CAAFlog » TWIMJ

This week at SCOTUS: The Solicitor General filed this response to the cert. petition in Gray on May 18, and Gray filed this reply on May 31. The Solicitor General also waived the right to respond to the cert. petition in Bales. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking nine cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 15, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

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

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

This week at SCOTUS: I’m tracking three new military cases at the Supreme Court.

First, a petition for certiorari was filed in Bales v. United States, No. 17-1583, on May 16 (discussed here). Second, a pro se petition for certiorari was filed in Condon v. United States, No. 17-0977, on May 22. In United States v. Condon, 77 M.J. 244 (C.A.A.F. Mar. 1, 2018) (CAAFlog case page), CAAF unanimously concluded that it was harmless to show the members a video of Condon’s interrogation during which he invoked his right to counsel. Finally, an extension of time to submit a petition for certiorari in Acevedo v. United States, No. 17A1287, was granted until July 6. In United States v. Acevedo, 77 M.J. 185 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), a majority of CAAF found the conviction of kidnapping by inveiglement (luring or enticing) is legally sufficient.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 15, 2018.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

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

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

This week at SCOTUS: The Solicitor General filed this brief in opposition to the cert. petition in Gray. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 23, 2018, at 10 a.m.:

United States v. Jesko, No. 20160439

Issues:
I. WHETHER THE MILITARY JUDGE IMPROPERLY APPLIED MIL. R. EVID. 413 UNDER UNITED STATES V. HILLS BY CONSIDERING CHARGED MISCONDUCT FOR CHARGE I, SPECIFICATIONS 2-4?

II. WHETHER THE MILITARY JUDGE IMPROPERLY APPLIED MIL. R. EVID. 413 UNDER UNITED STATES V. WRIGHT BY CONSIDERING UNCHARGED MISCONDUCT FOR CHARGE I, SPECIFICATIONS 2-4?

III. EVEN IF THE MILITARY JUDGE IMPROPERLY APPLIED MIL. R. EVID. 413 BY CONSIDERING CHARGED AND/OR UNCHARGED MISCONDUCT, WAS THE EVIDENCE SO OVERWHELMING THAT ANY ERROR DID NOT CONTRIBUTE TO THE FINDINGS OF GUILTY FOR CHARGE I, SPECIFICATIONS 2-4?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 28, 2018.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, the Army CCA will hear oral argument in two cases this week:

Wednesday, May 16, 2018, at 10 a.m.:

United States v. Mobley, No. 20160795

Issue: Whether the military judge committed plain error by not dismissing or merging Specification 3 of the Charge as multiplicous with Specification 2 of the Charge in light of United States v. Forrester.

Thursday, May 17, 2018, at 10 a.m.:

United States v. Wilson, No. 20160342

Issues:
Assignment of Error I. Whether the military judge committed plain error by permitting Dr. Kennedy to act as a human lie detector.

Assignment of Error III. Whether defense counsel were ineffective for failing to object to Dr. Kennedy’s inadmissible testimony.

Supplemental Assignment of Error I. Whether defense counsel was ineffective in failing to introduce medical records demonstrating that the charged offenses could not have taken place on 8 June 2007.

Supplemental Assignment of Error II. Whether defense counsel was ineffective in failing to introduce evidence that the basic noncommissioned officer course required appellant to reside in the barracks.

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 at the 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 six cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. Details about the cases reviewed by CAAF this term are available at our 2017 Term of Court page.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, the Army CCA will hear oral argument in one case this week, on Friday, May 11, 2018, at 10 a.m.:

United States v. Manning, No. 20130739

Issues:
I. Whether the military judge misinterpreted the definition of “exceeds authorized access” in the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a) (Specification 13 of Charge II)?

II. Whether the evidence was legally and factually sufficient to sustain Appellant’s conviction for stealing, purloining, or converting the “USF-I GAL” (Specification 16 of Charge II)?

III. Whether the evidence was factually sufficient to sustain Appellant’s convictions for stealing, purloining, or converting items of a value of $1,000 or more (Specifications 4, 6, 8, 12, and 16 of Charge II)? (Update: This issue was removed in an amended notice of hearing)

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 at the 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 six cases:

This week at CAAF: CAAF will hear oral argument in two cases this week, both on Tuesday, May 1, 2018:

At 9:30 a.m.:

United States v. Hendrix, No. 18-0133/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion by dismissing the charge and specifications with prejudice for a violation of R.C.M. 707.

Case Links:
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief (supplement to the petition for review)
• Appellee’s (Army Gov’t App. Div.) brief (answer to the supplement)
• Appellant’s reply brief (reply to the answer to the supplement)
• Blog post: Argument preview

Followed by:

United States v. Christensen, No. No. 17-0604/AR (CAAFlog case page)

Issue: Whether Appellant was subject to court-martial jurisdiction.

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

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

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 at the 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 six cases:

This week at CAAF: The next scheduled oral argument at CAAF is on May 1, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

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 at the CCA.

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

This week at SCOTUS: The Solicitor General filed this response to the supplemental brief filed in Abdirahman, et al. (the Ortiz trailer cases) (brief noted here), seeking application of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), to one of the petitioners. The response includes two noteworthy disclosures:

The government has not yet decided whether to seek further review in Mangahas. Under the circumstances, however, the government does not oppose Briggs’s request that his case be remanded to the CAAF so that the military courts can consider in the first instance his claimed entitlement to relief under that decision.

A cert. petition must be filed within 90 days of a CAAF decision, and I don’t see any docket entry for a petition for reconsideration in Mangahas, so the deadline for a petition from the SG seems to be Friday, May 4, 2018 CAAF denied a Government Division motion for reconsideration on March 15, 2018, so the deadline seems to be May 14, 2018 (because May 13 is a Sunday).

The SG also received an extension of time to file a response to the cert petition in Gray. I’m not aware of any other 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 May 1, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here).

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 at the CCA.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Tuesday, April 17, 2018, at 1 p.m., at the Marshall-Wythe School of Law, The College of William & Mary, 613 South Henry St, Williamsburg, VA 23185:

United States v. Perkins, NMCCA No. 201700077

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 conspiracy to commit the offense of larceny and one specification of violating a lawful general order in violation of Articles 81 and 92, Uniform Code of Military Justice, 10 U.S.C. §§ 881 and 892 (2012). The members sentenced the appellant to 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 it executed.

Issue: DID THE MILITARY JUDGE ERR IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE SEIZED FROM THE APPELLANT’S HOME ON 1 OCTOBER 2015 AND ALL EVIDENCE DERIVED FROM THAT SEARCH?

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 May 1, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, I can report that the Army CCA will hear oral argument in at least one case this week, on Wednesday, April 11, 2018, at 10 a.m.:

United States v. Henning, No. 20160572 (prior CAAFlog case page)

Issues:
I. Whether the military judge abused his discretion when he admitted evidence that two other people who were not accused of any misconduct were excluded as possible contributors of DNA found in the alleged victim’s underwear.

II. Whether pulling underwear to the side is legally sufficient to constitute bodily harm for the offense of sexual assault by causing bodily harm.

Disclosure: I represent MAJ Henning in my personal capacity and will argue this case.

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 at the CCA.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on April 17, 2018.

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

Wednesday, April 4, 2018, at noon. at the School of Law, The University of Texas at Austin:

United States v. Jones, No. 17-0608/AR (CAAFlog case page)

Issues:
I. Whether admission of an alleged co-conspirators confession to law enforcement violated M.R.E. 801(d)(2)(E).

II. Whether admission of the same confession violated Appellant’s Sixth Amendment right to confrontation.

III. Whether use of the confession to corroborate otherwise unsupported essential elements in Appellant’s own confession violated M.R.E. 304(g) and United States v. Adams, 74 M.J. 137 (C.A.A.F.).

Case Links:
• ACCA decision (summary disposition)
• Blog post: The (old) corroboration rule returns to CAAF
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview

Thursday, April 5, 2018, at 10:00 a.m., at Fort Hood, Killeen, Texas:

United States v. Dinger, No. 17-0510/MC (CAAFlog case page)

Issue: 10 U.S.C § 6332 states that when a person is placed in a retired status, this “transfer is conclusive for all purposes.” Can a court-martial lawfully sentence a retiree to a punitive discharge?

Case Links:
• NMCCA decision (76 M.J. 552)
• Blog post: NMCCA affirms retired members still in military and subject to UCMJ
• Blog post: CAAF grants
• Appellant’s brief
• Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
• Blog post: Argument preview

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). I’m not aware of any scheduled oral arguments this week at the Army CCA.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Hodge, No. 39259, on Friday, April 6, 2018, at noon, at Penn State Law. No additional information is available  onthe CCA’s website.

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

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

This week at SCOTUS: A supplemental brief (available here) was filed in Abdirahman, et al. (the Ortiz trailer cases) seeking application of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), to one of the petitioners.

I’m not aware of any other 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 April 4, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). I’m not aware of any scheduled oral arguments this week at the Army CCA.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

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

Earlier this morning, OPM closed the federal government’s offices in the Washington D.C. area due to winter weather.

Accordingly, CAAF is closed today. Today’s oral arguments in Burris and Armstrong will be rescheduled.

Update: Today’s oral arguments (Burris & Armstrong) will be argued tomorrow morning. Tomorrow’s arguments (Kelly & Barry) will be argued tomorrow afternoon.

This week at SCOTUS: The Solicitor General received an extension of time to respond to the cert. petition in Gray, to April 18, 2018. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

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

Wednesday, March 21, 2018, at 1:30 p.m.:

United States v. Burris, No.17-0605/AR (CAAFlog case page)

Disclosure: I represent MAJ Burris and will argue this case.

Issue: Citing Rules for Courts-Martial 905(c), and 919(c), the Army Court held that the failure of Appellant’s trial defense counsel to object to improper character evidence and improper argument waived any error. This Court, however, treats such failures as forfeiture and tests for plain error. Which Court is right?

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

Followed by:

United States v. Armstrong, No. 17-0556/AR (CAAFlog case page)

Issue: Whether assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm.

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

Thursday, March 22, 2018, at 9:30 a.m.:

United States v. Kelly, No.17-0559/AR (CAAFlog case page)

Disclosure: I represent SGT Kelly and will argue this case.

Issue: Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

Case Links:
• 
ACCA decision
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Amicus brief – A.F. App. Def. Div.
• Amicus brief – N.M. App. Def. Div.
• Blog post: Argument preview

Followed by:;

United States v. Barry, No. 17-0162/NA (CAAFlog case page)

Specified issue: Whether a Deputy Judge Advocate General can commit unlawful command influence under Article 37, UCMJ, 10 U.S.C. § 837 (2012).

Granted issue: Whether military officials exerted actual unlawful command influence on the convening authority or created the appearance of doing so.

Case Links:
• NMCCA decision
• Blog post: Retired Admiral wishes he had disapproved a conviction when he had the chance
• Blog post: More on Unlawful Command Influence Affidavit at CAAF from Retired Navy One-Star
• Blog post: Retired Admiral will get to testify about the conviction he wishes he disapproved when he had the chance
• Blog post: Developments in the Barry case (that somehow justify giving lawyers more power)
• Blog post: Details trickle out of the DuBay hearing in the Barry case
• Blog post: 
Chief Trial Judge of the Air Force makes findings in the Barry case
• DuBay findings of fact
• Blog post: CAAF grants
• 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 Army CCA’s website is still inaccessible from the public internet (discussed here). I’m not aware of any scheduled oral arguments this week at the Army CCA.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

This week at CAAF: The next scheduled oral arguments at CAAF are on March 21, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, the CCA will hear oral argument in one case this week, on Wednesday, March 14, 2018, at 9:45 a.m.:

United States v. Sinclair, No. 20160267

Issues:
I. [WHETHER] TRIAL DEFENSE COUNSEL WERE INEFFECTIVE WHEN THEY FAILED TO FULLY ATTACK THE COMPLAINING WITNESS’S CREDIBILITY, AND WHEN THEY FAILED TO OBJECT TO PLAINLY INADMISSIBLE TESTIMONY AND ARGUMENT.

[II]. WAS TRIAL DEFENSE COUNSEL’S PRESENTENCING CASE INEFFECTIVE?

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, March 15, 2018, at 10 a.m.:

United States v. Berger, NMCCA No. 201500024

Case summary:
A military judge sitting as a general court-martial convicted the appellant, pursuant to his plea, of violating a lawful general order by wrongfully possessing a synthetic cannabinoid compound. At the same court-martial, a panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of rape, one specification of sexual assault, one specification of aggravated sexual contact, two specifications of abusive sexual contact, and one specification of assault consummated by a battery. The members sentenced the appellant to 78 months’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the punitive discharge, ordered the sentence executed.

Although this court affirmed the findings and sentence, the Court of Appeals for the Armed Forces set aside our decision and remanded the case for reconsideration in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

Issue:
WHETHER THE EVIDENCE IN THIS CASE RENDERS THE MILITARY JUDGE’S INSTRUCTION ON THE PROPER USE OF PROPENSITY EVIDENCE, UNDER MILITARY RULE OF EVIDENCE 413, HARMLESS BEYOND A REASONABLE DOUBT, IN LIGHT OF UNITED STATES V. HILLS, 75 M.J. 350 (C.A.A.F. 2016) AND ITS PROGENY, UNITED STATES V. GUARDADO, 77 M.J. 90 (C.A.A.F. 2017) AND UNITED STATES V. LUNA, 76 M.J. 477 (C.A.A.F. 2017).

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 arguments at CAAF are on March 21, 2018.

This week at the ACCA: The Army CCA’s website is still inaccessible from the public internet (discussed here). Nevertheless, the CCA will hear oral argument in one case this week, on Monday, March 5, 2018, at 9:45 a.m.:

United States v. Tucker, No. 20150634

Issue: Whether inferring the general-intent mens rea of negligence sufficiently separates wrongful from otherwise innocent conduct for offenses charged under Clause 1 or Clause 2 of Article 134, UCMJ.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 6, 2018 (at Penn State Law).

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 15, 2018.