CAAFlog » CAAF Docket

Over a year ago, in this post, I analyzed an unpublished opinion by a panel of the Army CCA in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017).

The case involved the improper use of charged offenses for propensity purposes; a persistent error that CAAF addressed in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016), reiterated in United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page), emphasized as a serious and likely prejudicial error in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), and then reiterated again – with exasperation – in United States v. Williams, 77 M.J. 459 (C.A.A.F. Jun. 27, 2018) (CAAFlog case page), where Chief Judge Stucky (writing for a unanimous court) observed that:

this is the third case in which we have had to correct a Court of Criminal Appeals’ judgment on this issue.

77 M.J. at 460 (citing Hukill and Guardado). Left unsaid was that all three cases – four, including Hills – were Army cases.

Sanchez, however, was different in a remarkable way. Staff Sergeant (E-6) Sanchez was tried by a court-martial composed of a military judge alone way back in 2014, long before CAAF decided Hills. The trial even pre-dated the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), which affirmed the use of charged offenses for propensity purposes and was widely accepted as good law (the Air Force and Navy-Marine Corps CCA both reached similar conclusions, and that was our #6 Military Justice Story of 2015). CAAF even denied review in Barnes on July 28, 2015. The military judge in Sanchez did what Barnes later allowed but Hills even later prohibited. Yet the CCA found “no improper use of propensity evidence by the military judge.” Sanchez, slip op. at 1. Furthermore, the CCA found that the defense waived any error by either failing to object or agreeing that the issue was moot. I summarized those finding in the title of my post as:

A panel of the Army CCA presumes that a military judge knows and follows (and that defense counsel makes decisions based on) law that isn’t made yet

Yesterday CAAF returned the case to the Army CCA:

No. 17-0592/AR. U.S. v. Angel M. Sanchez. CCA 20140735. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Burris, 78 M.J. 56 (C.A.A.F. 2018) (summary disposition), United States v. Williams, 77 M.J. 459 (C.A.A.F. 2018), United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018), United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT MISAPPLIED THIS COURT’S CONTROLLING PRECEDENTS IN CONCLUDING: (1) THE MILITARY JUDGE DID NOT CONSIDER EVIDENCE TO COMMIT OTHER CONDUCT, AND (2) DEFENSE COUNSEL “WAIVED” THIS ISSUE BY FAILING TO OBJECT AT TRIAL.

The decision of the United States Army Court of Criminal Appeals is reversed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012).

This action is also remarkable, in part because it’s a long time coming (Sanchez petitioned CAAF for review way back on September 15, 2017 (77 M.J. 35)) and in part because it returns the case to the Army CCA for what will be its third review (the CCA issued its first opinion – affirming the findings and sentence – on March 28, 2017, but then granted reconsideration in light of Hukill).

CAAF recently posted its oral argument calendar for next term:

June
2019
  • 4
May
2019
  • 7
  • 8
  • 21
  • 22
April
2019
  • 9
  • 10
  • 11
  • 23
  • 24
March
2019
  • 19
  • 20
February
2019
  • 19
  • 20
January
2019
  • 22
  • 23
December
2018
  • 4
  • 5
November
2018
  • 6
  • 7
October
2018
  • 23
  • 24
September
2018
  • 12 (Project Outreach)
  • 13 (Project Outreach)

A note on the calendar explains that the first two hearings “will occur in advance of the formal calendar start of the term, in order to support two Project Outreach commitments by the Court. Future Hearing Notices will provide the details on the venues and times.”

CAAF modified its term to begin on October 1 – rather than September 1 – effective in 2016 (change discussed here).

The 24 scheduled oral argument dates for the 2018 term is a significant reduction from the 30 scheduled dates for the 2017 term (of which only 19 were actually used), and the 27 scheduled dates for the 2016 term (of which only 23 were actually used).

Yeterday CAAF affirmed the findings in a Hills (CAAFlog case page) / Hukill (CAAFlog case page) trailer:

No. 18-0107/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the granted issue, 77 M.J. 273 (C.A.A.F. 2018), the judgment of the United States Army Court of Criminal Appeals, United States v. Hazelbower, No. 20150335 (A. Ct. Crim. App. Nov. 22, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that the military judge’s erroneous use of charged misconduct for propensity purposes was harmless beyond a reasonable doubt, for “there [i]s no reasonable possibility that the error contributed to [Appellant]’s verdict.” United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (citation omitted). In the instant case, the victims’ accounts were corroborated by a wealth of independent supporting evidence, including (but not limited to) admissions of rape, incriminating text and Skype messages, and the exchange of nude photographs. Given the overwhelming evidence of Appellant’s guilt, we are convinced beyond a reasonable doubt that Appellant was convicted on the strength of the evidence alone. Guardado, 77 M.J. at 94. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

I discussed CAAF’s grant of review in this post.

Yesterday CAAF summarily reversed in a Hills / Guardado trailer:

No. 18-0002/AR. U.S. v. Elmer F. Hoffmann III. CCA 20140172.

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that (1) Appellant did not waive the error resulting from the improper propensity instructions as we do not construe the failure to object to what was the settled law at the time as an intentional relinquishment of a known right, and (2) the error was not harmless beyond a reasonable doubt. Accordingly, it is, by the Court, this 7th day of May, 2018,

ORDERED:

That said petition is hereby granted on the following issues:

I. WHETHER APPELLANT WAIVED ANY ERROR RESULTING FROM THE MILITARY JUDGE’S IMPROPER PROPENSITY INSTRUCTION AT A TRIAL PRIOR TO THIS COURT’S OPINION IN UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE ARMY COURT INCORRECTLY PLACED THE BURDEN OF PERSUASION ON APPELLANT FOR THE THIRD PRONG OF THE PLAIN ERROR TEST IN VIOLATION OF THE CONSTITUTIONAL STANDARD THAT THIS COURT HAD ARTICULATED IN PLAIN ERROR CASES SINCE UNITED STATES v. POWELL, 49 M.J. 460 (C.A.A.F. 1998).

The decision of the United States Army Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing is authorized to the extent that the charges and specifications are not barred by the statute of limitations. See United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). See also United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998) (stating that the circuits are in agreement “that extending a limitations period before the prosecution is barred does not violate the Ex Post Facto Clause”).

(emphasis added). A footnote clarifies that the appellant’s name is spelled with two Ns (the CCA’s opinion uses only one N).

I last mentioned this case in this post where I first discussed a series of Army CCA decisions holding that the failure to object to improper argument waives any error. CAAF subsequently granted review of that issue in a number of cases, including in United States v. Burris, No.17-0605/AR (CAAFlog case page), which I argued before CAAF on March 22, 2018.

Yesterday’s summary disposition in Hoffmann does not directly answer the issue presented in Burris, however the court’s observation that the failure to object to settled law is not a waiver is important. It’s also consistent with CAAF’s waiver precedent; specifically United States v. Harcrow where the court observed that changes in the law after trial “opened the door for a colorable assertion . . . where it was not previously available.” 66 M.J. 154, 157-158 (C.A.A.F. 2009). I discussed Harcrow (and how I think it applies to a Hills issue) in this post in which I analyzed the Army CCA’s opinion in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017), pet. filed, __ M.J. __, No. 17-0592/AR (C.A.A.F. Sep. 14, 2017).

Additionally, while much of the recent waiver mania is based on the mere failure of defense counsel to object, the Supreme Court applies a very different test for waiver:

Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.

United States v. Olano, 507 U.S. 725, 733 (1993) (citations omitted).

On Friday CAAF denied two writ-appeal petitions:

No. 18-0167/NA. Charles M. Burleson, Appellant v. United States, Appellee. CCA 200700143. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is hereby denied.

No. 18-0180/MC. Luiji R. Pierre, Appellant v. United States, Appellee. CCA 201300257. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

I discussed the NMCCA’s decisions in these cases last month, in this post. Both decisions rejected retroactive application of CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

CAAF previously rejected a writ-appeal petition raising the same issue in the Air Force case of  Lewis v. United States, 76 M.J. 829 (A.F. Ct. Crim. App. Sep. 20, 2017) (discussed here), pet. denied, 77 M.J. 106 (C.A.A.F. Nov. 13, 2017).

Two weeks ago, in this post, I discussed the Army CCA’s rejection of a petition for writs of mandamus and habeas corpus in Adams v. Cook, Military Judge, No. 20170581 (A. Ct. Crim. App. Jan. 23, 2018), writ-appeal filed, __ M.J. __, No. 18-0171/AR (C.A.A.F. Mar. 19, 2018).

My post was particularly critical of the prosecution’s decision to prefer new charges – and a staff judge advocate’s advice to dismiss the original charges – in a case referred for a rehearing after the result of the first trial was reversed on appeal. I opined that while the acting staff judge advocate’s bad advice to dismiss the original charges and refer only the new charges made a mess of the case, it’s highly unlikely that Adams will be successful in stopping a second trial.

Adams can still litigate the issue at the trial level, but last Thursday CAAF declined to intervene at this stage:

No. 18-0171/AR. U.S. v. Thomas M. Adams. CCA 20170581. On consideration of the writ-appeal petition, it is ordered that 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.

Yesterday CAAF reversed convictions in three Hills trailer cases:

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to the Charge and Specification 3 thereunder and the sentence. The findings of guilty as to the Charge and Specification 3 thereunder and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing is authorized.

No. 18-0101/AF. U.S. v. Xavier L. Rice. CCA 39071. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN DECIDING THAT A PROPENSITY INSTRUCTION IN VIOLATION OF UNITED STATES v. HILLS WAS HARMLESS BEYOND A REASONABLE DOUBT BECAUSE IT DID NOT CONTRIBUTE TO THE VERDICT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specifications 3, 4, and 5 of the Charge and the sentence. The findings of guilty as to Specifications 3, 4, and 5 of the Charge and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Specifications 3, 4, and 5 of the Charge and the sentence.

No. 18-0122/AF. U.S. v. Corey J. Campbell. CCA 38875. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT INCORRECTLY FOUND THAT A MILITARY JUDGE’S IMPERMISSIBLE USE OF PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence. The findings of guilty as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence.

The reversal in Robertson is particularly significant because the Air Force CCA found the error harmless beyond a reasonable doubt in a published decision. United States v. Robertson, 77 M.J. 518, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (analyzed here).

In Rice the CCA rejected a Government Division assertion that the error was waived, but found it harmless beyond a reasonable doubt because:

Under the particular circumstances of this case, where (1) the military judge did not provide a propensity instruction with conflicting standards of proof, (2) senior trial counsel only briefly mentioned propensity, (3) the Defense conceded the non-consensual touchings occurred, and (4) the military judge instructed on and senior trial counsel argued limited non-propensity uses of the abusive sexual contact offenses evidence, we are satisfied beyond a reasonable doubt that the military judge’s Mil. R. Evid. 413 instruction did not contribute to the verdict.

United States v. Rice, No. 39071, slip op. at 18 (A.F. Ct. Crim. App. Nov. 21, 2017) (link to slip op.)

Campbell was a judge-alone case and so more Hukill trailer than Hills trailer. The CCA issued two decisions in the case – the first was reversed by CAAF for further consideration in light of Hukill (noted here) – and the second opinion found the error harmless based on the strength of the prosecution’s case:

The propensity evidence played very little part in the Government’s case or argument. The senior trial counsel did make a brief mention that Appellant “prior to this assault, demonstrated over a period of months, a desire, a willingness, and a brazen capacity to fondle teenage girls without their consent.” This line of argument, while not particularly persuasive, does assert propensity. Much more persuasive was the Government’s direct evidence of Appellant’s acts, including the testimony of the victims and eye witnesses.

United States v. Campbell, No. 38875, slip op. at 7 (A.F. Ct. Crim. App. Dec. 13. 2017) (link to slip op.).

On Wednesday and Thursday CAAF summarily reversed and remanded 13 cases for further review in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page). Full list after the jump.

Read more »

Earlier this month CAAF granted review of two search and seizure issues in the Air Force case of United States v. Eppes:

No. 17-0364/AF. U.S. v. Tyler G. Eppes. CCA 38881. 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 issues:

I. WHETHER THE SEARCH OF APPELLANT’S PERSONAL BAGS EXCEEDED THE SCOPE OF THE SEARCH AUTHORIZATION WHERE THE AGENT REQUESTED AUTHORITY TO SEARCH APPELLANT’S PERSON, PERSONAL BAGS, AND AUTOMOBILE, BUT THE MILITARY MAGISTRATE AUTHORIZED ONLY THE SEARCH OF APPELLANT’S PERSON AND AUTOMOBILE AND DID NOT AUTHORIZE THE SEARCH OF APPELLANT’S PERSONAL BAGS.

II. WHETHER APPELLANT’S RIGHT TO FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT WAS VIOLATED WHEN THERE WAS NO PROBABLE CAUSE FOR THE 7 DECEMBER 2012 WARRANT.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The appellant is an Air Force Captain who was convicted of various offenses primarily involving travel claim fraud. The CCA considered the granted issues and concluded that the good faith exception permitted the search of the bag (Issue I), and that the civilian judge’s probable cause determination is supported by the evidence of appellant’s abuse of his official position (Issue II).

CAAF also denied two notable petitions.

First, CAAF denied further review of the Air Force CCA’s opinion that granted a Government Article 62 appeal in United States v. Lutcza, 76 M.J. 698, No. 2016-13 (A.F. Ct. Crim. App. Jan. 18, 2017) (link to slip op.).

Lutcza consented to a search of his cell phone but later revoked that consent. Before the revocation, however, investigators made a copy of the phone’s data. The copy was searched after revocation of consent, revealing incriminating evidence. But the military judge suppressed the evidence, finding that the accused retained a reasonable expectation of privacy in the copy of the data and relying in part on United States v. Dease, 71 M.J. 116 (C.A.A.F. May 1, 2012) (CAAFlog case page) (reasonable expectation of privacy in voluntarily-produced urine sample). The CCA reversed, concluding:

Unlike Dease, where the search (i.e., the urinalysis) was performed after consent was withdrawn, in Appellee’s case the search (i.e., the extraction of data using the UFED Touch) occurred during the period of consent—indeed, with Appellee’s participation. SA BS’s later review of the copied information previously obtained was not a search for Fourth Amendment purposes because, unlike the cell phone itself, the copy of the data always belonged to AFOSI, not Appellee, and Appellee had no reasonable expectation of privacy in it.

Lutcza, __ M.J. at __, slip op. at 7-8. The CCA’s opinion doesn’t distinguish between the seizure and the search of the cell phone data (making the copy was likely merely a seizure, with the actual search occurring later), and it bases its ultimate conclusion on numerous civilian cases (see slip op. at 5-6). But Mil. R. Evid. 314(e)(3) – which permits withdrawal of consent to a search at any time and which was the basis of CAAF’s holding in Dease – is a military-specific rule that would likely apply if the making of a copy of the data was merely a seizure and not an actual search. CAAF, however, won’t answer that question now.

Finally, on June 22, CAAF denied review of an Air Force Appellate Government Division petition for reconsideration of the court’s opinion that found an appearance of unlawful command influence and reversed the convictions in United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page):

No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. On consideration of Appellee’s petition for reconsideration of this Court’s decision, 76 M.J. 242 C.A.A.F. 2017), and the motion filed by Protect Our Defenders to file an amicuscurie brief out of time in support of Appellee’s petition for reconsideration, it is ordered that said motion filed by Protect Our Defenders to file an amicus curiae brief out of time is hereby denied, and said petition for reconsideration is hereby denied.

Considering that CAAF was unanimously and obviously troubled by the pressure exerted on Lieutenant General Franklin as he performed his duties as convening authority in Boyce (though it was deeply divided on the remedy under the facts of this case) it’s hard to know who exactly Protect Our Defenders was trying to defend with its support of the Appellate Government Division’s petition for reconsideration.

In the Air Force case of United States v. Ortiz, 76 M.J. 189 (C.A.A.F. Apr. 17, 2017) (CAAFlog case page), CAAF found no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case. An extension of time to file a cert. petition in Ortiz was granted until June 9, 2017 (noted here).

Ortiz was a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), also an Air Force case, which raised similar issues, was resolved on mootness grounds and is now the subject of a petition for certiorari (discussed here).

Over the past few days CAAF summarily affirmed 116 cases in light of its decision in Ortiz.

Of those 116 cases, two are from the Air Force and 114 are from the Army.

That’s not all of the trailers, however, as a small number of additional cases raising this issue are still out there (including a few that were argued this term but not yet decided.

Last week CAAF denied a petition for extraordinary relief filed by Master Sergeant Timothy Hennis (U.S. Army Ret.), who is one of only five military death row inmates (though a potential sixth – Witt – is pending a sentence rehearing):

No. 17-0099/AR. In Re Timothy B. Hennis. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus or other appropriate writ, and Petitioner’s motion to stay proceedings of the United States Army Court of Criminal Appeals pending petition for extraordinary writ, it is ordered that said motion is hereby denied, and said petition is hereby denied without prejudice to raising the issues asserted during the course of normal appellate review.

The petition is available here and includes the assertion that:

the actions of the Judge Advocate General of the Army (Army JAG), Deputy Judge Advocate General (DJAG), and Chief Judges of the Army Court of Criminal Appeals (Army Court) create an appearance the deck is stacked against the petitioner during the ongoing review of his death sentence.

Pet. at 7.

Hennis was tried three times for the gruesome 1985 rape and murder of Kathryn Eastburn, the wife of an Air Force captain who was out of town on temporary duty, as well as the murder of their two daughters. The first two prosecutions were by state authorities in North Carolina. First, Hennis was convicted of the murders in 1986 and he was sentenced to death. The North Carolina Supreme Court reversed that conviction in 1988. Hennis was then retried by North Carolina in 1989, and he was acquitted. After the acquittal Hennis elected to remain in the military on the retired list and, in 2006, he was recalled to active duty and a general court-martial convicted him and sentenced him to death. The Army CCA affirmed the sentence two months ago. United States v. Hennis, 75 M.J. 796, No. 20100304 (A. Ct. Crim. App. Oct. 6, 2016) (en banc) (discussed here).

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.

Read more »

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.