CAAFlog » TWIMJ

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 completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 3, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

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

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

This week at SCOTUS: 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 completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 22, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

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

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

Significant military justice event this week: The Young Lawyers Division of the American Bar Association will host a free webinar on the Bergdahl case on Wednesday, July 13, 2016, from 1:00 p.m. to 2:00 p.m. (eastern time). Register here.

This week at SCOTUS: The Solicitor General received an additional extension of time to respond to the cert. petition in Akbar. 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 has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, July 12, 2016, at 2 p.m.:

United States v. Bonilla, No. 20131084

Issues:
I. Whether the military judge erred by allowing a damaging hearsay statement into evidence after he already ruled the specific statement inadmissible.
II. Whether the military judge abused his discretion in prohibiting the defense from completing their closing argument.

Note: This argument was rescheduled from June 14.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 18, 2016.

This week at the CGCCA: The Coast Guard CCA will hear oral argument in one case this week, on Tuesday, July 12, 2016, at 10 a.m.:

United States v. Riesbeck

Issue: Whether the panel of members was properly selected.

Note: Our prior discussion of this case is available here and here.

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 has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 12, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 25, 2016.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on July 12, 2016.

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 has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 12, 2016.

This week at the AFCCA: I’m unable to access the Air Force CCA’s website.

This week at the CGCCA: The next scheduled oral argument at the Coast Guard CCA is on Tuesday, July 12, 2016 at at a.m.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, June 30, 2016, at 10 a.m.:

United States v. Darnall

Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted appellant, contrary to his pleas, of four specifications of conspiracy; one specification of making a false official statement; twelve specifications of importing, possessing with the intent to distribute, distributing, and manufacturing controlled substances; four specifications of possessing, distributing, and importing controlled substance analogues; and seven specifications of using a communication facility in furtherance of a conspiracy in violation of Articles 81, 107, 112a, and 134, UCMJ, 10 U.S.C. §§ 881, 907, 912a, and 934 (2012). The members sentenced appellant to reduction in pay grade to E-1, six years’ confinement, and a dishonorable discharge. The Convening Authority approved the adjudged sentence, suspended confinement in excess of five years, and, except for the dishonorable discharge, ordered the sentence executed.

Issue: THE MILITARY JUDGE HELD THAT THERE WAS SUFFICIENT PROBABLE CAUSE FOR A CID AGENT TO ARREST APPELLANT. WAS THIS AN ERRONEOUS RULING, AND IF SO, SHOULD ALL EVIDENCE FLOWING FROM THE APPREHENSION HAVE BEEN SUPPRESSED AT TRIAL?

This week at SCOTUS: The cert. petition in Sullivan was distributed for conference on September 26. 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 has completed its oral argument calendar for the term. Details about this term’s cases are available on our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on July 12, 2016.

This week at the AFCCA: I’m unable to access the Air Force CCA’s website.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, June 21, 2016, at 10 a.m.:

United States v. Ellis

Case summary: A panel of members with enlisted representation sitting as general court-martial convicted the appellant, contrary to his pleas, of two specifications of rape, two specifications of sexual assault, three specifications of abusive sexual contact, and three specifications of assault consummated by a battery, in violation of Articles 120 and 128, UCMJ, 10 U.S.C. §§ 920, 928 (2012). The members sentenced appellant to two years’ confinement, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed. The issue to be argued before this Court is as follows:

Issue: WHETHER THE MILITARY JUDGE ERRED IN DENYING THE APPELLANT HIS RIGHT TO CONFRONT HIS ACCUSERS ABOUT VICTIM/VICTIM ADVOCATE DISCUSSIONS PURSUANT TO THE SIXTH AMENDMENT, U.S. CONST., M.R.E. 608(C) AND M.R.E. 514(D)(3).

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 completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, June 14, 2016, at 10 a.m.:

United States v. Bonilla, No. 20131084

Issues:
I. Whether the military judge erred by allowing a damaging hearsay statement into evidence after he already ruled the specific statement inadmissible.
II. Whether the military judge abused his discretion in prohibiting the defense from completing their closing argument.

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 June 21, 2016.

This week at SCOTUS: The Court granted the Solicitor General an extension of time to file a response to the cert. petition in Akbar. 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 has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 14, 2016.

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 June 21, 2016.

This week at SCOTUS: The Solicitor General filed a brief opposing certiorari in Sullivan. 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 has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 14, 2016.

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 two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 14, 2016.

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 two cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about this terms cases are available at our 2015 Term of Court page.

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 Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: The Solicitor General received an extension of time, to June 8, to respond to the cert. petition in Akbar. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF will hear oral argument in four cases this week (note: as the court’s website is down, I’m hosting the briefs on CAAFlog):

Tuesday, May 10, 2016, at 9:30 a.m.:

United States v. Evans, No. 16-0019/AR (CAAFlog case page)

Issue: Where the Army Court of Criminal Appeals found evidence was admitted in violation of Appellant’s Article 31(b), UCMJ, rights, did the court err in applying the Kerr prejudice test as opposed to the Brisbane harmless beyond a reasonable doubt test?

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

Followed by:

United States v. Hills, No. 15-0767/AR (CAAFlog case page)

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 misconduct.

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

Wednesday, May 11, 2016, at 9:30 a.m:

United States v. Howell, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page)

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?
III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?
IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

Case Links:
• NMCCA opinion
Blog post: The NMCCA splits 4-4 on the propriety of Art. 13 relief for a pay issue
Blog post: Navy JAG certified Howell
Blog post: Judge Ryan recuses herself from Howell
Howell’s brief: Certified issue 1
Government brief: Certified issue 1
• Howell’s reply brief: Certified issue 1
Government brief: Certified issues 2-4
• Howell’s brief: Certified issues 2-4
• Government reply brief: Certified issues 2-4
Blog post: Argument preview

Followed by:

EV v. United States & Martinez, No. 16-0398/MC (CAAFlog case page)

Issues:
I. Whether the NMCCA erred by erroneously denying EV’s petition for a writ of mandamus despite EV’s clear and indisputable right to the issuance of a writ.
II. Whether the military judge abused his discretion by erroneously ruling the defense satisfied each prong of Mil. R. Evid. 513(e)(3) and by ruling that Mil. R. Evid. 513(d)(5) applied.
III. Whether the military judge violated EV’s Article 6b rights by erroneously applying impermissible exceptions and denying EV a right to receive notice and to be heard.
IV (specified by CAAF). Whether the United States Court of Appeals for the Armed Forces has statutory authority to exercise jurisdiction over decisions of the courts of criminal appeals rendered pursuant to Article 6b, UCMJ.

Case Links:
Blog post: A writ-appeal by an apparent alleged victim
Blog post: CAAF grants review of a writ-appeal by an alleged victim
EV’s brief (writ-appeal petition)
• EV’s brief (specified issue)
• Government’s brief
• Martinez’s brief
Martinez’s brief (specified issue)
EV’s reply brief
• Amicus brief in support of EV (Protect Our Defenders)

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

Monday, May 9, 2016, at 10 a.m.: United States v. Craig, No. 20150272

Issue: Whether the military judge abused his discretion in accepting the accused’s guilty plea when he failed to address the mistake of fact defense and failed to obtain an adequate factual basis for the plea.

Thursday, May 12, 2016, at 10 a.m.: United States v. Bonilla, No. 20131084

Issues:
I. Whether the military judge erred by allowing a damaging hearsay statement into evidence after he already ruled the specific statement inadmissible.
II. Whether the military judge abused his discretion in prohibiting the defense from completing their closing argument.

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

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, May 12, 2016, at 10 a.m.:

United States v. Neiman

Case summary: A panel of members with enlisted representation sitting as general court-martial convicted the appellant, contrary to his pleas, of one specification of murder and one specification of obstruction of justice in violation of Articles 118 and 134, UCMJ, 10 U.S.C. §§ 918 and 934. The members sentenced appellant to confinement for life with the possibility of parole, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed.

Issue: Whether the military judge erred in finding that the appellant’s statements to NCIS were voluntary and admissible.

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: The next scheduled oral arguments at CAAF are on May 10, 2016.

This week at the ACCA: The Army CCA’s website is still not accessible to the public (discussed here). The Army CCA will hear oral argument in one case this week:

Thursday, May 5, 2016, at 10 a.m.: United States v. Hennis, No. 20100304

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 11, 2016.

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

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

This week at SCOTUS: The Government received an additional (4th) extension of time to respond to the cert. petition in Sullivan. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

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

Tuesday, April 26, 2016, at 9:30 a.m.:

United States v. Witt, No. 15-0260/AF (CAAFlog case page)

Issues:
I. Whether a court of criminal appeals sitting en banc can reconsider a previous en banc decision of that court pursuant to statutory authority, applicable precedent, or inherent authority?
II. Whether a decision of a court of criminal appeals sitting en banc can be reconsidered en banc when the composition of the en banc court has changed?

Case Links:
AFCCA decision (72 M.J. 727)
Blog post: AFCCA sets aside death sentence in Witt
AFCCA decision (73 M.J. 738)
Blog post: AFCCA reinstates the death penalty for Senior Airman Witt
Blog post: #7 Military Justice Story of 2014
Blog post: CAAF to examine the AFCCA’s reconsideration
Blog post: Oral argument limited to two issues
• Appellant’s brief (specified issues)
Appellee’s (Government) brief (specified issues)
Appellant’s reply brief (specified issues)
Appellee’s (Government) brief (specified issues
Appellant’s brief (other issues)
Appellee’s (Government) brief (other issues)
Appellant’s reply brief (other issues)
Blog post: Argument preview

Wednesday, April 27, 2016, at 9:30 a.m.:

United States v. Sterling, No.s 15-0510/MC & 16-0223/MC (CAAFlog case page)

Specified Issues:
I. Did Appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?
II. Did Appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Certified Issues:
I. Did Appellant’s failure to follow an instruction on the accommodation of religious practices impact her claim for relief under the Religious Freedom Restoration Act?
II. Did Appellant waive or forfeit her Religious Freedom Restoration Act claim of error by failing to raise it at trial?

Case Links:
NMCCA oral argument audio
NMCCA opinion
Blog post: A military order vs. the Religious Freedom Restoration Act
Blog post: The Government’s answer and an amicus brief in Sterling
Blog post: CAAF grants (on specified issues) in Sterling
Blog post: Navy JAG certifies issues in Sterling (and the appellant files her brief)
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Appellee’s (Government) reply brief
Amicus brief (in support of Sterling): Aleph Institute, et al.
Amicus brief (in support of Sterling): Alliance Defending Freedom and Chaplain Alliance for Religious Liberty
Amicus brief (in support of Sterling): Citizens United, Citizens United Foundation, U.S. Justice Foundation, Faith and Action, Public Advocate of the U.S., Conservative Legal Defense and Education Fund, Institute on the Constitution, E. Ray Moore, and George P. Byrum
Amicus brief (in support of Sterling): Members of Congress, American Center for Law and Justice, and Committee to Protect Religious Liberty in the Military
Amicus brief (in support of Sterling): Nine Retired General Officers
Amicus brief (in support of Sterling): Rabbi Philip Lefkowitz
Amicus brief (in support of Government): Americans United for Separation of Church and State, Jewish Social Policy Action Network, and People for the American Way Foundation 
Amicus brief (in support of neither party): States of Oklahoma, Nevada, Arizona, Arkansas, Georgia, Nebraska, South Carolina, Texas, Utah, and West Virginia
Blog post: Argument preview

This week at the ACCA: The Army CCA’s website is still not accessible to the public (discussed here). The Army CCA will hear oral argument in three cases this week:

Tuesday, April 26, 2016, at 10 a.m.: United State v. Bonilla, No. 20131084 Edit: rescheduled to May 12.

Wednesday, April 27, 2016, at 10 a.m.: United States v. Marsh, No. 20120572

Friday, April 29, 2016, at 10 a.m.: United States v. Manriquez, No. 20140893

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on May 11, 2016.

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

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

The Army CCA’s website is still not accessible to the public, however I can report that the Army CCA will hear oral argument in the Bergdahl case this week, on Friday, April 22, 2016, at 10 a.m.

Additional scheduled oral arguments at the Army CCA include:

Tuesday, April 26, 2016, at 10 a.m.: United State v. Bonilla, No. 20131084

Wednesday, April 27, 2016, at 10 a.m.: United States v. Marsh, No. 20120572

Friday, April 29, 2016, at 10 a.m.: United States v. Manriquez, No. 20140893

Thursday, May 5, 2016, at 10 a.m.: United States v. Hennis, No. 20100304

Monday, May 9, 2016, at 10 a.m.: United State v. Craig, No. 201650272