CAAFlog » CAAF Grants

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.

Last week CAAF granted review – and specifically invited amicus briefs from the appellate divisions – in an Air Force case that questions whether an appellate military judge may sit on both a Court of Criminal Appeals and the United States Court of Military Commission Review:

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. 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 UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT’S CASE.

II. WHETHER JUDGE MARTIN T. MITCHELL’S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

Briefs will be filed under Rule 25.

The Chiefs of the Appellate Defense and Appellate Government Divisions of the United States Army, the United States Coast Guard, and the United States Navy-Marine Corps are invited to file amicus curiae briefs on these issues. These briefs will be filed under Rule 26.

Just two years ago, in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), a unanimous CAAF concluded that the appointment of a civilian Air Force employee to the Air Force Court of Criminal Appeals was invalid. Then, in another unanimous opinion issued last year in United States v. Jones, 74 M.J. 95 (C.A.A.F. Mar. 11, 2015) (CAAFlog case page), CAAF rejected application of the de facto officer doctrine to the appointment.

In United States v. McClour, No. 16-0455/AF (grant discussed here), CAAF is reviewing the propriety of the Air Force instruction to members that commands them 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.

Last week CAAF specified the issue in a trailer case:

No. 16-0482/AF. U.S. v. Blake E. Taylor. CCA 38700. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE 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.

(emphasis added).

Our #5 Military Justice Story of 2013 was the Wilkerson court-martial and its effects. Air Force Lieutenant General Craig Franklin exercised his authority under Article 60(c) to set aside the sexual assault conviction of Air Force Lieutenant Colonel James Wilkerson in 2013, and it was a military justice shot heard round the world. A frenzy of criticism erupted, and Congress ended the year by strictly curbing a convening authority’s previously unfettered ability to reduce the findings or sentence of a court-martial.

Another case involving General Franklin’s exercise of his authority (this time to dismiss a case before trial) resulted in a transfer of the case, defense claims of unlawful command influence, and eventually an acquittal on the merits.

The next chapter in this saga is CAAF’s order from Tuesday granting review:

No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

THE CHIEF OF STAFF OF THE AIR FORCE ADVISED THE CONVENING AUTHORITY THAT, UNLESS HE RETIRED, THE SECRETARY OF THE AIR FORCE WOULD FIRE HIM. WAS THE CONVENING AUTHORITY’S SUBSEQUENT REFERRAL OF CHARGES UNLAWFULLY INFLUENCED BY THE THREAT TO HIS POSITION AND CAREER?

Briefs will be filed under Rule 25.

The convening authority? Lieutenant General Franklin.

Read more »

On Wednesday CAAF granted review of an issue involving member disclosures in an Army case:

No. 16-0555/AR. U.S. v. Jason M. Commisso. CCA 20140205. 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 IN DENYING THE DEFENSE’S POST-TRIAL MOTION FOR A MISTRIAL, THEREBY VIOLATING APPELLANT’S RIGHT TO HAVE HIS CASE DECIDED BY A PANEL OF FAIR AND IMPARTIAL MEMBERS, BECAUSE THREE PANEL MEMBERS FAILED TO DISCLOSE THAT THEY HAD PRIOR KNOWLEDGE OF THE CASE.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here but does not mention the issue granted by CAAF.

Paragraph 2-5-12 of the Military Judge’s Benchbook contains Closing Substantive Instructions of Findings to inform members how to decide whether an accused is guilty. Those instructions include:

“Proof beyond a reasonable doubt” means proof to an evidentiary certainty, although not necessarily to an absolute or mathematical certainty. The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. The rule as to reasonable doubt extends to every element of the offense, although each particular fact advanced by the prosecution which does not amount to an element need not be established beyond a reasonable doubt. However, if on the whole evidence you are satisfied beyond a reasonable doubt of the truth of each and every element, then you should find the accused guilty.

(emphasis added).

Last week CAAF granted review of an Air Force case challenging a modified version of this instruction:

No. 16-0455/AF. U.S. v. Trentlee D. McClour. CCA 38704. 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 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.

Briefs will be filed under Rule 25.

(emphasis added).

The AFCCA’s decision is available here.

Note: This is a corrected post. The earlier version discussed a different Williams decision by the Army CCA. Thanks to reader C for pointing out my error.

Last week CAAF granted review in the following case:

No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. 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 GIVING A MILITARY RULE OF EVIDENCE 413 INSTRUCTION TO THE PANEL BECAUSE NO EVIDENCE HAD BEEN ADMITTED BY THE MILITARY JUDGE FOR 413 PURPOSES.

No briefs will be filed under Rule 25.

Mil. R. Evid. 413 is the propensity in sex cases rule addressed in yesterday’s blockbuster decision in United States v. Hills, __ M.J. __ (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

The Army CCA’s published opinion is available here and I analyzed it in this post. The case involves allegations that the appellant sexually assaulted his ex-wifes, and the prosecution gave notice “of its intent to offer evidence of the offenses against each woman as propensity evidence that appellant committed the charged offenses against the other. That is, the government intended to use evidence that appellant committed each sexual offense against one victim as evidence that appellant committed every other sexual offense against the other victim.” United States v. Williams, __ M.J. __, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Feb. 29, 2016). The defense objected and the military judge deferred ruling on the issue.

Later, after both sides rested, the military judge (a different judge from the one who deferred ruling) elected to give the members a propensity instruction.

The Army CCA held that “appellant forfeited any instructional error with regards to M.R.E. 413 by repeatedly failing to object to the military judge’s instructions.” Slip op. at 6. It then found no error in giving the propensity instruction in Williams, but reversed its own precedent regarding the instructions that must be given in such a case because such instructions were unworkable in a case where the charged offenses are also the propensity evidence.

CAAF’s decision in Hills, however, holds that a military judge abuses his discretion when he allows the prosecution to use charged offenses to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

CAAF granted review and ordered briefing in two new cases last week:

No. 16-0423/AR. U.S. v. Joseph R. Haverty. CCA 20130559. 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 COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20, WHICH PROHIBITS REQUIRING THE CONSUMPTION OF EXCESSIVE AMOUNTS OF ALCOHOL AS AN INITIATION RITE OF PASSAGE.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Haverty is available here. The granted issue (specified by the court) is similar to the issue in United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page).

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. 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 CONDUCTING ITS ARTICLE 66(c), UCMJ, REVIEW BY FINDING AS FACT ALLEGATIONS THAT SUPPORTED CHARGES OF WHICH APPELLANT WAS ACQUITTED TO AFFIRM THE FINDINGS AND SENTENCE.

Briefs will be filed under Rule 25.

The NMCCA’s opinion in Rosario is available here. The case involves a conviction of sexual harassment but acquittals of related sexual contact and assault offenses. Affirming the harassment conviction, the CCA noted that “when the same evidence is offered in support of two separately charged offenses, as the physical encounters were here, ‘an acquittal on one [may] not be pleaded as res judicata of the other.'” Slip op. at 4 (quoting Dunn v. United States, 284 U.S. 390, 393 (1932)) (marks in original).

Article 120(b) and 120(d) prohibit committing a sexual act (120(b)) or a sexual contact (120(d)) upon a person who is:

asleep, unconscious, or otherwise unaware that the sexual [act/contact] is occurring

In United States v. Sager, No. 201400356 (N-M. Ct. Crim. App. Dec. 29, 2015) (link to slip op.), the appellant was convicted of violating Article 120(d) by touching another man’s penis with his hand while the other man was otherwise unaware that the contact was occurring. Specifically, while the appellant was charged with violating the statute in all three possible ways (that the other man was asleep, unconscious, or otherwise unaware when the appellant touched him; an erroneous disjunctive pleading), the members returned a finding of guilty to only a touching when the other man was otherwise unaware. That prompted the appellant to assert on appeal that the specification was unconstitutionally vague because it failed to identify how the other man was otherwise unaware, and that the finding is factually and legally insufficient because the evidence indicated that the other man was either asleep or unconscious (he testified that he awoke from a drunken slumber to the sensation of the appellant touching him).

The Navy-Marine Corps CCA rejected the appellant’s assertions by concluding that:

asleep or unconscious are examples of how an individual may be “otherwise unaware” and are not alternate theories of criminal liability.

Slip op. at 7.

On Tuesday CAAF granted review of two issues that challenge the CCA’s conclusion:

No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356. 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:

I. IN AFFIRMING THE ABUSIVE SEXUAL CONTACT CONVICTION, THE LOWER COURT RELIED ON FACTS OF WHICH THE MEMBERS ACQUITTED APPELLANT. WAS THIS ERROR?

II. ARTICLE 120(d), UCMJ, PROHIBITS SEXUAL CONTACT ON ANOTHER PERSON WHEN THAT PERSON IS “ASLEEP, UNCONSCIOUS, OR OTHERWISE UNAWARE.” DESPITE THESE SPECIFIC STATUTORY TERMS, THE LOWER COURT HELD THAT “ASLEEP” AND “UNCONSCIOUS” DO NOT ESTABLISH THEORIES OF CRIMINAL LIABILITY, BUT ONLY THE PHRASE “OTHERWISE UNAWARE” ESTABLISHES CRIMINAL LIABILITY. DID THE LOWER COURT ERR IN ITS INTERPRETATION OF ARTICLE 120(d), UCMJ?

Briefs will be filed under Rule 25.

Congress provided specific criteria for member selection in Article 25(d)(2):

When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.

Rank is not one of these factors. Last term, 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), CAAF found the improper categorical exclusion of members on the basis of rank to be harmless. But with a grant of review on Monday, CAAF will revisit this issue:

No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. 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 SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here and reveals that:

Prior to trial, the defense objected to the exclusion of junior members under convening order #1b-13, which appointed only officer members O-4 and above, enlisted members E-8 and above, and no warrant officers. This panel was detailed after the staff judge advocate (SJA) solicited only these specific categories of senior nominees from subordinate commanders. The SJA provided the CA draft convening order #1b-13 and the applicable questionnaires for consideration. The CA then picked those members as were suggested to him by the SJA without modification. The military judge agreed with the defense’s objection finding that the panel selection process improperly excluded potential members based on rank.

Subsequently, the CA was provided a draft, amended convening order, #1c-13, containing the same members previously detailed under convening order #1b-13. The CA was also furnished with his entire alpha roster of over 8,000 members with instructions that he could substitute any proposed member for someone senior to the accused meeting the Article 25 criteria. After consideration, the CA detailed the same members stating, “I know these individuals personally and selected them specifically because I am convinced they meet the qualifications for membership.”

Slip op. at 5. The military judge found no impropriety in the second convening order and the CCA affirmed.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Many things aren’t hearsay (such as an out-of-court statement offered to show only its effect on the listener), and there are many exceptions to the hearsay rule that permit admission of a hearsay statement under various situations.

Two interesting grants from CAAF last week involve the hearsay rule.

First, in the Air Force case of United States v. Bowen, CAAF specified an issue involving a statement admitted as an excited utterance:

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. See M.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

Briefs will be filed under Rule 25.

An excited utterance is hearsay that is admissible because it is “relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.” Mil. R. Evid. 803(2). The Air Force CCA’s opinion in Bowen is available here and reveals that law enforcement responded to reports of screaming and discovered Bowen’s wife unconscious in the bathtub, and that she was only partially conscious when she was questioned. The military judge considered the circumstances and concluded that the head nod was admissible as an excited utterance, and the AFCCA affirmed that ruling.

Next, in the Army case of United States v. Swift, CAAF granted review of two issues and specified a third:

No. 16-0407/AR. U.S. v. Justin P. Swift. CCA 20100196. 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 raised by Appellant:

I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.

II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.

And the following issue specified by the Court:

III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. It’s hard to clearly identify the uncharged misconduct at issue, but the CCA focuses on the military judge’s ruling that permitted a teacher to testify about an out-of-court statement that the child made to her years earlier. The military judge introduced the statement as “victim’s outcry evidence,” and the CCA rightly finds that this ruling was error because there is no such exception to the hearsay rule (though there used to be; see ¶ 142(c), MCM (1969) (available here)). However, the CCA concludes that the statement was admissible for a non-hearsay purpose:

[W]e conclude, first, that the military judge inappropriately applied the outdated “victim outcry” principle. Nonetheless, we agree that a non-hearsay basis exists to allow the admission of the statement – namely, effect-on-the-listener. KS’s out-of-court statement is not barred by Mil. R. Evid. 802 because it was not offered for the truth of the matter asserted. Despite the military judge’s ruling on the out-of-date notion of “outcry doctrine,” the trial counsel specifically offered the victim’s statement as “effect on the listener” and as a “prior consistent statement.” The statement was properly offered to show why Ms. A contacted CPS and how the investigation ensued.

United States v. Swift, No. 20100196, slip op. at 4-5 (A. Ct. Crim. App. Jan. 21, 2016) (emphasis). This conclusion is deeply problematic for at least three reasons. First, there’s no indication that the members were instructed about any limitation on the use of the statement the judge considered the statement for only a limited purpose, and the CCA can’t restrict its use post hoc. Second, the effect on the listener (that CPS was contacted) was not an issue at trial, and so the statement had no probative value (but a high prejudicial effect). Third, there’s no indication of any foundation for admission of a prior consistent statement (and a footnote acknowledges this).

Despite its butchery of the hearsay rule, the CCA concluded that the admission of the statement was harmless in part based on the appellant’s pretrial admissions. CAAF’s grant of review, however, directly challenges that conclusion.

On April 29 the Air Force JAG certified Fetrow:

No. 16-0500/AF. U.S. v. Justin L. Fetrow. CCA 38631. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT IN ORDER FOR CONDUCT TO CONSTITUTE CHILD MOLESTATION UNDER MIL. R. EVID. 414, THE CONDUCT MUST HAVE BEEN AN OFFENSE UNDER THE UCMJ, OR FEDERAL OR STATE LAW, AT THE TIME IT WAS COMMITTED AND, IF OFFERED UNDER MIL. R. EVID. 414(d)(2)(A)-(C), THAT THE CONDUCT MUST MEET THE DEFINITION OF AN OFFENSE LISTED UNDER THE VERSION OF THE APPLICABLE ENUMERATED STATUTE IN EFFECT ON THE DAY OF TRIAL.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT THE ERRONEOUS ADMISSION OF TWO ACTS OF INDECENT LIBERTIES COMMITTED BY APPELLEE ON HIS CHILD AGE DAUGHTER HAD A SUBSTANTIAL INFLUENCE ON THE MEMBERS’ VERDICT REQUIRING SET ASIDE OF THE FINDINGS AND SENTENCE.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 31st day of May, 2016.

I discussed the Air Force CCA’s opinion in Fetrow here.

Additionally, on May 3 CAAF granted review in three cases:

No. 16-0267/AR. U.S. v. Nathan C. Wilson. CCA 20140135. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR APPROPRIATE RELIEF UNDER RULE FOR COURT-MARTIAL 917 WHERE THE MILITARY JUDGE IMPROPERLY APPLIED ARTICLE 130, UCMJ, HOUSEBREAKING, TO A MOTOR POOL.

Briefs will be filed under Rule 25.

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

No. 16-0296/AF. U.S. v. Joseph R. Dockery III. CCA 38624. 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 MILITARY JUDGE ERRED BY GRANTING, OVER DEFENSE OBJECTION, THE GOVERNMENT’S CHALLENGE FOR CAUSE AGAINST MSGT LW.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE DID NOT ERR, AND BY CONCLUDING THAT EVEN IF THE MILITARY JUDGE DID ERR THERE WAS NO PREJUDICE, CONTRARY TO THIS COURT’S PRECEDENT IN UNITED STATES v. PETERS, 74 M.J. 31 (C.A.A.F. 2015), UNITED STATES v. WOODS, 74 M.J. 238 (C.A.A.F. 2015),UNITED STATES V. NASH, 71 M.J. 83 (C.A.A.F. 2012), UNITED STATES v. CLAY, 64 M.J. 274 (C.A.A.F. 2007), AND UNITED STATES v. DALE, 42 M.J. 384 (C.A.A.F. 1995).

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion in Dockery is available here.

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by appellant:

WHETHER THE MILITARY JUDGE UNCONSTITUTIONALLY APPLIED MRE 413 BY DETERMINING THAT A FACTFINDER COULD FIND BY A PREPONDERANCE OF THE EVIDENCE THAT APPELLANT COMMITTED EACH OF THE PRIOR ACTS ALLEGED IN THE THREE SPECIFICATIONS.

Briefs will be filed under Rule 25.

No opinion is available on the Army CCA’s website.

The grants in Wilson and Tafoya are the fourth and fifth cases with Grostefon issues granted this term. The first three are United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), United States v. Nieto, No. 16-0301/AR (discussed here), and United States v. Sewell, No. 16-0360/AR (discussed here).

Additionally, CAAF summary reversed the decision of the Army CCA and remanded for additional proceedings in a case involving a claim of ineffective assistance of counsel also asserted personally by the appellant:

No. 16-0433/AR. U.S. v. James E. Hopkins. CCA 20140913. 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 personally asserted issue:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

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 of the granted issue. The Court of Criminal Appeals will obtain affidavits from civilian and military trial defense counsel that respond to Appellant’s allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 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 factfinding 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.

Hopkins is the sixth grant of the term of a Grostefon issue. All six are army cases.

Yesterday CAAF granted review in a Navy case:

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. 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:

PROSECUTORS MUST ACT WITHIN THE BOUNDS OF PROPRIETY. HERE, IN FRONT OF MEMBERS, THE PROSECUTOR EXPRESSED HIS OPINION OF APPELLANT INCLUDING, “I THINK HE’S AN IDIOT,” OPINED ON DEFENSE-FRIENDLY EVIDENCE, CHARACTERIZED APPELLANT’S STATEMENTS AS “RIDICULOUS,” VOUCHED FOR GOVERNMENT-FRIENDLY EVIDENCE, DIAGNOSED APPELLANT AS SCHIZOPHRENIC, ASKED MEMBERS TO DISREGARD DEFENSE ARGUMENTS, AND TOLD MEMBERS THAT APPELLANT “SLEEPS IN A BED OF LIES.” WAS THIS PLAIN ERROR?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. The CCA found error but not plain error that some of the comments were not improper and others were not plain error (the defense did not make a timely objection).

My notes indicate that this is the first prosecutorial misconduct case of the term. Government bloopers were our #2 Military Justice Story of 2015.

Update: Links to the briefs are at the end of this post.

In this post I noted CAAF’s docketing of a writ-appeal petition by an apparent alleged victim.

Yesterday CAAF granted review:

No. 16-0398/MC. EV, Appellant v. E.H Robinson, Military Judge, Appellee, and David A. Martinez, Real Party in Interest. Upon consideration of the writ-appeal petition of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae, and the motion for a stay of trial proceedings, it is ordered:

That the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae is granted;

That oral argument will be held on May 11, 2016, following the hearing in Howell v. United States, on the following three assigned issues:

I. WHETHER THE NMCCA ERRED BY ERRONEOUSLY DENYING EV’S PETITION FOR A WRIT OF MANDAMUS DESPITE EV’S CLEAR AND INDISPUTABLE RIGHT TO THE ISSUANCE OF A WRIT.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ERRONEOUSLY RULING THE DEFENSE SATISFIED EACH PRONG OF MIL. R. EVID. 513(e)(3) AND BY RULING THAT MIL. R. EVID. 513(d)(5) APPLIED.

III. WHETHER THE MILITARY JUDGE VIOLATED EV’S ARTICLE 6b RIGHTS BY ERRONEOUSLY APPLYING IMPERMISSIBLE EXCEPTIONS AND DENYING EV A RIGHT TO RECEIVE NOTICE AND TO BE HEARD.

That oral argument will also be held on the following specified issue:

IV. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER DECISIONS OF THE COURTS OF CRIMINAL APPEALS RENDERED PURSUANT TO ARTICLE 6b, UCMJ.

That Appellant will file a brief on the specified issue within 5 days of the date of this Order. Appellee and the Real Party in Interest will file answers within 5 days of the filing of Appellant’s brief. Appellant may file a reply within 2 days of the filing of the said answers;

That the motion for a stay of trial proceedings, incorporated in the writ-appeal petition, is denied because Rule 30(d), Rules of Practice and Procedure, prohibits a motion from being incorporated in any other pleading.

The specified issue immediately bring to mind Judge Ryan’s dissent in LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013) (CAAFlog case page).

Case Links:
Writ-appeal (Appellant’s) petition
Appellee’s (Government) brief
Real Part in Interest (accused’s) brief
Appellant’s reply brief
Brief of Amicus Curiae (Protect our Defenders)

Yesterday CAAF granted review of an issue raise by the appellant personally:

No. 16-0360/AR. U.S. v. Todd D. Sewell. CCA 20130460. Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals is granted on the following issue personally asserted by the Appellant:

WHETHER THE TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER ARGUMENT ON THE FINDINGS.

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

This is the third Grostefon issue granted this term; the first was in United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), and the second was in United States v. Nieto, No. 16-0301/AR (discussed here). All three are Army cases.