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.

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 the fairly entertaining Motion to Supplement.

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.

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.

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.

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.

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.

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.

Wednesday, November 2, 2011, Time TBD:

United States v. Thomas J. Hayes No. 11-5003/NA

Case Summary: GCM conviction of selling military property, and theft of military property. The Judge Advocate General certified three issues: (1) whether the Navy-Marine Corps Court of Criminal Appeals erred when it held that Appellee’s unsworn statement during presentencing raised the “possible defense” of duress; (2) whether the Navy-Marine Corps Court of Criminal Appeals erred, as a matter of law, when it found that the Appellee’s unsworn statement raised the possibility of a defense when the facts on the record did not establish a prima facie case for duress; and (3) whether the Navy-Marine Corps Court of Criminal Appeals erred when it set aside the findings and sentence due to the military judge’s failure to investigate Appellee’s plea for the possibility of a duress defense because suicide cannot, as a matter of law, be the threat necessary to establish the defense of duress.

NOTE: This case will be heard at Washington University School of Law, One Brookings Drive, St. Louis, Missouri, as part of Project Outreach.

Thursday, November 3, 2011, Time TBD:

United States v. Joshus D. Fry No. 11-0396/MC

Case Summary: GCM conviction of AWOL, possession of child pornography, and fraudulent enlistment. Granted issue questions whether Appellant’s enlistment into the Marine Corps was void ab initio when it took place after a judicial determination of Appellant’s incapacity to contract.

NOTE: This case will be heard at Scott Air Force Base, Illinois, as part of Project Outreach.

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. 

Tuesday, October 11, 2011, 9:30 a.m.

United States v. Thomas Schumacher No. 11-0257/MC

Case Summary: GCM conviction of assault, disobedience of an order, and communicating a threat. Granted issue questions whether the military judge erred in refusing to give a self-defense instruction.

Followed by:

United States v. Aaron R. Stanley No. 11-0143/AR’

Case Summary: GCM conviction of premeditated murder, possession of marijuana with intent to distribute, distribution and use of methamphetamine, AWOL, failure to obey an order, and adultery. Granted issue questions whether the military judge’s instructions on self-defense were incorrect and incomplete, and if so, whether the lower court erred in concluding that this constituted harmless error.

Wednesday, October 12, 2011, 9:30 a.m.

United States v. Bobby D. Morrissette No. 11-0282/AR

Case Summary: GCM conviction of participating in gang initiations, obstructing justice, indecent acts, disobeying an order and use of ecstasy. Granted issue questions whether Appellant’s Fifth Amendment right against self-incrimination was violated when he was prosecuted for offenses about which he had provided immunized statements.

Followed by:

United States v. Phillip L. Pierce Nos. 11-0239/AR and 11-5004/AR

Case Summary: GCM conviction of attempted indecent acts with a child, attempting to communicate indecent language to a child, and using the internet to attempt to entice a child in violation of 18 U.S.C. § 2422. Granted issue questions whether the Army Court of Criminal Appeals incorrectly found that the military judge’s failure to instruct on necessary elements of an offense was harmless beyond a reasonable doubt. The Court specified the issue of whether the Army Court of Criminal Appeals erred as a matter of law when it held that the military judge’s instruction on 18 U.S.C. § 2422 (B), which instruction used the term “Internet” instead of “any facility or means of interstate commerce” was not harmless beyond a reasonable doubt. The Judge Advocate General also certified the issue of whether the Army Court of Criminal Appeals erred as a matter of law when it held that the military judge’s instruction on 18 U.S.C. § 2422 (B), which instruction used the term “Internet” instead of “any facility or means of interstate or foreign commerce,” was erroneous.

Followed by:

United States v. Kenneth L. Goodman No. 11-0389/AR

Case Summary: GCM conviction of sexual harassment, maltreatment of subordinates, making a false official statement, wrongful sexual contact, indecent exposure and bigamy. Granted issue questions whether Appellant’s plea of guilty to failure to obey a general regulation (Charge I) was improvident because the military judge failed to secure a disclaimer of the mistake of fact defense when it was raised during the providence inquiry. A specified issue questions 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 Russell v. United States, and this Court’s recent opinions in Medina, Miller, and Jones.

Monday, October 24, 2011, 9:30 a.m.:

United States v. William J. Kreutzer. Jr., No. 11-0231/AR

Case Summary: GCM conviction of attempted murder and premeditated murder. Granted issue questions whether the military judge erred when he denied Appellant’s motion seeking Article 13 sentence credit for the government’s 278 day delay in transferring him from death row after the Court of Criminal Appeals set aside the death sentence and affirmed only those non-capital charges to which Appellant pleaded guilty.

Followed by:

United States v. Douglas K. Winckelmann No. 11-0280/AR

Case Summary: GCM conviction of possession of child pornography, use of the Internet to entice a minor, indecent language, indecent acts, obstruction of justice and conduct unbecoming of an officer. Granted issues question: (1) whether the lower court erred in affirming the finding of guilty as to Specification 3 of Charge III when it found that an online chat containing the line “u free tonight” was sufficient to prove attempted enticement (2) whether the Army Court of Criminal Appeals erred by affirming forfeiture of all pay and allowances when the convening authority did not approve any forfeiture and (3) whether an Article 134 clause 1 or 2 specification that fails to expressly allege either potential terminal element states an offense under the Supreme’s Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s recent opinions in Medina, Miller, and Jones.

Tuesday, October 25, 2011, 9:30 a.m.:

United States v. Brent A. Campbell No. 11-0403/AF

Case Summary: GCM conviction of making a false official statement, larceny, and wrongful possession of Vicodin and Percocet. Granted issue questions whether the military judge erred, after finding all three charges arose out of the same transaction and were part of the same impulse, by merging them for sentencing rather than dismissing them.

Followed by:

United States v. William J. St. Blanc No. 10-0178/AF

Case Summary: GCM conviction of attempted indecent language with a child and possession of child pornography. Granted issue questions whether Appellant waived his right to a trial by court members based on the misapprehension of the maximum punishment.

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.

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN REVIEWING THE IMPLIED BIAS ISSUE DE NOVO, RATHER THAN REVIEWING THE IMPLIED BIAS ISSUE UNDER THE STANDARD OF “LESS DEFERENCE THAN ABUSE OF DISCRETION, BUT MORE DEFERENCE THAN DE NOVO” AS SET FORTH IN U.S. v. BAGSTAD, 68 M.J. 460 (C.A.A.F. 2010)?

WHETHER THE LOWER COURT FAILED TO APPLY THE IMPLIED BIAS TEST THAT ASKS WHETHER, CONSIDERED OBJECTIVELY, “MOST PEOPLE IN THE SAME POSITION WOULD BE PREJUDICED,” REITERATED IN 2010 IN BAGSTAD, AND INSTEAD ERRONEOUSLY APPLIED A TEST ASKING WHETHER THE MEMBER’S CIRCUMSTANCES “DO INJURY TO THE PERCEPTION OR APPEARANCE OF FAIRNESS IN THE MILITARY JUSTICE SYSTEM”?

WHETHER THE LOWER COURT ERRED IN REVERSING THE MILITARY JUDGE AND SETTING ASIDE THE FINDINGS AND SENTENCE FOR IMPLIED BIAS WHERE THE MEMBER SUBMITTED A WRITTEN REQUEST, WHICH WAS DENIED, THAT THE MILITARY JUDGE ASK A WITNESS “DO YOU THINK THAT PEDOPHILES CAN BE REHABILITATED?

United States v. Nash, __ M.J. __, No. 11-5005/MC (C.A.A.F. Sept. 16, 2011).  NMCCA’s unpublished decision in the case is available here.  United States v. Nash, No. NMCCA 201000220 (N-M. Ct. Crim. App. June 28, 2011).

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE’S SENTENCE INAPPROPRIATELY SEVERE UNDER HTE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPRVE AN ADJUDGED SENTENCE NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE OF E-1.

AFCCA’s latest opinion in the case is available here.

Also today, Code 46 filed notice with CAAF that the Judge Advocate General of the Navy chose not to certify the case of United States v. Lee to CAAF.  Code 46 had previously sought and received an extension of time for the Judge Advocate General to decide whether to certify the case.  NMCCA’s published decision in the case is available here.

The Air Force Court’s latest decision in the case is available here.  The Air Force Court’s decision that led to the second certification — and the one that is really at issue in this certification — is available here.  The Air Force Court’s original decision in the case is published at 67 M.J. 630 (A.F. Ct. Crim. App. 2009).

[Disclosure:  I'm one of AB Rose's appellate defense counsel.]

h/t BK (hereinafter “The Burger King”)

Five of the first ten cases heard are Army cases.  Three are Navy-Marine Corps cases.  The other two are Air Force cases.

Regardless of when oral argument season opening day occurs, it looks like there will be a substantial gap between the expiration of Chief Judge Effron’s term and the seating of his replacement.  Chief Judge Baker will have the discretion to ask a senior CAAF judge to sit with the court or ask the Chief Justice of the United States to designate an Article III judge to sit with the court.

In United States v. Rittenhouse, 68 M.J. 156 (C.A.A.F. 2009), CAAF dismissed the petition for grant of review due to its untimeliness, citing United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009).  Chief Judge Effron concurred in the result, noting that the Judge Advocate General of the Army could still certify the case to CAAF.  Judge Baker dissented.  CAAF denied a reconsideration petition in August 2009.  United States v. Rittenhouse, 68 M.J. 193 (C.A.A.F. 2009).

In December 2009, Rittenhouse filed a petition for writ of error coram nobis, arguing that his appellate defense counsel’s ineffectiveness was to blame for his late filing.  Rittenhouse v. United States, 68 M.J. 411 (C.A.A.F. 2009).  In May 2010, CAAF held that because coram nobis jurisdiction springs from a previous exercise of jurisdiction, it couldn’t grant coram nobis relief, since it had never had jurisdiction over the case.  Rittenhouse v. United States, 69 M.J. 173 (C.A.A.F. 2010) (summary disposition).

On 1 March 2011, the Supreme Court decided Henderson v. Shinseki, 131 S. Ct. 1197 (2011), which held that the 120-day deadline for filing an appeal with the United States Court of Appeals for Veterans Claims isn’t jurisdictional.  On 16 March 2011, Rittenhouse filed a second petition for writ of error coram nobis with CAAF, presumably arguing that under Henderson,  Article 67′s 60-day deadline isn’t jurisdictional either.  Rittenhouse v. United States, 70 M.J. 29 (C.A.A.F. 2011).  CAAF ordered the government to show cause why the petition shouldn’t be granted.  Rittenhouse v. United States, 70 M.J. 35 (C.A.A.F. 2011).  On Thursday, CAAF denied the second coram nobis petition by a 3-2 vote.

The three-judge majority announced the petition’s denial without explanation.  Chief Judge Effron, joined by Judge Baker, dissented.  Chief Judge Effron reasoned that Henderson indicated that CAAF need not have concluded that pursuant to Bowles v. Russell, 551 U.S. 205 (2007), a failure to satisfy the 60-day petition deadline deprives CAAF of jurisdiction.  Chief Judge Effron explained:

Rodriguez interpreted Bowles as establishing a “statutory/rule-based distinction,” requiring treatment of the filing period under Article 67 as a mandatory and jurisdictional limitation that could not be waived, irrespective of whether the petition could demonstrate good cause for a belated filing. [67 M.J.] at 113, 116. Subsequently, however, the Supreme Court emphasized that Bowles did not establish a rigid statutory/rule-based distinction for purposes of determining whether a time period must be treated as jurisdictional and nonwaiveable. See Henderson v. Shinseki, 131 S. Ct. 1197, 1203 (2011).

Henderson , which underscores the need for a more nuanced approach to the issue of whether a statutory time period should be treated as jurisdictional, demonstrates that our Court was not compelled to overrule our longstanding interpretation of Article 67. Henderson considered whether a military veteran was jurisdictionally barred, under Bowles, from raising a claim before the United States Court of Appeals for Veterans Claims because the 120-day filing requirement was established by statute. The Supreme Court in Henderson explained that the consequences of a jurisdictional interpretation are so drastic that a rule should not be labeled jurisdictional “unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.”Id. at 1202. The Court noted that filing deadlines “are quintessential claims-processing rules” and they “should not be described as jurisdictional” unless Congress has decided to establish jurisdictional consequences to such a rule. Id. at 1203. The test, under Henderson , is whether “there is any ‘clear’ indication that Congress wanted the rule to be ‘jurisdictional.’”Id. (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006)).

In Henderson the Supreme Court considered the text and the context of the applicable statute, and concluded that Congress had not intended the legislation to carry jurisdictional consequences. Id. at 1203-06. In reaching this conclusion, the Court noted that the statute at issue addressed review of an administrative decision rather than review of a court-based decision, that it concerned special congressional solicitude for veterans’ benefits, and other unique aspects of the statutory framework. Id.

The question before us is not whether the similarities or differences between Article 67 and the statute at issue in Henderson compel a particular interpretation of Article 67. The question posed by the present appeal is whether our Court in Rodriguez correctly interpreted Bowles as establishing a statutory/rule-based distinction that required us to abandon our longstanding, consistent interpretation of Article 67. In that regard, Henderson underscores that the Supreme Court has not adopted such a distinction, and that the Supreme Court has instead emphasized that filing timelines should not be interpreted as jurisdictional absent a “clear indication” that Congress intended such a drastic result.

Congress, in the UCMJ, has required the government to provide appellate counsel for an accused servicemember under Article 70, UCMJ, 10 U.S.C. § 870 (2006). Rodriguez, which treats the filing period as jurisdictional, precludes waiver under any circumstance. Under Rodriguez, even if a servicemember can demonstrate that a belated filing resulted from deficient performance by a government-furnished attorney, the appeal must be dismissed. Rodriguez closes the courthouse door to members of the armed forces, such as the petitioner in this case, regardless of whether the servicemember can demonstrate good cause for a belated filing. Our longstanding interpretation of Article 67 reflects that there is no “clear indication” that Congress intended such a drastic result. Accordingly, I respectfully dissent.

As we’s discussed before, the Supremes don’t have statutory cert jurisdiction to review this decision because the statute governing SCOTUS review of CAAF cases provides such jurisdiction in petition for extraordinary relief cases only where CAAF has granted relief.

WHETHER THE ARMY COURT OF CRIMINAL APPEALS INCORRECTLY FOUND THAT THE MILITARY JUDGE’S FAILURE TO INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS HARMLESS BEYOND A REASONABLE DOUBT.

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE COMMERCE” WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

Yesterday, the Judge Advocate General of the Army cross-certified a third issue in the case:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. § 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE OR FOREIGN COMMERCE,” WAS ERRONEOUS.

The cross-certification seems like a wise move on the Government’s part to avoid the kind of law of the case doctrine issue that the Government confronted in United States v. Savala, 70 M.J. 70 (C.A.A.F. 2011).