CAAFlog » CAAF Grants

CAAF’s daily journal for yesterday includes the following entry:

No. 15-0178/MC. U.S. v. Marco A. Hernandez. CCA 201300313.  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 THE MILITARY JUDGE ERRED BY NOT STAYING OR DISMISSING THE PROCEEDINGS IN LIGHT OF THE IMPROPER PANEL SELECTION BY THE CONVENING AUTHORITY.

No briefs will be filed under Rule 25.*

* Judge Ryan has recused herself in this case.

The NMCCA’s opinion in the case is available here. The CCA rejected the appellant assertion that the convening authority improperly excluded members on the basis of rank. CAAF is considering a similar issue (though one based on different facts) in United States v. Ward, No. 15-0059/NA (CAAFlog case page).

I have no information about why Judge Ryan recused herself from this case.

Yesterday CAAF granted review of two issues in a Marine Corps case:

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. 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 issues specified by the Court:

I.    WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.

II.   WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY’S ACTION DID NOT APPROVE ONE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here.

Other recent IAC cases on CAAF’s docket include:

  • United States v. Spurling, __ M.J. __, No. 15-0228/MC (C.A.A.F. Feb. 6, 2015) (summary disp.) (discussed here).
  • United States v. McIntosh, No. 14-0685/AF (rev. granted Jan. 15, 2015) (discussed here).
  • United States v. Engler, __ M.J. __, No. 15-0077/MC (C.A.A.F. Dec. 3, 2014) (summary disp.) (discussed here).

Yesterday CAAF granted review in two cases; in both the Government prevailed on interlocutory appeals at the Army CCA:

No. 15-0294/AR. U.S. v. Christopher S. Schloff. CCA 20140708.  On consideration of the petition for grant of 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, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT ERRED IN EXPANDING THE DEFINITION OF A “SEXUAL CONTACT” TO A TOUCH ACCOMPLISHED BY AN OBJECT CONTRARY TO THE PLAIN LANGUAGE OF ARTICLE 120(G)(2).

In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I discussed the Army CCA’s opinion in Schloff in a post titled: Can touching with a stethoscope constitute sexual contact?

No. 15-0315/AR. U.S. v. Michael F. Stellato. CCA 20140453.  On consideration of the petition for grant of 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, it is ordered that said petition is hereby granted on the following issues:

I.    WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN CONCLUDING THERE WAS NO DISCOVERY VIOLATION AND REVERSING THE MILITARY JUDGE’S REMEDY OF DISMISSAL.

II.   WHETHER THE ARMY COURT OF CRIMINAL APPEAL APPLIED AN ERRONEOUS VIEW OF THE LAW IN REQUIRING THE MILITARY JUDGE TO FIND “WILLFUL IGNORANCE, WILLFUL SUPPRESSION, OR OTHER MISCONDUCT” AS A CONDITION PRECEDENT FOR DISMISSAL WITH PREJUDICE FOR DISCOVERY VIOLATIONS.

In accordance with Rule 19(a)(7)(A), briefs will not be filed.

I analyzed the Army CCA’s opinion in Stellato in a post titled: The Army CCA finds “no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.”

CAAF granted review in two cases yesterday. The first involves an issue specified by the court:

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118.  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 PROMULGATION OF RCM 707 ABROGATED THE “SUBSTANTIAL INFORMATION” RULE ORIGINATED IN UNITED STATES v. JOHNSON, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

Briefs will be filed under Rule 25.

I discussed the CCA’s opinion in this post. The substantial information rule from Johnson addressed the presumption of an Article 10 speedy trial violation established in United States v. Burton, 44 C.M.R. 166 (1971), for pretrial confinement in excess of 90 days. But when an accused was confined for some offenses, and then additional offenses were discovered, the 90-day clock for the additional offenses began when “the Government had in its possession substantial information on which to base the preference of charges.” Johnson, 48 C.M.R. at 601. President Reagan promulgated R.C.M. 707 in 1984 (with a 90-day clock), and President Bush modified the rule to the current 120-day standard in 1991. Burton was then overruled in United States v. Kossman, 38 M.J. 258, 261 (C.M.A. 1993).

In Wilder, the NMCCA held that “Kossman voids the Johnson rule as well,” and that “R.C.M. 707(a)(1) establishes the commencement of the speedy trial clock for the additional charges as the dates of preferral.” Wilder, slip op. at 6. Notably, the AFCCA reached a similar conclusion in United States v. Proctor, 58 M.J. 792, 797 (A.F. Ct. Crim. App 2003). But cfUnited States v. Bray, 52 M.J. 659, 661 (A.F. Ct. Crim. App. 2000) (“We hold that, when an accused is placed in pretrial confinement as a result of a particular incident, the speedy-trial clock begins to run for all offenses that the prosecution knows, or reasonably should know, were part of that incident.”). However, the Coast Guard held otherwise – and applied the substantial substantial standard – in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), cert. for rev. filed, __ M.J. __ (Feb. 23, 2015) (discussed here). And the Army court applied the substantial information standard in United States v. Boden, 21 M.J. 916, 917-18 (A.C.M.R. 1986).

Because of this, I think Wilder is a great candidate for amicus filings from the Army, Air Force, and Coast Guard appellate divisions.

The second grant from yesterday involves a lesser included offense issue:

No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046.  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 THE LOWER COURT ERRED IN DECIDING A QUESTION OF LAW WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT WHEN IT HELD THAT ASSAULT CONSUMMATED BY BATTERY WAS A LESSER INCLUDED OFFENSE TO ABUSIVE SEXUAL CONTACT AND SEXUAL ASSAULT.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

I discussed the Coast Guard CCA’s decision in United States v. Sullivan, No. 001-69-13 (C.G. Ct. Crim. App. Sep. 25, 2014), in this post, commenting that the case was notable for a number of reasons including that it involves a Coast Guard Captain (O-6) who was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of a single specification of wrongful use of cocaine in violation of Article 112a. He was sentenced to pay a $5,000 fine and to be reprimanded. That sentence did not trigger automatic review by the CCA, but the Judge Advocate General of the Coast Guard referred the case to the CCA under Article 69(d).

Now the case goes to CAAF:

No. 15-0186/CG. U.S. v. Michael E. Sullivan. CCA 001-69-13. 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 GOVERNMENT CARRIED ITS BURDEN OF PROVING THAT THE CONVENING AUTHORITY’S CATEGORICAL EXCLUSION OF ALL FLAG OFFICERS WAS HARMLESS.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING CHALLENGES FROM BOTH PARTIES TO HIS IMPARTIALITY BASED ON PRIOR PERSONAL RELATIONSHIPS WITH INDIVIDUAL MILITARY COUNSEL, THE ACCUSED, TRIAL COUNSEL, SEVERAL MEMBERS, SEVERAL WITNESSES, AND THE STAFF JUDGE ADVOCATE.

Briefs will be filed under Rule 25.

When I wrote this post about the Coast Guard CCA’s opinion in United States v. Cooley, No. 1389 (C.G. Ct. Crim. App. Dec. 24, 2014), in which the court dismissed numerous charges for violation of the appellant’s right to a speedy trial under Article 10 after finding that pretrial confinement is per se prejudicial, I was pessimistic that the court had successfully resurrected Article 10 (declared long-dead in our #10 military justice story of 2013). I saw certification of the case as guaranteed, and I thought that if CAAF stays true to its Article 10 jurisprudence, then it’s going to look for something more than mere confinement to justify a finding of prejudice.

The following CAAF daily journal entry from yesterday says that my prediction will be put to the test:

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.  Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.

WHETHER THE FACTS AND CIRCUMSTANCES OF APPELLEE’S CASE, CONSIDERING THE FACTORS SET OUT IN BARKER V. WINGO, 407 U.S. 514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE

On Friday, January 30, CAAF docketed a certificate for review of the NMCCA’s decision in United States v. Quick, __ M.J. __, No. 201300341 (N-M. Ct. Crim. App. Oct. 31, 2014). I analyzed the CCA’s opinion in this post.

In Quick, the NMCCA significantly limited the reach of Article 120c(a)(1) (2012), finding that the offense of indecent viewing requires that an accused actually view the real-life private area of a person. The CCA reversed the appellant’s conviction for merely viewing a recording (made surreptitiously) of another person’s private area, finding that the specification failed to state an offense. The CCA then ordered a sentence rehearing.

The Government didn’t certify the CCA’s decision regarding Article 120c(a)(1). Rather, it certified an issue challenging the authority of the CCA to order a sentence rehearing in any case:

No. 15-0347/MC. U.S., Appellant v. Christopher A. Quick, Appellee. CCA 201300341.  Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

WHETHER PRECEDENT AUTHORIZING COURTS OF CRIMINAL APPEALS TO ORDER SENTENCE-ONLY REHEARINGS SHOULD BE OVERRULED BASED ON (A) JACKSON v. TAYLOR, 353 U.S. 569 (1957), WHICH STATED “NO [SUCH] AUTHORITY” EXISTS; (B) THE PLAIN LANGUAGE OF THE STATUTE INCLUDING THE CONJUNCTIVE “FINDINGS AND SENTENCE” IN ARTICLE 66(d) IN CONTRAST TO AUTHORITY GRANTED THE JUDGE ADVOCATES GENERAL IN ARTICLE 69(a) TO ACT WITH RESPECT TO “FINDINGS AND SENTENCE OR BOTH” AND THE CONVENING AUTHORITY IN ARTICLE 60(f)(3) TO ORDER SENTENCE REHEARINGS; AND (C) JUDICIAL ECONOMY.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 2, 2015.

On Wednesday CAAF granted review in the Army case of United States v. Gould, No. 15-0129/AR, with the following issue:

WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION OF PRODUCTION OF CHILD PORNOGRAPHY WHERE THE IMAGES IN QUESTION DO NOT MEET THE DEFINITION OF CHILD PORNOGRAPHY.

Interestingly, CAAF ordered that no briefs will be filed. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of indecent liberty with a child and production of child pornography in violation of Articles 120 and 134. But in an unpublished opinion the Army CCA reversed the indecent liberty conviction, finding that “the government did not prove that the child, KO, was aware of the indecent act alleged sufficient to establish the offense of indecent liberty with a child as contemplated under Article 120(j), UCMJ.” United States v. Gould, No. 20120727, slip op. at 2 (A. Ct. Crim. App. Sept. 16, 2014) (link to slip op.). As for the child pornography conviction, the CCA concluded:

We do find the evidence legally and factually sufficient to support appellant’s conviction for production of child pornography. See generally Washington, 57 M.J. at 399. The military judge properly considered relevant factors when reviewing the totality of circumstances necessary to adjudge whether the four photographs at issue constitute a lascivious exhibition of the genitals or pubic area required to resolve whether the images constitute child pornography. See United States v. Blouin, 73 M.J. 694 (Army Ct. Crim. App. 2014). Our own review of the evidence independently convinces us of the sufficiency of the evidence in this regard and that each of the four photographs depicts KO as alleged. See id.

Slip op. at 2.

Of note, CAAF will hear oral argument in Blouin on February 10. CAAF now has five child pornography cases on its docket:

CAAF’s daily journal for January 15, 2015 (yesterday) shows a new grant:

No. 14-0685/AF. U.S. v. Wilber J. McIntosh, Jr. CCA 37977. 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 APPELLANT RECEIVED INEFFECTIVE ASSISTANCE WHEN DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE WHICH STRONGLY CORROBORATED THE DEFENSE THEORY THAT THE ALLEGATIONS IN THIS CASE WERE FALSE.

Briefs will be filed under Rule 25.

The AFCCA heard oral argument in this case (audio available here). It considered and rejected the issue granted review by CAAF in an unpublished opinion available here. It also denied a petition for reconsideration en banc (order available here).

The daily journal also shows this order in the certified Air Force case of United States v. Bowser, No. 15-0289/AF (CAAFlog case page), our #10 military justice story of 2014:

No. 15-0289/AF. U.S., Appellant v. Roy A. Bowser, Appellee. CCA 2014-08. On consideration of the certificate for review and Appellant’s brief in support of the certified issues, dated January 5, 2015, under C.A.A.F. R. 15(a), and MODEL RULES OF PROF’L CONDUCT R. 3.3(a)(2) adopted therein, we find they fail to address United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014), and United States v. Browers, 20 M.J. 356 (C.M.A. 1985) as possible controlling or adverse authority. Appellate courts can and should require re-briefing to address deficiencies. See Passmore v. Estell, 607 F.2d 662, 664 (5th Cir. 1979), cert. denied, 446 U.S. 937 (1980). Accordingly, it is ordered that, within 10 days of the date of this Order, Appellant will file an amended brief addressing the deficiency noted. No extensions of time will be granted.

Appellee’s brief, currently due on January 26, 2015, will instead be filed within 10 days of the filing of Appellant’s amended brief. Any reply brief by Appellant will be filed within 5 days of the filing of Appellee’s brief.

Wow.

Notably, this order comes exactly one day before the one year anniversary of CAAF’s January 16, 2014, order that rejected the Government’s initial brief in United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014) (CAAFlog case page).

The Article 62 appeal in the Air Force case of United States v. Bowser was our #10 military justice story of 2014. The case might just make our list two years in a row, as CAAF’s daily journal for Monday shows the following:

No. 15-0289/AF. U.S. v. Roy A. Bowser. CCA 2014-08. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and supporting brief were filed under Rule 22 on this date on the following issues:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT TRIAL COUNSEL A BRIEF CONTINUANCE TO CONSULT WITH THEIR SUPERVISORY ATTORNEYS, FINDING PROSECUTORIAL MISCONDUCT AND BAD FAITH FOR THE FIRST TIME SEVENTEEN DAYS AFTER THE NOTICE OF APPEAL WAS FILED, AND DISMISSING ALL CHARGES AND SPECIFICATIONS WITH PREJUDICE.

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN, CONTRARY TO ARTICLE 62(B), UCMJ, IT REQUESTED FACTS OUTSIDE OF THE RECORD SOLICITED IN ORAL ARGUMENT TO “PARTIALLY INFORM [ITS] DECISION AS TO WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION.”

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT CONCLUDED THAT DISMISSAL WITH PREJUDICE WAS APPROPRIATE DESPITE EXPRESSLY FINDING 1) TRIAL COUNSEL’S REQUEST FOR A CONTINUANCE WAS REASONABLE AND 2) “THE RECORD CONTAINS [ ] INFORMATION INCONSISTENT WITH [THE MILITARY JUDGE’S] FINDINGS OF FACT.”

Appellee will file an answer under Rule 22(b) on or before January 15, 2015.

Readers may recall that my analysis of the CCA’s opinion rejecting the Government’s appeal ended with the following paragraph:

While I won’t be surprised if the Judge Advocate General of the Air Force certifies this case to CAAF (especially considering the recent history of JAG certifications), the JAG might want to think twice. The Air Force court’s opinion is pretty strongly worded, and it casts an awfully harsh light. I think it highly unlikely that CAAF will be more charitable.

I stand by my original assessment.

In this post from last June I analyzed the Army CCA’s opinion in United States v. Murphy, 73 M.J. 699 (A. Ct. Crim. App. May 30, 2014) (en banc). In that decision the CCA found that “ammunition which contains gunpowder or smokeless powder is unambiguously an explosive as those terms are expressly listed in the definition [in the Manual for Courts-Martial], with gunpowder as the very first example.” 73 M.J. at 701.

One consequence of the CCA’s decision is that the wrongful loss, sale, theft, damage, or destruction of just a single round of ammunition, or the failure to secure the same when captured or abandoned, is punishable by a maximum of confinement for ten years and a dishonorable discharge. See Appendix 12, MCM, Arts. 103, 108, 121. See also Art. 80 (attempts), Art. 81 (conspiracy), and Art. 134 (solicitation).

On New Year’s Eve, CAAF granted review:

No. 14-0767/AR. U.S. v. Brian A. Murphy. CCA 20120556. 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 ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT AMMUNITION CONSTITUTES AN EXPLOSIVE FOR PURPOSES OF THE SENTENCE AGGRAVATOR OF ARTICLES 108 AND 121, UCMJ.

Briefs will be filed under Rule 25.

In this post from September, I analyzed the unpublished en banc opinion in United States v. Soto, No. 38422 (A.F. Ct. Crim. App. Sep. 16, 2014), that reversed a conviction for forcible rape in violation of Article 120(a) (2006) on the basis that the Government failed to satisfy its burden to demonstrate that the appellant used physical force to cause the sexual intercourse.

Last Friday the Air Force certified the case to CAAF:

No. 15-0247/AF. U.S. v. Eddy C. Soto. CCA 38422. 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 issues:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) COMMITTED LEGAL ERROR BY APPLYING AN ERRONEOUS DEFINITION OF FORCE TO APPELLEE’S RAPE SPECIFICATION.

WHETHER AFCCA COMMITTED LEGAL ERROR BY FAILING TO CORRECTLY CONSIDER LESSER INCLUDED OFFENSES TO APPELLEE’S CHARGED RAPE SPECIFICATION

WHETHER AFCCA COMMITTED LEGAL ERROR IN THE MANNER IN WHICH IT CONDUCTED ITS FACTUAL AND LEGAL SUFFICIENCY REVIEW BY REFUSING AND FAILING TO CONSIDER ALL THE EVIDENCE PRESENTED TO THE FACT-FINDER AT TRIAL.

CAAF granted review in four cases on Monday:

No. 14-0783/NA. U.S. v. Marshand A. Woods. CCA 201300153.  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 THE MILITARY JUDGE ERRED BY DENYING A CHALLENGE FOR CAUSE AGAINST THE COURT-MARTIAL PRESIDENT, WHO SAID THE “GUILTY UNTIL PROVEN INNOCENT” STANDARD IS “ESSENTIAL” TO THE MILITARY’S MISSION?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here.

No. 15-0011/AF. U.S. v. Joshua K. Plant. CCA 38274.  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 EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO CHARGE V AND ITS SPECIFICATION (CHILD ENDANGERMENT) BECAUSE THE EVIDENCE FAILED TO PROVE APPELLANT’S ALCOHOL USE ALONE AMOUNTED TO CULPABLE NEGLIGENCE THAT ENDANGERED THE WELFARE OF L.P.

Briefs will be filed under Rule 25.

The AFCCA’s opinion is available here. Appellant’s conviction of child endangerment was based on his consumption of alcohol during a party at his own house, while his approximately 13-month old child slept in another room. The CCA found the evidence to be legally and factually sufficient, concluding that “the appellant’s alcohol use and the circumstances surrounding that alcohol use might foreseeably result in harm to the child, even if such harm would not necessarily be the natural and probable consequences of such acts.” Slip op. at 7.

No. 15-0029/AR. U.S. v. Levi A. Keefauver. CCA 20121026.  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 ARMY COURT ERRED IN FINDING THE PROTECTIVE SWEEP WAS APPROPRIATE IN TOTAL.

Briefs will be filed under Rule 25.

The ACCA’s opinion is available here. I noted this opinion in August, in this post.

No. 15-0059/NA. U.S. v. Darron D. Ward, Jr. CCA 201400021.  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:

THE CONVENING AUTHORITY ISSUED AN INSTRUCTION THAT LIMITED COURT-MARTIAL MEMBER NOMINATIONS TO PERSONNEL ONLY IN THE PAY GRADES BETWEEN E-7 AND O-5. THE LOWER COURT FOUND THIS SYSTEMATIC EXCLUSION OF PERSONNEL TO BE ERROR, BUT HARMLESS. SHOULD THIS COURT SET ASIDE APPELLANT’S CONVICTIONS BASED ON THE RATIONALE OF UNITED STATES v. KIRKLAND DUE TO THE UNRESOLVED APPEARANCE OF UNFAIRNESS?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found the exclusion of personnel  based on rank to be harmless based on six factors: “(1) no evidence that the errant instruction was issued with an improper motive; (2) no evidence that the CA had an improper motive when detailing the members assigned to the appellant’s court-martial; (3) the CA was a person authorized to convene a general court-martial; (4) the CA was properly advised of his Article 25 responsibilities, and that he could pick any member of his command, not just those who had been nominated; (5) the court members were personally chosen by the CA from a pool of eligible candidates; and, (6) the court members all met the criteria in Article 25, UCMJ.” Slip op. at 5.

CAAF granted review in three cases on December 3rd, summarily reversing the CCA in one.

First, CAAF granted review in United States v. Nettles, No. 14-0754/AF. I discussed the AFCCA’s opinion in this case in a post last June titled: The AFCCA rejects constitutional protections for threesomes. But CAAF will not consider the appellant’s as-applied constitutional challenge to his conviction for indecent acts in violation of Article 134 based upon his actions in permitting a third-party to watch and videotape consensual sexual activity between himself and his partner. Rather, CAAF will consider a more fundamental question:

Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.

This issue was considered by the AFCCA, but it was rejected based on the court’s conclusion that the appellant never received a discharge certificate. The CCA’s opinion gives what might be a preview of the appellant’s argument to CAAF:

The appellant argues that ARPC’s 25 September 2012 order was self-executing, or to put it differently, that ARPC issued a prospective discharge certificate. To satisfy the first prong of discharge case law (that the discharge certificate must be delivered to be effective), he argues that ARPC’s 14 March 2012 notice that a discharge would occur in the future was in effect the “delivery” of the discharge certificate that would not be generated for another six months.

United States v. Nettles, No 38336, slip op. at 5 (A.F. Ct. Crim. App. Apr. 21, 2014) (emphasis added) (link to unpub. op.).

CAAF’s second grant was in another trailer to the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page):

No. 15-0116/AR. U.S. v. Derrick L. Hardy. CCA 20120816. 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 IT WAS AN ABUSE OF DISCRETION FOR THE MILITARY JUDGE TO ACCEPT A PLEA OF GUILTY FOR WILLFUL VIOLATION OF A SUPERIOR COMMISSIONED OFFICER IN THE SPECIFICATION OF CHARGE I DESPITE THE ULTIMATE OFFENSE DOCTRINE AND THE MILITARY JUDGE’S APPLYING THE MAXIMUM PUNISHMENT FOR BREAKING RESTRICTION UNDER ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

This is the sixth such trailer case. I discussed the other five in this post.

Finally, CAAF granted and summarily reversed in a Marine Corps case involving a second convening authority’s action issued after the record of trial was forwarded to the CCA for appellate review:

No. 15-0077/MC. U.S. v. Matthew T. Engler. CCA 201300365. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the record of trial, the Court notes a number of errors in the post-trial processing of this case and decision of the lower court: (1) the civilian defense counsel advised the staff judge advocate that he would not submit clemency matters, but then submitted clemency matters several weeks after the convening authority took his initial action; (2) the convening authority purported to take a second action after he forwarded the record to the lower court and thereby lost jurisdiction in the case; (3) the convening authority failed to include the clemency matters in the record; (4) the lower court failed to order the government to produce the missing clemency submission; and (5) the lower court found a legal basis for a conclusion of no prejudice in the second action despite that action being a legal nullity. Accordingly, it is ordered that said petition is hereby granted on the following issue:

CAN A MILITARY APPELLATE COURT USE AN UNLAWFUL CONVENING AUTHORITY’S ACTION TO NEGATE PREJUDICE WHEN TESTING FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING POST-TRIAL CLEMENCY PROCESSING?

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the convening authority’s actions are set aside. The record of trial is returned to the Judge Advocate General of the Navy for submission to an appropriate convening authority for a new recommendation and action. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867 (2012) shall apply.

The NMCCA’s opinion is available here.

Last week, on November 20, CAAF granted review in another trailer to Phillips:

No. 15-0048/AR. U.S. v. Joshua R. Baker. CCA 20120839. 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 ACCEPTING APPELLANT’S PLEA OF GUILTY TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT’S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER’S OFFICE TO LIFT THE DUTY “ABOVE THE COMMON RUCK.”

No briefs will be filed under Rule 25.

In the Army case of United States v. Phillips, No. 14-0199/AR (CAAFlog case page), CAAF is considering the ultimate offense doctrine for the first time in almost 20 years, with the following granted issue:

Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

CAAF heard oral argument in Phillips on October 20, so I don’t expect a decision until next year. Prior to hearing oral argument, the court granted review in three trailer cases: United States v. Nemeth, No. 14-0491/AR, (grant discussed here), United States v. Amaya, No. 14-0558/AR (grant discussed here), and United States v. Twinam, No. 14-0619/AR (grant discussed here). Since hearing oral argument, CAAF has granted review in two additional trailer cases: United States v. Hagstrom, No. 14-0650/AR (grant discussed here), and last week’s grant in Baker.

Whether the court’s continuing grants of trailer cases predicts a major decision in Phillips remains to be seen.