This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral arguments at CAAF are on February 19, 2019.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Tuesday, February 12, 2019, at 10 a.m.:

United States v. Steele, No. 20170303

Issues:
I. Whether the convening authority improperly approved the appellant’s sentence without a substantially verbatim transcript, in violation of Rule for Courts-Martial 1103(f)(1).

II. Whether the evidence is legally and factually insufficient to support the appellant’s conviction for indecent exposure.

Wednesday, February 13, 2019, at noon:

United States v. Lopez, No. 20170386

Issues:
I. Whether the Fort Benning garrison commander had the legal authority to order searches in privatized housing at Porter Village.

II. Does MCOE regulation number 190-11 prohibit the possession of unregistered firearms (or other applicable weapons) in Porter Village? If not, did the garrison commander still have a substantial basis for concluding that probable cause existed to search appellant’s house?

III. Assuming there was not probable cause to search appellant’s house, does the good faith exception apply? See United States v. Thomas, 908 F.3d 68 (4th cir. 2018); see also United States v. Perkins, 78 M.J. 550 (N.M. Ct. Crim. App. 2018) (certificate of rev. filed) __ M.M. __ (C.A.A.F. 10 Sep. 2018).

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 website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, February 14, 2019, at 10 a.m.:

United States v. King, No. 201800016

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted appellant, a Master-At-Arms Seaman (E-3), contrary to his pleas, of one specification of sexual assault in violation of Article 120, UCMJ. The members sentenced him to confinement for eight years, reduction to the pay grade of E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The CA ordered the sentence executed, except for the dishonorable discharge.

Issues:
I. Does Article 120(b)(1)(B) of the UCMJ fail to provide adequate standards by which an ordinary person can intelligently choose, in advance, whether a sexual encounter would be lawful, rendering it unconstitutionally vague?

II. Were the findings instructions plainly erroneous because lack of consent was not included as an element of the offense of sexual assault by bodily harm, and because the instructions would have permitted a conviction without the prosecution proving lack of consent beyond a reasonable doubt?

5 Responses to “This Week in Military Justice – February 10, 2019”

  1. Cloudesley Shovell says:

    Lopez at the Army court looks to have some interesting issues.  I wonder if the Staff Judge Advocate ever recommended getting a judge to issue the warrant. 
     
    One wonders what level of gov’t involvement is required such that a military commander has authority to authorize searches of housing where a person subject to the UCMJ happens to reside.  What of family members who are living there?  What about their rights, if any at all in a search scenario?  Could evidence discovered in a military commander authorized search be used against civilian family members in a proceeding in civilian court?  Would the acceptance of a government housing allowance, without more, be sufficient to authorize a search ordered by a military commander?  Is the on-base/off-base distinction the bright line?  Is it the fact that the property is owned by the federal government, even if it is not “on base”?  Interesting questions.
     
    –CS

  2. Vulture says:

    Just to clarify in Lopez CS, that housing section is in a Dohlonega GA, about 250 miles North up the Chatahoochee from Benning.   Small beans for the Commander of THE Maneuver Center of Excellence, waterborne op and all.  But the idea of the good faith exception in the case of a weapons search is so strained it begs the assertion that ACCA has gone from the Orwellian to the Vaudevillian.  Altruistic search and seizure isn’t the way an open door policy works.
     
    For the sake of institutional parity, this is an appropriate case for Dohlanega.  There are a lot of slippery slopes up there.

  3. Fisch says:

    Re: Lopez
     
    So, if Porter Village is close to Camp Merrill as it states on the website, then it seems that it is not within the Garrison Commander’s realm of authority to order a search.  Otherwise, you would need a civilian warrant.
     
    Re: King
     
    I am particularly interested in the first certified issue.  I eagerly await the facts of the case for review.

  4. Cloudesley Shovell says:

    Re: Lopez 
     
    I looked it up.  Camp Merrill is out in the boonies, no housing anywhere near it.  Porter Village is in town, 12 miles away.  You can look it up.  The management office for Porter Village is at 55 Lucas Ct., Dahlonega, Georgia.  Just off Rebel Drive, one street down from Law Court, amusingly enough. 
     
    All my questions remain.  Who actually owns the land and the houses?  What are the property arrangements?  From whence flows the applicable commander’s authority to search a home at that particular spot?  What jurisdictional issues are there?  Is it an area of exclusive jurisdiction?  Concurrent?  State only?  Were these factual issues actually litigated at trial?  If so, the case is a unicorn.
     
    Kind regards,
    CS
     

  5. stewie says:

    I thought it had been pretty well established that you can’t order a search in privatized housing as a commander??

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