CAAFlog » TWIMJ

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The net scheduled oral argument at the Army CCA is on September 6, 2017.

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 14, 2017.

This week at SCOTUS: The cert. petition in Bartee was distributed for conference on September 25. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The net scheduled oral argument at the Army CCA is on September 6, 2017.

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 14, 2017.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

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

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

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 14, 2017.

This week at SCOTUS: A cert. petition was filed in Bartee v. United States, No. 17-175 on July 28, 2017. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

The Solicitor General received a second extension of time to respond to the cert. petition in Alexander. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking seven cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, August 8, 2017, at 10 a.m.:

United States v. Bales, No. 20130743 (CAAFlog news page)

I. [Appellant] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. The military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

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

This week at the CGCCA: I can’t access the Coast Guard CCA’s oral argument schedule.

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

Event: The Joint Service Committee will hold a public hearing on Thursday, August 3, 2017, at 10 a.m. at CAAF to receive public comment on the proposed changes to the MCM (noted here).

This week at SCOTUS: The Solicitor General received a second extension of time to respond to the cert. petition in Ortiz. 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. A detailed list of this term’s cases is available on our October 2016 Term Page. The first oral argument date for the next term is October 10, 2017.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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

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

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

Event: The Judicial Proceedings Panel will hold two days of public meetings this week, on Wednesday, July 26, 2017, from 9:00 a.m. to 4:15 p.m. and Thursday, July 27, 2017, from 9:00 a.m. to 1:30 p.m. Additional details are available in this notice published in the Federal Register.

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. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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

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

This week at the NMCCA: The 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. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, July 20, 2017, at 10 a.m.:

United States v. Motsenbocker, No. 201600285

Case Summary: A panel of officer and enlisted members sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of abusive sexual conduct and one specification of sexual assault, each in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012). The members sentenced the appellant to confinement for six months, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and ordered it executed.

Issues:
I. THE GOVERNMENT IS REQUIRED TO PROVIDE FAIR NOTICE OF THE CHARGE AN ACCUSED MUST DEFEND AGAINST. HERE, THE GOVERNMENT CHARGED THE CASE AS A VIOLATION OF ARTICLE 120(B)(1)(B), UCMJ, BUT ARGUED A THEORY OF LIABILITY UNDER ARTICLE 120(B)(3)(A), UCMJ. WAS THIS A FAILURE OF FAIR NOTICE?

II. THE MILITARY JUDGE IS REQUIRED TO PROVIDE ACCURATE INSTRUCTIONS TO MEMBERS. HERE, THE MILITARY JUDGE INSTRUCTED MEMBERS ON CONSENT FOR ARTICLES 120(B)(1)(B) AND 120(D) , UCMJ, USING DEFINITIONS FOR CONSENT IN RELATION TO THE ARTICLE 120(B)(3)(A) , UCMJ, INCAPACITY ELEMENT. WAS THIS INSTRUCTIONAL ERROR BY THE MILITARY JUDGE?

III. TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT TO THE MEMBERS. TRIAL COUNSEL ARGUED THE NEED TO RELY ON BYSTANDER INTERVENTION AND NAVY TRAINING ON SEXUAL ASSAULT CONTRARY TO THE MILITARY JUDGE’S PRELIMINARY INSTRUCTION. ADDITIONALLY, TRIAL COUNSEL REPEATEDLY CALLED THE APPELLANT A LIAR, BOLSTERED THE ALLEGED VICTIM’S TESTIMONY, MISCHARACTERIZED EVIDENCE, INSERTED PERSONAL OPINION IN THE ARGUMENT AND SHIFTED THE BURDEN TO DEFENSE. WAS THIS PROSECUTORIAL MISCONDUCT?

IV. TRIAL COUNSEL MAY NOT MAKE IMPROPER ARGUMENT. TRIAL COUNSEL ARGUED A THEORY OF LIABILITY THAT THE ACCUSED WAS NOT CHARGED WITH. HE DID THIS BY PROPERLY ARGUING THE VICTIM HAD CAPACITY TO CONSENT UNDER THE CHARGED OFFENSES OF ARTICLES 120(B)(1)(B) , AND 120(D), UCMJ, WHILE ALSO IMPROPERLY ARGUING THAT THE VICTIM DID NOT HAVE THE CAPACITY TO CONSENT UNDER AN UNCHARGED OFFENSE OF ARTICLE 120(B)(3)(A), UCMJ. WAS THIS PROSECUTORIAL MISCONDUCT?

This week at SCOTUS: The Government received an extension of time to file a response to the cert. petition in Alexander. Additionally, an extension of time to file a cert. petition in Tso v. United States was granted on Jul. 6. On May 17, 2017, CAAF summarily affirmed the NMCCA’s decision in Tso in light of McClour and Bartee.

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. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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

This week at the CGCCA: I’m still unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on July 20, 2017.

This week at SCOTUS: The Government received an extension of time to file a response to the cert. petition in Ortiz. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on August 8, 2017.

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

This week at the CGCCA: I’m still unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on July 20, 2017.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday, June 27, 2017, at 2 p.m.:

United States v. Criswell, No. 20150530

Issues:
I. Whether the military judge abused his discretion in admitting Specialist AM’s in-court identification of Specialist Criswell, which was tainted by an unnecessarily suggestive pretrial identification by law enforcement.

II. Whether the evidence is legally and factually insufficient to sustain Specialist Criswell’s convictions.

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

This week at the CGCCA: I’m unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on July 20, 2017.

This week at SCOTUS: A cert. petition was filed in Alexander v. United States, No. 16-9536, on May 3, 2017, but not docketed until last week. Counsel of record is a civilian from Tennessee. The case is from the Army and was summarily affirmed by CAAF on May 3, 2017, with an order that stated:

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the issue raised by Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the decision of the United States Army Court of Criminal Appeals is affirmed.

No opinion is available on the Army CCA’s website (suggesting that the CCA summarily affirmed).

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 22, 2017, at 10 a.m.:

United States v. Bunch, No. 20160197

Issues:
[I.] Whether appellant’s six-year old stepdaughter had a reasonable expectation of privacy under Article 120c, UCMJ?

[II.] Whether the military judge abused his discretion by accepting appellant’s plea of guilty to indecent visual recording under Article 120c, UCMJ?

[III.] Whether Article 120c, UCMJ, is unconstitutionally overbroad or vague?

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Leonhardt on June 20, 2017, at 1 p.m. According to the CCA’s docket, the argument will be a closed hearing.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on July 20, 2017.

This week at SCOTUS: The cert. petition in Sterling was denied on June 5, 2017 (noted here). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, June 15, 2017:

United States v. Schelmetty, No. 20150488

Issues:
[I]. Whether the military judge’s military rule of evidence 412 ruling was error that prevented appellant from presenting evidence of consent and constitutionally required evidence.

[II]. Whether the military judge erred by preventing the defense from introducing the remaining portions of appellant’s statements.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017. According to the CCA’s docket, the argument will be a closed hearing.

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

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in United States v. Hutchins,  No. 200800393, on Wednesday, June 14, 2017, at 10 a.m.

In United States v. Hutchins, 72 M.J. 294 (C.A.A.F. Jun. 26, 2013) (CAAFlog case page), CAAF found that the Naval Criminal Investigative Service (NCIS) unlawfully re-initiated communications with Hutchins after he requested an attorney, leading to a confession that was erroneously admitted at trial, and the court reversed convictions for a false official statement, unpremeditated murder, and larceny, in connection with a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident. The Government was denied reconsideration by CAAF and ultimately did not seek certiorari.

Hutchins was retried and was convicted again (CAAFlog news page). That court-martial is now pending appellate review:

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, one specification of false official statement, one specification of unpremeditated murder, and one specification of larceny in violation of Articles 81, 107, 118, and 121, UCMJ, 10 U.S.C. §§ 881, 907, 918, 921 (2006). The members sentenced the appellant to confinement for fifteen years, reduction to pay grade E-1, a reprimand, and a dishonorable discharge. The convening authority approved the findings and sentence as adjudged and, with the exception of the reprimand and all confinement in excess of 11 years, ordered the sentence executed.

Issues:
I. Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which appellant had been acquitted at his first trial.

II. Whether the military judge erred when he admitted former testimony where the declarants were not unavailable and there was no similar motive for cross examination.

III. Whether the findings and sentence must be set aside and dismissed with prejudice due to unlawful command influence from the Secretary of the Navy

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Monday, June 5, 2017:

United States v. Lazcano, No. 20150354

Issue: Whether appellant was denied his right to a fair and impartial panel in a sexual assault case where the panel president failed to disclose his recent allegation against a material defense witness regarding inappropriate conduct with a junior enlisted soldier.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017.

This week at the CGCCA: I’m unable to access the Coast Guard CCA’s oral argument schedule.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on June 14, 2017.

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

This week at CAAF: CAAF has completed its oral argument calendar for the term. A detailed list of this term’s cases is available on our October 2016 Term Page.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on June 5, 2017.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on June 20, 2017.

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

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

This week at SCOTUS: The conference on the cert. petition in Sterling was rescheduled. A combined reply brief was filed in Dalmazzi and Cox (available here). The petition for a rehearing was denied in Howell (noted here).

A cert. petition was filed in Ortiz (available here).

An application for an extension of time to file a cert. petition was filed in Bartee v. United States, No. 16A1135. In United States v. Bartee, 76 M.J. 141 (C.A.A.F. Mar. 15, 2017) (CAAFlog case page), a majority of CAAF concluded that there was no systemic exclusion of court-martial members on the basis of rank despite the fact that the convening order duplicated an earlier order that was found to have systemically excluded.

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

This week at CAAF: CAAF will hear the final oral argument of the term on Tuesday, May 23, 2017, at 9:30 a.m.:

United States v. Chikaka, 16-0586/MC (CAAFlog case page)

Issues:
I. Where the military judge admitted on the merits a campaign plan to “fully operationalize the Commandant’s guidance” from the Heritage Tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant’s commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case?
II. Whether the military judge erred when he instructed the members, “if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Case Links:
NMCCA oral argument audio
NMCCA opinion
Appellant’s brief
Appellee’s (Navy-Marine Corps App. Gov’t Div.) brief
Appellant’s brief
Blog post: Argument preview

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Wednesday, May 24, 2017, at 12:45 p.m.:

United States v. Close, No. 20140984

Issue: Whether trial defense counsel were ineffective by failing to move to suppress all of the evidence seized and subsequently examined from appellant’s off-post residence as an unreasonable search and seizure.

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

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

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