This week at SCOTUS: The cert petition in Sterling has been distributed for conference on May 18. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:
- Sterling v. United States, No. 16-814 (pend. conf. on May 18) (CAAFlog case page) (SCOTUSblog page)
- Dalmazzi v. United States, No. 16-961 (resp. requested, due May 15) (CAAFlog case page)
- Cox, et al., v. United States, No. 16-1017 (pet. filed Feb. 21; resp. due May 15)
- Howell v. United States, No. 16-536 (pet. for rehearing pend. conf. on May 11) (CAAFlog case page)
- Ortiz v. United States, No. 16A1034 (extension to file cert. pet. granted to Jun. 9, 2017) CAAFlog case page)
This week at CAAF: CAAF will hear oral argument in five cases this week:
Tuesday, May 9, 2017, at 9:30 a.m.
United States v. Claxton, No. 17-0148/AF (CAAFlog case page)
I. Whether the findings and sentence must be set aside in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).
II. Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.
• AFCCA’s first opinion
• Blog post: CAAF orders DuBay hearing
• AFCCA opinion on remand
• Blog post: CAAF grants review
Appellant’s brief (sealed)
• Appellee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief (not posted / sealed)
• Blog post: Argument preview
United States v. Carter, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page)
Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding that the convening authority exceeded the scope of AFCCA’s remand when he referred Appellant’s case to an “other” trial under R.C.M. 1107(e)(2) following AFCCA’s original remand decision.
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 of 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 Appellate Military judges so appointed by the Secretary of Defense of his designee.
• AFCCA decision (2013)
• Blog post: JAG certifies
• Blog post: CAAF affirms
• AFCCA decision after retrial (2016)
• Blog post: JAG certifies
• Appellant’s (A.F. App. Gov’t Div.) Brief – Certified Issues
• Appellee’s (Carter) Brief – Certified Issues
• Appellant’s (Carter) Brief – Granted Issues
• Appellant’s (A.F. App. Gov’t Div.) Brief – Granted Issues
• Appellant’s (Carter) Reply Brief – Granted Issues
• Blog post: Argument preview
Wednesday, May 10, 2017, at 9:30 a.m.
United States v. Tucker, No. 17-0160/AR (CAAFlog case page)
Issue: Whether the Army Court erred in holding that the term “disorders and neglects” states a negligence standard for mental culpability under Article 134, UCMJ, which precludes application of United States v. Elonis.
United States v. Darnall, No. 16-0729/NA (CAAFlog case page)
Issue: Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.
This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 15, 2017.
This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.
This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.
This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, May 11, 2017, at 10 a.m.:
United States v. Betancourt, No. 201500400
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of aggravated sexual contact and two specifications of assault consummated by a battery; in violation of Articles 120 and 128, UCMJ, 10 U.S.C. § 920 and 928 (2012). The military judge also convicted the appellant, pursuant to his pleas, of one specification of conspiracy to commit assault, two specifications of violating a lawful general order, two specifications of signing a false record, one specification of cocaine use, one specification of possession of cocaine with intent to distribute, one specification of possession of methamphetamine with intent to distribute, one specification of larceny, one specification of forgery, and one specification of assault consummated by a battery; in violation of Articles 81, 92, 107, 112a, 121, 123, and 128, UCMJ, 10 U.S.C. §§ 881, 892, 907, 912a, 921, 923, and 928 (2012). The members sentenced the appellant to five years’ confinement, reduction to pay grade E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence executed.
I. A search authorization must contain probable cause and must describe with particularity the place to be searched, and the persons or things to be seized. The search authorization did not authorize the search and seizure of the appellant’s cellphone data, nor did it list with particularity the places to be searched on the appellant’s cellphone or list any search protocols. In her ruling, the military judge failed to address the search of the appellant’s cellphone data. Did the military judge abuse her discretion when she failed to suppress the search results of the appellant’s cellphone data?
II. Whether the government’s overly-expansive search of the appellant’s trial defense counsel’s office amounted to unlawful command influence?
III. Whether the government committed prosecutorial misconduct when it executed an overly-expansive search of defense counsel spaces at Marine Corps Base Camp Pendleton.