CAAFlog » TWIMJ

Significant military justice event: A meeting of the Judicial Proceedings Panel will be held on Friday, September 19, 2014. The public session will begin at 8:45 a.m. and end at 5:00 p.m. The meeting will occur at the Holiday Inn, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Federal register notice available here.

This week at SCOTUS: The Solicitor General waived the Government’s right to respond to the cert petitions in Swiger v. United States and McMurrin v. United States. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: The next scheduled oral argument at CAAF is on October 7, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on September 16, 2104, at 10 a.m.

United States v. Brown, No: 20130177

Issue: Whether the military judge abused his discretion by using the term “competent decision” to define “substantially incapacitated” in the jury instruction, thereby lessening the government’s burden of proof for the element of substantial incapacitation.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next schedule oral argument at the Navy-Marine Corps CCA is on October 1, 2014.

This week at SCOTUS: A cert petition was filed in McMurrin v. United States, No. 14-262, on August 29, 2014. I discussed the petition and the history of the case in this post. The Government’s response is due on October 6. 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 will hear the first oral argument of the 2014 term on Tuesday, September 9, 2014, at 9:30 a.m.:

United States v. Vargas, No. 14-6009/MC (CAAFlog case page)

Issue: Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.

Case Links:
NMCCA opinion
Blog post: The NMCCA finds that Article 62 authorizes appeals of recesses
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 September 16, 2104.

This week at the AFCCA: The Air Force CCA will hear oral argument in the Article 62 appeal of United States v. Bowser, No. 2015-08, on Wednesday, September 10, 2014, at 10 a.m. The case involves dismissal of sexual assault charges due to Government discovery violations (discussed in this post).

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, September 10, 2014, at 10 a.m.:

United States v. Riggins

Case Summary: A military judge, sitting as a general court-martial, convicted the appellant, pursuant to his pleas, of two specifications of violating a lawful general order, making a false official statement, and adultery, in violation of Articles 92, 107, and 134, UCMJ, 10 U.S.C. §§ 892, 907, 934 (2006). The appellant was convicted, contrary to his pleas, of six specifications of assault consummated by a battery, and one specification of indecent language in violation of Articles 128 and 134, UCMJ, 10 U.S.C. §§ 928 and 934 (2006). The military judge sentenced the appellant to three years confinement, reduction to pay-grade E-1, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and except for the punitive discharge, ordered the sentence executed.

Issue: Whether the military judge erred when he found that assault consummated by a battery was a lesser-included offense of abusive sexual contact and sexual assault as charged in the additional charge.

This week at SCOTUS: A pro se cert petition was filed in Swiger v. United States, No. 14-6021. CAAF denied review on April 30, 2014, making the petition jurisdictionless. Additionally, last Friday was the extended deadline to file a cert petition in McMurrin v. United States, No. 13A1242.

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

This week at CAAF: The next scheduled oral argument at CAAF is on September 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 16, 2104.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 10, 2014.

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 September 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 16, 2104.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 10, 2014.

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

This week at CAAF: The next scheduled oral argument at CAAF is on September 9, 2014.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, August 20, 2014, at 2 p.m. (from the issue statement, it appears that this case involves a Government interlocutory appeal under Article 62):

United States v. Stellato, No. 20140453

Issue: [Whether t]he military judge abused his discretion by dismissing all charges with prejudice based on claimed violations of R.C.M. 701

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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 now tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on September 9, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 20, 2014.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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 now tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on September 9, 2014.

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 Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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 now tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014. Additionally, CAAF recently published its oral argument calendar for the next term:

September 2014: 9
October 2014: 7, 8, 14, 15, 21
November 2014: 18, 19
December 2014: 9, 10
January 2015: 13, 14, 27
February 2015: 10, 11, 24, 25
March 2015: 17, 18
April 2015: 14, 15, 28, 29
May 2015: 12, 13
June 2015: 9

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 Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

This week at SCOTUS: Another jurisdictionless pro se cert petition was docketed last week, in Newton v. United States, No. 14-5284. CAAF denied review in the case on April 15, 2014. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014.

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 Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

This week at SCOTUS: Two jurisdictionless pro se cert petitions were docketed last week. The first was in Hatley v. United States, No. 14-5131. CAAF denied petitioner’s writ-appeal on April 1, 2014. This is the petitioner’s second attempt to obtain Supreme Court review of his case; the first was discussed here (and details of his court-martial are here and here). The second petition filed last week was in Manciagonzalez v. United States, No. 14-5146. CAAF denied review on January 13, 2014. The NMCCA rejected a factual and legal sufficiency challenge in an opinion available here. The petition was actually filed back in March, but was docketed on July 10.

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

This week at CAAF: The next scheduled oral argument at CAAF (and the first argument of the September 2014 term) is on September 9, 2014.

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 Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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 Hornback was distributed for conference on September 29. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

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 Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

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

This week at SCOTUS: A cert petition was filed in Hornback v. United States, No. 13-1533, on June 23, 2014. The Solicitor General waived the right of the Government to respond three days later. In the Marine Corps case of United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), CAAF found that significant prosecutorial misconduct occurred, but in a 3-2 split concluded that the error was ultimately not prejudicial, affirming the judgment of the NMCCA and the appellant’s convictions.

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

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, July 2, 2014, at 2 p.m.:

United States v. Bram, No. 20110935

Issues:
I. Due process imposes a sua sponte duty on military judges to instruct panel members on any special defenses reasonably raised by the evidence. Specification 3 of Charge II alleges that SSG Bram solicited the murder of an Afghan noncombatant. The evidence adduced at trial established that the noncombatant in question was believed to be a member of the Taliban capable of detonating an explosive device against U.S. forces. Did the military judge’s failure to instruct the panel on the special defenses of justification and mistake of fact violate SSG Bram’s right to due process?
II. Whether the evidence is legally and factually sufficient to sustain SSG Bram’s conviction for soliciting the murder of an afghan noncombatant where the evidence adduced at trial established that his intended targets were enemy combatants engaged in triggering explosive devices against U.S. forces.

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

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, July 1, 2014, at 11 a.m.:

United States v. Howard

Case summary: A panel of members with enlisted representation, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of Aggravated Sexual Assault by causing bodily harm and one specification of Adultery, in violation of Articles 120 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (Supp. 2007). The members sentenced the appellant to reduction to pay grade E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered it executed.

Issue: A military judge must instruct on an affirmative defense if the record contains some evidence of the defense that the members could choose to credit. Here, relying on the victim’s testimony about her actions before, during, and after the sexual act with the appellant, the military judge found some evidence raising the affirmative defense of consent under Article 120(r), Uniform Code of Military Justice, 10 U.S.C. § 920(r) (Supp. 2007). Yet the military judge found that same evidence insufficient to raise the affirmative defense of mistake of fact as to consent under Article 120(r), UCMJ. Was this error?

This week at SCOTUS: The Solicitor General waived the right of the Government to respond to the cert petition in Finch and it was set for conference on September 29, 2014. Additionally, an application to extend the time to file a cert petition in McMurrin v. United States, No. 13A1242, was filed on June 18, 2014. Considering CAAF denied review in McMurrin back in February (discussed here), I’ll be very interested in the jurisdictional basis for any petition filed in the case.

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

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

This week at the ACCA: The Army CCA’s website showns 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 Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, June 26, 2014:

United States v. Hinojos

Case summary: A panel of members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of one specification of Aggravated Sexual Assault and one specification of Abusive Sexual Contact, both in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2006). The members sentenced the appellant to a dishonorable discharge and seven years confinement. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered it executed.

Issue: Whether the military judge abused his discretion by allowing the Government’s DNA expert to testify at trial, over Defense objection, that DNA recovered from the victim’s underwear matched a DNA sample taken from the Appellant, when the Government offered no independent evidence that a DNA sample was ever taken from the Appellant, nor any chain of custody linking the tested sample to the Appellant.

 

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

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week, on Wednesday, June 18, 2014, at 10 a.m.:

United States v. Verdejo Ruiz, No. 37957 

Issue: Whether the military judge erred by denying Appellant’s motion to suppress involuntary statements made after law-enforcement agents promised him confidentiality. 

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on June 26, 2014.

This week at SCOTUS: A cert petition was filed in Finch v. United States, No. 13-1440, on June 3, 2014. In the Air Force case of United States v. Finch, 73 M.J. 144 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page), CAAF narrowly affirmed the decision of the Air Force CCA, rejecting the appellant’s claim that the maximum authorized confinement for his child pornography offenses was just eight months and finding no substantial basis to question the providence of his pleas of guilty to possession and distribution of child pornography in violation of clauses 1 and 2 of Article 134.

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

This week at CAAF: CAAF has finished its oral argument schedule for the September 2013 Term.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, at 10 a.m. on Thursday, June 12, 2014:

United States v. Keefauver, No. 20121026

Issues:
I. Whether the finding as to the specification of Charge I was sufficient as a matter of fact and law because SPC Keefauver could not have constructively possessed the box containing marijuana.
II. Whether the military judge abused his discretion when he failed to suppress all evidence after the box was found.
III. Whether the military judge erred when he admitted into evidence, over defense objection, marijuana found during a search of first class mail that was not covered by a warrant in violation of the fourth amendment.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 18, 2014.

This week at the CGCCA: The Coast Guard Trial Docket shows no scheduled oral arguments at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on June 26, 2014.