Here is a link to the hearing page for United States v. Ali, No. 12-0008/AR. The page only has the defense brief, here, but the government’s brief is due Feb. 5, 2012.

Full disclosure, I am an amici (or at least we’ve moved to be amici) in the case as part of the long-windedly titled, “Brief of Amici Curiae John F. O’Connor, Michael J. Navarre, Air Force Appellate Defense Division, and Navy-Marine Corps Appellate Defense Division.”  Our brief, which borrows from the lead amici’s law review article on the same topic, is available here.  

Amici make among other arguments the intial argument that the exercise of court-martial jurisdiction over Mr. Ali is unconstitutional because court-martial jurisdiciton is not the least possible power needed to maintain good order and discipline among active duty troops.  And the amici brief offers CAAF an alternative to finding Art. 2(a)(10), UCMJ unconstitutional by finding that Mr. Ali was not serving “in the field” at the time of his court-martial, as required by  a narrow reading Article 2(a)(10) because the historical understanding of “in the field” is limited to circumstances where it is logistically impractical to turn a civilian over to civilian authorities.

For those in DC wanting to see the historic argument in United States v. Ali, challenging the constitutionality of civilian UCMJ jurisdiction, attending will be an expensive proposition as the argument will be held at the University of Washington School of Law, Seattle, Washington as part of the Court’s Project Outreach.  The argument is currently scheduled for April 5, 2012 at 3:30 p.m.  No word on whether amici are requesting or will be granted time for oral argument.

The Air Force Court of Criminal Appeals (AFCCA) denied a government appeal in United States v. Brissette.

On 24 June 2011, contrary to his pleas, the appellee was convicted of one specification of indecent acts with a minor, in violation of Article 134, UCMJ, 10 U.S.C. § 934. 

On 16 September 2011, the Government filed an appeal under Article 62, UCMJ, 10 U.S.C. § 862.  The Government raises the following issue for our consideration:  that the military judge erred in ruling it was a major change for the Government to add the terminal element to the charge of indecent acts with a minor under Article 134, UCMJ.  We disagree and deny the Government’s appeal.

The adjudged sentence consisted of a bad-conduct discharge and confinement for 13 months.  On 13 September 2011, the military judge set aside the finding of guilty and sentence, after deciding that, in light of the decision in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), the appellee had been tried and convicted without being properly notified as to the terminal element of the Article 134, UCMJ, offense.  The military judge then dismissed the specification and the charge, without prejudice.

On 20 December 2011, the AFCCA issued a docketing notice in the same case.

A Petition for Extraordinary Relief in the Nature of a Writ of Habeas Corpus in the above styled case was filed with this Court by counsel for the appellant on this 20th day of December, 2011.

The CAAF Daily Journal for 28 December 2011 shows this entry.

No. 12-8009/AF. In Re Robert C. BRISSETTE. CCA 2011-07. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, it is ordered that the United States show cause why the requested relief should not be granted no later that 5:00 p.m. on December 29, 2011.

Here is a link to the Julian Assange/Wiki(shhh) writ appeal at CAAF to essentially have access to the classified portions of PFC Manning’s Art. 32 hearing. Yes, that is correct.

Here is the fairly entertaining Motion to Supplement.

Last week CAAF granted review and ordered briefs in two more post-Fosler elements cases:

No. 12-0106/AF.  U.S. v. Michael A. CISNEROS.  CCA S31871.  Review granted on the following issue:

WHERE A SPECIFICATION CHARGED UNDER ARTICLE 134, UCMJ, FAILS TO STATE AN OFFENSE UNDER UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011), BY NOT INCLUDING THE TERMINAL ELEMENTS FOR CLAUSE 1 OR 2, CAN AN ACCUSED PROVIDENTLY PLEAD GUILTY TO SUCH A SPECIFICATION WHERE HE FAILS TO OBJECT TO THE SPECIFICATION AT TRIAL, WHERE THE MILITARY JUDGE ADVISES THE ACCUSED OF THE TERMINAL ELEMENTS DURING THE PROVIDENCE INQUIRY, AND THE ACCUSED ADMITS TO ALL THE ELEMENTS?

No. 12-0140/AF.  U.S. v. Jeremiah C. SLACK.  CCA S31906.  Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELLv. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Also, the following application for extraordinary relief was docketed on 19 December:

Misc. No. 12-8008/AR.  Julian ASSANGE, and WIKILEAKS, Appellants v. UNITED STATES OF AMERICA and Lieutenant Colonel Paul ALMANZA, Appellees.  CCA 20111146.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

LTCOL Almanza is the Article 32 Investigating Officer in the Manning case.

I previously wrote about a rare, published decision from the N-MCCA in United States v. Tarniewicz, in which the CCA took exception to a convening authority action that “purports to direct” execution of a punitive discharge, calling such language “a legal nullity.”

Last week, in an unrelated case, CAAF agreed. The following appears in the Daily Journal for 22 November (No. 12-055):

No. 12-0124/NA.  U.S. v. Kelvin J.C. RODEO.  CCA 201000590.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated:

In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed.

 Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings.  Thus, to the extent that the convening authority’s action purported to execute the dishonorable discharge, it was a nullity.  To avoid any error in this regard, we again suggest that the model “Forms for Action” in Manual for Courts-Martial, United States app. 16 at A16-1 – A16-6 (2008 ed.) be revised.  SeeUnited States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006).  Accordingly, it is ordered that said petition is granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

The N-MCCA’s unpublished decision in Rodeo does not discuss this issue, but does identify the convening authority as Commander, 3d Marine Aircraft Wing.

We haven’t kept up our Fosler Trailer Park updates, see Grants page here .  It should suffice to say there were many Fosler-trailer grants and summary dispos in the last week or so of October 2011.

CAAF has also announced the cases being heard on December 12-13, calendar here:

Dec. 12:  United States v. Michael D. King, Jr., No. 11-0583/NA followed by United States v. Alexander M. Watson, No. 11-0523/MC

Dec. 13:  United States v. Darrian S. Nealy, No. 11-0615/AR followed by United States v. Anthony P. Ballan, No. 11-0413/NA

Other than King, all of the cases are Fosler-style cases.  King features an issue raised via United States v. Grostefon, as our Senior Contributor noted earlier–though Capt. Bottomly now takes up BU3 King’s case on brief and at argument.

CAAF’s Daily Journal has the following entry for Wednesday:

No. 11-5003/NA.  U.S. v. Thomas J. HAYES.  CCA 201000366.  On consideration of the motions filed by Professor Mark Zoole, Adjunct Professor of Law, Washington University School of Law, to file a brief of Amicus Curiae out of time, to appear pro hac vice as counsel of record, to allow appearance of law student on behalf of Amicus Curiae, for Justin Lepp to appear as Amicus Curiae, and for Justin Lepp to submit oral argument as Amicus Curiae, it is ordered that said motions are hereby granted, and that Amicus Curiae will be allotted 10 minutes to present oral argument.

The argument preview for United States v. Hayes is here.

More Fosler trailer Grants/Summary Dispositions . . . . and those zany AF Capital Appellate Counsel are at it again. 

The October Daily Journal has four more Fosler trailer grants/summary dispositions.  Whose manning the tote board on these?

No. 11-0661/AR. U.S. v. Joshua J. CHASTAIN. CCA 20100994

No. 11-0664/NA. U.S. v. Derek L. ALLEN. CCA 201100040

No. 11-0475/AR. U.S. v. Robert L. CONRADY. CCA 20080534

No. 11-0650/AF. U.S. v. Robert A. NICHOLSON. CCA 37642

Chief Judge Baker dissents in all four and Senior Judge Effron dissents in one. 

And the DJ also contains this from our friends in the capital aisle of AF Appellate Defense:

Misc. No. 12-8003/AF. In re Andrew P. WITT, Senior Airman(E-4), United States Air Force, and Matthew E. Takara, Senior Airman (E-4), United States Air Force, Petitioners v. The United States, and United States Air Force Court of Criminal Appeals, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of an emergency stay was filed under Rule 27(a) on October 6, 2011, and placed on the docket this date.

 Misc. No. 12-8004/AF. In re Andrew P. WITT, Senior Airman(E-4), United States Air Force, and Matthew E. Takara, Senior Airman (E-4), United States Air Force, Petitioners v. The United States, and United States Air Force Court of Criminal Appeals, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of prohibition was filed under Rule 27(a) on October 6, 2011, and placed on the docket this date.

And lastly, I noticed tucked in there that Senior Judge Cox has been assigned to a few cases.

Wednesday’s Daily Journal shows that a petition for grant of review was filed in U.S. v. Leubecker, N-MCCA No. 201100091.

Leubecker is one of seven post-Fosler cases in which the N-MCCA affirmed a finding of guilty to an Article 134 specification lacking a terminal element where the accused was convicted pursuant to his pleas and did not object to the specification at trial. We covered the CCA’s unpublished decision in Leubecker here. Additional coverage of the issue is here.

The case has CAAF number 12-0073/MC.

CAAF also posted within the last month the briefs for its November calendar, at least for Nov. 2-3.  The current schedule is available by clicking below.  I note that Reservist CAAFlog contributor LCDR Brian Mizer will make a return appearance “at CAAF”–he’ll actually argue at one of the two Project Outreach sites (Scott Air Force Base, Illinois). 

Read more »

We’ve previously given CAAF credit, here, for making briefs available for upcoming arguments.  The CAAF argument calendar, which has been up for a while now, provides links, here, to all the briefs for arguments in October. 

I noticed, strangely, that appellant’s counsel only filed reply briefs in 2 of the cases to be argued.  It doesn’t seem this is a technical glitch, so is not filing a reply brief a standard practice?  If the rules provide for another opportunity, especially the final shot, why wouldn’t an advocate take it? 

The October calendar is available after the break, which we’ll preview on TWIMJ each week.  Note that the Kreutzer case makes yet another appearance at CAAF. 

Read more »

Phil “My Liege” Cave notes on his blog that a CAAF petition was filed in United States v. Behenna, No. 12-0030/AR, on Monday.  Yesterday, CAAF granted a motion for an extension of time to file the supplement, which is due on 11 October.

Following yesterday’s destruction at the Blazier Trailer Park, which was even more widespread than we first appreciated, a tornado hit the Fosler Trailer Park today.  At least 10 Air Force trailers were carried away today.  We’re still awaiting the storm damage assessment from the other services’ areas of the park.

A typical order read: 

On further consideration of the granted issue, 70 M.J. 221 (C.A.A.F. 2011), it is, by the Court, this 21st day of September, 2011,

ORDERED:

That the decision of the United States Air Force Court of Criminal Appeals is hereby vacated. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

Chief Judge Effron and Judge Baker separately dissented, citing their dissents from Fosler.

CAAF today set aside AFCCA’s decision and remanded for a harmless error determination in the Blazier trailer case of United States v. Nutt, No. 10-0668/AF.  Judge Baker, joined by Judge Stucky, dissented, noting that he would affirm based on his separate opinion in United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011).  AFCCA’s unpublished decision in the case is available here.  United States v. Nutt, No. ACM S31600 (A.F. Ct. Crim. App. May 6, 2010).