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 argument date at CAAF is May 7, 2019, however CAAF’s website should no scheduled oral arguments.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday April 30, 2019, at 10 a.m.:

United States v. Clark, No. 20170023

I. Whether the miltary judge erred by finding statements from two CID agents made during appellant’s videotaped interrogation were not “statements” for R.C.M. 914 purposes?

II. If the military judge erred, do the good faith loss or harmless error doctrines otherwise apply when the military judge made a previous ruling that “no evidence of bad faith on the part of any Government actor” existed in the government’s loss of one of the five discs from appellant’s videotaped interrogation?

III. If error exists and the good faith loss or harmless error doctrines do not apply: (1) what evidence and testimony should have been excluded; and (2) what is the proper test, if any, for this court to apply prejudice?

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 Wedesnday, May 1, 2019, at 1 p.m.:

United States v. Sager, No. 201400356

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of one specification of abusive sexual contactin violation of Article120, UCMJ, 10 U.S.C. §920(2012). The Members sentenced Appellant to twenty-four months of confinement and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed.

Issue: This case is before this Court for further review after our initial decision on direct appeal was vacated by the United States Court of Appeals for the Armed Forces and after this Court granted the government’s request for reconsideration of its opinion on remand. May the Court now consider the government’s argument, raised for the first time, that the members announced a general verdict?

See United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page).

8 Responses to “This Week in Military Justice – April 28, 2019”

  1. Anon2 says:

    Hi Zach, how are you able to see what’s going on at ACCA? I haven’t been able to get past the firewalls on their website.  

  2. Bill Cassara says:

    Anon: When you click on the site, you will get a message that says to “Go Back” but gives you the option to “Request a Security Exception” (or something like that.)  Click yes and follow the link. 

  3. Zachary D Spilman says:

    The Army CCA (like many DoD websites) uses a self-signed SSL certificate. Most browsers reject those with a warning that can be bypassed with varying degree of difficulty depending on the browser.

  4. Fisch says:

    Can’t wait to hear the Clark oral argument and understand the context of why the Military Judge found that words uttered by CID agents during an interrogation weren’t “statements.”  And whether the disc that went missing would have shown the non-statements made by the two CID agents?  And, if the missing disc had the non-statements on them that would have supported a lack of credibility by the CID agents, how ‘evidence of bath faith’ would have been relevant in light of that case where the destroyed video of the Vic and accused walking back to her barracks room where other witnesses testified as to what was on that video resulted in a ruling adverse to the Government.  Was evidence of bath faith relevant in that case?  Zack, what case am I thinking of.  I read it on a while ago.

  5. Zachary D Spilman says:

    The Army CCA doesn’t post argument audio.

    The R.C.M. 914 (military Jencks Act) case you’re thinking of is United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page).

    But United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015) (CAAFlog case page), could also apply to the situation in Clark.

    2015 sure was a bad year for military prosecutors. . .


  6. Michael Lowrey says:

    NMCCA has posted the audio from United States v. Begani, which was argued on March 29, at Penn State. This case is potentially a big deal and the issue likely gets to CAAF either here or from some other case in the future. The issue:

    Does Article 2 of the UCMJ violate the Appellant’s right to Equal Protection by subjecting him to court-martial after retiring from active service, if retired and non-activated Reservists are not subject to court-martial?
    Was this issue waived by the Appellant’s unconditional guilty plea?

  7. Zachary D Spilman says:

    The audio in Begani is available on our oral argument podcast.

  8. Fisch says:


    The Army CCA doesn’t post argument audio.

    Well, don’t I feel like Col Jessup after he asked Kaffee about his father……
    Actually, the case I was thinking of was Seton where the video, according to a witness who viewed the video that was subsequently destroyed, showed the interactions between the alleged vic and the accused before and after the event and contradicted her testimony:

    R.C.M. 703(f)(2) does not require the accused to demonstrate bad faith on the part of the Government, something an accused may have to demonstrate to obtain relief under Article 46, UCMJ, or the Due Process Clause. United States v. Terry, 66 M.J. 514, 518 (A.F. Ct. Crim. App. 2008). R.C.M. 703 therefore represents “the President[] going even further than the Constitution and the Uniform Code in providing a safeguard for military personnel.” United States v. Manuel, 43 M.J. 282, 288 (C.A.A.F. 1995).

    United States v. Seton, No. 2013-27, 2014 CCA LEXIS 103, at *11 (A.F. Ct. Crim. App. Feb. 24, 2014)