One of our favorite readers just alerted us that CAAF has granted review in Behenna, No. 12-0030/AR, on these issues:

I.  Whether the military judge’s erroneous instruction limiting the right to self-defense deprived Appellant of his constitutional right to a fair trial.

II.  Whether the government’s failure to disclose favorable information to the defense deprived Appellant of his constittuional right to a fair trial.

United States v. Behenna, __ M.J. __, No. 12-0030/AR (C.A.A.F. Jan. 13, 2012) (order).

CAAF will hear a second oral argument on Tuesday, January 10, in United States v. Weeks, No. 11-0526/AF. The granted issue is: “Whether Appellant’s guilty plea to Charge II and its specification is improvident because Appellant did not falsely make or alter a signature or writing.”

The issue arises from a plea of guilty of forgery by uttering in violation of Article 123, UCMJ, where the appellant used the account and routing numbers from a check sent to him by his cousin to create electronic checks to pay for purchases at Best Buy via an automated bill pay system.

The AFCCA considered this issue and affirmed the conviction, finding that “the appellant caused the checks to be falsely made and he uttered them. This is not a borderline case, the military judge did not abuse his discretion in accepting the appellant’s guilty plea, and we are ourselves convinced of the appellant’s guilt.” United States v. Weeks, No. ACM 37535, slip op. at 3 (A. F. Ct. Crim. App., March 30, 2011).

Before CAAF, the appellant argues the either a writing or signature is a required element of Article 123, and that even if the appellant made an electronic writing or signature, it was not falsely made.

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On Tuesday, January 10, CAAF will hear oral argument in the Article 62 appeal in the case of United States v. Dease, Jr., No. 12-6001/AF. The government’s appeal was based on the trial military judge’s ruling excluding the results of urinalysis showing a positive result for cocaine. That ruling is summarized in the AFCCA’s opinion, which we analyzed when it was released (links below):

The appellee consented to the search and seizure of his urine for testing on 15 June 2010. He provided a urine specimen pursuant to that consent on 16 June 2010, and the specimen was stored in the base hospital laboratory until it was shipped to the Air Force Drug Testing Laboratory (AFDTL) on 27 July 2010. On 21 June 2010, before AFDTL tested the specimen, the appellee revoked “any prior consent for search, samples or any other procedure.” AFDTL reported that the specimen tested positive for cocaine on 25 August 2010.
United States v. Dease, Jr., Misc. Dkt. No. 2011-04, slip op. at 1 (A. F. Ct. Crim. App., September 29, 2011).

The AFCCA reversed the trial military judge, ruling that: “Like delivering garbage to the curb, the appellee [Dease] voluntarily abandoned any reasonable expectation of privacy in his waste urine when he delivered it to the government for analysis.” Id. at 4. Airman First Class Dease then petitioned CAAF for review, which was granted on the following issue:

Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus had no reasonable expectation of privacy where Appellant consented to the seizure of his urine and then revoked consent prior to the search of Appellant’s urine.

In the supplement to the petition for review at CAAF, we learn the unusual facts of the case, which occurred in the vicinity of RAF Lakenheath in Suffolk, England. The appellant (Dease) was working as a confidential source in an Air Force Office of Special Investigations (AFOSI) undercover operation targeting a British national suspected of distributing narcotics.

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CAAF today granted review in an Article 62 case.  Both the assigned issue — which conerns “hip pocket immunity” — and the specified issue — which concerns CAAF’s own jurisdiction — are unusually interesting.

The assigned issue:  “Whether the Government counsel’s stategic withholding of the convening authority’s grant of immunity makes Appellant’s statement to Government counsel non-immunized.”  United States v. Hathorne, __ M.J. __, No. 12-6002/AF (C.A.A.F. Jan. 4, 2012) (order granting review).

The specified issue:  “Whether, in light of United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), this Court has jurisdiction over an Article 62, UCMJ, appeal when the court-martial has adjudged a sentence that did not include a punitive discharge or confinement for one year?”  Id.

AFCCA’s unpublished decision in the case is available here.  United States v. Hathorne, Misc. Dkt. No. 2011-02 (A.F. Ct. Crim. App. Oct. 4, 2011).

The defense had filed a motion with CAAF to stay the trial proceedings while it considered the petition for review.  But CAAF denied that motion on 1 November 2011.  (That denial doesn’t seem to appear in the daily journal.)  The case went to trial the following day.  Airman First Class Hathorne was convicted of one specification of cocaine use.  He received a sentence of confinement for 7 days, 30 days of hard labor without confinement, restriction for 30 days, and reduction to E-1.

Last week CAAF granted review and ordered briefs in two more post-Fosler elements cases:

No. 12-0106/AF.  U.S. v. Michael A. CISNEROS.  CCA S31871.  Review granted on the following issue:

WHERE A SPECIFICATION CHARGED UNDER ARTICLE 134, UCMJ, FAILS TO STATE AN OFFENSE UNDER UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011), BY NOT INCLUDING THE TERMINAL ELEMENTS FOR CLAUSE 1 OR 2, CAN AN ACCUSED PROVIDENTLY PLEAD GUILTY TO SUCH A SPECIFICATION WHERE HE FAILS TO OBJECT TO THE SPECIFICATION AT TRIAL, WHERE THE MILITARY JUDGE ADVISES THE ACCUSED OF THE TERMINAL ELEMENTS DURING THE PROVIDENCE INQUIRY, AND THE ACCUSED ADMITS TO ALL THE ELEMENTS?

No. 12-0140/AF.  U.S. v. Jeremiah C. SLACK.  CCA S31906.  Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELLv. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Also, the following application for extraordinary relief was docketed on 19 December:

Misc. No. 12-8008/AR.  Julian ASSANGE, and WIKILEAKS, Appellants v. UNITED STATES OF AMERICA and Lieutenant Colonel Paul ALMANZA, Appellees.  CCA 20111146.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

LTCOL Almanza is the Article 32 Investigating Officer in the Manning case.

Yesterday CAAF granted review in six cases that (excluding McClain, which we mentioned here) look like an effort to clarify the future of Fosler:

No. 09-0519/NA.  U.S. v. Michael S. HODGE.  CCA 200601124.  Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No. 11-0647/MC.  U.S. v. Marchello K. HANCOCK.  CCA 201000400.  Review granted on the following issue:

AS IN UNITED STATES v. FOSLER, THE ARTICLE 134 SPECIFICATION FAILED TO ALLEGE EITHER POTENTIAL TERMINAL ELEMENT AND THEREFORE FAILED TO STATE AN OFFENSE.  COULD APPELLANT PLEAD GUILTY TO A SPECIFICATION THAT FAILED TO STATE AN OFFENSE?

No. 12-0071/AR.  U.S. v. Robert M. BIGBACK.  CCA 20101044.  Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No. 12-0073/MC.  U.S. v. Mark A. Leubecker.  CCA 201100091.  Review granted on the following issue:

WHETHER THE LOWER COURT MISAPPLIED UNITED STATES v. FOSLER AND UNITED STATES v. WATKINS, IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATIONS STATE AN OFFENSE.

No. 12-0099/AR.  U.S. v. Matthew J. MCCLAIN.  CCA 20090446.  Review granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF POSSESSING CHILD PORNOGRAPHY.

No. 12-0131/AR.  U.S. v. Robert L. MURCHISON.  CCA 20101052.  Review granted on the following issue:

WHETHER THE SPECIFICATION OF ADDITIONAL CHARGE II FAILS TO STATE AN OFFENSE AS IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE “TERMINAL ELEMENT” AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

On Thursday, CAAF granted review of this issue:

WHETHER THE ARMY COURT ERRED IN HOLDING THE APPELLANT’S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY BECAUSE JEOPARDY DID NOT ATTACH AND EVEN IF IT DID, MANIFEST NECESSITY JUSTIFIED THE CONVENING AUTHORITY’S DECISION TO WITHDRAW CHARGES.

United States v. Easton, __ M.J. __, No. 12-0053/AR (C.A.A.F. Dec. 15, 2011).  We discussed ACCA’s published decision in the case here.  United States v. Easton, 70 M.J. 507 (A. Ct. Crim. App. 2011).

On Thursday, CAAF granted review of this issue and, more significantly, ordered that briefs be filed:  ‘WHETHER A CONTESTED ADULTERY SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE AN ARTICLE 134 TERMINAL ELEMENT BUT THAT WAS NOT CHALLENGED AT TRIAL STATES AN OFFENSE.”  United States v. Humphries, __ M.J. __, No. 10-5004/AF (C.A.A.F. Dec. 15, 2011).  [Disclosure:  I'm the appellate defense counsel in the case.]

CAAF today granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTION TO DISMISS FOR FAILURE TO STATE AN OFFENSE, WHERE THE SPECIFICATION OMITTED REFERENCE TO A REQUIRED ELEMENT UNDER STATE LAW FOR  A FINDING OF GUILTY FOR WRONGFUL CONSUMPTION OF ALCOHOL WHILE UNDER AGE 21.

United States v. Hayes, __ M.J. __, No. 12-0090/AF (C.A.A.F. Nov. 30, 2011).  AFCCA’s unpublished decision in the case is available here.  United States v. Hayes, No. ACM 37588 (A.F. Ct. Crim. App. Aug. 15, 2011) (per curiam).

CAAF granted review of the following issue in United States v. Dease, No. 12-6001/AF (C.A.A.F. Nov. 14, 2011):  “Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus had no reasonable expectation of privacy where Appellant consented to the seizure of his urine and then revoked consent prior to the search of Appellant’s urine.”  Dease was an Article 62 appeal to AFCCA.  CAAF issued a stay of the court-martial along with its grant order.  AFCCA’s decision, which held that the accused didn’t retain a reasonable expectation of privacy after he consented to surrendering it to the government, is available here.  Judge Mathews the Greatest discussed that opinion here.

CAAF granted review last week in United States v. Westhoven, No. 11-0258/MC:

No. 11-0258/MC. U.S. v. Travis J. WESTHOVEN. CCA 201000132. Review granted on the following issue: WHETHER, IN LIGHT OF UNITED STATES v. MCMURRIN, 70 M.J. 15 (C.A.A.F. 2011), AND UNITED STATES v. MORTON, 69 M.J. 12 (C.A.A.F. 2010), APPELLANT’S GUILTY PLEA TO AN OFFENSE NOT NECESSARILY INCLUDED IN THE CHARGED OFFENSE CAN BE AFFIRMED UNDER UNITED STATES v. WILKINS, 29 M.J. 421 (C.M.A. 1990). Briefs will be filed under Rule 25.

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Here is the Daily Journal entry announcing grant of review in U.S. v. Alaa M. ALI,  No. 12-0008/AR.  As we’ve reported extensively, Ali came to the courts when the Army TJAG forwarded Mr. Ali’s  guilty plea at a general court-martial to ACCA pursuant to Article 69(d), UCMJ.  Mr. Ali is the first civilian prosecuted under the amended Art. 2(a)(10), UCMJ.  The amendment attempted to apply the UCMJ to contractors accompanying US armed forces in the field during “contingency operations” in addition to times of war. 

Review is granted in the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

II. WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER APPELLANT PURSUANT TO ARTICLE 2(a)(10), UNIFORM CODE OF MILITARY JUSTICE.

III. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

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

We’ll follow-up with links to briefs and more information when available. ACCA decision available here, prior coverage here and here to name a few.  H/t DHS

On Tuesday CAAF granted review in United States v. Bradley, No. 11-0399/NA, on the following issues:

I. In Bradley I, this court ruled that its application of waiver to appellant’s disqualification-of-trial-counsel claim did not render his pleas improvident where there was: (1) no ineffective assistance of counsel (IAC) claim; and (2) only a possibility that he believed the disqualification claim was preserved for appeal.  On remand, appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved.  Did NMCCA err in holding that it was bound by this court’s ruling that appellant’s pleas were provident?

II. Appellant’s civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas.  Did NMCCA err in finding that civilian counsel’s erroneous advice was reasonable, and therefore not deficient?

III. On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I court found he had – appellant was not prejudiced – which the Bradley I court found he was?

The N-MCCA’s initial unpublished opinion is here: United States v. Bradley, No. 200501089 (N-M Ct. Crim. App., 25 Nov 2008).

CAAF’s review and remand (Bradley I) is here: United States v. Bradley, 68 M.J. 279; No. 09-5002/NA (CAAF, 20 Jan 2010).

The N-MCCA’s unpublished opinion on remand is here: United States v. Bradley, No. 200501089 (N-M Ct. Crim. App., 15 Feb 2011).

I’m not familiar with the case and haven’t yet reviewed the opinions, so I can’t provide further background at this time.

We haven’t kept up our Fosler Trailer Park updates, see Grants page here .  It should suffice to say there were many Fosler-trailer grants and summary dispos in the last week or so of October 2011.

CAAF has also announced the cases being heard on December 12-13, calendar here:

Dec. 12:  United States v. Michael D. King, Jr., No. 11-0583/NA followed by United States v. Alexander M. Watson, No. 11-0523/MC

Dec. 13:  United States v. Darrian S. Nealy, No. 11-0615/AR followed by United States v. Anthony P. Ballan, No. 11-0413/NA

Other than King, all of the cases are Fosler-style cases.  King features an issue raised via United States v. Grostefon, as our Senior Contributor noted earlier–though Capt. Bottomly now takes up BU3 King’s case on brief and at argument.

No. 11-0640/AR.  U.S. v. Robert L. MCCULLOUGH.  CCA 20090206.

Is anyone still keeping count?