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).

The Fosler trailer park continues to expand.  CAAF today granted review in four more Fosler trailer cases:  United States v. Olmos, No. 11-0575/NA; United States v. Robins, No. 11-0516/AR; United States v. Knowland, No. 11-0474/AR; and United States v. Renfroe, No. 11-0607/AF.

Yesterday CAAF granted review of the 42nd Fosler trailer:  United States v. McNaughton, No. 11-0400/AR.

Today’s daily journal update included three more Fosler trailer grants. United States v. Morales, __ M.J. __, No. 11-0564/MC (C.A.A.F. July 26, 2011) (order granting review); United States v. Robinson, __ M.J. __, No. 11-0580/AR (C.A.A.F. July 26, 2011) (order granting review); United States v. Darrow, __ M.J. __, No. 11-0599/AR (C.A.A.F. July 26, 2011) (order granting review).

On Thursday, CAAF granted review of Fosler issues in three caess in which it had already granted review of other issues:  United States v. Stanley, No. 11-0143/AR; United States v. Schumacher, No. 11-0257/MC, and United States v. Morrissette, No. 11-0282/AR.  By my count, that raises the number of cases with granted Fosler trailer issues to 38, not including Fosler itself.

CAAF granted review of the following issue today:

WHETHER SPECIFICATION 5 OF CHARGE I ALLEGING AN INDECENT ACT UNDER ARTICLE 120(k), UCMJ, FAILED TO STATE AN OFFENSE WHERE THE INDECENT ACT ALLEGED WAS APPELLANT ORALLY REQUESTING DURING A SKYPE INTERNET CONVERSATION THAT A CHILD UNDER THE AGE OF 16 YEARS EXPOSE HER BREASTS SO THAT HE COULD VIEW THEM UTILIZING THE WEB CAMERA.

United States v. King, __ M.J. __, No. 11-0583/NA (C.A.A.F. July 21, 2011) (order granting review).  NMCCA’s unpublished opinion in the case is available here.

Appellate defense types will be interested to learn that the issue was raised under Grostefon.

CAAF granted review of two cases today.  One (mine) was a pure Fosler trailer grant.  United States v. Long, __ M.J. __, No. 10-0265/AF (C.A.A.F. July 19, 2011) (order granting review).  The other included the obligatory Fosler grant, but also included this issue, which CAAF ordered counsel to brief:  “Whether Appellant’s guilty plea to fraudulent enlistment was provident.”  United States v. Watson, __ M.J. __, No. 11-0523/MC (C.A.A.F. July 19, 2011) (order granting review).  NMCCA’s unpublished decision in the case is available here.

Friday’s Fosler grant du jour went to the Army for a specified Fosler issue in United States v. Rice, No. 11-0496/AR.  Add another trailer to the park.

CAAF granted review of an Army case today.  United States v. Wincklemann, __ M.J. __, No. 11-0280/AR (C.A.A.F. July 7, 2011).  Of course the grant included the obligatory Fosler trailer.  But CAAF also granted review of two non-Fosler issues:

I. WHETHER THE LOWER COURT ERRED IN AFFIRMING THE FINDING OF GUILTY AS TO SPECIFICATION 3 OF CHARGE III WHEN IT FOUND THAT AN ONLINE CHAT CONTAINING THE LINE “U FREE TONIGHT” WAS SUFFICIENT TO PROVE ATTEMPTED ENTICEMENT.

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING FORFEITURE OF ALL PAY AND ALLOWANCES WHEN THE CONVENING AUTHORITY DID NOT APPROVE ANY FORFEITURE.

ACCA’s unpublished decision in the case, featuring a separate concurring in part/dissenting in part opinion by Judge Ham the Great as well as a concurring in the result opinion by Judge Gifford, is available here.  United States v. Winckelmann, No. ARMY 20070243 (A. Ct. Crim. APp. Nov. 30, 2010).

The Fosler Trailer Park has expanded at an impressive rate.  But now a competitor has popped up — the Blazier Trailer Park.  It’s still small by comparison, but its growth rate could increase.

CAAF granted review of these two issues yesterday and ordered no briefs:

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, IN APPLYING THE CONSTITUTIONAL HARMLESSNESS TEST INCORRECTLY, AND IN ASSERTING THAT UNITED STATES v. MAGYARI CONTROLS WHEN IT HELD THAT: (1) DRUG LABORATORY DOCUMENTS ARE NON-TESTIMONIAL IN NATURE; (2) DRUG LAB REPORTS ARE BUSINESS RECORDS THAT FALL UNDER THE HEARSAY EXCEPTION, AND (3) THERE WAS NOTHING TO SUGGEST THAT THE LAB REPORT WAS GENERATED FOR COURT-MARTIAL USE.

II. WHETHER IN LIGHT OF THE UNITED STATES SUPREME COURT’S RULING IN MELENDEZ-DIAZ, THE ADMISSION OF REPORTS GENERATED BY ABSENT, UNTESTED LAB TECHNICIANS IN VIOLATION OF APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AMOUNTED TO EITHER INEFFECTIVE ASSISTANCE ON THE PART OF THE TRIAL DEFENSE COUNSEL OR PLAIN ERROR ON THE PART OF THE JUDGE.

United States v. Horton, __ M.J. __, No. 11-0497/MC (C.A.A.F. June 30, 2011) (order granting review).  NMCCA’s unpublished per curiam opinion in the case is available here.

Today’s Fosler grant du jour goes to JAJA.  United States v. Roth, __ M.J. __, No. 11-0529/AF (C.A.A.F. June 30, 2011) (order granting review).

Wednesday’s Fosler grant du jour goes to Code 45.  United States v. Autry, __ M.J. __, No. 11-0514/NA (C.A.A.F. June 29, 2011) (order granting review).

Today’s Fosler grant du jour goes to Michael T. Nerad.  United States v. Nerad, __ M.J. __, No. 11-0494/AF (C.A.A.F. June 27, 2011) (order granting review). [Disclosure:  I'm an appellate defense counsel in the case.]