CAAFlog » TWIMJ

This week at SCOTUS: A petition for certiorari was filed in Herrmann v. United States, No. 17-593, on October 11, 2017. CAAF affirmed Sergeant (E-5) Herrmann’s conviction of reckless endangerment for the pencil packing of reserve parachutes by applying a plain-language meaning of the term likely in the element of conduct likely to produce death or grievous bodily harm, in United States v. Herrmann, 76 M.J. 304 (C.A.A.F. Jun. 19, 2017) (CAAFlog case page).

An extension of time to file a cert. petition was granted in Cash v. United States, No. 17A415. CAAF granted and summarily affirmed on July 25, 2017. 76 M.J. 478. The Army CCA summarily affirmed the trial result without issuing a written opinion.

The Solicitor General received a second extension of time to file the requested response to the cert. petition in Bartee.

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

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

Tuesday, October 24, 2017, at 9:30 a.m.:

United States v. Short, No. 17-0187/AR (CAAFlog case page),

Issue: Whether government counsel committed prosecutorial misconduct when they made improper argument after repeatedly eliciting inadmissible testimony.

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

Followed by:

United States v. Gonzalez-Gomez, No. 17-0200/AR (CAAFlog case page)

Issue: Whether dilatory post-trial processing violated Appellant’s due process rights and warrants relief when 782 days elapsed between docketing at the Army Court and opinion.

Case Links:
• ACCA opinion (75 M.J. 965)
• Appellant’s brief
• Appellee’s (Army Gov’t Appellate Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Wednesday, October 25, 2017, at 9:30 a.m.:

United States v. Bailey, No. 17-0265/CG (CAAFlog case page)

Issues:
I. Upon request by the defense counsel and using a defense-drafted instruction, should the military judge have provided the members with an explanation of the term “incapable.”
II. Whether the decision of the United States Coast Guard Court of Criminal Appeals is ambiguous as to whether the affirmed sentence included forfeiture of all pay and allowances.

Case Links:
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Riesbeck, No. 17-0208/CG (CAAFlog case page)

Issues:
I. Whether the members of Appellant’s court-martial panel were properly selected.
II. Whether Appellant was deprived of a fair trial, or the appearance of a fair trial, where a majority of the panel members were former victim advocates and the military judge denied a challenge for cause against one of them.

Case Links:
• CGCCA opinion
• Blog post: CGCCA Finds Appellant Waived Challenge to Panel Make-up 
• Blog post: CAAF reverses
• CGCCA opinion
• Appellant’s brief
• Appellee’s (Coast Guard Appellate Gov’t Div.) 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 October 30, 2017.

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week, on Tuesday, October 24, 2017, at the Florida International University College of Law:

United States v. Swafford, No. S32435

Issue:
Was Appellant denied effective assistance of counsel when his counsel failed to move to suppress appellant’s statements to investigators made while in post-trial confinement for a previous court-martial?

This week at the CGCCA: The The Coast Guard CCA’s oral argument schedule – finally available on the CCA’s new website – shows no scheduled oral arguments at the CCA.

This week at the NMCCA: The Navy-Marine Corps CCA’s 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 six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 24, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, October 17, 2017, at 10 a.m.:

United States v. Bodoh, No. 20150218

Issues:
I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING THE DEFENSE MOTION TO DISMISS FOR VIOLATION OF R.C.M. 707.
II. WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT TO MAKE APPELLANT’S OTHERWISE LAWFUL CONDUCT CRIMINAL.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 31, 2017.

This week at SCOTUS: A petition for certiorari was filed in Tso v. United States, No. 17-479, on September 28, 2017. On May 17, 2017, CAAF summarily affirmed the NMCCA’s decision in Tso in light of its decisions in United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017) (CAAFlog case page), and United States v. Bartee, 76 M.J.141 (C.A.A.F. 2017) (CAAFlog case page). I noted CAAF’s grant of review in this post.

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

This week at CAAF: CAAF will hear the first oral arguments of the 2017 term this week, on Tuesday and Wednesday. The court will hear oral argument in four cases and on one motion:

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

United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page)

Issue: Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.

Case Links:
• ACCA Order (Feb. 6, 2017) (CAAFlog link)
• ACCA Order (Mar. 16, 2017) (CAAFlog link)
• Appellant’s (Army Gov’t Appellate Div.) brief
• Appellee’s (Jacobsen) brief
• Appellant’s reply brief
• Amicus brief in support of Appellant (A.F. Gov’t App. Div.)
• Blog post: Argument preview

Followed by:

United States v. Guardado, No. 17-0183/AR (CAAFlog case page)

Issues:
I. Whether the Army court incorrectly found that the military judge’s panel instructions were harmless error in light of United States v. Hills.

II. Whether the Army court incorrectly ruled that an offense defined by the President cannot preempt a general Article 134, UCMJ, offense, and that preemption is not jurisdictional in such circumstances.

Case Links:
• ACCA opinion (75 M.J. 889)
• Blog post: The Army CCA dissects Hills
• Blog post: CAAF to review the Army CCA’s decision in Guardado
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Hennis, No. 17-0263/AR (motion to compel funding) (CAAFlog case page)

Case Links:
• Defense motion
• Government Division answer
• Government Division response to CAAF order
• Blog post: Argument preview

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

United States v. Mangahas, No. 17-0434/AF (CAAFlog case page)

Issue: Whether the lower court erred in finding no due process violation when the Government was inactive for over 17 years before investigating a claim of rape, violating LtCol Mangahas’ Fifth Amendment right to a speedy trial.

Case Links:
• AFCCA opinion
• Blog post: Air Force CCA opinion analysis
• Bog post: CAAF grants
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Pugh, No. 17-0306/AF (CAAFlog case page)

Issue: Whether the military judge erred in finding that AFI 90-507 serves no valid military purpose and dismissing the additional charge and its specification.

Case Links:
• AFCCA opinion
• Blog post: CAAF grants review of post-trial Article 62 appeal
• Appellant’s brief
• Appellee’s (A.F. App. Gov’t Div.) answer
• Appellant’s reply brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on October 30, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.

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

This week at SCOTUS: On September 28, 2017, the Supreme Court granted certiorari in Dalmazzi v. United States, No. 16-961Cox, et al., v. United States, No. 16-1017, and Ortiz v. United States, No. 16-1423, consolidating the cases and directing additional briefing on whether the Court has jurisdiction over those where CAAF vacated its grant of review. They are the first military cases to be granted cert. since United States v. Denedo, 556 U.S. 904 (2009). Our coverage of these cases will continue under the heading of Dalmazzi v. United States, No. 16-961 (CAAFlog case page) (SCOTUSblog case page).

In other SCOTUS news, the cert. petitions in Abdirahman, et at., and Alexander were distributed for conference on Oct. 13. Additionally, an extension of time to file a cert. petition was granted in Richards v. United States, No. 17A338, until November 10, 2017. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

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

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 October 24, 2017. The argument will be heard at the Florida International University College of Law.

This week at the CGCCA: The Coast Guard CCA has a new website, but the link to its docket doesn’t work.

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

This week at SCOTUS: The Solicitor General filed a response opposing the cert. petition in Abdirahman, et al. (the Ortiz trailer cases). The SG also received an extension of time to file the requested response in Bartee, to October 30. Finally, the Court will consider the petitions in Dalmazzi, Cox, and Ortiz on Monday. Steve Vladeck – who is counsel of record for all three petitions – published this post on Friday discussing the cases and issues.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, September 27, 2017, at noon. The argument will occur at the USC Gould School of Law, 699 Exposition Blvd, Los Angeles, California:

United States v. Morales, No. 20150498

Issues:
I. Whether the magistrate had a substantial basis for determining existence of probable cause to believe appellant had committed the crime of indecent viewing?

II. Whether the magistrate’s search authorization was overbroad?

III. Whether a photograph constitutes “digital communication” such that the digital forensic examiner properly reviewed photographs on appellant’s phone?

IV. Whether the military judge abused her discretion by denying the motion to suppress results of the digital forensic examination?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

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, September 27, 2017, at 10 a.m.:

United States v. Chamblin, NMCCA No. 201500388

Case Summary: A military judge sitting as a special court-martial convicted the appellant, pursuant to his pleas, of one specification of willful dereliction of duty, two specifications of violating a lawful general order, and one specification of wrongfully urinating on deceased enemy combatants in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 (2008). The military judge sentenced the appellant to thirty days’ confinement, sixty days’ restriction, reduction to pay grade E-3, forfeiture of $500 pay per month for six months, and a $2,000 fine. Pursuant to a pretrial agreement, the convening authority disapproved the sixty days’ restriction, $2,000 fine, and reduction below pay grade E-5, suspended execution of confinement and forfeiture of $500 pay beyond one month, and then ordered the sentence executed.

Issues:
I. In light of the Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), did the Government violate Staff Sergeant Chamblin’s constitutional right to due process when it failed to provide evidence of unlawful command influence that was favorable and material evidence?

II. Whether the Commandant of the Marine Corps and his subordinate personnel exerted unlawful command influence and/or created the appearance of unlawful command influence over Staff Sergeant Chamblin’s court-martial.

Significant MilJus event this week: The 5th Annual Joint Appellate Advocacy Training is this week, Monday, September 18, at 8:00 AM – Wednesday, September 20, 4:30 PM, at Henderson Hall, Rosenthal Theater, Fort Myer-Henderson Hall, 1555 Southgate Road, Arlington VA. More details here.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 27, 2017. The argument will be heard at the University of Southern California Gould School of Law.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 24, 2017. The argument will be heard at the Florida International University College of Law.

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 September 27, 2017.

This week at SCOTUS: The cert. petitions in Dalmazzi, Cox, and Ortiz were scheduled for conference on September 25. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, September 12, 2017, at 1:30 p.m.:

United States v. Bodoh, No. 20150218

Issues:
I. [Whether t]he military judge abused his discretion by denying the defense motion to dismiss for violation of R.C.M. 707.

II. [Whether t]he military judge erred by instructing the panel that a negligent mens rea was sufficient to make Appellant’s otherwise lawful conduct criminal.

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 September 27, 2017.

This week at SCOTUS: The Court requested a response to the cert. petition in Bartee. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, September 6, 2017, at 10 a.m.:

United States v. Suarez, No. 20170366

Issue: Whether the military judge abused his discretion when he suppressed the contents of Appellee’s cell phone under the Fifth Amendment to the Constitution?

Note: This looks like a prosecution interlocutory appeal under Article 62 in a Mitchell-type case (CAAFlog case page).

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 September 27, 2017.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The net scheduled oral argument at the Army CCA is on September 6, 2017.

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 September 14, 2017.

This week at SCOTUS: The cert. petition in Bartee was distributed for conference on September 25. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The net scheduled oral argument at the Army CCA is on September 6, 2017.

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 September 14, 2017.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

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

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

This week at the CGCCA: The Coast Guard 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 September 14, 2017.

This week at SCOTUS: A cert. petition was filed in Bartee v. United States, No. 17-175 on July 28, 2017. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

The Solicitor General received a second extension of time to respond to the cert. petition in Alexander. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, August 8, 2017, at 10 a.m.:

United States v. Bales, No. 20130743 (CAAFlog news page)

I. [Appellant] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. The military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

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

This week at the CGCCA: I can’t access the Coast Guard CCA’s oral argument schedule.

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

Event: The Joint Service Committee will hold a public hearing on Thursday, August 3, 2017, at 10 a.m. at CAAF to receive public comment on the proposed changes to the MCM (noted here).

This week at SCOTUS: The Solicitor General received a second extension of time to respond to the cert. petition in Ortiz. I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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’s website shows no scheduled oral arguments.

Event: The Judicial Proceedings Panel will hold two days of public meetings this week, on Wednesday, July 26, 2017, from 9:00 a.m. to 4:15 p.m. and Thursday, July 27, 2017, from 9:00 a.m. to 1:30 p.m. Additional details are available in this notice published in the Federal Register.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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’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 six cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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 Thursday, July 20, 2017, at 10 a.m.:

United States v. Motsenbocker, No. 201600285

Case Summary: A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of abusive sexual conduct and one specification of sexual assault, each in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). The members sentenced the appellant to confinement for six months, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and ordered it executed.

Issues:
I. THE GOVERNMENT IS REQUIRED TO PROVIDE FAIR NOTICE OF THE CHARGE AN ACCUSED MUST DEFEND AGAINST. HERE, THE GOVERNMENT CHARGED THE CASE AS A VIOLATION OF ARTICLE 120(B)(1)(B), UCMJ, BUT ARGUED A THEORY OF LIABILITY UNDER ARTICLE 120(B)(3)(A), UCMJ. WAS THIS A FAILURE OF FAIR NOTICE?

II. THE MILITARY JUDGE IS REQUIRED TO PROVIDE ACCURATE INSTRUCTIONS TO MEMBERS. HERE, THE MILITARY JUDGE INSTRUCTED MEMBERS ON CONSENT FOR ARTICLES 120(B)(1)(B) AND 120(D) , UCMJ, USING DEFINITIONS FOR CONSENT IN RELATION TO THE ARTICLE 120(B)(3)(A) , UCMJ, INCAPACITY ELEMENT. WAS THIS INSTRUCTIONAL ERROR BY THE MILITARY JUDGE?

III. TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT TO THE MEMBERS. TRIAL COUNSEL ARGUED THE NEED TO RELY ON BYSTANDER INTERVENTION AND NAVY TRAINING ON SEXUAL ASSAULT CONTRARY TO THE MILITARY JUDGE’S PRELIMINARY INSTRUCTION. ADDITIONALLY, TRIAL COUNSEL REPEATEDLY CALLED THE APPELLANT A LIAR, BOLSTERED THE ALLEGED VICTIM’S TESTIMONY, MISCHARACTERIZED EVIDENCE, INSERTED PERSONAL OPINION IN THE ARGUMENT AND SHIFTED THE BURDEN TO DEFENSE. WAS THIS PROSECUTORIAL MISCONDUCT?

IV. TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT. TRIAL COUNSEL ARGUED A THEORY OF LIABILITY THAT THE ACCUSED WAS NOT CHARGED WITH. HE DID THIS BY PROPERLY ARGUING THE VICTIM HAD CAPACITY TO CONSENT UNDER THE CHARGED OFFENSES OF ARTICLES 120(B)(1)(B) , AND 120(D), UCMJ, WHILE ALSO IMPROPERLY ARGUING THAT THE VICTIM DID NOT HAVE THE CAPACITY TO CONSENT UNDER AN UNCHARGED OFFENSE OF ARTICLE 120(B)(3)(A), UCMJ. WAS THIS PROSECUTORIAL MISCONDUCT?