CAAFlog » CAAF Docket

CAAF’s docket for Friday shows the following certification:

No. 14-5005/AF. U.S., Appellant v. Lieutenant Colonel Todd E. MCDOWELL, Appellee and Senior Airman Christopher A. DEMARIO, Real Party In Interest. CCA 2013-28. 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 issues:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED THE UNITED STATES’ PETITION FOR EXTRAORDINARY RELIEF AND FOUND THE MILITARY JUDGE’S RULINGS DID NOT CONSTITUTE A JUDICIAL USURPATION OF POWER AND WERE NOT CHARACTERISTIC OF AN ERRONEOUS PRACTICE WHICH IS LIKELY TO RECUR.

WHETHER THIS HONORABLE COURT SHOULD ORDER THE MILITARY JUDGE TO REVERSE HIS DECISIONS TO ORDER AN ORAL DEPOSITION OF B.B. AND TO RE-OPEN THE ARTICLE 32 PRETRIAL INVESTIGATION.

The military judge granted a Defense motion to depose the alleged victim after the victim did not complete her testimony at the Article 32 pretrial investigation (she walked out after two hours of cross examination, having been interviewed by defense counsel for three hours the day before). The Government sought a writ of mandamus ordering the military judge to reverse himself. The AFCCA denied the Government’s petition in this order.

I discussed the AFCCA’s ruling in this post, where I wrote:

I can’t help but wonder why the Government wants to stop this deposition. What could the Government possibly have to lose? While the defense counsel’s five hours of interview and examination of the alleged victim certainly seems like it would be enough, there’s no indication that the defense was abusing the process just to harass the victim (besides the ethical issues that would raise, I’d suspect the 32 IO would have put a stop to any of that). And the deposition officer (something I’ve been before) will exercise reasonable control over the proceeding.

I’m reminded of something I referenced in my argument preview of United States v. Solomon, No. 13-0025/MC, 72 M.J. 176 (C.A.A.F. 2013) (CAAFlog case page):

In the alcove outside the Attorney General’s Office here in Washington, an inscription that rings the space reads: “The United States wins its point whenever justice is done its citizens in the courts.”

Deputy Attorney General David W. Ogden, Memorandum for Department Prosecutors (January 4, 2010).

So true.

This case is the ninth certification from the Air Force on CAAF’s docket this term (I listed the other eight at the bottom of this post).

It’s beginning to look like the Air Force JAG thinks that justice is done only when the Prosecution gets what it wants.

I discussed the seven instructional error cases on CAAF’s docket this term in this post from last month. With a new grant from last Thursday, the total is now up to eight:

No. 14-0048/AR.  U.S. v. Jason C. WAGNER.  CCA 20111064.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO INSTRUCT THE PANEL MEMBERS THAT WRONGFUL SEXUAL CONTACT AND ASSAULT CONSUMMATED BY BATTERY ARE LESSER-INCLUDED OFFENSES OF AGGRAVATED SEXUAL ASSAULT.

No briefs will be filed under Rule 25.

CAAF’s website is back online and the daily journal shows two interesting entries.

First, the Air Force JAG certified another case (this is #5 in the term):

No. 14-6005/AF. U.S. v. Jacob R. MCINTYRE. CCA 2013-24. Notice is hereby given that a certificate for 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, and a supporting brief were filed under Rule 22 this date on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY SUPPRESSING APPELLEE’S WRITTEN AND ORAL STATEMENTS THAT PERTAINED TO HIS VIEWING AND POSSESSING CHILD PORNOGRAPHY ON THE BASIS OF LACK OF CORROBORATION.

Appellee will file an answer under Rule 22(b)(1) on or before March 28, 2014.

We discussed McIntyre in this post. The AFCCA’s opinion is available here.

Second, CAAF denied a Government petition for reconsideration in the Air Force case of United States v. Wicks, 73 M.J. 93 (C.A.A.F. 2014) (CAAFlog case page). Wicks involved an interlocutory appeal of a military judge’s pretrial ruling that suppressed the results of a search of a mobile telephone. The search revealed evidence that the accused engaged in improper relationships with trainees while serving as a military training instructor at Joint Base San Antonio-Lackland, Texas. The Government appealed the ruling and the Air Force CCA reversed the trial judge. But CAAF reversed the Air Force CCA and reinstated the military judge’s ruling suppressing the results of the search.

Additionally, CAAF issued decisions in United States v. Danylo, No. 13-0570/AF (CAAFlog case page), and United States v. Kearns, No. 13-0565/AR (CAAFlog case page). The court decides both cases in favor of the Government. I will post analysis of these opinions tomorrow.

It looks like some mental health records of the alleged victim in the Tate case (the Naval Academy midshipman charged with sexual assault) were reviewed by the military judge, the judge prepared a summary of those records that might be disclosed to the Defense, and then the alleged victim sought extraordinary relief regarding those records.

CAAF’s daily journal for Thursday, March 13, shows that the court isn’t going to get involved, yet:

Misc. No. 14-8010/NA. L.C., Midshipman, U.S. Navy, Appellant v. United States, Appellee, Joshua L. Tate, Midshipman, U.S. Navy, Real Party in Interest. CCA 201400044. On consideration of Appellant’s writ-appeal petition, Appellant’s motion to request an emergency order, the motion of the Maryland Crime Victims’ Resource Center, Inc., to participate as an amicus curiae and file an amicus curiae brief, the motion of the United States to substitute itself for the named military judge appellee, the motion of the National Crime Victim Law Institute to participate as an amicus curiae and file an amicus curiae brief, the motion of Protect Our Defenders to participate as an amicus curiae and file an amicus curiae brief, the motion of the United States to attach the military judge’s ruling that is captioned, “In Camera Review YWCA Counseling Records,” and the motion of the United States to attach, under seal, the military judge’s sealing order and summary of mental health documents dated February 19, 2014, it is ordered that Appellant’s motion to request an emergency order is denied, that the motions of the United States to substitute itself for the named military judge appellee, to attach the military judge’s ruling that is captioned, “In Camera Review YWCA Counseling Records,” and to attach, under seal, the military judge’s sealing order and summary of mental health documents dated February 19, 2014 are granted, that the motions of the Maryland Crime Victims’ Resource Center, Inc., the National Crime Victim Law Institute, and Protect Our Defenders to participate as amicus curiae and file amicus curiae briefs are granted, and that upon consideration of all the pleadings filed, said writ-appeal petition is hereby denied without prejudice to any right Appellant may have to challenge the military judge’s disclosure of a summary of certain psychotherapy records to the defense.

Considering that these are “YWCA Counseling Records,” I wonder if the alleged victim has a claim against the provider who disclosed the records to the court-martial.

A number of notable entries appear on CAAF’s daily journal for last Friday:

The court granted and remanded an Army case (that it appears the CCA summarily affirmed) for further development of the record regarding a claim of ineffective assistance of counsel:

No. 14-0137/AR.  U.S. v. Daniella M. HOWARD.  CCA 20120844.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION AND PRESENT VITAL EVIDENCE TO THE MILITARY JUDGE REGARDING THE DEFENSE OF DURESS AS A RESULT OF A SEXUAL ASSAULT BY A NONCOMMISSIONED OFFICER.

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 further appellate inquiry on the granted issue.  The Court of Criminal Appeals will obtain affidavits from the trial defense counsel (military and civilian) that respond to Appellant’s allegation of ineffective assistance of counsel.  Under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters.  See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review.  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

The court received a certificate of review from the Air Force JAF in Wilson (previously discussed here), definitively establishing it as a companion case to McPherson (last discussed here).

No. 14-5003/AF.  U.S., Appellant v. Jimmy L. WILSON, Appellee.  CCA 37897.  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 ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 31, 2014.

The court denied review in Trank. Remember Trank? It’s the Army case with the Article 62 appeal that I discussed last November in a post titled: In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing. Notably, CAAF granted a stay of proceedings just a week before it denied review (discussed in this post). It’s also worth mentioning that Rule 6 of CAAF’s rules gives the Chief Judge (or a judge performing his duties) the authority to grant a stay.

CAAF also denied review of the rehearing in McMurrin, ending the long saga of Fireman McMurrin who, in 2008, went on a cocaine and heroin binge with a fellow sailor who died at the end of the night after McMurrin left him in the bushes to “sleep it off.” See United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (McMurrin II) (link to slip op.). I last discussed the case in this post, where I predicted (wrongly) that CAAF would grant review.

Finally, in this post I noted the NMCCA’s decision the set aside the findings and authorized a rehearing in United States v. Dougherty, No. 201300060 (N-M.Ct-Crim.App. Dec. 31, 2013) (link to slip op.). Considering that result, I was surprised to see this:

No. 14-0436/MC.  U.S. v. Daniel L. DOUGHERTY.  CCA 201300060.  Appellant’s motion to extend time to file the supplement to the petition for grant of review granted to March 19, 2014.

In this January post, I discussed the Government’s petition for reconsideration of the Air Force case of United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (link to slip op.) (CAAFlog case page). CAAF unanimously agreed with the Air Force CCA that the admission of improper “human lie detector” evidence against Appellant was obvious error, but CAAF split 3-2 to find that the error was prejudicial to Appellant, reverse the decision of the Air Force CCA on this point, and set aside aside the findings of guilty while authorizing a rehearing.

Last week, CAAF denied the Government petition for reconsideration.

Remember the Article 62 appeal in the Army case of United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (link to unpub. op.)? It’s the case I wrote about last November, in a post titled: In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing.

In an unpublished decision in United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (available here and here), the CCA grants a Government interlocutory appeal in a sexual assault case involving an alleged child victim who refuses to testify at trial. The military judge prevented the Government from admitting the recorded pretrial statements of the alleged child victim. But the CCA reverses, finding that the pretrial statements are admissible because the Defense had the opportunity and similar motive to cross-examine the child when she made the statements during her testimony at the Article 32 hearing.

This was followed by a note in mid-January that the Accused petitioned CAAF for review of the Army CCA’s decision.

Last Friday, CAAF ordered a stay of the trial proceedings:

No. 14-6003/AR.  U.S. v. Robert J. TRANK.  CCA 20130742.  On consideration of Appellant’s motion for a stay of proceedings, it is ordered that said motion is hereby granted pending further order of the Court.

In this post from last August, I discussed the Army CCA’s opinion in United States v. Sickels, No. 20110110 (A.Ct.Crim.App. Jul. 23, 2013) (link to unpub. op.) that set aside an approved sentence of life without the possibility of parole that was adjudged by members after they convicted Appellant, contrary to his pleas, of various sexual offenses related to his “rape, sodomy, and sexual assault of his two daughters.” Slip op. at 2. The CCA took this action after finding ineffective assistance by unidentified civilian and military defense counsel in the sentencing phase of the court-martial.

Then, in October, the Army JAG certified the case to CAAF with the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT DEFENSE COUNSEL’S INVESTIGATION AND PRESENTATION OF A SENTENCING CASE WAS INEFFECTIVE.

Last Wednesday, CAAF summarily affirmed the CCA:

No. 14-5001/AR. U.S. v. Joshua R. SICKELS. CCA 20110110. On consideration of the issue certified by the Judge Advocate General of the Army, 73 M.J. __ (C.A.A.F. Oct. 16, 2013), concerning ineffective assistance of counsel in the sentencing phase of this child sexual assault court-martial, we note that Appellee faced a maximum sentence including confinement for life without parole and that the approved sentence includes that severe punishment. We also note that both the civilian and military defense counsel failed to: (1) interview or call as witnesses former supervisors who assert that they would have offered favorable testimony; (2) offer any evidence of Appellee’s bravery in combat; (3) present any documentation of Appellee’s personal decorations and other awards; and (4) offer any other evidence in extenuation or mitigation. See generally United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998). Accordingly, we conclude that the United States Army Court of Criminal Appeals did not err when it held that the trial defense team’s investigation and presentation of a sentencing case was ineffective. Accordingly, it is ordered that the certified issue is answered in the negative and the decision of the United States Army Court of Criminal Appeals is affirmed.

Notably, the CCA’s opinion included this sentence:

Because of this breakdown in the adversarial system, necessary to ensure a reliable sentence, and despite the seriousness of appellant’s offenses, we will therefore order a rehearing on sentence, where appellant will enjoy the opportunity to present a case in extenuation and mitigation with new counsel.

Slip op. at 4-5 (emphasis added).

Back in May of last year, we noted CAAF’s grants of review in United States v. Warner, No. 13-0435/AR, 73 M.J. 1 (link to slip op.) (CAAFlog case page), and United States v. McKim-Burwell, No. 13-0329/AR (post discussing grant), as cases that explored the boundaries of service discrediting conduct sufficient to constitute a violation of Article 134. Both cases involved Army prosecutions for so-called “child erotica,” which is a sexualized image of a child that doesn’t quite meet the definition of child pornography. Both cases also involved questions of whether the Government had adequately proven a terminal element under the test articulated in United States v. Wilcox, 66 M.J. 442 (2008) (link to slip op.) (requiring proof of a “direct and palpable effect on the military mission” when the conduct at issue is constitutionally protected).

But when CAAF resolved Warner in December, it determined that the appellant was not on notice that possession of images that depict minors “as sexual objects or in a sexually suggestive way” was punishable under Article 134, and the court dismissed the charge without ever reaching the sufficiency issue. Now CAAF resolves McKim-Burwell on the same grounds, summarily reversing and remanding to the CCA with a dissent from Chief Judge Baker (who, as I noted in my opinion analysis, dissented in Warner):

No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719. On further consideration of the granted issues, 72 M.J. 389 (C.A.A.F. 2013) (order granting review), and in view of United States v. Warner, 73 M.J.1 (C.A.A.F. 2013), it is ordered that the judgment of the United States Army Court of Criminal Appeals is reversed as to Specification 2 of the Charge and the sentence. The finding of guilty as to Specification 2 of the Charge is set aside and the specification is dismissed. The judgment as to the remaining findings is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to reassess the sentence.*

* BAKER, Chief Judge (dissenting):

I dissent from the dismissal of Specification 2 of the Charge. In my view, the charged conduct in this case is distinct from both the majority and dissenting positions in United States v. Warner, 73 M.J. 1 (C.A.A.F.2013), for two reasons. First, the Specification 2 images depict children as completely nude in contrast to Appellant’s brief which describes them as merely depicting “minors posing while wearing revealing clothes or while partially nude.” (Reply Brief at 6). Second, several of these images directly expose the genitalia and pubic region of the children. This is unlike Warner, where none of the images consisted of completely nude children with exposed genitalia. Thus, on the basis of these factors, I do not find Warner dispositive. Moreover, the majority has not explained why Appellant was not on notice that the possession of images of nude children, including some with their genitalia exposed, was subject to criminal sanction. See 73 M.J. at 4 (Baker, C.J., dissenting).

In this post from December, I noted that former-Sergeant Akbar requested leave to file a brief in excess of 50 pages (and perhaps in excess of 500 pages) in the capital appeal of his 2005 death sentence. On Monday CAAF ordered that he make do with a mere 250 pages. The court also ordered oral argument for early next term:

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of Appellant’s motion to file a brief in excess of fifty pages, Appellant’s motion to attach defense appellate exhibits PPP-AAAA, the motion of the National Association of Criminal Defense Lawyers (NADCL) for leave to file an amicus curiae brief in support of Appellant, Appellant’s motion to substitute a corrected Appendix B, the motion of Andrea D. Lyon, Esq., to appear pro hac vice and to participate in oral argument, Appellant’s motion to consider Grostefon matters out of time, and Appellant’s motion to attach supplemental exhibits in support of his supplement to file a brief in excess of fifty pages, the said motions to file an amicus curiae brief in support of Appellant, to substitute a corrected Appendix B, that part of Ms. Lyon’s motion to appear pro hac vice, and to attach supplemental exhibits in support of the request to file a brief in excess of fifty pages are granted; the part of Ms. Lyon’s motion to participate in oral argument and Appellant’s motion to consider Grostefon matters out of time are denied; the motion to attach defense appellate exhibits PPP-AAAA is granted as to exhibits SSS, TTT, UUU, VVV, WWW, XXX, and ZZZ, and is denied as to PPP, YYY, and AAAA. As for exhibits QQQ and RRR, the motion is granted, but only for the purpose of evaluating Assignment of Error B.II. Exhibits QQQ and RRR will not be considered for the purpose of providing substantive evidence of Appellant’s claim of ineffective assistance of counsel; and the motion to file a brief in excess of fifty pages is granted, but only up to 250 pages.

Appellant will resubmit his brief in compliance with this Order within 30 days. Appellee will submit its brief, also not to exceed 250 pages, within 60 days of the filing of Appellant’s brief. Appellant may file a reply brief, not to exceed 50 pages, within 30 days of the filing of Appellee’s brief. A new Joint Appendix will not be filed. The Court will use the Joint Appendix previously filed. Requests for further extensions of time or expansion of page limits will not be granted.

After all pleadings have been submitted, Appellant and Appellee are directed to seek agreement on the issues to be heard at oral argument, and to inform the Court of those issues. If no agreement can be reached, the parties will so advise the Court within 10 days of the date of the filing of the last pleading, and the Court will resolve any differences. Oral argument will be scheduled at the outset of the September 2014 Term of Court. Each side will be allotted one hour for oral argument.

Thinking some more about the certification in McPherson, I wandered over to the AFCCA’s website where I found a recently published opinion in United States v. Wilson, No. ACM 3789, 73 M.J. 529 (A.F.Ct.Crim.App. Jan. 30, 2014) (link to slip op.). Last July, CAAF remanded Wilson for consideration of a single issue:

WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES; AND, WHETHER THE RECORD IN THIS CASE PERMITS SUCH A CONCLUSION TO BE DRAWN WITHOUT THE NECESSITY OF FURTHER FACT-FINDING.

On January 30, 2014, the AFCCA answered this question in the affirmative, finding that:

In light of the plain meaning of Article 12, UCMJ, which contains no geographical limitation whatsoever, and made further clear by its legislative history, we conclude that Article 12, UCMJ, applies to members of the armed forces “everyplace,” to include confinement facilities within the continental United States.

Slip op. at 5. The CCA denied the appellant relief on much the same grounds as in McPherson:

The appellant never sought administrative relief or even alleged that he was ever in immediate association with any foreign national. His complaints were instead directed towards the fact he was placed in solitary confinement. The appellant has not raised an allegation of a violation of Article 12, UCMJ, in any of his appellate pleadings before this court. Relief is not warranted for the following reasons: his failure to exhaust administrative remedies, the lack of unusual or egregious circumstances, and his lack of a request for relief for any alleged Article 12, UCMJ, violation.

Slip op. at 7-8 (see also footnote 3: “At oral argument, appellant’s counsel specifically rejected the argument that Article 12, UCMJ, 10 U.S.C. § 812, was violated.”).

The very next day, TJAG certified McPherson with an issue that – practically speaking – is a challenge to the CCA’s decision in Wilson. Fast work…

When Sam discussed, in this post, the Air Force CCA’s published opinion in United States v. McPherson, No. S32068, __ M.J. __ (A.F.Ct.Crim.App. Nov. 19, 2013) (link to slip op.), he marveled at the fact that “in the view of the AFCCA, an accused’s confession to possession of illegal drugs can be corroborated by evidence that did not exist until years after that possession.” He also provided a link to what must be a picture of the AFCCA’s parking lot:

Are these standard issue

The AFCCA affirmed the findings and sentence. But the Air Force JAG just certified the case to CAAF. Not because of the back-to-the-future theory of corroboration (not to be confused with the back-to-the-future theory of maximum sentence computation that was recently rejected by the NMCCA), or even because of some other allegation of error that got favorable treatment by the CCA. Rather, TJAG certified the fact that the CCA considered applying Article 12 to the facts of the case.

No. 14-5002/AF.  U.S. v. Michael C. MCPHERSON.  CCA S32068.  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 ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

The CCA’s opinion discussed the Article 12 claim in a few short paragraphs (after noting that it wasn’t raised on its own, but rather as part of an IAC claim). The most significant of those paragraphs are these two:

The appellant was initially confined at the Elmore County Detention Facility in Idaho for 15 days. He alleges that for eight of those days, he was housed in an open bay with a foreign national known only as “The Mexican,” who was awaiting deportation hearings. The appellant and “The Mexican” played card games every night while in confinement, but he does not know his actual name. The appellant did not raise this as an issue in clemency, nor is there any evidence that he notified the local confinement officials of this issue.

The appellant did not make any complaints about a violation of Article 12, UCMJ, in his clemency petition even though his clemency request was submitted after he was transferred to the Naval Consolidated Brig Miramar. The appellant waited until appellate review to raise the issue. He did not notify anyone in his chain of command or at the confinement facility of the Article 12, UCMJ, violation at the time it was allegedly occurring, nor did he file a grievance or make an Article 138, UCMJ, complaint. See, e.g., United States v. Brandon, ACM 37399 (A.F. Ct. Crim. App. 22 March 2010) (unpub. op.). As a result, the Air Force was unable to investigate the claims, make a record of it for review, or have the opportunity to immediately correct the situation, as warranted. Therefore, we find no “unusual or egregious circumstance” to excuse the appellant’s failure to pursue available administrative remedies. See Wise, 64 M.J. at 471. Based on his failure to exhaust his administrative remedies and the absence of unusual or egregious circumstances, relief for his claim of a violation of Article 12, UCMJ, is not warranted.

Slip op. at 6. This certification sure seems like a quest for an advisory opinion. Of course, CAAF can dismiss a certified issue on mootness grounds (as it did last term in Humphries).

CAAF granted review of four new cases on Thursday:

No. 13-0573/AR.  U.S. v. Calvin J. DAVENPORT.  CCA 20081102.  Review granted on the following issue:

Whether the omission of testimony from a trial transcript renders the transcript non-verbatim and therefore subject to the remedy in R.C.M. 1103(f)(1) where the witness’s testimony is only relevant to an offense of which appellant has been acquitted; or, whether such omission should be addressed under R.C.M. 1103(b)(2)(a)(requirement for a complete record) and thus tested for whether the presumption of prejudice has been rebutted.  See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013); United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000).

The ACCA’s opinion is here. Our coverage of Gaskins is available on its CAAFlog case page.

No. 14-0040/NA.  U.S. v. Ethan S. SHORT.  CCA 201200483.  Review granted on the following issue:

A punitive discharge may not be affirmed when the record is not verbatim. Here, during sentencing, the members heard some portion of the providence inquiry which drew a curative instruction from the military judge. On appeal, the lower court attached, over defense objection, what purported to be the missing section. This section was not properly authenticated nor does it accurately reflect the missing portion. May appellant’s punitive discharge be affirmed despite the lack of a verbatim record?

The NMCCA’s opinion is here.

No. 14-0071/AR.  U.S. v. Travis D. JONES.  CCA 20110679.  Review granted on the following issue:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

The ACCA affirmed without a written opinion.

No. 14-0230/AR.  U.S. v. Samuel R. SPOTTS.  CCA 20111144.  Review granted on the following issue:

Whether appellant was denied effective assistance of counsel when his trial defense counsel failed to request deferment of automatic forfeitures on his behalf.

The ACCA affirmed without a written opinion. 

CAAF’s docket also notes an appeal by the accused in the Article 62 case of United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (link to slip op.), where the CCA granted a Government interlocutory appeal in a sexual assault case involving an alleged child victim who refuses to testify at trial. I discussed the CCA’s decision in this post (where I wrote, “I’d be surprised if CAAF doesn’t weigh in on this case.”). The Government’s response is due by January 27.

On the heels of CAAF’s grant of the AFCCA’s Appointments Clause issue in Janssen (CAAFlog case page), on December 19, and its order for expedited briefing, the court granted review of the composition of the AFCCA panel in six more cases on December 23:

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028
No. 14-0060/AF. U.S. v. Jeremy J. GRAWEY. CCA S32029
No. 14-0125/AF. U.S. v. Danny L. ANNIS. CCA 38001
No. 14-0138/AF. U.S. v. Danny M. BURNS. CCA 37847
No. 14-0156/AF. U.S. v. Devon P. JOHNSON. CCA S32047
No. 14-0157/AF. U.S. v. Alphonso K. DIXON. CCA S32061

CAAF ordered no briefs to be filed.

CAAF also granted review of what looks to be a trailer to Winckelmann (CAAFlog case page):

No. 14-0044/AF.  U.S. v. Morgan A. WINN.  CCA 37772.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO ORDER A REHEARING ON SENTENCE.

No briefs will be filed under Rule 25.

The AFCCA decided Winn on May 15, 2013, (link to slip op.), setting aside Appellant’s convictions for indecent acts and indecent exposure, in violation of Article 134, due to factual insufficiency. The court affirmed only Appellant’s conviction for knowingly transferring obscene materials to a the 13-year-old girl, in violation of Article 134 and 18 U.S.C. § 1470. The CCA then reassessed the sentence, adjudged by members, of confinement for 12 months, total forfeitures, reduction to the grade of E-1, and a bad-conduct discharge, and approved the sentence in whole.

On Thursday, December 19, CAAF granted review and ordered expedited briefing in the Air Force case of United States v. Janssen, No 14-0130/AF, with the following issue:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

We’ve been following this issue for a few months (since at least this September post, and most recently this post on Dec. 4, and this post on Dec. 5). Appellate Military Judge Lawrence M. Soybel, who retired from the Air Force, was appointed to the Air Force Court of Criminal Appeals as a civilian. For reasons not yet clear, there were problems with the initial appointment and the Secretary of Defense re-appointed Mr. Soybel on June 25, 2013. Cases in which Judge Soybel participated before the re-appointment have received reconsideration by the CCA or remand from CAAF.

Janssen is one such case. The AFCCA first decided Janssen in May, with a per curiam opinion by a three-judge panel that included Judge Soybel (link to slip op.). The AFCCA then reconsidered the case in July before the same panel, issuing a second per curiam opinion with a footnote that stated, “Upon our own motion, this Court vacated the previous decision in this case for reconsideration before a properly constituted panel. Our decision today reaffirms our earlier decision” (link to slip op.).

CAAF has scheduled the case for oral argument on January 28, 2014.

In other news from CAAF, former-Sergeant Hasan Akbar, who attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others, and who was sentenced to death in 2005, has moved for leave to exceed the court’s page limit for a brief:

No. 13-7001/AR.  U.S. v. Hasan K. AKBAR.  CCA 20050514.  On consideration of Appellant’s motion to file a brief in excess of fifty pages, the Court notes that Rule 24(b) of its Rules of Practice and Procedure provides that briefs filed with the Court shall not exceed thirty pages, unless otherwise authorized by order of the Court or by motion of a party granted by the Court.  In addition, Rules 24(c) provides a type-volume limitation providing that briefs are acceptable if they contain no more than 14,000 words or 1,300 lines of text.

Appellant’s motion requests permission to file a brief in excess of fifty pages, and proposes to submit a brief in excess of 500 pages.  It is ordered that on or before January 3, 2013, Appellant supplement his motion with a review of federal circuit courts’ capital case exceptions to the analogous page limitation under Rule 32(a)(7) of the Federal Rules of Appellate Procedure, if any, including any Supreme Court exceptions to its own page limitations in the context of capital cases.

(emphasis added). The Army CCA affirmed the death sentence in 2012 (discussed here). Akbar is one of only six military death row inmates. The whole list (in the order sentence was adjudged) is: Gray, Loving, Akbar, Witt, Hennis, and Hasan. Of note, the death sentence in Witt was set aside by the CCA in August (discussed here), but the court has granted a Government motion for reconsideration (discussed here).

Finally, CAAF has increased the fee to join the bar to $50 (link to notice).