CAAFlog » CAAF Grants

Three new – and particularly noteworthy – grants appear on CAAF’s docket.

First, an Army case challenges the use of charged offenses as admissible propensity evidence under Military Rule of Evidence 413. This issue was our #6 Military Justice Story of 2015:

No. 15-0767/AR. U.S. v. Kendell Hills. CCA 20130833. 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 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.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Hills is available here.

Next, in another Army case, CAAF specified an issue questioning the proper test for prejudice when evidence is admitted in violation of the statutory protections of Article 31(b):

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647. 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 specified by the Court:

WHERE THE ARMY COURT OF CRIMINAL APPEALS FOUND EVIDENCE WAS ADMITTED IN VIOLATION OF APPELLANT’S ARTICLE 31(b), UCMJ, RIGHTS, DID THE COURT ERR IN APPLYING THE KERR PREJUDICE TEST AS OPPOSED TO THE BRISBANE HARMLESS BEYOND A REASONABLE DOUBT TEST?

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Evans is available here.

Finally, CAAF ordered oral argument on a specified issue in an Air Force case that was certified to CAAF back in October (discussed here). The certified issue challenges the Air Force CCA’s conclusion that the military judge improperly admitted evidence under Mil. R. Evid. 413. The CCA issued its opinion on June 19, 2015, but the JAG did not certify the case until October 7; seemingly past the 60-day time period set for filing a certification in CAAF’s Rule 22(b)(3). However, the Government repeatedly sought reconsideration by the CCA during that time, ostensibly continuing the CCA’s jurisdiction over the case and extending the beginning of the 60-day time period. CAAF will now review that procedural tactic:

No. 16-0053/AF.U.S. v. Shelby L. Williams.CCA 38454.  On consideration of Appellee’s motion to dismiss the case because the certificate of review was not timely filed, and the government’s opposition thereto, it is ordered that the parties shall present oral argument on the following issue:

WHETHER THE UNITED STATES MAY FILE SUCCESSIVE MOTIONS FOR RECONSIDERATION OF A DECISION OF THE COURT OF CRIMINAL APPEALS, AND THEREBY EFFECTIVELY EXTEND THE 60-DAY FILING DEADLINE FOR A CERTIFICATE OF REVIEW OF SUCH DECISION. SEE CAAF RULES OF PRACTICE AND PROCEDURE 19(b)(3); 22(b)(3); AND 34(a).

The date and time of oral argument will be provided to counsel in a separate order.

CAAF’s narrow reading of the jurisdiction of the CCAs was our #5 Military Justice Story of 2015.

Yesterday CAAF granted review of an implied bias issue affecting a member in a Coast Guard case:

No. 16-0006/CG. U.S. v. Matthew A. Rogers. CCA 1391. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, said petition is granted on the following issue specified by the Court:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE IMPLIED BIAS CHALLENGE AGAINST CDR K IN LIGHT OF HER VARIOUS PROFESSIONAL AND PERSONAL EXPERIENCE WITH SEXUAL ASSAULT.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s opinion is available here and reveals that:

During voir dire examination, CDR K said she had been assigned to draft a sexual assault response and prevention operational plan as part of her duties on the Coast Guard Atlantic Area staff. The draft plan emphasized preventive measures. At the time of trial, her draft was complete and awaiting the Area Commander’s signature. While performing that duty, she had monitored news stories on sexual assault and read background materials on the subject. She did not deal with response to sexual assault complaints. When asked about the rate of false claims of sexual assault,  she said she had read, probably in multiple sources, that the rate of false claims is about two percent, “and that’s no different than any other crime statistic for false accusations.” When asked if she could disregard those statistics and look at the facts of this case, she responded affirmatively, and added, “I know statistics can be maneuvered by whoever produces those statistics.” She also testified that a co-worker had been falsely accused of sexual misconduct and that she was mindful of the devastating consequences that ensue from false reports.

United States v. Rogers, No. 1391, slip op. at 3-4 (C.G. Ct. Crim. App. Jul. 8, 2015) (citations to record omitted).

In United States v. Gay, __ M.J. __, No. 38525 (A.F. Ct. Crim. App. Jun. 12, 2015) (discussed here), the AFCCA held that the appellant’s confinement in solitary confinement (where he was alone 23 hours per day, and suffered other administrative hardships) in a civilian facility, imposed after he complained of an Article 12 violation, was not cruel and unusual punishment but was deserving of (very limited) relief under the CCA’s Article 66(c) sentence-appropriateness power.

The Judge Advocate General of the Air Force then certified the case to CAAF, challenging the CCA’s authority to grant such relief in the absence of a finding of a violation of the Eighth Amendment or Article 55 (certification discussed here).

CAAF has now specified an additional issue for review, questioning whether the CCA should have remanded for a post-trial fact-finding hearing:

No. 15-0742/AF. U.S. v. Kevin Gay. CCA 38525. 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 specified by the Court:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO REMAND APPELLANT’S CASE FOR A HEARING PURSUANT TO UNITED STATES v. DUBAY, 17 C.M.A. 147, 37 C.M.R. 411 (1967), TO DETERMINE THE FACTS SURROUNDING APPELLANT’S POST-TRIAL SOLITARY CONFINEMENT. SEE UNITED STATES v. GINN, 47 M.J. 236 (1997).

Briefs will be filed under Rule 25.

In this post I discussed the Army CCA’s decision on a Government interlocutory appeal in United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), in which a three-judge panel of that court reversed a military judge’s ruling that suppressed DNA evidence in a sexual assault case. Specifically:

The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.

Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.

The CCA concluded that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous.

CAAF has stayed the trial proceedings and will review the CCA’s decision:

No. 16-0026/AR. U.S. v. Antiwan M. Henning. CCA 20150410. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, on appeal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), Appellant’s motion to stay the trial proceedings, and Appellee’s motion for leave to exceed the word limit, it is ordered that Appellant’s motion to stay the trial proceedings is hereby granted, pending further order of the Court, that Appellee’s motion to exceed the word limit is hereby granted, and that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT APPLIED THE WRONG STANDARD OF REVIEW TO THIS ARTICLE 62, UCMJ, APPEAL WHEN IT FOUND THE MILITARY JUDGE MADE ERRONEOUS FINDINGS OF FACT AND ERRONEOUS CONCLUSIONS OF LAW.

In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedure, no further pleadings will be filed.

CAAF’s daily journal has this entry from yesterday:

No. 16-0091/AR. U.S. v. Djoulou K. Caldwell. CCA 20140425.  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 personally asserted by Appellant:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE INSTRUCTED THE PANEL USING A NEGLIGENCE STANDARD FOR MALTREATMENT OF A SUBORDINATE IN VIOLATION OF ARTICLE 93.

Briefs will be filed under Rule 25.

(emphasis added). The right of an appellant to personally assert an error was solidified in United States v. Grostefon, 12 M.J. 431, 436-437 (C.M.A. 1982), in which the court held that a detailed appellate defense counsel must inform the military appellate courts of any issues raised by an appellant, even if the counsel believes they are frivolous:

Henceforth, we will require that when the accused specifies error in his request for appellate representation or in some other form, the appellate defense counsel will, at a minimum, invite the attention of the Court of Military Review to those issues and, in its decision, the Court of Military Review will, at a minimum, acknowledge that it has considered those issues enumerated by the accused and its disposition of them. If the Court of Military Review decides that the issues have no merit, appellate defense counsel will so notify the accused and make his recommendations as to whether the accused should petition for further review to this Court and of his recommendations as to submission of the same issues. Unless the accused consents to withdrawal or abandonment of the issues before this Court, appellate defense counsel will, in the petition for review, identify the issues. If the accused wishes to withdraw the issues, or change or modify them, appellate defense counsel will so state in the petition. Of course, this in no way prevents or discourages appellate defense counsel from submitting briefs and arguments on those issues which, in his professional judgment, have arguable merit. However, in no case will the issues submitted by the accused be ignored without evidence of the accused’s concurrence in that decision.

I’m not sure when CAAF last considered an issue raised personally by an appellant at CAAF, however the court has recently considered issues raised personally by an appellant at a CCA, such as in  United States v. Rose, 71 M.J. 138 (C.A.A.F. May 24, 2012) (CAAFlog case page), and United States v. King, 71 M.J. 50 (C.A.A.F. Mar. 13, 2012) (CAAFlog case page).

Notably, in Caldwell, there doesn’t appear to be a decision on the Army CCA’s website (that implies that it was summarily affirmed).

The Navy JAG certified a case to CAAF last week:

No. 16-0122/MC. U.S. v. Beau T. Martin. CCA 201400315. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

DID TRIAL DEFENSE COUNSEL INVITE ERROR WHEN HE OPENED THE DOOR TO HUMAN LIE DETECTOR TESTIMONY DURING THE CROSS-EXAMINATION OF THE VICTIM’S HUSBAND?

The NMCCA’s decision is available here. The certification is strange because the CCA didn’t just affirm the findings and sentence (after finding that the admission of human lie detector testimony was harmless), but it also noted that:

We are aware that the inadmissible opinion testimony originated with the defense during cross-examination. We are also aware of the “invited response” or “invited reply” doctrine, which permits the prosecution to offer comment or testimony as a fair response to claims made by the defense. See United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). See also United States v. Lewis, 69 M.J. 379, 384 (C.A.A.F. 2011) (“limitation on comments cannot be used by the defense as both a shield and a sword.”) (citations omitted). However, this doctrine does not obviate the error.

United States v. Martin, No. 201400315, slip op. at 8, n.10 (N-M. Ct. Crim. App. Jun. 18, 2015) (emphasis added). The certified issue seems to merely force CAAF to reach the tautological conclusion that an invited error is still an error. Though, perhaps CAAF will go further and limit the use of this doctrine. After all:

Courts have not intended by any means to encourage the practice of zealous counsel’s going “out of bounds” in the manner of defense counsel here, or to encourage prosecutors to respond to the “invitation.” Reviewing courts ought not to be put in the position of weighing which of two inappropriate arguments was the lesser. “Invited responses” can be effectively discouraged by prompt action from the bench in the form of corrective instructions to the jury and, when necessary, an admonition to the errant advocate.

United States v. Young, 470 U.S. 1, 13 (1985).

Update: I forgot that CAAF previously granted review in this case (discussed here) of the CCA’s finding of harmlessness. However, I still think the certification is strange.

CAAF also granted review in an Air Force case:

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538. 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 specified by the Court:

WHETHER EVIDENCE OBTAINED FROM A POLICE SEARCH OF APPELLANT’S VEHICLE ON OR ABOUT AUGUST 4, 2010, WAS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND SHOULD HAVE BEEN SUPPRESSED.

Briefs will be filed under Rule 25.

The AFCCA’s decision is available here and reveals that the search of the appellant’s vehicle occurred after a police dog gave indications of contraband drugs within (marijuana and glass pipes were found).

Finally, CAAF summarily reversed convictions of aggravated assault and reckless endangerment – but affirmed a conviction of the lesser included offense of assault consummated by a battery – in a trailer case to United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page):

No. 15-0747/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015), we conclude that the evidence was legally insufficient to find beyond a reasonable doubt that Appellant committed the offenses of aggravated assault and reckless endangerment. We further conclude that the evidence was sufficient to affirm assault consummated by a battery as a lesser included offense of aggravated assault. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE IN LIGHT OF UNITED STATES v. GUTIERREZ, 74 M.J. 61 (C.A.A.F. 2015).

The decision of the United States Army Court of Criminal Appeals as to Charges I and IV and their specifications and the sentence is reversed. The findings of guilty as to Charge IV and its specification are set aside and dismissed. The findings of guilty as to Charge I and its specification are affirmed only as to the lesser included offense of assault consummated by a battery. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to either reassess the sentence based on the affirmed findings or order a sentence rehearing.

Today CAAF specified two issues for review in the Marine Corps case of United States v. Sterling, No. 15-0510/MC (previously discussed here and here):

I. Did appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?

II. Did appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Two new Air Force certified cases were docketed at CAAF on Wednesday. In the first case, the AFCCA found (link to slip op.) that the military judge improperly admitted evidence of a prior alleged sexual offense under Mil. R. Evid. 413:

No. 16-0053/AF. U.S. v. Shelby L. Williams. CCA 38454.  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 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE TRIAL DEFENSE COUNSEL SUFFICIENTLY OBJECTED TO THE ADMISSION OF THE EVIDENCE RELATING TO A PREGNANCY AND MISCARRIAGE.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ADMITTED TESTIMONY PURSUANT TO MIL. R. EVID. 413, AND ERRED IN FINDING PREJUDICE.

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED A LEGAL ERROR BY DENYING THE UNITED STATES’ MOTION TO SUBMIT A DECLARATION FROM AN EXPERT WHO ADDRESSED THE MEDICAL CONCLUSIONS RAISED FOR THE FIRST TIME IN THE MAJORITY OPINION.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before November 6, 2015.

In the second case, the AFCCA (link to slip op.) applied CAAF’s recent decision in United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page), to reverse the HIV-positive appellant’s pleas of guilty to aggravated assault with a means likely to produce death or grievous bodily harm, finding insufficient evidence of a risk of transmission of HIV from the appellant to his sexual partners. However, the CCA affirmed other pleas of guilty, and reassessed the sentence, resulting in the dismissal of the assault charge and prompting the certification:

No. 16-0054/AF. U.S. v. Gavin B. Atchak. CCA 38526.  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 on this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN SETTING ASIDE AND DISMISSING THE SPECIFICATIONS OF AGGRAVATED ASSAULT WITHOUT AUTHORIZING THE CONVENING AUTHORITY TO ORDER A REHEARING FOR THE LESSER INCLUDED OFFENSES OF ASSAULT CONSUMMATED BY A BATTERY.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before November 6, 2015.

Additionally, CAAF granted review in a Marine Corps case involving human lie detector testimony, the admission of which the CCA found was obvious but harmless error:

No. 15-0754/MC. U.S. v. Beau T. Martin. CCA 201400315.  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 specified by the Court:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE HUMAN LIE DETECTOR TESTIMONY OFFERED BY THE ALLEGED VICTIM’S HUSBAND WAS NOT MATERIALLY PREJUDICIAL.

Briefs will be filed under Rule 25.

The NMCCA’s decision is available here.

On Monday CAAF granted review – but ordered no additional briefing – in the following case:

No. 15-0664/AF. U.S. v. Sean J. Chero. CCA 38470. 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 MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE CONCLUDED APPELLANT’S MAXIMUM PUNISHMENT WAS 30 YEARS CONFINEMENT, TOTAL FORFEITURES AND A DISHONORABLE DISCHARGE.

No briefs will be filed under Rule 25.

The offense at issue is sexual assault in violation of Article 120(b)(2) (2012). The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, and was sentenced to confinement for three years, total forfeitures, reduction to E-1, a reprimand, and a dishonorable discharge. The Air Force CCA affirmed the conviction in an unpublished decision available here.

The maximum authorized punishments under Article 120 are an issue because after Congress amended Article 120 effective June 28, 2012, President Obama failed to prescribe maximum punishments (pursuant to Article 56) for the new offenses until May 15, 2013 (notably, to this day, he has still failed to prescribe model specifications). That failure prompted one military judge to rule that the maximum authorized punishment for a violation of Article 120(b) was the jurisdictional limit of a summary court-martial (rank-dependent but a maximum of confinement for 1 month, forfeiture of 2/3 pay per month for 1 month, and reduction to E-1). The Government appealed that decision and the NMCCA reversed in United States v. Commander Booker, Military Judge, 72 M.J. 787 (N-M. Ct. Crim. App. 2013) (discussed here), holding that by applying the sentence-determination provisions of R.C.M. 1003(c)(1)(B), the authorized punishment included a dishonorable discharge and confinement for at least 30 years. CAAF then denied review without prejudice to the right to raise the issue during normal appellate review (and then the accused pleaded guilty and apparently did not raise the issue again).

In Chero, the Air Force CCA adopted the NMCCA’s analysis from Booker:

Our colleagues in a sister-service court analyzed this same issue of the maximum imposable sentence for an offense that occurred after the enactment of the current Article 120, UCMJ, but before the publication of the President’s Executive Order establishing the maximum sentence for a sexual assault against an individual who was asleep, unconscious, or otherwise unaware. United States v. Booker, 72 M.J. 787 (N.M. Ct. Crim. App. 2013), appeal denied sub nom United States v. Schaleger, 73 M.J. 92 (C.A.A.F. 2013) (summary disposition). That court concluded that the maximum authorized punishment included 30 years confinement and a dishonorable discharge. Id. at 807. We find their reasoning highly persuasive and concur with both our Navy-Marine Corps Court colleagues and the trial judge.

United States v. Chero, No. 38470, slip op. at 7 (A.F. Ct. Crim. App. Apr. 28, 2015).

Last week CAAF granted review of the following issue in an Army case:

No. 15-0476/AR. U.S. v. Eric L. Rapert. CCA 20130309.  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 FINDING OF GUILTY FOR CHARGE I AND ITS SPECIFICATION FOR COMMUNICATING A THREAT IS LEGALLY INSUFFICIENT BECAUSE THE COMMENTS ARE CONSTITUTIONALLY PROTECTED AND DO NOT CONSTITUTE A THREAT UNDER THE TOTALITY OF THE CIRCUMSTANCES AND IN LIGHT OF THE SUPREME COURT’S DECISION IN ELONIS v. UNITED STATES, 575 U.S. __, 135 S. Ct. 2001 (2015).

Briefs will be filed under Rule 25.

In Elonis (link to slip op.), the Supreme Court reversed a civilian defendant’s conviction of four counts of violating 18 U.S.C. § 875(c), which criminalizes using “any communication containing any threat . . . to injure the person of another.” At trial, Elonis asked for a jury instruction that would have required the Government to prove that he intended to communicate a true threat. The judge refused to give that instruction, and instead instructed the jury that the Government need only prove that a reasonable person would have foreseen that the statements would be interpreted as a threat. On appeal, the Third Circuit affirmed. Writing for the Court and reversing the Third Circuit, Chief Justice Roberts concluded that:

The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.

Slip op. at 16.

I can’t find an opinion in Rapert on the Army CCA’s website, so I assume that the court summarily affirmed the conviction. But communicating a threat is an Article 134 offense, meaning that the basis for criminal liability is not that a threat was communicated, but rather that the circumstances were prejudicial to good order and discipline or service discrediting. See MCM, Part IV, ¶ 110. For Rapert, a footnote in a recent CAAF opinion looms large:

From start to finish, the contested issue in the case was whether Appellant’s conduct met the terminal element of Article 134, UCMJ. Appellant argued that his conduct was insufficient to meet the terminal element, in part, because, in his view, his conduct would be constitutionally protected in a non-military setting. The trier of fact disagreed, and the ACCA concluded that the evidence was legally sufficient. What amounts to an argument that the Government has not put forth legally sufficient evidence to support an Article 134, UCMJ, conviction is fundamentally different from a constitutional argument that, in the military context, Appellant’s conduct is protected.

United States v. Goings, 72 M.J. 202, 205 n.3 (C.A.A.F. 2013) (CAAFlog case page).

Last week CAAF granted review in the following case:

No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193.  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 APPELLANT’S CONVICTION FOR PROVOKING SPEECH IS LEGALLY INSUFFICIENT BECAUSE “UNDER THE CIRCUMSTANCES” HIS WORDS WERE NOT REASONABLY LIKELY TO PROVOKE VIOLENCE.

II. WHETHER THE MILITARY JUDGE’S INSTRUCTIONS REGARDING PROVOKING SPEECH WERE DEFICIENT UNDER THE FACTS AND CIRCUMSTANCES OF APPELLANT’S CASE.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here and reveals that the appellant’s conviction for using provoking speech in violation of Article 134 was based on the following events:

After a night of excessive drinking, the appellant became belligerent and disorderly, accosting strangers with profane outbursts and resisting his friend’s efforts to convince him to return home. Instead, the appellant jumped a fence and entered the apartment of a noncommissioned officer (NCO) he did not know, frightening the residents and neighbors who called security forces. The appellant was apprehended and evaluated on scene by emergency medical technicians who decided to transport him to the base emergency room.

Once there, while undergoing treatment for his altered mental state and injuries to his wrist and knee, the appellant lashed out at the medical providers both physically and verbally. Struggling against restraint by two security forces members and the medical staff, he verbally accosted several medical providers, calling one female nurse a “c[**]t” and medical technicians “Asian douchebags” and “ch[*]nk.” This continued intermittently for over an hour, ending only after the medical staff determined it was necessary to sedate him.

United States v. Killion, No 32193, slip op. at 2 (A.F. Ct. Crim. App. Jan. 28, 2015) (marks in original). The CCA rejected both of the issues granted by CAAF, and also rejected an as-applied constitutional challenge (raised on appeal for the first time) based on the appellant’s assertion that his speech was not fighting words. The asserted instructional error addresses a tailored instruction offered by the defense that would have had the members review the appellant’s speech subjectively: considering “the occupation, education, and training of the listener” to determine whether the listener would be provoked by the speech. Id., slip op. at 4.

CAAF granted review in two cases yesterday. The first was previously certified to CAAF by the Judge Advocate General of the Coast Guard:

No. 15-0384/CG. U.S. v. Christopher S. Cooley. CCA 1389.  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 issue:

WHETHER THE GOVERNMENT VIOLATED APPELLANT’S RIGHTS UNDER ARTICLE 10, UCMJ, WHEN THE GOVERNMENT POSSESSED KEY EVIDENCE AGAINST APPELLANT ON JULY 20, 2012, AND FEBRUARY 5, 2013, YET MADE NO MOVE TO PROSECUTE APPELLANT FOR THESE OFFENSES UNTIL JUNE OF 2013, DESPITE HIS PRETRIAL CONFINEMENT FROM DECEMBER 20, 2012.

Briefs will be filed under Rule 25.

I analyzed the CCA’s opinion in this January post titled The Coast Guard CCA raises Article 10 from the dead. I noted the JAG’s certification in this post. And in this post I noted Cooley in the context of CAAF’s grant of review in the Marine Corps case of United States v. Wilder, No. 15-0087/MC. In Wilder, CAAF will consider whether the substantial information rule persists after the promulgation of R.C.M. 707.

Between Cooley and Wilder, Article 10 might be dragged back from the afterlife next term…

The second grant involves application of the maximum sentence determination provisions of R.C.M. 1003(c)(1)(B):

No. 15-0477/AF. U.S. v. Nicholas E. Busch. CCA 38530. 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:

AT THE TIME OF APPELLANT’S ALLEGED SEXUAL ABUSE OF A CHILD OFFENSE, THE PRESIDENT HAD NOT SET THE MAXIMUM PUNISHMENT FOR THE OFFENSE. THE MILITARY JUDGE USED A LATER-ENACTED EXECUTIVE ORDER TO SET THE MAXIMUM PUNISHMENT, EVEN THOUGH IT INCREASED THE CONFINEMENT RANGE FROM ONE YEAR TO FIFTEEN YEARS. WAS THE EX POST FACTO CLAUSE VIOLATED?

Briefs will be filed under Rule 25.

I discussed the AFCCA’s decision in this March post titled The Air Force CCA grapples with R.C.M. 1003(c)(1)(B).

Article 46(a) provides that:

(a) Opportunity to Obtain Witnesses and Other Evidence. The trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.

Emphasis added. The production of evidence requested by the members of a court-martial is at issue in a new CAAF grant:

No. 15-0372/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. 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 specified by the Court:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ALLOWED THE ADMISSION OF ADDITIONAL EVIDENCE DURING DELIBERATIONS BUT ALSO DENIED APPELLANT THE OPPORTUNITY TO ATTACK THE ACCURACY OF THAT EVIDENCE BEFORE THE FACTFINDER.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The opinion notes:

Lastly, we consider the appellant’s argument that the military judge erred when he admitted muster reports the members requested during their deliberations over defense objection. He first contends that the muster reports do not satisfy the requirements of a record of regularly conducted activity under MILITARY RULES OF EVIDENCE 803(6), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). He next argues that the muster reports are testimonial and that admitting those records during deliberations without the ability to confront the records custodian or present further argument in front of the members violates his constitutional right of confrontation. We disagree with both contentions.

Slip op. at 10-11.

CAAF granted review in two cases on Thursday, May 14, 2015. The first involves an issue of disparate punishment:

No. 15-0390/AR. U.S. v. Kye C. Womack. CCA 20140345.  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 specified by the Court:

WHETHER APPELLANT’S PUNISHMENT WAS “HIGHLY DISPARATE” WHEN COMPARED TO THE CO-ACCUSED.

Briefs will be filed under Rule 25.

I can’t find an opinion on the Army CCA’s website.

The second involves a specified issue that question’s the court’s jurisdiction to consider the case:

No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679.  On consideration of Appellee’s motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that the parties submit briefs on the following issue:

WHETHER APPELLANT’S PETITION FOR GRANT OF REVIEW SHOULD BE DISMISSED FOR LACK OF JURISDICTION WHEN THE COURT OF CRIMINAL APPEALS ENTERTAINED AN UNTIMELY FILED MOTION FOR RECONSIDERATION FOR “GOOD CAUSE,” BUT DENIED THE MOTION ON OTHER GROUNDS, AND APPELLANT FILED A PETITION FOR GRANT OF REVIEW WITH THIS COURT UNDER ARTICLE 67, UCMJ, MORE THAN 60 DAYS AFTER THE ORIGINAL DECISION OF THE COURT OF CRIMINAL APPEALS, BUT WITHIN 60 DAYS OF THE FINAL DECISION ON THE MOTION FOR RECONSIDERATION. SEE, UNITED STATES v. RODRIGUEZ, 67 M.J. 110 (C.A.A.F. 2009); UNITED STATES v. SMITH, 68 M.J. 445 (C.A.A.F. 2010).

Appellant will file a brief under Rule 24 within 30 days of the date of this Order. Appellee will file a brief within 30 days of the filing of Appellant’s brief. Appellant may file a reply within 10 days of the filing of Appellee’s brief.

In United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009), a deeply divided CAAF held that the court lacks jurisdiction to consider a petition for grant of review filed by an appellant beyond the 60-day period during which Article 67(b) states that an appellant “may” file such a petition. Judge Erdmann wrote for the court in Rodriguez, joined by Judges Stucky and Ryan. Then-Chief Judge Effron and then-Judge Baker both dissented. You can read some analysis of the case in posts here and here.

In United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010), CAAF unanimously held that when an appellant files a timely petition for reconsideration at a CCA, the 60-day time period to petition CAAF for review begins after the CCA completes its action on the petition for reconsideration.

LaBella finds what might be the only daylight between Smith and Rodriguez, and CAAF’s order for expedited briefings is particularly noteworthy in light of the fact that Chief Judge Baker’s 15-year term on the court will end in September.

Readers may also recall that after it was reviewed by the Supreme Court, the Denedo case ended with a missed deadline.

I analyzed the CCA’s decision in this post. CAAF granted review last Thursday:

No. 15-0426/AR. U.S. v. Richard A. Gifford. CCA 20120545.  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 specified by the Court:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT SECOND INFANTRY DIVISION POLICY LETTER NUMBER 8 (11 JANUARY 2010), WHICH PROHIBITS SERVICE MEMBERS WHO ARE 21 YEARS OF AGE AND OLDER FROM DISTRIBUTING ALCOHOL TO PERSONS UNDER 21 FOR THE PURPOSES OF CONSUMPTION, DID NOT CONTAIN AN ELEMENT THAT APPELLANT KNEW THAT THE PERSON TO WHOM DISTRIBUTION WAS MADE WAS UNDER 21 YEARS OF AGE, AND THEREFORE IMPOSED STRICT LIABILITY FOR SUCH ACTIONS.

Briefs will be filed under Rule 25.