CAAFlog » TWIMJ

This week at SCOTUS: A cert. petition was filed in Alexander v. United States, No. 16-9536, on May 3, 2017, but not docketed until last week. Counsel of record is a civilian from Tennessee. The case is from the Army and was summarily affirmed by CAAF on May 3, 2017, with an order that stated:

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 hereby granted on the issue raised by Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the decision of the United States Army Court of Criminal Appeals is affirmed.

No opinion is available on the Army CCA’s website (suggesting that the CCA summarily affirmed).

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 22, 2017, at 10 a.m.:

United States v. Bunch, No. 20160197

Issues:
[I.] Whether appellant’s six-year old stepdaughter had a reasonable expectation of privacy under Article 120c, UCMJ?

[II.] Whether the military judge abused his discretion by accepting appellant’s plea of guilty to indecent visual recording under Article 120c, UCMJ?

[III.] Whether Article 120c, UCMJ, is unconstitutionally overbroad or vague?

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Leonhardt on June 20, 2017, at 1 p.m. According to the CCA’s docket, the argument will be a closed hearing.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on July 20, 2017.

This week at SCOTUS: The cert. petition in Sterling was denied on June 5, 2017 (noted here). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 15, 2017:

United States v. Schelmetty, No. 20150488

Issues:
[I]. Whether the military judge’s military rule of evidence 412 ruling was error that prevented appellant from presenting evidence of consent and constitutionally required evidence.

[II]. Whether the military judge erred by preventing the defense from introducing the remaining portions of appellant’s statements.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017. According to the CCA’s docket, the argument will be a closed hearing.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in United States v. Hutchins,  No. 200800393, on Wednesday, June 14, 2017, at 10 a.m.

In United States v. Hutchins, 72 M.J. 294 (C.A.A.F. Jun. 26, 2013) (CAAFlog case page), CAAF found that the Naval Criminal Investigative Service (NCIS) unlawfully re-initiated communications with Hutchins after he requested an attorney, leading to a confession that was erroneously admitted at trial, and the court reversed convictions for a false official statement, unpremeditated murder, and larceny, in connection with a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. The Government was denied reconsideration by CAAF and ultimately did not seek certiorari.

Hutchins was retried and was convicted again (CAAFlog news page). That court-martial is now pending appellate review:

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of conspiracy, one specification of false official statement, one specification of unpremeditated murder, and one specification of larceny in violation of Articles 81, 107, 118, and 121, UCMJ, 10 U.S.C. §§ 881, 907, 918, 921 (2006). The members sentenced the appellant to confinement for fifteen years, reduction to pay grade E-1, a reprimand, and a dishonorable discharge. The convening authority approved the findings and sentence as adjudged and, with the exception of the reprimand and all confinement in excess of 11 years, ordered the sentence executed.

Issues:
I. Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which appellant had been acquitted at his first trial.

II. Whether the military judge erred when he admitted former testimony where the declarants were not unavailable and there was no similar motive for cross examination.

III. Whether the findings and sentence must be set aside and dismissed with prejudice due to unlawful command influence from the Secretary of the Navy

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Monday, June 5, 2017:

United States v. Lazcano, No. 20150354

Issue: Whether appellant was denied his right to a fair and impartial panel in a sexual assault case where the panel president failed to disclose his recent allegation against a material defense witness regarding inappropriate conduct with a junior enlisted soldier.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017.

This week at the CGCCA: I’m unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on June 14, 2017.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 5, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017.

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: The conference on the cert. petition in Sterling was rescheduled. A combined reply brief was filed in Dalmazzi and Cox (available here). The petition for a rehearing was denied in Howell (noted here).

A cert. petition was filed in Ortiz (available here).

An application for an extension of time to file a cert. petition was filed in Bartee v. United States, No. 16A1135. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

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

This week at CAAF: CAAF will hear the final oral argument of the term on Tuesday, May 23, 2017, at 9:30 a.m.:

United States v. Chikaka, 16-0586/MC (CAAFlog case page)

Issues:
I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?
II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Case Links:
NMCCA oral argument audio
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
Appellant’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 24, 2017, at 12:45 p.m.:

United States v. Close, No. 20140984

Issue: Whether trial defense counsel were ineffective by failing to move to suppress all of the evidence seized and subsequently examined from appellant’s off-post residence as an unreasonable search and seizure.

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 oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

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

This week at CAAF: The next scheduled oral argument at CAAF is on May 23, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 24, 2017.

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 oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: The cert petition in Sterling has been distributed for conference on May 18. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

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

Tuesday, May 9, 2017, at 9:30 a.m.

United States v. Claxton, No. 17-0148/AF (CAAFlog case page)

Issues:
I. Whether the findings and sentence must be set aside in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

II. Whether the government’s failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations (AFOSI) pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.

Case Links:
AFCCA’s first opinion
• Blog post: CAAF orders DuBay hearing
AFCCA opinion on remand
Blog post: CAAF grants review
Appellant’s brief (sealed)
Appellee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief (not posted / sealed)
Blog post: Argument preview

Followed by:

United States v. Carter, Nos. 17-0079/AF & 17-0086/AF (CAAFlog case page)

Issues:
Certified Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding that the convening authority exceeded the scope of AFCCA’s remand when he referred Appellant’s case to an “other” trial under R.C.M. 1107(e)(2) following AFCCA’s original remand decision.

Granted Issues:
I. The Air Force Court of Criminal Appeals dismissed the charge and specifications in this case in 2013 and again in 2016. But it exceeded the eighteen-month presumption of unreasonable delay before doing so each time. Has Appellee been denied due process where he completed his sentence to three years of confinement 158 days before this court affirmed the lower court’s first dismissal of this case on August 2, 2013?

II. Whether Appellee’s prosecution for child endangerment was barred by the statute of limitations where more than five years had elapsed and Appellee was not brought to trial within 180 days of this court’s affirmance of the lower court’s dismissal of that specification

III. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, was statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

IV. Whether Judge Martin T. Mitchell’s service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violated the appointments clause given his status as a principal officer on the United States Court of Military Commission Review.

V. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President of the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(b)(4)(C) and (D), authorizing reassignment or withdrawal of Appellate Military judges so appointed by the Secretary of Defense of his designee.

Case Links:
AFCCA decision (2013)
Blog post: JAG certifies
Blog post: CAAF affirms
AFCCA decision after retrial (2016)
Blog post: JAG certifies
Appellant’s (A.F. App. Gov’t Div.) Brief – Certified Issues 
Appellee’s (Carter) Brief – Certified Issues
Appellant’s (Carter) Brief – Granted Issues
Appellant’s (A.F. App. Gov’t Div.) Brief – Granted Issues 
Appellant’s (Carter) Reply Brief – Granted Issues
Blog post: Argument preview

Wednesday, May 10, 2017, at 9:30 a.m.

United States v. Tucker, No. 17-0160/AR (CAAFlog case page)

Issue: Whether the Army Court erred in holding that the term “disorders and neglects” states a negligence standard for mental culpability under Article 134, UCMJ, which precludes application of United States v. Elonis.

Case Links:
ACCA decision (75 M.J. 872)
Appellant’s brief 
Appellee’s (Army App. Gov. Div.) brief
Appellant’s reply brief 
Blog post: Argument preview

Followed by:

United States v. Darnall, No. 16-0729/NA (CAAFlog case page)

Issue: Whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div. brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 15, 2017.

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 oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, May 11, 2017, at 10 a.m.:

United States v. Betancourt, No. 201500400

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of aggravated sexual contact and two specifications of assault consummated by a battery; in violation of Articles 120 and 128, UCMJ, 10 U.S.C. § 920 and 928 (2012). The military judge also convicted the appellant, pursuant to his pleas, of one specification of conspiracy to commit assault, two specifications of violating a lawful general order, two specifications of signing a false record, one specification of cocaine use, one specification of possession of cocaine with intent to distribute, one specification of possession of methamphetamine with intent to distribute, one specification of larceny, one specification of forgery, and one specification of assault consummated by a battery; in violation of Articles 81, 92, 107, 112a, 121, 123, and 128, UCMJ, 10 U.S.C. §§ 881, 892, 907, 912a, 921, 923, and 928 (2012). The members sentenced the appellant to five years’ confinement, reduction to pay grade E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence executed.

Issues:
I. A search authorization must contain probable cause and must describe with particularity the place to be searched, and the persons or things to be seized. The search authorization did not authorize the search and seizure of the appellant’s cellphone data, nor did it list with particularity the places to be searched on the appellant’s cellphone or list any search protocols. In her ruling, the military judge failed to address the search of the appellant’s cellphone data. Did the military judge abuse her discretion when she failed to suppress the search results of the appellant’s cellphone data?

II. Whether the government’s overly-expansive search of the appellant’s trial defense counsel’s office amounted to unlawful command influence?

III. Whether the government committed prosecutorial misconduct when it executed an overly-expansive search of defense counsel spaces at Marine Corps Base Camp Pendleton.

This week at SCOTUS: The petition for a rehearing on the denial of certiorari in Howell was distributed for conference on May 11. In other news, an extension of time to file a cert. petition was granted in Ortiz. CAAF’s decision in United States v. Ortiz, __ M.J. __ (C.A.A.F. Apr. 17, 2017) (CAAFlog case page), found no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case. 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 at CAAF is on May 9, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, May 2, 2017, at 10 a.m.:

United States v. Inman, No. 20150042

Issue: Whether the military judge should have disqualified himself because he had previously acted as counsel in appellant’s case, and because he expressed an opinion concerning the guilt or innocence of appellant when serving as chief of military justice.

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 oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website suggests that an oral argument will occur on Tuesday, May 2, 2017, however no case information is posted. The next scheduled oral argument after that is on May 9, 2017.

This week at SCOTUS: The Solicitor General received additional extensions of time to file responses to the cert. petitions in Dalmazzi and in Cox, both to May 15, 2017. Additionally, a petition for rehearing was filed in Howell (cert. denied Mar. 27). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in three cases this week, all on Tuesday, April 25, 2017:

At 9:30 a.m.:

United States v. Ramos,  No. 17-0143/CG (CAAFlog case page)

Issue: Whether Appellant was entitled to Article 31(b), UCMJ, warnings at any point during his interrogation by CGIS, and if so, whether he was prejudiced by the admission of any of his statements.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Coast Guard App. Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Brantley, No.17-0055/AR (CAAFlog case page)

Issue: Whether the government proved beyond a reasonable doubt that Appellant knew or reasonably should have known that SR was “otherwise unaware” of sexual contact.

Case Links:
• ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Forrester, No. 17-0049/MC (CAAFlog case page)

Issue: Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 2, 2017.

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 oral argument schedule 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, 2017.

This week at SCOTUS: The Solicitor General filed a brief in opposition to the cert. petition in Sterling. The brief is available here. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on April 25, 2017.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Anderson, No. 2016-17, on Tuesday, April 18, 2017, at 2 p.m. According to the CCA’s website, “this argument will be closed and not open for public viewing.” The case number indicates that this is either an interlocutory appeal or a petition for extraordinary relief (possibly a petition by an alleged victim under Article 6b).

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule 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, 2017.

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

This week at CAAF: The next scheduled oral arguments at CAAF are on April 25, 2017.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments. However, I’m aware of one oral argument scheduled for Wednesday, April 12, 2017, at 10 a.m.:

United States v. Kelly, No. 20150725

Issues:
I. Whether the military judge improperly instructed the members on the offense of abusive sexual contact by omitting the standard instructions on the prosecution’s burden and shifting the burden to the defense to prove appellant’s innocence.

II. Whether the military judge improperly instructed the members on the offense of sexual assault by omitting the standard instructions on the prosecution’s burden and shifting the burden to the defense to prove appellant’s innocence.

[III]. Whether the defense request for a mistrial should have been granted.

[IV]. Whether it was ineffective assistance of counsel for defense counsel to waive the causal challenge of the senior member by failing to use the defense peremptory challenge.

Disclosure: I represent the appellant in my civilian capacity. 

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 18, 2017.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule 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, 2017.

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

This week at CAAF: CAAF will hear oral argument in two cases this week. Both arguments will occur at law schools as part of Project Outreach:

Tuesday, April 4, 2017, at 12:30 p.m., at the Notre Dame Law School, Notre Dame, Indiana:

United States v. Mitchell, No. 17-0153/AR (CAAFlog case page)

Issues:
I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

Case Links:
ACCA opinion
Appellant’s (Army App. Gov’t Div.) brief
Appellee’s brief
Appellant’s reply brief
Amicus brief: Air Force App. Gov’t Div.
Amicus Brief:  Electronic Frontier Foundation, American Civil Liberties Union, and ACLU of the District of Columbia
Amicus Brief: Two Notre Dame law professors
Amicus Brief: Notre Dame law student
Blog post: Argument preview

Wednesday, April 5, 2017, at 2:00 p.m., Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio:

United States v. Herrmann, No. 16-0599/AR (CAAFlog case page)

Issue: Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.

Case Links:
ACCA opinion (75 M.J. 672)
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Law student
Blog post: Argument preview

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week, on Thursday, April 6, 2017, at noon:

United States v. Blatney, No. 2016-16

Issue: Whether the military judge erred by suppressing appellee’s act of unlocking his cellular phone as well as the con-tents of appellee’s phone pursuant to the Fifth Amendment.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in two cases this week:

Wednesday, April 5, 2017, at 10 a.m.

United States v. Hale, No. 201600015

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of failing to obey a lawful general order, one specification of wrongful use of an anabolic steroid, two specifications of rape, one specification of aggravated assault, one specification of adultery, one specification of kidnapping, and one specification of indecent language, in violation of Articles 92, 112a, 120, 128, and 134, UCMJ, 10 U.S.C. §§ 892, 912a, 920, 928, and 934 (2012). The members sentenced the appellant to confinement for twenty-six years, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.

Issues:
I. Whether the military judge erred in admitting evidence obtained from the search of SSgt Hale’s gym bag as well as the results of the urinalysis test that was conducted pursuant to the fruits of that search?

II. Whether the government’s attempt to intimidate detailed defense counsel and its improper arguments at trial amounted to prosecutorial misconduct and prejudicial spillover effect during closing arguments?

III. Whether appellant received ineffective assistance from his defense counsel?

Thursday, April 6, 2017, at 2 p.m., at Antonin Scalia Law School at George Mason University, Founders Hall Auditorium, 3351 Fairfax Drive, Arlington, VA 22201:

United States v. Harris, No. 201600207

Case Summary:
A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of attempted robbery, desertion, and aggravated arson, in violation of Articles 80, 85, and 126, UCMJ, 10 U.S.C. §§ 880, 885, and 926 (2012). The military judge sentenced the appellant to eight years of confinement, reduction to pay-grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. In accordance with a pretrial agreement, the convening authority suspended all confinement in excess of seventy-two months. The convening authority approved the remainder of the sentence and, except for the punitive discharge, ordered it executed.

Issue: Whether the military judge abused his discretion when he refused to order day-for-day confinement credit for the period that the government did not comply with R.C.M. 305(i)(2)(d).

This week at SCOTUS: The Court denied certiorari in Howell. The Solicitor General received an extension of time to respond to the cert. petition in Cox, et al. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on April 4, 2017, at the Notre Dame Law School, Notre Dame, Indiana. Additionally, on April 5, 2017, CAAF will hear oral argument at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week, both on March 28, 2017:

At 10 a.m.: United States v. Morales, No. 39018

Issue: WHETHER THE APPLICATION OF EXECUTIVE ORDER 13696 WHICH ELIMINATED THE CON-STITUTIONALLY REQUIRED EXCEPTION TO THE PSYCHOTHERAPIST-PATIENT PRIVILEGE WAS (1) AN ABUSE OF THE MILITARY JUDGE’S DISCRETION OR (2) DEPRIVED APPELLANT OF HIS RIGHT TO CONFRONT HIS ACCUSER, TO COMPULSORY PROCESS, OR TO DUE PROCESS OF LAW.

At 1 p.m.: United States v. Hudson, No.  37249 (rem)

Issues:
I. WHETHER THE MILITARY JUDGE IMPROPERLY ADMITTED EVIDENCE OF UNCHARGED ALLEGATIONS UNDER MILITARY RULES OF EVIDENCE 414 AND 404(B).

VI. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL: (1) FAILED TO PRESENT EVIDENCE OF APPELLANT’S GOOD CHARACTER DURING THE DEFENSE CASE-IN-CHIEF; (2) FAILED TO PRESENT EVIDENCE OF THE CHARACTER FOR UNTRUTHFULNESS OF THE ALLEGED CHILD VICTIMS (CHARGED AND UNCHARGED), AND; (3) OPENED THE DOOR TO EVIDENCE OF THE PRIOR TRIAL.

Disclosure: I am civilian appellate defense counsel in Hudson.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on April 5, 2017.

This week at SCOTUS: The Solicitor General received extensions of time to respond to the cert. petitions in Sterling and Dalmazzi. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on April 4, 2017, at the Notre Dame Law School, Notre Dame, Indiana. Additionally, on April 5, 2017, CAAF will hear oral argument at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, March 21, 2017, at 1 p.m.:

United States v. Hoffman, No. 20140172

Issues:
ASSIGNMENT OF ERROR V. THE JUDGE CONDUCTED HIMSELF AND THE TRIAL IN A MANNER THAT UNCONSTITUTIONALLY DEPRIVED APPELLANT OF A FAIR TRIAL.

SPECIFIED ASSIGNMENT OF ERROR I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO PRESENT EVIDENCE OF APPELLANT’S VOLUNTARY ABSENCE FROM THE COURT-MARTIAL AS UNCHARGED MISCONDUCT UNDER MIL. R. EVID. 404(B) AND/OR R.C.M. 1001(B) AS EVIDENCE “DIRECTLY RELATED TO THE OFFENSES” AND AS EVIDENCE OF APPELLANT’S REHABILITATIVE POTENTIAL.

SUPPLEMENTAL ASSIGNMENT OF ERROR I. THE MILITARY JUDGE COMMITTED PLAIN AND PREJUDICIAL ERROR WHEN HE INSTRUCTED THE PANEL THAT IT COULD CONSIDER THE CHARGED SEXUAL MISCONDUCT FOR MIL. R. EVID. 414 PURPOSES [SEE UNITED STATES V. HILLS, 75 M.J. 350 (C.A.A.F. 2016)].

SUPPLEMENTAL ASSIGNMENT OF ERROR II. BY NOT MAKING SPECIAL FINDINGS ON SPECIFICATION 2 OF CHARGE II [WHEN THEY EXCEPTED OUT “ON DIVERS OCCASIONS”], [THE PANEL MADE IT SO] THIS COURT CANNOT CONDUCT AN ARTICLE 66, [UCMJ,] REVIEW AND, THEREFORE, MUST DISMISS THE SPECIFICATION [SEE UNITED STATES V. WALTERS, 58 M.J. 391 (C.A.A.F 2003)].

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 28, 2017.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Friday, Mach 24, 2017, at 10 a.m.:

United States v. Andrews, No. 201600208

Case summary:
In a mixed-plea case, a panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of sexual assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). The military judge also convicted the appellant, pursuant to his pleas, of one specification of unauthorized absence, one specification of flight from apprehension, one specification of making a false official statement, one specification of wrongful use of marijuana, and one specification of larceny, in violation of Articles 86, 95, 107, 112a, and 121, UCMJ, 10 U.S.C. §§ 886, 895, 907, 912a, and 121 (2012). The members sentenced the appellant to confinement for thirty-six months, reduction to pay grade E-1, forfeiture of $1,616.00 pay per month for thirty-six months, and a dishonorable discharge. The convening authority approved forfeitures of $1,566.90 pay per month for thirty-six months and the remainder of the sentence as adjudged.

Issue:
THE TRIAL COUNSEL AND ASSISTANT TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT TO THE MEMBERS. DURING CLOSING ARGUMENT THE TRIAL COUNSEL AND ASSISTANT TRIAL COUNSEL INVENTED ADMISSIONS, REPEATEDLY CALLED SN ANDREWS A LIAR, ACCUSED THE DEFENSE COUNSEL OF NOT BELIEVING THEIR CLIENT, MADE INFLAMMATORY ARGUMENTS, AND MISSTATED THE LAW. WAS THIS PROSECUTORIAL MISCONDUCT?

Due to an impending snowpocalypse, CAAF’s oral arguments scheduled for tomorrow have been postponed to Thursday.