A few weeks ago, in this post, I wrote about the Army case of Private Hernandez in which the military judge (Colonel Gross), in a judge-alone contested general court-martial, acquitted the accused of sexual assault of a child and sexual abuse of a child in violation of Article 120(b) (2012) but refused to enter findings to a charge of sodomy with a child in violation of Article 125. At issue is CAAF’s divided opinion in United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008) (link to slip op.), where the court found that the affirmative defense of mistake of fact as to age does not apply in a prosecution for non-forcible sodomy in violation of Article 125. Private Hernandez asserted that affirmative defense and the military judge found that it existed, but did not acquit Private Hernandez outright because of Wilson.
So, the Government sought extraordinary relief from the Army CCA in the form of a write forcing the military judge to make a finding. A three-judge panel rejected the Government effort, but then the court en banc granted the Government a writ of prohibition. Last week Private Hernandez appealed that decision to CAAF:
Misc. No. 15-8001/AR. Randy HERNANDEZ, Appellant v. Colonel Gregory Gross, Military Judge, United States Army, and United States, Appellees. CCA 20140293. Notice is hereby given that a writ-appeal petition for review of the United States Army Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b).
Additionally, on Thursday of last week CAAF granted review of an issue in the certified Air Force case of United States v. Buford. This case is an interlocutory appeal of a military judge’s ruling suppressing the fruits of searches of electronic devices owned by the accused, who is charged with indecent conduct and wrongfully receiving and possessing child pornography in violation of Articles 120 and 134. The military judge suppressed evidence discovered on the accused’s electronic devices (a laptop and a thumb drive) and on external accounts (a Facebook page and an email account) accessed through one of those electronic devices. The CCA affirmed suppression of only the third-party sources, reversing the suppression of evidence discovered on the laptop and thumb drive. I discussed the CCA’s opinion in this post.
The Judge Advocate General of the Air Force then certified the case to CAAF, with the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.
I discussed the certification in this post. While the certified issue questions the military judge’s ruling, CAAF’s grant focuses on the decision of the Air Force CCA that partially reversed the judge’s ruling:
No. 14-6010/AF. United States, Appellant and Cross-Appellee v. Aaron M. BUFORD, Appellee and Cross-Appellant. CCA 2013-26. On consideration of the cross-petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is, ordered that said petition for grant of review is hereby granted on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ERRED BY FINDING A.B. CONSENTED TO LAW ENFORCEMENT’S SEARCH OF THE CENTON THUMB DRIVE AND THE DELL LAPTOP.
In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedures, no further pleadings will be filed.