CAAFlog » TWIMJ

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 arguments at CAAF are on March 27, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, March 21, 2019, at 10 a.m.:

United States v. Sanchez, No. 20140735

Issue: Whether the military judge erroneously considered charged conduct under Military Rule of Evidence 413.

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

This week at the CGCCA: The Coast Guard CCA’s website 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.

This week at CAAF: The next scheduled oral arguments at CAAF are on March 27, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2019.

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

This week at the CGCCA: The Coast Guard CCA’s website 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 Monday, March 11, 2019, at 1 p.m.:

United States v. Armendariz, NMCCA No.201700338

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of violating a lawful general order, violating a lawful general regulation, sexual assault, abusive sexual contact, and adultery in violation of Articles 92, 120, and 134, UCMJ, 10 U.S.C. §§ 892, 920, 934 (2016). The Members sentenced Appellant to eighteen months’ confinement and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed.

Issue: Did the military judge abuse his discretion in denying the defense’s motion to suppress evidence seized during searches on 25-26 July 2016 of MSgt Armendariz’s body, phones, vehicle, office, and office wall locker?

Significant military justice event this week: CAAF’s 2019 Continuing Legal Educationand Training Program is this week, on Wednesday and Thursday, March 6-7, at American University Washington College of Law. Additional information is available here.

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

This week at CAAF: The next scheduled date for oral arguments at CAAF is March 19, 2019

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2019.

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 11, 2019.

This week at SCOTUS: The cert. petition in Larrabee was denied last week. I’m not aware of any military justice developments at the Supreme Court.

This week at CAAF: The next scheduled date for oral arguments at CAAF is March 19, 2019

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 5, 2019.

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

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

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows an oral argument in one case this week, on Friday, March 1, 2019, that appears to be a rescheduling of an argument originally scheduled for January 31:

United States v. Baas, No. 201700318

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of conspiracy, one specification of making a false official statement, two specifications of committing a sexual act upon a child, two specifications of producing child pornography with intent to distribute, and two specifications of distributing child pornography in violation of Articles 81, 107, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, 920b, and 934 (2012). The appellant was sentenced to fifteen years’ confinement, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed.

Issues:
I. Did the military judge abuse his discretion in admitting the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer?

II. Did the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer constitute testimonial hearsay, the admission of which violated the Sixth Amendment?

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 arguments in four cases this week:

Tuesday, February 19, 2019, at 9:30 a.m.

United States v. McDonald, No. 18-0308/AR (CAAFlog case page)

Issue: Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Gleason, No. 18-0305/AR (CAAFlog case page)

Issue: Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, February 20, 2019, at 9:30 a.m.

United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page)

Issue: Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Voorhees, No. 18-0372/AF (CAAFlog case page)

Issues:
I. Whether the AFCCA erred in finding no plain error despite trial counsel’s argument on findings that personally attacked appellant and trial defense counsel, commented on Appellant’s silence, expressed his personal opinions, bolstered his own credibility, vouched for government witnesses, speculated, and made reference to facts not in evidence.

II. Whether the AFCCA erred in finding that the specifications alleging violations of Article 133, UCMJ, stated an offense despite the fact that they lack words of criminality or a mens rea.

III. Whether plain error occurred when the military judge failed to instruct the members that mens rea was an element of an offense under Article 133.

Case Links:
First AFCCA opinion
Second AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week:

Thursday, February 21, 2019, at 2 p.m.:

United States v. Pacheco, No. 20150725

Issues:
I. Whether the evidence was legally sufficient to convict appellant of child endangerment (Specification 1 of Charge II).

II. Whether the military judge erred in denying defense counsel the ability to cross-examine JP on prior specific acts of violence and present evidence of JP’s prior acts of violence through defense witnesses.

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 1, 2019.

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 arguments at CAAF are on February 19, 2019.

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

Tuesday, February 12, 2019, at 10 a.m.:

United States v. Steele, No. 20170303

Issues:
I. Whether the convening authority improperly approved the appellant’s sentence without a substantially verbatim transcript, in violation of Rule for Courts-Martial 1103(f)(1).

II. Whether the evidence is legally and factually insufficient to support the appellant’s conviction for indecent exposure.

Wednesday, February 13, 2019, at noon:

United States v. Lopez, No. 20170386

Issues:
I. Whether the Fort Benning garrison commander had the legal authority to order searches in privatized housing at Porter Village.

II. Does MCOE regulation number 190-11 prohibit the possession of unregistered firearms (or other applicable weapons) in Porter Village? If not, did the garrison commander still have a substantial basis for concluding that probable cause existed to search appellant’s house?

III. Assuming there was not probable cause to search appellant’s house, does the good faith exception apply? See United States v. Thomas, 908 F.3d 68 (4th cir. 2018); see also United States v. Perkins, 78 M.J. 550 (N.M. Ct. Crim. App. 2018) (certificate of rev. filed) __ M.M. __ (C.A.A.F. 10 Sep. 2018).

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

This week at the CGCCA: The Coast Guard CCA’s website 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, February 14, 2019, at 10 a.m.:

United States v. King, No. 201800016

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted appellant, a Master-At-Arms Seaman (E-3), contrary to his pleas, of one specification of sexual assault in violation of Article 120, UCMJ. The members sentenced him to confinement for eight years, reduction to the pay grade of E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The CA ordered the sentence executed, except for the dishonorable discharge.

Issues:
I. Does Article 120(b)(1)(B) of the UCMJ fail to provide adequate standards by which an ordinary person can intelligently choose, in advance, whether a sexual encounter would be lawful, rendering it unconstitutionally vague?

II. Were the findings instructions plainly erroneous because lack of consent was not included as an element of the offense of sexual assault by bodily harm, and because the instructions would have permitted a conviction without the prosecution proving lack of consent beyond a reasonable doubt?

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 arguments at CAAF are on February 19, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 12, 2019.

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

This week at the CGCCA: The Coast Guard CCA’s website 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 Larrabee is scheduled for conference on February 15, 2019. 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 dates at CAAF are February 19-20, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, January 29, 2019, at 6 p.m., at the Yale University School of Law, Levinson Auditorium, 127 Wall Street, New Haven, Connecticut 06511:

United States v. Miller, No. 20180023

Issue: Whether the military judge erred in denying appellant’s motion to suppress the evidence seized from his quarters.

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

This week at the CGCCA: The Coast Guard CCA’s website 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 Tuesday, January 31, 2019, at 10 a.m.:

United States v. Baas, No. 201700318

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of conspiracy, one specification of making a false official statement, two specifications of committing a sexual act upon a child, two specifications of producing child pornography with intent to distribute, and two specifications of distributing child pornography in violation of Articles 81, 107, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, 920b, and 934 (2012). The appellant was sentenced to fifteen years’ confinement, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed.

Issues:
I. Did the military judge abuse his discretion in admitting the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer?

II. Did the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer constitute testimonial hearsay, the admission of which violated the Sixth Amendment?

The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument this morning on a petition for a writ of mandamus in the long-running military commission of al Nashiri, who is accused of orchestrating the 2000 bombing of USS Cole.

The argument docket page (with a link to listen live) is here.

The basis for the petition is a challenge to former military commissions judge Colonel Spath (now retired) based on the fact that while serving as a commissions judge in al Nashiri’s case prior to his retirement, he sought employment as a federal immigration judge. The writ petition is available here. The Government’s response in opposition is available here. A reply brief is available here.

This week at SCOTUS: Larrabee filed this reply brief. I’m not aware of any other 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, January 22, 2019, at 9:30 a.m.

United States v. Smith, No. 18-0211/AR (CAAFlog case page)

Issues:
I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances.

II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought.

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

Followed by:

United States v. Perkins, No. 18-0365/MC (CAAFlog case page)

Issues:
I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule.

II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home.

Case Links:
NMCCA opinion (75 M.J. 120)
Blog post: JAG certifies
Appellant’s brief
Appelllee’s (N-M App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, January 23, 2019, at 9:30 a.m.

United States v. Hutchins, No. 18-0234/MC (CAAFlog case page)

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

Case Links:
NMCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (N-M App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Meakin, No. 18-0339/AF (CAAFlog case page)

Issue: Whether Appellant’s conviction for engaging in anonymous, private, and consensual communications with an unknown partner(s) in the privacy of his home was legally sufficient.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (N-M App. Gov’t Div.) 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 January 22, 2019, at 2 p.m.:

United States v. White, No. 20160187

Issues:
I. Whether the military judge erred by not suppressing appellant’s statement that was taken without appellant being advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

II. Whether the military judge erred by not suppressing appellant’s statement that was taken without appellant being advised of his rights under Article 31, UCMJ.  See, e.g., United States v. Redd, 67 M.J. 581, 586 (Army Ct. Crim. App. 2008).

III. If appellant’s pretrial admissions were based on an incorrect belief that a person cannot legally consent to sexual intercourse after consuming alcohol, is his conviction of the Specification of Charge I factually sufficient?

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

This week at the CGCCA: The Coast Guard CCA’s website 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, January 24, 2019, at 10 a.m.:

United States v. Olivares, No. 201800125

Case Summary: The case is an interlocutory government appeal pursuant to Article 62, UCMJ. The accused faces, inter alia, charges of sexual assault and sexual harassment. The military judge found the sole Specification of Charge I (violation of a lawful general order) failed to state an offense, finding that United States Navy General Regulations (1990) Article 1166 is not punitive and is void for vagueness. After the military judge granted the defense’s motion to dismiss the Specification, the government filed its appeal.

Issue: Whether the military judge erred by dismissing the sole Specification of Charge I finding that Article 1166, United States Navy General Regulations (1990), is not punitive and is void for vagueness?

This week at SCOTUS: The Solicitor General filed this response in opposition to the cert petition in Larrabee. 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 arguments at CAAF are on January 22, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on January 16, 2019, at 2 p.m.:

United States v. Pacheco, No. 20170177

Issues:
I. Whether the evidence was legally sufficient to convict appellant of child endangerment (Specification 1 of Charge II).

II. Whether the military judge erred in denying defense counsel the ability to cross-examine JP on prior specific acts of violence and present evidence of JP’s prior acts of violence through defense witnesses.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Laubach, No. 39396, on January 16, 2019, at 10 a.m. No additional information is available on the CCA’s website.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 31, 2019.

This week at SCOTUS: The Solicitor General received an extension of time to file the requested response to the cert. petition in Larrabee. 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 arguments at CAAF are on January 22, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 16, 2019.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 16, 2019.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 31, 2019.

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 arguments at CAAF are on January 22, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 16, 2019.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 16, 2019.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 31, 2019.

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 arguments at CAAF are on January 22, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 16, 2019.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 16, 2019.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on January 30, 2019.

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 arguments at CAAF are on January 22, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 16, 2019.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 16, 2019.

This week at the CGCCA: The Coast Guard CCA’s website 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, December 20, 2018, at 10 a.m.:

United States v. Watkins, No. 2017002

Case summary: A general court-martial composed of members with enlisted representation convicted the appellant, contrary to his pleas, of two specifications of violating a lawful order in violation of Article 92, UCMJ one specification of committing a lewd act upon a child in violation Article 120b, UCMJ; and one specification of obstructing justice in violation of Article 134, UCMJ. The members sentenced the appellant to five years confinement, reduction to paygrade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the dismissal, ordered the sentence executed.

Issues:
I. Did the military judge err in denying civilian defense counsel’s motion to withdraw as appellant’s counsel?

II. The Sixth Amendment guarantees an accused the right, within limits, to retain counsel of his own choosing. Before trial, and after his civilian counsel moved to withdraw from the case citing a perceived conflict, the appellant asked to release his civilian counsel and hire a different one. Did the military judge err by denying this request?