CAAF granted review in two cases last week.
First is an Air Force case that looks very similar to United States v. Commisso, 76 M.J. 315 (C.A.A.F. Jun. 26, 2017) (CAAFlog case page) (reversing findings because of dishonest answers from three members during voir dire):
No. 17-0482/AF. U.S. v. Kenneth W. Frank, Jr. CCA 38854. 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. WHETHER TSGT MA SHOULD HAVE BEEN DISMISSED FROM THE COURT-MARTIAL PANEL FOR IMPLIED BIAS.
II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF MISCONDUCT THAT WAS CHARGED AND LATER DISMISSED FOR LACK OF EVIDENCE UNDER MILITARY RULE OF EVIDENCE 413 AND PROVIDING THE STANDARD MILITARY RULE OF EVIDENCE 413 INSTRUCTION.
Briefs will be filed under Rule 25.
The CCA’s opinion is available here and reveals that a military judge conducting a DuBay hearing determined that “TSgt MA failed to honestly answer questions during voir dire. In particular, the military judge found TSgt MA did know Appellant at the time of trial, and found TSgt MA’s testimony at the DuBay hearing that she did not know him, did not recognize his name on the charge sheet, and did not recognize his face at trial to be ‘not credible.'” Slip op. at 5. Nevertheless, the military judge found no bias and the CCA affirmed.
As for the Mil. R. Evid. 413 evidence, the CCA’s opinion reveals that the encounter offered by the prosecution under 413 was first offered by the defense – and allowed by the military judge – under Mil. R. Evid. 412. See slip op. at 16. Also, the defense did not object to the instructions. See slip op. at 19.
Second is a Marine Corps case that looks to be a trailer to United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016), rev. granted, 76 M.J. 166 (C.A.A.F. Mar. 3, 2017) (CAAFlog case page):
No. 17-0495/MC. U.S. v. Benjamin D. Luna. CCA 201500423. 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 THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY APPLIED THE STANDARD FOR ASSESSING PREJUDICE AFTER FINDING CONSTITUTIONAL ERROR BASED ON UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).
No briefs will be filed under Rule 25.
The CCA’s opinion is available here. CAAF will hear oral argument in Guardado on October 10, 2017.