CAAFlog » CAAF Grants

Members of reserve components are subject to the UCMJ, but only when actually performing reserve duty. For example, Article 2(a)(3) limits jurisdiction to:

Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

Notably absent is the time between periods of inactive-duty training. Such training typically occurs in four-hour blocks, with breaks during lunch and overnight (creating interesting jurisdictional questions when reservists commit misconduct during a break). Congress eliminated those jurisdictional gaps in the Military Justice Act of 2016, amending Article 2(a)(3) to specifically include:

(i) Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations.

(ii) Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.

(iii) Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations.

Sec. 5102, National Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 Stat. 2894, 2895 (Dec. 23, 2016).

But back in January the Air Force CCA issued a published decision in a case involving the current rule. In United States v. Hale, 77 M.J. 598 (A.F. Ct. Crim. App. Jan 19, 2019) (link to slip op.), a three-judge panel explained:

This case is essentially about a reserve officer who committed travel fraud. The principal issue on appeal is Appellant’s status at the time of each offense and whether the court-martial had jurisdiction over each of the specifications for which Appellant was convicted. As a threshold matter, we find that the court-martial lacked jurisdiction over one of the larceny specifications, but had jurisdiction over the lesser-included offense of attempted larceny. We also modify part of the charged time-frame of a second larceny specification by exception and substitution.

The convictions relate to lodging reimbursements for periods when the appellant (a lieutenant colonel) stayed with relatives but created and submitted receipts for lodging expenses (in violation of regulations and despite the appellant incurring no actual expense). The jurisdiction issue, however, arises from the fact that it’s not clear when the appellant committed some of the misconduct; whether during a four-hour period of inactive-duty training or not.

On Wednesday CAAF granted review:

No. 18-0162/AF. U.S. v. James M. Hale. CCA 39101. 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 granted on the following issues raised by appellate defense counsel:

I. THE LOWER COURT FOUND AS A MATTER OF LAW THAT PERSONAL JURISDICTION DOES NOT EXIST OUTSIDE OF THE HOURS OF INACTIVE-DUTY TRAINING. THE LOWER COURT PROCEEDED TO FIND PERSONAL JURISDICTION EXISTED OVER APPELLANT BECAUSE HE WAS “STAYING” WITH HIS IN-LAWS. WAS THIS ERROR?

II. WHETHER THE LOWER COURT ERRED WHEN IT CONCLUDED THE MILITARY JUDGE CORRECTLY INSTRUCTED THE MEMBERS THEY COULD CONVICT APPELLANT FOR CONDUCT “ON OR ABOUT” THE DATES ALLEGED IN EACH SPECIFICATION

And the following issue specified by the Court:

III. WHETHER THE LOWER COURT ERRED IN CONCLUDING THE COURT-MARTIAL HAD JURISDICTION OVER SPECIFICATION 2 OF ADDITIONAL CHARGE I, AS MODIFIED TO AFFIRM THE LESSER INCLUDED OFFENSE OF ATTEMPTED LARCENY.

Briefs will be filed under Rule 25.

Yesterday CAAF granted review in the Air Force case of United States v. Hamilton, No. 18-0135/AF:

No. 18-0135/AF. U.S. v. Darion A. Hamilton. CCA 39085. 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. ARE VICTIM IMPACT STATEMENTS ADMITTED PURSUANT TO R.C.M. 1001A EVIDENCE SUBJECT TO THE MILITARY RULES OF EVIDENCE?

II.  WHETHER THE MILITARY JUDGE ERRED IN ADMITTING PROSECUTION EXHIBITS 4, 5, AND 6.

Briefs will be filed under Rule 25.

I analyzed the Air Force CCA’s published opinion (77 M.J. 579) in this post.

“There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the [UCMJ]; (5) RCM 707, [Manual for Courts-Martial]; and (6) case law.” United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). These sources broadly fall into three categories: Constitutional, statutory, and regulatory.

On Monday CAAF granted review of an Army prosecution appeal under Article 62 involving the regulatory, R.C.M. 707, speedy trial right:

No. 18-0133/AR. U.S. v. James B. Hendrix. CCA 20170439. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING THE CHARGE AND SPECIFICATIONS WITH PREJUDICE FOR A VIOLATION OF R.C.M. 707.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

The Army CCA’s opinion is probably posted on the CCA’s website, but the website is inaccessible from the public internet (discussed here). The opinion is, however, available on Lexis at: United States v. Hendrix, 2017 CCA LEXIS 769 (A Ct. Crim. App. Dec. 14, 2017) (Lexis erroneously identifies this as an Air Force CCA case).

The accused, Private (E-2) Hendrix, was charged with two specifications of sexual assault on November 29, 2016. The alleged victim declined to participate in any prosecution, and the convening authority dismissed the charges. But then – three days later – the alleged victim changed her mind and the charges were re-preferred. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.

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Last week CAAF granted review but ordered no briefs in an Army case:

No. 18-0107/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE’S CONSIDERATION OF CHARGED SEXUAL MISCONDUCT TO PROVE PROPENSITY TO COMMIT THE SAME CHARGED SEXUAL MISCONDUCT WAS HARMLESS BEYOND A REASONABLE DOUBT WHEN THE MILITARY JUDGE FOUND THE “PROBATIVE WEIGHT” OF SUCH EVIDENCE WAS “HIGH.”

No briefs will be filed under Rule 25.

This is the second CAAF grant in this case.

The Army CCA’s first decision applied the CCA’s decision in Hukill (discussed here) and affirmed. CAAF then granted review in Hazelbower (noted here). Then CAAF issued its decision in United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page), reversing the CCA. A summary remand in Hazelbower followed (noted here).

On remand, the Army CCA found the prosecution’s case strong enough to overcome any prejudice from the improper use of propensity, and it again affirmed the findings.

Yesterday CAAF granted review in an Army case:

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS’S IN-COURT IDENTIFICATION OF APPELLANT.

Briefs will be filed under Rule 25

The Army CCA’s opinion is available here.

On Tuesday CAAF granted review in this Army case:

No. 17-0604/AR. U.S. v. Christopher E. Christensen. CCA 20140372. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT WAS SUBJECT TO COURT-MARTIAL JURISDICTION.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here. The appellant was in civilian confinement and pending involuntary administrative separation (for alcohol abuse rehabilitation failure) when military authorities decided to retain him on active duty for a possible court-martial. But the administrative separation processing continued, he received separation orders and a DD-214, and DFAS began processing his final pay. The Army CCA, however, found that there was never a final accounting of pay made to the appellant, and so his discharge was not final:

Here, the processing of appellant’s pay stopped at a stage similar to that in Hart, and we find the reasoning of the [United States v. Hart, 66 M.J. 273, 276 (C.A.A.F. 2008)] court persuasive and controlling. The initial calculations, or snapshot, of appellant’s pay were entered into the DFAS system. Further action to calculate appellant’s final pay depended upon the removal of a code by DFAS. This never occurred since LTC AT acted to halt this calculation and, later LTC JD, as the SPCMCA, effectively ratified this action in a timely manner. Accordingly, we concur with the DuBay military judge that appellant’s “‘final pay or a substantial part of that pay’ were never computed or made ready for delivery to him” and that the Army retained jurisdiction over appellant.

Slip op. at 9.

CAAF just updated its daily journal with events from last week, including two significant developments.

First, the court rejected the certified issue in Hale as seeking an advisory opinion, and summarily affirmed the NMCCA:

No. 17-0537/MC. United States, Appellant v. James A. Hale III, Appellee. CCA 201600015. On further consideration of Appellant’s certificate for review and the briefs of the parties, it is ordered that no answer is provided to the certified issue because to do so would require issuing an advisory opinion, that the hearing notice issued by the Court on October 20, 2017, setting argument in this case for January 9, 2018, is hereby vacated, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

In an opinion I discussed here, the NMCCA reversed Hale’s convictions, and authorized a rehearing, because of a conflict of interest between his lead military defense counsel (a Marine captain, identified as Capt KC), her husband (another Marine captain, who was assigned as a trial counsel but not otherwise involved in the case, identified as Capt CC), and the prosecutor (a Marine lieutenant colonel, who was the regional trial counsel and supervised the husband, identified as LtCol CT). The CCA held “that where an appellant demonstrates that his counsel labored under an actual conflict of interest, and where the conflict had an adverse effect on the counsel’s performance, the appellant is entitled to a presumption of prejudice.” United States v. Hale, 76 M.J. 713, 722 (N.M. Ct. Crim. App. 2017) (emphasis added).

Second, CAAF expanded its review of whether failure to object to improper argument forfeits or waives any error. The court specified an issue in Kelly – in addition to the previously-granted issue questioning a CCA’s power to modify a mandatory minimum punitive discharge – but ordered no briefs, making the case a Marcum trailer:

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. On further consideration of the record, it is ordered that the petition for grant of review is granted on the following additional issue specified by the Court:

IN LIGHT OF THIS COURT’S DECISIONS IN UNITED STATES V. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES V. PABELONA, 76 M.J. 9 (C.A.A.F. 2017) DID THE LOWER COURT ERR WHEN IT DETERMINED THE STANDARD OF REVIEW WAS WAIVER WHEN THERE WAS NO OBJECTION TO IMPROPER ARGUMENT?

No briefs will be filed under Rule 25.

Additionally, CAAF granted review of a similar issue in Burris:

No. 17-0605/AR. U.S. v. Erik J. Burris. CCA 20150047. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

CITING RULES FOR COURTS-MARTIAL 905(e) AND 919(c), THE ARMY COURT HELD THAT THE FAILURE OF APPELLANT’S TRIAL DEFENSE COUNSEL TO OBJECT TO IMPROPER CHARACTER EVIDENCE AND IMPROPER ARGUMENT WAIVED ANY ERROR. THIS COURT, HOWEVER, TREATS SUCH FAILURES AS FORFEITURE AND TESTS FOR PLAIN ERROR. WHICH COURT IS RIGHT?

Briefs will be filed under Rule 25.

Disclosure: I represent both Kelly and Burris in my personal capacity.

Senior Chief Barry, U.S. Navy, was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed, and CAAF summarily affirmed on April 27, 2017.

But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career. That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding.

That fact-finding is complete, but CAAF’s action isn’t. Yesterday the court issued the following grant order:

No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. Upon reconsideration of Appellant’s petition for grant of review, we granted review of the following issue: WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY. We also ordered a hearing in accordance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). SeeUnited States v. Barry, 76 M.J. 407 (C.A.A.F. 2017)(sum. disp.). The record of that proceeding and the findings and of fact and conclusions of law of the DuBay judge have been returned to this Court. After consideration of the record of the hearing and the findings and conclusions of the DuBay judge, it is ordered that said petition is hereby granted on the following specified issue:

WHETHER A DEPUTY JUDGE ADVOCATE GENERAL CAN COMMIT UNLAWFUL COMMAND INFLUENCE UNDER ARTICLE 37, UCMJ, 10 U.S.C. §837 (2012).

The original granted issue is also modified as follows:

WHETHER MILITARY OFFICIALS EXERTED ACTUAL UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY OR CREATED THE APPEARANCE OF DOING SO.

Appellant shall file a brief on the two granted issues on or before December 29, 2017, Appellee shall file a brief within 30 days of the date of the filing of Appellant’s brief, and Appellant may file a reply within 10 days of the date of the filing of Appellee’s brief. The parties are ordered to file a joint appendix in accordance with C.A.A.F. R. 24(f).*

* Judge Sparks is recused and did not participate.

All of our prior coverage of this case is available here.

Yesterday CAAF granted review in this Army case:

No. 17-0608/AR. U.S. v. Randy E. Jones. CCA 20150370. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER ADMISSION OF AN ALLEGED CO-CONSPIRATOR’S CONFESSION TO LAW ENFORCEMENT VIOLATED M.R.E. 801(d)(2)(E).

II. WHETHER ADMISSION OF THE SAME CONFESSION VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

III. WHETHER USE OF THE CONFESSION TO CORROBORATE OTHERWISE UNSUPPORTED ESSENTIAL ELEMENTS IN APPELLANT’S OWN CONFESSION VIOLATED M.R.E. 304(g) AND UNITED STATES v. ADAMS, 74 M.J. 137 (C.A.A.F. 2015).

Briefs will be filed under Rule 25.

There’s no opinion on the CCA’s website, but between the case number and the citation to Mil. R. Evid. 304(g) (restyled as Mil. R. Evid. 304(c) in 2013), the case clearly involves the old corroboration rule.

Confessions – the least reliable form of proof known to the law – were our #10 Military Justice Story of 2015, after CAAF breathed new life into the corroboration requirement with its decision in United States v. Adams, 74 M.J. 137, 140 (C.A.A.F. 2015) (CAAFlog case page). The Joint Service Committee quickly proposed changing the rule to restore the corroboration requirement to its formerly toothless status, and President Obama promulgated that change just 13 months after CAAF’s decision in Adams.

For comparison, President Obama didn’t promulgate a Part IV of the MCM addressing the 2012 changes to Article 120 until September 16, 2016 – 51 months after the statute’s effective date.

Mil. R. Evid. 801(d)(2)(E) involves statements made by a “co-conspirator during and in furtherance of the conspiracy,” like discussions of the plan, pitches to recruit other conspirators, and confessions to law enforcement.

Earlier this year, in this post, I discussed the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552 (N.M. Ct. Crim. App. Mar. 28, 2017), in which a three-judge panel of that court affirmed that military retirement isn’t really retirement, it’s merely a change in duty status, and those who retire from active duty and receive retired pay remain subject to the UCMJ.

On Monday CAAF granted review, but of a narrow issue:

No. 17-0510/MC. U.S. v. Derrick L. Dinger. CCA 201600108. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

10 U.S.C. § 6332 STATES THAT WHEN A PERSON IS PLACED IN A RETIRED STATUS, THIS “TRANSFER IS CONCLUSIVE FOR ALL PURPOSES.” CAN A COURT-MARTIAL LAWFULLY SENTENCE A RETIREE TO A PUNITIVE DISCHARGE?

Briefs will be filed under Rule 25.

The same issue is likely raised in Hennis – which is before the court for mandatory review under Article 67(a)(1) – because Hennis was a retiree who was sentenced to death and “a sentence of death includes a dishonorable discharge or dismissal as appropriate.” R.C.M. 1004(e).

In an order issued yesterday (but not yet on the court’s website update: now on the court’s site) CAAF granted review of the following issue in the Army case of United States v. Marcum, No. 17-0491/AR (CCA’s opinion noted here):

No. 17-0491/AR. U.S. v. Nicholas S. Marcum. CCA 20150500. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

APPELLANT CLAIMED THE PROSECUTION’S ARGUMENTS ON FINDINGS AND SENTENCE WERE ERRONEOUS AND PREJUDICIAL. THE COURT BELOW APPLIED THE STANDARD OF REVIEW IN UNITED STATES v. AHERN, 76 M.J. 194 (C.A.A.F. 2017), AND DID NOT FIND PREJUDICE. DID THE COURT BELOW ERR, BECAUSE THE PROPER STANDARD OF REVIEW IS FOUND IN UNITED STATES v. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES v. PABELONA, 76 M.J. 9 (C.A.A.F. 2017)?

Briefs will be filed under Rule 25.

CAAF granted review in four cases yesterday, three of which were previously discussed on this blog.

The first is Barker, in which the Air Force CCA found that the military judge improperly admitted two unsworn written victim-impact statements during sentencing, but that the error was harmless. I discussed the CCA’s published decision in this post. CAAF granted review of two issues challenging the admission of a third statement and the finding of harmlessness regarding the two improperly-admitted statements:

No. 17-0551/AF. U.S. v. Thomas E. Barker. CCA 39086. 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 COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD PROPER FOUNDATION HAD BEEN LAID TO ADMIT EVIDENCE IN AGGRAVATION.

II.WHETHER THE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED A REVIEW OF THE PREJUDICE RESULTING FROM THE MILITARY JUDGE’S ERRONEOUS ADMISSION OF EVIDENCE IN AGGRAVATION.

Briefs will be filed under Rule 25.

The second is Hardy, in which the Air Force CCA found that a guilty plea waives any unreasonable multiplication of charges. I discussed the CCA’s published decision in this post. CAAF granted review of the CCA’s finding of waiver:

No. 17-0553/AF. U.S. v. Ryan A. Hardy. CCA 38937. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLANT WAIVED, RATHER THAN FORFEITED, HIS CLAIM OF UNREASONABLE MULTIPLICATION OF CHARGES.

Briefs will be filed under Rule 25.

The third is Armstrong, which the Army CCA decided without an opinion (summarily):

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER ASSAULT CONSUMMATED BY A BATTERY IS A LESSER INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM.

Briefs will be filed under Rule 25.

The fourth is Kelly, in which the Army CCA sitting en banc split 6-4 to conclude that it has no authority to set aside a mandatory minimum dismissal or dishonorable discharge for a sexual offense required by Article 56. I discussed the CCA’s opinion in this post (though I focused on a different issue). CAAF granted review of the CCA’s finding of no authority:

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER A COURT OF CRIMINAL APPEALS HAS THE AUTHORITY TO DISAPPROVE A MANDATORY MINIMUM PUNITIVE DISCHARGE.

Briefs will be filed under Rule 25.

Disclosure: I represent Kelly in my personal capacity.

CAAF granted review in two cases last week.

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On Tuesday CAAF granted review in this Air Force case:

No. 17-0404/AF. U.S. v. Vashaun M. Blanks. CCA 38891. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

IN LIGHT OF THIS COURT’S DECISION IN UNITED STATES v. HAVERTY, 76 M.J. 199 (C.A.A.F. 2017), DID THE MILITARY JUDGE ERR WHEN HE INSTRUCTED THE MEMBERS APPELLANT COULD BE CONVICTED OF NEGLIGENT DERELICTION OF DUTY?

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant was “charged with willful dereliction of duty for failing to provide adequate support to his wife over a time period that spanned his assignments to both Korea and the United Kingdom, [but] the members instead found Appellant guilty of the lesser-included offense of negligent dereliction of duty.” Slip op. at 5. The CCA decided the case a month before CAAF decided Haverty.

In the Army case of United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), a functionally-unanimous court applied the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to find that recklessness is the minimum mens rea (mental state) adequate to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20.

Article 92(3) addresses a person who “is derelict in the performance of his duties.” Twenty-four years ago the court held “that the military judge properly instructed the members in this case that simple negligence is the proper standard for determining whether the nonperformance of military duty is derelict within the meaning of Article 92(3).” United States v. Lawson, 36 M.J. 415, 416 (C.M.A. 1993). In reaching that decision the court considered the legislative history of the Article, concluding that:

[T]he more reasonable interpretation of this new codal provision is that Congress rejected an exclusive culpable-negligence standard and intended, instead, to punish both types [simple and culpable/gross] of negligent-duty conduct under Article 92(3).

The new legislative term “derelict” was broad enough to include both degrees of negligence and incorporate Navy practice with Army and Air Force practice. Prior to enactment of the Uniform Code of Military Justice in 1950, the Army and Air Force also punished neglect of duty under the general article, Article of War 96. Para. 183a, Manual for Courts-Martial, U.S. Army, 1949 at 255. The Army interpreted the word “neglect” in the general article as simply an omission of conduct. See generally Snedeker, supra at 616. This practice is also referred to in the legislative history with a comment that it was now punishable under the new Article 92(3). Accordingly, it is our conclusion, at the very least, that Congress intended to establish a simple-negligence standard for nonperformance-of-duty derelicts charged under this statute.

36 M.J. at 421. That conclusion, however, now seems to be in doubt.

CAAF granted review in two cases on Friday. The first is a Navy case:

No. 17-0480/NA. U.S. v. Raiden J. Andrews. CCA 201600208. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

THE LOWER COURT FOUND SEVERE PROSECUTORIAL MISCONDUCT. THEN IT AFFIRMED THE FINDINGS AND SENTENCE, GIVING ITS IMPRIMATUR TO THE PROSECUTORIAL MISCONDUCT IN APPELLANT’S CASE. DID THE LOWER COURT ERR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found that the trial counsel committed prosecutorial misconduct in the form of improper argument by calling the appellant a liar, mischaracterizing the appellant’s statements to NCIS, asserting that the defense counsel did not believe the appellant, and misstating the law. But, applying the plain error test – because “the civilian defense counsel did not contemporaneously object,” slip op. at 7, something that the Army court recently held constitutes waiver of any error – the CCA found the improper arguments to be harmless.

The second is an Air Force case that is a Mitchell (CAAFlog case page) trailer:

No. 17-0504/AF. U.S. v. Hank W. Robinson. CCA 38942. 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 MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT’S CELL PHONE.

II. WHETHER THE AIR FORCE COURT ERRED IN HOLDING APPELLANT WAIVED OBJECTIONS REGARDING INVESTIGATORS’ EXCEEDING THE SCOPE OF APPELLANT’S CONSENT.

Briefs will be filed under Rule 25.

I mentioned Robinson last week in this post, and I discussed the CCA’s opinion (available here) in this post.