CAAFlog » October 2018 Term » United States v. Gonzales

Audio of yesterday’s oral arguments at CAAF is available on CAAF’s website at the following links:

United States v. Gonzales, No. 18-0347/AR (CAAFlog case page): Oral argument audio (wma mp3)

United States v. Haynes, No. 18-0359/AR (CAAFlog case page): Oral argument audio (wma mp3)

The audio is also available on our oral argument audio podcast.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: CAAF will hear oral argument in three cases this week:

Tuesday, April 23, 2019, at 9:30 a.m.:

United States v. Gonzales, No. 18-0347/AR (CAAFlog case page)

Issue: Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Followed by:

United States v. Haynes, No. 18-0359/AR (CAAFlog case page)

Issues:
I. Whether an appellant is authorized to request Pierce credit for the first time at a Court of Criminal Appeals.

II. If the Army Court of Criminal Appeals erred in holding that the failure to request Pierce credit below constituted waiver, was its actual review of this issue under its article 66(c), UCMJ authority still sufficient?

Case Links:
ACCA opinion (77 M.J. 753)
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

Wednesday, April 24, 2019, at 9:30 a.m.:

United States v. Rodriguez, No.18-0350/CG (CAAFlog case page)

Issue: Whether United States v. Orben, which established what the government must show to prove intent for indecent liberties under Article 134 (the precursor to Article 120b), applies to the intent element of Article 120b(c), sexual abuse of a child.

Case Links:
CGCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 30, 2019.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on May 2, 2019.

Yesterday CAAF granted review in this Army case:

No. 18-0347/AR. Michael J. Gonzales. CCA 20130849. 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 granted on the following issue:

WHETHER AGGRAVATED SEXUAL CONTACT OF A CHILD IS A LESSER INCLUDED OFFENSE OF RAPE OF A CHILD.

Briefs will be filed under Rule 25.

The only opinion available on the Army CCA’s website is this one from 2017, in which the CCA set aside the findings and authorized a rehearing because of a Hills error. That opinion addressed convictions for acts alleged to have occurred in 2010 and 2011. At that time Article 120(b) defined the offense of rape of a child as:

(b) Rape of a Child.-Any person subject to this chapter who-

(1) engages in a sexual act with a child who has not attained the age of 12 years; or

(2) engages in a sexual act under the circumstances described in subsection (a) with a child who has attained the age of 12 years;

is guilty of rape of a child and shall be punished as a court-martial may direct.

Additionally, Article 120(g) defined the offense of aggravated sexual contact with a child as:

(g) Aggravated Sexual Contact With a Child.-Any person subject to this chapter who engages in or causes sexual contact with or by another person, if to do so would violate subsection (b) (rape of a child) had the sexual contact been a sexual act, is guilty of aggravated sexual contact with a child and shall be punished as a court-martial may direct.

Sexual act and sexual contact were defined in Article 120(t) as:

(1) Sexual act.-The term “sexual act” means-

(A) contact between the penis and the vulva, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or

(B) the penetration, however slight, of the genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.

(2) Sexual contact.-The term “sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of another person, or intentionally causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person or to arouse or gratify the sexual desire of any person.