CAAFlog » CAAF Grants

No. 17-0084/AR. U.S. v. James N. Costigan. CCA 20150052. 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, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

This is the fourth case before CAAF involving application of Hills (our #3 Military Justice Story of 2016) in judge-alone trials. The other three are Hukill (grant discussed here), Phillips (grant discussed here), and Hazelbower (grant discussed here).

CAAF is also considering a Hills issue in Berger (grant discussed here), however the court ordered no briefs.

CAAF summarily reversed and remanded five Hills trailers last term. None (so far) this term.

CAAF granted review in three cases last Thursday. The first involves an issue of unreasonable multiplication of charges:

No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. 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:

WHETHER PUNISHING THE SAME TRANSACTION OF OBTAINING CHILD PORNOGRAPHY WITH FOUR CONVICTIONS UNREASONABLY EXAGGERATES APPELLANT’S CRIMINALITY AND TRIPLES HIS PUNITIVE EXPOSURE, CONSTITUTING AN UNREASONABLE MULTIPLICATION OF CHARGES.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that the appellant downloaded child pornography and then copied it to multiple devices, leading to the four separate specifications.

The second grant involves an issue similar to the issue in United States v. Sager, No. 16-0418/NA (CAAFlog case page) (argued on  Tuesday, November 15, 2016):

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. 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 GOVERNMENT PROVED BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SR WAS “OTHERWISE UNAWARE” OF SEXUAL CONTACT.

Briefs will be filed under Rule 25.

I don’t see an opinion on the Army CCA’s website (suggesting that the court summarily affirmed).

The final grant involves whether CAAF’s decision in Hills (our #3 Military Justice Story of 2016) applies in judge-alone trials – an issue currently pending before CAAF in two cases: United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Jan. 3, 2017) (discussed here):

No. 17-0087/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 issues:

WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 AND 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

The Army CCA’s opinion is available here. The court applied Hukill and affirmed.

Yesterday CAAF granted review in this Air Force case:

No. 16-0475/AF. U.S. v. Nathan G. Wilson-Crow. CCA 38706. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and the pleadings, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE COMMITTED LEGAL ERROR WHEN HE FOUND THAT SPECIFICATION 2 OF CHARGE I – APPELLANT’S CHILD SEXUAL ABUSE OF A.L. IN VIOLATION OF ARTICLE 120b – CONSTITUTED CHILD MOLESTATION UNDER MIL. R. EVID. 414(d)(2)(a) BECAUSE HE FOUND THAT “CONDUCT PROHIBITED BY ARTICLE 120” INCLUDES ARTICLE 120b OFFENSES.

II. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT, PURSUANT TO MRE 413, IT COULD USE OFFENSES IN ADDITIONAL CHARGE I, TO WHICH APPELLANT PLEADED NOT GUILTY, AS PROPENSITY EVIDENCE IN SUPPORT OF THE REMAINING SPECIFICATIONS OF THAT CHARGE WHICH HE ALSO CONTESTED.

III. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY OF THAT OFFENSE,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

Briefs will be filed under Rule 25 on Issues I and II only.

The first granted issue is very similar to the issue in United State v. Fetrow, No. 16-0500/AF (CAAFlog case page) (argued Tuesday, October 25, 2016).

The second granted issue was (seemingly) resolved by United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

The third granted issue is functionally identical to the issue in United States v. McClour, No. 16-0455/AF (CAAFlog case page) (argued Wednesday, November 2, 2016).

The Air Force CCA’s decision is available here but addresses none of the granted issues. The CCA decided the case on February 25, 2016 – two months before the Judge Advocate General of the Air Force certified Fetrow, one month after CAAF granted review in Hills, and four months before CAAF granted review in McClour.

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 –  a unanimous CAAF concluded that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity evidence undermines the presumption of innocence.

In the wake of Hills both the Army and Air Force CCAs held that the decision does not apply to a case tried by military judge alone. United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, __ M.J. __ (C.A.A.F. Nov. 23, 2016) (discussed here). United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here).

As noted above, CAAF granted review of the Hills issue in Hukill on November 23.

Yesterday CAAF granted review in Phillips:

No. 17-0037/AF. U.S. v. Cory D. Phillips. CCA S38771. 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 HER DISCRETION BY GRANTING THE GOVERNMENT MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER MIL. R. EVID. 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO REMAND APPELLANT’S CASE FOR NEW POST-TRIAL PROCESSING AFTER THE STAFF JUDGE ADVOCATE’S RECOMMENDATION (SJAR) FAILED TO CORRECT AN ERROR IN APPELLANT’S CLEMENCY SUBMISSION. See UNITED STATES v. ADDISON, NO. 16-0615/AF (C.A.A.F. 26 July 2016) (rem.).

III. WHETHER APPELLANT’S CONVICTION ON SPECIFICATION 1 OF THE CHARGE IS LEGALLY INSUFFICIENT WHERE THE GOVERNMENT FAILED TO PROVE THAT APPELLANT AND SrA LS ENGAGED IN A SEXUAL ACT.

Briefs will be filed under Rule 25.

At the end of last month CAAF received a certification from the Army JAG and the court granted review in a Coast Guard case.

The certification involves a Government appeal of military judge’s ruling that suppressed the fruits of a search of the accused’s mobile phone:

No. 17-0153/AR. United States, Appellant v. Edward J. Mitchell, II, Appellee. CCA 20150776. Notice is hereby given that a certificate for 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, and a supporting brief under Rule 22, together with a motion to stay trial proceedings were filed on this date on the following issues:

I. WHETHER THE FIFTH AMENDMENT’S SELF-INCRIMINATION CLAUSE IS VIOLATED WHEN A SUSPECT VOLUNTARILY UNLOCKS HIS PHONE WITHOUT GIVING HIS PERSONAL IDENTIFICATION NUMBER TO INVESTIGATORS.

II. WHETHER THE EDWARDS RULE IS VIOLATED WHEN INVESTIGATORS ASK A SUSPECT, WHO HAS REQUESTED COUNSEL AND RETURNED TO HIS PLACE OF DUTY, TO UNLOCK HIS PHONE INCIDENT TO A VALID SEARCH AUTHORIZATION.

III. WHETHER, ASSUMING INVESTIGATORS VIOLATED APPELLANT’S FIFTH AMENDMENT PRIVILEGE OR THE EDWARDS RULE, THE MILITARY JUDGE ERRED BY SUPPRESSING THE EVIDENCE.

The Army CCA affirmed the military judge’s ruling in a short opinion available here.

The grant involves a specification under Article 120b that was changed during the trial to allege a different specific sexual act, and a specification under Article 134 that lacked words of criminality such as wrongfully:

No. 17-0028/CG. U.S. v. Shane E. Reese. CCA 1422. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION AFTER THE COMPLAINING WITNESS’S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED.

II. WHETHER THE SPECIFICATION OF THE ADDITIONAL CHARGE FAILS TO STATE AN OFFENSE WHERE THE TERMINAL ELEMENT FAILED TO ALLEGE WORDS OF CRIMINALITY AND WHERE THE ALLEGED CONDUCT FELL WITHIN A LISTED OFFENSE OF ARTICLE 134, UCMJ.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here. The CCA rejected both issues concluding that the amended specification alleged an act that was essentially included in the original act alleged, and also that words of criminality are not necessarily required (in accordance with United States v. Tevelein, 75 M.J. 708 (C.G. Ct. Crim. App. 2016) (discussed here)). However, one judge dissented and would have dismissed the Article 134 specification due to the omission of words of criminality.

Last week CAAF granted review in an Air Force case presenting an interesting computer search issue:

No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. 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 PANEL OF AFCCA THAT HEARD APPELLANT’S CASE WAS IMPROPERLY CONSTITUTED.

II. WHETHER THE 9 NOVEMBER 2011 SEARCH AUTHORIZATION WAS OVERBROAD IN FAILING TO LIMIT THE DATES OF THE COMMUNICATIONS BEING SEARCHED, AND IF SO, WHETHER THE ERROR WAS HARMLESS.

Briefs will be filed under Rule 25 on Issue II only.

The AFCCA’s decision is available here and reveals that:

The affidavit requesting search authorization for Appellant’s residence stated AFOSI was investigating “Florida Statute Section 847.0135 Computer Pornography; Traveling to meet a minor.” . . .

The military magistrate granted AFOSI’s request for authorization to conduct a search of Appellant’s residence to obtain “[a]ll electronic media and power cords for devices capable of transmitting or storing online communications.” AFOSI’s search of the residence resulted in the seizure of standalone computer hard drives, phones, thumb drives, floppy diskettes, and camera memory cards. . . .

At trial and on appeal, Appellant asserts that the search authorization was unconstitutional because it was overbroad in defining what could be seized. Appellant contends the Government only had information that Appellant had engaged in “online communications” with AP. Instead of using vague terms such as “electronic media,” he asserts the search authorization should have more particularly described types of electronics that could be used for such communications, such as laptop computers, smart phones, or gaming systems. Appellant also asserts that the manner in which AFOSI conducted the search and seizure reinforced the overbroad nature of the search authorization, as AFOSI indiscriminately seized multiple types of electronics that could not reasonably be expected to store such online communications. . . .

United States v. Richards, No. 38346, slip op. at 21-22 (A.F. Ct. Crim. App. May 2, 2016).

The AFCCA decided that the authorization was not overbroad, concluding:

While computer technology involves greater dangers of invasion of privacy and overreaching, computer searches are fundamentally no different than other searches involving commingled documents. When commingled records are searched, “it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.” Andersen v. Maryland, 427 U.S. 463, 482 n.111 (1976). In these types of searches, “responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.” Id. Investigators must be allowed a “brief perusal of documents in plain view in order to determine whether probable cause exists for their seizure under the warrant.” United States v. Heldt, 668 F.2d 1238, 1267 (D.C. Cir. 1981). Because computers and other electronic devices with internal digital storage have the capacity to store tremendous amounts of intermingled data, there may not be a practical substitute for briefly examining many, if not all, of the contents. United States v. Burgess, 576 F.3d 1078, 1094 (10th Cir. 2009); United States v. Richards, 659 F.3d 527, 539–40 (6th Cir. 2011).“The general touchstone of reasonableness which governs Fourth Amendment analysis . . . governs the method of execution of the warrant.” United States v. Ramirez, 523 U.S. 65, 71 (1998).

Based on these legal principles, we find no constitutional overbreadth concern with either the terms of the search authorization or the manner in which the search was carried out.

Slip op. at 24-25.

In United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), CAAF found that a challenge to the participation of a judge of the United States Court of Military Commission Review (USCMCR) on the panel of the Air Force Court of Criminal Appeals was moot because the judge had not yet been appointed as a USCMCR judge when the CCA decided the case.

CAAF granted review in Dalmazzi in August, and dozens of trailer cases followed. Mootness in Dalmazzi doesn’t resolve (all of) those trailer cases, and so on Friday CAAF ordered briefing in one of them:

No. 16-0671/AF. U.S. v. Keanu D.W. Ortiz. CCA 38839. On further consideration of the granted issues in the above-entitled case (Daily Journal, October 27, 2016), it is ordered that Issue II is hereby amended as follows:

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 PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

The petition for grant of review is also granted on the following specified issue:

III.  WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. § 949b(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPELLATE MILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OR HIS DESIGNEE.

The parties will file contemporaneous briefs and a joint appendix on the granted issues as amended and the specified issue on or before January 24, 2017. Reply briefs will not be filed. Amicus curiae briefs under Rule 26(a)(1) will be filed on or before January 24, 2017, and motions for leave to file amicus curiae briefs under Rule 26(a)(3) will be filed on or before January 17, 2017. Should said motions be granted, amicus curiae briefs under Rule 26(a)(3) will also be filed on or before January 24, 2017.

(emphasis in original).

Ortiz is also something of a Hills (CAAFlog case page) trailer. CAAF granted review in Ortiz on November 29, 2016, and Issue I is:

WHETHER THE MILITARY JUDGE WRONGLY APPLIED MILITARY RULE OF EVIDENCE 414 TO CHARGED MISCONDUCT, THEREBY LOWERING THE GOVERNMENT’S BURDEN OF PROOF AND VIOLATING APPELLANT’S CONSTITUTIONAL RIGHTS.

[correction – the Nov. 29 grant involves a different appellant named Ortiz]

By my count, including trailers granted yesterday, CAAF has granted review of the CMCR judge issue in 71 69 cases (including Dalmazzi). Of those, 61 are from the Army, 8 are from the Air Force, and 2 are from the Navy (Navy cases wrongly counted; see comments).

Dalmazzi was an Air Force case, but considering that the overwhelming majority of granted cases involving this issue are from the Army, I think it’s strange that CAAF would decide to hear argument in another Air Force case instead of an Army case.

Disclosure: In my personal capacity I represent an Army appellant whose case is before CAAF with CMCR judge issues.

CAAF granted review in two cases on the 12th.

Read more »

On Monday CAAF granted review of two issues involving instructions in an Army case:

No. 17-0035/AR. U.S. v. Jeffry A. Feliciano, Jr. CCA 20140766. 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 THE MILITARY JUDGE ERRED WHEN HE FAILED TO INSTRUCT THE PANEL ON THE DEFENSE OF VOLUNTARY ABANDONMENT, AND IF SO, WHETHER THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE PANEL THAT APPELLANT’S MISTAKE OF FACT AS TO CONSENT MUST BE BOTH HONEST AND REASONABLE, AND IF SO, WHETHER THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

I discussed the Army CCA’s decision in this case in this post, but not because of the issues now before CAAF. Rather, I thought the case interesting because the CCA suggested that an accused should be prohibited from mentioning sex offender registration during an unsworn statement in sentencing.

The appellant was convicted of two specifications of attempted sexual assault, both arising out of the same alcohol-fueled incident during which the appellant took steps to engage in sexual activity with a seemingly incapacitated soldier, but then stopped after another soldier cautioned him that “what he was doing was rape” and “that if he continued along they would definitely get him for rape. . . .” United States v. Feliciano, No. 20140766, slip op. at 2 (A. Ct. Crim. App. Aug. 22, 2016) (link to slip op.).

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit other charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

In United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), the Army CCA concluded that CAAF’s decision in Hills does not apply in judge-alone trials.

Last week CAAF granted review of the Army CCA’s decision in Hukill:

No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. 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, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

Briefs will be filed under Rule 25 on Issue I only.

Before the holiday CAAF granted review of an Army case involving interpretation of Mil. R. Evid. 304(a)(2):

No. 17-0032/AR. U.S. v. Sean M. Ahern. CCA 20130822. 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 LOWER COURT ERRED WHEN IT HELD THAT THE PROHIBITION AGAINST USING AN ADMISSION BY SILENCE PROVIDED BY MIL. R. EVID. 304(a)(2) IS TRIGGERED ONLY “WHEN THE ACCUSED IS AWARE OF” AN INVESTIGATION CONTRARY TO THE PLAIN LANGUAGE OF THE RULE.

Briefs will be filed under Rule 25.

The Rule states:

Failure to deny an accusation of wrongdoing is not an admission of the truth of the accusation if at the time of the alleged failure the person was under investigation or was in confinement, arrest, or custody for the alleged wrongdoing.

I discussed the Army CCA’s decision in Ahern in this post, and noted that the CCA made a first-impression interpretation of the Rule to conclude that:

Mil. R. Evid. 304(a)(2) is triggered by an investigation when the accused is aware of the investigation. Whether an accused is aware of an investigation should be determined using the same objective test as is used in the Article 31(b) context. Jones, 73 M.J. at 362 [(CAAFlog case page)].

Slip op. at 11.

On Wednesday CAAF granted review of two trailer issues in a Navy case and ordered no briefs:

No. 16-0669/NA. U.S. v. Mark A. Berger. CCA 201500024. 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:

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER MRE 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. SEE UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, “IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

No briefs will be filed under Rule 25.

This grant is notable in part because the NMCCA’s opinion (available here) concludes only that “the military judge did not abuse his discretion in admitting evidence of uncharged sexual offense pursuant to MIL. R. EVID. 413.” Slip op. at 14 (emphasis added).

In United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit other charged offenses. Hills has been applied somewhat inconsistently by the Army, Air Force, and Navy-Marine Corps CCAs (discussed here).

CAAF granted review in eight cases last Thursday. Two are a McClour trailer, and five are Dalmazzi trailers. There are now 8 McClour trailers and 21 Dalmazzi trailers at CAAF.

Significantly, in three of the Dalmazzi trailers CAAF specified the issues for review. By my notes these are the first Dalmazzi trailers with specified issues (CAAF also specified the issues in the two McClour trailers, but it has done so before).

One of the Dalmazzi trailers also involves a different issue:

No. 16-0658/AR. U.S. v. Tyler F. Ho. CCA 20140068. 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 APPELLANT WAS PUNISHED FOR 28 DAYS BY BEING FORCED TO QUARTER A JUNIOR OFFICER IN HIS HOME AND NOT AWARDED CREDIT.

II. WHETHER ACCEPTANCE OF APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES CELTNIEKS, BURTON AND HERRING.

III. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND HERRING DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

IV. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

Briefs will be filed under Rule 25 on Issue I only.

The Army CCA’s opinion is available here but does not address the punishment issue.

The eighth grant isn’t a trailer case:

No. 16-0599/AR. U.S. v. Jared D. Herrmann. CCA 20131064. 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 EVIDENCE IS LEGALLY SUFFICIENT TO FIND APPELLANT COMMITTED RECKLESS ENDANGERMENT, WHICH REQUIRES PROOF THE CONDUCT WAS LIKELY TO PRODUCE DEATH OR GRIEVOUS BODILY HARM.

Briefs will be filed under Rule 25.

The Army CCA affirmed in a published opinion available here (75 M.J. 672). The appellant was convicted of reckless endangerment for the pencil packing of fourteen reserve parachutes, which is:

a procedure in which those responsible fail to pack or inspect a parachute properly yet nevertheless fraudulently sign off on the parachute as being properly packed and inspected.

75 M.J. at __, slip op. at 2.

On Wednesday CAAF granted review in an Army case that questions whether it was error for the military judge to prohibit the defense from introducing evidence that the alleged victim previously made a false accusation of sexual assault:

No. 16-0705/AR. U.S. v. Sean R. Erikson. CCA 20150130. 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 THE MILITARY JUDGE ERRED IN EXCLUDING EVIDENCE THAT THE VICTIM PREVIOUSLY MADE A FALSE ACCUSATION OF SEXUAL CONTACT AGAINST ANOTHER SOLDIER.

II. CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE NOT STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

III. EVEN IF CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, THEIR SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.

Briefs will be filed under Rule 25 on issue I only.

(emphasis added). No opinion is available on the Army CCA’s website (indicating that the court summarily affirmed the findings and sentence).

Erikson is also a Dalmazzi (CAAFlog case page) trailer – one of two granted on Wednesday that brings the total to 16 trailer cases.

CAAF also granted review of another McClour (CAAFlog case page) trailer on Wednesday, bringing the total to 6 trailer cases.

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 has already granted review of eight trailer cases.

Yesterday it granted review of six more, ordering no briefs to be filed.

Dalmazzi now has 14 trailers, 12 of which are from the Army.