CAAFlog » CAAF Grants

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

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

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

No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

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

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

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

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

No. 17-0032/AR. U.S. v. Sean M. Ahern. CCA 20130822. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE PROHIBITION AGAINST USING AN ADMISSION BY SILENCE PROVIDED BY MIL. R. EVID. 304(a)(2) IS TRIGGERED ONLY “WHEN THE ACCUSED IS AWARE OF” AN INVESTIGATION CONTRARY TO THE PLAIN LANGUAGE OF THE RULE.

Briefs will be filed under Rule 25.

The Rule states:

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

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

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

Slip op. at 11.

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

No. 16-0669/NA. U.S. v. Mark A. Berger. CCA 201500024. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

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

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

No briefs will be filed under Rule 25.

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

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

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

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

One of the Dalmazzi trailers also involves a different issue:

No. 16-0658/AR. U.S. v. Tyler F. Ho. CCA 20140068. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER APPELLANT WAS PUNISHED FOR 28 DAYS BY BEING FORCED TO QUARTER A JUNIOR OFFICER IN HIS HOME AND NOT AWARDED CREDIT.

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

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

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

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

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

The eighth grant isn’t a trailer case:

No. 16-0599/AR. U.S. v. Jared D. Herrmann. CCA 20131064. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO FIND APPELLANT COMMITTED RECKLESS ENDANGERMENT, WHICH REQUIRES PROOF THE CONDUCT WAS LIKELY TO PRODUCE DEATH OR GRIEVOUS BODILY HARM.

Briefs will be filed under Rule 25.

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

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

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

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

No. 16-0705/AR. U.S. v. Sean R. Erikson. CCA 20150130. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN EXCLUDING EVIDENCE THAT THE VICTIM PREVIOUSLY MADE A FALSE ACCUSATION OF SEXUAL CONTACT AGAINST ANOTHER SOLDIER.

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

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

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

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

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

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

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF has already granted review of eight trailer cases.

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

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

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals. CAAF has already granted review of six trailer cases.

Yesterday it granted an interesting seventh:

No. 16-0677/AR. U.S. v. Jovanni Pimentel. CCA 20150361.  Appellant’s petition for reconsideration of this Court’s Order issued September 15, 2016, is hereby granted.  The Order denying the petition for grant of review issued September 15, 2016, is hereby vacated, and the petition for grant of review is hereby granted on the following issues:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

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

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

No briefs will be filed under Rule 25.

(emphasis added).

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals.

The case ended last term with three trailers: United States v. Brown, No. 16-0714/AR (grant discussed here), United States v. Echols, No. 16-0720/AR, and United States v. Bustamonte, No. 16-0693/AR (grants discussed here).

Now it has three more:

No. 16-0732/AR. U.S. v. Kameron M. Coleman. CCA 20140709. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

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

No briefs will be filed under Rule 25.

 

No. 16-0555/AR. U.S. v. Jason M. Commisso. CCA 20140205. On consideration of Appellant’s motion to enlarge the grant and vacate the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is hereby granted as it pertains to enlarging the grant but denied as it pertains to vacating the decision of the United States Army Court of Criminal Appeals.

I noted CAAF’s grant of review in Commisso here.

No. 16-0635/AR. U.S. v. Laith G. Cox. CCA 20130923. On consideration of Appellant’s petition for reconsideration of this Court’s Order issued September 7, 2016, it is ordered that said petition for reconsideration is hereby granted, and the petition for grant of review is hereby granted on the following issues:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

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

No briefs will be filed under Rule 25.

On Friday, September 30, 2016 – the last day of the September 2015 Term, which is the last September term (discussed here) – CAAF granted review in five trailer cases.

First, the court granted, set-aside, and remanded in a trailer to United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page):

No. 16-0697/AR. U.S. v. Douglas E. Reynolds, Jr. CCA 20140856. 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 CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT OTHER CHARGED MISCONDUCT.

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 consideration of the granted issue in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

I can’t find an opinion on the Army CCA’s website (indicating that the CCA summarily affirmed the findings and sentence). This is the fifth such case reversed by CAAF since the court decided Hills.

Next, CAAF granted review in two trailer cases to the Air Force case of United States v. McClour, No. 16-0455/AF (grant discussed here):

No. 16-0579/AF. U.S. v. William P. Smith, Jr. CCA 38728. 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, BY INSTRUCTING THE MEMBERS THAT THEY LACK THE POWER OF JURY NULLIFICATION, THE MILITARY JUDGE ERRED AND MATERIALLY PREJUDICED APPELLANT’S RIGHT TO BE TRIED BY A PANEL VESTED WITH ITS FULL PREROGATIVE.

No briefs will be filed under Rule 25.

No. 16-0674/AF. U.S. v. James M. Kmet. CCA 38755. 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 AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, “IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

No briefs will be filed under Rule 25.

The AFCCA’s decision in Smith is available here and its decision in Kmet is available here. These are the third and fourth trailer cases to McClour. All but one (Taylor, discussed here) are from the Air Force.

Finally, CAAF granted review in two trailers to the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here):

No. 16-0693/AR. U.S. v. Marcos A. Bustamante. CCA 20150486. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

WHETHER JUDGE HERRING AND JUDGE BURTON, WHO CURRENTLY SIT ON THE CMCR, ARE STATUTORILY AUTHORIZED TO ALSO SIT ON THE ACCA.

WHETHER JUDGE HERRING AND JUDGE BURTON’S SIMULTANEOUS SERVICE ON BOTH THE CMCR AND ACCA VIOLATES THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

No briefs will be filed under Rule 25.

No. 16-0720/AR. U.S. v. Robert S. Echols. CCA 20160126. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

WHETHER CMCR JUDGE JAMES HERRING IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY CCA.

WHETHER JUDGE JAMES HERRING’S SERVICE ON BOTH THE CMCR AND ARMY CCA VIOLATES THE APPOINTMENTS CLAUSE.

No briefs will be filed under Rule 25.

I can’t find opinions in either case on the Army CCA’s website (indicating that the CCA summarily affirmed the findings and sentence). There are now three Dalmazzi trailers at CAAF, all from the Army.

Disclosure: I represent – in my personal capacity – an appellant who has also raised a Dalmazzi issue at CAAF.

Yesterday CAAF granted review of an issue involving two lay opinions. Notably, the issue was specified by the court:

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943.  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 MILITARY JUDGE ERRED BY ADMITTING THE TESTIMONY OF APPELLANT’S WIFE, MRS. CL, WHO TESTIFIED THAT APPELLANT’S APOLOGY TO HIS STEPSON MEANT THAT APPELLANT WAS “LOOSELY ADMITTING GUILT” TO CRIMINAL CONDUCT, AND BY ALSO ADMITTING THE TESTIMONY OF MS. NM, WHO TESTIFIED THAT APPELLANT “HAD PROBABLY RAPED” HIS WIFE BECAUSE MRS. CL HAD RECENTLY RESEARCHED “SPOUSAL RAPE” ON THE INTERNET.

Briefs will be filed under Rule 25.

I can’t find an opinion on the Army CCA’s website and so assume that the CCA summarily affirmed.

CAAF granted review in three new cases last week:

No. 16-0484/AF. U.S. v. Christopher L. Oliver. CCA 38481. 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 re-drafted issue:

WHETHER WRONGFUL SEXUAL CONTACT WAS A LESSER-INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The CCA did not address (seemingly because the appellant did not raise) the granted issue.

No. 16-0530/AF. U.S. v. Patrick A. Shea. CCA S32225. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN, OVER APPELLANT’S TIMELY OBJECTION, THIS CASE WAS ASSIGNED TO A PANEL THAT DID NOT INCLUDE ALL THREE OF THE JUDGES FROM THE ORIGINAL DECISION.

II. WHETHER A REASONABLE OBSERVER WOULD QUESTION THE IMPARTIALITY OR INDEPENDENCE OF THE COURT OF CRIMINAL APPEALS AFTER WITNESSING THE REMOVAL OF JUDGE HECKER FROM THIS CASE ON REMAND FOLLOWING THE GOVERNMENT’S ALLEGATIONS THAT HER IMPARTIALITY HAS BEEN IMPAIRED BY THE DECISION OF THE JUDGE ADVOCATE GENERAL, WHO IS HIMSELF PART OF THE GOVERNMENT, TO ASSIGN HER TO PERFORM NON-JUDICIAL ADDITIONAL DUTIES WITHIN THE GOVERNMENT.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinon is available here but does not address the granted issues.

No. 16-0611/AF. U.S. v. Richard K. Price, Jr. CCA S32330. 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 said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FORCING APPELLANT TO ADMIT TO MISCONDUCT GREATER THAN WAS NECESSARY FOR A PROVIDENT PLEA.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The CCA analyzed and rejected the granted issue, concluding: “We find no abuse of discretion by the military judge in this case. The military judge was responsible for ensuring Appellant provided a proper factual basis for his plea. In this light, his questions were appropriate in determining whether Appellant’s use and distribution of various controlled substances on “divers” occasions was provident.” Slip op. at 3.

Earlier this year, in the Marine Corps case of EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page), CAAF determined that it lacks jurisdiction to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records. Article 6b(e) gives an alleged victim the right to petition a court of criminal appeals for mandamus to enforce various protections, but CAAF determined that the review ends at the CCA.

Subsequently, in  H.V. v. Commander Kitchen, Military Judge, and Randolph, Real Party in Interest, __ M.J. __, Misc. Docket No. 001-16 (C.G. Ct. Crim. App. Jul. 8, 2016) (discussed here), the Coast Guard CCA expanded Mil. R. Evid. 513 (the psychotherapist-patient privilege) to also include the psychotherapist’s conclusions (diagnoses) and resulting treatments. The Coast Guard court’s decision was issued under Article 6b(e), and I noted CAAF’s limited jurisdiction at the time, writing:

Another interesting twist is CAAF’s limited jurisdiction to review this decision. CAAF just recently determined that it does not have jurisdiction over Article 6b petitions. See EV v. United States & Martinez, __ M.J. __ (C.A.A.F. Jun. 21, 2016) (CAAFlog case page). However, the accused could seek a writ himself challenging the military judge’s application of the CCA’s decision, and that writ could even be sought directly from CAAF. See CAAF R. 4(b). Alternatively, the military judge could apply the CCA’s decision, the accused could be convicted, and CAAF could review the decision in the ordinary course of appeal. Cf. United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (CAAFlog case page) (CAAF declined an interlocutory challenge to the AFCCA’s reversal of a military judge’s suppression ruling, but then reinstated the suppression ruling on appeal after conviction).

The accused, however, didn’t file an original writ. Rather, he filed a writ-appeal with CAAF (petition discussed here).

Last Friday, CAAF ordered briefs on the question of whether it has jurisdiction to review the accused’s appeal:

No. 16-0678/CG. Thomas J. Randolph, Appellant v. HV., Appellee and United States, Respondent. CCA 001-16. On further consideration of the writ-appeal petition from the decision of the United States Coast Guard Court of Criminal Appeals rendered pursuant to Article 6b, Uniform Code of Military Justice, it is ordered that the Appellant and Appellee submit briefs on the following specified issue:

WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION OVER A WRIT-APPEAL PETITION FILED BY AN ACCUSED WHO IS SEEKING REVIEW OF A COURT OF CRIMINAL APPEALS’ DECISION RENDERED PURSUANT TO ARTICLE 6b(e), UCMJ.

It is further ordered that the United States be substituted for the military judge as a party respondent, that the United States submit a brief on Issue II in the writ-appeal petition and on the issue specified in this Order, that the Appellate Government and Appellate Defense Divisions of the Army, Navy-Marine Corps and Air Force are invited to submit amicus curiae briefs on the issue specified in this Order, that all briefs mentioned in this Order be filed on or before September 30, 2016, and that oral argument will be heard on October 11, 2016, as previously scheduled. Appellant, Appellee, and the United States will each be allotted 20 minutes to present oral argument.

In the Air Force case of United States v. Dalmazzi, No. 16-0651/AF (grant discussed here), CAAF is considering whether a judge of the United States Court of Military Commission Review (appointed by the President and confirmed by the Senate) may also serve as an appellate military judge on a court of criminal appeals.

Yesterday CAAF granted review in a trailer case from the Army:

No. 16-0714/AR. U.S. v. Mattie L. Brown. CCA 20140346. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

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

No briefs will be filed under Rule 25.

In United States v. McClour, No. 16-0455/AF (grant discussed here), and United States v. Taylor, No. 16-0482/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that they must (as opposed to the more-common instruction that members should) find the accused guilty if the prosecution has proven the offense beyond a reasonable doubt.

Both McClour and Taylor are Air Force cases.

But the problematic instruction has also been used by military judges in the Naval service, and yesterday CAAF granted review of this issue in a Marine Corps case:

No. 16-0565/MC. U.S. v. Dalton C. Nickens. CCA 201500142. 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 ERRED WHEN HE INSTRUCTED THE MEMBERS, “IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF A CHARGED OFFENSE, YOU MUST FIND HIM GUILTY OF THAT OFFENSE,” WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO, 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

No briefs will be filed under Rule 25.

In United States v. Bartee, No. 16-0391/MC (grant discussed here), CAAF is revisiting the improper exclusion of members on the basis of rank (which is not one of the Article 25 criteria for member selection) in the wake of last term’s decisions in United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015) (CAAFlog case page), and United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) (CAAFlog case page).

Last week CAAF granted review in another case with an almost identical issue to the one granted in Bartee:

No. 16-0497/MC. U.S. v. Reece N. Tso. CCA 201400379. 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 re-drafted issue:

WHETHER, AFTER DISMISSING AN INITIAL COURT-MARTIAL PANEL BECAUSE THE CONVENING AUTHORITY IMPROPERLY EXCLUDED CERTAIN RANKS FROM CONSIDERATION AS COURT MEMBERS, THE MILITARY JUDGE ERRED BY ACCEPTING A PANEL COMPRISED OF THE SAME DETAILED MEMBERS.

No briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The convening authority in Tso was not the same officer (or command) as the convening authority in Bartee.