CAAFlog » TWIMJ

I inadvertently omitted an important military justice event from yesterday’s This Week in Military Justice post.

A public meeting of the Joint Service Committee will be held on Wednesday at CAAF, beginning at 10 a.m. The purpose of the meeting is to discuss the proposed amendments to the Manual for Courts-Martial (discussed here).

I’m planning to attend the meeting. I look forward to meeting any readers who might also be there.

This week at SCOTUS: The Solicitor General waived the right to respond in Wickware. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking one case:

This week at CAAF: The next scheduled oral argument at CAAF is on November 18, 2014.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on December 10, 2014.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 25, 2014.

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

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

This week at SCOTUS: The Court denied cert in McMurrin v. United States, No. 14-262. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking only one case:

This week at CAAF: CAAF will hear oral argument in four cases this week, two on Monday and two on Tuesday.

Monday, October 20, 2014, beginning at 9:30 a.m.:

United States v. Phillips, No. 14-0199/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion by accepting appellant’s plea of guilty to disobeying the order of his commander in violation of Article 90, UCMJ, when the ultimate offense at issue was the minor offense of breaking restriction described under Article 134, UCMJ, and the record does not reflect appellant’s understanding that the order imposing restriction was issued with the full authority of his commander’s office to lift the duty in the parlance of this court’s earlier opinion, “above the common ruck.”

Case Links:
ACCA opinion (three-judge panel) (deleted from the CCA’s website)
Blog post: Is the “ultimate offense doctrine” making a comeback?
ACCA opinion (recon. en banc), 73 M.J. 572
Blog post: It was fun while it lasted… the Army CCA puts an end to the comeback of the ultimate offense doctrine
Blog post: The ultimate offense doctrine returns to CAAF
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Followed by:

 United States v. Morita, No. 14-5007/AF (CAAFlog case page)

Certified Issue: Whether the Air Force Court of Criminal Appeals erred when it found the court-martial lacked subject matter jurisdiction and whether the Air Force Court of Criminal Appeals abused its discretion when it refused to grant the Government’s motion to submit documents.

Granted Issue: Whether the Air Force Court of Criminal Appeals erred by finding that a reservist can create court-martial jurisdiction by forging active duty orders and/or inactive-duty training orders and by finding that court-martial jurisdiction existed for each 120-day period listed on the three applications for MPA man-day tours.

Case Links:
AFCCA oral argument audio
AFCCA opinion (73 M.J. 548)
Blog post: The AFCCA’s fascinating opinion in Morita
Certified issue: Government’s brief
Certified issue: Defense brief
Granted issue: Defense brief
Granted issue: Government brief
Blog post: Argument preview

Tuesday, October 21, 2014, beginning at 9:30 a.m.:

United States v. Peters, No. 14-0289/AR (CAAFlog case page)

Issue: Whether the military judge erred in denying the implied bias challenge against LTC JC, in light of LTC JC’s professional relationship with trial counsel, the special court-martial convening authority, and the investigating officer.

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

Followed by:

United States v. Castillo, No. 14-0457/AR (CAAFlog case page)

Issue: Whether, under the totality of the circumstances, the military judge erred in denying the defense implied bias challenge against LTC DS in light of his personal experience as a sexual assault victim, his direct supervisory role over two other members, his ongoing reliance on the trial counsel for military justice advice, the presence of four other members who also received military justice assistance from the trial counsel, and the fact that the panel was selected exclusively from appellant’s brigade.

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

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 should no scheduled oral arguments.

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

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

This week at SCOTUS: A pro se cert petition was filed in Wickware v. United States, No. 14-6677. CAAF addressed Wickware in a summary disposition last May, dismissing offenses that were charged in the alternative. I discussed Wickware in my analysis of the Navy-Marine Corps CCA’s decision in United States v. Hart, No. 201300295 (N-M.Ct.Crim.App. Aug. 19, 2014).

Additionally, I’m awaiting the results of last Friday’s conference where the Court considered the cert petition in McMurrin. 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 one case this week, on Wednesday, October 15, 2014, at Marine Corps Base Camp Lejeune, North Carolina:

United States v. Gilbreath, No. 14-0322/MC (CAAFlog case page)

Issues:
I. Whether individual ready reservists, subject to punishment under the UCMJ, are entitled to the protections of Article 31(b) when questioned by senior service members about suspected misconduct committed on active duty.
II. Whether the military judge erred in concluding that Appellant’s statements were admissible under Article 31(b), UCMJ, and Military Rule of Evidence 305.

Case Links:
NMCCA opinion
Blog post: NMCCA finds that Article 31(b) does not apply to inactive reservists
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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 should no scheduled oral arguments.

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

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

Significant Military Justice Event: The Judicial Proceedings Panel will conduct a public meeting on Friday, October 10, 2014, from 8:45 a.m. to 5:00 p.m. at the Holiday Inn Arlington at Ballston, Glebe and Fairfax Ballrooms, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available in this Federal Register notice.

This week at SCOTUS: Six of the military justice cases pending at the Supreme Court were considered in last week’s conference. As discussed in this post, the Court’s order list mentions none of them, meaning that certiorari was denied. I’m not aware of any other military justice developments at the Supreme Court, where I’m now tracking just one case:

This week at CAAF: CAAF will hear oral argument in four cases this week. On Tuesday, October 7, 2014, beginning at 9:30 a.m. the court will hear two cases:

United States v. McFadden, No. 12-0501/AF (CAAFlog case page)

Issues:
I. Whether the Air Force Court of Criminal Appeals (AFCCA) erred when it held that the military judge did not abuse his discretion by failing to excuse for cause a court member who accused the appellant of lying by omission by exercising her Article 31(b), UCMJ right to remain silent.
II. Whether the military judge abused his discretion by denying defense counsel’s request for a mistrial after a court member accused Appellant of lying by omission by exercising her Article 31(b), UCMJ, right to remain silent.

Case Links:
AFCCA opinion
Blog post: Remaining silent isn’t a “lie of omission,” but it’s ok if a member thinks it is
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

United States v. Katso, No. 14-5008/AF (CAAFlog case page)

Issue:
Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

Case Links:
AFCCA opinion
Blog post: A significant confrontation clause decision from the AFCCA
Blog post: CAAF grants USACIL additional time to file an amicus brief in Katso
Appellant’s (Government) brief
Appellee’s brief
Amicus brief (Defense Forensic Science Center / U.S. Army Criminal Investigation)
Blog post: Argument preview

On Wednesday, October 8, 2014, beginning at 9:30 a.m. the court will hear two cases:

United States v. Piren, No. 14-0453/AR (CAAFlog case page)

Issues:
I. Whether the military judge abused her discretion by overruling the defense counsel’s scope objection during the Government’s cross-examination of Appellant.
II. Whether the military judge erred by denying the motion to suppress results of the DNA analysis.

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

 United States v. Piolunek, No.s 14-5006/AF & 14-0283/AF (CAAFlog case page)

Issues:
I. Whether appellant’s convictions for possession and receipt of child pornography on divers occasions must be set aside because several images offered in support of the specifications are not child pornography and are constitutionally protected, a general verdict was entered, and it is impossible to determine whether said images contributed to the verdict.
II. Whether the Air Force Court of Criminal Appeals erred in finding that images 8308, 8313, and 0870 did not constitute visual depictions of a minor engaged in sexually explicit conduct as a matter of law.

Case Links:
AFCCA opinion
Blog post: AFCCA Invites CAAF to Clarify its Position in Barberi
Blog post: CAAF grants review in Piolunek
Blog post: “Great idea, Judge Erdmann!” says the Air Force JAG
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Appellee’s (Government) reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, October 7, 2014, at 10 a.m.:

United States v. Robinson, No. 20120993

Issue: Whether the military judge abused his discretion in denying defense’s post-trial motion for a mistrial, which violated Appellant’s right to have his case decided by a panel of fair and impartial members because a panel member failed to disclose that his daughter had been sexually assaulted.

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

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

This week at the NMCCA: The 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 seven cases (six of which will be considered at Monday’s conference):

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

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

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

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on October 1, 2014, at 10 a.m.:

United States v. Hoffmann

Case Summary: A panel of members, sitting as a general court-martial, convicted the appellant, contrary to his pleas, of attempted sodomy of a child, indecent liberties with a child, possession of child pornography, and enticement, in violation of Articles 80, 120, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 880, 920, 934 (Supp. 2007). The members sentenced the appellant to reduction to pay grade E-1, total forfeiture of pay and allowances, confinement for 7 years, and a dishonorable discharge. The convening authority approved the adjudged sentence and, except for the dishonorable discharge, ordered it executed.

Issue: A search must be supported by probable cause. Here, to support a search authorization for child pornography, the supporting affidavit only asserted (1) allegations of a different crime, attempted child enticement, and (2) an NCIS agent’s opinion there is intuitive relationship between the two offenses. Did the military judge abuse his discretion by failing to suppress the evidence for lack of probable cause?

 

This week at SCOTUS: As Phil noted yesterday, the National Institute of Military Justice filed an amicus brief in McMurrin v. United States. A copy of the brief is available here. The Court scheduled McMurrin for conference on October 10.

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

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

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

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

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

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

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

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

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

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

United States v. Brown, No: 20130177

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

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

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

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

This week at SCOTUS: A cert petition was filed in McMurrin v. United States, No. 14-262, on August 29, 2014. I discussed the petition and the history of the case in this post. The Government’s response is due on October 6. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF will hear the first oral argument of the 2014 term on Tuesday, September 9, 2014, at 9:30 a.m.:

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

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

Case Links:
NMCCA opinion
Blog post: The NMCCA finds that Article 62 authorizes appeals of recesses
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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

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

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

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

United States v. Riggins

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

United States v. Stellato, No. 20140453

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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