CAAFlog » TWIMJ

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

This week at CAAF: CAAF has completed its oral argument calendar for the September 2014 term.

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

This week at CAAF: CAAF has completed its oral argument calendar for the September 2014 term.

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

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, May 12, 2015, beginning at 9 a.m.:

United States v. Sullivan, No. 15-0186/CG (CAAFlog case page)

Issues:
I. Whether the Government carried its burden of proving that the convening authority’s categorical exclusion of all flag officers was harmless.
II. Whether the military judge abused his discretion in denying challenges from both parties to his impartiality based on prior personal relationships with individual military counsel, the accused, trial counsel, several members, several witnesses, and the staff judge advocate.

Case Links:
CGCCA opinion
Blog post: Analysis of CGCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Quick, No. 15-0347/MC (CAAFlog case page)

Issue: Whether precedent authorizing courts of criminal appeals to order sentence-only rehearings should be overruled based on: (a) Jackson v. Taylor, 353 U.S. 569 (1957), which stated “no [such] authority” exists; (b) the plain language of the statute including the conjunctive “findings and sentence” in Article 66(d) in contrast to authority granted the judge advocates general in Article 69(a) to act with respect to “findings or sentence or both” and the convening authority in Article 60(f)(3) to order sentence rehearings; and, (c) judicial economy.

Case Links:
NMCCA opinion
Blog post: Analysis of NMCCA opinion
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Amicus brief: Air Force Appellate Defense Division
Amicus brief: Air Force Appellate Government Division
Amicus brief: Goast Guard Appellate Government Division
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, May 14, 2015, at 9:30 a.m.:

United States v. Hills, No. 20130833

Issue: Whether the military judge abused his discretion by granting the Government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual conduct.

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.

This week at CAAF: The next scheduled oral argument at CAAF is on May 12, 2015.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 6, 2015, at 10:00 a.m.:

United States v. Cannon, No. 20130415

Issues:
I. Whether the military judge abused his discretion in failing to grant the defense request to appoint an expert assistant in the area of coercive law enforcement interrogation techniques which may have led to a false confession
II. Whether the military judge committed plain error by admitting an “inadmissible” rock and an “inadmissible” presumptive positive test regarding the rock?

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.

This week at CAAF: CAAF will hear oral argument in four cases this week; three on Tuesday, April 28, 2015, and one on Wednesday, April 29, 2015:

Tuesday, April 28, 2015:

United States v. Murphy, No. 14-0767/AR (CAAFlog case page)

Issue: Whether the Army Court of Criminal Appeals erred in concluding that ammunition constitutes an explosive for purposes of the sentence aggravator of Articles 108 and 121, UCMJ.

Case Links:
ACCA opinion (73 M.J. 699)
Blog post: The Army CCA finds that ammunition is an explosive
Appellant’s brief
Appellee’s (Government) brief
• Blog post: Argument preview

Followed by:

United States v. Stellato, No. 15-0315/AR (CAAFlog case page)

Issues:
I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.
II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.

Case Links:
ACCA opinion (__ M.J. ___)
Blog post: Analysis of ACCA’s opinion
Accused’s brief
Government’s brief
• Blog post: Argument preview

Followed by:

United States v. Schloff, No. 15-0294/AR (CAAFlog case page)

Issue: Whether the Army court erred in expanding the definition of a “sexual contact” to a touch accomplished by an object contrary to the plain language of Article 120(g)(2).

Case Links:
ACCA opinion
Blog post: Analysis of ACCA’s opinion
Appellant’s brief
Government’s brief
Amicus brief (SVC)
• Blog post: Argument preview

Wednesday, April 29, 2015:

United States v. McIntosh, No. 14-0685/AF (CAAFlog case page)

Issue: Whether Appellant received ineffective assistance when defense counsel failed to introduce evidence which strongly corroborated the defense theory that the allegations in this case were false.

Case Links:
AFCCA oral argument audio
AFCCA opinion
Appellant’s brief
Government’s brief
• Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Fruday, May 1, 2015, at 10 a.m.:

United States v. Thomas, No. 20130099

Issues:
I. Whether the military judge abused his discretion when he denied the defense motion for the appointment of an expert consultant/witness to assist the defense in developing and presenting evidence that would support the lack of voluntariness and whether appellant made a false confession to the charged sexual assault offenses?
II. Whether the military judge committed prejudicial error when he denied the defense motion to suppress the appellant’s confession due to lack of voluntariness?

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 Friday, May 1, 2015, at 10 a.m.:

United States v. Pease

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of three specifications of sexual assault, one specification of abusive sexual contact, and two specifications of fraternization in violation of a lawful general order, violations of Articles 120 and 92, UCMJ. The appellant was found not guilty of one specification of sexual assault. He was sentenced to six years’ confinement and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the dishonorable discharge, ordered it executed.

Issues:
I. Whether the military judge erred in failing to give the requested defense instruction on competence?
II. Whether appellant’s constitutional right to due process was violated when he was convicted of violating Article 120 which is unconstitutionally vague?

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 argument at CAAF is on Tuesday, April 28, 2015.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, April 23, 2015, at 10:00 a.m.:

United States v. Burnside, No. 20130193

Issues:
I. Whether the military judge abused his discretion when he denied the defense motion to suppress Appellant’s sworn statement taken in violation of the fifth amendment and Article 31, UCMJ, because special agents PS and RW failed to scrupulously honor Appellant’s invocation of the right to remain silent.
II. Whether the military judge abused his discretion when he admitted Appellant’s involuntary oral and written confessions to special agent PS and special agent RW because they were the product of coercion, unlawful influence, and unlawful inducement.

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 May 1, 2015.

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

This week at CAAF: CAAF will hear oral argument in two cases this week. Both arguments will occur at law schools in Wisconsin, as part of the court’s Project Outreach:

Tuesday, April 14, 2015, at noon, at Marquette University Law School, Milwaukee, Wisconsin.

United States v. Plant, No. 15-0011/AF (CAAFlog case page)

Issue: Whether the evidence is legally sufficient to support the finding of guilty to Charge V and its specification (child endangerment) because the evidence failed to prove Appellant’s alcohol use alone amounted to culpable negligence that endangered the welfare of L.P.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
• Brief of Amicus Curiae (law students)
Blog post: Argument preview

Wednesday, April 15, 2015, at noon, at the University of Wisconsin Law School, Madison, Wisconsin:

United States v. Keefauver, No. 15-0029/AR (CAAFlog case page)

Issue: Whether the Army Court erred in finding that the protective sweep was appropriate in total.

Case Links:
ACCA opinion (73 M.J. 846)
Blog post: Army CCA affirms a protective sweep
Appellant’s brief
Appellee’s (Government) brief
Amicus brief in support of Appellant (law students)
Amicus brief in support of Appellee (law students)
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 23, 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 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, April 14, 2015, at 10 a.m.:

United States v. Montalvo

Case summary: A panel of officer and enlisted members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of two specification of rape in violation of Article 120, UCMJ, 10 U.S.C. § 920. The members sentenced the appellant to reduction to paygrade E-1, confinement for nine years, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence executed.

Issue: Did the military judge abuse his discretion in denying the defense’s continuance request and is Appellant entitled to relief only if the court also finds the error materially prejudiced a substatintial right of the Appellant’s?

Significant military justice event this week: Public comments to the Joint Service Committee’s 2015 annual review of the Manual for Courts-Martial are due tomorrow. Comments may be submitted 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 oral argument at CAAF is on April 14, 2015 (at Marquette University Law School, Milwaukee, WI; on April 15, CAAF will hear argument at the University of Wisconsin Law School, Madison, WI).

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 23, 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 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 April 14, 2015.

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 argument at CAAF is on April 14, 2015 (at Marquette University Law School, Milwaukee, WI; on April 15, CAAF will hear argument at the University of Wisconsin Law School, Madison, WI).

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 23, 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 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 April 30, 2015.

Significant military justice events this week: The Judge Advocates Association American Inn of Court will hold an event at the George Washington University Law School Lerner Hall on Wednesday, March 25, 2015, at 6:45 p.m. Details here.

Additionally, American University – Washington College of Law will hold a National Security Law Brief Spring Symposium on Tuesday, March 24, 2015, from 2-6 p.m. The topic is “Guns for Hire: The Legal, Policy, and Ethical Implications of the Growing Reliance upon Military Contractors.” CAAF’s Chief Judge Baker will be the keynote speaker, and CAAFlog contributor Mike “No Man” Navarre will be part of a panel discussion on the history of U.S. military contractors post WWII and their expansion. Details 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 oral argument at CAAF is on April 14, 2015 (it will be a Project Outreach argument at Marquette University Law School, Milwaukee, Wisconsin; then, on April 15, CAAF will hear argument at the University of Wisconsin Law School, Madison, Wisconsin).

This week at the ACCA: The Army CCA will hear oral argument in two cases this week, both on Tuesday, March 24:

At 10 a.m.: United States v. JnBaptiste, No. 20121113

Issues:
I. Whether the evidence is factually and legally insufficient to support the findings of guilty.
II. Whether the military judge committed prejudicial error when he sustained a prosecution objection to a defense cross-examination question in which the defense was seeking to admit appellant’s statement denying an accusation that he “touched” the victim.

 At 2 p.m.: United States v. Barnes, No. 20120308

Issue: Whether the military judge abused his discretion by giving a military rule of evidence 413 merits instruction to the panel because no evidence had been admitted by the military judge for 413 purposes.

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 Wednesday, March 25, at 10 a.m.:

United States v. Bass

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 violating a lawful general regulation, two specifications of wrongful sexual contact, and two specifications of sodomy in violation of Articles 92, 125, and 120, UCMJ. The appellant was found not guilty of seven specifications of sexual acts and contacts in violation of Article 120, UCMJ and one specification of assault consummated by a battery in violation of Article 128, UCMJ. He was sentenced to seven years’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and except for the dishonorable discharge, ordered it executed.

Issues:
I. Whether the military judge erred in instructing the members that consensual sodomy is a lesser-included offense of forcible sodomy.
II. Whether ABE2 Bass was on notice of the alternative crime of consensual sodomy.

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

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, March 17, 2015, beginning at 9 a.m.:

United States v. Ward, No. 15-0059/NA (CAAFlog case page)

Issue: The convening authority issued an instruction that limited court-martial member nominations to personnel only in the pay grades between E-7 and O-5. The lower court found this systematic exclusion of personnel to be error, but harmless. Should this court set aside appellant’s convictions based on the rationale of United States v. Kirkland due to the unresolved appearance of unfairness?

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

United States v. Nettles, No. 14-0754/AF (CAAFlog case page)

Issue: Whether the Air Force had personal jurisdiction over Appellant at the time of his trial.

Case Links:
AFCCA opinion
Blog post: The AFCCA rejects constitutional protections for threesomes
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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

Tuesday, March 17, 2015, at 10 a.m.:

United States v. Jackson, No. 20120159

Issues:
I. Whether Charge I should be dismissed as it fails to state an offense because an overt act in furtherance of a conspiracy cannot occur after the crime conspired to is complete? See United States v. Grunwald, 353 U.S. 391, 400 (1957).
II. Whether the military judge committed plain error by permitting one special agent to act as a human lie detector?

Wednesday, March 18, 2015, at 10 a.m.:

United States v. Fowler, No. 20121079

Issue: Whether the military judge violated PFC Fowler’s constitutional right against double jeopardy when he found PFC Fowler “not guilty” of desertion and subsequently found PFC Fowler guilty of desertion after allowing the government to introduce evidence.

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 April 30, 2015.

Thanks to a reader, I can share this incredible order from the Air Force CCA, issued last Friday, scheduling oral argument for this Tuesday at 10 a.m., in the case of United States v. Sauk, No. 38398. The CCA specified the following issue for argument:

Whether this court should dismiss the charges and specifications in this case based on the government’s deliberate refusal to comply with a binding post-trial discovery order from this court, when no court has issued a stay of enforcement of such order. Alternatively, whether this court should hold appellate government counsel in contempt of court for willfully disobeying a lawful order to produce post-trial discovery? See United States v. Bowser, Misc. Dkt. No. 2014-08, __ M.J. ___ (A. F. Ct. Crim. App. 2014).

The CCA will sit en banc for the argument. The order provides a factual background for the specified issue. The court’s prior decision in this case is available here.

Update: Some of the comments to this post discuss the people identified as counsel of record for the Government in the CCA’s prior decision. I’ve been informed that the identified military counsel transferred out of the appellate Government section prior to this issue arising.

The Bowser decision was our #10 military justice story of 2014. The AF JAG subsequently certified Bowser to CAAF (discussed here). CAAF then rejected the Government’s initial brief and ordered it to file an amended brief addressing possible controlling or adverse authority (discussed here).

Significant military justice event this week: As published on the JPP’s website (here), the eighth public meeting of the Judicial Proceedings Panel will be held on Friday, March 13, 2015, from 9:00 a.m. to 5:00 p.m. in Washington, D.C. The meeting will take place in Courtroom 20, 6th floor, U.S. District Court for the District of Columbia, 333 Constitution Avenue, NW, Washington, D.C. 20001, and is open to the public. The focus of the March meeting will be on compensation and restitution for sexual assault victims.

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 argument at CAAF is on March 17, 2015.

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

Significant military justice event this week: The 2015 meeting of the Code Committee will occur on Tuesday, March 3, 2015, at 10:00 a.m., at CAAF (notice here). As with the past two years (discussed here (2014) and here (2013)), I plan to attend and post notes.

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 argument at CAAF is on March 17, 2015.

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

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Wednesday, February 25, 2015:

United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page)

Issue: When the Government destroys evidence essential to a fair trial, the Rules for Courts-Martial require the military judge to abate the proceedings. Here, the Government negligently destroyed the sole piece of evidence that provided the basis for HM3 Simmermacher’s conviction prior to both the referral of charges and the assignment of defense counsel. Should the military judge have abated the proceedings?

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

United States v. Woods, No. 14-0783/NA (CAAFlog case page)

Issue: Whether the military judge erred by denying a challenge for cause against the court-martial president, who said the “guilty until proven innocent” standard is “essential” to the military’s mission.

Case Links:
NMCCA opinion
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 March 18, 2015.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Solis, on Monday, February 23, 2015, at 12:05 p.m. at the George Washington University Law Center, Washington D.C.

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.