CAAFlog » CAAF Docket

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF granted review of two issues in Dalmazzi:

I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

II. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a superior officer on the United States Court of Military Commission Review.

CAAF also granted review of Dalmazzi-type issues in 44 trailer cases. Additionally, CAAF accepted an amicus brief from the Military Commissions Defense Organization and granted the organization 10 minutes of oral argument time (discussed here).

But last week CAAF rescinded that grant of argument time to amicus because it found an issue that has the potential to render the claim in Dalmazzi moot:

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On further consideration of the record of trial, as supplemented following the order of the Court dated October 28, 2016, it is ordered that the parties brief the following specified issue:

WHETHER THE ISSUES GRANTED FOR REVIEW ARE MOOT WHERE THE RECORD REFLECTS THAT: MARTIN T. MITCHELL TOOK AN OATH PURPORTING TO INSTALL HIM AS A JUDGE OF THE U.S. COURT OF MILITARY COMMISSION REVIEW (CMCR) ON MAY 2, 2016; THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ISSUED AN OPINION IN THE UNDERLYING CASE WITH JUDGE MITCHELL PARTICIPATING IN HIS CAPACITY AS AN AFCCA JUDGE ON MAY 12, 2016; AND THE PRESIDENT DID NOT APPOINT MITCHELL TO THE CMCR UNTIL MAY 25, 2016.

The parties will brief this issue contemporaneously, and file their briefs on or before December 1, 2016.  It is further ordered that the Court will hear oral argument only on the specified issue at the hearing scheduled for December 7, 2016, and that the order allotting amicus curiae 10 minutes to present oral argument is hereby rescinded.

While this new discovery may resolve the issue in Dalmazzi, the trailer cases (which involve other judges and later decisions) will remain.

Having solved CAAF’s dismissal of the petition for review in Rivera, we can now speculate about this denial of an extension of time for the Judge Advocate General of the Navy to certify a Government appeal, from Friday’s daily journal:

No. 17-0034/NA. U.S. v. Richard A. Latour. CCA 201600114. Notice is hereby given that a motion for an enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and motion to stay the trial proceedings were filed under Rule 30 on this 21st day of October, 2016. On consideration thereof, it is ordered that said motions are hereby denied.

In United States v. Latour, 75 M.J. 723 (N.M. Ct. Crim. App, Jul 12, 2016) (discussed here), a three-judge panel of the NMCCA rejected a Government appeal under Article 62 of a military judge’s ruling that excluded the accused’s admissions for lack of corroboration.

Yesterday, in this post, I noted CAAF’s dismissal of a petition for lack of jurisdiction. I speculated that the absence of jurisdiction was caused by the appellant and his counsel missing the petition deadline.

My speculation was wrong. The pleadings (discussed below) reveal that the deadline wasn’t missed. Rather, prior to petitioning CAAF, the appellant withdrew his appeal.

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Update: As discussed in this post, AF appellate defense did not miss the deadline to petition CAAF in this case.

Last Thursday, October 20th, CAAF dismissed a petition for grant of review in an Air Force case:

No. 16-0501/AF. U.S. v. Richard A. Rivera. CCA 38649. 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 hereby dismissed for lack of jurisdiction.

The petition was filed on May 2nd:

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, May 2, 2016

Petitions for Grant of Review Filed
No. 16-0501/AF. U.S. v. Richard A. Rivera. CCA 38649.

And the AFCCA’s decision is dated February 18th: United States v. Rivera, No. 38649 (A.F. Ct. Crim. App. Feb. 18, 2016). I covered the CCA’s opinion in this post.

May 2 was the 74th day after February 18.

Article 67 provides a 60-day time period for a service member to petition CAAF for review. That time period is jurisdictional, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), but may be extended by a timely reconsideration by a CCA, United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010). Once the 60 days passes, however, a CCA can’t restore it with untimely reconsideration. United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page).

In LaBella the appellant and his detailed Air Force appellate defense counsel didn’t file a CAAF petition and CAAF rejected an attempted rescue-mission by the AFCCA. That ended LaBella’s direct appeal but he and his (replacement) military counsel sought extraordinary relief from the AFCCA, were denied, and then missed the deadline to file at CAAF.

Rivera looks like another Air Force case of a missed deadline.

In the Air Force case of United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page), LaBella’s detailed military defense counsel failed to petition CAAF within the 60-day jurisdictional time limit for doing so. The Air Force CCA subsequently granted a motion to reconsider, ostensibly resetting the 60-day clock. CAAF, however, unanimously held that the CCA lacked jurisdiction to grant the motion to reconsider after the 60-day CAAF deadline expired. Accordingly, because the 60-day time limit had expired, CAAF lacked jurisdiction to review the case and it dismissed LaBella’s petition as untimely filed.

LaBella subsequently sought extraordinary relief from the Air Force CCA, asserting ineffective assistance of counsel (for his detailed military defense counsel’s failure to file a timely petition at CAAF). The CCA denied the petition on July 7, 2016, in a decision that I discussed here.

LaBella then filed a writ-appeal petition at CAAF. However, as discussed here, that petition looked to be untimely. It was filed on September 7 (62 days after July 7), while the deadline to file a writ-appeal petition at CAAF is 20 days from the date of service of the CCA’s decision. See C.A.A.F. R. 19(e) (2016).

Now we know that it was untimely.

Two days ago, CAAF dismissed the petition (in response to a Government motion):

No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Appeals, Appellees.  CCA 37679. On consideration of Appellee’s motion to dismiss writ-appeal petition as untimely filed under Rule 19(e), and Appellant’s motion for leave to withdraw the writ-appeal petition, it is ordered that Appellee’s motion to dismiss the writ-appeal petition is hereby granted, and Appellant’s motion for leave to withdraw the writ-appeal petition is hereby denied as moot.

Readers may recall that the last military case decided by the Supreme Court – United States v. Denedo, 556 U.S. 904 (2009) – ended when Denedo’s counsel missed this same 20-day deadline to file a writ-appeal (discussed here).

In the wake of its blockbuster decision in United States v. Hills, __ M.J. __ (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF this week summarily remanded three other cases in which it granted review of issues involving the use of propensity evidence in sex cases:

No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. On further consideration of the granted issue, 75 M.J. 236 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. May 6, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. June 22, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

The grant in Moynihan was noted here. The grant in Tafoya was noted here. The grant in Williams was noted here.

Still remaining on CAAF’s docket is the certified Air Force case of United States v. Fetrow, No. 16-0500/AF (certification noted here) (CCA’s decision discussed here).  Fetrow involves propensity evidence used in a child sex case (Mil. R. Evid. 414) that the CCA found was not eligible for use under the rule.

In United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page), CAAF held that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea, saving the offense from the appellant’s challenge that it improperly criminalized otherwise innocent conduct.

On Monday CAAF applied Rapert to summarily affirm in another case:

No. 16-0238/AR. U.S. v. Christopher L. Goffe. CCA 20120201. On consideration of the granted issue, __M.J.__ (Daily Journal January 21, 2016), the briefs of the parties, and in view of United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

The Army CCA’s opinion is available here and reveals that (like the appellant in Rapert) the appellant was convicted of communicating a threat in violation of Article 134.

The issue in Rapert involved application of the Supreme Court’s recent decision in Elonis v. United States, 575 U..S. __, 135 S. Ct. 2001, 2012 (2015), in which the Court held that “federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.” Two of CAAF’s authored opinions so far this term address this issue: Rapert and United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).

We’re awaiting a decision in a third such case that was argued in February: United States v. Caldwell, No. 16-0091/AR (CAAFlog case page).

In United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (discussed here), the NMCCA split 4-4 to partially grant the Government’s post-trial petition for extraordinary relief from the military judge’s ruling that it was unlawful punishment to fail to pay the accused at his restored grade of E-6 after his case was reversed on appeal. The Navy JAG subsequently certified the case to CAAF (discussed here) and the accused also filed a writ-appeal petition.

Judge Ryan has recused herself from the case:

Notice of Recusal and Designation

Nos. 16-0289/MC and 16-0367/MC. U.S. v. Stephen P. Howell. CCA 201200264.  Notice is hereby provided that Judge Margaret A. Ryan has recused herself from participation in the above-captioned case. At the request of Chief Judge Charles E. “Chip” Erdmann, Chief Justice John G. Roberts, Jr., has designated Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces in this case pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. § 942(f) (2012).

Recusals are rare at CAAF. I’m only aware of a few in recent history:

  • Judge Ohlson’s recusal from United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page).
  • Judge Ryan’s recusal from United States v. Hernandez, No. 15-0178 (C.A.A.F. Jul. 16, 2015) (vacated as improvidently granted).
  • The recusal of then-Chief Judge Effron, Judge Baker, and Judge Ryan from United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), and United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009).

CAAF’s docket for last week has two interesting entries.

First, the court granted review of an Army case:

No. 16-0184/AR. U.S. v. Bradley T. Fontenelle. CCA 20140424. 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 EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN A CONVICTION FOR THE SPECIFICATION OF THE ADDITIONAL CHARGE IN THAT APPELLANT’S COMMUNICATIONS DO NOT CONSTITUTE “INDECENT LANGUAGE.”

Briefs will be filed under Rule 25.

The Army CCA’s website is still not publicly accessible, so I don’t have a link to the CCA’s opinion (assuming it wasn’t a summary disposition). I will post the opinion if someone with access will email it to zack@caaflog.com

Next CAAF docketed a writ-appeal from what I assume is an alleged victim:

No. 16-0398/MC. EV, Appellant v. E.H. Robinson, Jr., Lieutenant Colonel, U.S. Marine Corps, Military Judge, Appellee and David A. Martinez, Real Party In Interest. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

Last month, in this post, I reviewed the 4-4 en banc decision of the NMCCA on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015).

Last week the Judge Advocate General of the Navy certified the case to CAAF:

No. 16-0367/MC. United States, Appellant/Cross-Appellee v. Stephen P. Howell, Appellee/Cross-Appellant.  Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

WHETHER THE GOVERNMENT MAY INVOKE ARTICLE 66, UCMJ, AS THE JURISDICTIONAL BASIS FOR AN EXTRAORDINARY WRIT PURSUANT TO THE ALL WRITS ACT WHEN THE ISSUE IS NOT INCLUDED AS A BASIS FOR GOVERNMENT APPEAL UNDER ARTICLE 62, UCMJ?

WHETHER THE MILITARY JUDGE, IN FINDING AN ARTICLE 13, UCMJ, VIOLATION, EXCEEDED HIS AUTHORITY BY REJECTING APPLICABLE HOLDINGS OF THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT AND THE COURT OF FEDERAL CLAIMS, IN ORDER TO CONCLUDE THAT APPELLEE WAS ENTITLED TO PAY AT THE E-6 RATE PENDING HIS REHEARING?

WHETHER THE LOWER COURT ERRED BY CONCLUDING THAT THE SETTING ASIDE OF APPELLEE’S FINDINGS AND SENTENCE RENDERED HIS REDUCTION TO PAY GRADE E-1 PROSPECTIVELY UNEXECUTED PENDING REHEARING?

IF A MEMBER’S ORIGINAL SENTENCE INCLUDES AN EXECUTED REDUCTION TO PAY GRADE E-1 AND THE SENTENCE IS SUBSEQUENTLY SET ASIDE, DOES THE ACTION OF PAYING THAT MEMBER AT THE E-1 RATE PENDING REHEARING CONSTITUTE ILLEGAL PRETRIAL PUNISHMENT IN THE ABSENCE OF ANY PUNITIVE INTENT?

Last month, in this post, I discussed a pair of petitions for extraordinary relief filed at CAAF in which the Air Force Government Appellate Division (appearing as the United States) asked the court for an order directing the Air Force Court of Criminal Appeals to conduct an in camera review of appellate exhibits prior to allowing appellate counsel to view them.

Since that post, three additional such petitions were filed.

CAAF denied two of the petitions yesterday:

No. 16-0251/AF. United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Jerry C. Harrison, Real Party in Interest. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that said petition is hereby denied.

No. 16-0270/AF. United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Marcus A. Mancini, Real Party in Interest. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that said petition is hereby denied.

Update: On February 11 CAAF denied the other three petitions.

In a pair of petitions for extraordinary relief filed at the very end of last year, the Air Force Government Appellate Division (appearing as the United States) asks CAAF:

for an order directing the [Air Force Court of Criminal Appeals] to conduct a full in camera review of [appellate exhibits] and only allow appellate defense counsel and appellate government counsel to view any portions of those exhibits that the trial judge abused her discretion in not releasing to the parties at trial.

The petitions are captioned United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Jerry C. Harrison, Real Party In Interest, No. 16-0251/AF (petition available here), and United States, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent and Cory D. Phillips, Real Party In Interest, No. 16-0256/AF (petition available here).

Both cases involve convictions of sex offenses. The records in both cases include medical or mental health records of the alleged victims that were subject to in camera reviews by a military judge at trial but not released to the defense. Appellate defense counsel in both cases asked the Air Force Court of Criminal Appeals to permit them to review the sealed matters in order to determine if there is a basis to challenge the trial judge’s ruling that denied the defense access to the materials at trial. Such a review is a matter of routine, and the CCA granted the defense request in both cases. The Government, however, wants CAAF to prevent that review from occurring.

The petitions address R.C.M. 1103A(b)(4)(A) which states that:

Reviewing and appellate authorities may examine sealed matters when those authorities determine that such action is reasonably necessary to a proper fulfillment of their responsibilities under the Uniform Code of Military Justice, the Manual for Courts-Martial, governing directives, instructions, regulations, applicable rules for practice and procedure, or rules of professional responsibility.

Further, R.C.M. 1103A(b)(4)(D)(iv) defines reviewing and appellate authorities to include:

Appellate defense counsel

However, the petitions assert that:

The purpose of sealing records under Mil. R. Evid. 513 is to protect victims and others from having their records open to those who have no need to view them. It eviscerates the rule and undermines the policy behind it to then allow an appellate defense counsel to have access to the very records that a military judge has declared to be irrelevant. Furthermore, according to AFCCA’s expansive reading of R.C.M. 1103A, if an appellant were to conduct their appeal pro se, without AFCCA first conducting an in camera review, the appellant would then be granted access to the very records Mil. R. Evid. 513 was designed to protect.

Harrison Pet. at 10-11; Phillips Pet. at 11.

Read more »

Our #7 Military Justice Story of 2014 was the Air Force CCA’s reinstatement of the death sentence in the case of Senior Airman Witt, one of only six prisoners on military death row (the others are Gray, Loving, Akbar, Hennis, and Hasan). In 2005 a general court-martial composed of twelve officer members convicted Witt of the premeditated murder of a fellow Airman and his wife, and of the attempted murder of another Airman, and sentenced him to death. About 18 months later the prosecution team published a detailed first-person account of the trial proceedings in the Air Force JAG Corps magazine, The Reporter (available here).

In 2013 Witt’s death sentence was set aside by the Air Force Court of Criminal Appeals sitting en banc (discussed here). The CCA unanimously concluded that Witt’s trial defense team was deficient in failing to investigate three areas relevant for the sentencing portion of the court-martial: Behavioral changes in Witt after a motorcycle accident that occurred four months before the murders, the mental health history of Witt’s mother, and expressions of remorse by Witt that were observed by a deputy sheriff. It split 3-2 on the question of prejudice, narrowly finding that “had the members been confronted with this additional mitigating evidence, there is a reasonable likelihood that at least one member would have struck a different balance between the aggravating and mitigating factors and would have returned with a different sentence.” 72 M.J. at 766. The CCA remanded for a sentence rehearing where Witt could have received another death sentence, a sentence of confinement for life without eligibility for parole, or the mandatory minimum sentence of confinement for life with eligibility for parole.

But then the Government sought reconsideration by the CCA, and in a dramatic reversal the court reinstated Witt’s death sentence in a second en banc decision issued in 2014. United States v. Witt, 73 M.J. 738 (A.F. Ct. Crim. App. Jun. 30, 2014) (discussed here).

The case was forwarded to CAAF, where review is required by Article 67(a)(1).

Last Friday, CAAF specified an issue for briefing that questions the appropriateness of the CCA’s decision on reconsideration:

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785.  On further consideration of the record, it is ordered that the parties brief the following specified issues:

WHETHER A COURT OF CRIMINAL APPEALS SITTING EN BANC CAN RECONSIDER A PREVIOUS EN BANC DECISION OF THAT COURT PURSUANT TO STATUTORY AUTHORITY, APPLICABLE PRECEDENT, OR INHERENT AUTHORITY?

WHETHER A DECISION OF A COURT OF CRIMINAL APPEALS SITTING EN BANC CAN BE RECONSIDERED EN BANC WHEN THE COMPOSITION OF THE EN BANC COURT HAS CHANGED?

The parties will brief these issues contemporaneously, and file their briefs on or before January 5, 2016. Reply briefs on these issues may be filed on or before January 15, 2016.

The Navy JAG certified a case to CAAF last week:

No. 16-0122/MC. U.S. v. Beau T. Martin. CCA 201400315. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

DID TRIAL DEFENSE COUNSEL INVITE ERROR WHEN HE OPENED THE DOOR TO HUMAN LIE DETECTOR TESTIMONY DURING THE CROSS-EXAMINATION OF THE VICTIM’S HUSBAND?

The NMCCA’s decision is available here. The certification is strange because the CCA didn’t just affirm the findings and sentence (after finding that the admission of human lie detector testimony was harmless), but it also noted that:

We are aware that the inadmissible opinion testimony originated with the defense during cross-examination. We are also aware of the “invited response” or “invited reply” doctrine, which permits the prosecution to offer comment or testimony as a fair response to claims made by the defense. See United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). See also United States v. Lewis, 69 M.J. 379, 384 (C.A.A.F. 2011) (“limitation on comments cannot be used by the defense as both a shield and a sword.”) (citations omitted). However, this doctrine does not obviate the error.

United States v. Martin, No. 201400315, slip op. at 8, n.10 (N-M. Ct. Crim. App. Jun. 18, 2015) (emphasis added). The certified issue seems to merely force CAAF to reach the tautological conclusion that an invited error is still an error. Though, perhaps CAAF will go further and limit the use of this doctrine. After all:

Courts have not intended by any means to encourage the practice of zealous counsel’s going “out of bounds” in the manner of defense counsel here, or to encourage prosecutors to respond to the “invitation.” Reviewing courts ought not to be put in the position of weighing which of two inappropriate arguments was the lesser. “Invited responses” can be effectively discouraged by prompt action from the bench in the form of corrective instructions to the jury and, when necessary, an admonition to the errant advocate.

United States v. Young, 470 U.S. 1, 13 (1985).

Update: I forgot that CAAF previously granted review in this case (discussed here) of the CCA’s finding of harmlessness. However, I still think the certification is strange.

CAAF also granted review in an Air Force case:

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538. 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 hereby granted on the following issue specified by the Court:

WHETHER EVIDENCE OBTAINED FROM A POLICE SEARCH OF APPELLANT’S VEHICLE ON OR ABOUT AUGUST 4, 2010, WAS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND SHOULD HAVE BEEN SUPPRESSED.

Briefs will be filed under Rule 25.

The AFCCA’s decision is available here and reveals that the search of the appellant’s vehicle occurred after a police dog gave indications of contraband drugs within (marijuana and glass pipes were found).

Finally, CAAF summarily reversed convictions of aggravated assault and reckless endangerment – but affirmed a conviction of the lesser included offense of assault consummated by a battery – in a trailer case to United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page):

No. 15-0747/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015), we conclude that the evidence was legally insufficient to find beyond a reasonable doubt that Appellant committed the offenses of aggravated assault and reckless endangerment. We further conclude that the evidence was sufficient to affirm assault consummated by a battery as a lesser included offense of aggravated assault. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE IN LIGHT OF UNITED STATES v. GUTIERREZ, 74 M.J. 61 (C.A.A.F. 2015).

The decision of the United States Army Court of Criminal Appeals as to Charges I and IV and their specifications and the sentence is reversed. The findings of guilty as to Charge IV and its specification are set aside and dismissed. The findings of guilty as to Charge I and its specification are affirmed only as to the lesser included offense of assault consummated by a battery. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to either reassess the sentence based on the affirmed findings or order a sentence rehearing.

CAAF denied SGT Bergdahl’s second writ-appeal on Friday, with the following order:

No. 15-0710/AR. Robert B. Bergdahl, Appellant v. Peter Q. Burke, Lieutenant Colonel, AG, U.S. Army, in his official capacity as Commander, Special Troops Battalion, U.S. Army Forces Command, Fort Bragg, NC, and Special Court-Martial Convening Authority and United States, Appellees. CCA 20150463.  On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

I discussed this filing here. All of our Bergdahl coverage is available here.