ACCA is hearing a case this week.  On Friday, ACCA will hear oral argument in United States v. Thompson, No. ARMY 20071253, on these two assignments of error:

II.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT A FINDING THAT APPELLANT COMMITTED ANY OF THE ACTS FOR WHICH HE STANDS CONVICTED

III.  THE MILITARY JUDGE COMMITTED LEGAL ERROR WHEN SHE IMPROPERLY ADMITTED THE ONLY EVIDENCE PURPORTEDLY TYING APPELLANT TO THE SCENE OF THE CRIME

I’ll be on the road for a couple of days, so I’m posting “This Week in Military Justice” a day early.  My rate of blogging will likely be diminished until Tuesday.

This week at the Supremes:  I’m not aware of any anticipated military justice developments at the Supremes this week, though we continue to await the SG’s response to the Loving cert petition.

This week at CAAF:  CAAF will hold its judicial conference on Wednesday and Thursday.  The schedule is available here.  A registration form is available here.  Several CAAFlog contributors will be attending; perhaps we can do some live blogging from the conference.

This week at the CCAs:  On Tuesday, the Coast Guard Court will hear oral argument in United States v. Sapp, in which the assigned error is:

I. This Court Should Consider the Unreasonable and Unexplained Post-Trial Delay in Determining the Sentence that Should be Approved under Article 66(c) with particular attention to the following questions:
1. What circumstances short of denial of due process should be considered in deciding whether post-trial delay warrants “Tardif relief”?
2. What are the reasons to grant or deny “Tardif relief” in this case?

The Army Court’s web site is down, so I can’t determine whether ACCA is scheduled to hear any oral arguments this week.

Thanks to our reader who alerted us to two upcoming ACCA arguments this week.  On Wednesday, CAAF will hear oral argument in United States v. Scott, No. ARMY 20071028.  The assignments of error in Scott are:

I.  THE MILITARY JUDGE ABUSED HIS DISCRETION IN GRANTING THE GOVERNMENT’S SUPPRESSION MOTION OF SPC E’S DNA UNDER MIL. R. EVID 412.

II.  THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING PROSECUTION EXHIBIT 3 BECAUSE IT WAS NOT CORROBORATED AND IT WAS NOT VOLUNTARILY MADE.

III.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR RAPE.

IV. THE CUMULATIVE EFFECT OF THE ERRORS IN THIS CASE EFFECTIVELY DENIED APPELLANT HIS RIGHT OF DUE PROCESS OF LAW AND TO A FAIR TRIAL.

On Friday, ACCA will hear oral argument in United States v. Pierce, No. 20080009.  The assignments of error in Pierce are:

I.  Whether, in order to convict appellant of a violation of 18 U.S.C. § 2422 under clause 3 of Article 134,the Government must offer some evidence of interstate or foreign commerce or special territorial jurisdiction of the United States and the members must be advised of those elements or the judge must take judicial notice of those elements as factual predicates.

II.  Whether, in order to find appellant guilty of a violation of enticement of a minor to engage in sexual activity under clause 1 or 2 of Article 134, the members must have been advised of the elements of conduct which is prejudicial to good order and discipline or service discrediting.

III.  Whether admission of a photograph depicting appellant with a confederate flag tattoo on his arm, for THE purpose of identifying him as the author of internet messages, was substantially more prejudicial than probative under M.R.E. 403.

This week at the Supremes:  There aren’t any anticipated military justice developments at the Supremes this week, with the exception of a possible response for the SG to Loving’s cert petition.

This week at CAAF:  Today marks the end of the first half of CAAF’s current term.  Once CAAF posts Friday’s daily entry journal entries, we’ll take a quick statistical look at the current term.  In more meaningful developments, CAAF will hear three oral arguments this week, including in the two cases for which Project Outreach arguments were scrapped due to “Snowmageddon.”  (For those of you outside the D.C. area, “Snowmageddon” is what our local news outlets dubbed the unusually heavy snowfall we experienced this month.) This is an all-Naval week at CAAF.  On Tuesday, CAAF leads off with argument in United States v. Serianne, No. 10-5001/NA.  The certified issues in Serianne are:

I.  WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT THE DUTY IMPOSED ON SAILORS BY CHIEF OF NAVAL OPERATIONS INSTRUCTION 5350.4C TO NOTIFY THEIR COMMANDING OFFICER OF AN ARREST BY CIVIL AUTHORITY FOR AN ALCOHOL-RELATED OFFENSE COMPELLED A TESTIMONIAL COMMUNICATION THAT WAS INCRIMINATING.

II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT NO EXCEPTION TO THE FIFTH AMENDMENT SELF-INCRIMINATION CLAUSE, INCLUDING THE REGULATORY EXCEPTION DEVELOPED IN CALIFORNIA v. BYERS, APPLIES TO THE REPORTING REQUIREMENT IN CHIEF OF NAVAL OPERATIONS INSTRUCTION 5350.4C.

Tuesday’s second argument is the much-anticipated United States v. Diaz, No. 09-0535/NA, where the granted issues are:

I.   WHETHER THE LOWER COURTS MISREAD THE SCIENTER AND NATIONAL SECURITY ELEMENTS OF THE ESPIONAGE ACT.

II.  WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN REJECTING AS IRREGULAR APPELLANT’S PROFFERED GUILTY PLEA TO A VIOLATION OF ARTICLE 133.

III. WHETHER THE EVIDENCE OF THE CIRCUMSTANCES UNDER WHICH AN ACCUSED ACTED, INCLUDING HIS MOTIVE, IS RELEVANT TO A CHARGE UNDER ARTICLE 133.

On Thursday, CAAF will hear oral argument in one case, United States v. Yammine, No. 09-0720/MC.  The granted issue in Yammine is:  “WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO COMMIT SODOMY OR INDECENT ACTS WITH A MINOR.”

This week at the CCAs:  On Tuesday, the Coast Guard Court will conduct its make-up Snowmageddon-delayed Project Outreach argument at Howard University’s law school.  The following assignment of error in United States v. Garcia will be argued:  “THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO EXCLUDE PE 3, A VIDEOTAPE OF THE POLICE INTERROGATION OF APPELLANT, WHEN NO ARTICLE 31(B) RIGHTS WERE GIVEN.”  Army web sites are down at the moment, so I don’t know whether ACCA has any arguments scheduled this week.  Neither NMCCA’s nor AFCCA’s web site lists an oral argument for this week.

This week at the trial level:  An Article 39(a) session is scheduled for tomorrow and members selection is scheduled to begin on Tuesday in the capital court-martial of United States v. Hennis at Fort Bragg.  But Judge Boyle of the United States District Court for the Eastern District of North Carolina is still considering a habeas petition from Hennis that could potentially derail the trial.  Here’s a link to a Fayetteville Observer article providing a preview of the court-martial.

While it’s not on AFCCA’s web site, one of my colleagues has alerted me that AFCCA will hold a Project Outreach argument in an Article 62 appeal this Thursday at the Univeristy of Mississippi’s law school.  The case being argued is United States v. Cote, No. 200915.  The issue is:  ”Whether the military judge erred in suppressing the fruits of a lawfully conducted search of appellee’s computer devices solely because the government was unable to complete its forensic analysis of those devices until after the 90-day search and seizure deadline established in the search warrant.”

This week at the Supremes: Either a cert grant or denial in Weston v. United States, No. 09-287, will probably be on tomorrow’s order list.

This week at CAAF: CAAF isn’t hearing oral arguments this week.

This week at the CCAs: ACCA is hearing two oral arguments this week. One is a blizzard make-up argument. In United States v. Ellerbrock, No. ARMY 2007095, the make-up argument being heard on Tuesday, the assignments of error being argued are:

I. THE MILITARY JUDGE ERRED IN EXCLUDING, UNDER MILITARY RULE OF EVIDENCE 412, EVIDENCE OF PRIOR SEXUAL BEHAVIOR BY THE ALLEGED VICTIM WHERE THE PROFFERED EVIDENCE WAS CONSTITUTIONALLY REQUIRED.

II. THE TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS SENTENCING ARGUMENT WHERE HE ASKED THE COURT MEMBERS TO PICTURE THEIR CLOSE RELATIVES AS ALLEGED VICTIMS OF APPELLANT.

In United States v. Willis, No. ARMY 20071339, which is being argued on Thursday, the issue is:  “WHETHER THE PROSECUTION AGAINST APPELLANT WAS BARRED BY A GRANT OF DE FACTO IMMUNITY WHEN THE GOVERNMENT AGREED TO DISMISS CHARGES IF APPELLANT PASSED A POLYGRAPH EXAMINATION AND APPELLANT PASSED A POLYGRAPH EXAMINATION.”

Happy Valentine’s Day to all you lovers of military justice.

This week at the Supremes:  The military cert petition in Weston v. United States, No. 09-287, has been distributed for Friday’s conference.  The SG initially waived the United States’ right to respond to the cert petition, but the Court called for a response.  The cert petition is available here and the SG’s response is available here.

This week at CAAF:  CAAF has no oral arguments scheduled this week, having dropped the originally scheduled 17 February hearing date from its calendar.

This week at the CCAs:  None of the CCA oral argument calendars lists an oral argument this week.  Nor does ACCA’s or the Coas Guard Court’s calendar reflect when the arguments scratched by last week’s snow storms will be rescheduled.

This week’s big story is Tuesday’s Project Outreach argument in Diaz, an appeal of a Navy judge advocate’s conviction for sending a roster of Guantanamo detainees to a public interest lawyer.  Of course, the biggest story this week could become the weather.  I have feelers out to the counsel in Diaz and Yammine as to whether those Project Outreach arguments have been affected by the D.C. area’s blizzard.  If anyone has any intel, please let us know.  As always, you can reach us at caaflog@caaflog.com.

This week at the Supremes:  There aren’t any anticipated military justice developments this week at the Supremes on my radar screen.  I continue to monitor the Supreme Court’s web site to see if a cert petition challenging CAAF’s ruling in Loving v. United States will be docketed.  (The deadline for filing a cert petition was 29 January 2010.  See Loving v. United States, No. 09A-481.

This week at CAAF:  CAAF has two oral arguments scheduled this week. First up is Tuesday’s scheduled Project Outreach argument at Pepperdine University School of Law in United States v. Diaz, No. 09-0535/NA.  The three granted issues in Diaz are:

I.   WHETHER THE LOWER COURTS MISREAD THE SCIENTER AND NATIONAL SECURITY ELEMENTS OF THE ESPIONAGE ACT.

 II.  WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN REJECTING AS IRREGULAR APPELLANT’S PROFFERED GUILTY PLEA TO A VIOLATION OF ARTICLE 133.

 III. WHETHER THE EVIDENCE OF THE CIRCUMSTANCES UNDER WHICH AN ACCUSED ACTED, INCLUDING HIS MOTIVE, IS RELEVANT TO A CHARGE UNDER ARTICLE 133.

A Wednesday Project Outreach argument is scheduled at Camp Pendleton in United States v. Yammine, No. 09-0720/MC.  The granted issue in Yammine is:  “WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED EVIDENCE OF FILE NAMES FOUND ON APPELLANT’S COMPUTER THAT WERE SUGGESTIVE OF HAVING CONTAINED CHILD PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING THE GOVERNMENT TO ARGUE APPELLANT’S PROPENSITY OR MOTIVE TO COMMIT SODOMY OR INDECENT ACTS WITH A MINOR.”

This week at the CCAs:  On Tuesday, the Coast Guard Court will hear an oral argument in the case of United States v. Garcia at the Howard University School of Law on this assignment of error: “ THE MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO EXCLUDE PE 3, A VIDEOTAPE OF THE POLICE INTERROGATION OF APPELLANT, WHEN NO ARTICLE 31(B) RIGHTS WERE GIVEN.”  On Thursday, ACCA will hear oral argument in United States v. Ellerbrock, No. ARMY 20070925, on these two assignments of error:

I.  THE MILITARY JUDGE ERRED IN EXCLUDING, UNDER MILITARY RULE OF EVIDENCE 412, EVIDENCE OF PRIOR SEXUAL BEHAVIOR BY THE ALLEGED VICTIM WHERE THE PROFFERED EVIDENCE WAS CONSTITUTIONALLY REQUIRED.

II.  THE TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS SENTENCING ARGUMENT WHERE HE ASKED THE COURT MEMBERS TO PICTURE THEIR CLOSE RELATIVES AS ALLEGED VICTIMS OF APPELLANT.

This week promises to be last eventful than last week.  The big event for the week is an ACCA Project Outreach argument on Thursday.

This week at the Supremes:  There aren’t any anticipated military justice developments at the Supremes this week on my radar screen.  But I do need to check whether a cert petition was filed in Loving v. Virginia last week; the filing deadline was Friday.

This week at CAAF:  CAAF has no oral arguments scheduled for this week.

This week at the CCAs:  ACCA will hear oral argument on Thursday at 1210 at George Washington University’s law school  The case is United States v. Peck, No. ARMY 20080072.  The two assignments of error being argued are:  “I. THE LINEUP AND TRIAL IDENTIFICATIONS OF SSG PECK WERE INADMISSIBLE BECAUSE THEY WERE THE PRODUCT OF AN UNLAWFUL LINEUP CONDUCTED IN VIOLATION OF APPELLANT’S RIGHT TO COUNSEL. SEE MIL. R. EVID. 321(b)(2)”; and “II.  THE LINEUP WHICH LED TO SSG PECK’S IDENTIFICATION WAS UNDULY SUGGESTIVE AND UNRELIABLE WHERE ALL OTHER LINEUP PARTICIPANTS WERE EITHER KNOWN TO THE VICTIM PRIOR TO THE LINEUP, GROSSLY DISSIMILAR IN AGE AND SIZE, OR BOTH. SEE MIL. R. EVID. 321.”

This promises to be a very busy week in Military Justiceland.

This week at the Supremes:  The military cert petition in Wiechmann v. United States, No. 09-418, will probably be on tomorrow’s order list.  And the deadline for filing a cert petition in Loving v. United States, No. 09A481, is Friday. 

This week at CAAF:  CAAF will hear four oral arguments this week.  The biggie is Tuesday’s argument in United States v. Blazier, No. 09-0441/AF, where the granted issue is:

WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004), APPELLANT WAS DENIED MEANINGFUL CROSS-EXAMINATION OF GOVERNMENT WITNESSES IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION WHEN THE MILITARY JUDGE DID NOT COMPEL THE GOVERNMENT TO PRODUCE ESSENTIAL BROOKS LAB OFFICIALS WHO HANDLED APPELLANT’S URINE SAMPLES AND INSTEAD ALLOWED THE EXPERT TOXICOLOGIST TO TESTIFY TO NON-ADMISSIBLE HEARSAY. SEE MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. ___, 127 S. CT. 2527 (2009).

The week’s oral arguments kick off tomorrow with the return of United States v. Roach, No. 07-0870/AF.  {Familiar disclosure:  I’m Roach’s counsel.]  There are four granted issues in the case:

I.   WHETHER THE AIR FORCE COURT ERRED BY REFUSING TO VACATE ITS RULING IN LIGHT OF THE ACTIONS OF THE CHIEF JUDGE REGARDING THE APPOINTMENT OF HIS REPLACEMENT AFTER HE HAD RECUSED HIMSELF.

 II.  WHETHER THE AIR FORCE COURT ERRED BY BASING ITS SENTENCE DISPARITY ANALYSIS ON APPELLANT’S AND HIS CO-ACTOR’S ADJUDGED SENTENCES RATHER THAN THEIR APPROVED SENTENCES.

 III. WHETHER THE AIR FORCE COURT ERRED BY DENYING APPELLANT’S MOTION TO COMPEL PRODUCTION OF E-MAILS SENT BETWEEN THE CHIEF JUDGE AND APPELLATE GOVERNMENT COUNSEL ABOUT THIS CASE FOLLOWING THE CHIEF JUDGE’S RECUSAL.

 IV.  WHETHER APPELLANT’S DUE PROCESS RIGHT TO REASONABLY PROMPT APPELLATE REVIEW WAS DENIED BY THE DELAY IN THIS APPEAL ARISING FROM THE AIR FORCE COURT’S PROCESSING OF THIS APPEAL DURING ITS INITIAL REVIEW.

Monday’s second argument is in United States v. Ferguson, No. 10-0020/AF, where the granted issue is:  “WHETHER APPELLANT’S PLEA TO INDECENT EXPOSURE WAS PROVIDENT.”

On Tuesday, following Blazier will be argument in United States v. Huntzinger, No. 09-0589/AR, where the four granted issues are:

I.   WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT NO SOLDIER AT FORWARD OPERATING BASE (FOB) LOYALTY HAD A REASONABLE EXPECTATION OF PRIVACY IN ANY REGARD.

II.  WHETHER THE MILITARY JUDGE ERRED IN DENYING A MOTION TO SUPPRESS APPELLANT’S EXTERNAL HARD DRIVE AND PASSWORD PROTECTED LAPTOP WHEN THE COMMANDER WHO ORDERED THE SEIZURE OF THE EQUIPMENT IMMEDIATELY SEARCHED THE EQUIPMENT UPON SEIZURE, DEMONSTRATING THAT HE WAS PERFORMING LAW ENFORCEMENT FUNCTIONS AND WAS NOT NEUTRAL AND DETACHED WHEN SEIZING THE ITEMS.

III. WHETHER THE DOCTRINE OF INEVITABLE DISCOVERY IS APPLICABLE WHEN THERE ARE NO INDEPENDENT POLICE ACTIVITIES, OR TESTIMONY OR EVIDENCE OF ROUTINE POLICE PRACTICES, THAT WOULD HAVE INEVITABLY RESULTED IN DISCOVERY, AND NO OTHER EXCEPTION TO THE FOURTH AMENDMENT APPLIES.

IV.  WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT PROBABLE CAUSE EXISTED TO SUPPORT THE SEARCH AUTHORIZATION OF APPELLANT’S LAPTOP COMPUTER AND DETACHABLE HARD DRIVE.

This week at the CCAs:  On Tuesday, NMCCA will hear oral argument on an interesting issue in United States v. Saxman, which we previously discussed here and here:  ”WHETHER THIS COURT CAN CONDUCT AN ARTICLE 66, UCMJ,REVIEW WHERE THE TRIAL COURT DID NOT SPECIFY WHICH VIDEOS FORMED THE BASIS OF APPELLANT’S CONVICTION FOR KNOWING POSSESSION OF CHILD PORNOGRAPHY WHEN THE MEMBERS FOUND THE APPELLANT GUILTY BY EXCEPTIONS AND SUBSTITUTIONS OF POSSESSING ONLY FOUR OF THE CHARGED 22 VIDEOS.”

This week in federal habeas review:  The United States’ deadline for filing its opposition to the habeas petition in Hennis v. Helmick, No. 5:09-hc-02169-BO, is Thursday.  I plan to post it once it’s available on PACER.