CAAFlog » CAAF Docket

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.

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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.

The Judge Advocate General of the Air Force certified two cases to CAAF this week:

No. 15-0750/AF. U.S. v. Kevin Gay. CCA 38525.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY REACHING ITS DECISION THAT ARTICLE 66, UCMJ, GRANTS IT THE AUTHORITY TO GRANT SENTENCE APPROPRIATENESS RELIEF FOR POST-TRIAL CONFINEMENT CONDITIONS EVEN THOUGH THERE WAS NO VIOLATION OF THE EIGHTH AMENDMENT OR ARTICLE 55, UCMJ, IN DIRECT CONTRAVENTION OF THIS COURT’S BINDING PRECEDENT.

I discussed the AFCCA’s published decision in Gay in this post.

No. 15-0749/AF. U.S. v. Daniel H. Chin. CCA 38452.  Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT’S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F.2009)

The AFCCA’s decision in Chin is available here. The appellee pleaded guilty to “six specifications of failure to obey a lawful general order or regulation, seven specifications of dereliction of duty, one specification of larceny, and five specifications of unauthorized possession of documents relating to the national defense and failure to deliver said documents to the officer or employee of the United States entitled to receive them,” in violation of Articles 92, 121, and 134. Slip op. at 1-2. The charges are largely related to the appellee’s mishandling of classified information.

As part of a pretrial agreement, the appellee agreed to waive all waivable motions, and the appellee’s trial defense counsel specifically stated that but for that provision she would have made “multiplicity motion both [on] findings and sentencing.” Slip op. at 5. Notwithstanding these waivers, the AFCCA found an unreasonable multiplication of charges for both findings and sentencing purposes, exercising its authority under Article 66(c) to affirm only the findings and sentence that it believes should be approved. As a result, the CCA disapproved three of the specifications, but approved the sentence as approved by the convening authority.

Relying on its recent Confrontation Clause decision in United States v. Katso, __ M.J. __ (C.A.A.F. Jun. 30, 2015) (CAAFlog case page), on Monday CAAF summarily affirmed the Army CCA’s decision in Bennett:

No. 14-0658/AR. U.S. v. Corey J. Bennett. CCA 20111107.  On consideration of the granted issue, 74 M.J. 46 (C.A.A.F. 2014), and in view of United States v. Katso, 74 M.J. __ (C.A.A.F. 2015), we conclude that the findings of the United States Army Court of Criminal Appeals regarding the expert’s review of Prosecution Exhibit 7 were not clearly erroneous and compel the conclusion that the expert undertook a sufficient degree of independent analysis to render her opinion admissible even if it was based in part on inadmissible information.  Accordingly, it is ordered that the decision of the United States Court of Criminal Appeals is hereby affirmed.*

* OHLSON, Judge (concurring in the result):

While I adhere to my dissenting opinion laid out in the factually distinguishable case of United States v. Katso, 74 M.J. __ (C.A.A.F. 2015), I concur in the result because I do not find the Court of Criminal Appeals’ findings on the granted issue to be clearly erroneous.

CAAF’s decision avoids a sub-issue of corroboration of the appellant’s confession to use of marijuana. I mentioned the grant of review in this post.

Sergeant Bergdahl has filed another writ-appeal petition at CAAF:

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-Marital Convening Authority and United States, Appellees.  CCA 20150463.

Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on petition for extraordinary relief in the nature of a writ of quo warranto or other appropriate writ was filed under Rule 27(b) on this date.

Quo warranto means “by what authority.” A complete copy of the writ-appeal petition is available here.

The issue presented is:

Where the Secretary of the Army refers a report of offense to a general court-martial convening authority on the express condition that he “may not further delegate this authority,” may he nonetheless forward it to a subordinate commander for all purposes other than ultimate disposition?

The petition digs deep into the finer points of court-martial procedure, but I’m going to try my best to summarize it in plain English.

Read more »

In United States v. Blouin, __ M.J. __ (C.A.A.F. Jun. 25, 2015) (CAAFlog case page), CAAF narrowly reversed the appellant’s pleas of guilty to possession of child pornography where the images involved non-nude depictions of minors. Writing for the majority, Judge Erdmann implicitly rejected the holding of United States v. Knox, 32 F.3d at 736, (3d Cir. 1994) (Knox II), and seemingly held that a lascivious exhibition of the genitals or pubic area must include an unclothed depiction of that area. However, this holding is a little unclear, since CAAF merely found the plea insufficient to sustain the conviction. But in doing so, CAAF reversed the published decision of the Army CCA that had affirmed the plea.

A trailer to Blouin has the potential to provide additional clarity. In United States v. Gould, No. 20120727 (A. Ct. Crim. App. Sept. 16, 2014) (link to slip op.), the Army CCA found that the appellant’s conviction for production of child pornography was legally sufficient, relying on its own decision in Blouin that CAAF later reversed. CAAF granted review in Gould in January (grant discussed here). But last week, the court summarily remanded the case for further consideration in light of Blouin:

No. 15-0129/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727.  On further consideration of the granted issue, __ M.J.__ (Daily Journal January 21, 2015), and in light of United States v.Blouin, 74 M.J. __ (C.A.A.F. 2015), the decision of the United States Army Court of Criminal Appeals as to Charge II and Specification 1 thereunder and the sentence is reversed.  The decision of that court as to the remaining charge and specification is affirmed.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further consideration in light of Blouin.

The CCA’s opinion doesn’t provide much detail about the images at issue in Gould, but it does explain that the appellant was convicted contrary to his plea of not guilty. If the case involves only non-nude images alleged to constitute lascivious exhibition of the genitals or pubic area, Gould should provide further clarity on whether such images are legally sufficient to constitute child pornography.

CAAF’s daily journal was just updated to show that on Tuesday the court denied two significant petitions for extraordinary writs.

The first was a petition from an alleged victim in an ongoing court-martial. I discussed the petition in a post titled: An alleged victim seeks extraordinary relief from CAAF.

No. 15-0606/MC. CB v. Moira Modzelewski, Captain, U.S. Navy, in her official capacity as Military Judge, Appellee, and Donald Foster, Lance Corporal, U.S. Marine Corps, Real Party in Interest. CCA 201500058. On consideration of the writ-appeal petition, Appellant’s motion for a stay of trial court proceedings, and the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time, the motion of Amicus Curiae Protect Our Defenders to file a proposed brief out of time is hereby granted; Appellant’s motion for a stay of trial court proceedings is hereby denied; and Appellant’s writ-appeal petition is hereby denied.

The second was a petition from Sergeant Bergdahl that I discussed in a post titled: Bergdahl seeks extraordinary relief.

No. 15-0616/AR. Robert B. Bergdahl v. Mark R. Milley, General, U.S. Army, in his official capacity as Commanding General, U.S. Army Forces Command and General Court-Martial Convening Authority. CCA20150383.  On consideration of the writ-appeal petition, and the motions filed by Alfredo N. Foster, Jr., Esq., and Franklin D. Rosenblatt, Esq., to appear pro hac vice, said motions are granted. The writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

Notably, in the Bergdahl petition, CAAF granted the government an extension of time to file an answer to the petition, even though the government requested the extension after the deadline to file the answer had already passed (discussed here).

I noted the petition for review in the Marine Corps case United States v. Sterling, No. 15-0510/MC, in this post. The case asserts a violation of the Religious Freedom Restoration Act (RFRA) in the application of a military order.

Friend of CAAFlog Don Rehkoph forwards the Government’s answer to the petition for grant of review (available here), as well as an amicus brief he authored on behalf of the Military Religious Freedom Foundation and in support of neither party (available here). Both briefs argue that CAAF should deny review.