October 2016 Term of Court

Term Stats:

Cases heard at oral argument this term: 42
Argued cases decided by authored decision: 39
Argued cases decided per curiam or by summary disposition: 3
Argued cases pending decision: 0
Other cases decided by authored decision: 0

Blog post: 2016 Term End o’ Term Stats

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 prosecutorial misconduct under the plain error standard (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 prosecutorial misconduct 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. 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, 76 M.J. 136 (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, 76 M.J. 141 (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, 76 M.J. 151 (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, 76 M.J. 158 (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, 76 M.J. 181 (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.

United States v. Ortiz, 76 M.J. 189 (C.A.A.F. Apr. 17, 2017) (CAAFlog case page): While the court summarily decided the case on February 9, 2017 (two days after hearing oral argument), CAAF’s April opinion explains that there was no error in the participation of a Presidentially-appointed and Senate-confirmed judge of the Court of Military Commission Review (CMCR), who is also an Air Force Colonel, on the CCA panel that reviewed the appellant’s case. Ortiz is a replacement for United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. Dec. 15, 2016) (CAAFlog case page), which raised similar issues, was resolved on mootness grounds, and is the subject of a petition for certiorari (discussed here).

United States v. Ahern, 76 M.J. 194 (C.A.A.F. Apr. 20, 2017) (CAAFlog case page): The court unanimously finds that appellant’s civilian defense counsel’s affirmative statements that the defense had no objection to admission of appellant’s statements waived any issue regarding the use of the statements under Mil. R. Evid. 304(a)(2) (addressing failure to deny an accusation of wrongdoing).

United States v. Haverty, 76 M.J. 199 (C.A.A.F. Apr. 25, 2017) (CAAFlog case page): Considering a single issue that was specified by the court itself, and applying the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), CAAF finds that recklessness is the minimum mens rea (mental state) to sustain a conviction of hazing in violation of Army Regulation 200-20 paragraph 4-20.

United States v. Swift, 76 M.J. 210, (C.A.A.F. Apr. 26, 2017) (CAAFlog case page): A unanimous CAAF finds that the Army CCA improperly based its review solely by reference to uncharged conduct, remanding for a new review under Article 66(c). The court also concludes that any error in the admission of an uncorroborated confession was waived by both the failure to object and an affirmative statement that the defense had no objection.

United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page): A short opinion reiterates the holding of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (CAAFlog case page): Charged offenses may not be used as evidence of the accused’s propensity to commit other charged offenses in the same case, regardless of the forum, the number of victims, or whether the allegations are connected. CAAF reverses the decision of the Army CCA that found otherwise, reverses the appellant’s sexual offense convictions, and authorizes a rehearing.

United States v. Davis, 76 M.J. 224 (C.A.A.F. May 9, 2017) (CAAFlog case page): Affirming a published decision of the Army CCA, CAAF unanimously finds that if an accused fails to preserve an instructional error with a timely objection or request, then the error is tested for plain error.

United States v. Erikson, 76 M.J. 231 (C.A.A.F. May 9, 2017) (CAAFlog case page): A unanimous court finds no error in excluding evidence that the alleged victim made a prior allegation of sexual assault against a different person because the prior allegation was not proven to be false.

United States v. Feliciano, 76 M.J. 237 (C.A.A.F. May 17, 2017) (CAAFlog case page): Concluding that the defenses of voluntary abandonment and mistake of fact as to consent were not raised by the evidence, a unanimous CAAF finds no error in the omission of an instruction on the former, and no error in the specific wording of the instruction given on the latter. A footnote also distinguishes a special defense from an affirmative defense.

United States v. Boyce, 76 M.J. 242 (C.A.A.F. May 22, 2017) (CAAFlog case page): A deeply-divided court concludes that the conduct of senior Air Force officials created an appearance of unlawful command influence (UCI) in this case that would cause an objective, disinterested observer with knowledge of all the facts to harbor a significant doubt about the fairness of the court-martial proceedings. As a remedy CAAF sets aside convictions of spousal rape and battery, authorizing a rehearing.

United States v. Tucker, 76 M.J. 257 (C.A.A.F. May 23, 2017) (CAAFlog case page): With a per curiam opinion issued just thirteen days after oral argument, the court explains that the term neglects in Article 134 does not mean negligence, rejecting the published decision of the Army CCA that found that the term states a negligence standard.

United States v. Oliver, 76 M.J. 271 (C.A.A.F. May 24, 2017) (CAAFlog case page): Finding forfeiture (and not waiver) in the absence of objection to the military judge considering wrongful sexual contact as a lesser included offense of abusive sexual contact, a four-judge majority concludes that wrongful sexual contact is not a lesser included offense of abusive sexual contact but the conviction may stand nevertheless because there was no prejudice to the defense in this case.

United States v. Shea, 76 M.J. 277 (C.A.A.F. May, 30, 2017) (CAAFlog case page): Concluding that an appellant has no right to a CCA panel on remand that is composed of the same judges who considered the case on initial review, CAAF finds that there was no error in the changed composition of the panel in this case, and also that there is no evidence of unlawful influence in the circumstances leading to that change.

United States v. Hendrix, 76 M.J. 283 (C.A.A.F. Jun. 1, 2017) (CAAFlog case page): A unanimous court concludes that a voice lineup was so flawed as to render the result meaningless, and that admission of evidence of the lineup caused prejudice because it was important for the prosecution. The court reverses the appellant’s conviction of sexual abuse of a child, authorizing a rehearing.

United States v. Brantley, 76 M.J. 398 (C.A.A.F. Jun. 1, 2017) (summ. disp.) (CAAFlog case page): A summary disposition returns the case to the CCA to review the legal sufficiency of the evidence that an alleged victim was unaware of a sexual touching, in a case where the prosecution’s argument focused on the alleged victim’s impairment, in light of CAAF’s decision in United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page).

United States v. Carter, 76 M.J. 293 (C.A.A.F. Jun. 5, 2017) (CAAFlog case page): In a short opinion issued less than a month after oral argument, a unanimous CAAF agrees with the Air Force CCA’s “interpretation of its own holding . . . the AFCCA did not authorize a rehearing.” Slip op. at 4. The CCA’s decision dismissing the charges with prejudice is affirmed.

United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page): A unanimous court finds no requirement to show prejudice in the case of an objected-to major change (functionally rendering this a structural error), and reverses a conviction of sexual abuse of a child after concluding that the change altered the means of committing the offense and was not fairly included in the original specification. The court also explains that a novel Article 134 specification must allege an act or omission that is not already an enumerated Article 134 offense.

United States v. Herrmann, 76 M.J. 304 (C.A.A.F. Jun. 19, 2017) (CAAFlog case page): Defining the term likely in the element of conduct likely to produce death or grievous bodily harm as “based on the trier of facts’ commonsense, everyday understanding of that term as applied to the totality of the circumstances,” but applying it as “the natural or probable consequence of particular conduct,” CAAF affirms a conviction of reckless endangerment in violation of Article 134 for the pencil packing of reserve parachutes (which is when a parachute is not properly packed or inspected but is fraudulently reported as being properly packed and inspected).

United States v. Chikaka, 76 M.J. 310 (C.A.A.F. Jun. 20, 2017) (CAAFlog case page): A short, unanimous opinion finds that the sentencing-phase testimony of the appellant’s commanding officer, that opined in favor of a harsher sentence, constitutes some evidence of unlawful command influence (UCI) sufficient to require further review by the Navy-Marine Corps Court of Criminal Appeals. CAAF reverses the CCA’s decision that found no merit in the assertion of UCI and remands for further consideration.

United States v. Commisso, 76 M.J. 315 (C.A.A.F. Jun. 26, 2017) (CAAFlog case page): A unanimous court finds that the military judge abused his discretion when he denied a post-trial motion for a mistrial that was based on dishonest answers from three members during voir dire (the members concealed their participation in Sexual Assault Review Board (SARB) meetings where the case was discussed). CAAF reverses the findings and sentence and the decision of the Army CCA, and authorizes a rehearing.

United States v. Darnall, 76 M.J. 326 (C.A.A.F. Jun. 28, 2017) (CAAFlog case page): Concluding that military criminal investigators did not have probable cause to apprehend the appellant, a unanimous CAAF finds that the fruits of a subsequent interrogation should have been suppressed by the military judge. The findings and sentence are set aside, and the decision of the Navy-Marine Corps CCA is reversed, with a rehearing authorized.

United States v. Claxton, 76 M.J. 356 (C.A.A.F. Jul. 6, 2017) (CAAFlog case page): Finding “gross governmental misconduct” in the failure to disclose the fact that two prosecution witnesses were confidential informants – and identifying by name the prosecutors, the chief of justice (senior prosecutor), the staff judge advocate (commander’s lawyer), and the commander – a four-judge majority finds the nondisclosure to be harmless and affirms the convictions and the decision of the Air Force CCA.

United States v. Richards, 76 M.J. 365 (C.A.A.F. Jul. 13, 2017) (CAAFlog case page): Holding that a search authorization for electronic media need not include a temporal limitation, even when the facts enable investigators to limit the search to a specific time period, so long as the authorization is otherwise sufficiently particularized so as to avoid an unconstitutionally broad search, CAAF affirms the admission of the fruits of the search of the appellant’s electronic media.

United States v. Ramos, 76 M.J. 372 (C.A.A.F. Jul. 19, 2017) (CAAFlog case page): CAAF concludes that Coast Guard Investigative Service (CGIS) agents were required to give Article 31(b) rights, and that there was no immediate operational necessity justifying the failure to do so, when questioning the appellant about threats to himself and his wife in connection with his wife’s efforts to start a marijuana business.

United States v. Gurczynski, 76 M.J. 381  (C.A.A.F. Jul. 24, 2017) (CAAFlog case page): Rejecting a Government interlocutory appeal of a military judge’s ruling suppressing evidence, CAAF finds that the plain view exception to the Fourth Amendment’s warrant requirement does not apply because the underlying search was unreasonable due to the fact that it was based on a warrant issued for offenses of which the appellant was convicted at a different court-martial nine months prior.

United States v. Forrester, 76 M.J. 389 (C.A.A.F. Aug. 16, 2017) (CAAFlog case page): Considering four separate convictions for possession of child pornography, where all four convictions involved the same contraband images but possessed on four separate electronic devices, a sharply-divided court concludes that the Manual for Courts-Martial creates a separate offense for each separate possession of the contraband, affirming the convictions, the decision of the Navy-Marine Corps CCA, and the approved sentence.

United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page): Because continued questioning of a suspect after he invokes his right to counsel violates the Fifth Amendment, CAAF finds (in this interlocutory case) that the contents of a cell phone must be suppressed because military investigators requested the passcode to decrypt the phone after the suspect requested an attorney. The phone itself, however, need not be suppressed. CAAF affirms (in part) the decision of the Army CCA and of the military judge suppressing the contents of the phone.

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