CAAFlog » TWIMJ

This week at SCOTUS: The Solicitor General received additional extensions of time to file responses to the cert. petitions in Dalmazzi and in Cox, both to May 15, 2017. Additionally, a petition for rehearing was filed in Howell (cert. denied Mar. 27). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in three cases this week, all on Tuesday, April 25, 2017:

At 9:30 a.m.:

United States v. Ramos,  No. 17-0143/CG (CAAFlog case page)

Issue: Whether Appellant was entitled to Article 31(b), UCMJ, warnings at any point during his interrogation by CGIS, and if so, whether he was prejudiced by the admission of any of his statements.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Coast Guard App. Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Brantley, No.17-0055/AR (CAAFlog case page)

Issue: Whether the government proved beyond a reasonable doubt that Appellant knew or reasonably should have known that SR was “otherwise unaware” of sexual contact.

Case Links:
• ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Forrester, No. 17-0049/MC (CAAFlog case page)

Issue: Whether punishing the same transaction of obtaining child pornography with four convictions unreasonably exaggerates Appellant’s criminality and triples his punitive exposure, constituting an unreasonable multiplication of charges.

Case Links:
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) 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 May 2, 2017.

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 May 2, 2017.

This week at SCOTUS: The Solicitor General filed a brief in opposition to the cert. petition in Sterling. The brief is available here. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on April 25, 2017.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Anderson, No. 2016-17, on Tuesday, April 18, 2017, at 2 p.m. According to the CCA’s website, “this argument will be closed and not open for public viewing.” The case number indicates that this is either an interlocutory appeal or a petition for extraordinary relief (possibly a petition by an alleged victim under Article 6b).

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 May 2, 2017.

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

This week at CAAF: The next scheduled oral arguments at CAAF are on April 25, 2017.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments. However, I’m aware of one oral argument scheduled for Wednesday, April 12, 2017, at 10 a.m.:

United States v. Kelly, No. 20150725

Issues:
I. Whether the military judge improperly instructed the members on the offense of abusive sexual contact by omitting the standard instructions on the prosecution’s burden and shifting the burden to the defense to prove appellant’s innocence.

II. Whether the military judge improperly instructed the members on the offense of sexual assault by omitting the standard instructions on the prosecution’s burden and shifting the burden to the defense to prove appellant’s innocence.

[III]. Whether the defense request for a mistrial should have been granted.

[IV]. Whether it was ineffective assistance of counsel for defense counsel to waive the causal challenge of the senior member by failing to use the defense peremptory challenge.

Disclosure: I represent the appellant in my civilian capacity. 

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 18, 2017.

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 May 2, 2017.

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

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

Tuesday, April 4, 2017, at 12:30 p.m., at the Notre Dame Law School, Notre Dame, Indiana:

United States v. Mitchell, No. 17-0153/AR (CAAFlog case page)

Issues:
I. Whether the Fifth Amendment’s self-incrimination clause is violated when a suspect voluntarily unlocks his phone without giving his personal identification number to investigators.

II. Whether the Edwards rule is violated when investigators ask a suspect, who has requested counsel and returned to his place of duty, to unlock his phone incident to a valid search authorization.

III. Whether, assuming investigators violated appellant’s Fifth Amendment privilege or the Edwards rule, the military judge erred by suppressing the evidence.

Case Links:
ACCA opinion
Appellant’s (Army App. Gov’t Div.) brief
Appellee’s brief
Appellant’s reply brief
Amicus brief: Air Force App. Gov’t Div.
Amicus Brief:  Electronic Frontier Foundation, American Civil Liberties Union, and ACLU of the District of Columbia
Amicus Brief: Two Notre Dame law professors
Amicus Brief: Notre Dame law student
Blog post: Argument preview

Wednesday, April 5, 2017, at 2:00 p.m., Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio:

United States v. Herrmann, No. 16-0599/AR (CAAFlog case page)

Issue: Whether the evidence is legally sufficient to find appellant committed reckless endangerment, which requires proof the conduct was likely to produce death or grievous bodily harm.

Case Links:
ACCA opinion (75 M.J. 672)
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Law student
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 will hear oral argument in one case this week, on Thursday, April 6, 2017, at noon:

United States v. Blatney, No. 2016-16

Issue: Whether the military judge erred by suppressing appellee’s act of unlocking his cellular phone as well as the con-tents of appellee’s phone pursuant to the Fifth Amendment.

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 two cases this week:

Wednesday, April 5, 2017, at 10 a.m.

United States v. Hale, No. 201600015

Case Summary:
A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of failing to obey a lawful general order, one specification of wrongful use of an anabolic steroid, two specifications of rape, one specification of aggravated assault, one specification of adultery, one specification of kidnapping, and one specification of indecent language, in violation of Articles 92, 112a, 120, 128, and 134, UCMJ, 10 U.S.C. §§ 892, 912a, 920, 928, and 934 (2012). The members sentenced the appellant to confinement for twenty-six years, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.

Issues:
I. Whether the military judge erred in admitting evidence obtained from the search of SSgt Hale’s gym bag as well as the results of the urinalysis test that was conducted pursuant to the fruits of that search?

II. Whether the government’s attempt to intimidate detailed defense counsel and its improper arguments at trial amounted to prosecutorial misconduct and prejudicial spillover effect during closing arguments?

III. Whether appellant received ineffective assistance from his defense counsel?

Thursday, April 6, 2017, at 2 p.m., at Antonin Scalia Law School at George Mason University, Founders Hall Auditorium, 3351 Fairfax Drive, Arlington, VA 22201:

United States v. Harris, No. 201600207

Case Summary:
A military judge sitting as a general court-martial convicted appellant, pursuant to his pleas, of attempted robbery, desertion, and aggravated arson, in violation of Articles 80, 85, and 126, UCMJ, 10 U.S.C. §§ 880, 885, and 926 (2012). The military judge sentenced the appellant to eight years of confinement, reduction to pay-grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. In accordance with a pretrial agreement, the convening authority suspended all confinement in excess of seventy-two months. The convening authority approved the remainder of the sentence and, except for the punitive discharge, ordered it executed.

Issue: Whether the military judge abused his discretion when he refused to order day-for-day confinement credit for the period that the government did not comply with R.C.M. 305(i)(2)(d).

This week at SCOTUS: The Court denied certiorari in Howell. The Solicitor General received an extension of time to respond to the cert. petition in Cox, et al. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on April 4, 2017, at the Notre Dame Law School, Notre Dame, Indiana. Additionally, on April 5, 2017, CAAF will hear oral argument at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in two cases this week, both on March 28, 2017:

At 10 a.m.: United States v. Morales, No. 39018

Issue: WHETHER THE APPLICATION OF EXECUTIVE ORDER 13696 WHICH ELIMINATED THE CON-STITUTIONALLY REQUIRED EXCEPTION TO THE PSYCHOTHERAPIST-PATIENT PRIVILEGE WAS (1) AN ABUSE OF THE MILITARY JUDGE’S DISCRETION OR (2) DEPRIVED APPELLANT OF HIS RIGHT TO CONFRONT HIS ACCUSER, TO COMPULSORY PROCESS, OR TO DUE PROCESS OF LAW.

At 1 p.m.: United States v. Hudson, No.  37249 (rem)

Issues:
I. WHETHER THE MILITARY JUDGE IMPROPERLY ADMITTED EVIDENCE OF UNCHARGED ALLEGATIONS UNDER MILITARY RULES OF EVIDENCE 414 AND 404(B).

VI. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL: (1) FAILED TO PRESENT EVIDENCE OF APPELLANT’S GOOD CHARACTER DURING THE DEFENSE CASE-IN-CHIEF; (2) FAILED TO PRESENT EVIDENCE OF THE CHARACTER FOR UNTRUTHFULNESS OF THE ALLEGED CHILD VICTIMS (CHARGED AND UNCHARGED), AND; (3) OPENED THE DOOR TO EVIDENCE OF THE PRIOR TRIAL.

Disclosure: I am civilian appellate defense counsel in Hudson.

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 April 5, 2017.

This week at SCOTUS: The Solicitor General received extensions of time to respond to the cert. petitions in Sterling and Dalmazzi. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: The next scheduled oral argument at CAAF is on April 4, 2017, at the Notre Dame Law School, Notre Dame, Indiana. Additionally, on April 5, 2017, CAAF will hear oral argument at the Claude W. Pettit College of Law, Ohio Northern University, Ada, Ohio.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, March 21, 2017, at 1 p.m.:

United States v. Hoffman, No. 20140172

Issues:
ASSIGNMENT OF ERROR V. THE JUDGE CONDUCTED HIMSELF AND THE TRIAL IN A MANNER THAT UNCONSTITUTIONALLY DEPRIVED APPELLANT OF A FAIR TRIAL.

SPECIFIED ASSIGNMENT OF ERROR I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO PRESENT EVIDENCE OF APPELLANT’S VOLUNTARY ABSENCE FROM THE COURT-MARTIAL AS UNCHARGED MISCONDUCT UNDER MIL. R. EVID. 404(B) AND/OR R.C.M. 1001(B) AS EVIDENCE “DIRECTLY RELATED TO THE OFFENSES” AND AS EVIDENCE OF APPELLANT’S REHABILITATIVE POTENTIAL.

SUPPLEMENTAL ASSIGNMENT OF ERROR I. THE MILITARY JUDGE COMMITTED PLAIN AND PREJUDICIAL ERROR WHEN HE INSTRUCTED THE PANEL THAT IT COULD CONSIDER THE CHARGED SEXUAL MISCONDUCT FOR MIL. R. EVID. 414 PURPOSES [SEE UNITED STATES V. HILLS, 75 M.J. 350 (C.A.A.F. 2016)].

SUPPLEMENTAL ASSIGNMENT OF ERROR II. BY NOT MAKING SPECIAL FINDINGS ON SPECIFICATION 2 OF CHARGE II [WHEN THEY EXCEPTED OUT “ON DIVERS OCCASIONS”], [THE PANEL MADE IT SO] THIS COURT CANNOT CONDUCT AN ARTICLE 66, [UCMJ,] REVIEW AND, THEREFORE, MUST DISMISS THE SPECIFICATION [SEE UNITED STATES V. WALTERS, 58 M.J. 391 (C.A.A.F 2003)].

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 28, 2017.

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 Friday, Mach 24, 2017, at 10 a.m.:

United States v. Andrews, No. 201600208

Case summary:
In a mixed-plea case, a panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of sexual assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). The military judge also convicted the appellant, pursuant to his pleas, of one specification of unauthorized absence, one specification of flight from apprehension, one specification of making a false official statement, one specification of wrongful use of marijuana, and one specification of larceny, in violation of Articles 86, 95, 107, 112a, and 121, UCMJ, 10 U.S.C. §§ 886, 895, 907, 912a, and 121 (2012). The members sentenced the appellant to confinement for thirty-six months, reduction to pay grade E-1, forfeiture of $1,616.00 pay per month for thirty-six months, and a dishonorable discharge. The convening authority approved forfeitures of $1,566.90 pay per month for thirty-six months and the remainder of the sentence as adjudged.

Issue:
THE TRIAL COUNSEL AND ASSISTANT TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT TO THE MEMBERS. DURING CLOSING ARGUMENT THE TRIAL COUNSEL AND ASSISTANT TRIAL COUNSEL INVENTED ADMISSIONS, REPEATEDLY CALLED SN ANDREWS A LIAR, ACCUSED THE DEFENSE COUNSEL OF NOT BELIEVING THEIR CLIENT, MADE INFLAMMATORY ARGUMENTS, AND MISSTATED THE LAW. WAS THIS PROSECUTORIAL MISCONDUCT?

Due to an impending snowpocalypse, CAAF’s oral arguments scheduled for tomorrow have been postponed to Thursday.

Post edited to reflect rescheduled oral arguments

This week at SCOTUS: The cert. petition in Howell was distributed for conference on March 24, 2017. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF will hear oral argument in four cases this week (the Wednesday arguments will occur in the afternoon):

Wednesday, March 15, 2017, at 1 p.m.:

United States v. Richards, No. 16-0727/AF (CAAFlog case page)

Issues:
I. Whether the panel of AFCCA that heard appellant’s case was improperly constituted.

II. Whether the 9 November 2011 search authorization was overbroad in failing to limit the dates of the communications being searched, and if so, whether the error was harmless.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Air Force App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page)

Issue: Whether the military judge erred in suppressing evidence of child pornography a digital forensic examiner discovered during a search for appellee’s communications with a child victim.

Case Links:
ACCA opinion
Appellant’s brief  (Army App. Gov’t Div.)
Appellee’s brief
Appellant’s (Army App. Gov’t Div.) reply brief
Amicus brief: N.M. App. Gov’t Div.
Blog post: Argument preview

Thursday, March 16, 2017, at 9:30 a.m.:

United States v. Reese, No. 17-0028/CG (CAAFlog case page)

Issues:
I. Whether the military judge erred in allowing the government to make a major change to a specification after the complaining witness’s testimony did not support the offense as originally charged.

II. Whether the specification of the additional charge fails to state an offense where the terminal element failed to allege words of criminality and where the alleged conduct fell within a listed offense of Article 134, UCMJ.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Coast Guard Appellate Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Hendrix, No. 16-0731/AR (CAAFlog case page)

Issues:
I. Whether the military judge abused his discretion when he denied a defense motion to suppress related to the identification of the appellant during a voice lineup.

II. Whether the military judge abused his discretion in denying appellant’s motion to compel an expert consultant, EP, in the field of audio forensic science and voice identification.

Case Links:
ACCA opinion (75 M.J. 704)
Appellant’s brief
Appellee’s (Army App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 28, 2017.

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 March 24, 2017.

Significant military justice events this week: The Code Committee will hold its annual meeting on Tuesday, March 7, at CAAF (details here). Additionally, CAAF’s annual continuing legal education and training program will occur on Wednesday-Thursday, March 8-9, at American University Washington College of Law, Claudio Grossman Hall (details here).

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

This week at CAAF: The next scheduled oral argument at CAAF is on March 14, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on March 21, 2017.

This week at the AFCCA: The Air Force CCA’s website is 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 next scheduled oral argument at the Navy-Marine Corps CCA is on March 24, 2017.

This week at SCOTUS: A petition for certiorari was filed last week in Cox, et al., v. United States, No. 16-1017. A copy of the petition is available here. The case raises the same questions as presented in Dalmazzi v. United States, No. 16-961 (CAAFlog case page), on behalf of six petitioners in whose cases CAAF vacated its grant of review in light of Dalmazzi. As noted here, the Court called for a response to the cert. petition in Dalmazzi. Additionally, Dalmazzi filed a supplemental brief (available here).

The Solicitor General filed the requested response in Howell. Finally, numerous amicus briefs have been filed in Sterling. Links to many of them are available in this press release from the First Liberty Institute, which supports Sterling. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

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

Tuesday, February 28, 2017, at 9:30 a.m.:

United States v. Hukill, No. 17-0003/AR (CAAFlog case page)

Issues:
I. Whether, in a court-martial tried by military judge alone, 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.

II. Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the court of military commission review were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Court of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.

Case Links:
ACCA opinion
• ACCA opinion on reconsideration
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Feliciano, No. 17-0035/AR (CAAFlog case page)

Issues:
I. Whether the military judge erred when he failed to instruct the panel on the defense of voluntary abandonment, and if so, whether the error was harmless beyond a reasonable doubt.

II. Whether the military judge erred when he instructed the panel that appellant’s mistake of fact as to consent must be both honest and reasonable, and if so, whether the error was harmless beyond a reasonable doubt.

Case Links:
ACCA opinion
Blog post: CCA opinion analysis
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
• Blog post: Argument preview

Wednesday, March 1, 2017, at 9:30 a.m.:

United States v. Erikson, No. 16-0705/AR (CAAFlog case page)

Issues:
I. Whether the military judge erred in excluding evidence that the victim previously made a false accusation of sexual contact against another soldier.

II. CMCR Judges Larss G. Celtnieks and Paulette V. Burton are not statutorily authorized to sit on the Army Court of Criminal Appeals.

III. Even if CMCR Judges Larss G. Celtnieks and Paulette V. Burton are statutorily authorized to be assigned to the Army Court of Criminal Appeals, their service on both courts violates the appointments clause given their newly attained status as superior officers.

Case Links:
ACCA opinion (summary disposition)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Ahern, No. 17-0032/AR (CAAFlog case page)

Issue: Whether the lower court erred when it held that the prohibition against using an admission by silence provided by Mil. R. Evid. 304(a)(2) is triggered only “when the accused is aware of” an investigation contrary to the plain language of the rule.

Case Links:
ACCA opinion
• Blog post: The Army CCA interprets Mil. R. Evid. 304(a)(2)
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) 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 2, 2017, at 10 a.m.:

United States v. Rucker, No. 20140845

Issue: Whether the evidence is legally and factually insufficient to support a conviction as to any specification or charge.

This week at the AFCCA: The Air Force CCA will here oral argument in one case this week, on Thursday, March 2, 2017, at 10 a.m.:

United States v. Miller, No. 38922

Issues:
I. Whether the military judge erred by admitting text messages as a “fresh complaint” and a prior consistent statement.

II. Whether the acquittal under R.C.M. 917 of the words “on divers occasions” in Specifications 2 and 3 of the Charge rendered the subsequent verdict to those specifications ambiguous under United States v. Walters, 58 M.J. 391 (C.A.A.F. 2003), thereby precluding this court from conducting its review under article 66(c).

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 March 24, 2017.

This week at SCOTUS: The cert. petition in Dalmazzi is scheduled for conference on March 3. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at CAAF is on February 28, 2017.

This week at the ACCA: The Army CCA will hear oral argument in two cases this week, both on Wednesday, February 22, 2017:

At 10 a.m.: United States v. Robinson, No. 20150120

Issue: WHETHER SPECIALIST ROBINSON WAS DENIED HIS 6TH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS DEFENSE COUNSEL FAILED TO INTRODUCE EVIDENCE THAT WOULD HAVE DISCREDITED THE ALLEGED VICTIM’S CLAIMED LEVEL OF INTOXICATION AND ALSO FAILED TO OFFER EVIDENCE THAT THE ALLEGED VICTIM INVITED SPECIALIST ROBINSON INTO HER ROOM PRIOR TO THE ALLEGED SEXUAL ACTIVITY TAKING PLACE.

At 1 p.m.: United States v. Franks, No. 20140952

Issues:
I. THE MILITARY JUDGE REVERSIBLY ERRED BY RULING THAT SECOND LIEUTENANT FRANKS’ FEAR OF COMMITTING SUICIDE COULD NOT SUPPORT THE DEFENSE OF DURESS.

II. THE EVIDENCE WAS FACTUALLY AND LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR DESERTION, BECAUSE THE ALLEGED IMPORTANT SERVICE WAS SPECULATIVE AND NON-IMMINENT.

III. THE EVIDENCE WAS FACTUALLY AND LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTION FOR CONDUCT UNBECOMING AN OFFICER AND GENTLEMEN, BECAUSE THERE WAS NO EVIDENCE OF A GUILTY MIND, AND THE MILITARY JUDGE REVERSIBLY ERRED BY REFUSING TO INSTRUCT ON MENS REA.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 2, 2017.

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 website shows no scheduled oral arguments.

This week at SCOTUS: The Solicitor General waived the right to respond to the cert. petition in Dalmazzi. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument date at CAAF is February 28, 2017 (though no arguments are presently scheduled).

This week at the ACCA: The Army CCA will hear oral argument in one cases this week, on Monday, February 13, 2017, at 10 a.m.:

United States v. Battles, No. 20140399

Issue: WHETHER THE MILITARY JUDGE ERRED [BY] FAILING TO INSTRUCT THE PANEL ON THE MENS REA NECESSARY TO MAKE APPELLANT’S CONDUCT CRIMINAL [TO THE SPECIFICATION OF CHARGE I].

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on March 2, 2017.

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 February 15, 2017, at noon. The argument will be heard at the George Washington University Law School:

United States v. Dinger, No. 201600108

Case summary: A military judge sitting as a general court-martial convicted the appellant pursuant to his pleas of two specifications of committing indecent acts, one specification of attempting to produce child pornography, two specifications of wrongfully making an indecent visual recording, and one specification of possessing child pornography, in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2006), and Articles 80, 120c, and 134, UCMJ, 10 U.S.C. §§ 880, 920c, and 934 (2012). The military judge sentenced the appellant to nine years’ confinement and a dishonorable discharge. The convening authority approved the sentence as adjudged, but suspended confinement over 96 months pursuant to a pre-trial agreement.

Issues:
I. WHETHER COURTS-MARTIAL HAVE PERSONAL JURISDICTION OVER MILITARY RETIREES IN LIGHT OF THE SUPREME COURT’S HOLDING IN BARKER V. KANSAS, 503 U.S. 594, 605 (1992), THAT FOR TAX PURPOSES, MILITARY RETIREMENT BENEFITS ARE NOT CURRENT COMPENSATION FOR REDUCED SERVICES?

II. WHETHER CONGRESS’ STATEMENT IN 10 U.S.C. § 6332 THAT THE TRANSFER OF A MEMBER OF THE NAVAL SERVICE TO A RETIRED STATUS “IS CONCLUSIVE FOR ALL PURPOSES” PRECLUDES THE ISSUANCE OF A PUNITIVE DISCHARGE TO A RETIREE?

This week at SCOTUS: As noted here, a cert. petition was filed in Dalmazzi last week. Additionally, SCOTUSblog now has a case page (here) for Sterling with links to amicus briefs . I’m not aware of any 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, on Tuesday February 7, 2017, beginning at 9:30 a.m. (the court did not schedule any arguments for the Feb. 8 session):

United States v. Ortiz, No. 16-0671 (CAAFlog case page)

Issues:
I. Whether United States Court of Military Commission Review Judge, Martin T. Mitchell, is statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant’s case.

Amended Issue: II. Whether Judge Martin T. Mitchell’s Service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violates the Appointments Clause given his status as a principal officer on the United States Court of Military Commission Review.

Specified Issue: III. Whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President to the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(4)(c) and (d), authorizing reassignment or withdrawal of appellate military judges so appointed by the Secretary of Defense or his designee.

Case Links:
AFCCA opinion
Blog post: CAAF picks a replacement for Dalmazzi
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) brief
Amicus Curiae Brief: Army Appellate Government Division
• Amicus Curiae Brief: Navy-Marine Corps Appellate Government Division
• Amicus Curiae Brief: Military Commissions Defense Organization (& Appendix)
Blog post: Argument preview

United States v. Oliver, No. 16-0484/AF (CAAFlog case page)

Issue: Whether wrongful sexual contact was a lesser-included offense of abusive sexual contact.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (A.F. App. Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one cases this week, on Wednesday, February 8, 2017, at 1:30 p.m. The argument will be heard at the University of Tennessee School of Law:

United States v. Mayo, No. 20140901

Issue: [Whether] the military judge erred in denying the implied bias challenge of a panel member whose wife was a victim of domestic violence and whose uncle-in-law was murdered by a perpetrator who escaped punishment.

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 February 15, 2017.

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 argument at CAAF is on February 10, 2017.

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

Thursday, February 2, 2017, at 10 a.m.:

United States v. Bishop, No. 20150441

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE HIS DEFENSE COUNSEL FAILED TO PRESENT EVIDENCE ABOUT HOW THE LOSS OF RETIREMENT AND MEDICAL BENEFITS WOULD AFFECT APPELLANT’S FAMILY, FAILED TO PRESENT EVIDENCE ABOUT APPELLANT’S GOOD DUTY PERFORMANCE, FAILED TO ASSIST APPELLANT IN PREPARING HIS UNSWORN STATEMENT, AND WHERE COUNSEL SUGGESTED APPELLANT LIED UNDER OATH DURING HIS PRESENTENCING ARGUMENT.

Friday, February 3, 3017, at 10 a.m.:

United States v. Robinson, No. 20150088

I. THE MILITARY JUDGE ERRED WHEN HE FAILED TO FIND SPECIFICATIONS 1, 3, 8, 12, 13, AND 15 OF CHARGE II MULTIPLICIOUS WITH SPECIFICATIONS 1, 2, 3, 7, 8, AND 9 OF CHARGE III, RESPECTIVELY, AS THEY ARE PART OF THE SAME TRANSACTIONS.

II. THE MILITARY JUDGE ERRED WHEN HE FAILED TO FIND THAT SPECIFICATION 5 OF CHARGE IV CONSTITUTES AN UNREASONABLE MULTIPLICATION OF CHARGES WITH SPECIFICATIONS 12 AND 13 OF CHARGE II, AND SPECIFICATIONS 5, 7, AND 8 OF CHARGE III.

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 February 15, 2017.

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 argument at CAAF is on February 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, January 25, 2017, at 1 p.m.:

United States v. Stewart, No. 20160128

Issue: Whether the military judge abused his discretion by denying the defense motion to compel appointment of an expert assistant in eyewitness identification.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Mangahas on Tuesday, January 24, 2017, at 10 a.m. No additional information is available on the 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 next scheduled oral argument at the Navy-Marine Corps CCA is on February 15, 2017.