This week at SCOTUS: The Supreme Court denied the petition in Ali v. United States, No. 12-805. Behenna is scheduled for conference on May 30, 2013. I’m not aware of any other military justice developments at the Supreme Court. There is just one military justice case pending SCOTUS action:

• Behenna v. United States, No. 12-802 (pending conference on May 30)

This week at CAAF: The next scheduled oral argument at CAAF is on June 11, 2013.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 22, 2013:

United States v. Marino, No. 20120107

Issue: [Whether t]he charge is invalid under the preemption doctrine of the Uniform Code of Military Justice because it prohibits the charging of General Article 134 when the appropriate charge is the enumerated offense of article 92.

Note: A friend informs me that this case involves a soldier in Germany who pleaded guilty to two specifications of wrongful possession of child pornography in violation of Article 134 (prior to the President’s enumeration of that offense). But there is also a local general order prohibiting possession of such materials. The Appellant argues that the existence of the order preempts the application of Art. 134 to his misconduct.

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 pending cases 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, May 22, 2013:

United States v. Paris

Case Summary:
A panel of members with enlisted representation, sitting as a special court-martial, convicted the appellant, contrary to his plea, of attempting to access, with the intent to view, child pornography in violation of Article 134, Uniform Code of Military Justice, 10 U.S.C. § 934. The members sentenced the appellant to reduction to the pay grade E-1 and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and except for the punitive discharge, ordered it executed.

Issues:
I. Whether the appellant’s entry of terms into a search engine was a “substantial step” toward the commission of the offense.
II. Whether the evidence proved beyond a reasonable doubt that the appellant had the specific intent to access websites containing child pornography.

This week at SCOTUS: The Supreme Court granted an extension of time for the filing of a petition for cert in Tearman v. United States (CAAFlog case page). We’re anxiously awaiting the results of the conference on May 9, expected tomorrow. There are two military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (pending results of conference on May 9)
• Behenna v. United States, No. 12-802 (pending conference scheduling)

This week at CAAF: CAAF’s argument calendar shows two scheduled dates for oral argument this week (Tuesday and Wednesday). However, the court has only one case scheduled for argument, on Tuesday, May 14, 2013:

United States v. Brown, No. 13-0244/NA (CAAFlog case page)

Issue: Generally, outside the military justice system, witness attendants may accompany a child on the witness stand if the prosecution shows good cause and the trial judge makes a finding of compelling or substantial need. Here, without good cause shown and without findings of compelling or substantial need, the military judge allowed a victim advocate to serve as a witness attendant for a seventeen-year-old; then the military judge referred to the witness attendant as the complainant’s “advocate” before the members. Did this procedure violate appellant’s presumption of innocence and right to a fair trial?

Case Links:
• NMCCA oral argument audio
• NMCCA opinion
• Blog post: CAAF grants
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 22, 2013.

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 pending cases 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, May 16, 2013:

United States v. McMurrin

Case Summary:
At the appellant’s first trial, a military judge, sitting as a general court-martial, convicted the appellant, pursuant to mixed pleas, of conspiracy to possess cocaine, violation of an order, wrongful use of cocaine, obstruction of justice, and negligent homicide, in violation of Articles 81, 92, 112a, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 912a, and 934.1 The military judge sentenced the appellant to forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for 66 months, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

On appeal the NMCCA: set aside the guilty findings for negligent homicide and violation of an order and dismissed these specifications; affirmed the remaining guilty findings; set aside the sentence; and authorized a rehearing on the sentence. CAAF affirmed the CCA’s decision.

The convening authority then brought a new charge against the appellant for negligent homicide in violation of Article 134, UCMJ, 10 U.S.C. § 934. At the second trial, officer members convicted the appellant, contrary to his plea, of negligent homicide. Based on the guilty finding to negligent homicide and the previously affirmed guilty findings, the members sentenced the appellant to forfeiture of all pay and allowances, reduction to pay grade E-1, confinement for 42 months, and a dishonorable discharge. The convening authority disapproved 99 days of confinement and approved the remaining sentence as adjudged.

Issue: Whether the military judge erred when he found that the court-martial had jurisdiction over the negligent homicide offense despite this court setting aside the prior negligent homicide conviction and authorizing a rehearing on sentence only.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, though there was plenty of commentary about  Behenna (see here) and Ali (see here) during the past week. These are the only two military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (pending conference on May 9)
• Behenna v. United States, No. 12-802 (pending conference scheduling)

This week at CAAF: The next scheduled oral argument at CAAF is on May 14, 2013.

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

Thursday, May 9, 2013: United States v. Flesher, No. 20110449

Issues:
I. Whether the military judge abused his discretion when he allowed the government’s expert on counter-intuitive behavior and denied the expert appellant requested to refute the government’s expert and assist defense counsel in developing trial strategies.
II. Whether the military judge abused his discretion by admitting the testimony of an expert witness in violation of the military rules of evidence and case-law on bolstering, expert qualifications, relevance, and the appropriate content and scope of expert testimony.

Friday, May 10, 2013: United States v. Strempler, No. 20100989

Issues:
I. Is there a substantial basis in law or fact to question the appellant’s guilty plea to the specification of Charge III and Charge III in light of the military judge repeatedly using the phrase “or what appears to be minors” when referencing child pornography?
II. Is the maximum punishment appellant faced impacted by the military judge repeatedly using the phrase “or what appears to be minors” when discussing child pornography in the context of the specification of Charge III and Charge III, and if so, to what relief is appellant entitled?

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 pending cases 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, May 8, 2013:

United States v. Loya

Case Summary: A panel of members with enlisted representation, sitting as a special court-martial, convicted the appellant, contrary to his plea, of wrongful use of marijuana while receiving special pay under 37 U.S.C. § 310, in violation of Article 112a, Uniform Code of Military Justice, 10 U.S.C. § 912a. The members sentenced the appellant to forfeiture of $994 per month for two months, reduction to pay grade E-1, confinement for two months, and a bad-conduct discharge. The convening authority approved the sentence as adjudged.

Issues:
I. When eight minutes passed between the court’s closure for deliberations and the announcement that the members had reached a verdict, did the military judge abuse her discretion by denying the defense request to voir dire the members?
II. Did the military judge place the fairness and impartiality of the court-martial into doubt when she guided the trial counsel in his attempts to admit evidence?
III. Did the military judge abuse her discretion by allowing the government to re-open its case over defense objection after both sides had rested?

This week at SCOTUS: Ali was distributed for conference in May 9. I’m not aware of any other military justice developments at the Supreme Court. There are two military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (pending conference on May 9)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response further extended to Apr. 29)

This week at CAAF: The next scheduled oral argument at CAAF is on May 14, 2013.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 1, 2013:

United States v. Clemmons, No. 20120008

Issues:
I. [Whether] the military judge erred by accepting appellant’s guilty plea to unlawfully carrying a concealed weapon because there was not a substantial basis in law or fact to support the unlawfulness element of the offense.
II. [Whether] the Article 134 concealed carry offense is unconstitutional as applied within the home.

Note: I’d like to see the briefs, particularly regarding Issue II.

This week at the AFCCA: The Air Force CCA will hear oral argument in one cases this week, on Wednesday, May 1, 2013. The case name is United States v. Wicks. No other case information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: It looks like the oral argument at the Navy-Marine Corps CCA scheduled for April 30, 2013, was cancelled. The next scheduled oral argument at the NMCCA is on May 8, 2013.

This week at SCOTUS: The petition in Datavs was denied. The petitioner in Ali has filed a reply to the government’s opposition to the cert petition.

SCOTUSblog has a writeup of the oral argument in Kebodeaux (discussed last week) that highlights the military connection in a few places, but suspects that the Court will look at the bigger issue: “If the arguments are any indication, the Court is almost certain to take on the core constitutional issue in the case, and to take it on full force – whether Congress can impose a registration requirement on a sex offender after his release.”

I’m not aware of any other military justice developments at The Supreme Court. There are two military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (pending conference scheduling)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response further extended to Apr. 29)

This week at CAAF: The next scheduled oral argument at CAAF is on May 14, 2013.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2013.

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week, United States v. Katso on Wednesday, April 24, 2013, and United States v. Verdejo-Ruiz on Friday, April 26, 2013. No additional case information is available on the court’s website, but I’m told that the issue in Katso is:

Under Crawford v. Washington, did the military judge err when he overruled the defense’s objection to the testimony of the government’s DNA expert when that expert did not conduct the DNA analysis of the samples in question?

And the primary issue in Verdejo-Ruiz (there are three in all) is:

The military judge erroneously denied 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 pending cases 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, 2013.

This week at SCOTUS: As discussed in this post, the Solicitor General filed the Government’s opposition to the cert petition in the Ali case. Additionally, the Court will hear oral argument in United States v. Kebodeaux, No. 12-418, on Wednesday, April 17, 2013. The case involves a former Airman convicted of a sex offense by a special court-martial who was not subject to a federal sex offender registration requirement at the time of conviction, but was later implicated by a new federal statute the does require registration (in his case based on the military nature of the conviction, and not on some other action like crossing state lines). SCOTUSblog has a preview of the argument here.

I’m not aware of any other military justice developments at The Supreme Court. There are three military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (pending conference scheduling)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response further extended to Apr. 29)
• Datavs v. United States, No. 12-1113 (pending results of conference on Apr. 12)

This week at CAAF: CAAF will hear oral argument in two cases this week, both on April 15, 2013, beginning at 9:30 a.m.:

United States v. Schell, No. 13-5001/AR (CAAFlog case page)

Certified Issues:
I. Whether the Army Court of Criminal Appeals erred when, contrary to the plain language of 18 U.S.C. §2422(b), United States v. Brooks, 60 M.J. 495 (C.A.A.F. 2005), and the United States Courts of Appeals, the service court held that “the intent element of attempted persuasion, inducement, or enticement requires [that] the accused. . .must intend that the minor, ultimately, actually engage in illegal sexual activity as a result of his persuasion, inducement, or enticement.”
II. Whether the accused’s unsworn statement during the sentencing phase of trial was inconsistent with his guilty plea.

Granted Issue: Whether the military judge’s failure to discuss with cross-appellant that the offense of attempted enticement of a minor requires a substantial step toward the commission of the underlying substantive offense provides a substantial basis in law to question cross-appellant’s plea.

Case Links:
• ACCA opinion (71 M.J. 574)
• Blog post: Interesting published en banc ACCA opinion interpreting 18 U.S.C. § 2422(b)
• Blog post: Army JAG certifies Schell
• Blog post: Cross-petition granted
• Appellant’s (Government) brief (certified issues)
• Appellee’s brief (certified issues)
• Cross-Appellant’s brief (granted issue)
• Cross-Appellee’s (Government) brief (granted issue)

United States v. Jasper, No. 13-0013/AR (CAAFlog case page)

Granted Issues:
I. Whether the military judge erred when he allowed the accuser to reclaim a regulatory privilege after previously waiving that privilege and disclosing that the accuser admitted fabricating some of the allegations against appellant.
II. Whether the Army court erred when it created a constitutional “knowing” element to Military Rule of Evidence 510(a) requiring a privilege holder to be informed of the regulatory privilege in order for the disclosure to be deemed voluntary.
III. Whether the Government’s failure to allege the terminal element in Specification 1 of Charge II and the Specifications of the Additional Charge resulted in material prejudice to appellant’s substantial right to notice.
IV. Whether the military judge erred in instructing the panel members that in order to find appellant guilty of possession of child pornography in violation of Article 134, Clause 1 and 2, the images must be of a child under the age of eighteen, instead of under the age of sixteen as the UCMJ defines child.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (Government) brief

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

Thursday, April 18, 2013, at 10 a.m.: United States v. Lopez, No. 20100457

Issues:
I. Whether the military judge abused his discretion when he denied the defense motion to admit evidence regarding victim 1’s post-offense sexual behavior towards appellant.
II. Whether the military judge abused his discretion when he denied the defense motion to admit evidence regarding victim 2’s sexual activity with PFC [RR] in the presence of appellant in the hours leading up to the sexual assault.
III. Whether the military judge abused his discretion when he denied a defense motion for a mistrial after concluding that the government had withheld relevant evidence that had specifically been requested by the defense.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2013.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases 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, 2013.

This week at SCOTUS: The petition in Datavs was added to the April 12 conference. The Court denied the petition for a rehearing in Brown v. Gray, No. 12-7257. I’m not aware of any other military justice developments at The Supreme Court. There are now three military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (time for SG to file a response extended to Apr. 5)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response further extended to Apr. 29)
• Datavs v. United States, No. 12-1113 (pending conference on Apr. 12)

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

 Tuesday, April 2, 2013, beginning at 9:30 a.m.:

United States v. Bennitt, No. 12-0616/AR (CAAFlog case page)

Granted Issue: Whether appellant’s conviction for involuntary manslaughter under Article 119(b)(2), UCMJ, is legally insufficient because (1) in accordance with United States v. Sargent, 18 M.J. 331 (C.M.A. 1982), appellant’s distribution of oxymorphone was not a crime directly affecting the person under Article 119(b)(2), and (2) even if so, Congress did not intend for Article 119(b)(2) to cover appellant’s misconduct.

Specified Issue: In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King’s wrongful use of Oxymorphone, which is alleged to be an “offense” directly affecting the person of Ms. King. Must Ms. King’s use of Oxymorphone be an “offense” to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

Case Links:
• ACCA opinion (summary affirmance with a footnote)
• Granted issue: Appellant’s brief
• Granted issue: Appellee’s (Government) brief
• Specified issue: Appellant’s brief
• Specified issue: Appellee’s (Government) brief

United States v. Salyer, No. 13-0186/MC (CAAFlog case page)

Issue: Under United States v. Lewis, a case is dismissed with prejudice when unlawful command influence results in the recusal of a military judge. Here, the military judge recused himself because he found that the government’s actions made it impossible for him to remain on the case. The government complained to his supervisor about a ruling, accessed his service record without permission and, with this information, moved for his recusal. Should this case be dismissed with prejudice?

Case Links:
• NMCCA opinion
• Blog post: NMCCA judicial voir dire/UCI opinion
• Blog post: NIMJ’s Salyer amicus
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief (CAAFlog link)

Wednesday, April 3, 2013, beginning at 9:30 a.m.:

United States v. Squire, No. 13-0061/AR (CAAFlog case page)

Issue: Whether Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL’s statement to a physician.

Case Links:
• ACCA opinion
• Appellant’s brief
• Appellee’s (Government) brief

United States v. Wilson, No. 13-0096/AR (CAAFlog case page)

Issue: Whether appellant was denied his right to a speedy trial in violation of Article 10, UCMJ, when the government failed to act with reasonable diligence in bringing him to trial.

Case Links:
• ACCA opinion (summary affirmance)
• Blog post: Article 10: Not dead yet?
• Appellant’s brief
• Appellee’s (Government) brief

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 10, 2013.

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 pending cases at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, at 10 a.m. on Wednesday, April 3, 2013:

United States v. Campbell

Case summary: A military judge, sitting as a special court-martial, convicted the appellant, consistent with his pleas, of one specification of larceny in violation of Article 121, Uniform Code of Military Justice, 10 U.S.C. § 921. The military judge sentenced the appellant to a fine of $1,142.00, reduction to pay grade E-1, 75-days confinement, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and, except for the punitive discharge, ordered it executed.

Issue: Whether the military judge abused his discretion when he accepted appellant’s guilty plea to larceny on divers occasions of an amount in excess of $500 where no single larceny exceeded $118.71?

This week at SCOTUS: The Solicitor General received a further extension of time to respond to the petition in Behenna. The jurisdictionless petition in Robins v. United States, No. 12-8799 was denied on March 15. The United States waived its right to respond in Datavs. I’m not aware of any other military justice developments at The Supreme Court. There are now four military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (time for SG to file a response extended to Apr. 5)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response further extended to Apr. 29)
• Datavs v. United States, No. 12-1113 (pending conference scheduling by the Court)
• Brown v. Gray, No. 12-7257 (pending conference on Mar. 22)

This week at CAAF: The next scheduled oral argument at CAAF is on April 2, 2013.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on April 10, 2013.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Hohenstein at 10 a.m. on Thursday, March 28, 2013. No additional case information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, at 10 a.m. Wednesday, March 27, 2013:

United States v. Price

Case Summary: A military judge, sitting as a general court-martial, convicted the appellant, consistent with his pleas, of one specification of violating a lawful general order and three specifications of abusive sexual contact in violation of Articles 92 and 120, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 920. The military judge sentenced the appellant to forfeiture of all pay and allowances, six (6) years of confinement, and a dishonorable discharge. The convening authority approved the sentence as adjudged, suspended all confinement in excess of forty-eight (48) months, and, except for the punitive discharge, ordered it executed.

Issue: Whether the vacation hearing officer was neutral and detached, when the vacation hearing officer determined that the petitioner had committed misconduct before acting as the vacation hearing officer.

This week at SCOTUS: As discussed last week, a cert petition with an IAC question was filed in Datavs v. United States. Additionally, petition for a rehearing was docketed in Brown v. Gray, No. 12-7257, which was denied cert back in January. I’m not aware of any other military justice developments at The Supreme Court. There are now five military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (time for SG to file a response extended to Apr. 5)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response extended to Mar. 29)
• Robins v. United States, No. 12-8799 (response waived; pending conference on Mar. 15)
• Datavs v. United States, No. 12-1113 (response due Apr. 12)
• Brown v. Gray, No. 12-7257 (pending conference on Mar. 22)

This week at CAAF: CAAF will hear oral argument in one case this week, on Wednesday, March 20, 2013. This argument will occur at the Naval Academy:

United States v. Solomon, No. 13-0025/MC (CAAFlog Case Page)

Issues:
I. In a case involving sexual misconduct committed against a male victim, the military judge admitted extensive evidence under M.R.E. 404(b) and M.R.E. 413 that related to appellant’s previous acquittal for sexual misconduct committed against two females, despite alibi evidence that contradicted his involvement in the sexual misconduct with them. Did the military judge abuse his discretion in admitting the prior sexual misconduct evidence?
II. During the trial counsel’s closing and rebuttal argument, he expressed personal opinions on the evidence, vouched for the veracity of the government witnesses, ridiculed the defense’s case theory, argued facts not in evidence, and claimed that the defense cross-examinations were disingenuous. Did his improper conduct constitute prosecutorial misconduct and did it materially prejudice appellant’s substantial rights?

Case Links:
• NMCCA opinion
• Blog post: CAAF grant
• 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 one case this week, on Thursday, March 21, 2013:

United States v. Kelly, No. 20110138

Issues:
I. Whether the court should set aside appellant’s conviction for premeditated murder because the military judge erroneously omitted the “cool mind distinction” from the definition of premeditated design to kill. United States v. Loving, 41 M.J. 213, 280 (C.A.A.F. 1994); United States v. Hoskins, 36 M.J. 343, 346 (C.M.A. 1993).
II. Whether the evidence is legally insufficient to support the finding that at the time of the killing appellant had a premeditated design to kill.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA’s is on March 28, 2013.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on April 16, 2013.

This week at SCOTUS: The SG received another extension of time to file a response in the Ali case. I’m not aware of any other military justice developments at The  Supreme Court. There are now three active military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (time for SG to file a response extended to Apr. 5)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response extended to Mar. 29)
• Robins v. United States, No. 12-8799 (response waived; pending conference on Mar. 15)

This week at CAAF: CAAF will hear oral argument in two cases this week, on Tuesday, March 12, 2013, beginning at 9:30 a.m.

United States v. Coleman, No. 13-0007/AR

Issue: Whether the military judge erred in failing to grant a defense motion for mistrial based on the trial counsel’s failure to disclose that appellant’s co-accused testified against him in exchange for the staff judge advocate’s recommendation that his sentence be reduced by twelve months.

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

United States v. Medina, No. 13-5002/CG

Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by applying the providency requirements of Hartman in a case where the facts elicited during the providency inquiry revealed that the sexual activity fell outside of the constitutional protections bounded by Lawrence v. Texas because it involved a recent, prior trainer-trainee relationship.
II. Assuming a Hartman inquiry is required, what constitutes a sufficient colloquy between the military judge and an accused to support a plea of guilty to the specification of sodomy under the standard set forth in Hartman.

Case Links:
• CGCCA opinion
• Blog post: CGCCA sets aside plea of guilty to consensual sodomy on Hartman grounds
• Appellant’s (Government) brief
• Appellee’s brief
• Appellant’s (Government) reply brief
• Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2013.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments. However, I received this very interesting order issued by the AFCCA on March 5:

Airman First Class L.R.M.,
Petitioner
v.
Lieutenant Colonel Kastenberg,
Respondent
and
Airman First Class Daniels,
Real Party in Interest

On 14 February 2013, the petitioner filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and Petition for Stay of Proceedings. Pursuant to this Court’s order, dated 20 February 2013, the Government filed an Answer to Order to Show Cause on 22 February 2013. The real party in interest filed their Response to Petition for Extraordinary Relief in the Nature of a Writ of Mandamus on 4 March 2013.

In addition to the parties’ filings, on 22 February 2013, the National Crime Victim Law Institute and the Air Force Trial Defense Division filed separate motions for leave to file their respective amicus curiae briefs, along with said briefs. Additionally, on 4 March 2013, the Navy-Marine Corps and Coast Guard filed a motion for leave to file a joint amicus curiae brief, with accompanying brief.

On 28 February 2013, the petitioner filed a motion for oral argument, to which both the Government and the real party in interest separately responded, on 1 March 2013, that they did not oppose oral argument in this case.

This appears to be an alleged victim’s effort to quash a trial-stage order, as Lieutenant Colonel Kastenberg is identified as a trial military judge in recent AFCCA decisions. If any of the parties want to share their briefs, I’d like to see them.

The AFCCA granted the three motions to file amicus briefs and granted the petitioner’s motion for oral argument. The argument will occur on Monday, March 11, 2013, at 10:30 a.m.

This week at the CGCCA: The Coast Guard Trial Docket shows no pending cases at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on April 16, 2013.

This week at SCOTUS: We’ve discussed the developments in the Behenna case (link to our case page) over the course of the past week. I’m not aware of any other military justice developments at The  Supreme Court. There are now three active military justice cases pending SCOTUS action:

• Ali v. United States, No. 12-805 (time for SG to file a response extended to Mar. 6)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response extended to Mar. 29)
• Robins v. United States, No. 12-8799 (response waived; pending conference on Mar. 15)

This week at CAAF: The next scheduled oral argument at CAAF is on Tuesday, March 12, 2013.

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 pending cases at the Coast Guard CCA.

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

Jess Bravin of the Wall Street Journal will be doing another book talk about his recently published book about the military commission system. Tomorrow night from 1830 to 1930, the University of California Washington Center will present a conversation between Bravin and Professor Mikchael Shenkman of UCDC and Colombia Law School.  The event will be at 1608 Rhode Island Ave NW, Washington, DC 20036.  Here’s a link to the event’s website.

This week at SCOTUS: The Supreme Court extended the time for the Solicitor General to file the court-ordered response in Behenna v. United States until March 29. Additionally, the petition in New v. United States was presumably denied on Friday for lack of jurisdiction. Finally, as discussed in this post, a pro-se IFP petition was filed in Robins v. United States, No. 12-8033. Like the New petition, the petition in Robins is without jurisdiction.

I’m not aware of any other military justice developments at The  Supreme Court. There are now four active military justice pending SCOTUS action:

• Ali v. United States, No. 12-805 (time for SG to file a response extended to Mar. 6)
• Behenna v. United States, No. 12-802 (time for SG to file court-ordered response extended to Mar. 29)
• New v. United States, No. 12-892 (pending confirmation of denial on February 22)
• Robins v. United States, No. 12-8799 (response from SG due on Mar. 22)

This week at CAAF: CAAF will hear oral argument in one case this week, on Tuesday, February 26, 2013, at 9:30 a.m, at the University of Arizona, James E. Rogers College of Law, Tucson, Arizona:

United States v. Kelly, No. 12-0524/AR (CAAFlog case page)

Issues:
I. Whether the military judge abused his discretion when he failed to suppress evidence of child pornography discovered on Appellant’s personal computer in the course of an unreasonable search conducted to find contraband after Appellant was wounded in Iraq and medically evacuated to the United States.
II. Whether the Army Court erred in creating a new exception to the Fourth Amendment when it held that the Government’s search of Appellant’s personal computer was reasonable because the Government was not “certain” or “absolutely clear” that it would be returned to the wounded-warrior Appellant.
III. Whether the examination of the contents of Appellant’s computer was an unlawful inspection under M.R.E. 313(b).

Case Links:
• ACCA opinion
• Appellant’s first brief (granted issues)
• Appellee’s (Government) first brief (granted issues)
• Appellant’s second brief (specified issue)
• Appellee’s (Government) second brief (specified issue)
• Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, February 27, 2013, at 10 a.m.:

United States v. MacDonald, No. 20091118

Issues:
I. [Whether t]he military judge abused his discretion in denying a defense requested instruction on involuntary intoxication, and erred in failing to instruct the members on the effect of intoxication on appellant’s ability to form specific intent and premeditation.
II. [Whether t]he military judge abused his discretion in quashing a government subpoena issued to pfizer, inc., to produce relevant and necessary documents regarding clinical trials, adverse event reports, and post-market surveillance of the drug varenicline.
III. [Whether t]he military judge erred in instructing the members that a severe mental disease or defect “does not, in the legal sense, include an abnormality manifested . . . By nonpsychotic behavior disorders and personality disorders,” because such diagnostic categories “improperly surrender to mental health experts the ultimate responsibility of adjudicating criminal culpability.”

Additionally, the court will hear argument on appellant’s motion for appellate discovery.

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 pending cases 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, February 27, 2013, at 10 a.m.:

United States v. West

Case Summary:
A military judge, sitting as a special court-martial, convicted the appellant, pursuant to her pleas, of one specification of conspiracy, two specifications of violating a lawful general order, one specification of drunken operation of a vehicle, one specification of wrongful possession of a controlled substance, and two specifications of adultery, in violation of Articles 81, 92, 111, 112a, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 881, 892, 911, 912a, and 934. The military judge sentenced the appellant to reduction to pay grade E-1, confinement for six months, forfeiture of two-thirds pay per month for six months, and a bad-conduct discharge. In accordance with a pretrial agreement, all confinement in excess of time served was converted to restriction, and the adjudged forfeitures were suspended for 12 months. The remainder of the sentence was approved.

Issues:
I. Whether the appellant’s pretrial confinement at a civilian detention center violated Article 13, UCMJ.
II. Whether the appellant’s pretrial confinement in the barracks duty hut violated Article 13, UCMJ.
III. Does the provision of the pretrial agreement in which the government promises to remove the appellant from confinement and subject her to “a lesser form of pretrial restraint” after she testifies against a co-conspirator (¶16.a of Appellate Exhibit IV) violate public policy?
IV. If that provision violates public policy, what is the proper remedy?

This week at SCOTUS: The Supreme Court docket for Behenna v. United States has the following entry dated Jan 30: “Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner.” I’m not aware of any other military justice developments at The  Supreme Court.

• Ali v. United States, No. 12-805 (time to file a response extended to Mar. 6)
• Behenna v. United States, No. 12-802 (pending court-ordered response from the SG – due Feb. 27)
• New v. United States, No. 12-892 (pending conference on February 22)

This week at CAAF: CAAF will hear oral argument in two cases this week, on Tuesday, February 19, 2013, beginning at 9:30 a.m.:

United States v. Lubich, No. 12-0555/NA (CAAFlog case page)

Issue: Whether the military judge erred by overruling defense counsel’s foundation and authentication objections and admitting computerized data evidence gathered by an unnamed Navy-Marine Corps Intranet (NMCI) analyst who used an unidentified process with unknown reliability to collect data related to appellant’s network user activity.

Case Links:
• NMCCA opinion
• Blog post: Machine generated printouts are not statements
• Blog post: CAAF grant
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

Followed by United States v. Gaskins, No. 13-0016/AR (CAAFlog case page)

Issues:
I. Whether the Government’s loss of a sentencing exhibit rendered the record of trial incomplete under Article 54, UCMJ, resulting in a jurisdictional limitation on the sentence to one no greater than that which could be approved for a non-verbatim record.
II. Whether Appellant waived the failure to plead the terminal element of the Article 134 offenses by his failure to raise that issue at the sentence rehearing, and if not, whether those charges should be dismissed because the Government failed to plead the terminal element.

Case Links:
Note: Multiple blog posts omitted; see our case page for the full history.
• ACCA opinion (Gaskins I)
• Blog post: Judge Ham Has A Few Parting Gifts for Her Friends
• ACCA opinion (Gaskins II)
• Blog post: Some thoughts about the Gaskins writ
• ACCA opinion (Gaskins III)
• Blog post: It’s b-a-a-a-ck; CAAF grants review of Gaskins
• 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 three case this week:

Wednesday, February 20, 2013, at 10 a.m.: United States v. Savage, No. ARMY 20110495

Issues:
I. [Whether] Appellant’s conviction under specification 3 of Charge V for striking SPC [A. K.] in the face is factually and legally insufficient because the government failed to prove that he shared the perpetrator’s criminal intent or participated in the assault.
II. [Whether] Appellant’s conviction under the specification of Charge III for willfully damaging military property is factually and legally insufficient where the government failed to prove that appellant shared the perpetrators’ criminal intent or participated in the crime, and, except for the overhead camera, offered no evidence of the damage to the allegedly damaged military property.
III. [Whether] Appellant’s conviction under the specification of Charge I for mutiny is factually and legally insufficient where the government failed to prove appellant’s allegedly mutinous acts of attacking PFC [A.A.], barricading himself in the special housing unit west, and exhorting others to join him in defiance of lawful military authority.
IV. Appellant’s conviction under the specification of Charge III for willfully disobeying a lawful command from his superior commissioned officer is factually and legally insufficient.

Thursday, February 21, 2013, at 10 a.m.: United States v. Delaney, No. ARMY 20110145

Issues:
I. Whether the evidence is factually and legally sufficient to support the finding of guilt for rape by force where appellant raised the defense of consent.
II. Whether the evidence is factually and legally sufficient to support the finding of guilt for rape by force where appellant raised the defense of mistake of fact.
III. Whether the evidence is factually and legally sufficient to support the finding of guilt to assault with an unloaded firearm.

Thursday, February 21, 2013, at 2 p.m.: United States v. Stimpel, No. ARMY 20100310

Issue: Whether Appellant’s due process rights were violated.

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 pending cases at the Coast Guard CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on February 27, 2013.