CAAFlog » TWIMJ

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

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014. Additionally, CAAF recently published its oral argument calendar for the next term:

September 2014: 9
October 2014: 7, 8, 14, 15, 21
November 2014: 18, 19
December 2014: 9, 10
January 2015: 13, 14, 27
February 2015: 10, 11, 24, 25
March 2015: 17, 18
April 2015: 14, 15, 28, 29
May 2015: 12, 13
June 2015: 9

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 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’s website shows no scheduled oral arguments.

This week at SCOTUS: Another jurisdictionless pro se cert petition was docketed last week, in Newton v. United States, No. 14-5284. CAAF denied review in the case on April 15, 2014. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014.

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 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’s website shows no scheduled oral arguments.

This week at SCOTUS: Two jurisdictionless pro se cert petitions were docketed last week. The first was in Hatley v. United States, No. 14-5131. CAAF denied petitioner’s writ-appeal on April 1, 2014. This is the petitioner’s second attempt to obtain Supreme Court review of his case; the first was discussed here (and details of his court-martial are here and here). The second petition filed last week was in Manciagonzalez v. United States, No. 14-5146. CAAF denied review on January 13, 2014. The NMCCA rejected a factual and legal sufficiency challenge in an opinion available here. The petition was actually filed back in March, but was docketed on July 10.

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

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014.

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 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’s website shows no scheduled oral arguments.

This week at SCOTUS: The cert petition in Hornback was distributed for conference on September 29. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

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 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’s website shows no scheduled oral arguments.

This week at SCOTUS: A cert petition was filed in Hornback v. United States, No. 13-1533, on June 23, 2014. The Solicitor General waived the right of the Government to respond three days later. In the Marine Corps case of United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), CAAF found that significant prosecutorial misconduct occurred, but in a 3-2 split concluded that the error was ultimately not prejudicial, affirming the judgment of the NMCCA and the appellant’s convictions.

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

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, July 2, 2014, at 2 p.m.:

United States v. Bram, No. 20110935

Issues:
I. Due process imposes a sua sponte duty on military judges to instruct panel members on any special defenses reasonably raised by the evidence. Specification 3 of Charge II alleges that SSG Bram solicited the murder of an Afghan noncombatant. The evidence adduced at trial established that the noncombatant in question was believed to be a member of the Taliban capable of detonating an explosive device against U.S. forces. Did the military judge’s failure to instruct the panel on the special defenses of justification and mistake of fact violate SSG Bram’s right to due process?
II. Whether the evidence is legally and factually sufficient to sustain SSG Bram’s conviction for soliciting the murder of an afghan noncombatant where the evidence adduced at trial established that his intended targets were enemy combatants engaged in triggering explosive devices against U.S. forces.

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 Tuesday, July 1, 2014, at 11 a.m.:

United States v. Howard

Case summary: 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 by causing bodily harm and one specification of Adultery, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (Supp. 2007). The members sentenced the appellant to reduction to pay grade E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered it executed.

Issue: A military judge must instruct on an affirmative defense if the record contains some evidence of the defense that the members could choose to credit. Here, relying on the victim’s testimony about her actions before, during, and after the sexual act with the appellant, the military judge found some evidence raising the affirmative defense of consent under Article 120(r), Uniform Code of Military Justice, 10 U.S.C. § 920(r) (Supp. 2007). Yet the military judge found that same evidence insufficient to raise the affirmative defense of mistake of fact as to consent under Article 120(r), UCMJ. Was this error?

This week at SCOTUS: The Solicitor General waived the right of the Government to respond to the cert petition in Finch and it was set for conference on September 29, 2014. Additionally, an application to extend the time to file a cert petition in McMurrin v. United States, No. 13A1242, was filed on June 18, 2014. Considering CAAF denied review in McMurrin back in February (discussed here), I’ll be very interested in the jurisdictional basis for any petition filed in the case.

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

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

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

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 Thursday, June 26, 2014:

United States v. Hinojos

Case summary: A panel of members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of Aggravated Sexual Assault and one specification of Abusive Sexual Contact, both in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2006). The members sentenced the appellant to a dishonorable discharge and seven years confinement. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered it executed.

Issue: Whether the military judge abused his discretion by allowing the Government’s DNA expert to testify at trial, over Defense objection, that DNA recovered from the victim’s underwear matched a DNA sample taken from the Appellant, when the Government offered no independent evidence that a DNA sample was ever taken from the Appellant, nor any chain of custody linking the tested sample to the Appellant.

 

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

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week, on Wednesday, June 18, 2014, at 10 a.m.:

United States v. Verdejo Ruiz, No. 37957 

Issue: Whether the military judge erred by denying Appellant’s motion to suppress involuntary statements made after law-enforcement agents promised him confidentiality. 

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 June 26, 2014.

This week at SCOTUS: A cert petition was filed in Finch v. United States, No. 13-1440, on June 3, 2014. In the Air Force case of United States v. Finch, 73 M.J. 144 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), CAAF narrowly affirmed the decision of the Air Force CCA, rejecting the appellant’s claim that the maximum authorized confinement for his child pornography offenses was just eight months and finding no substantial basis to question the providence of his pleas of guilty to possession and distribution of child pornography in violation of clauses 1 and 2 of Article 134.

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

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, at 10 a.m. on Thursday, June 12, 2014:

United States v. Keefauver, No. 20121026

Issues:
I. Whether the finding as to the specification of Charge I was sufficient as a matter of fact and law because SPC Keefauver could not have constructively possessed the box containing marijuana.
II. Whether the military judge abused his discretion when he failed to suppress all evidence after the box was found.
III. Whether the military judge erred when he admitted into evidence, over defense objection, marijuana found during a search of first class mail that was not covered by a warrant in violation of the fourth amendment.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 18, 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 June 26, 2014.

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 the final two oral arguments of the term on Wednesday, June 4, 2014, beginning at 9:30 a.m.:

United States v. Wilson, No. 14-5003/AF (CAAFlog case page)

Certified Issue: Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

Case Links:
• AFCCA opinion (2012)
• AFCCA opinion (73 M.J. 529)
• Blog post: The back-to-the-future theory of certification?
• Appellant’s (Government) brief
• Appellee’s brief
• Appellant’s (Government) reply brief
• Blog post: Argument preview

United States v. McPherson, No. 14-0348/AF & 14-5002/AF (CAAFlog case page)

Certified Issue: Whether Article 12, UCMJ, applies to the circumstance where an accused and/or convicted member of the armed forces is confined in immediate association with foreign nationals in a state or federal facility within the continental limits of the United States.

Granted Issue: There is a split in the service courts. In this case and at least 10 unpublished cases, the Air Force Court of Criminal Appeals (AFCCA) has held that an appellant must exhaust administrative remedies before relief can be granted under Article 12, UCMJ. No other service court has held the same. Given the legislative history of Article 12, UCMJ, did the AFCCA err when it required appellant to exhaust administrative remedies before receiving relief?

Case Links:
• AFCCA opinion (72 M.J. 862)
• Blog post: AFCCA Goes Back to the Future to Find Corroboration for Confession
• Blog post: The Air Force certifies McPherson
• Blog post: CAAF partially grants in McPherson, sets argument for June
• Appellant’s (Government) brief
• Appellee’s brief
• Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, at 10 a.m. on Wednesday, June 4, 2014:

United States v. Schwin, No. 20130538

Issue:
I. Whether the military judge abused his discretion by applying an incorrect legal principle in accepting the accused’s plea to Charge III for housebreaking in violation of Article 130, UCMJ.

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

Significant military justice event this week: The Response Systems Panel will conduct a public meeting this week on Thursday and Friday, May 29 and 30, at the U.S. District Court for the Southern District of New York, Marshall Courthouse, Courtroom 506 40 Centre Street (40 Foley Square), New York, New York. Further information including the meeting agenda is available here.

This week at SCOTUS: On May 29 the Chief Justice granted an extension of time to file a petition in Hornback v. United States, No. 13A1138. CAAF decided the Marine Corps case of United States v. Hornback, 73 M.J. 155 (C.A.A.F. 2014) (CAAFlog case page) in March. The court found “that significant prosecutorial misconduct occurred, but that the error was ultimately not prejudicial,” affirming the judgment of the NMCCA and Appellant’s convictions. Slip op. at 1. But the court was sharply divided on the question of prejudice, with Judge Stucky writing for the majority and Chief Judge Baker and Judge Ohlson both dissenting with separate opinions (the Chief Judge also joined Judge Ohlson’s separate opinion).

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 June 4, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, at 10 a.m. on Wednesday, May 28, 2014:

United States v. Murray, No. 20111120

Issues:
I. Whether the military judge abused his discretion when he denied the defense request for expert assistance in the field of forensic psychology because appellant demonstrated the necessity for the expert assistant and the government failed to provide an adequate substitute.
II. Whether the military judge abused his discretion in denying appellant’s motion to inquire into the validity of the findings where the president of the panel improperly brought extraneous information to the attention of the other members and where the president of the panel committed unlawful command influence during the deliberations on findings.

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week, at 10 a.m. on Thursday, May 29, 2014:

United States v. Spielman, No. 38285

Issues:
I. Whether the evidence is factually and legally insufficient to sustain appellant’s conviction of the offenses of which he was found guilty.
II. Whether trial counsel made improper, prejudicial arguments during findings when he disparaged defense counsel and the accused and interjected his own beliefs and opinions into the proceedings.

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 this week: CAAF’s annual CLE is this week. I will be there and look forward to meeting any of you who attend.

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 June 4, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 28, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 29, 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: I’m not aware of any military justice developments at the Supreme Court.

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

Tuesday, May 13, 2014:

United States v. MacDonald, No. 14-0001/AR (CAAFlog case page)

Issues:
I. Whether the Army Court of Criminal Appeals erred in determining that the military judge’s error in quashing a subpoena issued to Pfizer, Inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline was harmless beyond a reasonable doubt.
II. Whether the military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.

Case Links:
• ACCA opinion
• Blog post: CAAF to explore the bounds of possible drug-induced psychosis
• Appellant’s Brief
• Appellee’s (Government) Brief
• Blog post: Media coverage of United States v. MacDonald, No. 14-0001/AR
• Blog post: Argument preview

Followed by:

United States v. Treat, No. 14-0280/AR (CAAFlog case page)

Issue:
Whether there is a fatal variance and a violation of Appellant’s due process right to notice when the Government alleged that Appellant missed the movement of a particular aircraft but the proof established that he missed the movement of a particular unit.

Case Links:
• ACCA opinion __ M.J. __
• Blog post: The ACCA’s mistaken conclusion in a missing movement case
• Blog post: CAAF grants in Treat
• Blog post: Is the Army CCA treating contested cases differently?
• Appellant’s brief
• Appellee’s (Government) brief
• Blog post: Argument preview

Wednesday, May 14, 2014:

United States v. Leahr, 14-0265/CG (CAAFlog case page)

Issues:
I. Whether the military judge erred in denying the defense motion to dismiss for violation of appellant’s right to speedy trial under RCM 707.
II. Whether the government’s withdrawal of charges and re-referral to another court-martial was in violation of RCM 604(b) because they were previously withdrawn for an improper reason.
III. Whether appellant was denied a fair trial when the military judge twice suggested in front of the members that appellant was guilty, first by “thanking” a witness for his efforts to protect the victim, and then by asking defense counsel before findings whether a witness would be subject to recall as a “sentencing witness.”

Case Links:
• CGCCA opinion
• 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 May 28, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 29, 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 United States v. Cole on Thursday, May 15, 2014:

Case summary: A military judge sitting as a general court-martial convicted the appellant, pursuant to his plea, of one specification of possession of child pornography in violation of Article 134, UCMJ, 10 U.S.C. §§ 934, (2012). The military judge sentenced the appellant to eleven months confinement and a dismissal. The Convening Authority approved the sentence as adjudged, and except for the dismissal, ordered the sentence executed.

Issues:
I. Whether the military judge abused his discretion by not suppressing the fruits of a search where, in obtaining a search warrant for the appellant’s home, NCIS enlisted Anne Arundel County Police Department’s assistance to obtain a search warrant from a Maryland state judge after a federal magistrate judge refused to issue a search warrant due to lack of probable cause and where the Maryland warrant application omitted a material fact used in the failed federal warrant application?
II. Whether the appellant’s Fourth Amendment rights were violated when NCIS executed the Maryland search warrant?

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 May 13, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, May 8, 2014:

United States v. Michaels, No. 20110288

Issue: [Whether] the evidence is factually and legally insufficient to support the findings of guilty.

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 next scheduled oral argument at the Navy-Marine Corps CCA is on May 15, 2014.

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

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

Monday, April 28, 2014, at 9:30 a.m.:

United States v. Moon, No. 13-0536/AR (CAAFlog case page)

Issues:
I. Whether Specification 2 of the Additional Charge is void for vagueness because Appellant was not given fair notice that the charged conduct of possessing “multiple images of nude minors and persons appearing to be nude minors” was forbidden and subject to criminal action.
II. Whether there is a substantial basis in law to question Appellant’s guilty plea to Specification 2 of the Additional Charge, which alleges that Appellant possessed “multiple images of nude minors and persons appearing to be nude minors.”

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

Followed by:

United States v. Davenport, No. 13-0573/AR (CAAFlog case page)

Issue:
Whether the omission of testimony from a trial transcript renders the transcript non-verbatim and therefore subject to the remedy in R.C.M. 1103(f)(1) where the witness’s testimony is only relevant to an offense of which appellant has been acquitted; or, whether such omission should be addressed under R.C.M. 1103(b)(2)(a) (requirement for a complete record) and thus tested for whether the presumption of prejudice has been rebutted. See United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013); United States v. Henry, 53 M.J. 108 (C.A.A.F. 2000).

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

Tuesday, April 29, 2014, at 9:30 a.m.:

United States v. Cimball Sharpton, No. 14-0158/AF (CAAFlog case page)

Issue:
Whether the Air Force court abused its discretion in finding the evidence legally sufficient to support a conviction for larceny from the Air Force.

Case Links:
• AFCCA opinion (72 M.J. 777)
• Blog post: AFCCA explains that larceny charges involving credit cards aren’t that complicated. . .
• CAAF grants review in Cimball Sharpton
• Appellant’s brief
• Appelllee’s (Government) brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 8, 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 next scheduled oral argument at the Navy-Marine Corps CCA is on May 15, 2014.

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 April 28, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 8, 2014.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Wade, No. 38332, on Wednesday, April 23, 2014, at 10 a.m. The court will consider a single issue:

[Whether] the military judge abused his discretion in denying a Defense motion to compel the production of a witness whose testimony was both relevant and necessary because he would have testified to Appellant’s good military character in defense of the charges.

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 May 15, 2014.