CAAFlog » TWIMJ

Significant military justice event this week: The 6th annual Joint Appellate Advocacy Training is this Tuesday-Thursday, September 18-20, 2018 at the Rosenthal Theater, Fort Myer-Henderson Hall in Arlington, VA. Additional details here.

This week at SCOTUS: A petition for certiorari (available here) was filed in Larrabee v. United States, No. 18-306, on Friday, September 14, 2018. The petition challenges the constitutionality of court-martial jurisdiction over retired members of the armed forces who receive retired pay. The exercise of such jurisdiction was our #1 Military Justice Story of 2017.

Staff Sergeant Larrabee is a retired member of the Marine Corps who pleaded guilty to sexual assault and indecent recording (offenses that occurred after he transferred to the retired list) and was sentenced to confinement for 8 years, a reprimand, and a dishonorable discharge. All confinement in excess of 10 months was suspended pursuant to a pretrial agreement. The Navy-Marine Corps CCA affirmed the findings and sentence in 2017 (link to slip op.). CAAF granted review as a trailer to United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page), and then summarily affirmed in light of Dinger in August.

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 completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The 2018 term begins on October 1, 2018. The next scheduled oral argument at CAAF is on October 23, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 26, 2018.

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 website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

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

This week at CAAF: CAAF completed its oral argument calendar for the 2017 term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

The 2018 term begins on October 1, 2018. Nevertheless, this week CAAF will hear the first two oral arguments of next term:

Wednesday, September 12, 2018, at 3 p.m., at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York:

United States v. Eugene, No. 18-0209/AR (CAAFlog case page)

Issues:
I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.

II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview (in progress)

Thursday, September 13, 2018, at 11 a.m., at the Fordham University School of Law in New York:

United States v. Criswell, No. 18-0091/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.

Case Links:
ACCA decision
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Law student amicus in support of appellant
Law student amicus in support of the appellee (Gov’t Div.)
Blog post: Argument preview (in progress)

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, September 11, 2018, at 12:30 p.m., at Pepperdine University School of Law, in Malibu, CA:

United States v. Beer, No. 20160659

Issues:
I. Whether the military judge abused his discretion by summarily denying the panel’s request for additional evidence.

II. Whether appellant’s conviction of signing a false official statement in violation of Article 107, UCMJ, is legally and factually sufficient.

III. Whether appellant’s sentence 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 website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on October 2, 2018.

Significant military justice event this week: The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) will hold a public meeting this Friday, September 7, 2018 from 11:00 a.m. to 1:00 p.m., at One Liberty Center, 875 N Randolph Street, Suite 150, Arlington, Virginia 22203. Additional details about the meeting are available here.

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

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

The first oral argument of the 2018 term will occur on September 12, 2018, at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York. The second will occur the following day, at the Fordham University School of Law in New York.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, September 5, 2018, at 10 a.m.:

United States v. Myer, No. 20160490

Issues:
I. Whether appellant was denied his Sixth Amendment right to effective assistance of counsel where defense counsel failed to reasonably investigate, present crucial evidence, and cross examine witnesses.

II. Whether Article 133 is unconstitutionally void for vaguesness as it applies to appellant’s conduct.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week. On Wednesday, September 5, 2018, at 10 a.m., the court will hear oral argument in United States v. Hyppolite, No. 39358. On Thursday, September 6, 2018, at 10 a.m., the court will hear oral argument in United States v. Seeto, No. 39247. The argument in Seeto will not be open to the public. No additional information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on Wednesday, September 6, 2018, at 10 a.m.:

United States v. Hernandez

Issue:
I. Whether the three specifications of the sole charge  were multiplicious where the three actions occurred nearly simultaneously, involved a single subject, and effectuated a single purpose?

The argument will occur in the United States Navy‐Marine Corps Court of Criminal Appeals Courtroom 1254 Charles Morris Street SE, Bldg. 58, Suite 320, Washington Navy Yard, DC 20374.

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 one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

The first oral argument of the 2018 term will occur on September 12, 2018, at the Keenan Ceremonial Courtroom, 500 Pearl Street, New York. The second will occur the following day, at the Fordham University School of Law in New York.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, August 30, 2018, at 10 a.m.:

United States v. Navarette, No. 20160786

Issues:
I. WHETHER THIS COURT SHOULD GRANT APPELLANT’S MOTION FOR A RCM 706 INQUIRY INTO THE PRESENT MENTAL CAPACITY OF APPELLANT.  SEE RCM 1203(C)(5) AND RCM 706.

II. WHETHER THIS COURT SHOULD GRANT APPELLANT’S MOTION FOR A RCM 706 INQUIRY TO ASSESS APPELLANT’S MENTAL RESPONSIBILITY AT THE TIME OF THE OFFENSE. SEE RCM 916(B)(2); RCM 916(K); RCM 1210 (F)(2); AND UNITED STATES V. CAMPBELL, 57 M.J. 134 (2002).

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 5, 2018.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on September 6, 2018.

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 one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 term is a Project Outreach argument on September 12, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 30, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 5, 2018.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on September 6, 2018.

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 one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 term will be a Project Outreach argument on September 12, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 5, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 5, 2018.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on September 6, 2018.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Monday, August 13, 2018 at 1 p.m.:

United States v. Spinoza, No. 201700236

Case Summary: A general court-martial composed of officer members convicted the appellant, contrary to his pleas, of stalking, assault consummated by battery, communicating a threat, fraternization, and unlawful entry. The members sentenced the appellant to be reprimanded and dismissed from the Naval Service. The convening authority approved the sentence as adjudged, and, except for the dismissal, ordered the sentence executed.

Issue: IF THE SEARCH OF LT SPINOZA’S CELLPHONE WAS OUTSIDE THE SCOPE OF CONSENT AND NOT SUPPORTED BY COMMAND AUTHORIZATION, WAS LT SPINOZA DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE TEAM DID NOT MOVE TO SUPPRESS EVIDENCE OBTAINED FROM THE UNCONSTITUTIONAL SEARCH OF HIS CELLPHONE?

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

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 term will be a Project Outreach argument on September 12, 2018.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on August 8, 2018, at 10 a.m.:

United States v. Griego, No. 20160487

I. Whether the convening authority’s action should be set aside because appellant received ineffective assistance of counsel when his defense counsel failed to communicate with him during the post-trial process and failed to submit matters to the convening authority on appellant’s behalf.

[II]. Whether the preemption doctrine precludes appellant’s convictions for violations of civil statutes incorporated into the ucmj through article 134.

Disclosure: I represent the appellant in my civilian capacity and will argue this case. 

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 5, 2018.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on is on Thursday, August 9, 2018, at 10 a.m., at the NMCCA’s courtroom at the Washington Navy Yard:

United States v. Livingstone 

Issue: Whether the military judge reversibly erred by failing
to instruct on mens rea with regard to the conduct
unbecoming charges?

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on August 13, 2018.

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

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 term will be a Project Outreach argument on September 12, 2018.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 6, 2018.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom at the Washington Navy Yard.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on August 13, 2018.

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

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page. The planned first oral argument of the 2018 Term will be a Project Outreach argument on September 12, 2018.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, July 25, 2018, at 10 a.m.:

United States v. Allen, No. 20180285

Issue: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE SUPPRESSED APPELLEE’S VOLUNTARY STATEMENT AND THE CONTENTS OF HIS CELL PHONE UNDER THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION.

Note: This is a prosecution appeal under Article 62.

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

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

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

This week at SCOTUS: It looks like Acevedo did not file a cert. petition, so I’ve removed the case from my list. I’m not aware of any military justice developments at the Supreme Court, where I’m now tracking just one case:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2018.

This week at the AFCCA: The Air Force CCA’s website is inaccessible.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

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 two cases:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

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

Tuesday, July 10, 2018, at 10 a.m.:

United States v. Davis, No. 20160069

Issue: WHETHER SPECIFICATION 2 OF CHARGE IV IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE DISPLAYING A VIDEO ON A CELL PHONE SCREEN DOES NOT MEET THE DEFINITION OF “BROADCASTING” UNDER ARTICLE 120(C) UCMJ?

Friday, July 13, 2018, at 10 a.m.:

United States v. Norris, No. 20160262

Issues:
I. WHETHER THE MILITARY JUDGE ERRED UNDER UNITED STATES V. REYNOLDS, 29 M.J. 105 (C.M.A. 1989) BY ALLOWING THE GOVERNMENT TO INTRODUCE EVIDENCE OF UNCHARGED ACTS TO PROVE APPELLANT’S “INTENT TO DOMINATE AND CONTROL” HIS WIFE AND APPELLANT’S “MOTIVE OF HOSTILITY”?

II. WHETHER LYING ON TOP OF ANOTHER IS LEGALLY SUFFICIENT TO CONSTITUTE FORCE FOR A CONVICTION OF FORCIBLE RAPE IN VIOLATION OF ARTICLE 120 (2006)?

Disclosure: I represent Captain Norris in my personal capacity and will present this oral argument.

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

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

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

This week at SCOTUS: In the wake of its opinion in Ortiz v. United States, 585 U.S. __, No. 16-1423 (June 22, 2018) (analyzed here), the Supreme Court denied the petitions in Alexander, Abdirahman, Cash, and Richards (all of which involved Ortiz trailer issues). The Court also denied the petitions in Bales (denial noted here) and Gray (analysis of CAAF’s opinion is here and here).

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 completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 10, 2018.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Collins on Thursday, June 28, 2018, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

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

This week at SCOTUS: The Court issued a decision in Ortiz v. United States on Friday, June 22, 2018 (analyzed here). 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 completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 10, 2018.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Collins on Thursday, June 28, 2018, at 10 a.m. No additional information is available on the CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on August 9, 2018. The argument will occur at the NMCCA’s courtroom in the Washington Navy Yard.

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 Condon was distributed for conference on September 24. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking nine cases:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week:

Thursday, June 21, at 10 a.m.:

United States v. Quill, No. 20160454

Issues:
I. Whether the military judge erred by denying a defense challenge for cause.

II. Whether the military judge erred by admitting appellant’s confession without corroborating evidence under MRE 304(c).

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments at the CCA.

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

This week at SCOTUS: The cert. petitions in Gray and Bales were distributed for conference on June 21, and the SG waived the right to respond to the cert. petition in Condon. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking nine cases:

This week at CAAF: CAAF completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available on our 2017 Term of Court page.

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

Tuesday, June 12, at 10 a.m.:

United States v. Morgan, No. 20160573

Issue: [Whether t]he military judge’s repeated exclusion of admissible evidence was an abuse of discretion which deprived SSG Morgan of the right to adequately defend himself.

Friday, June 15, at 10 a.m.:

United States v. Lopez, No. 20140973

Issue: [doesn’t load on the CCA’s website]

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments at the CCA.

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