This week at CAAF: The next scheduled oral argument at CAAF is on February 13, 2012.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, February 1, in the capital case of United States v. Akbar, No. 20050514. The granted issues are:

I. Sergeant Hasan K. Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment to the United States Constitution, at every critical stage of his court-martial.

A. Sergeant Akbar was denied his right to the effective assistance of counsel, as guaranteed by the sixth amendment and denied his right to representation by counsel qualified under 18 U.S.C. § 3599 (2006), in violation of his rights under the fifth, sixth, and eighth amendments to the U.S. Constitution and Article 36, UCMJ, when his trial defense counsel failed to seek the appointment of qualified counsel to represent Sergeant Akbar in this capital court-martial.

B. Sergeant Akbar was denied his right to effective assistance of counsel when his trial defense counsel failed to adequately investigate appellant’s social history, ignored voluminous information collected by mitigation experts, ceased using mitigation experts, resulting in an inadequate mental health diagnosis because the defense “team” failed to provide necessary information to the defense psychiatric witness.

C. Sergeant Akbar was denied his sixth amendment right to effective assistance of counsel where the trial defense counsel failed to challenge for cause any panel members, even though counsel had multiple causal reasons including actual bias, implied bias, an inelastic opinion against considering mitigating evidence on sentencing, and panel members’ detailed knowledge of uncharged misconduct that the judge specifically ruled inadmissible.

D. Sergeant Akbar received ineffective assistance of counsel during the merits stage of his court-martial when his trial defense counsel conceded guilt to all the elements of a capital offense, in violation of article 45(b), UCMJ, 10 U.S.C. § 845(b) (2002), and devised a trial strategy that was unreasonable and prejudicial.

E. Appellant received ineffective assistance of counsel on sentencing.

F. Sergeant Akbar’s trial defense counsel were ineffective for admitting in [its] entirety appellant’s diary without any substantive analysis and without appropriate regard for the highly aggravating and prejudicial information it contained.

II. When read with other Supreme Court precedent, military case[-]law, and cases from other federal jurisdictions, Ring v. Arizona, 536 U.S. 584 (2002), and its underlying rationale reveal [the] charges were improperly preferred, investigated, and referred, and appellant’s conviction and death sentence was unconstitutionally adjudged.

A. Appellant’s death sentence was adjudged unconstitutionally [sic] where the R.C.A. 1004(c) provisions relevant to his case were not expressly alleged in the charges preferred against him, were not expressly investigated pursuant to R.C.M. 405 and Article 32, UCMJ, and were not expressly referred to his court-martial by the convening authority.

B. Based on the Supreme Court’s reasoning in Ring v. Arizona, 536 U.S. 584 (2002), Congress unconstitionally delegated to the president the power to enact the functional equivalent of elements of capital murder, a purely legislative function.

C. Ring v. Arizona requires that the members find that aggravating factors substantially outweigh mitigating circumstances beyond a reasonable doubt.

III. Sergeant Akbar’s death sentence is invalid because the panel was misinformed about his mental condition at the time of the offenses.

Note: Each party is granted 120 minutes for argument.

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

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

This week at the N-MCCA: The Navy-Marine Corps CCA’s docket shows no scheduled oral arguments this week.

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

Tuesday, January 24, 2012:

United States v. Barberi, No. 11-0462/AR

Issue: Whether the general verdict of guilt rested on conduct that was constitutionally protected, in that at least one of the six images presented to the members was not child pornography.

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

Followed by:

United States v. Bradley, No. 11-0399/NA (Bradley II)

Issues:
I. In Bradley I, this court ruled that its application of waiver to appellant’s disqualification-of-trial-counsel claim did not render his pleas improvident where there was: (1) no ineffective assistance of counsel (IAC) claim; and (2) only a possibility that he believed the disqualification claim was preserved for appeal.  On remand, appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved.  Did NMCCA err in holding that it was bound by this court’s ruling that appellant’s pleas were provident?
II. Appellant’s civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas.  Did NMCCA err in finding that civilian counsel’s erroneous advice was reasonable, and therefore not deficient?
III. On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I court found he had – appellant was not prejudiced – which the Bradley I court found he was?

Case Links:
• Bradley I: N-MCCA opinion
• Bradley I: CAAF oral argument audio
• Bradley I: CAAF opinion
• Bradley I: Blog post: CAAF issues two more opinions
• Bradley II: N-MCCA opinion
• Bradley II: Appellant’s brief
• Bradley II: Appellee’s (government) brief
• Bradley II: Blog Post: Argument preview

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

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

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

This week at the N-MCCA: The Navy-Marine Corps CCA’s docket shows no scheduled oral arguments this week.

This week at CAAF: The next scheduled oral argument at CAAF is on January 24, 2012.

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

Wednesday, January 18:

United States v. Reynard, No. 20100531

Issue: I. [Whether] The evidence is legally and factually insufficient to prove rape and indecent assault.

Briefs not posted.

Thursday, January 19:

United States v. Spicer, No. 20090608

Issues:
I. [Whether] The evidence is factually and legally insufficient to support the findings of guilty.
II. [Whether] Appellant’s sentence is inappropriately severe.

Case Links:
• Appellant’s brief
• Appellant’s supplemental brief
• Appellee’s (government) brief

Followed by:

United States v. Boldware, No. 20090665

Issues:
I. [Whether] Article 120(c) of the UCMJ, which requires the accused to disprove the element of incapacity by a “preponderance of the evidence” in order to assert the affirmative defense of consent, unconstitutionally burdens the accused.
II. [Whether] The military judge erred in precluding under military rule of evidence 412, vigorous cross-examination of the alleged victim about homosexual conduct offered to demonstrate the strong motive to misrepresent the truth contrary to appellant’s sixth amendment rights.
III. [Whether] The military judge erred when upon finding appellant not guilty of charged offense of article 125, UCMJ, sodomy, he found appellant guilty of what he believed was a lesser included offense of abusive sexual contact under article 120, UCMJ.

Briefs not posted.

Friday, January 20:

United States v. Presley, No. 20090673

Issues:
I. Whether the military judge committed plain error during sentencing by considering detailed descriptions of aggravated acts of uncharged misconduct that were not directly related to the charged offenses.
II. Whether the approved sentence to confinement for five (5) years is inappropriately severe.
III. Whether appellant’s defense counsel provided ineffective assistance by failing to procure the services of an expert consultant in the field of forensic psychology or otherwise request a sanity board under R.C.M. 706.

Briefs not posted.

Followed by:

United States v. Bean, No. 20100362

Issue: I. [Whether] The military judge abused his descretion in accepting appelant’s plea to Charge III and its specification, conduct unbecoming an officer and gentleman.

Case Links:
• Appellant’s brief
• Appellee’s (government) brief

This week at the AFCCA: The Air Force CCA’s docket 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 N-MCCA: The Navy-Marine Corps CCA will hear oral argument in United States v. Kilarski on Friday, January 20. The case involves a conviction by members of a single specification of wrongful use of marijuana. The granted issues are:

I. Under the Sixth Amendment of the Constitution, an Accused has the right “to be confronted with the witnesses against him.” A recent Supreme Court decision, Bullcoming v. New Mexico, ruled that surrogate testmony of a scientist who did not certify a forensic laboratory report introduced into evidence violates the Confrontation Clause. Here, despite the defense’s request for the certifying scientist’s testimony, the military judge permitted a surrogate to testify. Did the military judge err?
II.  After inspecting Corporal Kilarski’s urine sample, the laboratory accessions technician handwrote a discrepancy code on the specimen custody document. Before trial, the defense argued the confrontation clause required the accessions technician’s testimony, but the military judge denied its motion. Did the military judge err?

Additionally, the court posted the details of last week’s oral argument in United States v. Simmons. That case is an en banc reconsideration of the court’s unpublished opinion (available here) affirming the findings in part but setting aside the sentence. The issues argued were:

I. United States v. Ferguson and United States v. Broce establish that an unconditional guilty plea waives any objection related to the facutal issue of guilt. The panel was not satisfied that appellant was acting in an official capacity or that his actions created an inference of service endorsement and, therefore, set aside appellant’s guilty plea to Article 92. Did the panel err in not finding that, by admitting certain facts at trial and pleading guilty, appellant waived his right to contest the government’s theory on appeal?
II. The panel found that appellant never wore a complete uniform so the general public could never receive visual evidence of the authority and responsibility vested in the individual by the united states government. Did the panel err by drawing a distinction between wearing a complete uniform and wearing uniform items?

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

Tuesday, January 10:

United States v. Dease, No: 12-6001/AF

Issue: Whether the Air Force Court of Criminal Appeals erred by finding Appellant had abandoned his urine and thus had no reasonable expectation of privacy where Appellant consented to the seizure of his urine and then revoked consent prior to the search of Appellant’s urine.

Note: Dease was an Article 62 appeal to the AFCAA. See our prior coverage linked below.

Case Links:
• AFCCA opinion
• Blog post: AFCCA Clarifies Expectation of Privacy in Urine
• Blog post: Significant search and seizure CAAF grant
• Appellant’s supplement to the petition for review
• Appellee’s (government) answer
• Blog Post: Argument Preview

Followed by:

United States v. Weeks, No. 11-0526/AF

Issue: Whether Appellant’s guilty plea to Charge II and its specification is improvident because Appellant did not falsely make or alter a signature or writing

Case Links:
• AFCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief

Wednesday, January 11:

United States v. Stewart, No. 11-0440/MC

Issues:
I. Under United States v. Prather, is it legally possible for the prosecution to disprove an affirmative defense beyond a reasonable doubt once the military judge has determined that the defense has been proved by a preponderance of the evidence and, if not, is the military judge required to enter a finding of not guilty in such a case under RCM 917?

II. Whether the Navy-Marine Corps Court of Criminal Appeals erred in finding the evidence factually sufficient beyond a reasonable doubt to sustain appellant’s conviction under specification 2 because in doing so it (1) violated the Prather legal-impossibility principle and (2) impermissibly found as facts allegations that he was found not guilty of in specification 1.

III. Whether the military judge committed prejudicial error by requiring the defense to present evidence on the defense of consent at an Article 39(a) session prior to trial.

Case Links:
• N-MCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief

This week at the ACCA: On Thursday, January 12 the Army CCA will hear oral argument in United States v. Giddens, No. 20090598. The case addresses whether the accused could plead guilty to a number of Article 134 specifications that lacked terminal elements.

Issues:
I. The evidence is legally and factually insufficient to support a finding that appellant committed an indecent act, indecent exposure, aggravated sexual contact with a child, attempted sodomy, and unlawful entry (specifications 1, 2 and 4 of charge III and charge VI).

II. The military judge erred in denying the defense request for a post-trial 39(a) session and new trial after evidence was discovered, post-trial, involving AAG and AKS that bears directly on the credibility of their allegations against appellant, and as such, appellant also petitions this court for a new trial.

III. The military judge erred in denying the defense multiplicity/unreasonable multiplication of charges motion for specification 4 of charge III, touching AKS’s buttocks with appellant’s hands and penis, and charge IV, pushing appellant’s penis against the buttocks of AKS. See United States v. Quiroz, 55 M.J. 334 (C.A.A.F., 2001).

IV. The military judge erred by not granting appellant’s motion for a mistrial after the government appointed a last minute “reasonable alternative” expert to the defense and then attacked the expert’s qualifications and time spent reviewing the case file.

Case Links:
• Appellant’s brief
• Appellee’s (government) brief

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

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

This week at the N-MCCA: The oral argument webpage for the Navy-Marine Corps CCA indicates that the court will hear oral argument on Wednesday, January 11, however the posted schedule is from November, 2011.

This week at CAAF: The next scheduled oral argument at CAAF is on 10 January.

This week at the ACCA: On Thursday 5 January the Army CCA will hear oral argument in United States v. Bean, No. 20100362. The case addresses whether the accused could plead guilty to a number of Article 134 specifications that lacked terminal elements.

Additionally, the Army CCA now posts electronic copies of appellate briefs in cases scheduled for oral argument! The briefs for Bean are at the following links:

• Appellant’s brief
• Appellee’s (government) brief

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

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

This week at the N-MCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on 11 January.

This week at CAAF: The next scheduled oral argument at CAAF is on 10 January.

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

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

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

This week at the N-MCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on 9 January.

I can’t find any record of the ACCA action in the case on the ACCA’s website, in Lexis, or in Westlaw. However, the case apepared in TWIMJ on May 8, 2011, as an oral argument scheduled for Wednesday May 11, 2011, with the following issues:

I. [Whether] the military judge erred in excluding evidence of the alleged victim’s prior sexual behavior because it was constitutionally required to demonstrate the alleged victim’s motive to fabricate.

II. If this court finds the military judge did not err in excluding the photographs at issue in assignment of error I, [whether] trial defense counsel was ineffective for failing to offer sufficient evidence to support the admission of such photographs.

There is civilian counsel identified on the Supreme Court’s website.

The next scheduled oral argument at the Supreme Court is on 9 January.

This week at CAAF: The next scheduled oral argument at CAAF is on 10 January.

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

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

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

This week at the N-MCCA: The Navy-Marine Corps CCA docket shows no scheduled oral arguments.

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

Monday 12 December:

United States v. King, Jr., No: 11-0583/NA

Issue: Whether Specification 5 of Charge I alleging an indecent act under Article 120 (k), UCMJ, failed to state an offense where the indecent act alleged was Appellant orally requesting during a Skype internet conversation that a child under the age of 16 years expose her breasts so that he could view them utilizing the web camera.

Case links:
• N-MCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Blog post: Argument preview

Followed by:

United States v. Watson, No. 11-0523/MC

Issue: Whether Appellant’s guilty plea to fraudulent enlistment was provident.

Case links:
• N-MCCA opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument preview

Tuesday 13 December:

United States v. Nealy, No. 11-0615/AR

Issue: Appellant was charged with communicating a threat under Article 134, but was convicted pursuant to his plea of using provoking speech in violation of Article 117. In light of United States v. Jones, 68 M. J. 465 (C.A.A.F. 2010) can the conviction be sustained?

Case links:
• ACCA opinion (unavailable on CCA’s website, Westlaw, or Lexis)
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Blog post: Argument preview

Followed by:

United States v. Ballan, No: 11-0413/NA

Issue: Although the crime of indecent acts with a child to which appellant pleaded guilty was not a lesser included offense of the charged crime of rape of a child and thus had not been formally referred to trial by court-martial by the convening authority, whether appellant waived such irregularity by pleading guilty under a pretrial agreement to indecent acts with a child in violation of Article 134, where neither the pretrial agreement nor appellant’s plea at arraignment expressly set forth either potential terminal element for an Article 134 clause 1 or 2 specification, but both elements were discussed and admitted during the providence inquiry.

Case links:
• N-MCCA opinion
• 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 5 January.

This Week at the AFCCA: The Air Force CCA docket shows no scheduled oral arguments.

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

This week at the N-MCCA: The Navy-Marine Corps CCA docket shows no scheduled oral arguments.

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the actual analysts.

I previously discussed how Williams (unlike Bullcoming) has the potential to be a game-changer in courts-martial.

This week at CAAF: The next scheduled oral argument at CAAF is on 12 December.

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

Tuesday 6 December

United States v. Weaver, No. 20090397

Issue: The military judge erred in finding the government did not have to disclose [SDW]’s pre-trial statements; the military judge erred in not stopping the court-martial proceedings to further investigate her statements that she had seen a psychiatrist and that she had a borderline personality disorder.

Wednesday 7 December

United States v. Bowersox, No. 20100580

Issues:
I. Appellant’s conviction under 18 U.S.C. §1466a(b)(1) and clause two of Article 134 is legally insufficient.
II. The military judge erred in denying appellant’s motion to suppress the evidence seized from appellant’s computers because the affidavit in support of the search authorization did not establish probable cause.
III. The military judge erred in denying appellant’s motion to suppress his statement to special agent kirk ellis since special agent elleis did not properly inform appellant of the specific nature of the offenses he was suspected of commiting.

United States v. Cooper, No. 20110914 (note: this appears to be an Art. 62 appeal)

Issue: Whether the military judge abused his discretion in granting the defense motion to suppress the statement of sergeant cooper.

Thursday 8 December

United States v. Boyle, No. 20090893

Issues:
I. Whether the evidence was factually and legally sufficient to support the findings of guilty to charge 1, where there was no evidence of an agreement to commit an assault consummatted [sic] by [a] battery. Likewise, whether the evidence was factually and legally sufficient to support the findings of guilty to charge 2, where the evidence was insufficient to demonstrate that appellant caused or was the proximate cause of the death of the victim.
II. Whether the military judge abused his discretion by improperly limiting questions during the post-trial sessions.
III. Whether the military judge abused his discretion by failing to grant a mistrial based on the improper screening of the panel members, the conflict of interest of trial counsel who was the legal advisor to over half of the panel, and the appearance of unfairness created after the trial when a member approaced [sic] a sentencing witness and told him that the panel had an agenda.
IV. Whether the convening authority improperly screened the panel members resulting in a panel with an unfair representation from the upper echelons of the command chain.

This Week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Brissette on Tuesday 6 December. No additional information is available on the AFCCA’s website.

This Week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the CGCCA.

This week at the N-MCCA: The N-MCCA docket shows no upcoming oral arguments.

• Setser v. United States, No. 10-7387, addressing whether a federal sentence may be ordered imposed consecutively to a state sentence for a related offense that has not yet been imposed.
• Federal Aviation ADministration v. Cooper, No. 10-1024, addressing whether only mental and emotional damages can constitute “actual damages” for the purpose of the Privacy Act.

This week at CAAF: The next scheduled oral argument at CAAF is on 12 December.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on 6 December.

This Week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on 6 December.

This Week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the CGCCA.

This week at the N-MCCA: The N-MCCA docket shows no upcoming oral arguments.

This week at CAAF: The next scheduled oral argument at CAAF is on 12 December.

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

Tuesday 22 November

United States v. White, No. 20100325

Issue:
I. Major Nichol’s testimony concerning prosecution exhibit 1 violated the confrontation clause and portions of prosecution exhibit 1 contained inadmissible hearsay.

This week at AFCCA: The Air Force CCA has three cases on its docket, but none are scheduled for oral argument.

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

This week at N-MCCA: The N-MCCA docket shows no upcoming oral arguments.

This week at CAAF: The next scheduled oral argument at CAAF is on 12 December.

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

Wednesday 16 November

United States v. Faust, No. 20090080

Issues:
I. Whether appellant was materially prejudiced by multiple errors in the staff judge advocate’s addendum to the post trial recommendation, the effects of which merit a new recommendation and action.

II. Whether the government’s 346 day delay between trial and the convening authority’s action is unreasonable, prejudicial to appellant, and warrants relief.

Thursday 17 November

United States v. Goodman, No. 20110144

Issue:
I. Specifications 2 and 3 of Charge III fail to state an offense as they do not allege, expressly or by necessary implication, the “terminal element” as required by United States v. Fosler, 70 M.J. 225 (CAAF, 2011).

Friday 18 November

United States v. Glowth, No. 20090925

Issues:
I. Whether the military judge violated appellant’s confrontation rights, as guaranteed in the 6th amendment to the constitution, when he permitted the government to prosecute appellant without producing in person a single witness with first-hand knowledge of the charged conduct.

II. Whether the military judge committed legal error when he denied the appellant’s request for a change of venue where the requested relief was not impractical and such request was made for the sole purpose of protecting appellant’s confrontation rights by ensuring the government’s only fact witness against appellant would be available to testify in person.

This Week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Vasquez on Thursday 17 November. No further information is available on the court’s website.

This Week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the CGCCA.

This week at the N-MCCA: The N-MCCA will hear oral argument one case this week:

Thursday 17 November

United States v. Stratton

Case Summary:
A panel of members sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of sodomy in violation of Article 125, UCMJ, 10 U.S.C. § 925. The panel acquitted the appellant of one specification of aggravated sexual assault and one specification of abusive sexual contact under Article 120, UCMJ, 10 U.S.C. § 920. The appellant was sentenced to ninety days confinement, forfeiture of all pay for ninety days, and a bad-conduct discharge. The convening authority approved the sentence as adjudged and, except for the bad-conduct discharge, ordered the sentence executed.

Issues:
I. Post-Lawrence, sodomy is not a crime unless there are additional criminal elements that further a legitimate state interest. Over defense objection, the military judge instructed the members that sodomy was a lesser included offense of the charged crime of forcible sodomy. The members then returned a verdict of not guilty to forcible sodomy, but guilty to sodomy. The theory of prosecution for sodomy was based on additional facts alleged by the government after the trial began. These facts were: (1) not elements alleged defined by congress under Article 125, UCMJ; (2) not alleged on the charge sheet; and (3) not submitted to the members and proved beyond a reasonable doubt. Is appellant’s conviction for consensual sodomy unconstitutional in light of these due process violations?

II. Appellant engaged in private, consensual sodomy while off duty with another adult, of the same age and rank, in a locked bathroom. Did the military judge err by instructing the members of the lesser included offense of consensual sodomy, and not dismissing the charge as unconstitutional in light of the Supreme Court’s holding in Lawrence v. Texas?

Misc. No. 11-8039/AR.  James Z. YELVERTON, v. United States .  CCA 20110092.  Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was received by mail under Rule 27(b) on April 21, 2011, and placed the docket this 18th day of July, 2011.  On consideration thereof, it is ordered that said writ-appeal petition is hereby denied.

I can’t find any record of the action by the ACCA. However, there is an Army case by the same name that was decided by the Army Board of Review in 1969 (United States v. Yelverton, 40 C.M.R. 655), and denied review by CAAF in November 2009 (No. 09-0608). The SG’s response to the IFP petition is due by 1 December.

Additionally, there are cases of interest scheduled for oral argument this week, including:

• Smith v. Cain, No. 10-8145, addressing alleged failures by the prosecution to disclose possibly-exculpatory evidence to the defense.
• U.S. v. Jones, No. 10-1259, addressing the Fourth Amendment implications of the warrantless use of a GPS tracking device on a suspect’s vehicle.

This week at CAAF: The next scheduled oral argument at CAAF is on 12 December.

This week at the ACCA: The next scheduled oral argument at the ACCA is on 16 November.

This Week at the AFCCA: The next scheduled oral argument at the AFCCA is on 17 November.

This Week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the CGCCA.

This week at the N-MCCA: The N-MCCA will hear oral argument in two cases on Wednesday 9 November:

United States v. Weller

Case Summary: A military judge sitting as a general court-martial convicted the appellant, pursuant to his plea, of one specification of negligent discharge of a firearm, in violation of Article 134, UCMJ, 10 U.S.C. § 934. The military judge also convicted the appellant, contrary to his plea, of one specification of assault with a dangerous weapon (loaded firearm), in violation of Article 128, UCMJ, 10 U.S.C. § 928. The appellant was sentenced to eighteen months confinement, reduction to pay grade E-1, total forfeitures, and a bad-conduct discharge. The convening authority approved the sentence as adjudged and, except for the bad-conduct discharge, ordered the sentence executed.

Issues:

 I. To prove assault, the government needed to show that appellant acted with culpable negligence rather than simply a lack of due care. Was appellant’s conviction for assault with a deadly weapon factually insufficient, under a culpable negligence standard?

 II. In Article 128, UCMJ, Congress criminalized two types of assaults – offer and attempt – “whether or not the attempt or offer is consummated.” Appellant was charged with assault by battery, offer or attempt was not specified. Even assuming the facts most favorable to the government, was appellant’s conviction for assault with a deadly weapon legally insufficient?

United States v. Tearman

Case Summary: A panel of members sitting as a special court-martial convicted the appellant, contrary to his plea, of wrongful use of marijuana, in violation of Article 112A, UCMJ. The members sentenced the appellant to reduction in pay grade to E-1 and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged. At trial, the Government introduced a report generated by the Navy Drug Screening Lab, San Diego, but did not introduce the cover sheet to the report. The appellant moved to exclude the entire report and all chain-of-custody documents and report annotations that were not machine generated. The military judge denied the appellant’s motion.

Issue:

I. In light of the United States Supreme Court’s ruling in Melendez-Diaz v. Massachusetts, do the admission of reports and their annotations generated by absent, untested navy drug lab technicians in violation of appellant’s sixth amendment confrontation right of constitute an abuse of discretion.

Specifically, the parties are ordered to address this assignment of error in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011).

• Perry v. New Hampshire, No. 10-8974, addressing unreliable circumstances surrounding eyewitness testimony
• Missouri v. Frye, No. 10-444, and Lafler v. Cooper, 10-209, addressing ineffective assistance of counsel during plea negotiations

This week at CAAF: CAAF will hear oral argument in two cases this week, both at off-site locations as part of Project Outreach:

Wednesday 2 November (at Washington University School of Law, One Brookings Drive, St. Louis, Missouri):

United States v. Hayes, No. 11-5003/NA

Case Summary: GCM conviction of selling military property, and theft of military property.  The Judge Advocate General certified three issues: (1) whether the Navy-Marine Corps Court of Criminal Appeals erred when it held that Appellee’s unsworn statement during presentencing raised the “possible defense” of duress; (2) whether the Navy-Marine Corps Court of Criminal Appeals erred, as a matter of law, when it found that the Appellee’s unsworn statement raised the possibility of a defense when the facts on the record did not establish a prima facie case for duress; and (3) whether the Navy-Marine Corps Court of Criminal Appeals erred when it set aside the findings and sentence due to the military judge’s failure to investigate Appellee’s plea for the possibility of a duress defense because suicide cannot, as a matter of law, be the threat necessary to establish the defense of duress.

Case links:
• N-MCCA Opinion
• Appellant (government) brief
• Appellee brief
• Argument Preview

Thursday 3 November (at Scott Air Force Base, Illinois):

United States v. Fry, No. 11-0396/MC

Case Summary: GCM conviction of AWOL, possession of child pornography, and fraudulent enlistment. Granted issue questions whether Appellant’s enlistment into the Marine Corps was void ab initio when it took place after a judicial determination of Appellant’s incapacity to contract.

Case links:
• N-MCCA Opinion
• Appellant’s brief
• Appellee’s (government) brief
• Appellant’s reply brief
• Argument Preview

This week at the ACCA: The next scheduled date for oral argument at the ACCA is 16 November.

This Week at the AFCCA: The AFCCA has four cases on its docket, with one scheduled for oral argument on 17 November.

Update: The AFCCA will conduct a Project Outreach argument on an unidentified case at Duke Law School on Thursday 3 November:

Students are invited to watch the United States Air Force Court of Criminal Appeals hear oral arguments on a current case at 1:45 p.m. in the Moot Courtroom. At 2:45 p.m., judges and counsel will open the floor to questions and answers from student attendees. A reception for those in attendance will follow the Q&A in the Burdman Lounge. For more information, contact Anne Sherman at sherman@law.duke.edu.

http://www.law.duke.edu/news/events/

This Week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the CGCCA.

This week at the N-MCCA: The next scheduled date for oral argument at the N-MCCA is 9 November.

This week at CAAF: CAAF will hear oral argument in four cases this week; two on Monday 24 October and two on Tuesday 25 October.

Monday 24 October:

United States v. Kreutzer, Jr., No. 11-0231/AR

Case Summary: GCM conviction of attempted murder and premeditated murder. Granted issue questions whether the military judge erred when he denied Appellant’s motion seeking Article 13 sentence credit for the government’s 278 day delay in transferring him from death row after the Court of Criminal Appeals set aside the death sentence and affirmed only those non-capital charges to which Appellant pleaded guilty.

• Appellant brief
• Appellee (government) brief
• Argument preview

Followed by:

United States v. Winckelmann, No. 11-0280/AR

Case Summary: GCM conviction of possession of child pornography, use of the Internet to entice a minor, indecent language, indecent acts, obstruction of justice and conduct unbecoming of an officer.  Granted issues question: (1) whether the lower court erred in affirming the finding of guilty as to Specification 3 of Charge III when it found that an online chat containing the line “u free tonight” was sufficient to prove attempted enticement (2) whether the Army Court of Criminal Appeals erred by affirming forfeiture of all pay and allowances when the convening authority did not approve any forfeiture and (3) whether an Article 134 clause 1 or 2 specification that fails to expressly allege either potential terminal element states an offense under the Supreme’s Court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court’s recent opinions in Medina, Miller, and Jones.

• Appellant brief
• Appellee (government) brief
• Argument preview

Tuesday 25 October:

United States v. Campbell, No. 11-0403/AF

Case Summary: GCM conviction of making a false official statement, larceny, and wrongful possession of Vicodin and Percocet. Granted issue questions whether the military judge erred, after finding all three charges arose out of the same transaction and were part of the same impulse, by merging them for sentencing rather than dismissing them.

• Appellant brief
• Appellee (government) brief
• Appellant reply brief

 Followed by:

United States v. St. Blanc, No. 10-0178/AF

Case Summary: GCM conviction of attempted indecent language with a child and possession of child pornography. Granted issue questions whether Appellant waived his right to a trial by court members based on the misapprehension of the maximum punishment.

• Appellant brief
• Appellee (government) brief

This week at the ACCA: On Tuesday 25 October the Army CCA will hear oral argument in United States v. Aguirre, No. 20090487 . The issues are:

1. Whether a fatal variance exists between the pleadings and proof where panel substituted the date of the offense by nine months violating appellant’s due process rights to notice.
2. Whether the military judge erred to the substantial prejudice of appellant by admitting over defense objection inadmissible hearsay evidence of the alleged victim, CS, under M.R.E. 803(4).
3. The evidence is legally and factually insufficient for the finding of assault consummated by a battery upon a child under 16.

This Week at the AFCCA: The AFCCA has four cases on its docket, but none are scheduled for oral argument.

This Week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the CGCCA.

This week at the N-MCCA: The N-MCCA has no oral arguments scheduled for this week.

This week at CAAF: CAAF is not scheduled to hear oral argument again until 24 October.

This week at the ACCA: On Tuesday 18 October the Army CCA will hear oral argument in United States v. Cruise, No. 20080148. The issues are:

1. Evidence raised the inference that a government witness was an accomplice. The defense requested the accomplice instruction but the military judge refused to give it. Because the military judge refused to give an appropriate cautionary instruction, the appellant was denied a fair trial.
2. The military judge failed to give adequate instruction on premeditation. This caused the panel to find the appellant guilty of premeditated murder even though the facts do not support the verdict.
3. The military judge failed to instruct the members on fear, anger, and adequate provocation and the lesser-included offenses of voluntary manslaughter and negligent homicide. The judge’s failure to give these instructions deprived the appellant of a fair trial.
4. The evidence is factually insufficient to support a finding that appellant committed premeditated muder.

Note: I can’t find any prior action in this case, which appears from the docket number to be about 3 years old. If anyone knows the history, please post a comment.

This Week at the AFCCA: The AFCCA has four cases on its docket, but none are scheduled for oral argument.

This Week at the CGCCA: The Coast Guard Trial Docket shows no pending cases before the CGCCA.

This week at the N-MCCA: On Tuesday 18 October the N-MCCA will hear oral argument in United States v. Hackler. The issue presented is:

1. Whether a breaking restriction specification, under Article 134, clause 1 or 2, that fails to expressly allege either potential terminal element states an offense under the supreme court’s holdings in United States v. Resendiz-Ponce and Russell v. United States, and the Court of Appeals for the Armed Forces’ opinion in United States v. Fosler, 70 M.J. 225 (CAAF, 2011), in this case, where the appellant pled guilty, entered into a pretrial agreement with the convening authority, was properly informed of the elements of the offense –including the teminal elements– by the military judge, did not object at trial to the specification as drafted, and admitted to all of the elements of the offense during the providence inquiry? Cf. United States v. Harvey, 484 F.3d 453 (7th Cir. 2007); United States v. Cox, 536 F.3d 723 (8th Cir. 2008); United States v. Awad, 551 F.3d 930 (9th Cir. 2009).

Note: The court specifically notes that this case is being considered in the wake of Fosler, and I believe that this is the first time this issue will be argued before the N-MCCA. In the wake of N-MCCA’s many affirmations of this issue (see The Future of Fosler), and the pending CAAF petition in Leubecker, this should be interesting.

As always, if I missed something please let me know in the comments.

This week at the Supremes:  On 3 Oct 11 the Supreme Court denied the IFP motion in White v. United States. The petitioner has until 24 October to resubmit in booklet format. I am unaware of any other recent military justice developments at the Supreme Court.

This week at CAAF: CAAF opens its oral argument this week with arguments scheduled for Tuesday 11 Oct and Wednesday 12 Oct. The following cases are scheduled:

Tuesday:

United States v. Schumacher, No. 11-0257/MC

Summary:  GCM conviction of assault, disobedience of an order, and communicating a threat.  Issues:

1. WHETHER THE MILITARY JUDGE ERRED IN REFUSING TO GIVE A SELF-DEFENSE INSTRUCTION.
2. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

Unites States v. Stanley, No. 11-0143/AR

Summary:  GCM conviction of premeditated murder, possession of marijuana with intent to distribute, distribution and use of methamphetamine, AWOL, failure to obey an order, and adultery. Issues:

1. WHETHER THE MILITARY JUDGE’S INSTRUCTIONS ON SELF-DEFENSE WERE INCORRECT AND INCOMPLETE, AND IF SO, WHETHER THE LOWER COURT ERRED IN CONCLUDING THAT THIS CONSTITUTED HARMLESS ERROR.
2. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

Wednesday:

United States v. Morrissette, No. 11-0282/AR

Summary:  GCM conviction of participating in gang initiations, obstructing justice, indecent acts, disobeying an order and use of ecstasy. Issues:

1. WHETHER APPELLANT’S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION WAS VIOLATED WHEN HE WAS PROSECUTED FOR OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED STATEMENTS.
2. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

United States v. Pierce, Nos. 11-0239/AR and 11-5004/AR

Summary: GCM conviction of attempted indecent acts with a child, attempting to communicate indecent language to a child, and using the internet to attempt to entice a child in violation of 18 U.S.C. § 2422. Issues:

1. (raised by petitioner) WHETHER THE ARMY COURT OF CRIMINAL APPEALS INCORRECTLY FOUND THAT THE MILITARY JUDGE’S FAILURE TO INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS HARMLESS BEYOND A REASONABLE DOUBT.
2. (specified by the court) WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE COMMERCE” WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.
3. (certified by the JAG) WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. § 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE OR FOREIGN COMMERCE,” WAS ERRONEOUS.

United States v. Goodman, No. 11-0389/AR

Summary: GCM conviction of sexual harassment, maltreatment of subordinates, making a false official statement, wrongful sexual contact, indecent exposure and bigamy. Issues:

1. WHETHER APPELLANT’S PLEA OF GUILTY TO FAILURE TO OBEY A GENERAL REGULATION (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO SECURE A DISCLAIMER OF THE MISTAKE OF FACT DEFENSE WHEN IT WAS RAISED DURING THE PROVIDENCE INQUIRY.
2. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

This week at the CCAs: 

On Tuesday 11 October 2011 the Army CCA will hear oral argument in United States v. Moreno, No. 20100120. The issues are:

1. WAS APPELLANT PROPERLY ORDERED TO ACTIVE DUTY FOR TRIAL BY COURT-MARTIAL? SEE ARTICLE 2(d), UCMJ, 10 U.S.C. § 802(d). SEE ALSO ARMY REG. 27-10, LEGAL SERVICES: MILITARY JUSTICE [HEREINAFTER AR 27-10] CHAPTER 21, PARA. 21-3 (16 NOVEMBER 2005), ARMY REG. 135-200, ACTIVE DUTY FOR MISSIONS, PROJECTS, AND TRAINING FOR RESERVE COMPONENT SOLDIERS [HEREINAFTER AR 135-200] CHAPTER 7 (30 JUNE 1999) AND RULE FOR COURTS-MARTIAL 204.
2. IF THE ORDER DID NOT COMPLY WITH ARTICLE 2, UCMJ, 10 U.S.C. § 802, DID THE COURT-MARTIAL HAVE JURISDICTION TO HEAR APPELLANT’S CASE?
3. DID THE SECRETARY OF THE ARMY OR HIS DESIGNEE APPROVE APPELLANT BEING ORDERED TO
   ACTIVE DUTY? IF NOT, MAY HIS SENTENCE TO CONFINEMENT BE AFFIRMED BY THIS COURT? SEE ARTICLE 2 (d)(5), UCMJ, 10 U.S.C. § 802(d)(5) and AR 27-10 PARA. 21-3 j.
4. DID THE APPELLANT’S COURT-MARTIAL HAVE JURISDICTION TO TRY APPELLANT FOR MISCONDUCT COMMITTED OVER THE ENTIRE PERIOD ALLEGED IN SPECIFICATION 3 OF CHARGE I? IF NOT, WHAT IMPACT WOULD THE LACK OF JURISDICTION HAVE ON THE APPELLANT’S PLEA AND WHAT IMPACT WOULD IT HAVE ON THE FINDINGS AS TO THAT SPECIFICATION? SEE ARTICLE 2 (d)(2)(A) UCMJ, 10 U.S.C. § 802(d)(2)(A).

On Wednesday 12 October 2011 the N-MCCA will hear oral argument in United States v. Redd. Argument will be heard at the U.S. Naval Academy as part of Project Outreach.

Summary: Appellant plead and was found guilty of two specifications of violating a lawful order, in violation of Article 92, Uniform Code of Military Justice by having consensual sexual relations with others on his ship. The general court-martial, composed of members with officer and enlisted representation, convicted the appellant, contrary to his pleas, of rape, aggravated sexual contact, indecent exposure, and adultery in violation of Articles 120 and 134, UCMJ. The members sentenced the appellant to five years confinement, total forfeitures, reduction to the pay grade of E-1, and a dishonorable discharge. Issues:

1. IN A PROSECUTION FOR FORCIBLE RAPE OR AGGRAVATED SEXUAL CONTACT UNDER ARTICLE 120(A)(1) OR 120(E), THE GOVERNMENT MUST PROVE THAT THE ACCUSED TOOK “ACTION TO COMPEL SUBMISSION” OR “ACTION TO OVERCOME OR PREVENT RESISTANCE” OF ANOTHER. THESE ARE WORDS OF SPECIFIC INTENT. DID THE MILITARY JUDGE ERR BY OMITTING THIS LANGUAGE FROM HIS INSTRUCTION ON THE ELEMENTS OF THESE OFFENSES, THEREBY FREEING THE GOVERNMENT OF ITS BURDEN TO PROVE SPECIFIC INTENT?
2. MISTAKE OF FACT AS TO CONSENT IS A DEFENSE TO A SPECIFIC INTENT CRIME WHEN THAT MISTAKE IS HONEST, YET UNREASONABLE. THE MILITARY JUDGE INSTRUCTED THE MEMBERS THAT MISTAKE OF FACT AS TO CONSENT WAS A DEFENSE TO FORCIBLE RAPE AND AGGRAVATED SEXUAL CONTACT ONLY IF THE MISTAKE WAS REASONABLE UNDER THE CIRCUMSTANCES. WAS THIS INSTRUCTION ERROR?
3. WHETHER THE EVIDENCE IS FACTUALLY AND LEGALLY SUFFICIENT TO SUSTAIN AIRMAN REDD’S CONVICTIONS FOR FORCIBLE RAPE AND AGGRAVATED SEXUAL CONTACT.
4. A SPECIFICATION IS CONSTITUTIONALLY DEFICIENT IF IT DOES NOT ALLEGE ALL OF THE ELEMENTS OF THE CHARGED OFFENSE AND FAIRLY INFORM THE ACCUSED OF WHICH HE MUST DEFEND. AIRMAN REDD’S FORCIBLE RAPE AND AGGRAVATED SEXUAL CONTACT SPECIFICATION OMITTED THE FIRST HALF OF THE STATUTORY DEFINITION OF FORCE. WERE THESE SPECIFICATIONS CONSTITUTIONALLY DEFICIENT?

As you probably guessed, not a lot going on this week in the courts.

This week at the Supremes:  We are unaware of any military justice matters pending on the Supreme Court docket for the upcoming week.

This week at CAAF: CAAF’s first oral argument of the September 2011 Term  is not until 11 October, see below.

This week at the CCAs:  There are no posted oral arguments for this week at any of the CCAs.

The factual background is that a panel of officer members sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of conduct unbecoming an officer and two specifications of fraternization, violation of Uniform Code of Military Justice Articles 133 and 134, 10 U.S.C. §§ 933 and 934. The convening authority approved the adjudged sentence of confinement for 4 years, and a dismissal from the Marine Corps.

The issues to be argued before the Court are the following:

I. WHETHER SPECIFICATION 1 OF CHARGE II, FAILS TO STATE AN OFFENSE? (THE SPECIFICATION ALLEGED THE APPELLANT ENGAGED IN CONDUCT UNBECOMING AN OFFICER TO WIT: BY WRONGFULLY ENGAGING IN SEXUAL ACTIVITY WITH CORPORAL K, USMC, WHILE HE KNEW OR SHOULD HAVE KNOWN THAT CORPORAL K WAS SO SIGNIFICANTLY INTOXICATED AND MENTALLY AND PHYSICALLY IMPAIRED AS A RESULT OF SAID INTOXICATION THAT A REASONABLE OFFICER IN THE NAVAL SERVICE WOULD HAVE RECOGNIZED THAT THERE WAS A SUBSTANTIAL LIKELIHOOD THAT HE WAS INCAPABLE OF KNOWINGLY AND VOLUNTARILY CONSENTNING TO SEXUAL ACTIVITY.)

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE DETERMINED THAT THE MAXIMUM PUNISHMENT FOR SPECIFICATION 1 OF CHARGE II WAS SEVEN YEARS AND INSTRUCTED THE MEMBERS ACCORDINGLY?

III. WHETHER AN ARTICLE 134 SPECIFICATION THAT DOES NOT EXPRESSLY ALLEGE EITHER OF THE POTENTIAL TERMINAL ELEMENTS FAILS TO STATE AN OFFENSE?

This week at CAAF:  As the No Man noted here, CAAF will hold a Passing the Gavel ceremony this Tuesday to mark the transition from Chief Judge Effron to Chief Judge Baker.

This week at the CCAs:  I’m unaware of any CCA oral arguments scheduled for this week.  If anyone is aware of any I’ve overlooked, please provide details in a comment.

This week at CAAF:  CAAF is in a hiatus between the completion of its last term on 31 August and the opening of oral argument season on 11 October.

This week at the CCAs:  NMCCA was scheduled to hear oral argument today in United States v. Dominique on this specified issue:

WHETHER AN ACCUSED MAY BE CONVICTED OF AN “IMPLICIT” CONSPIRACY WHERE THERE IS NO EVIDENCE OF EITHER A WRITTEN OR ORAL MEETING OF THE MINDS, BUT RATHER WHERE APPELLANT’S PARTICIPATION IN THE CONSPIRACY IS LIMITED TO KNOWLEDGE THAT HIS “CO-CONSPIRATORS” ARE BREAKING THE LAW AND HIS OMISSION OF ACTION IN PREVENTING THEIR ILLEGAL ACTIVITIES.

ACCA will hear an oral argument on Wednesday.  Will that be the first argument in ACCA’s new courtroom?  The assignments of error to be argued in United States v. Duncan, No. ARMY 20090545, are:

I. FIRST SERGEANT HILE’S STATEMENTS GAVE APPELLANT DE FACTO GRANT OF TRANSACTIONAL IMMUNITY AS IT PERTAINED TO THE MISSING WEAPON.

II.  FIRST SERGEANT HILE’S AND CAPTAIN LACARIA’S STATEMENTS DURING THE 30 MARCH 2009 FORMATION SERVED AS “UNLAWFUL INFLUENCE” OR “INDUCEMENT” IN VIOLATION OF ARTICLE 31(d), UCMJ.

IV.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF DESERTION WITH INTENT TO REMAIN AWAY PERSONALLY.

This week at CAAF:  CAAF is in a hiatus between the completion of its last term on 31 August and the opening of oral argument season on 11 October.

This week at the CCAs:  ACCA’s announced move date is tomorrow.  Goodbye North Stuart Street.  Hello Belvoir.  NMCCA will hear oral argument in United States v. Rheel on Friday on these issues:

I.  Whether Article 120(k) UCMJ, indecent acts, is unconstitutionally vague and overbroad?  And if so, can Appellant plead guilty to violating Article 120(k), UCMJ?

II.  A specification states an offense only if it alleges, either expressly or by implication, every element of the offense.  The “terminal element” of Article 134, UCMJ, is an element of the offense that must be proved beyond a reasonable doubt.  Specification 2 of Clause II does not allege the terminal element of Article 134, UCMJ.  Does the specification fail to state an offense?

This week at CAAF:  Mr. DeCicco will hold his annual CAAF orientation session on Wednesday.  I had planned to go, but my attendance has been preempted by another responsibility.  I look forward to hearing a report about the orientation session.  CAAF is in its new term, but its oral argument season doesn’t open until 11 October.  This is likely because of a disconnect between CAAF’s terms (1 September – 31 August) and CAAF judges’ terms of office.  See Article 142(b)(2), UCMJ, 10 U.S.C. § 942(b)(2) (2006) (“The term of a judge shall expire as follows:  (A) In the case of a judge who is appointed after March 31 and before October 1 of any year, the term shall expire on September 30 of the year in which the fifteenth anniversary of the appointment occurs.  (B) In the case of a judge who is appointed after September 30 of any year and before April 1 of the following year, the term shall expire fifteen years after such September 30.”).  So Chief Judge Effron’s term does not end until 30 September.  It appears that CAAF has chosen not to hear oral arguments before then.

This week at the CCAs:  ACCA wil hear oral argument on Wednesday in United States v. Roberts, No. ARMY 20090716, on these issues:

II.  WHETHER THE MILITARY JUDGE COMMITTED REVERSIBLE ERROR BY FAILING TO TAILOR SELF-DEFENSE INSTRUCTIONS TO THE FACTS AND INSTRUCT THE MEMBERS THAT MULTIPLE ATTACKERS USING FISTS AND SHOD FEET COULD CAUSE GRIEVOUS HARM TO APPELLANT, ENTITLING THE USE OF DEADLY FORCE IN CHARGE I, SPECIFICATIONS 1 AND 3. (See United States v. Martinez, 40 M.J. 426 (C.M.A. 1994)).

III.  WHETHER THE MILITARY JUDGE COMMITTED REVERSIBLE ERROR BY FAILING TO INSTRUCT THE MEMBERS THAT THE USE OF A CONCEALED WEAPON DOES NOT NEGATE THE USE OF SELF-DEFENSE IN CHARGE I, SPECIFICATIONS 1 AND 3. (See United States v. Clayborne, 7 M.J. 528 (A.C.M.R. 1979)).

Next week at the Supremes:  There are no anticipated military justice developments at the Supremes on my radar screen for this week.

Next week at CAAF:  Two argued cases from this term have yet to be decided:  Sweeney (application of Melendez-Diaz) and Ellerbrock (Mil. R. Evid. 412).  We expect decisions to be released no later than Wednesday.

Next week at the CCAs:  On Thursday, ACCA will hear oral argument in United States v. Garner, No. ARMY 20080410, on these issues:

I.  WHETHER DEFENSE COUNSEL WERE INEFFECTIVE BECAUSE THEY PRESENTED NO EVIDENCE DURING THE SENTENCING PHASE OF SPC GARNER’S COURT-MARTIAL.

II.  WHETHER THE EVIDENCE IS LEGALLY AND FACTUALLY SUFFICIENT TO SUPPORT A FINDING OF GUILTY TO THE LANGUAGE IN SPECIFICATION 2 OF CHARGE III, SPECIFICALLY THAT SPC GARNER WRONGFULLY AND KNOWINGLY VIEWED OR POSSESSED CHILD PORNOGRAPHY “DEPICTING IMAGES OF CHILDREN THAT WERE OR APPEARED TO BE UNDER THE AGE OF 18, ENGAGED IN SEXUAL ACTS” IN VIOLATION OF ARTICLE 134, UMCJ.

This week at CAAF:  We expect CAAF to release decisions in undecided argued cases within the next 10 days.  We’re eagerly awaiting four decisions:  Ellerbrock (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Sweeney (application of Melendez-Diaz), and Baker (Article 62 appeal identification evidence case).

This week at the CCAs:  I know of no CCA oral arguments this week, but I can’t access ACCA’s website to see whether that courft will be hearing an argument this week.