CAAFlog » October 2019 Term » United States v. Gonzalez

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Wall, No. 19-0143/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

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

CAAF will hear oral argument in two Army cases on Tuesday, January 14, 2020, beginning at 9:30 a.m. Both cases challenge the Army CCA’s reassessment of the sentence when the CCA also remanded to the convening authority with a rehearing authorized for convictions that were reversed.

First CAAF will hear argument in United States v. Wall, No. 19-0143/AR (CAAFlog case page), which presents two issues:

Granted issue: Whether after setting aside the sentence and ordering a remand, a service Court of Criminal Appeals is authorized to reassess the sentence and limit the lawful sentence the convening authority may approve.

Specified issue: Whether the granted issue is ripe for review at this time.

Then CAAF will hear oral argument in United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page), which also presents two issues:

Granted issue: Whether the Army Court abused its discretion by reassessing the sentence after dismissing the most egregious specification, and offering the convening authority the option to approve an excessive sentence for the remaining specification in lieu of a rehearing.

Specified issue: Whether Appellant waived or forfeited his objection to the Army Court’s instructions to the convening authority.

The primary difference between the cases is their procedural posture. In Wall, the convening authority has not yet acted on the CCA’s decision, while in Gonzalez the convening authority has acted (and the CCA affirmed that action).

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CAAF granted review in two cases yesterday.

The first is this Navy case, in which the court ordered that no briefs be filed:

No. 19-0198/NA. U.S. v. Willie C. Jeter. CCA 201700248. 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 granted on the following issues:

I. DID THE CONVENING AUTHORITY VIOLATE EQUAL PROTECTION WHEN HE SHOWED A PATTERN OF CONVENING AT LEAST THREE ALL WHITE MEMBERS’ PANELS FOR GENERAL COURTS-MARTIAL, INCLUDED RACE AND GENDER IDENTIFIERS IN MEMBERS’ QUESTIONNAIRES, REMOVED FIVE MINORITY MEMBERS FROM APPELLANT’S ORIGINAL CONVENING ORDER, AND ULTIMATELY ISSUED A CONVENING ORDER CONSISTING OF ONLY WHITE, MALE MEMBERS FOR APPELLANT’S COURT-MARTIAL, WHERE APPELLANT WAS AN AFRICAN-AMERICAN OFFICER?

II. DID THE DEFENSE SHOW SOME EVIDENCE OF UNLAWFUL COMMAND INFLUENCE IN THE FORM OF COURT PACKING WHEN IT SHOWED THE CONVENING AUTHORITY REMOVED FIVE MINORITY MEMBERS AND REPLACED THEM WITH FIVE WHITE MEN, CONVENED A MEMBERS’ PANEL WITH ALL WHITE MEN IN THIS CASE AND AT LEAST TWO OTHER CASES WITH AFRICAN-AMERICAN ACCUSED, AND INCLUDED RACE AND GENDER IDENTIFIERS ON THE MEMBERS’ QUESTIONNAIRES?

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA’s opinion is available here. Based on CAAF’s order that no briefs be filed, the case looks to be a trailer to United States v. Bess, No. 19-0086/NA (grant discussed here).

The second is this Army case:

No. 19-0297/AR. U.S. v. Adrian Gonzalez. CCA 20160363. 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 assigned issue:

WHETHER THE ARMY COURT ABUSED ITS DISCRETION BY REASSESSING THE SENTENCE AFTER DISMISSING THE MOST EGREGIOUS SPECIFICATION, AND OFFERING THE CONVENING AUTHORITY THE OPTION TO APPROVE AN EXCESSIVE SENTENCE FOR THE REMAINING SPECIFICATION IN LIEU OF A REHEARING.

And the following issue specified by the Court:

WHETHER APPELLANT WAIVED OR FORFEITED HIS OBJECTION TO THE ARMY COURT’S INSTRUCTIONS TO THE CONVENING AUTHORITY.

Briefs will be filed under Rule 25.

The Army CCA’s opinion (prior to remand) is available here, but I can’t find an opinion post-remand. The granted issue raises substantially the same question as is raised in United States v. Wall, No. 19-0143/AR (last noted here).