CAAFlog » TWIMJ

This week at SCOTUS: The solicitor general waived the Government’s right to respond to the petition in Daniel. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral argument at CAAF is on Wednesday, January 14, 2015.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, December 18, 2014, at 10 a.m.:

United States v. Chandler, No. 20120680

Issue: Whether the military judge abused his discretion when he held a hearing in revision, with the same panel, in order to correct an erroneous finding instruction.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 30, 2015.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, December 16, 2014, at 10 a.m.:

United States v. Parker

Case summary: A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of three specifications of attempted violation of a lawful general order, one specification of willfully disobeying a lawful order of a superior commissioned officer, seven specifications of violation of a lawful general order, two specifications of consensual sodomy, four specifications of adultery, and one specification of solicitation of indecent conduct, in violation of Articles 80, 90, 92, 125, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 890, 892, 925, and 934 (2012). The military judge sentenced the appellant to sixty months’ confinement, reduction to pay-grade R-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the dishonorable discharge, ordered it executed.

Issue: Laws that treat constitutionally-protected acts differently must be rationally related to a legitimate state interest. Private, consensual sex and sodomy between adults are constitutionally protected. The maximum punishment for Article 125, UCMJ, consensual sodomy, includes five years of confinement. The maximum punishment for Article 92, UCMJ, consensual sex, includes only two years of confinement. Because this difference no longer serves any legitimate state interest, is the maximum punishment for Article 125 unconstitutional?

Significant military justice event this week: The Judicial Proceedings Panel (JPP) will hold a public meeting on Friday, December 12, 2014, at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Here is a link to a public notice of the meeting. I discussed the DoD’s establishment of the JPP in this post. The panel’s website is: http://jpp.whs.mil/

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 four cases this week:

Tuesday, December 9, 2014, beginning at 9:30 a.m.:

United States v. Buford, No. 14-6010/AF (CAAFlog case page)

Certified Issue: Whether the military judge abused her discretion by suppressing evidence from the dell laptop, hewlett-packard laptop, and centon hard drive.
Granted Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding A.B. consented to law enforcement’s search of the centon thumb drive and the dell laptop.

Case Links:
AFCCA oral argument audio
AFCCA opinion
Blog post: AFCCA partially denies a Government appeal of a suppression ruling
Blog post: The Air Force certifies Buford
Blog post: Hernandez appeals and CAAF grants in Buford
Appellant’s (Government) brief on the certified issue
Appellee’s brief on the certified issue
Cross-Appellant’s supplement to the petition for grant of review
Cross-Appellee’s (Government) answer to the petition for grant of review

United States v. Gutierrez, No. 13-0522/AF (CAAFlog case page)

Issues:
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 pursuant to United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006).

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
• Brief of Amicus Curiae (Army Defense Appellate Division)

Wednesday, December 10, 2014, beginning at 9:30 a.m.:

United States v. Torres, No. 14-0222/AF (CAAFlog case page)

Issue: Whether the military judge erred by denying the defense requested instruction.

Case Links:
AFCCA opinion
Blog post: CAAF grants review in 7th instructional error case of the term
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief

United States v. Bennitt, No. 12-0616/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals abused its discretion by re-affirming appellant’s approved sentence after this court set aside his conviction for manslaughter.

Case Links:
United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page)
ACCA opinion
Blog post: Bennitt’s sentence remains the same
Blog post: Two new grants (one predicted, the other a trailer) and the return of Senior Judge Cox
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, December 10, 2014, at 10 a.m.:

United States v. Rude, No. 20120139

Issues:
I. Whether the military judge erred in failing to apply any of the procedural safeguards required before permitting the members to consider propensity evidence under Mil. R. Evid. 413, and by giving an erroneously tailored spillover instruction regarding the proper use of propensity evidence.
II. Whether the military judge erred in denying the defense motion to compel an expert consultant.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, December 10, 2014, at 10 a.m.:

United States v. Oakley

Case summary: At the appellant’s retrial, a panel of members with enlisted representation, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of aggravated sexual assault and one specification of committing an indecent act, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2008). The members sentenced the appellant to five years’ confinement, total forfeiture of pay and allowances, reduction to paygrade E-1, and a dishonorable discharge. Due to the limitations required by the appellant’s sentence at his previous court-martial, the convening authority approved only so much of the sentence as provided for confinement for three months, total forfeiture of pay and allowances, reduction to paygrade E-1, and a bad-conduct discharge.

Issue: Did the military judge’s findings of not guilty to the words “on divers occasions” in the first trial create an ambiguous verdict and a double jeopardy violation that precludes this court’s review of specifications 1 and 2 under Article 66, UCMJ?

We mentioned the NMCCA’s decision reversing the original conviction in this post.

Significant military justice event this week (and another next week): Public comments for the recently-proposed changes to the Manual for Courts-Martial (discussed here) are due no later than Tuesday, December 2, 2014.

Additionally, here is a link to a public notice of the next meeting of the Judicial Proceedings Panel (JPP). This meeting will occur next week, on Friday, December 12, 2014, at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. I discussed the DoD’s establishment of the JPP in this post. The panel’s website is: http://jpp.whs.mil/

This week at SCOTUS: A cert petition was filed on November 26th in the Air Force case of Daniel v. United States, No. 14-621. Petitioner was convicted contrary to his pleas of not guilty, by a general court-martial composed of six officer members, of one specification of abusive sexual contact in violation of Article 120 (2012) (he was acquitted of a separate specification of sexual assault). The members sentenced Petitioner to confinement for 12 months, reduction to E-1, and a dishonorable discharge. On review at the AFCCA, Petitioner challenged the constitutionality of the ability of a court-martial panel consisting of six members to return a non-unanimous verdict. The CCA rejected this challenge in an unpublished opinion. United States v. Daniel, No. 38322 (Apr. 1, 2014) (link to slip op.). CAAF summarily affirmed the CCA on September 5, 2014 (CAAF granted review and ordered an exhibit sealed).

The cert petition (available here) renews this challenge to the ability of a court-martial panel of six members to return a non-unanimous verdict, with the following question presented:

In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029 (1978), this Honorable Court ruled that the Fourteenth Amendment was offended when the State of Georgia permitted criminal defendants facing misdemeanor charges to be tried by a jury of five members, even though the verdict was required to be unanimous. This Court explained that as panels get smaller, they begin to suffer from a myriad of structural barriers which render their decisions unreliable. Id., 435 U.S. at 232-36, 98 S.Ct. at 1035-37. The following year, in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623 (1979), this Court expounded upon Ballew and ruled that “the additional authorization of nonunanimous verdicts” amplifies the problem of small panels to the point that even a six-member jury could offend the Constitution. Burch, 441 U.S. at 139, 99 S.Ct. at 1628.

The question presented is whether all federal criminal courts should be bound by the Ballew and Burch holdings, consistent with the preference for civilian standards of due process and modern efforts to align military judicial processes with those employed by the Article III courts. Was Petitioner denied due process of law under the Fifth Amendment when he was tried by a court-martial consisting of six members who were not required to be unanimous in their verdict?

I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking one case:

This week at CAAF: The next scheduled oral argument at CAAF is on December 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, is on Wednesday, December 3, 2014, at 10 a.m.:

United States v. Henderson

Case summary: A military judge, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of adultery, in violation of Articles 134, UCMJ, 10 U.S.C. §§ 934. The military judge sentenced the appellant to reduction to paygrade E-3 and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

Issue: The Government must prove each element of an offense beyond a reasonable doubt. Here, the government failed to introduce any evidence to prove that Sgt Henderson’s alleged adultery was prejudicial to good order and discipline or had a tendency to bring the armed services into disrepute or lower it in the public esteem. Is the adultery conviction legally and factually insufficient?

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled oral argument at CAAF is on December 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week:

Monday, November 24, 2014, at 1 p.m.:

United States v. Wright, No. 2014-10

Issue: Whether the military judge abused his discretion by abating the proceedings after the government complied with his discovery compliance order, proved beyond a reasonable doubt that no unlawful command influence or appearance thereof existed, and properly asserted the attorney-client and work product privileges

Note: The CCA will hear this argument en banc.

Tuesday, November 25, 2014, at 10 a.m.:

United States v. Henderson, No. 38379

Issues:
I. Whether the military judge abused her discretion by admitting evidence in violation of Mil.R.Evid. 807 and the Sixth Amendment, denying Appellant the right of confrontation.
II. Whether the military judge abused her discretion by admitting prosecution exhibit 7, an out-of-court statement made by MB, as a prior consistent statement, in violation of Mil.R.Evid. 801(d)(1)(b).
III. Whether the military judge denied appellant the right to cross-examine MB, in violation of the Sixth Amendment.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on December 3, 2014.

This week at SCOTUS: The Court denied certiorari in Wickware v. United States, No. 14-6677 last Monday. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking no cases.

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

On Tuesday, November 18, 2014, CAAF will hear oral argument in the capital case of United States v. Akbar, No. 13-7001/AR (CAAFlog case page):

Issues to be argued:
I. Whether the Appellant was denied his right to the effective assistance of counsel, as guaranteed by the Sixth Amendment to the U.S. Constitution, at every critical stage of his court-martial.
II. Whether this Court should order a post-trial evidentiary hearing to resolve disputed factual issues relevant to Appellant’s numerous collateral claims unless the Court finds in his favor on another dispositive ground.
III. Whether the prosecution’s victim impact presentation and argument, and counsel’s failure to object, violated Appellant’s Fifth, Sixth, and Eighth Amendment rights.
IV. Whether the military judge denied Appellant a fair trial by failing to sua sponte dismiss fourteen of the fifteen panel members for cause based on actual and implied bias manifested by relationships of the members, a predisposition to adjudge death, an inelastic opinion against considering mitigating evidence on sentencing, visceral reactions to the charged acts, preconceived notions of guilt, and detailed knowledge of uncharged misconduct that had been excluded.
V. Whether the analysis of the Army Court of Criminal Appeals of Appellant’s case was flawed because of its misapplication of the standards applicable to federal and state capital defense counsel and that court’s determination that counsel were “well-qualified.”

Case Links:
CAAFlog case page
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

On Wednesday, November 19, 2014, CAAF will hear oral argument in two cases:

United States v. Newton, No. 14-0415/AR (CAAFlog case page)

Issue: Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

United States v. Jones, No. 14-0057/AF (CAAFlog case page)

Issue: Whether the de facto officer doctrine conferred validity upon Judge Soybel’s participation in the Air Force Court of Criminal Appeals’ decision in Appellant’s case. See Ryder v. United States, 515 U.S. 177, 182-84 (1995); Nguyen v. United States, 539 U.S. 69, 72-73 (2003); United States v. American-Foreign S.S. Corp., 363 U.S. 685 (1960); Ayshire Collieries Corp. v. United States, 331 U.S. 132 (1947); Norton v. Shelby County, 118 U.S. 425, 446 (1986); United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014); United States v. Elliott, 15 M.J. 347 (C.M.A. 1983).

Case Links:
AFCCA opinion
AFCCA opinion on reconsideration
Blog post: Here come the trailers
Blog post: CAAF to re-examine the Soybel appointment
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 24, 2014.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, November 20, 2014:

United States v. Owens

Case summary:
A panel of members, sitting as a general court-martial,  convicted the appellant, contrary to his pleas, of violating a lawful general order, abusive sexual contact, and conduct unbecoming an officer and a gentleman, in violation of Articles 92, 120, and 133, Uniform Code of Military Justice. The members sentenced the appellant to a dismissal. The convening authority approved the sentence as adjudged.

Issues:
I. The appellant was denied the right to discovery under Article 46, UCMJ, when the government failed to produce evidence of SD’s learning disability in response to a general request for evidence impacting SD’s credibility. The error was not cured by the military judge’s later conclusion that the evidence was not relevant after she had articulated the relevance and the defense sought to use the evidence to attack SD’s credibility.
II. Appellant was denied the right under the Sixth Amendment to confront his accuser when the military judge first concluded that evidence related to SD’s learning disability was relevant, permitted the Government to question her about it at length, then denied the Defense the opportunity to cross-examine her on it and instructed the members to disregard it. Evidence of SD’s learning disability, or lack thereof, was relevant to her crediblity.
III. Appellant was denied a meaningful opportunity for clemency when the military judge emailed the members telling them not to communicate with the defense counsel and subsequently issued an order having a “chilling effect” on the likelihood that they would submit a clemency recommendation; and when the staff judge advocate withheld from the convening authority at least one and possibly more clemency recommendations he had received from the sentencing authority.

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: The next scheduled oral argument at CAAF is on November 18, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 24, 2014.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2014.

Update: A reader informs me that the Court of Military Commissions Review (USCMCR) will hear oral argument of a Government interlocutory appeal in the military commission case of United States v. al-Nashiri on Thursday, November 13, 2014, at 10 a.m. The argument will occur in Courtroom 201 at the United States Court of Appeals for the Federal Circuit, 717 Madison Place, NW, Washington, DC.

The Office of Military Commissions website has a case page that explains that:

Al-Nashiri is charged with perfidy, murder in violation of the law of war, attempted murder in violation of the law of war, terrorism, conspiracy, intentionally causing serious bodily injury, attacking civilians, attacking civilian objects, and hazarding a vessel. The charges arise out of an attempted attack on the USS THE SULLIVANS in January 2000, an attack on the USS COLE in October 2000, and an attack on the MV Limburg in October 2002.

The Limburg is a French oil tanker, raising the issue of whether a military commission has jurisdiction over the attack. Writing for Lawfare in this post, Wells Bennett explained that the Government failed to prove (or even really try to prove, it seems) facts that support commission jurisdiction. In a subsequent post, available here, Mr. Bennett covered the Government’s filing of an appeal. All of Mr. Bennett’s extensive coverage of the al-Nashiri case on Lawfare is available here.

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: The next scheduled oral argument at CAAF is on November 18, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, November 6, 2014, at 10 a.m.:

United States v. Audet, No. 20120574

Issue: Whether the appellant was denied the opportunity to adequately defend against the charge of abusive sexual contact where the panel’s finding by exceptions and substitutions resulted in a material variance.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 24, 2014.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

I inadvertently omitted an important military justice event from yesterday’s This Week in Military Justice post.

A public meeting of the Joint Service Committee will be held on Wednesday at CAAF, beginning at 10 a.m. The purpose of the meeting is to discuss the proposed amendments to the Manual for Courts-Martial (discussed here).

I’m planning to attend the meeting. I look forward to meeting any readers who might also be there.

This week at SCOTUS: The Solicitor General waived the right to respond in Wickware. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral argument at CAAF is on November 18, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 25, 2014.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

This week at SCOTUS: The Court denied cert in McMurrin v. United States, No. 14-262. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking only one case:

This week at CAAF: CAAF will hear oral argument in four cases this week, two on Monday and two on Tuesday.

Monday, October 20, 2014, beginning at 9:30 a.m.:

United States v. Phillips, No. 14-0199/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

Case Links:
ACCA opinion (three-judge panel) (deleted from the CCA’s website)
Blog post: Is the “ultimate offense doctrine” making a comeback?
ACCA opinion (recon. en banc), 73 M.J. 572
Blog post: It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine
Blog post: The ultimate offense doctrine returns to CAAF
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

 United States v. Morita, No. 14-5007/AF (CAAFlog case page)

Certified Issue: Whether the Air Force Court of Criminal Appeals erred when it found the court-martial lacked subject matter jurisdiction and whether the Air Force Court of Criminal Appeals abused its discretion when it refused to grant the Government’s motion to submit documents.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by finding that a reservist can create court-martial jurisdiction by forging active duty orders and/or inactive-duty training orders and by finding that court-martial jurisdiction existed for each 120-day period listed on the three applications for MPA man-day tours.

Case Links:
AFCCA oral argument audio
AFCCA opinion (73 M.J. 548)
Blog post: The AFCCA’s fascinating opinion in Morita
Certified issue: Government’s brief
Certified issue: Defense brief
Granted issue: Defense brief
Granted issue: Government brief
Blog post: Argument preview

Tuesday, October 21, 2014, beginning at 9:30 a.m.:

United States v. Peters, No. 14-0289/AR (CAAFlog case page)

Issue: Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

United States v. Castillo, No. 14-0457/AR (CAAFlog case page)

Issue: Whether, under the totality of the circumstances, the military judge erred in denying the defense implied bias challenge against LTC DS in light of his personal experience as a sexual assault victim, his direct supervisory role over two other members, his ongoing reliance on the trial counsel for military justice advice, the presence of four other members who also received military justice assistance from the trial counsel, and the fact that the panel was selected exclusively from appellant’s brigade.

Case Links:
ACCA opinion (summary affirmation)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
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’s website should no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

This week at SCOTUS: A pro se cert petition was filed in Wickware v. United States, No. 14-6677. CAAF addressed Wickware in a summary disposition last May, dismissing offenses that were charged in the alternative. I discussed Wickware in my analysis of the Navy-Marine Corps CCA’s decision in United States v. Hart, No. 201300295 (N-M.Ct.Crim.App. Aug. 19, 2014).

Additionally, I’m awaiting the results of last Friday’s conference where the Court considered the cert petition in McMurrin. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF will hear oral argument in one case this week, on Wednesday, October 15, 2014, at Marine Corps Base Camp Lejeune, North Carolina:

United States v. Gilbreath, No. 14-0322/MC (CAAFlog case page)

Issues:
I. Whether individual ready reservists, subject to punishment under the UCMJ, are entitled to the protections of Article 31(b) when questioned by senior service members about suspected misconduct committed on active duty.
II. Whether the military judge erred in concluding that Appellant’s statements were admissible under Article 31(b), UCMJ, and Military Rule of Evidence 305.

Case Links:
NMCCA opinion
Blog post: NMCCA finds that Article 31(b) does not apply to inactive reservists
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
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’s website should no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

Significant Military Justice Event: The Judicial Proceedings Panel will conduct a public meeting on Friday, October 10, 2014, from 8:45 a.m. to 5:00 p.m. at the Holiday Inn Arlington at Ballston, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available in this Federal Register notice.

This week at SCOTUS: Six of the military justice cases pending at the Supreme Court were considered in last week’s conference. As discussed in this post, the Court’s order list mentions none of them, meaning that certiorari was denied. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking just one case:

This week at CAAF: CAAF will hear oral argument in four cases this week. On Tuesday, October 7, 2014, beginning at 9:30 a.m. the court will hear two cases:

United States v. McFadden, No. 12-0501/AF (CAAFlog case page)

Issues:
I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.
II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Case Links:
AFCCA opinion
Blog post: Remaining silent isn’t a “lie of omission,” but it’s ok if a member thinks it is
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Katso, No. 14-5008/AF (CAAFlog case page)

Issue:
Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

Case Links:
AFCCA opinion
Blog post: A significant confrontation clause decision from the AFCCA
Blog post: CAAF grants USACIL additional time to file an amicus brief in Katso
Appellant’s (Government) brief
Appellee’s brief
Amicus brief (Defense Forensic Science Center / U.S. Army Criminal Investigation)
Blog post: Argument preview

On Wednesday, October 8, 2014, beginning at 9:30 a.m. the court will hear two cases:

United States v. Piren, No. 14-0453/AR (CAAFlog case page)

Issues:
I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.
II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.

Case Links:
ACCA opinion (summary affirmaton)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

 United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page)

Issues:
I. Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.
II. Whether the Air Force Court of Criminal Appeals erred in finding that images 8308, 8313, and 0870 did not constitute visual depictions of a minor engaged in sexually explicit conduct as a matter of law.

Case Links:
AFCCA opinion
Blog post: AFCCA Invites CAAF to Clarify its Position in Barberi
Blog post: CAAF grants review in Piolunek
Blog post: “Great idea, Judge Erdmann!” says the Air Force JAG
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Appellee’s (Government) reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, October 7, 2014, at 10 a.m.:

United States v. Robinson, No. 20120993

Issue: Whether the military judge abused his discretion in denying defense’s post-trial motion for a mistrial, which violated Appellant’s right to have his case decided by a panel of fair and impartial members because a panel member failed to disclose that his daughter had been sexually assaulted.

This week at the AFCCA: The Air Force CCA’s website should no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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 seven cases (six of which will be considered at Monday’s conference):

This week at CAAF: The next scheduled oral argument at CAAF is on October 7, 2014.

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

This week at the AFCCA: The Air Force CCA’s website should no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on October 1, 2014, at 10 a.m.:

United States v. Hoffmann

Case Summary: A panel of members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of attempted sodomy of a child, indecent liberties with a child, possession of child pornography, and enticement, in violation of Articles 80, 120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, 934 (Supp. 2007). The members sentenced the appellant to reduction to pay grade E-1, total forfeiture of pay and allowances, confinement for 7 years, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered it executed.

Issue: A search must be supported by probable cause. Here, to support a search authorization for child pornography, the supporting affidavit only asserted (1) allegations of a different crime, attempted child enticement, and (2) an NCIS agent’s opinion there is intuitive relationship between the two offenses. Did the military judge abuse his discretion by failing to suppress the evidence for lack of probable cause?

 

This week at SCOTUS: As Phil noted yesterday, the National Institute of Military Justice filed an amicus brief in McMurrin v. United States. A copy of the brief is available here. The Court scheduled McMurrin for conference on October 10.

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

This week at CAAF: The next scheduled oral argument at CAAF is on October 7, 2014.

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

This week at the AFCCA: The Air Force CCA’s website should no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next schedule oral argument at the Navy-Marine Corps CCA is on October 1, 2014.

Significant military justice event: A meeting of the Judicial Proceedings Panel will be held on Friday, September 19, 2014. The public session will begin at 8:45 a.m. and end at 5:00 p.m. The meeting will occur at the Holiday Inn, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Federal register notice available here.

This week at SCOTUS: The Solicitor General waived the Government’s right to respond to the cert petitions in Swiger v. United States and McMurrin v. United States. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 7, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on September 16, 2104, at 10 a.m.

United States v. Brown, No: 20130177

Issue: Whether the military judge abused his discretion by using the term “competent decision” to define “substantially incapacitated” in the jury instruction, thereby lessening the government’s burden of proof for the element of substantial incapacitation.

This week at the AFCCA: The Air Force CCA’s website should no scheduled oral arguments.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next schedule oral argument at the Navy-Marine Corps CCA is on October 1, 2014.