October 2016 Term of Court

Term Stats:

Cases heard at oral argument this term: 34
Argued cases decided by authored decision: 16
Argued cases decided per curiam or by summary disposition: 1
Argued cases pending decision: 17
Other cases decided by authored decision: 0

 Note: This list may include cases set for argument in the near future.

Argued Cases (chronological by date of oral argument):

United States v. Swift, No. 16-0407/AR (CAAFlog case page) (argued Wednesday, November 16, 2016): This case presents three issues regarding the evidence of the appellant’s convictions of indecent acts with a child, but the parties disagree on the factual basis of those convictions.

United States v. Haverty, No. 16-0423/AR (CAAFlog case page) (argued Wednesday, November 16, 2016): With a single issue specified by the court, CAAF is reviewing the mens rea required for hazing in violation of a general regulation:

United States v. Commisso, 16-0555/AR (CAAFlog case page) (argued Tuesday, December 6, 2016): The granted issues asked whether the military judge erred in denying a post-trial motion for a mistrial after three members failed to disclose prior knowledge of the case.

United States v. Boyce, No. 16-0546/AF (CAAFlog case page) (argued Wednesday, December 7, 2016): With an issue specified by the court, CAAF will determine whether the appellant’s court-martial was affected by unlawful command influence involving Air Force Lieutenant General Craig Franklin.

United States v. Davis, No. 16-0306/AR (CAAFlog case page) (argued Tuesday, January 10, 2017): A single issue questioning the standard of review for instructions not given.

United States v. Lopez, No. 16-0487/AR (CAAFlog case page) (argued Tuesday, January 10, 2017): CAAF specified a single issue for review that questions whether it was error for certain prosecution witnesses to testify about their opinion of the appellant’s guilt.

United States v. Shea, No. 16-0530/AF (CAAFlog case page) (argued Wednesday, January 11, 2017): Two issues that question the composition of the three-judge panel of the Air Force CCA that reassessed the appellant’s sentence, but the issues are based on events in a completely separate court-martial that ended after a three-judge panel of the AFCCA reversed a conviction for forcible sodomy for factual insufficiency and then the Air Force Appellate Government Division unsuccessfully moved to disqualify one of those three judges on the basis that she might appear to be biased in favor of the Government.

United States v. Oliver, No. 16-0484/AF (CAAFlog case page) (argued Tuesday, February 7, 2017): CAAF will determine whether wrongful sexual contact was a lesser-included offense of abusive sexual contact under the 2007-2012 version of Article 120.

United States v. Hukill, No. 17-0003/AR (CAAFlog case page) (argued Tuesday, February 28, 2017): The court is reviewing the decision of the Army CCA issued in the wake of United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016 – that functionally held that Hills does not apply in a judge-alone trial because there is no risk that a military judge would apply an impermissibly low standard of proof.

United States v. Feliciano, No. 17-0035/AR (CAAFlog case page) (argued Tuesday, February 28, 2017): Two issues question the application of the defense of voluntary abandonment the defense of mistake of fact as to consent to the appellant’s convictions of attempted sexual assault.

United States v. Erikson, No. 16-0705/AR (CAAFlog case page) (Wednesday, March 1, 2017): CAAF is reviewing a military judge’s exclusion of evidence that the alleged sexual assault victim made a prior (and ostensibly false) allegation of sexual assault against a different soldier; evidence that was offered to show the alleged victim’s motive to fabricate the allegation against the appellant:

United States v. Ahern, No. 17-0032/AR (CAAFlog case page) (argued Wednesday, March 1, 2017): CAAF is reviewing the Army CCA’s conclusion that Mil. R. Evid. 304(a)(2) – which governs a person’s failure to deny an accusation of wrongdoing made while the person was under investigation – is only triggered by an investigation when the accused is actually aware of the investigation.

United States v. Richards, No. 16-0727/AF (CAAFlog case page) (argued on Wednesday, March 15, 2017): On one issue challenges the validity of a search authorization as overbroad based on the lack of a temporal requirement for a search of digital media.

United States v. Gurczynski, No. 17-0139/AR (CAAFlog case page) (argued on Wednesday, March 15, 2017): A single issue continues an interlocutory Government appeal of a military judge’s ruling suppressing evidence.

United States v. Reese, No. 17-0028/CG (CAAFlog case page) (argued Thursday, March 16, 2017): Two issues challenge the wording of the charges; the first based on a change made during the trial and the second based on the omission of words of criminality from a specification under Article 134.

United States v. Hendrix, No. 16-0731/AR (CAAFlog case page) (argued on Thursday, March 16, 2017): Two issues challenge the admission of a voice lineup.

United States v. Mitchell, No. 17-0153/AR (CAAFlog case page) (argued on Tuesday, April 4, 2017): The case continues a prosecution appeal under Article 62 of a military judge’s ruling that suppressed the contents of Sergeant (E-5) Mitchell’s cell phone because military investigators continued to question him after he requested an attorney and that questioning led to Mitchell decrypting the device for the investigators. The Army Court of Criminal Appeals affirmed the military judge’s suppression ruling, and the Judge Advocate General of the Army certified three issues to CAAF.

United States v. Herrmann, No. 16-0599/AR (CAAFlog case page) (argued on Wednesday, April 5, 2017): One issue challenges the legal sufficiency of the appellant’s conviction of reckless endangerment in violation of Article 134 for the pencil packing of parachutes, which is when a parachute is not properly packed or inspected but is fraudulently reported as being properly packed and inspected.


Cases with Authored Decisions (chronological by date of decision):

United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page): In a per curiam decision issued eight days after oral argument, CAAF finds that the appellant’s challenge to the participation of a judge of the United States Court of Military Commission Review (USCMCR) on the panel of the Air Force Court of Criminal Appeals that decided her case is moot because the judge had not yet been appointed as a USCMCR judge when the CCA decided the case.

United States v. Wilson, 76 M.J. 4 (C.A.A.F. Jan. 13, 2017) (CAAFlog case page): Considering an issue raised personally by the appellant a unanimous CAAF finds that the appellant’s housebreaking conviction involving a fenced motor pool is legally insufficient because “the meaning of a ‘structure’ for the purposes of Article 130, UCMJ, is a more or less permanent constructed edifice, built up of parts purposefully joined together, more or less completely enclosed by walls and covering a space of land, or a building or construction intended to be or used for residence.”

United States v. McClour, 76 M.J. 23 (C.A.A.F. Jan. 24, 2017) (CAAFlog case page): With a short opinion that answers no more than the question presented by the specific facts of this case, CAAF unanimously concludes that it was not plain or obvious error for the military judge to instruct the members that if they were “firmly convinced that the accused is guilty of the offense charged, [they] must find him guilty” (emphasis added).

United States v. Gomez, 76 M.J. 76 (C.A.A.F. Jan. 30, 2017) (CAAFlog case page): Reviewing for plain error, and invoking the standard that an error is clear if the judge would be derelict in countenancing it, CAAF denies relief for the prosecution’s sentencing presentation that included questionable testimony from two victims.

United States v. Pabelona, 76 M.J. 9 (C.A.A.F. Feb. 1, 2017) (CAAFlog case page): Reviewing the trial counsel’s closing argument for plain error (because the defense did not object during trial), CAAF finds that even if parts of the argument were improper there is no evidence of prejudice because of the weight of the evidence supporting the convictions.

United States v. Sewell, 76 M.J. 14 (C.A.A.F. Feb. 1, 2017) (CAAFlog case page): In an opinion that names the trial counsel but avoids direct criticism of his performance, a majority of CAAF finds that the evidence supporting the convictions is sufficient to overwhelm any impropriety in the trial counsel’s closing argument.

Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page): Sharply divided, the court narrowly concludes that it does not have jurisdiction to review an interlocutory decision by a Court of Criminal Appeals rendered under the victim-focused Article 6b when the accused seeks such review and regardless of how the accused seeks such review.

United States v. Bowen, 76 M.J. 83 (C.A.A.F. Feb. 8, 2017) (CAAFlog case page): Concluding that the military judge failed to properly consider the condition of the appellant’s wife when admitting her non-verbal response as an excited utterance, a unanimous CAAF reverses the findings and the decision of the Air Force CCA, authorizing a rehearing.

United States v. Ortiz, __ M.J. __ (C.A.A.F. Feb. 9, 2017) (CAAFlog case page): In a summary disposition issued just two days after oral argument (and that says that a written opinion will follow), CAAF rejects a challenge to the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR) on the CCA panel that reviewed the appellant’s case. Dozens of other cases are also pending before CAAF with similar issues.

United States v. Dockery, 76 M.J. 91 (C.A.A.F. Feb. 14, 2017) (CAAFlog case page): The court unanimously concludes that the military judge committed error when he granted the prosecution’s challenge of a member but that the error did not prejudice the appellant’s rights, however two judges express significant discomfort with the prosecution’s challenge.

United States v. Nieto, 76 M.J. 101 (C.A.A.F. Feb. 21, 2017) (CAAFlog case page): Considering the validity of a search authorization that was primarily based on military investigators’ experience-based assertions regarding how people use portable electronic devices, a divided CAAF finds that the authorization lacked probable cause and reverses the appellant’s conditional pleas of guilty.

United States v. Rosario, 76 M.J. 114 (C.A.A.F. Feb. 22, 2017) (CAAFlog case page): A unanimous CAAF affirms the Navy-Marine Corps CCA’s consideration of facts supporting sexual assault allegations that resulted in acquittals in the court’s review of a conviction of sexual harassment, concluding that the facts that form the basis for both acquittals and convictions are permissible considerations during a CCA’s review of convictions.

United States v. Price, __ M.J. __ (C.A.A.F. Mar. 3, 2017) (CAAFlog case page): In a short opinion the court unanimously concludes that the military judge did not elicit too much information about the appellant’s misconduct during the plea inquiry.

United States v. Bartee, __ M.J. __ (C.A.A.F. Mar. 15, 2017) (CAAFlog case page): A majority concludes 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.

United States v. Lopez, __ M.J. __ (C.A.A.F. Mar. 20, 2017) (CAAFlog case page): The court finds error and prejudice in the testimony of a witness that gave her opinion of the appellant’s guilt of the offense of indecent liberties with a child, and it reverses that conviction. But it finds the similar testimony of a second witness, whose testimony supported a conviction of rape, to be harmless.

United States v. Sager, __ M.J. __ (C.A.A.F. Mar. 21, 2017) (CAAFlog case page): Reviewing the text of Article 120(b)(2), as incorporated by Article 120(d), CAAF concludes that the language “asleep, unconscious, or otherwise unaware” creates three separate theories under which an accused may be convicted. The court reverses the decision of the Navy-Marine Corps CCA that found that the language creates only a single theory of criminal liability, and remands the case for further consideration.

United State v. Fetrow, __ M.J. __ (C.A.A.F. Apr. 17, 2017) (CAAFlog case page): CAAF agrees with the Air Force CCA that evidence admitted under Mil. R. Evid. 414 must: (1) constitute an offense under the UCMJ, federal law, or state law when the uncharged allegation occurred, and (2) be within the categories set forth in the version of M.R.E. 414(d)(2)(A)-(G) in effect at the time of trial. Accordingly, the court affirms the Air Force CCA’s decision that reversed child molestation convictions and a sentence that included confinement for 25 years.

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