Yesterday the Supremes announced the denial of cert in Fry v. United States, No. 11-1395.
The cert petition in Fry v. United States, No. 11-1395, has been distributed for SCOTUS’s 9 November conference. That means we’ll probably know whether cert was granted or denied on Tuesday, 13 November.
A reply to the SG’s opp was filed on 23 October. Here’s a link to the Fry reply (hey, that rhymes!).
Here’s a link to the opposition to the cert petition that the Solicitor General filed in Fry v. United States, No. 11-1395.
Here’s a link to the cert petition in Fry v. United States, No. 11-1395, which seeks review of CAAF’s decision in United States v. Fry, 70 M.J. 465 (C.A.A.F. 2012).
Here’s the QP:
Petitioner is a developmentally disabled adult with no capacity to contract following a California court’s restriction of that right and placement of him under the limited conservatorship of his grandmother. Following that judicial determination, a military recruiter arrived at Petitioner’s group home for mentally disabled adults and enlisted him in the Marine Corps. The question presented is:
Was Petitioner’s enlistment void ab inito under 10 U.S.C. § 802 and this Court’s decision in In Re Grimley, 137 U.S. 147 (1890)?
Petitioner’s counsel is CAAFlog contributor LCDR Brian Mizer.
The SG waived response to the cert petition. The cert petition hasn’t yet been distributed for conference.
CAAF’s decision in United States v. Fry, No. 11-0396/MC, 70 M.J. 465 (C.A.A.F. Feb. 21, 2012) (CAAFlog case page) (link to slip op.), deals with the validity of an enlistment contract where the enlistee is subject to a state-court ordered limited conservatorship.
In a 3-2 decision, Judge Stucky, joined by Judge Ryan and Senior Judge Cox, rejects the appellant’s claim that California law regarding his capacity to contract is controlling, and the court adopts the position articulated by the government at oral argument that the constructive enlistment provisions of Article 2(c) apply to this case.
The opinion decides that “the only seriously contested issue here is whether Appellant was mentally competent, within the meaning of the statute.” Slip op. at 9. The court then reviews the basic question of jurisdiction de novo, but reviews the trial military judge’s determination that the Appellant was mentally competent as a finding of fact under the clearly erroneous standard. This review begins with the standard set forth in 10 U.S.C. § 504, proceeds though consideration of the evidence presented at the trial phase, and ends with this discussion:
Admittedly, the military judge may have overstated matters when he claimed that “all of the evidence” pointed in one direction. But when reviewed as a whole, the military judge’s ruling indicates that he considered contrary evidence and ultimately found in the face of conflicting views that the evidence better supported a finding that Appellant was mentally competent and acted voluntarily. The military judge’s findings that Appellant met the requirements for jurisdiction under Article 2(c) are fairly supported by the record and, thus, are not clearly erroneous.
Slip op. at 17.
In a dissenting opinion that illustrates the importance (especially for the trial counsel) of paying close attention to a trial military judge’s findings of fact and conclusions of law (and perhaps submitting proposed language), Chief Judge Baker, joined by Judge Erdmann, writes that the trial judge erred when he concluded that “all of the evidence” supports competency. The dissent also admonishes the trial judge for failing to “define the critical concept at issue in this case: What it means to ‘voluntarily enlist.’” Diss. op. at 2. These issues cause the Chief Judge to conclude that:
[W]e cannot know if the military judge reached the right decision regarding jurisdiction, because he did not reach it the right way — by stating the standard he was applying and then analyzing and weighing all the evidence before the court, including and in particular, the testimony and declaration of Appellant’s long-term treating psychologist in light of that standard.
Diss. op at 16.
• N-MCCA Opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog Post: Argument preview
• Oral argument audio
• Blog Post: Argument recap
• CAAF opinion
• Blog Post: Opinion analysis
CAAF has decided United States v. Fry.
Stucky writes for the court and for Ryan and Cox, and Baker writes a dissent for himself and Erdmann.
We granted review to determine whether jurisdiction existed pursuant to Article 2, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 802 (2006), to try Appellant in a court-martial, despite an order from a California court that established a limited conservatorship over Appellant. We hold that jurisdiction existed pursuant to Article 2(c).
CAAF heard oral argument in United States v. Fry, No. 11-5003/NA, on 3 November at Scott Air Force Base. The case deals with the validity of an enlistment contract where the enlistee is subject to a state-court ordered limited conservatorship.
On Thursday 3 November CAAF will hear oral argument in United States v. Fry, No. 11-0396/MC. The issue presented is:
I. Appellant purportedly enlisted in the Marine Corps after a judicial determination of his incapacity to contract, which remains in effect. Was his enlistment void ab initio?
The appellant was convicted, pursuant to his pleas in accordance with a pre-trial agreement,of fraudulent enlistment, unauthorized absence, and possessing child pornography in violation of Articles 83, 86, and 134, UCMJ. He was sentenced to confinement for four years, total forfeitures, and a bad-conduct discharge. The N-MCCA affirmed the findings and sentence in an unpublished opinion, ruling that:
Today CAAF granted review of an exceptionally interesting personal jurisdiction issue: “APPELLANT PURPORTEDLY ENLISTED IN THE MARINE CORPS AFTER A JUDICIAL DETERMINATION OF HIS INCAPACITY TO CONTRACT, WHICH REMAINS IN EFFECT. WAS HIS ENLISTMENT VOID AB INITIO?” United States v. Fry, __ M.J. __, No. 11-0396/MC (C.A.A.F. May 26, 2011). NMCCA’s unpublished opinion is available here. United States v. Fry, No. NMCCA 201000179 (N-M. Ct. Crim. App. Jan. 27, 2011).
CAAF also expanded the Fosler Trailer Park today, specifying Fosler issues in two more cases. United States v. Arnold, __ M.J. __, No. 11-0481/AF (C.A.A.F. May 26, 2011); United States v. Geyer, __ M.J. __, No. 11-0446/MC (C.A.A.F. May 26, 2011).