CAAF recently granted review in three cases.

The first is an Army case involving the good-faith exception to the warrant requirement (

No. 18-0211/AR. U.S. v. Graham H. Smith. CCA 20160150. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELLULAR TELEPHONE BECAUSE ACCESS TO THE CONTENTS OF THE IPHONE WOULD NOT HAVE BEEN AVAILABLE BUT FOR THE GOVERNMENT’S ILLEGAL SEARCH AND THE GOOD FAITH DOCTRINE WOULD BE INAPPLICABLE UNDER THE CIRCUMSTANCES

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DEEMING THE INSUFFICIENT NEXUS ISSUE WAIVED BECAUSE THERE WAS NO DELIBERATE DECISION NOT TO PRESENT A GROUND FOR POTENTIAL RELIEF BUT INSTEAD ONLY A FAILURE TO SUCCINCTLY ARTICULATE THE GROUNDS UPON WHICH RELIEF WAS SOUGHT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The second is also from the Army and involves a potential major change:

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE GOVERNMENT MADE MAJOR CHANGES TO THE TIME FRAME OF THREE OFFENSES, OVER DEFENSE OBJECTION, AND FAILED TO PREFER THEM ANEW IN ACCORDANCE WITH RULE FOR COURTS-MARTIAL 603.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here.

The third is from the Air Force and involves the sufficiency of a conviction for wrongful possession of child pornography:

No. 18-0288/AF. U.S. v. Jeremiah L. King. CCA 39055. 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 granted on the following issue:

THE MILITARY JUDGE FOUND APPELLANT GUILTY OF VIEWING CHILD PORNOGRAPHY. BUT ALL OF THE ALLEGED CHILD PORNOGRAPHY APPELLANT ALLEGEDLY VIEWED WAS FOUND IN UNALLOCATED SPACE OR A GOOGLE CACHE. IS THE EVIDENCE LEGALLY SUFFICIENT?

Briefs will be filed under Rule 25.

The only opinion I can find on the Air Force CCA’s website is a merits decision from July 26, 2017, available here.

4 Responses to “Three CAAF grants”

  1. k fischer says:

    I think we are waiting for just one C.A.A.F. opinion: US v. Barry.

  2. JHern says:

    Zach,
    Any chance that you could get copies of the filings at the CCA in KING?  Cheers Mate.
    -JAH

  3. Philip D. Cave says:

    There’s also a very interesting issue of AFCCA’s “deliberative process” is the way I’d characterize it. Surprised CAAF didn’t grant on that.  But if they see this being resolved on the granted issue, then how the AFCCA dealt with the issues is OBE.

  4. Philip D. Cave says:

    Here’s a link to the Supplement.
    I thought Montalvo did a good job at AFCCA put the issue in play.
    Can’t say why CAAF decided not to remand or take up the issues with AFCCA’s handling.  As we all tell appellate clients, we don’t know why CAAF denies a petition or issue.  They follow the Supremes, and unless there’s a dissent to a denial we can only guess.  But, think Fosler.

    SUPREME COURT DECISIONS NOT SACROSANCT.  Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity and propriety of doing so has been established. See Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989).

    And,

    EFFECT OF DENIAL OF CERTIORARI.  [D]enial of a petition for writ of certiorari . . . simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter “of sound judicial discretion.” A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.. . . Inasmuch, therefore,  all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated.  United States v. Carver, 260 U.S. 482 (1923).  See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)(“Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner”); and see, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7.

    Perhaps CAAF decided they’d see the issue anyway and decided to step in now.  That’s our gossip on the gossip circuit.

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