CAAFlog » TWIMJ

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

This week at CAAF: The next scheduled oral argument at CAAF is on February 23, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 17, 2016.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week: United States v. Young on Tuesday, February 2, 2016 at 10 a.m., and United States v. Rodriguez on Wednesday, February 3, 2016, at 11 a.m. No additional case 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 NMCCA’s website shows no scheduled oral arguments.

This week at SCOTUS: The Court denied the cert petition in Schloff. The Court extended the time for filing a response in Sullivan to February 29.

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

This week at CAAF: The next scheduled oral argument at CAAF is on February 23, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 17, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 2, 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 NMCCA’s website shows no scheduled oral arguments.

Significant military justice event this week: The Judicial Proceedings Panel will hold a public meeting on Friday, January 22, 2016, beginning st 9 a.m., at the Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

This week at SCOTUS: The Court denied the cert petition in Arness.

A request for an extension of time to file a cert petition was filed in Akbar v. United States. In United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015) (CAAFlog case page), CAAF narrowly affirmed Sergeant Akbar’s death sentence for his attack on his fellow soldiers in Kuwait in 2003. Akbar is one of only six military death row inmates: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

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

This week at CAAF: The next scheduled oral argument date at CAAF is February 23, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, January 21, 2016, at 10 a.m.:

United States v. Crews, No. 20130766

Issues:
I. Whether the military judge erred in instructing the panel that indecent exposure was a lesser included offense to indecent act.
II. Whether the evidence is factually sufficient to sustain the finding of guilty on the specification of Charge I (sexual abuse of a child).
III. Were appellant’s trial defense counsel ineffective by: 1) failing to object to Mrs. KC’s testimony repeating her daughter’s out-of-court statement that appellant had inappropriately touched her (see R. at 148); and 2) during the cross examination of DH, eliciting from DH that he made prior statements that appellant had touched KG, without requesting a limiting instruction from the military judge that such statements could not be considered for their truth?

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week: United States v. Peterman, No. 38705, at 2 p.m. on Friday January 22, 2016. 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 NMCCA’s website shows no scheduled oral arguments.

This week at SCOTUS: The SG received an extension of time to respond to the cert petition in Katso. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

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

Tuesday, January 12, 2016, at 9:30 a.m.:

United States v. Henning, No. 16-0026/AR (CAAFlog case page)

Issue: Whether the Army Court applied the wrong standard of review to this Article 62, UCMJ, appeal when it found the military judge made erroneous findings of fact and erroneous conclusions of law.

Case Links:
ACCA opinion
Blog post: The Army CCA allows DNA evidence where “approximately 1 in 220 unrelated individuals in the general population would be a match”
• Appellant’s Brief (supplement to the petition for grant of review)
Appellee’s (Government) Brief (answer to the petition)
Blog post: Argument preview

Followed by:

United States v. Pease, No. 16-0014/NA (CAAFlog case page)

Issues:
I. The lower court judicially defined “incapable of consenting” contrary to the instructions given to the members and used this definition to find three charges of sexual assault and one charge of abusive sexual contact factually insufficient. In creating this new legal definition not considered by the factfinder and nowhere present in the record, did the lower court consider matters outside the record and outside its statutory authority in conducting its factual sufficiency review?
II. The lower court judicially defined “incapable of consenting” in a manner that limits prosecutions to only two situations – “inability to appreciate” and “inability to make and communicate” an agreement. To prove the latter, the court further required proof that a victim be unable both to make and to communicate a decision to engage in the conduct at issue. Nothing in the statute reflects congressional intent to limit Article 120, UCMJ, prosecutions in this manner. Did the lower court err?

Case Links:
NMCCA opinion (74 M.J. 763)
Blog post: The NMCCA interprets the term “incapable of consenting”
Appellant’s (Government) Brief
Appellee’s Brief
Appellant’s (Government) Reply Brief
Blog post: Argument preview

Wednesday, January 13, 2016, at 9:30 a.m.:

United States v. Chin, No. 15-0749/AF (CAAFlog case page)

Issue: Whether the Air Force Court of Criminal Appeals (AFCCA) committed legal error by finding that unreasonable multiplication of charges was not waived, in direct contradiction of this court’s binding precedent in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).

Case Links:
AFCCA opinion
Blog post: The Air Force JAG certifies two cases
Blog post: The Air Force JAG amends the certified issue
Appellant’s (Government) brief
• Appellee’s Brief
Amicus Brief of Navy-Marine Corps Appellate Government Division
Amicus Brief of Army Appellate Government Division
Amicus Brief of Coast Guard Appellate Government Division
• Amicus Brief of Marine Corps Defense Services Organization
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in two cases this week. Both arguments will be heard at law schools:

Monday, January 11, 2016, at 5 p.m., at Ohio State University Moritz College of Law:

United States v. Herrmann, No. 20131064

Issue: Whether the evidence is factually sufficient to sustain a conviction on Specification 2 of Charge III, reckless endangerment, when the government failed to elicit any evidence of the likelihood that the parachutes would fail to deploy therefore causing death or grievous bodily harm.

Wednesday, January 13, 2016, at 5 p.m., at Michigan State University College of Law

United States v. Williams, No. 20140401

Issue: Whether the evidence was legally sufficient to support the findings of guilty to indecent exposure where appellant was fully clothed at the time he showed a photograph of his genitalia.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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 NMCCA’s website shows no scheduled oral arguments.

This week at SCOTUS: The Supreme Court has requested a response from the SG in Sullivan. The petition in Schloff has been scheduled for conference on January 15. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 12, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 11, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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 NMCCA’s website is unavailable due to site maintenance.

We will count down the Top Ten Military Justice Stories of 2015 this week, beginning later today and ending on New Year’s Day.

This week at SCOTUS: The SG waived the right to respond to the cert. petition in Schloff on December 22. Amicus briefs were filed by the Army Defense Appellate Division and the Ethics Bureau at Yale were filed in Sullivan. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 12, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 11, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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: I’m unable to access the Navy-Marine Corps CCA’s website to check the oral argument schedule.

This week at SCOTUS: The cert. petition in Arness was distributed for conference on January 8. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 12, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 11, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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: I’m unable to access the Navy-Marine Corps CCA’s website to check the oral argument schedule.

Significant military justice event this week: The Military Officers Association of America is hosting a Military to Civilian Success for Legal Professionals event on Tuesday, December 15, 2015, at the Ritz-Carlton, Pentagon City, 1250 S Hayes St, Arlington VA 22202.

Additionally, this Friday is the deadline to submit comments regarding the 2016 proposed changes to the Manual for Courts-Martial (discussed here).

This week at SCOTUS: A cert. petition was filed in Schloff v. United States, No. 15-0294 on December 11, 2015. Last term, in United States v. Schloff, 74 M.J. 312 (C.A.A.F. Jul 16, 2015) (CAAFlog case page), a sharply divided CAAF concluded that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact.

In other cases, the Solicitor General waived the right to respond to the cert. petition in Arness on on December 10. The cert. petition in Sullivan is scheduled for conference on January 8.

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

This week at CAAF: The next scheduled oral argument at CAAF is on January 12, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, December 16, 2015, at 10 a.m.:

United States v. Piccirillo, No. 20140897

Specified issue: As an aider and abettor, why does appellant not “stand in the shoes” of Specialist KD? Specialist KD perpetrated the burning of his own automobile and, therefore, could not be convicted of simple arson.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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’s website shows no scheduled oral arguments.

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Sullivan on December 1.

A new cert. petition was docketed in Arness v. United States, No. 15-7160. Last term, in United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page), CAAF dismissed the petitioner’s writ-appeal of the Air Force CCA’s denial of the petitioner’s petition for extraordinary relief after concluding that the CCA did not have jurisdiction to consider the appellant’s case under Article 69 because the Judge Advocate General of the Air Force had taken final action on the petitioner’s case without referring the case to the CCA. The petitioner in Arness previously sought and was denied the Supreme Court’s leave to file as a veteran, and has the petition cert. petition pro se.

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

This week at CAAF: The next scheduled oral argument at CAAF is on January 12, 2016.

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

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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 Wednesday, December 9, 2015, at 10 a.m.:

United States v. Zambrano

Case summary: A military judge sitting as a special court-martial convicted the Appellant contrary to his pleas, of assault consummated by battery, in violation of Article 128, UCMJ, 10 USC § 928 (2012). The military judge sentenced the appellant to 125 days of confinement, reduction to pay grade E-1, and a bad conduct discharge. The convening authority approved the sentence as adjudged, and, except for the bad-conduct discharge, ordered the sentence to be executed.

Issues:
I. Whether the evidece is legally and factually sufficient.
II. An accused has a contitutional right to effective assistance of counsel. Here, the trial defense counsel failed to investigate possibly exculpatory text messages exchanged between one of the government’s main witnesses and the victim, as well as witnesses who might have impeached the credibility of the same witness. Was the defense counsel inffective?
III. In his special findings the military judge found that Lance Coporal Canton talked directly to the victim after the initial report of the assault questioning her as to what happened and that “[t]his testimony shows that Lance Corporal Canton appeared to believe what he heard directly from [the victim].” Is this error because it constituted improper “human lie detector” evidence and if so, did it materilaly prejudice a substantial right of the appellant?

This week at SCOTUS: The Solicitor General received a second extension of time to file a response to the cert. petition in Katso, to January 4, 2016. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on January 12, 2016.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, December 3, 2015:

United States v. Baker, No. 20140396

Issues:
I. Whether the military judge abused his discretion by accepting appellant’s plea of guilty to Charge III, Specification 2 for wrongful solicitation of a minor to provide nude photos.
II. Whether the military judge abused his discretion by accepting appellant’s plea of guilty to possessing child pornography, where the record demonstrates that the image possessed was not child pornography.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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 next scheduled oral argument at the Navy-Marine Corps CCA is on December 9, 2015.

This week at SCOTUS: A cert. petition was filed in Sullivan v. United States, No. 15-0186. In United States v. Sullivan, 74 M.J. 448 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page), CAAF found harmless error in the convening authority’s categorical exclusion of flag officers from the pool of potential members, and also that the military judge’s extensive personal and professional relationships with the court-martial participants does not raise an appearance of bias.

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

This week at CAAF: The next scheduled oral argument at CAAF is on January 12, 2016.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 3, 2015.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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 next scheduled oral argument at the Navy-Marine Corps CCA is on December 9, 2015.

This week at SCOTUS: 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 two cases this week, both on Tuesday, November 17, 2015:

United States v. Bess, No. 15-0372/NA (CAAFlog case page)

Issue: Whether the military judge abused his discretion when he allowed the admission of additional evidence during deliberations but also denied appellant the opportunity to attack the accuracy of that evidence before the factfinder.

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

United States v. Gifford, No. 15-0426/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals erred in holding that Second Infantry Division Policy Letter Number 8 (11 January 2010), which prohibits service members who are 21 years of age and older from distributing alcohol to persons under 21 for the purposes of consumption, did not contain an element that appellant knew that the person to whom distribution was made was under 21 years of age, and therefore imposed strict liability for such actions.

Case Links:
ACCA opinion
Blog post: The Army CCA finds that furnishing alcohol to a minor (in violation of a general order) is a strict liability (public welfare) offense
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 December 3, 2015.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on January 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 next scheduled oral argument at the Navy-Marine Corps CCA is on December 9, 2015.

This week at SCOTUS: The motion to proceed as a veteran in Arness was denied by the Supreme Court. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at  CAAF is on November 17, 2015.

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

Monday, November 9, 2015, at 10 a.m.: United States v. Randall, No. 20130452

Issues:
I. Whether the military judge abused his discretion by failing to suppress Specialist Randall’s admissions because these admissions were made as a result of a coercive environment and Captain [MP] failed to read SPC Randall his Article 31 [UCMJ] rights. The military judge also failed to apply the proper objective standard of whether the questioning could reasonably be considered pursuant to an official law enforcement or disciplinary purpose.
II. Whether the evidence is legally and factually insufficient to support the findings that Specialist Randall unlawfully struck PWR and ELC on divers occasions.

Friday, November 13, 2015, at 2 p.m.: United State v. Ingle, No. 20121022

Issues:
I. Whether the evidence is factually and legally insufficient to support the findings of guilty, except the findings of guilty of Charge III and the Specifications thereunder and Specification 2 of Charge IV.
II. Whether the approved sentence to confinement for 20 years is inappropriately severe.

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 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 November 10, 2015, at 10 a.m. The oral argument will occur at the University of North Carolina, School of Law, Chapel Hill, NC:

United States v. Johnston

Case summary: A panel of members sitting as a general court-martial convicted the appellant, contrary to his pleas, of four specifications of committing a lewd act upon a child and one specification of indecent exposure in violation of Articles 120b and 120c, UCMJ, 10 U.S.C. §§ 920b and 920c. The members sentenced the appellant to reduction to E-1, forfeiture of all pay and allowances, confinement for eight months, and a badconduct discharge. The convening authority approved the sentence as adjudged.

Issues:
I. Whether the proscription of indecent exposure under Article 120c(c), UCMJ, is void for vagueness.
II. Whether Article 120c(c) violates the First Amendment overbreadth doctrine.

 

Significant military justice event this week: A meeting of the Judicial Proceedings Panel will be held on Friday, November 6, 2015, from 9:00 a.m. to 4:45 p.m, at The Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

This week at SCOTUS: The Solicitor General requested and received an extension of time to respond to the cert. petition in Katso. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at  CAAF is on November 17, 2015.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 9, 2015.

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 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 November 5, 2015:

United States v. Newlan

Case summary: An officer and enlisted members panel, sitting as a general court-martial, convicted the Appellant, contrary to his pleas, of one specification of sexual assault and one specification of adultery in violation of Articles 120 and 134, UCMJ, 10 USC §§ 920, 934 (2012). The members sentenced the Appellant to reduction to pay grade E-1, confinement for one year, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and, except for the bad-conduct discharge, order the sentence executed.

Issues:
I. A military judge has an obligation to provide an accurate, complete and intelligible statement of the law when instructing members. Did the military judge fail to do so by providing the members with the definition of “impairment” found in article 111, UCMJ and by failing to further instruct the members on the legal interplay between intoxication and LCpl H’s ability to consent? If so, what, if any, prejudice to the appellant resulted?
II. A member on the appellant’s panel made a post-trial statement that may have indicated he assumed the appellant was guilty prior to hearing evidence. Was the appellant’s panel tainted by actual or implied bias?

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

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

Tuesday, October 27, 2015, at 9:30 a.m.:

United States v. Captain, No. 15-0172/MC (CAAFlog case page)

Issues:
I. Whether trial defense counsel provided inefective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation, and by conceding the appropriateness of a dishonorable discharge.
II. Whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority’s action did not approve one.

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

Followed by:

United States v. Riggins, No. 15-0334/MC (CAAFlog case page)

Issue: Whether the lower court erred in deciding a question of law which has not been, but should be, settled by this court when it held that assault consummated by battery was a lesser included offense to abusive sexual contact and sexual assault.

Case Links:
NMCCA oral argument audio
NMCCA opinion
• Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Wednesday, October 28, 2015, at 9:30 a.m.:

United States v. LaBella, No.15-0413/AF (CAAFlog case page)

Issue: Whether appellant’s petition for grant of review should be dismissed for lack of jurisdiction when the court of criminal appeals entertained an untimely filed motion for reconsideration for “good cause,” but denied the motion on other grounds, and appellant filed a petition for grant of review with this court under Article 67, UCMJ, more than 60 days after the original decision of the court of criminal appeals, but within 60 days of the final decision on the motion for reconsideration. See, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009); United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010).

Case Links:
AFCCA opinion
Blog post: CAAF remands AFCAA case for consideration in light of Barberi
AFCCA opinion after remand
Appellant’s brief
Appellee’s (Government) brief

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

Tuesday, October 27, 2015, at 10 a.m.:

United States v. Moody, No. 20121083

Issues:
I. Whether the military judges abused their discretion in admitting AB’s statements to Dr. Cavallaro pursuant to Mil. R. Evid. 803(4) and in admitting AB’s testimony about writings on her jewelry box and the jewelry box itself pursuant to mil. R. Evid. 803(3)?
II. Whether the military judge abused his discretion when he disturbed the prior military judge’s ruling excluding evidence of online conversations between AB and appellant without hearing any evidence, reviewing the prior military judge’s ruling, or making any findings of fact or conclusions of law?

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 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 November 5, 2015.