Unhappy with its argument in Barry, the Navy-Marine Corps Appellate Government Division offers a different one
A reader forwarded what appears to be a motion filed by the Navy-Marine Corps Appellate Government Division in United States v. Barry, No. 17-0162/NA (CAAFlog case page), titled: Appellee’s Motion to Clarify Position in Response to Questions at Oral Argument.
I write appears to be because this could be a late April Fools Day joke. Part of me hopes it is.
Nevertheless, with that caveat, the motion is available here.
The United States moves under Rule 30 for leave to file a Motion to Clarify the United States’ position in response to questions at Oral Argument. Good cause exists: little or no precedent governs this situation where the convening authority’s post-action statements demonstrate that notwithstanding receiving legally correct advice in the Addendum Staff Judge Advocate’s Recommendation, and signing an unambiguous and legally correct Convening Authority’s Action, he misunderstood his Article 60 powers and demonstrably considered matters outside the Record, arguably adverse to the accused, but disclosed none of them prior to taking Action.
Mot. at 1.
It’s a thoroughly unusual pleading made worse by the fact that the pronoun the United States is used to refer to the Government as a party to the case (as in: “The United States moves under Rule 30. . .” Mot. at 1), to the attorney who argued the case before CAAF (as in: “The United States responded ‘yes’ and ‘it’s possible.'” Mot at 3), and to the Navy-Marine Corps Appellate Government Division (as in: “The United States does not believe. . .” Mot. at 3 n.3).