CCA 1428. 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 issues:

I. UPON REQUEST BY THE DEFENSE COUNSEL AND USING A DEFENSE-DRAFTED INSTRUCTION, SHOULD THE MILITARY JUDGE HAVE PROVIDED THE MEMBERS WITH AN EXPLANATION OF THE TERM “INCAPABLE”?

II. WHETHER THE DECISION OF THE UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS IS AMBIGUOUS AS TO WHETHER THE AFFIRMED SENTENCE INCLUDED FORFEITURE OF ALL PAY AND ALLOWANCES.

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

The Coast Guard CCA’s opinion is available here. The CCA finds no instruction was required in part because “Pease did not change the fact that “incapable of consenting” uses ordinary words in their ordinary meaning and can be understood by a person of ordinary intelligence.” Slip op. at 6. This conclusion is informed by a similar conclusion reached by the Army CCA in United States v. Lovett, No. 20140580 (A. Ct. Crim. App. Apr. 29, 2016) (link to slip op.).

One Response to “(Updated) Recent CAAF docket activitity: A (likely doomed) certification about the proper victim of a larceny, new Hills & Hukill trailers, a Confrontation Clause challenge to Mil. R. Evid. 513, kidnapping by inveiglement, and whether members need an instruction on the meaning of incapable”

  1. Dwight Sullivan says:

    [Standard Disclaimer:  I offer these comments solely in my personal capacity; they should not be imputed to anyone or anything else.]  The post above carefully and correctly notes that ACCA’s earlier decision in Tauaese “wasn’t reversed by CAAF.”  As the post notes, CAAF denied review.  See United States v. Tauaese, 73 M.J. 418 (C.A.A.F. 2014) (mem.).  It is important to note that such a denial of review doesn’t put any thumb on the scale.  “[O]ur denial of a petition is of no precedential value and should not be cited, except as a matter of appellate history, or relied upon as authority.”  United States v. Mahan, 1 M.J. 303, 307 n.9 (C.M.A. 1976).