This week at SCOTUS: A petition for certiorari was filed in Tso v. United States, No. 17-479, on September 28, 2017. On May 17, 2017, CAAF summarily affirmed the NMCCA’s decision in Tso in light of its decisions in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (CAAFlog case page), and United States v. Bartee, 76 M.J.141 (C.A.A.F. 2017) (CAAFlog case page). I noted CAAF’s grant of review in this post.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF will hear the first oral arguments of the 2017 term this week, on Tuesday and Wednesday. The court will hear oral argument in four cases and on one motion:

Tuesday, October 10, 2017, at 9:30 a.m.

United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page)

Issue: Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.

Case Links:
• ACCA Order (Feb. 6, 2017) (CAAFlog link)
• ACCA Order (Mar. 16, 2017) (CAAFlog link)
• Appellant’s (Army Gov’t Appellate Div.) brief
• Appellee’s (Jacobsen) brief
• Appellant’s reply brief
• Amicus brief in support of Appellant (A.F. Gov’t App. Div.)
• Blog post: Argument preview

Followed by:

United States v. Guardado, No. 17-0183/AR (CAAFlog case page)

Issues:
I. Whether the Army court incorrectly found that the military judge’s panel instructions were harmless error in light of United States v. Hills.

II. Whether the Army court incorrectly ruled that an offense defined by the President cannot preempt a general Article 134, UCMJ, offense, and that preemption is not jurisdictional in such circumstances.

Case Links:
• ACCA opinion (75 M.J. 889)
• Blog post: The Army CCA dissects Hills
• Blog post: CAAF to review the Army CCA’s decision in Guardado
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Hennis, No. 17-0263/AR (motion to compel funding) (CAAFlog case page)

Case Links:
• Defense motion
• Government Division answer
• Government Division response to CAAF order
• Blog post: Argument preview

Wednesday, October 11, 2017, at 9:30 a.m.

United States v. Mangahas, No. 17-0434/AF (CAAFlog case page)

Issue: Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating LtCol Mangahas’ Fifth Amendment right to a speedy trial.

Case Links:
• AFCCA opinion
• Blog post: Air Force CCA opinion analysis
• Bog post: CAAF grants
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Pugh, No. 17-0306/AF (CAAFlog case page)

Issue: Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.

Case Links:
• AFCCA opinion
• Blog post: CAAF grants review of post-trial Article 62 appeal
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on October 30, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

One Response to “This Week in Military Justice – October 8, 2017”

  1. Scott says:

    The second issue in Gaurdado (the intra-134 preemption issue) is similar to CAAF’s recent decision in Rease: http://www.caaflog.com/2017/06/15/opinion-analysis-a-major-change-becomes-a-structural-error-in-united-states-v-reese-no-17-0028cg/
     
    In Rease CAAF held that a novel 134 offense could not be used to charge conduct already covered by an enumerated 134 offense.  This is not preemption per-se, because, as the lower court said in Gaurdado, preemption requires congressional intent (and also, by its own terms, applies only to a range of punitive articles that does not include 133/134).  However, CAAF pointed out that the relevant EO underlying the MCM allows for the use of a noval specification only when the conduct “does not fall under any of the enumerated Aricle 134 offenses . . .”
     
    This is not preemption exactly, but it is basically failure to state an offense. 

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