CAAFlog » CAAF Grants

In United States v. Jones, No. 14-0071/AR (CAAFlog case page), a potential co-conspirator named Ellis (who was an augmentee military police officer) learned about the completed crime (a robbery) and questioned Jones without complying with Article 31(b), obtaining a confession. CAAF is reviewing the case to determine if the military judge erred by denying the Defense motion to suppress that confession.

As I discussed in my argument preview, current precedent makes for a hard fight for the appellant in Jones, because a military policeman need not give a rights advisement when the accused isn’t yet a suspect (see United States v. Miller, 48 MJ 49, 54 (C.A.A.F. 1998)), and because Article 31(b) does not apply where the questioner is not acting in an official capacity or the person questioned does not perceive the inquiry as more than a casual conversation (see United States v. Duga, 10 MJ 206, 210 (C.M.A. 1981)).

But listening to last week’s project outreach oral argument, I got the feeling that CAAF’s resolution of the case just might involve a major decision about the applicability of Article 31(b). Then, on Monday (five days after hearing argument in Jones), CAAF granted review of a similar issue in the case of one of Jones’ co-conspirators, who was also questioned by Ellis:

No. 14-0261/AR. U.S. v. Elliot M. CARRASQUILLO. CCA 20110719. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS STATEMENTS TAKEN FROM APPELLANT IN VIOLATION OF ARTICLE 31(b), UCMJ.

Briefs will be filed under Rule 25.

I discussed this case in a post last December titled “The right to remain silent when the evidence of guilt is overwhelming” (analyzing the Army CCA’s consideration of numerous references during the trial to Carrasquillo’s invocation of his right to remain silent). The CCA’s opinion did not discuss the admissibility of any statements Carrasquillo may have made to Ellis. But with what we know about Jones, the following passage from the CCA’s opinion takes on new meaning:

When SPC [Ellis] found out that Mr. DIIA had been robbed and heard a description of the assailants, he confronted appellant and SPC [Jones], who admitted that they participated in the crimes. Specialist [Ellis] informed his command of these disclosures, and appellant and the two other soldiers were quickly identified as potential suspects in the crimes. Appellant and SPC [Jones] were removed from the redeployment flight.

United States v. Carrasquillo, 72 M.J. 850, 852 (A.Ct.Crim.App. Nov. 27, 2013).

I discussed the seven instructional error cases on CAAF’s docket this term in this post from last month. With a new grant from last Thursday, the total is now up to eight:

No. 14-0048/AR.  U.S. v. Jason C. WAGNER.  CCA 20111064.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO INSTRUCT THE PANEL MEMBERS THAT WRONGFUL SEXUAL CONTACT AND ASSAULT CONSUMMATED BY BATTERY ARE LESSER-INCLUDED OFFENSES OF AGGRAVATED SEXUAL ASSAULT.

No briefs will be filed under Rule 25.

Back in November, Sam wrote a post about the Air Force CCA’s published decision in United States v. Piolunek, __ M.J. __, No. 38099 (A.F.Ct.Crim.App. 2013) (link to slip op.). The title of the post was: AFCCA Invites CAAF to Clarify its Position in Barberi.

In United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (link to slip op.) (CAAFlog case page), CAAF determined that the Due Process Clause requires that the conviction be set aside when it is the product of a general verdict of guilt that is based in part on conduct that is constitutionally protected.

In Piolunek, the AFCCA affirmed convictions for receipt and possession of child pornography, even though it found that “3 of the 22 images that served as the basis for the appellant’s convictions do not meet the legal requirements to be visual depictions of a minor engaging in sexually explicit conduct and are, therefore, constitutionally protected.” Piolunek, __ M.J. __, slip op. at 7.

But yesterday CAAF said:

No. 14-0283/AF. U.S. v. Justin M. PIOLUNEK. CCA 38099. Review granted on the following issue:

Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.

Briefs will be filed under Rule 25.

Last week CAAF granted review of the Air Force case of United States v. Torres, No. 14-0222/AF, with the following issue:

Whether the military judge erred by denying the defense requested instruction.

The case involves Appellant’s assaults upon his wife, including one about which a “neurologist testified it was possible the appellant had an epileptic seizure that morning which resulted in him curling up on the floor, and that his aggression towards his wife when roused by her, was a postictal violent response which did not constitute conscious and voluntary behavior on his part.” United States v. Torres, No. 37623, slip op. at 3 (A.F.Ct.Crim.App. Oct. 2, 2013) (link to slip op.). In connection with this possibly postictal violence, Appellant was convicted of aggravated assault for choking his wife with his hands.

Prior to findings, the Defense requested an instruction on “voluntariness” that included:

The evidence in this case has raised an issue [of] whether the acts alleged in the [aggravated assault specification] were committed voluntarily. An accused may not be held criminally liable for his actions unless they are voluntary. If the accused, due to a medical condition such as a seizure disorder, is incapable of acting voluntarily at the time of the offense, then his actions were involuntary, and he may not be found guilty of the offense . . . .

Slip op. at 4. The military judge refused to give the requested instruction. The AFCCA considered this issue and, after considering the defense of automatism (“[a]ction or conduct occurring without will, purpose, or reasoned intention, such as sleepwalking; behavior carried out in a state of unconsciousness or mental dissociation without full awareness,” slip op. at 7), and how it applies to mens rea (mental state) and actus reas (the guilty act), the court “reject[ed] the appellant’s effort to apply the automatism defense in terms of his actus reus.” Slip op. at 9. The court then concluded that even if Appellant could use his mental state as a defense in this manner:

The members were instructed that the prosecution had the burden of proving each of the elements beyond a reasonable doubt, including that the appellant’s choking of his wife was unlawful (defined as “without legal . . . excuse”) which, as argued by the defense, clearly goes to the question of the voluntariness or consciousness of his acts. Thus, the purpose of appellant’s requested instruction was substantially met by the instructions given to the panel.

Slip op. at 10. CAAF will now review both the CCA’s predicate finding of no error in the judge’s refusal to give the instruction and, if it finds error, the CCA’s subsequent finding of harmlessness.

Instructions are a big topic at the court this term, with CAAF’s ongoing consideration of United States v. Davis, No. 14-0029/AR (CAAFlog case page) (questioning judge’s failure to sua sponte give defense of property instruction), United States v. MacDonald, No. 14-0001/AR (post discussing grant) (questioning judge’s failure to give requested involuntary intoxication instruction), and United States v. Talkington, No. 13-0601/AF (CAAFlog case page) (questioning judge’s instructions regarding consideration of sex offender registration).

The court has also decided instructional issues in United States v. Knapp, No. 13-5012/AF, 73 M.J. 33 (C.A.A.F. 2014), recons. den., __ M.J. __ (CAAFlog case page) (reversing due to the judge’s failure to instruct members to disregard improper human lie detector testimony), United States v. Payne, No. 13-0245/AF, 73 M.J. 19 (C.A.A.F. 2014) (CAAFlog case page) (affirming after finding improper instructions on the elements to be harmless error), and United States v. Hornback, No. 13-0442/MC, __ M.J. __ (C.A.A.F. 2014) (CAAFlog case page) (affirming despite finding significant prosecutorial misconduct, because of the effectiveness of the judge’s curative instructions).

By this count, Torres is the seventh instructional error case this term.

CAAF has granted review of what looks like another Winckelmann trailer:

No. 12-0516/AF.  U.S. v. Michael S. TUNSTALL.  CCA 37592.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) VIOLATED UNITED STATES v. BUBER, 62 M.J. 476 (C.A.A.F.2006), WHEN IT ONLY LOOKED AT THE CHANGE IN THE MAXIMUM POSSIBLE PUNISHMENT TO DETERMINE WHETHER THERE WAS A DRAMATIC CHANGE TO THE PENALTY LANDSCAPE, AND UNITED STATES v. MOFFEIT, 63 M.J. 40 (C.A.A.F. 2006), WHEN IT DID NOT USE THE PROPER STANDARD OF “BEYOND A REASONABLE DOUBT.”

No briefs will be filed under Rule 25.

This is the same case as United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013) (CAAFlog case page), where CAAF found that the trial judge erred in instructing the members on the offense of indecent acts as a lesser included offense of aggravated sexual assault, reversed the AFCCA on this issue, and remanded the case to the CCA for further proceedings. On remand, the AFCCA determined:

We are confident that we can reassess the sentence in accordance with the above authority. The appellant faced a maximum punishment of a dishonorable discharge, confinement for 36 years, total forfeiture of pay and allowances, and reduction to the grade of E-1. Setting aside Specification 2 of Charge I reduced the period of confinement from 36 years to 31 years. Thus, the penalty landscape is not substantially changed by the dismissal of this specification. Nevertheless, the dismissal of this specification could have some impact on the severity of the sentence adjudged.

Applying the criteria set forth in Sales, we are confident that, in the absence of Specification 2 of Charge I, the panel would have imposed at least a bad-conduct discharge, confinement for 4 months, reduction to E-1, and a reprimand. See Sales, 22 M.J. at 308. We reassess the sentence accordingly.

United States v. Tunstall, No. 37592, slip op. at 3 (A.F.Ct.Crim.App. Oct. 8, 2013) (op. on remand) (link to unpub. op.). The original findings were guilty of one specification of aggravated sexual assault, one specification of indecent acts (as a lesser included offense of a second specification of aggravated sexual assault), and one specification of adultery, in violation of Articles 120 (2007) and 134, UCMJ. The adjudged sentence was confinement for six months, a reprimand, reduction to E-1, and a bad-conduct discharge.

Update: CAAF summarily affirmed the AFCCA’s decision (daily journal, March 12):

No. 12-0516/AF.  U.S. v. Michael S. TUNSTALL.  CCA 37592.  On consideration of the granted issue, __ M.J. __ (C.A.A.F. Daily Journal, March 5, 2014) (order granting review), and in view ofUnited States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

A number of notable entries appear on CAAF’s daily journal for last Friday:

The court granted and remanded an Army case (that it appears the CCA summarily affirmed) for further development of the record regarding a claim of ineffective assistance of counsel:

No. 14-0137/AR.  U.S. v. Daniella M. HOWARD.  CCA 20120844.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION AND PRESENT VITAL EVIDENCE TO THE MILITARY JUDGE REGARDING THE DEFENSE OF DURESS AS A RESULT OF A SEXUAL ASSAULT BY A NONCOMMISSIONED OFFICER.

The decision of the United States Army Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry on the granted issue.  The Court of Criminal Appeals will obtain affidavits from the trial defense counsel (military and civilian) that respond to Appellant’s allegation of ineffective assistance of counsel.  Under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters.  See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review.  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

The court received a certificate of review from the Air Force JAF in Wilson (previously discussed here), definitively establishing it as a companion case to McPherson (last discussed here).

No. 14-5003/AF.  U.S., Appellant v. Jimmy L. WILSON, Appellee.  CCA 37897.  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:

WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 31, 2014.

The court denied review in Trank. Remember Trank? It’s the Army case with the Article 62 appeal that I discussed last November in a post titled: In the debate over whether an alleged victim should testify at an Article 32 hearing, the Army CCA has impeccable timing. Notably, CAAF granted a stay of proceedings just a week before it denied review (discussed in this post). It’s also worth mentioning that Rule 6 of CAAF’s rules gives the Chief Judge (or a judge performing his duties) the authority to grant a stay.

CAAF also denied review of the rehearing in McMurrin, ending the long saga of Fireman McMurrin who, in 2008, went on a cocaine and heroin binge with a fellow sailor who died at the end of the night after McMurrin left him in the bushes to “sleep it off.” See United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011) (McMurrin II) (link to slip op.). I last discussed the case in this post, where I predicted (wrongly) that CAAF would grant review.

Finally, in this post I noted the NMCCA’s decision the set aside the findings and authorized a rehearing in United States v. Dougherty, No. 201300060 (N-M.Ct-Crim.App. Dec. 31, 2013) (link to slip op.). Considering that result, I was surprised to see this:

No. 14-0436/MC.  U.S. v. Daniel L. DOUGHERTY.  CCA 201300060.  Appellant’s motion to extend time to file the supplement to the petition for grant of review granted to March 19, 2014.

Last October the Army CCA issued a published opinion in United States v. Treat, __ M.J. __, No. 20110402 (A.Ct.Crim.App. Oct. 25, 2013) (link to slip op.). Treat is a contested missing-movement case where Appellant was charged with missing the movement of a specific aircraft (“Flight TA4B702”) but was convicted by the military judge of missing the movement of a unit (“the flight dedicated to transport Main Body 1”). Appellant complained that this created a material fatal variance, but the CCA rejected this argument because “[t]he theory of the case, however, remained the same.” Slip op. at 5.

When I wrote about the case in this post last November, I argued that changing a charge of missing movement from missing a specific flight to missing “the flight dedicated to transport [a specific unit]” doesn’t actually keep the theory the same. Rather, it changes the theory completely, and substantially changes the nature of the offense. Because of this, I felt that the CCA’s conclusion that there was no material variance was mistaken.

CAAF’s going to determine if I got this one right:

No. 14-0280/AR.  U.S. v. Michael L. TREAT.  CCA 20110402.  Review granted on the following issue:

WHETHER THERE IS A FATAL VARIANCE AND A VIOLATION OF APPELLANT’S DUE PROCESS RIGHT TO NOTICE WHEN THE GOVERNMENT ALLEGED THAT APPELLANT MISSED THE MOVEMENT OF A PARTICULAR AIRCRAFT BUT THE PROOF ESTABLISHED THAT HE MISSED THE MOVEMENT OF A PARTICULAR UNIT.

Briefs will be filed under Rule 25.

Though, it’s worth mentioning that I could be both right and wrong in my analysis of this case, as I concluded:

The appellant’s hard-to-swallow defense of a kidnapping that prevented him from making the flight (for which he was also convicted of making a false official statement) isn’t affected at all by changing the theory of prosecution from a particular flight to a unit movement. Either way the false story leads to a conviction. So in the end, the variance is material but not fatal, and the CCA’s decision affirming the findings is the right result.

Last week CAAF granted review in an Army case where Appellant was sentenced to life without the possibility of parole for, among other things, the premeditated murder of a fellow soldier under circumstances described by the ACCA as:

Appellant stabbed another soldier to death under rather mysterious circumstances. There was no apparent motive for the killing, Appellant presented, in essence, an insanity defense, claiming that the drug prescribed to him by Army doctors to help him stop smoking, Varenicline (popularly known as and hereinafter referred to as Chantix), contributed to his lack of mental responsibility for the offenses alleged.

United States v. MacDonald, No. 20091118, slip op. at 1 (A.Ct.Crim.App. Jul 3, 2013) (link to unpub. op.). The granted issues are:

No. 14-0001/AR. U.S. v. George D. MACDONALD. CCA 20091118. Review granted on the following issues:
I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.
II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.

The details of the killing, discussed at some length in the CCA’s opinion, are both puzzling and disturbing. The opinion also describes in detail the similarly-disturbing side effects of Chantix. The Defense sought production of documents from Pfizer and then from the FDA regarding these side effects, and the trial counsel issued a subpoena, but the military judge refused to enforce the subpoena. The CCA found this to be an abuse of the judge’s discretion, but harmless. Notably, in making this conclusion, the CCA found:

a reasonable possibility that the information in Pfizer’s and/or the FDA’s possession might establish that Chantix inspired appellant to entertain homicidal ideas and facilitate any tendency toward violent and hostile behavior he otherwise possessed.

Slip op. at 12.

Read more »

Today CAAF decided United States v. Wicks, No. 13-6004/AF (CAAFlog case page) (link to slip op.). Wicks is an interlocutory appeal of a military judge’s ruling that suppressed the fruits of a search of Appellant’s cell phone. The Air Force CCA granted the Government appeal and reversed the judge’s ruling. CAAF now reverses the CCA and reinstates the judge’s ruling on the basis that “the military judge did not err in concluding that the Government’s search of Appellant’s cell phone violated Appellant’s reasonable expectation of privacy.” Slip op. at 3.

I’m reviewing the opinion now and will post my analysis tonight or tomorrow morning.

CAAF also granted review in an interesting looking Coast Guard case:

No. 14-0265/CG.  U.S. v. Jaason LEAHR.  CCA 1365.  Review granted on the following issues:

I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.
II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.
III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

The CGCCA’s opinion is available here.

Thinking some more about the certification in McPherson, I wandered over to the AFCCA’s website where I found a recently published opinion in United States v. Wilson, No. ACM 3789, 73 M.J. 529 (A.F.Ct.Crim.App. Jan. 30, 2014) (link to slip op.). Last July, CAAF remanded Wilson for consideration of a single issue:

WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES; AND, WHETHER THE RECORD IN THIS CASE PERMITS SUCH A CONCLUSION TO BE DRAWN WITHOUT THE NECESSITY OF FURTHER FACT-FINDING.

On January 30, 2014, the AFCCA answered this question in the affirmative, finding that:

In light of the plain meaning of Article 12, UCMJ, which contains no geographical limitation whatsoever, and made further clear by its legislative history, we conclude that Article 12, UCMJ, applies to members of the armed forces “everyplace,” to include confinement facilities within the continental United States.

Slip op. at 5. The CCA denied the appellant relief on much the same grounds as in McPherson:

The appellant never sought administrative relief or even alleged that he was ever in immediate association with any foreign national. His complaints were instead directed towards the fact he was placed in solitary confinement. The appellant has not raised an allegation of a violation of Article 12, UCMJ, in any of his appellate pleadings before this court. Relief is not warranted for the following reasons: his failure to exhaust administrative remedies, the lack of unusual or egregious circumstances, and his lack of a request for relief for any alleged Article 12, UCMJ, violation.

Slip op. at 7-8 (see also footnote 3: “At oral argument, appellant’s counsel specifically rejected the argument that Article 12, UCMJ, 10 U.S.C. § 812, was violated.”).

The very next day, TJAG certified McPherson with an issue that – practically speaking – is a challenge to the CCA’s decision in Wilson. Fast work…

Last week CAAF granted review in the Air Force case of United States v. Cimball Sharpton:

No. 14-0158/AF.  U.S. v. Candice N. CIMBALL SHARPTON.  CCA 38027.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT ABUSED ITS DISCRETION IN FINDING THE EVIDENCE LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR LARCENY FROM THE AIR FORCE.

Briefs will be filed under Rule 25.

I discussed the AFCCA’s decision in this case back in September, in a post entitled AFCCA explains that larceny charges involving credit cards aren’t that complicated, and that promotional sweatshirts aren’t allowancesThe larceny charge involved Appellant’s misuse of her Government Purchase Card (GPC) (basically a credit card billed direct to the taxpayers), with which she made “apparently unauthorized purchases from places such as the Base Exchange and the Class VI store.” AFCCA slip op. at 2. “The Class VI store” is more commonly known as a “liquor store.” In affirming the conviction, the AFCCA explained, “The prosecution also presented documents showing the Government ultimately paid for the appellant’s unauthorized purchases, a fact to which the parties later stipulated.” Slip op. at 3.

I think the facts differentiate Cimball Sharpton from other credit/debit card larceny cases. The misuse of the the GPC in this case involved an abuse of an agency to fraudulently obtain something at the expense of the principal, while typical bank/debit card cases are really a misuse of credentials to steal from a third party (i.e., impersonating someone else with their card and PIN – a two-factor identification – to steal from the bank). But we’ll see if CAAF feels differently.

CAAF granted review of four new cases on Thursday:

No. 13-0573/AR.  U.S. v. Calvin J. DAVENPORT.  CCA 20081102.  Review granted on the following issue:

Whether the omission of testimony from a trial transcript renders the transcript non-verbatim and therefore subject to the remedy in R.C.M. 1103(f)(1) where the witness’s testimony is only relevant to an offense of which appellant has been acquitted; or, whether such omission should be addressed under R.C.M. 1103(b)(2)(a)(requirement for a complete record) and thus tested for whether the presumption of prejudice has been rebutted.  See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013); United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000).

The ACCA’s opinion is here. Our coverage of Gaskins is available on its CAAFlog case page.

No. 14-0040/NA.  U.S. v. Ethan S. SHORT.  CCA 201200483.  Review granted on the following issue:

A punitive discharge may not be affirmed when the record is not verbatim. Here, during sentencing, the members heard some portion of the providence inquiry which drew a curative instruction from the military judge. On appeal, the lower court attached, over defense objection, what purported to be the missing section. This section was not properly authenticated nor does it accurately reflect the missing portion. May appellant’s punitive discharge be affirmed despite the lack of a verbatim record?

The NMCCA’s opinion is here.

No. 14-0071/AR.  U.S. v. Travis D. JONES.  CCA 20110679.  Review granted on the following issue:

Whether the military judge abused his discretion when he denied the defense’s motion to suppress appellant’s statement to the military police.

The ACCA affirmed without a written opinion.

No. 14-0230/AR.  U.S. v. Samuel R. SPOTTS.  CCA 20111144.  Review granted on the following issue:

Whether appellant was denied effective assistance of counsel when his trial defense counsel failed to request deferment of automatic forfeitures on his behalf.

The ACCA affirmed without a written opinion. 

CAAF’s docket also notes an appeal by the accused in the Article 62 case of United States v. Trank, No. 20130742 (A.Ct.Crim.App. Nov. 19, 2013) (link to slip op.), where the CCA granted a Government interlocutory appeal in a sexual assault case involving an alleged child victim who refuses to testify at trial. I discussed the CCA’s decision in this post (where I wrote, “I’d be surprised if CAAF doesn’t weigh in on this case.”). The Government’s response is due by January 27.

[Disclaimer: I have one of the "Soybel 37" appellants.]

For those of us interested in and following Soybel II, we are watching United States v. Janssen, now at CAAF.

CAAF granted and ordered expedited briefing in Janssen.  So today’s Order is somewhat interesting.

At AFCCA, the government has asked the court to apply Janssen to all 37 pending cases.  No word on that, but my gut tells me they may be waiting for an answer in Janssen.

UPDATED;

A final AG brief filed 13 January 2014, is at this link.

A 90 page Supplemental AG filing of 15 January 2014, is at this link.

On the heels of CAAF’s grant of the AFCCA’s Appointments Clause issue in Janssen (CAAFlog case page), on December 19, and its order for expedited briefing, the court granted review of the composition of the AFCCA panel in six more cases on December 23:

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028
No. 14-0060/AF. U.S. v. Jeremy J. GRAWEY. CCA S32029
No. 14-0125/AF. U.S. v. Danny L. ANNIS. CCA 38001
No. 14-0138/AF. U.S. v. Danny M. BURNS. CCA 37847
No. 14-0156/AF. U.S. v. Devon P. JOHNSON. CCA S32047
No. 14-0157/AF. U.S. v. Alphonso K. DIXON. CCA S32061

CAAF ordered no briefs to be filed.

CAAF also granted review of what looks to be a trailer to Winckelmann (CAAFlog case page):

No. 14-0044/AF.  U.S. v. Morgan A. WINN.  CCA 37772.  Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO ORDER A REHEARING ON SENTENCE.

No briefs will be filed under Rule 25.

The AFCCA decided Winn on May 15, 2013, (link to slip op.), setting aside Appellant’s convictions for indecent acts and indecent exposure, in violation of Article 134, due to factual insufficiency. The court affirmed only Appellant’s conviction for knowingly transferring obscene materials to a the 13-year-old girl, in violation of Article 134 and 18 U.S.C. § 1470. The CCA then reassessed the sentence, adjudged by members, of confinement for 12 months, total forfeitures, reduction to the grade of E-1, and a bad-conduct discharge, and approved the sentence in whole.

On Thursday, December 19, CAAF granted review and ordered expedited briefing in the Air Force case of United States v. Janssen, No 14-0130/AF, with the following issue:

Whether the civilian judge on Appellant’s Air Force Court of Criminal Appeals panel was properly appointed. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. § 113 (2012); 5 U.S.C. § 3101 (2012).

We’ve been following this issue for a few months (since at least this September post, and most recently this post on Dec. 4, and this post on Dec. 5). Appellate Military Judge Lawrence M. Soybel, who retired from the Air Force, was appointed to the Air Force Court of Criminal Appeals as a civilian. For reasons not yet clear, there were problems with the initial appointment and the Secretary of Defense re-appointed Mr. Soybel on June 25, 2013. Cases in which Judge Soybel participated before the re-appointment have received reconsideration by the CCA or remand from CAAF.

Janssen is one such case. The AFCCA first decided Janssen in May, with a per curiam opinion by a three-judge panel that included Judge Soybel (link to slip op.). The AFCCA then reconsidered the case in July before the same panel, issuing a second per curiam opinion with a footnote that stated, “Upon our own motion, this Court vacated the previous decision in this case for reconsideration before a properly constituted panel. Our decision today reaffirms our earlier decision” (link to slip op.).

CAAF has scheduled the case for oral argument on January 28, 2014.

In other news from CAAF, former-Sergeant Hasan Akbar, who attacked fellow soldiers in Kuwait in 2003, killing two and wounding 14 others, and who was sentenced to death in 2005, has moved for leave to exceed the court’s page limit for a brief:

No. 13-7001/AR.  U.S. v. Hasan K. AKBAR.  CCA 20050514.  On consideration of Appellant’s motion to file a brief in excess of fifty pages, the Court notes that Rule 24(b) of its Rules of Practice and Procedure provides that briefs filed with the Court shall not exceed thirty pages, unless otherwise authorized by order of the Court or by motion of a party granted by the Court.  In addition, Rules 24(c) provides a type-volume limitation providing that briefs are acceptable if they contain no more than 14,000 words or 1,300 lines of text.

Appellant’s motion requests permission to file a brief in excess of fifty pages, and proposes to submit a brief in excess of 500 pages.  It is ordered that on or before January 3, 2013, Appellant supplement his motion with a review of federal circuit courts’ capital case exceptions to the analogous page limitation under Rule 32(a)(7) of the Federal Rules of Appellate Procedure, if any, including any Supreme Court exceptions to its own page limitations in the context of capital cases.

(emphasis added). The Army CCA affirmed the death sentence in 2012 (discussed here). Akbar is one of only six military death row inmates. The whole list (in the order sentence was adjudged) is: Gray, Loving, Akbar, Witt, Hennis, and Hasan. Of note, the death sentence in Witt was set aside by the CCA in August (discussed here), but the court has granted a Government motion for reconsideration (discussed here).

Finally, CAAF has increased the fee to join the bar to $50 (link to notice).