Friday’s Daily Journal, here (Sep. 23, 2011), has four more Fosler-trailer grants/summary dispositions.   I don’t have the trailer park count on this one.  But I think Fosler may have been one of the costliest storms to hit this corner of the world in a while.

On Thursday, CAAF granted review of this issue and ordered that no briefs would be filed:

IN APPELLANT’S COURT-MARTIAL, THE MILITARY JUDGE ADMITTED A LABORATORY REPORT WHICH INCLUDED NOTATIONS FROM LAB TECHNICIANS AND A CERTIFICATION DOCUMENT STATING IN PLAIN TERMS THAT APPELLANT TESTED POSITIVE FOR AN ILLEGAL SUBSTANCE.  THE REPORT WAS DESIGNED TO BE “LEGALLY DEFENSIBLE” AT COURT-MARTIAL.  DID THE ADMISSION OF THIS REPORT VIOLATE APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM ABSENT TESTIMONY FROM THE TECHNICIANS OR THE CERTIFYING OFFICIAL WHO CREATED THE DOCUMENTS IN THE REPORT?

United States v. Sanders, __ M.J. __, No. 11-0563/MC (C.A.A.F. Sept. 15, 2011) (order granting review).

CAAF today granted review in a case filed by friend o’CAAFlog Bill Cassara:

WHETHER THE GENERAL VERDICT OF GUILTY RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED, IN THAT AT LEAST ONE OF THE SIX IMAGES PRESENTED TO THE MEMBERS WAS NOT CHILD PORNOGRAPHY.

United States v. Barberi, __ M.J. __, No. 11-0462/AR (C.A.A.F. Sept. 16, 2011).  ACCA’s unpublished decision in the case is available here.  United States v. Barberi, No. ARMY 20080636 (A. Ct. Crim. App. Feb. 22, 2011) (per curiam).

On Wednesday, CAAF granted review of another Fosler trailer in a Navy case.  United States v. Kalejaiye, __ M.J. __, No. 11-0614/NA (C.A.A.F. Sept. 14, 2011).

Tuesday was a big day for military justice trailer parks.  CAAF granted on this issue from a Navy case:

WHETHER ARTICLE 120(c) IS UNCONSTITUTIONAL AS APPLIED WHERE: THE MILITARY JUDGE (1) REQUIRED APPELLANT TO PROVE THE AFFIRMATIVE DEFENSES OF CONSENT AND MISTAKE OF FACT AS TO CONSENT BY A PREPONDERANCE OF THE EVIDENCE; (2) DETERMINED THAT THE DEFENSES HAD BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE; AND THEN (3) FAILED TO DISMISS THE CHARGES SUA SPONTE AS REQUIRED BY RULE FOR COURTS-MARTIAL 917.

United States v. Esochea-Sanchez, __ M.J. __, No. 11-0559/NA (C.A.A.F. Sept. 13.) (order granting review).  CAAF ordered that no briefs would be filed.

Plus, CAAF granted review of three more Fosler trailers:   United States v. Fairley, __ M.J. __, No. 11-0595/NA (C.A.A.F. Sept. 13, 2011); United States v. Dietz, __ M.J. __, No. 11-0611/AR (C.A.A.F. Sept. 13, 2011); and United States v. Moses, __ M.J. __, No. 11-0626/AR (C.A.A.F. Sept. 13, 2011).

CAAF today granted review of another Fosler trailer.  United States v. Drews, __ M.J. __, No. 11-0642/AF (C.A.A.F. Sept. 14, 2011) (order granting review).  CAAF ordered that no briefs will be filed.

Former Senior Airman Clark is now the owner of Lot 55 in the Fosler Trailer Park.  United States v. Clark, __ M.J. __, No. 11-0637/AF (C.A.A.F. Aug. 31, 2011) (order granting review).

CAAF today specified another Fosler trailer:  United States v. Garcia, __ M.J. __, No. 11-0558/AR (C.A.A.F. Aug. 26, 2011).

CAAF has granted review of two more Fosler trailers with a slightly tweaked issue statement that now references the Fosler opinion:

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

United States v. Tiller, __ M.J. __, No. 11-0476/AR (C.A.A.F. Aug. 22, 2011); United States v. Swensen, __ M.J. __, No. 11-0617/AF (C.A.A.F. Aug. 22, 2011).

United States v. Ruscitto, __ M.J. __, No. 11-0565/NA (C.A.A.F. Aug. 18, 2011) (order granting review).

CAAF today granted review of the following issue and ordered briefs:  “Whether Appellant’s guilty plea to Charge II and its specification is improvident because Appellant did not falsely make or alter a signature or writing.”  United States v. Weeks, _ M.J. __, No. 11-0526/AF (C.A.A.F. Aug. 18, 2011).  AFCCA’s unpublished decision in the case is available here.  United States v. Weeks, No. ACM 37535 (A.F. Ct. Crim. App. Mar. 30, 2011).

CAAF granted review of the 50th Fosler trailer case today:  United States v. Melchor, __ M.J. __, No. 11-0610/AR (C.A.A.F. Aug. 16, 2011) (order granting review).

I have very limited computer access this week; here’s a quick note about a newly granted CAAF case featuring a Jones issue and a Fosler issue:

I.   APPELLANT WAS CHARGED WITH COMMUNICATING A THREAT UNDER ARTICLE 134, BUT WAS CONVICTED PURSUANT TO HIS PLEA OF USING PROVOKING SPEECH IN VIOLATION OF ARTICLE 117.  IN LIGHT OF UNITED STATES v. JONES, 68 M.J. 465 (2010) CAN THE CONVICTION BE SUSTAINED?

II.  WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

United States v. Nealy, __ M.J. __, No. 11-0615/AR (C.A.A.F. Aug. 15, 2011).

CAAF yesterday granted review of two post-Fosler Fosler trailers.  United States v. Sobenes, __ M.J. __, No. 11-0566/MC (C.A.A.F. Aug. 11, 2011) (order granting review); United States v. Moore, __ M.J. __, No. 11-0601/AR (C.A.A.F. Aug. 11, 2011) (order granting review).

CAAF’s Medina decision, 69 M.J> 462 (C.A.A.F. 2011),  prevented Prather from having any widespread effect.  But now CAAF has granted review of a a case with Prather cited in two of the granted issues.  Here are the granted issues in United States v. Stewart:

 I.   UNDER UNITED STATES v. PRATHER, IS IT LEGALLY POSSIBLE FOR THE PROSECUTION TO DISPROVE AN AFFIRMATIVE DEFENSE BEYOND A REASONABLE DOUBT ONCE THE MILITARY JUDGE HAS DETERMINED THAT THE DEFENSE HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE AND, IF NOT, IS THE MILITARY JUDGE REQUIRED TO ENTER A FINDING OF NOT GUILTY IN SUCH A CASE UNDER RCM 917?

II.    WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING THE EVIDENCE FACTUALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUSTAIN APPELLANT’S CONVICTION UNDER SPECIFICATION 2 BECAUSE IN DOING SO IT (1) VIOLATED THE PRATHER LEGAL-IMPOSSIBILITY PRINCIPLE AND (2) IMPERMISSIBLY FOUND AS FACTS ALLEGATIONS THAT HE WAS FOUND NOT GUILTY OF IN SPECIFICATION 1.

III.   WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY REQUIRING THE DEFENSE TO PRESENT EVIDENCE ON THE DEFENSE OF CONSENT AT AN ARTICLE 39(a) SESSION PRIOR TO TRIAL.

United States v. Stewart, __ M.J. __, No.  1-0440/MC (C.A.A.F. Aug. 10, 2011) (order granting review).  NMCCA’s unpublished decision in the case is available here.  United States v. Stewart, No. NMCCA 201000021 (N-M. Ct. Crim. App. Jan. 31, 2011).