CAAFlog » October 2018 Term » United States v. Rodriguez

Audio of today’s oral argument at CAAF is available on CAAF’s website at the following links:

United States v. Rodriguez, No.18-0350/CG (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.

Last Thursday CAAF granted review in two cases:

No. 18-0350/CG. U.S. v. Michael R. Rodriguez. CCA 1450. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is granted on the following 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.

Briefs will be filed under Rule 25.

The Coast Guard CCA’s decision is available here. The case involves a conviction for sexual abuse of a child based upon Rodriguez kissing a child’s feet with an intent to arouse or gratify his own sexual desire. To prove Rodriguez’s intent, the military judge allowed the prosecution to admit evidence of Rodriguez’ foot fetish. The CCA affirmed.

No. 18-0362/AR. U.S. v. Nicholas L. Frost. CCA 20160171. 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 THE MILITARY JUDGE ERRED IN ADMITTING HEARSAY STATEMENTS AS PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) WHERE THE DEFENSE THEORY POSITED THE IMPROPER INFLUENCE OR MOTIVE PRECEDED THE ALLEGEDLY CONSISTENT STATEMENTS.

Briefs will be filed under Rule 25.

The Army CCA’s opinion is available here. The CCA rejected the granted issue in a footnote, concluding: “Miss DF’s initial statement to her mother and SC in August 2013 was properly admitted by the military judge. A prior consistent statement that precedes an allegation of improper influence is not hearsay. Mil. R. Evid. 801(d)(1)(B).” Slip op. at 10 n.6.