CAAFlog » September 2014 Term » United States v. Arness

Significant military justice event this week: The Judicial Proceedings Panel will hold a public meeting on Friday, January 22, 2016, beginning st 9 a.m., at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

This week at SCOTUS: The Court denied the cert petition in Arness.

A request for an extension of time to file a cert petition was filed in Akbar v. United States. In United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015) (CAAFlog case page), CAAF narrowly affirmed Sergeant Akbar’s death sentence for his attack on his fellow soldiers in Kuwait in 2003. Akbar is one of only six military death row inmates: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral argument date at CAAF is February 23, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, January 21, 2016, at 10 a.m.:

United States v. Crews, No. 20130766

Issues:
I. Whether the military judge erred in instructing the panel that indecent exposure was a lesser included offense to indecent act.
II. Whether the evidence is factually sufficient to sustain the finding of guilty on the specification of Charge I (sexual abuse of a child).
III. Were appellant’s trial defense counsel ineffective by: 1) failing to object to Mrs. KC’s testimony repeating her daughter’s out-of-court statement that appellant had inappropriately touched her (see R. at 148); and 2) during the cross examination of DH, eliciting from DH that he made prior statements that appellant had touched KG, without requesting a limiting instruction from the military judge that such statements could not be considered for their truth?

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week: United States v. Peterman, No. 38705, at 2 p.m. on Friday January 22, 2016. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The NMCCA’s website shows no scheduled oral arguments.

CAAF decided the Air Force case of United States v. Arness, 74 M.J. 441, No. 14-8014/AF (CAAFlog case page) (link to slip op.), on Wednesday, August 19, 2015. Holding that the Air Force CCA did not have jurisdiction to consider the appellant’s case under Article 69, CAAF dismisses the writ-appeal of the CCA’s denial of the appellant’s petition for extraordinary relief.

Just Stucky writes for the court, joined by all but Judge Baker who writes separately but concurs in the result.

The appellant is an Air Force Lieutenant Colonel who was convicted of various offenses at a general court-martial and sentenced to confinement for 11 months and a reprimand. That sentence is below the jurisdictional threshold for automatic review by the Air Force CCA under Article 66(b), and so instead the court-martial was reviewed by the Judge Advocate General (JAG) of the Air Force pursuant to Article 69. Under that provision, the JAG reviews any general court-martial that does not trigger Article 66 jurisdiction, and the JAG can take corrective action or send the case to the CCA for further review.

In Arness the JAG found no error and affirmed the findings and sentence, and then the JAG denied the appellant’s request for reconsideration. The then appellant filed a writ petition with the AFCCA, asserting 13 errors and seeking extraordinary relief. The CCA found that it had jurisdiction to consider the petition, but denied relief. The appellant (appearing pro se) then sought CAAF review of the CCA’s denial of relief, but CAAF specified a different issue for its consideration:

Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

In yesterday’s decision CAAF answers this question with a resounding no. “As the Judge Advocate General did not refer Appellant’s case to the CCA — a statutory prerequisite for its review — the CCA was without jurisdiction to review it.” Slip op. at 7.

Read more »

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

United States v. Arness, No. 14-8014/AF (CAAFlog case page): Oral argument audio

United States v. Blouin, No. 14-0656/AR (CAAFlog case page): Oral argument audio

Note: TWIMJ inaccurately stated that Castillo was to be argued today, not Blouin. I’ve corrected that error.

CAAF will hear oral argument in the Air Force case of United States v. Arness, No. 14-8014/AF (CAAFlog case page), on Tuesday, February 10, 2015. The case initially went to CAAF as a writ-appeal of a decision of the Air Force CCA. Petitioner/Appellant (hereinafter “Appellant”) is a Lieutenant Colonel who was convicted of various offenses at a general court-martial and sentenced to confinement for 11 months and a reprimand. That sentence is below the jurisdictional threshold for automatic review by the Air Force CCA under Article 66(b), and so instead the court-martial was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69.

Nevertheless, Appellant sought collateral review by the Air Force CCA in the form of a writ of error coram nobis under the All Writs Act, alleging 13 errors in the court-martial proceedings. The CCA concluded that it had jurisdiction to review the Appellant’s petition, but that he was not entitled to relief. Appellant then appealed to CAAF, raising the same 13 errors. See Gov’t Br. at 2. But CAAF specified a different issue for review:

Whether the United States Air Force Court of Criminal Appeals had jurisdiction to entertain a writ of error coram nobis where there was no statutory jurisdiction under Article 66(b)(1), UCMJ, on the underlying conviction and the case was not referred to the Court of Criminal Appeals by the Judge Advocate General under Article 69(d)(1), UCMJ, and where the Court of Criminal Appeals relied on potential jurisdiction under Article 69(d), UCMJ, as its basis for entertaining the writ (citing Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998)).

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This past week CAAF granted review in two cases and ordered briefs on a petition for extraordinary relief.

First, on Tuesday, July 29, CAAF granted review in another ultimate offense doctrine case: United States v. Amaya, No. 14-0558/AR.

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT’S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF DISOBEYING A LAWFUL ORDER OF A SUPERIOR COMMISSIONED OFFICER.

Last October, in a post titled Is the “ultimate offense doctrine” making a comeback?, I analyzed the Army CCA’s unpublished opinion in United States v. Phillips, No. 20120585 (A.Ct.Crim.App. Sep. 23, 2013), in which it applied the doctrine to reverse a guilty plea. A few months later I wrote: The Army CCA slows the return of the “ultimate offense doctrine”, analyzing the CCA’s unpublished decision in United States v. Bartsh, No. 20111104 (A.Ct.Crim.App. Dec. 31, 2013), where the court rejected the doctrine. The CCA also reconsidered its decision in Phillips, reversing course in a published decision, United States v. Phillips, 73 M.J. 572 (A.Ct.Crim.App. Jan. 31, 2014) (en banc op. on recon.), and prompting me to write: It was fun while it lasted… the Army CCA puts an end to the comeback of theultimate offense doctrine.

CAAF then granted review in Phillips (case No. 14-0199/AR, grant discussed here) and in a trailer (United States v. Nemeth, No. 14-0491/AR, grant discussed here). The grant in Amaya brings the total number of granted ultimate offense doctrine cases at CAAF to three. The Army CCA’s opinion in Amaya is available here, but it does not address the ultimate offense doctrine.

Next, on Thursday, July 31, CAAF granted review in United States v. Gutierrez, No. 13-0522/AF:

I. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ASSAULT LIKELY TO RESULT IN GRIEVOUS BODILY HARM.

II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ADULTERY.

III. WHETHER THE FACIALLY UNREASONABLE DELAY IN POST TRIAL PROCESSING DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO SPEEDY REVIEW URSUANT TO UNITED STATES V. MORENO, 63 M.J. 129 (C.A.A.F. 2006).

Briefs will be filed under Rule 25.

The CCA’s latest opinion in this case is available here. This is the second trip to CAAF for this case. The court granted review of the first two issues last September (discussed here), but summarily remanded the case to the CCA in December (discussed here) for consideration of the composition of the panel that considered the case. If you don’t know what this issue is about, you need to check out the case page for United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page).

CAAF’s grant of the speedy trial issue in Gutierrez returns the AFCCA’s delays – part of our #9 military justice story of 2013 – to CAAF in the wake of United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page), in which the court found no prejudice. The appointment issue is also returning to CAAF in the upcoming term, in United States v. Jones, No. 14-0057/AF (grant discussed here), in which the court will consider the application of de facto officer doctrine (that it rejected in Janssen)

Finally, CAAF issued a really interesting order on Thursday, July 31, on a petition for extraordinary relief:

No. 14-8014/AF. U.S. v. Mark K. ARNESS. Crim. App. Dkt. No. 2013-30. On consideration of the writ-appeal petition filed by Appellant for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the Judge Advocate General of the Air Force appoint counsel to represent Appellant, and that both parties submit briefs on the following issue:

WHETHER THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS HAD JURISDICTION TO ENTERTAIN A WRIT OF ERROR CORAM NOBIS WHERE THERE WAS NO STATUTORY JURISDICTION UNDER ARTICLE 66(b)(1), UCMJ, ON THE UNDERLYING CONVICTION AND THE CASE WAS NOT REFERRED TO THE COURT OF CRIMINAL APPEALS BY THE JUDGE ADVOCATE GENERAL UNDER ARTICLE 69(d)(1), UCMJ, AND WHERE THE COURT OF CRIMINAL APPEALS RELIED ON POTENTIAL JURISDICTION UNDER ARTICLE 69(d), UCMJ, AS ITS BASIS FOR ENTERTAINING THE WRIT (CITING DEW V. UNITED STATES, 48 M.J. 639 (ARMY CT. CRIM. APP. 1998)).

Briefs will be filed with the Court by August 29, 2014.

The AFCCA’s opinion is available here. The appellant is a Lieutenant Colonel who was convicted by a general court-martial of 14 specifications of unauthorized absence, 10 specifications of making false official statements, and 2 specifications of conduct unbecoming, in violation of Articles 86, 107, and 133, UCMJ. He was sentenced to confinement for 11 months and a reprimand. The sentence was below the threshold for automatic review by the Air Force CCA under Article 66(b), and so it was reviewed by the Judge Advocate General of the Air Force pursuant to Article 69(a). The JAG found no error and then denied the appellant’s request for reconsideration. The appellant then filed a writ petition with the AFCCA, asserting 13 errors. The court found that it had jurisdiction to consider the petition, but denied relief:

We find the requested writ is “in aid of” our existing jurisdiction. The petitioner’s sentence at his court-martial did not entitle him to review by this Court under Article 66, UCMJ, 10 U.S.C. § 866. Instead, The Judge Advocate General reviewed his conviction under Article 69(a), UCMJ. Under Article 69(d)(1), UCMJ, The Judge Advocate General could have referred the case to this Court for review. In addition, Article 69(d)(2), UCMJ, authorizes this Court to review “any action taken by the Judge Advocate General under this section” in a court-martial. An application for a writ of error coram nobis is “properly viewed as a belated extension of the original proceeding during which the error occurred.” Denedo, 556 U.S. at 913. Since we could have properly reviewed the original proceeding under Article 69, UCMJ, we adopt the position of our fellow service court that a court of criminal appeals retains authority to issue extraordinary writs in cases reviewed under Article 69, UCMJ. See Dew v. United States, 48 M.J. 639 (Army Ct. Crim. App. 1998). We also find that the requested writ is “necessary or appropriate,” as there are no adequate alternative remedies available to the petitioner.

Having concluded that we may review the petition, we hold that the petitioner is not entitled to relief.

United States v. Arness,  No. 2013-30, slip op. at 3 (A.F.Ct.Crim.App. Mar. 11, 2014). Presumably the appellant didn’t petition CAAF just to question the CCA’s jurisdiction to consider his 13 assertions of error.