CAAFlog » TWIMJ

On Friday the Supreme Court requested a response to the cert. petition in Sterling v. United States, No. 16-814 (CAAFlog case page).

This week at SCOTUS: The Solicitor General received an additional extension of time to file a response to the cert. petition in Howell. Additionally, the cert. petition in Sterling was distributed for conference on Feb. 17, 2017. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on February 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 25, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 24, 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 February 15, 2017.

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Sterling. 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 four cases this week:

Tuesday, January 10, 2017, at 9:30 a.m.:

United States v. Davis, No. 16-0306/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals erred in refusing to apply de novo review for failure to instruct on an affirmative defense raised by the evidence, and instead found forfeiture and applied a plain error analysis, contrary to this court’s precedents in United States v. Taylor, 26 M.J. 127 (C.M.A. 1988); United States v. Davis, 53 M.J. 202 (C.A.A.F. 2000); and United States v. Stanley, 71 M.J. 60 (C.A.A.F. 2012).

Case Links:
ACCA opinion (75 M.J. 537)
Blog post: The ACCA tackles the standard of review for instructions not given
• Appellant’s brief 
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

United States v. Lopez, No. 16-0487/AR (CAAFlog case page)

Issue: Whether the military judge erred by admitting the testimony of appellant’s wife, Mrs. CL, who testified that appellant’s apology to his stepson meant that appellant was “loosely admitting guilt” to criminal conduct, and by also admitting the testimony of Ms. NM, who testified that appellant “had probably raped” his wife because Mrs. CL had recently researched “spousal rape” on the internet.

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

Wednesday, January 11, 2017, at 9:30 a.m.:

United States v. Price, No. 16-0611/AF (CAAFlog case page)

Issue: Whether the military judge abused his discretion by forcing appellant to admit to misconduct greater than was necessary for a provident plea.

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

Followed by:

United States v. Shea, No. 16-0530/AF (CAAFlog case page)

Issues:
I. Whether the Court of Criminal Appeals erred on remand when, over appellant’s timely objection, this case was assigned to a panel that did not include all three of the judges from the original decision.
II. Whether a reasonable observer would question the impartiality or independence of the Court of Criminal Appeals after witnessing the removal of Judge Hecker from this case on remand following the Government’s allegations that her impartiality has been impaired by the decision of the Judge Advocate General, who is himself part of the Government, to assign her to perform non-judicial additional duties within the government.

Case Links:
AFCCA opinion
AFCCA opinion on remand
Appellant’s brief
Appellee’s (Government) 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 January 25, 2017.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Cox on Thursday, January 12, at 4 p.m. at the Ohio State University Moritz College of Law, 55 West 12th Ave, Columbus OH 43210. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 15, 2017.

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: The next scheduled oral argument at CAAF is on January 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 22, 2017.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Pugh on Wednesday, January 4, 2017, at 10 a.m. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 15, 2017.

This week at SCOTUS: A cert. petition was filed in Sterling last week (noted here). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 22, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 4, 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 February 15, 2017.

This week at SCOTUS: The Court extended the deadline for the SG to file the requested response in Howell. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 22, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 4, 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 February 15, 2017.

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: The next scheduled oral argument at CAAF is on January 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Tuesday, December 13, 2016, at 10 a.m.: United States v. Moore, No. 20140875

Issue: WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE INSTRUCTED THE PANEL THAT IT COULD CONSIDER THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES WITHOUT NOTICE TO THE DEFENSE OR FOLLOWING THE PROCEDURAL REQUIREMENTS FOR ITS ADMISSION.

Thursday, December 15, 2016, at 10 a.m.: United States v. Hadley, No. 20150766

Issue: WHETHER THERE IS A FATAL VARIANCE WHEN THE GOVERNMENT ALLEGED THAT APPELLANT POSSESSED IMAGES OF ACTUAL MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT BUT THE MILITARY JUDGE FOUND THE APPELLANT GUILTY, BY EXCEPTIONS AND SUBSTITUTIONS, OF POSSESSING OBSCENE DIGITAL IMAGES OF WHAT APPEARED TO BE MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 4, 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 February 15, 2017.

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 will hear oral argument in four cases this week:

Tuesday, December 6, 2016, at 9:30 a.m.

United States v. Rosario, No. 16-0424/MC (CAAFlog case page)

Issue: Whether the lower court erred in conducting its Article 66(C), UCMJ, review by finding as fact allegations that supported charges of which Sgt Rosario was acquitted to affirm the findings and sentence.

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

Followed by:

United States v. Commisso, 16-0555/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby violating appellant’s right to have his case decided by a panel of fair and impartial members, because three panel members failed to disclose that they had prior knowledge of the case.

Case Links:
ACCA opinion
Blog post: CAAF to review member disclosures
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, December 7, 2016, at 9:30 a.m.:

United States v. Boyce, No. 16-0546/AF (CAAFlog case page)

Issue: The Chief of Staff of the Air Force advised the convening authority that, unless he retired, the Secretary of the Air Force would fire him. Was the convening authority’s subsequent referral of charges unlawfully influenced by the threat to his position and career?

Case Links:
AFCCA opinion
Blog post: CAAF specifies an issue involving Air Force Lieutenant General Franklin
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Dalmazzi, No. 16-0651/AF (CAAFlog case page)

Issue [specified by CAAF on November 21 (discussed here)] : Whether the issues granted for review are moot where the record reflects that: Martin T. Mitchell took an oath purporting to install him as a judge of the U.S. Court of Military Commission Review (CMCR) on May 2, 2016; the Air Force Court of Criminal Appeals (AFCCA) issued an opinion in the underlying case with Judge Mitchell participating in his capacity as an AFCCA judge on May 12, 2016; and the President did not appoint Mitchell to the CMCR until May 25, 2016.

Case Links:
AFCCA opinion
Blog post: CAAF to review whether an appellate military judge can sit on both a CCA and the CMCR
Blog post: CAAF grants oral argument to the Military Commissions Defense Organization as amicus in support of neither party in Dalmazzi
Blog post: Potential mootness in Dalmazzi
Appellant’s brief on specified issue
Appellee’s (Government) brief on specified issue

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 13, 2016.

This week at the AFCCA: The Air Force CCA’s website is inaccessible.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in United States v. Bailey on Thursday, December 8, 2016, at 10 a.m.. The argument will occur in the Navy-Marine Corps Court of Criminal Appeals Courtroom at 254 Charles Morse St. SE, Washington Navy Yard, Bldg. 58, Washington, DC, 20374. The granted issues are:

I. A CRIMINAL STATUTE IS UNCONSTITUTIONALLY VAGUE IF A PERSON CANNOT REASONABLY DISCERN WHETHER THE CONTEMPLATED CONDUCT IS CRIMINAL. HERE, SN BAILEY WAS CONVICTED OF ENGAGING IN A SEXUAL ACT WITH LH WHEN SHE WAS “INCAPABLE OF CONSENTING DUE TO IMPAIRMENT” IN VIOLATION OF ART. 120(B)(3) OF THE UCMJ. THE LAW DOES NOT DEFINE WHAT LEVEL OF IMPAIRMENT RENDERS A PERSON INCAPABLE OF CONSENTING. IS THE STATUTE VOID FOR VAGUENESS?

II. THE MILITARY JUDGE MUST GIVE ALL NECESSARY INSTRUCTIONS THAT ARE PROPERLY REQUESTED BY THE PARTIES. HERE, THE MILITARY JUDGE REFUSED TO INSTRUCT THE MEMBERS ON A LEGALLY CORRECT DEFINITION OF “INCAPABLE” AS REQUESTED BY THE DEFENSE TO AVOID UNCONSTITUTIONAL VAGUENESS. THIS WAS ERROR.

The Court directs the parties to address the following:

1. The effect on the issues, if any, of United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016).

2. Whether the military judge, having denied the defense’s proposed instruction, should have given some other instruction on the subject.

3. Whether Pease affects the analysis of the sufficiency of evidence

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

This week at SCOTUS: Last week the Court requested a response to the cert. petition in Howell. The response is due on December 23, 2016. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on December 6, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 13, 2016.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Walters on Wednesday, November 30, 2016, at 1 p.m. No additional information is available on the CCA’s website.

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

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

This week at SCOTUS: The cert petition in Howell was distributed for conference on December 2. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on December 6, 2016.

This week at the ACCA: The Army CCA will hear oral argument in United States v. Carista, No. 20150243, on Tuesday, November 22, 2016, at 10 a.m., on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN HIS APPLICATION OF MILITARY RULE OF EVIDENCE 412 BY ALLOWING THE GOVERNMENT TO INTRODUCE EVIDENCE OF PRIOR SEXUAL CONDUCT OF THE ALLEGED VICTIM OVER DEFENSE OBJECTION.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Honea on Tuesday, November 21, 2016, at 10 a.m. No additional information is available on the CCA’s website.

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

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

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Howell. 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 four cases this week:

Tuesday, November 15, 2016, at 9:30 a.m.:

United States v. Bartee, No. 16-0391/MC (CAAFlog case page)

Issue: The systematic exclusion of individuals by rank from the member-selection process is prohibited. Here, the military judge dismissed the panel for violating Article 25, UCMJ, but the convening authority reconvened the exact same panel the same day. Is this systematic exclusion based on rank reversible error?

Case Links:
NMCCA opinion
Blog post: CAAF to revisit the exclusion of members on the basis of rank
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Sager, No. 16-0418/NA (CAAFlog case page)

Issues:
I. In affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted appellant. Was this error?
II. Article 120(d), UCMJ, prohibits sexual contact on another person when that person is “asleep, unconscious, or otherwise unaware.” Despite these specific statutory terms, the lower court held that “asleep” and “unconscious” do not establish theories of criminal liability, but only the phrase “otherwise unaware” establishes criminal liability. Did the lower court err in its interpretation of Article 120(d), UCMJ?

Case Links:
NMCCA opinion
Blog post: CAAF to review the alternative ways to sexually assault someone who is unaware
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, November 16, 2016, at 9:30 a.m.

United States v. Swift, No. 16-0407/AR (CAAFlog case page)

Issues:
I. Whether the Army court denied appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses.
II. Whether the military judge erred by admitting appellant’s pretrial statement where there was no independent evidence to corroborate the essential facts admitted.
[specified issue] III. Whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

Case Links:
ACCA opinion
Blog post: Two interesting CAAF grants involving the hearsay rule
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Haverty, No. 16-0423/AR (CAAFlog case page)

Issue: Whether the military judge committed plain error when he failed to instruct the panel on the mens rearequired for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

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

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Friday, November 18, 2016, at 10 a.m.:

United States v. Burris, No. 20150047

Issues:
I. Whether trial counsel’s improper use of character evidence, numerous references to Major Burris as “the beast” during the trial, and argument that Major Burris is guilty because he is “a beast” who “doesn’t reason” and “doesn’t care” undermine confidence that the members convicted Major Burris on the basis of the evidence alone.
II. Whether the military judge erred by failing to instruct the members on the special defense of mistake of fact as to consent.
[III]. Whether trial counsel’s improper commentary during closing argument regarding Major Burris’ exercise of his right to remain silent requires reversal.
[IV]. Whether Major Burris’ trial defense counsel were ineffective during the sentencing phase of the court-martial.

Disclosure: I am civilian appellate defense counsel for Major Burris.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Cook, No. 38909, on Thursday, November 17, 2016, at 3 p.m. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The 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 two cases:

This week at CAAF: The next scheduled oral argument at CAAF is on November 15, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 18, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 17, 2016.

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 two cases:

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

Tuesday, November 1, 2016, at 2:30 p.m., at the University of Colorado Law School, Boulder, Colorado

United States v. Bowen, No. 16-0229/AF (CAAFlog case page)

Issue: Whether the military judge erred in applying the “excited utterance” exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that appellant’s wife nodded her head in response to a question whether her husband “did this,” and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. SeeM.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

Case Links:
AFCCA opinion
Blog post: Two interesting CAAF grants involving the hearsay rule
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Amicus in support of Appellant
Amicus in support of Government
Blog post: Argument preview

Wednesday, November 2, 2016, at 2 p.m., at Peterson Air Force Base, Colorado Springs, Colorado:

United States v. McClour, No. 16-0455/AF (CAAFlog case page)

Issue: Whether AFCCA erred when it failed to grant relief where the military judge instructed the members, “if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense 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:
AFCCA’s opinion
Blog post: CAAF to review the closing instructions given in Air Force cases
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Friday, November 4, 2016, at 10 a.m.:

United States v. Fitzpatrick, No. 20140725

Issues:
I. Whether Specifications 1 and 3 of Charge I alleging indecent conduct fail to state an offense when this court has held that the alleged misconduct is not indecent conduct.

II. Whether Specification 2 of Charge I is factually and legally sufficient when the government failed to present evidence placing the charged misconduct within or near the alleged date range.

III. Whether Specifications 1 and 4 of Charge III and Specification 3 of Additional Charge III are legally and factually sufficient with respect to clause three, Article 134, UCMJ, when the government presented no evidence that the charged conduct took place within the exclusive or concurrent jurisdiction of the united states.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 17, 2016.

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: Last Monday a petition for certiorari was filed in Howell v. United States, No. 16-536. In Howell v. United States, 75 M.J. 386 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page), CAAF unanimously affirmed that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, but split 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute.

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 four cases this week:

Tuesday, October 25, 2016, at 9:30 a.m.:

United State v. Fetrow, No. 16-0500/AF (CAAFlog case page)

Issues:
I. Whether the Air Force Court of Criminal Appeals committed legal error when it found that in order for conduct to constitute child molestation under Mil. R. Evid. 414, the conduct must have been an offense under the UCMJ, or federal or state law, at the time it was committed and, if offered under Mil. R. Evid. 414(d)(2)(a)-(c), that the conduct must meet the definition of an offense listed under the version of the applicable enumerated statute in effect on the day of trial.

II. Whether the Air Force Court of Criminal Appeals committed legal error when it found that the erroneous admission of two acts of indecent liberties committed by appellee on his child age daughter had a substantial influence on the members’ verdict requiring set aside of the findings and sentence.

Case Links:
AFCCA’s opinion (75 M.J. 574)
Blog post: A significant Mil. R. Evid. 414 decision
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Blog post: Argument preview

Followed by:

United States v. Dockery, No. 16-0296/AF (CAAFlog case page)

Issues:
I. Whether the military judge erred by granting, over defense objection, the Government’s challenge for cause against MSgt LW.

II. Whether the Air Force Court of Criminal Appeals erred by finding that the military judge did not err, and by concluding that even if the military judge did err there was no prejudice, contrary to this court’s precedent in United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015), United States v. Woods, 74 M.J. 238 (C.A.A.F. 2015), United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012), United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007), and United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995).

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

Wednesday, October 26, 2016, at 9:30 a.m.:

United States v. Gomez, No. 16-0336/CG (CAAFlog case page)

Issue: Whether the military judge erred by permitting two complaining witnesses to testify on sentencing that appellant was responsible for their pregnancy complications with no evidence connecting his misconduct to the complications.

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

Followed by:

United States v. Wilson, No. 16-0267/AR (CAAFlog case page)

Issue: Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

Case Links:
ACCA 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 November 4, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 17, 2016.

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: An extension of time to file a petition for certiorari was granted in Sterling v. United States, No. 16A353. In the Marine Corps case of United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016) (CAAFlog case page), CAAF concluded that Lance Corporal Sterling’s disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA) but that she failed to establish that the order substantially burdened her exercise of religion.

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 Tuesday, October 25, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 4, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 22, 2016.

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, October 20, 2016 at 10 a.m.:

United States v. Gebert

Summary: A military judge sitting as general court-martial convicted the appellant, contrary to his pleas, of one specification of communicating a bomb threat, in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2012). The military judge sentenced the appellant to confinement for seven months, reduction to pay grade E-1, and a bad conduct discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.

Issue:
I. COMMUNICATING A THREAT REQUIRES A PURPOSEFUL AND INTENTIONAL MENS REA. THE MILITARY JUDGE ONLY REQUIRED A MENS REA OF RECKLESSNESS. DID THE MILITARY JUDGE ERR BY APPLYING A LESSER MENS REA TO THE COMMUNICATING A THREAT SPECIFICATION?

II. THE GOVERNMENT WAS REQUIRED TO PROVE A PURPOSEFUL AND INTENTIONAL MENS REA BEYOND A REASONABLE DOUBT. APPELLANT’S COMMUNICATION WAS OBJECTIVELY AND SUBJECTIVELY MADE IN JEST. WAS THE EVIDENCE FACTUALLY AND LEGALLY SUFFICIENT?