October 2016 Term of Court

Term Stats:

Cases heard at oral argument this term: 24
Argued cases decided by authored decision: 8
Argued cases decided per curiam or by summary disposition: 2
Argued cases pending decision: 14
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. Nieto, No. 16-0301/AR (CAAFlog case page) (argued Tuesday, October 11, 2016): CAAF will determine whether the military judge erred in denying Appellant’s motion to suppress the evidence seized from the appellant’s laptop computer after an authorization based on the allegation that the appellant used a cell phone to surreptitiously record other soldiers using the toilet.

United State v. Fetrow, No. 16-0500/AF (CAAFlog case page) (argued Tuesday, October 25, 2016): Two issues question precisely what kind of evidence of child molestation is admissible for propensity purposes under Mil. R. Evid. 414.

United States v. Bartee, No. 16-0391/MC (CAAFlog case page) (argued Tuesday, November 15, 2016): CAAF is reviewing the propriety of a convening order that selected the exact same members who were previously rejected by the military judge as having been improperly selected on the basis of rank.

United States v. Sager, No. 16-0418/NA (CAAFlog case page) (argued Tuesday, November 15, 2016): Two issues involve statutory interpretation of Article 120(b)(2), which criminalizes sexual activity with a person who is asleep, unconscious, or otherwise unaware when the accused knew or reasonably should have known that the other person was in such a condition.

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. Rosario, No. 16-0424/MC (CAAFlog case page) (argued Tuesday, December 6, 2016): CAAF granted review of one issue that – similar to an issue in United States v. Swift, No. 16-0407/AR (CAAFlog case page) – questions whether the CCA’s review of the conviction was predicated on conduct that was not the basis for the conviction.

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. Price, No. 16-0611/AF (CAAFlog case page) (argued Wednesday, January 11, 2017): One issue questions whether the military judge asked too many questions during the appellant’s guilty plea inquiry.

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.

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

United States v. Dalmazzi, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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.

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