We’ve heard an unconfirmed rumor that CAAF today remanded to AFCCA at least one AFCCA case due to the government’s concession that one of the judges, Judge Soybel, was not properly appointed to the court. Anyone else gotten one of these orders? Back in September there were apparently similar grants. See discussion here.
CAAF’s daily journal has been updated only through Thursday, but it’s already clear that last week was a busy one at the court.
On Monday, Chief Judge Baker welcomed Judge Ohlson to the court at the beginning of the day’s oral arguments in United States v. Hines, No. 13-5010/AR (CAAFlog case page), and United States v. Knapp, No. 13-5012/AF (CAAFlog case page). Judge Ohlson asked numerous questions during the arguments and appears to be a lively addition to the court.
Next, on Tuesday the court granted review in an Army case about instructional error:
No. 14-0029/AR. U.S. v. Ronald J. DAVIS. CCA 20100815. Review granted on the following issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE’S FAILURE TO INSTRUCT ON THE AFFIRMATIVE DEFENSE OF DEFENSE OF PROPERTY WAS HARMLESS BEYOND A REASONABLE DOUBT.
Briefs will be filed under Rule 25.
Appellant was convicted of multiple offenses, including one specification of simple assault with an unloaded firearm after he pointed the weapon at a houseguest who didn’t leave his property when asked. The Army CCA heard oral argument back in May (link to TWIMJ entry) and issued an unpublished opinion on July 15, 2013 (available here), in which it found that the military judge erred in failing to sua sponte instruct the members on defense of property, but that:
Even if a panel concluded [the victim of the assault] heard appellant’s direction to leave his property, no rational panel could conclude appellant’s initiation of physical violence and threats of deadly force to expel [the victim] from the property in front of his house were reasonable under the facts presented in this case. Nor would any rational panel conclude that appellant believed his use of force in this manner, or his brandishing of a firearm, was a necessary action in response to the trespass. We hold that it is clear beyond a reasonable doubt that a rational panel would have rejected any defense of property claim under these circumstances and would have found appellant guilty of assault in the absence of the instructional error. The omission of the defense of property instruction did not contribute to appellant’s conviction and the instructional error in this regard was harmless beyond a reasonable doubt.
Slip op. at 5.
Then, on Thursday the court granted review in an Air Force case about appellate judicial notice:
No. 14-0119/AF. U.S. v. Charles W. PAUL. CCA S32025. Review granted on the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).
Briefs will be filed under Rule 25.
Appellant was convicted of multiple offenses, including wrongful use of 3,4-methylenedioxymethamphetamine (“Ecstasy”), on divers occasions. But when he was tried by a special court-martial composed of a military judge alone, the Government failed to either introduce evidence to prove that Ecstasy is a controlled substance or ask the trial judge to take judicial notice of that fact. In an unpublished opinion dated August 23, 2013 (available here), the Air Force CCA determined:
The fact that Ecstasy is a Schedule I controlled substance is indisputable. See 21 C.F.R. § 1308.11(d)(11). We have the authority to take judicial notice of indisputable facts. United States v. Williams, 17 M.J. 207, 214 (C.M.A. 1984).
Slip op. at 4. So the CCA took appellate judicial notice and affirmed the conviction. The court rationalized its decision in this paragraph:
The Government is not ordinarily permitted a second chance to prove an element of an offense which has been overlooked at trial. It is incumbent on trial counsel to properly prepare their case and provide legal and competent evidence on each and every element of the charged offense. The Government should not be in a position of needing this Court to take judicial notice of domestic law on appeal. It is a very rare case where this Court would be willing to judicially notice a matter which could, and should, have been judicially noticed at trial. Because judicial notice in this case involves a question of domestic law rather than an adjudicative fact, and there is no question that Ecstasy is a Schedule I controlled substance under the laws of the United States, we are taking the extraordinary step of judicially noticing domestic law on appeal. We are convinced that, had the Government requested the military judge to take judicial notice that Ecstasy is a Schedule I controlled substance at trial, the military judge would have done so, even over a possible objection by the defense.
Slip op. at 5.
CAAF also issued its first published decision of the term on Thursday, unanimously affirming the Army CCA and rejecting the appellant’s claim to additional credit for prior punishment in United States v. Mead, No 13-0459/AR (opinion) (CAAFlog case page). The court finds that the trial military considered the prior punishment and specifically awarded credit for it, and that the appellant is not entitled to additional credit for pay he lost because of the prior reduction in rank. Judge Stucky wrote for the court. I anticipate posting a fully opinion analysis on Monday.
And finally, CAAF summarily reversed three more Air Force cases because the CCA panel that decided them was improperly constituted. By my count that brings the total to 13 cases summarily reversed because of the improper appointment of a civilian judge to assist the beleaguered Air Force court (our coverage of the AFCCA’s backlog is summarized in the second paragraph of my argument preview in United States v. Merritt, No. 13-0283/AF (CAAFlog case page)).
CAAF’s daily journal update for yesterday reflects this entry from last week:
No. 14-0005/AF. U.S. v. Daniel A. FREY. CCA 37759. Review granted on the following issue:
WHETHER THE AIR FORCE COURT ERRED IN FINDING TRIAL COUNSEL’S PRESENTENCING ARGUMENT WAS HARMLESS ERROR WHERE TRIAL COUNSEL INSINUATED THAT APPELLANT WILL COMMIT FUTURE ACTS OF CHILD MOLESTATION.
Briefs will be filed under Rule 25.
We didn’t discuss Frey when it was decided in July, but it’s an interesting case. The AFCCA’s unpublished opinion is available here, and includes discussion of Appellant’s other assertions of error, including IAC in plea negotiations, erroneous post-trial processing, and cruel and unusual punishment during approximately two months of post-trial confinement in a civilian facility while awaiting transfer to Fort Leavenworth.
Appellant was convicted in 2010, contrary to his pleas of not guilty by a general court-martial composed of officer members, of one specification of aggravated sexual contact and one specification of rape of a child who had not attained the age of 12 years, both in violation of Article 120 (2006). He was sentenced to reduction to E-1, confinement for 8 years, and a dishonorable discharge.
Yesterday CAAF granted review in an Army case:
No. 13-0602/AR. U.S. v. Thomas C. FLESHER. CCA 20110449. Review granted on the following issue:
WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED THE TESTIMONY OF A PUTATIVE EXPERT WITNESS IN VIOLATION OF THE MILITARY RULES OF EVIDENCE AND CASE LAW ON BOLSTERING, EXPERT QUALIFICATIONS, RELEVANCE, AND THE APPROPRIATE CONTENT AND SCOPE OF EXPERT TESTIMONY.
Flesher was argued at the CCA back in May (link to TWIMJ mention). But I can’t find an opinion from the ACCA. The issues at oral argument were:
I. Whether the military judge abused his discretion when he allowed the government’s expert on counter-intuitive behavior and denied the expert appellant requested to refute the government’s expert and assist defense counsel in developing trial strategies.
II. Whether the military judge abused his discretion by admitting the testimony of an expert witness in violation of the military rules of evidence and case-law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.
If this case is about “counter-intuitive behavior” “experts” (a “subject” about which I have absolutely nothing nice to say), then this term just got a whole lot more interesting.
CAAF had a big day on Wednesday. Besides getting a new judge, the court granted review in an Army case:
No. 14-0009/AR. U.S. v. Jesus GUTIERREZ, Jr. CCA 20120104. Review granted on the following issue:
WHETHER THE EVIDENCE OF STALKING WAS LEGALLY SUFFICIENT WHERE APPELLANT WAS ACQUITTED OF RAPE AND THE PROSECUTION RELIED ON THE EVIDENCE OF RAPE TO PROVE STALKING.
Best I can tell, the Army CCA didn’t issue a written opinion.
The court also received a certificate of review from the Army JAG:
No. 14-5001/AR. U.S. v. Joshua R. SICKELS. CCA 20110110. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 this date on 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.
Finally, the court denied the advocacy group “Protect our Defenders” leave to file an amicus brief out of time:
No. 13-0607/AF. U.S. v. Matthew J. SOUSA. CCA 37889. On consideration of Appellant’s motion to file the supplement to the petition for grant of review under seal, and the motion of Protect our Defenders for leave to file an Amicus Curiae brief in support of this Court’s review of the MIL.R.EVID. 412 Balancing Test, it is ordered that Appellant’s motion to file the supplement to the petition for grant of review under seal is hereby granted, and the motion of Protect our Defenders for leave to file an Amicus Curiae brief in support of this Court’s review of the MIL.R.EVID. 412 Balancing Test is hereby denied as untimely filed under Rule 26(b), C.A.A.F. Rules of Practice and Procedure.
On Tuesday CAAF granted review in United States v. Elespuru, No. 14-0012/AF, with the following issue:
Whether Specifications 2 and 3 of Charge I are multiplicious.
The court ordered briefs, but even if the specifications are multiplicious this case looks to be a likely candidate for a summary decision without oral argument, as the Air Force CCA considered this issue and determined:
Considering the record of trial and the legal arguments presented by both sides, we do not find that the military judge abused his discretion by failing to dismiss one of the specifications before findings and, rather, deciding to merge them for sentencing. We also note he did not dismiss one of these two specifications, even after the appellant was found guilty of both. We do not find this to be an error either.
United States v. Elespuru, No. 38055 (A.F.Ct.Crim.App. Jul. 9, 2013) (per curiam) (emphasis added) (slip op. here). Merging for sentencing in what appears to be a judge alone case (the CCA opinion doesn’t specify) obviates any prejudice in the sentence (though there is still prejudice from multiple convictions).
On Tuesday CAAF granted review and ordered briefs in
six five cases:
No. 07-0725/MC. U.S. v. Jonathan E. LEE. CCA 200600543. Review granted on the following issue:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN FINDING NO DUE PROCESS VIOLATION WHERE 2,500 DAYS ELAPSED BETWEEN SENTENCING AND REMOVAL OF APPELLANT’S NAME FROM THE TEXAS SEX OFFENDER REGISTRY.
Lee is a long-running Marine Corps case (and is seen by many as the precipitating event for the creation of the Marine Corps Defense Services Organization due to a conflict of interest issue that was the topic of this McClatchy article). Normally I don’t create a case page until I write an argument preview, but we’ve covered the Lee case extensively, so it gets a case page now (CAAFlog case page). See the case page for links to the long appellate history.
No. 13-0442/MC. U.S. v. Charles C. HORNBACK. CCA 201200241. Review granted on the following issue:
WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING NO MATERIAL PREJUDICE TO APPELLANT’S SUBSTANTIAL RIGHT TO A FAIR TRIAL AFTER IT ASSUMED, WITHOUT DECIDING, THAT TRIAL COUNSEL’S ACTIONS AMOUNTED TO MISCONDUCT, AND WHETHER THE MILITARY JUDGE’S CURATIVE INSTRUCTIONS SUFFICIENTLY ADDRESSED THE CUMULATIVE NATURE OF SUCH CONDUCT AS WELL AS ANY CORRESPONDING PREJUDICE IN LIGHT OF THE FACTORS IDENTIFIED IN UNITED STATES v. FLETCHER, 62 M.J. 175 (C.A.A.F. 2005).
The NMCCA’s opinion in Hornback is here.
No. 13-0522/AF. U.S. v. David J.A. GUTIERREZ. CCA 37913. Review granted on the following issues:
I. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ASSAULT LIKELY TO RESULT IN RIEVOUS BODILY HARM.
II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ADULTERY.
The AFCCA’s opinion in Gutierrez is here.
No. 13-0565/AR. U.S. v. Christopher R. KEARNS. CCA 20110348. Review granted on the following issue:
WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT APPELLANT HAD THE INTENT TO ENGAGE IN CRIMINAL SEXUAL CONDUCT WITH KO, A MINOR, WHEN HE FACILITATED KO’S TRAVEL IN INTERSTATE COMMERCE AND WAS FOUND GUILTY IN SPECIFICATION 1 OF CHARGE III OF VIOLATING 18 U.S.C. SECTION 2423(a).
The Army CCA’s published opinion in Kearns (72 M.J. 586) is here.
No. 13-0601/AF. U.S. v. Korey J. TALKINGTON. CCA 37785. Review granted on the following issue:
WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS THAT CONSIDERATION OF SEX OFFENDER REGISTRATION IS “NOT A MATTER BEFORE THEM” AND “FRAUGHT WITH PROBLEMS.”
The Air Force CCA’s opinion in Talkington is here.
Now CAAF says:
No. 13-0570/AF. U.S. v. Steven A. DANYLO. CCA 37916. Review granted on the following issues:
I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ONLY CONSIDERED THE PERIOD OF TIME FOR APPELLANT’S ARTICLE 62 APPEAL FOR THE PURPOSES OF APPELLANT’S SPEEDY TRIAL MOTION.
II. WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL WHEN HIS COURT-MARTIAL OCCURRED 350 DAYS AFTER HE WAS PLACED IN PRETRIAL CONFINEMENT.
Briefs will be filed under Rule 25.
And we are like, “No way!”
The AFCCA’s opinion is here. Notably, the charges were dismissed with prejudice after Appellant raised a speedy trial claim at the trial stage. But the Government appealed, the AFCCA reversed (after hearing oral argument; recording here), and Appellant entered conditional pleas of guilty.
Last week CAAF granted review in the Air Force case of United States v. Knapp II, No. 13-0512, (CCA opinion here) that involves the awesome powers of the “human lie detector,” with the following issue:
Whether the military judge (1) plainly erred by initially allowing “human lie detector” testimony, (2) abused his discretion by allowing further admission of “human lie detector” testimony, over defense objection, and (3) erred by not providing a curative instruction on the “human lie detector” testimony.
Appellant was convicted by a general court-martial composed of officer and enlisted members of aggravated sexual assault in violation of Article 120 (2006) for engaging in sexual intercourse with a female Airman while she was substantially incapacitated by alcohol. He was sentenced to confinement for 3 years, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge.
Before trial, Appellant was interrogated by the Air Force Office of Special Investigations (AFOSI). Appellant initially stated that he had consensual sexual intercourse with the female Airman. But as the interrogation progressed over the course of a few hours, Appellant eventually admitted that the victim was unconscious when he began having sex with her. At trial, the Defense tried to show that this later admission was false, caused by AFOSI’s interrogation techniques. But an AFOSI investigator – “Agent P” – testified at trial about many “nonverbal cues” given by Appellant during the earlier, exculpatory part of his interrogation, and explained, “That is indicating to me that there is some form of deception going on.” Knapp, ACM 37718, slip op. at 7 (A.F.Ct.Crim.App. Mar. 20, 2013) (unpublished). Eventually the Defense specifically objected to “human lie detector” testimony from the agent, but the judge overruled the objection and then gave no specific instructions about such testimony.
The AFCCA found error, noting:
What the trial counsel elicited, however, was that these actions by the appellant constitute “nonverbal discrepancies” or “cues” which AFOSI agents are “trained” to recognize. Although the agent was not specifically asked to provide his opinion about the truth or falsity of the appellant’s statements, we find that his overall testimony indicated he could tell the appellant was lying based on the appellant’s physical reactions, and we thus find error.
Knapp, ACM 37718, slip op. at 11. But the CCA affirmed anyway, finding no prejudice due to the “inconsistencies and contradictions” in Appellant’s statements during the interrogation and the general instruction given to the members that they were responsible for evaluating the credibility of the witnesses. The CCA also cited the Defense’s “‘false coerced confession’ strategy” in its conclusion about there being no prejudice. Id., slip op. at 12.
The facts of this case are remarkably similar to another Air Force case involving testimony from an AFOSI agent about indicators of truthfulness that was decided by CAAF a decade ago: United States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003) (opinion). In Kasper, CAAF found prejudicial error and reversed in an opinion authored by then-Judge Effron and joined by then-Judge Baker and Judge Erdmann. As CAAF still has a vacancy, we’ll watch to see if Senior Judge Effron is asked to participate in this case, giving Chief Judge Baker, Senior Judge Effron, and Judge Erdmann another opportunity to discuss the propriety of a law enforcement officer testifying about “training” to recognize untruthfulness through “nonverbal discrepancies” or “cues.”
The long-running case of United States v. Arriaga is headed back to CAAF on certification by the Judge Advocate General of the Air Force, with the following interesting issues:
I. Whether Appellee satisfied his burden to demonstrate that the defective specification under Article 134, UCMJ, materially prejudiced his substantial rights when he was provided actual notice of the terminal element through an Article 32 report received prior to trial.
II. Whether the Air Force Court of Criminal Appeals applied an erroneous standard of law when evaluating whether the defective specification under Article 134, UCMJ, materially prejudiced Appellee’s substantial rights by failing to consider whether the evidence on the missing element was “overwhelming and essentially uncontroverted” and by finding notice of the missing element was not extant in the record.
III. Whether this honorable court should apply the fourth prong of the plain error analysis as articulated by the United States Supreme Court in United States v. Olano, 507 U.S. 725 (1993), when assessing whether the defective specification under Article 134, UCMJ, materially prejudiced appellee’s substantial rights in this case.
I recall discussion of something similar to Issue I over the past term or two, but can’t remember where. Issue II is familiar to those who have followed the Humphries/Fosler line of cases (and this term’s analytical trio of Tunstall, Goings, and Gaskins). And Issue III got plenty of indirect attention this term: In Tunstall, Judge Erdmann writing for the majority, emphasized in a footnote that: “We have consistently rejected application of the fourth prong of Olano when addressing questions under Article 59(a), UCMJ, and do not intend to revisit that practice here.” Slip op. at 14-15 N.7. But in his concurring opinion in Tunstall, Judge Stucky explained that he “would adhere to the Supreme Court’s four-prong plain error test as set out in [Olano].” Con. op. at 2. And in his concurring opinion in Gaskins (decided on the same day), Judge Stucky practically invited this issue: “I will await a case in which the issue of which test to apply is squarely presented,” he wrote.
As for Arriaga, this will be its third trip to Judiciary Square. The AFCCA’s most recent opinion is here, and provides the extensive history which is reproduced after the jump.
At a trial in absentia, defense counsel gave an unsworn statement, then invoked. CAAF understandably curious… (plus another new grant)
On Thursday CAAF granted review in the (I’m not sure what adjectives to use here) case of United States v. Moss, No. 13-0348/AR, with the following issues:
I. Whether Appellant was denied her Sixth Amendment right to effective assistance of counsel where the defense counsel made an unsworn statement on her behalf when she was tried in absentia and there is no evidence that she consented to the unsworn statement.
II. Whether Appellant was deprived of her right to conflict-free counsel when her defense counsel made an unsworn statement without her consent and subsequently invoked his Fifth Amendment rights and failed to assert that appellant was prejudiced.
III. Whether the military judge committed plain error when he allowed the defense counsel to make an unsworn statement on behalf of Appellant when she was tried in absentia.
IV. Whether the military judge abused his discretion when he found that there was no prejudice when the defense counsel read an unsworn statement without Appellant’s consent and then failed to instruct the panel to disregard the unsworn statement and Sergeant First Class M’s rebuttal testimony.
The ACCA’s opinion is here. On the invocation issue, the ACCA said the following in a footnote:
We find the additional assignments of error—that the military judge abused his discretion by allowing the unsworn statement, that the military judge erred by not instructing the jury to disregard the unsworn statement (and related rebuttal testimony), and that appellant was deprived of her right to conflict-free counsel when her trial defense counsel subsequently invoked his Fifth Amendment rights after being questioned by the military judge about the unsworn statement—to be without merit.
CAAF also granted review in Unites States v. Payne, No. 13-0345/AF, with the following issue:
Whether the military judge improperly instructed the members of the elements for creation of child pornography.
The AFCCA’s opinion is here.
The Air Force JAG has certified an unusual case to CAAF:
No. 13-5007/AF. U.S. v. Laurence H. FINCH. CCA 38081. 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:
IF THE COURT FINDS THAT THE SPECIFICATIONS SUFFICIENTLY ALLEGED THAT THE VISUAL DEPICTIONS WERE OF ACTUAL MINORS BUT THAT THE MILITARY JUDGE’S DEFINITIONS WERE INCONSISTENT WITH THE ALLEGED SPECIFICATIONS, WHAT IS THE APPROPRIATE REMEDY, IF ANY, TO BE GIVEN?
The AFCCA’s per curiam opinion is here. The Appellant pleaded guilty, at a general court-martial consisting of a military judge alone, to possession and distribution of child pornography, and was sentenced to reduction to E-1, confinement for seven years, and a dishonorable discharge. At the CCA the Appellant complained that the language of the specifications did not allege that the images he possessed and distributed were of “actual” minors (the specifications alleged “visual depictions of a minor…”) but instead only alleged that the images depicted what appeared to be minor (invoking a much lower maximum punishment). The CCA disagreed, and found the language of the specifications sufficient.
The Appellant also argued that the military judge conducted a plea inquiry that was only sufficient to establish that the images depicted what appears to be minors, and not actual minors. Again the CCA disagreed, concluding:
Although the military judge initially used the phrase “appearing to be” in regard to the images, the inquiry as a whole shows that both he and the appellant understood that the appellant was pleading guilty as charged to images involving a minor rather than images of only what appeared to be a minor.
Slip op. at 4. The CCA affirmed the findings and sentence, meaning the Government won on direct appeal.
But the AF JAG certified anyway. Correction: A comment reminds me that CAAF granted review in Finch (and we covered it here).
Following CAAF’s grant on Monday in United States v. Warner, No. 13-0435/AR, (discussed here) the court has granted review in another Army case, with the first issue exactly the same as that in Warner.
United States v. McKim-Burwell, No. 13-0329/AR:
I. WHETHER SPECIFICATION 2 OF THE CHARGE IS VOID FOR VAGUENESS BECAUSE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING “SEXUALLY SUGGESTIVE” MATERIAL OF MINORS AS “SEXUAL OBJECTS” WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.
II. WHETHER THERE IS SUBSTANTIAL BASIS IN LAW TO QUESTION APPELLANT’S GUILTY PLEA TO SPECIFICATION 2 OF THE CHARGE WHEN THE MILITARY JUDGE FAILED TO PROPERLY DEFINE “SEXUAL OBJECTS OR IN A SEXUALLY SUGGESTIVE WAY” AND WHERE THE PROVIDENCE INQUIRY FOR THIS CONSTITUTIONALLY PROTECTED MATERIAL FAILED TO ELICIT APPELLANT’S ACTIONS AS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OR SERVICE DISCREDITING IN LIGHT OF UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).
CAAF today granted review of these two issues:
I. WHETHER SPECIFICATION 3 OF CHARGE I IS VOID FOR VAGUENESS BECAUSE THE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING “SEXUALLY SUGGESTIVE” MATERIAL OF MINORS AS “SEXUAL OBJECTS” WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.
II. WHETHER SPECIFICATION 3 OF CHARGE I IS LEGALLY INSUFFICIENT WHEN THE GOVERNMENT FAILED TO PROVE THAT THE POSSESSION OF CONSTITUTIONALLY PROTECTED IMAGES OF MINORS AS “SEXUAL OBJECTS” AND IN “SEXUALLY SUGGESTIVE” POSES HAD A DIRECT AND PALPABLE EFFECT ON THE MILITARY MISSION AND THEREFORE WAS ACTUALLY SERVICE DISCREDITING AS REQUIRED BY UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).
United States v. Warner, __ M.J. __, No. 13-0435/AR (C.A.A.F. May 20, 2012).
CAAF today granted review in another case dealing with Judge Palmer’s now-infamous remarks. United States v. Myrick, __ M.J. __, No. 13-0444/MC (C.A.A.F. May 16, 2013). And CAAF granted review of a Humphries-type issue in United States v. Valentin, __ M.J. __, No. 12-0617/MC (C.A.A.F. May 16, 2013). In both cases, CAAF directed that no briefs be filed.