CAAF granted review in three cases on December 3rd, summarily reversing the CCA in one.
First, CAAF granted review in United States v. Nettles, No. 14-0754/AF. I discussed the AFCCA’s opinion in this case in a post last June titled: The AFCCA rejects constitutional protections for threesomes. But CAAF will not consider the appellant’s as-applied constitutional challenge to his conviction for indecent acts in violation of Article 134 based upon his actions in permitting a third-party to watch and videotape consensual sexual activity between himself and his partner. Rather, CAAF will consider a more fundamental question:
Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.
This issue was considered by the AFCCA, but it was rejected based on the court’s conclusion that the appellant never received a discharge certificate. The CCA’s opinion gives what might be a preview of the appellant’s argument to CAAF:
The appellant argues that ARPC’s 25 September 2012 order was self-executing, or to put it differently, that ARPC issued a prospective discharge certificate. To satisfy the first prong of discharge case law (that the discharge certificate must be delivered to be effective), he argues that ARPC’s 14 March 2012 notice that a discharge would occur in the future was in effect the “delivery” of the discharge certificate that would not be generated for another six months.
United States v. Nettles, No 38336, slip op. at 5 (A.F. Ct. Crim. App. Apr. 21, 2014) (emphasis added) (link to unpub. op.).
CAAF’s second grant was in another trailer to the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page):
No. 15-0116/AR. U.S. v. Derrick L. Hardy. CCA 20120816. 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 IT WAS AN ABUSE OF DISCRETION FOR THE MILITARY JUDGE TO ACCEPT A PLEA OF GUILTY FOR WILLFUL VIOLATION OF A SUPERIOR COMMISSIONED OFFICER IN THE SPECIFICATION OF CHARGE I DESPITE THE ULTIMATE OFFENSE DOCTRINE AND THE MILITARY JUDGE’S APPLYING THE MAXIMUM PUNISHMENT FOR BREAKING RESTRICTION UNDER ARTICLE 134, UCMJ.
No briefs will be filed under Rule 25.
This is the sixth such trailer case. I discussed the other five in this post.
Finally, CAAF granted and summarily reversed in a Marine Corps case involving a second convening authority’s action issued after the record of trial was forwarded to the CCA for appellate review:
No. 15-0077/MC. U.S. v. Matthew T. Engler. CCA 201300365. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the record of trial, the Court notes a number of errors in the post-trial processing of this case and decision of the lower court: (1) the civilian defense counsel advised the staff judge advocate that he would not submit clemency matters, but then submitted clemency matters several weeks after the convening authority took his initial action; (2) the convening authority purported to take a second action after he forwarded the record to the lower court and thereby lost jurisdiction in the case; (3) the convening authority failed to include the clemency matters in the record; (4) the lower court failed to order the government to produce the missing clemency submission; and (5) the lower court found a legal basis for a conclusion of no prejudice in the second action despite that action being a legal nullity. Accordingly, it is ordered that said petition is hereby granted on the following issue:
CAN A MILITARY APPELLATE COURT USE AN UNLAWFUL CONVENING AUTHORITY’S ACTION TO NEGATE PREJUDICE WHEN TESTING FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING POST-TRIAL CLEMENCY PROCESSING?
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the convening authority’s actions are set aside. The record of trial is returned to the Judge Advocate General of the Navy for submission to an appropriate convening authority for a new recommendation and action. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867 (2012) shall apply.
The NMCCA’s opinion is available here.