This week at the Supremes:  The Supreme Court will not hear argument again until 31 October. I’m unaware of any new military justice developments at SCOTUS.

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.

It’s a busy week at CAAF and the CCAs. Please post a comment if I missed something.

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:

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Co-authored by Mike “No Man” Navarre

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 Navy-Marine Corps Court of Criminal Appeals will hear oral argument tomorrow (28 September) in United States v. McGuire.

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 the Supremes:  The pro se IFP cert petition in White v. United States, No. 11-5041, was distributed for tomorrow’s conference.  Given that the SG waived response and there was no call for a response, we know that cert was denied.  CAAF’s opinion in the case is available here.  United States v. White, 69 M.J. 236 (C.A.A.F. 2010).

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

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

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

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)).

I’m going to post this now, while I still have power.

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 the Supremes:  There are no anticipated military justice developments at the Supremes this week.

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.

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

Next week at CAAF:  CAAF has completed its scheduled oral arguments for the term. By my count, four argued cases remain undecided. We expect CAAF to decide these cases no later than 31 August. The four caess are: Ellerbrock (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Sweeney (application of Melendez-Diaz), and Baker (Article 62 appeal identification evidence case).

Next week at the CCAs:  NMCCA will hear a rescheduled oral argument on Tuesday.  United States v. Caldwell was originally scheduled to be heard on 3 August, but was moved to 16 August.  Here’s the issue, presented in Garnerian deep-issue format:

APPELLANT WAS CONVICTED OF INTENTIONAL SELF-INJURY FOR ATTEMPTING SUICIDE. CAN INTENTIONAL SELF-INJURY BE USED AS A VEHICLE FOR CRIMINALIZING BONA FIDE SUICIDE ATTEMPTS INDUCED BY DEPRESSION, PTSD, OR OTHER MENTAL ILLNESS?

On Thursday, AFCCA will hear oral argument in United States v. Dease, Misc. Dkt. No. 2011-04, an Article 62 appeal case.  Here are the issues as framed by the government:

I.  WHETHER THE MILITARY JUDGE ERRED IN DETERMINING THAT THE ACCUSED MAINTAINED AN EXPECTATION OF PRIVACY IN URINE AFTER PROVIDING IT PURSUANT TO VALIDLY OBTAINED CONSENT.

II. WHETHER THE MILITARY JUDGE INCORRECTLY APPLIED THE DOCTRINE OF INEVITABLE DISCOVERY TO THE ADMISSION OF THE TEST RESULTS OF THE ACCUSED’S URINE SAMPLE.

The central decisional issue is whether the government can rely on a consent rationale to test urine after a servicemember consented to the collection of the urine but then revoked his consent to search the urine before the testing was conducted.  If so, then the question becomes whether the evidence obtained by the testing would have been inevitably discovered had the government honored the servicemember’s revocation of consent to search the urine.

This week at the Supremes:  There are no anticipated military justice developments at the Supremes this week.

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term. By my count, six argued cases remain undecided. We expect CAAF to decide these cases no later than 31 August. The six caess are:  Ellerbrock (Mil. R. Evid. 412), Gaddis (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Fosler (whether Article 134′s terminal element must be alleged on charge sheet), Sweeney (application of Melendez-Diaz), and Baker (Article 62 appeal identification evidence case).

This week at the CCAs:  NMCCA will hear oral argument at 1100 tomorrow on the latest petition for extraordinary relief arising from the court-martial case of SSgt Frank Wuterich.  Wuterich v. United States, NMCCA No. 200800183.  NMCCA ordered oral argument on these issues:

I. WHETHER THE PETITIONER MEETS THE THRESHOLD REQUIREMENTS FOR MANDAMUS RELIEF BASED UPON HIS CLAIM THAT LTCOL VOKEY, HIS FORMER DETAILED DEFENSE COUNSEL AND CIVILIAN DEFENSE COUNSEL, SHOULD BE RESTORED TO HIS DEFENSE TEAM BEFORE PETITIONER’S COURT-MARTIAL PROCEEDS.

II. WHETHER LTCOL VOKEY VOLUNTARILY TERMINATED HIS REPRESENTATION OF THE PETITIONER WHEN HE ALERTED THE TRIAL JUDGE TO A CONFLICT OF INTEREST AND MOVED TO WITHDRAW HIMSELF AS CIVILIAN DEFENSE COUNSEL IN SEPTEMBER 2010.

III. IF LTCOL VOKEY VOLUNTARILY RETIRED FROM ACTIVE DUTY AND THEN ASSUMED THE MANTLE OF CIVILIAN DEFENSE COUNSEL IN REPRESENTING THE PETITIONER IS RESTORATION TO ACTIVE DUTY A VIABLE OPTION FOR REMEDY.

[Familiar disclosure:  I'm one of SSgt Wuterich's appellate defense counsel, though my colleague Maj Babu Kaza will be presenting his oral argument tomorrow.]

On Tuesday at 1000, the Air Force Court will hear oral argument in United States v. Saldana, No. ACM 37598, on these issues:

I.  Whether the evidence is legally and factually insufficient to prove beyond a reasonable doubt that Appellant assaulted [D.E.M.] by causing two fractures to the right arm and one fracture to the right leg in Specification 1 of the Charge, and that Appellant assaulted [D.E.M.] by throwing him onto the ground and striking his head against Appellant’s leg in Specification 2 of the Charge.

II.  Appellant’s constitutional and regulatory right to a fair and impartial panel was violated by the misconduct of the president of the panel, who failed to disclose that he had received legal training for his role as a military magistrate.

This week at the Supremes:  There are no anticipated military justice developments at the Supremes this week.

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term.  By my count, six argued cases remain undecided.  We expect CAAF to decide these cases by the end of August.  The six caess are:  Ellerbrock (Mil. R. Evid. 412), Gaddis (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Fosler (whether Article 134′s terminal element must be alleged on charge sheet), Sweeney (application of Melendez-Diaz), and Baker (identification evidence).

This week at the CCAs:  On Tuesday, ACCA will hear oral argument in United States v. Lyon, No. ARMY 20090792, on these assignments of error:

 I.  THE MILITARY JUDGE ABANDONED HER IMPARTIAL ROLE WHEN SHE BECAME A PARTISAN ADVOCATE FOR THE PROSECUTION DURING APPELLANT’S CONTESTED TRIAL BY GENERAL COURT-MARTIAL THEREBY DENYING APPELLANT HIS 5TH AMENDMENT RIGHT TO DUE PROCESS.

II.  APPELLANT’S APPROVED SENTENCE IS DISPROPORTIONATE AND INAPPROPRIATELY SEVERE COMPARED TO THE SEVERITY OF HIS MISCONDUCT.

On Wednesday, NMCCA will hear oral argument in United States v. Coldwell, on this issue (presented in Garnerian deep-issue format):  “Appellant was convicted of intentional self-injury for attempting suicide.  Can intentional self-injury be used as a vehicle for criminalizing bona fide suicide attempts induced by depression, PTSD, or other mental illness?”

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

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term.  By my count, six argued cases remain undecided:  Ellerbrock (Mil. R. Evid. 412), Gaddis (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Fosler (whether Article 134′s terminal element must be alleged on charge sheet), Sweeney (application of Melendez-Diaz), and Baker (identification evidence).

This week at the CCAs:  This will be a busy week at Joint Base Andrews’ “Courtroom Appellate.”  AFCCA will hear three oral arguments this week — one each Tuesday through Thursday.  Tuesday’s oral argument is in United States v. Blume, No. ACM 37385.  Here are the issues being argued:

II.  Whether CAPT Blume’s defense counsel provided ineffective assistance by misadvising Capt Blume concerning whether he possessed a defense to the charges and specifications.

III.  Whether Capt Blume’s defense counsel provided ineffective assistance of by misadvising Capt Blume concerning whether he would have to register as a sex offender if he pleaded guilty to the charges and specifications.

V.  Whether Capt Blume’s defense counsel provided ineffective assistance by failing to procure the services of expert consultants in the fields of forensic computer analysis and psychology.

[Disclosure:  I'm one of Capt Blume's appellate counsel, but Frank Spinner will be arguing on his behalf.]  Wednesday’s oral argument is in United States v. Wilson, No. ACM 37486, on this issue:  “Whether the evidence is factually and legally insufficient to support the findings of guilty.”  Frank Spinner will also argue on the appellant’s behalf in that case.  Thursday’s argument is in an Article 62 appeal case, United States v. Hathorne, Misc. Dkt. No. 2011-02, on this issue:  “Whether the Military Judge abused his discretion by suppressing Appellee’s written and oral statements.”

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

This week at CAAF:  CAAF has completed its scheduled oral arguments for the term.  By my count, six argued cases remain undecided:  Ellerbrock (Mil. R. Evid. 412), Gaddis (Mil. R. Evid. 412), Lusk (application of Melendez-Diaz), Fosler (whether Article 134′s terminal element must be alleged on charge sheet), Sweeney (application of Melendez-Diaz), and Baker (identification evidence).

This week at the CCAs:  AFCCA will hear oral argument tomorrow at 1400 in United States v. Clark, No. ACM 37494, on this issue:  “Whether the military judge erred by allowing Government witnesses to testify about what they observed on surveillance video days after the alleged theft where the video was subsequently destroyed.” 

ACCA will hear oral argument on Thursday at 1000 in United States v. McClain, No. ARMY 20090446, on these specified issues:

I.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF POSSESSING CHILD PORNOGRAPHY UNDER ARTICLE 134, UCMJ, SPECIFICATION 1 OF THE CHARGE, BECAUSE THE FACT-FINDER RELIED UPON SA DEVINNY’S LAY TESTIMONY, WHICH WAS ERRONEOUSLY ADMITTED UNDER MILITARY RULE OF EVIDENCE 701.

II.  THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION OF DISTRIBUTING VISUAL DEPICTIONS OF MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT TO INTERNET USERS UNDER ARTICLE 134, UCMJ, SPECIFICATION 2 OF THE CHARGE, BECAUSE THERE WAS NO EVIDENCE SHOWING THAT APPELLANT ACTUALLY DISTRIBUTED VIDEOS TO ANOTHER PERSON.

III.  SPECIFICATIONS 1 AND 2 OF THE CHARGE WERE MULTIPLICIOUS AND ALSO CONSTITUTED AN UNREASONABLE MULTIPLICATION OF CHARGES UNDER UNITED STATES v. QUIROZ, 55 M.J. 334 (C.A.A.F. 2001).