This week at SCOTUS: The Solicitor General received extensions of time to file responses to the cert. petitions in Bartee and Tso. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking eight cases:
- Dalmazzi v. United States, No. 16-961 (cert. granted Sep. 28; oral arg. on Jan. 16) (CAAFlog case page) (SCOTUSblog case page)
- Alexander v. United States, No. 16-9536 (held since conf. on Oct. 13)
- Bartee v. United States, No. 17-175 (resp. requested, due Dec. 6)
- Abdirahman, et al. v. United States, No. 17-206 (held since conf. on Oct. 13)
- Tso v. United States, No. 17-479 (pet. filed Sep. 28; resp. due Dec. 16
- Herrmann v. United States, No. 17-593 (dist. for conf. on Nov. 21)
- Cash v. United States, No. 17A415 (ext. of time to file granted to Dec. 22)
- Richards v. United States, No. 17-701 (pet. filed Nov. 9; resp. due. Dec. 14)
This week at CAAF: CAAF will hear oral argument in four cases this week:
Tuesday, November 28, 2017, at 9:30 a.m.:
United States v. Jerkins, No. 17-0203/AR (CAAFlog case page)
Issue: Whether the military judge abused her discretion by allowing a general officer memorandum of reprimand into sentencing evidence, where the reprimand was issued two weeks before the court-martial and contained highly prejudicial and misleading language.
United States v. Acevedo, No. 17-0224/AR (CAAFlog case page)
Issue: Whether the evidence is legally insufficient to support a charge of kidnapping by inveiglement.
Note: The case is also an Ortiz trailer.
Wednesday, November 29, 2017, at 9:30 a.m.:
United States v. Robinson, No. 17-0231/AR (CAAFlog case page)
I. Whether the miltiary judge erred by failing to admit constitutionally required evidence under Military Rule of Evidence 412(b)(1)(C).
II. Whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for the specification of Charge 1, which involved an Article 92, UCMJ, violation of Army Regulation 600-20.
Whether the evidence was legally sufficient to establish that Appellant knew or reasonably should have known that SPC VM was too intoxicated to consent to a sexual act.
ACCA opinion (summary disposition)
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) answer
• Appellant’s reply brief
• Amicus brief (Protect Our Defenders) in support of Army Gov’t App. Div.
United States v. Simpson, No. 17-0329/AR (CAAFlog case page)
Certified 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).
This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.
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 at the CCA.
This week at the NMCCA: The Navy-Marine Corps CCA, sitting en banc, will hear oral argument in one case this week, on Tuesday, November 28, 2017, at 10 a.m.:
United States v. Christopher, NMCCA No. 201600249
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of three specifications of assault consummated by a battery upon a child in violation of Article 128, UCMJ, and one specification of indecent acts with a child in violation of Article 134, UCMJ. Members acquitted him of four specifications of assault consummated by a battery upon a child, and one specification of indecent acts with a child. The court-martial sentenced appellant to total forfeiture of all pay and allowances, six years confinement, and reduction to paygrade E-1.
In a post-trial 39(a) session, the MJ found the statute of limitations barred prosecution of two specifications of Charge I. The MJ dismissed those specifications and declared a mistrial as to sentencing. At resentencing, a new panel of officers and enlisted members sentenced the appellant to two years confinement, reduction to paygrade E-1, and awarded a dishonorable discharge.
I. Court-martial jurisdiction requires that charges be referred by a “competent authority.” Did the court-martial lack in-personam jurisdiction over the appellant where he was a validly retired servicemember at the time of preferral, his retirement was never canceled by SECNAV, the case was referred by a subordinate commander, and R.C.M. 601(b)(3) requires referral for retirees to be completed by SECNAV, the “competent authority,” as a prerequisite to jurisdiction?
[II].. Before accepting CTT1 Christopher’s guilty plea, the military judge had a duty to advise him of his right to assert the protection of the statute of limitations. In failing to do so, did the military judge abuse her discretion?
[III]. United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), requires that the military judge clarify ambiguous findings by the members on a conviction in order for a factual sufficiency review to be completed. Must the appellant’s conviction under Article 134 be overturned where the members were not given instructions to make a specific finding as to the date of the offense, and where the evidence presented showed the offense could have occurred outside the statute of limitations?