October 2017 Term of Court

Cases heard at oral argument this term (includes 1 motion): 36
Argued cases decided by authored decision: 34
Argued cases decided per curiam or by summary disposition: 2
Argued cases pending decision: 0
Other cases noted below: 1

Blog post: 2017 Term End o’ Term Stats

Authored Decisions (chronological by date of decision):

United States v. Pugh, 77 M.J. 1 (C.A.A.F. Nov. 7, 2017) (CAAFlog case page): In a post-trial prosecution interlocutory appeal about the validity of the blanket prohibition on consuming hemp products in Air Force instruction 90-507, paragraph 1.1.6., a unanimous CAAF finds that while the prohibition “may have a valid military purpose, it is overly, and inappropriately, broad as it pertains to Food and Drug Administration (FDA) approved food products.”

United States v. Hennis, 77 M.J. 1 (C.A.A.F. Nov. 20, 2017) (CAAFlog case page): Unanimously concluding that there is no constitutional, statutory, or regulatory authority for the court to grant a defense “motion to compel funding for learned counsel, a mitigation specialist, and a fact investigator; for appointment of appellate team members; and for a stay of proceedings,” CAAF denies it.

United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page): Holding that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members – and rejecting as inaccurate the instruction on the term’s meaning that was proposed by the defense at trial – a unanimous CAAF nevertheless encourages military judges to continue to give the Benchbook definition of incapable of consenting added after the court’s decision in United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (CAAFlog case page).

United States v. Jacobsen, 77 M.J. 81 (C.A.A.F. Dec. 11, 2017) (CAAFlog case page): Answering only the discrete question presented in the JAG’s certification, a majority of CAAF holds that a trial counsel’s certification does not conclusively establish appellate jurisdiction over an interlocutory prosecution appeal.

United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page): Practically ignoring the five factors utilized by the Army CCA to analyze the prejudice from the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 or 414, the court unanimously reverses the CCA’s opinion that found such improper use to be harmless in this case. The court also finds that two novel 134 specifications fail to state offenses, applying last term’s decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).

United States v. Short, 77 M.J. 148 (C.A.A.F. Jan. 5, 2018) (CAAFlog case page): Reviewing various improprieties by the prosecution that prompted the defense to request a mistrial three separate times, a three-judge majority concludes that those requests were properly denied because misconduct was not so severe that curative instructions were inadequate. But two judges dissent and would reverse the findings, concluding that misconduct was severe, the instructions ineffective, and the evidence underwhelming.

United States v. Riesbeck, 77 M.J. 154 (C.A.A.F. Jan. 23, 2018) (CAAFlog case page): Finding that gender was improperly used as a criteria for selection of the members of the court-martial, categorizing that as an “obvious error,” labeling the post-trial review of that error up to this point “a stain on the military justice system,” and emphasizing that “the Government, set on arguing that there was no error, hasn’t even claimed to meet its burden to show the error was harmless,” a unanimous CAAF sets aside the findings and orders the charges dismissed with prejudice.

United States v. Chisum, 77 M.J. 176 (C.A.A.F. Jan. 26, 2018) (CAAFlog case page): Reviewing the mental health records of two prosecution witnesses – even though the records were not reviewed by the trial military judge and were made available for the first time on appeal – CAAF holds that any error in failing to produce them at trial was harmless, affirming the findings, sentence, and decision of the Air Force CCA.

United States v. Honea III, 77 M.J. 181 (C.A.A.F. Feb. 1, 2018) (CAAFlog case page): Finding the record “a tangled morass,” that “does not establish with certainty what the findings were,” CAAF concludes that appellate review is impossible and reverses the findings, sentence, and decision of the Air Force CCA. Yet because the record is “so irredeemably muddled,” CAAF does not authorize a rehearing and instead dismisses the charge with prejudice.

United States v. Acevedo, 77 M.J. 185 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page): Focusing on the “somewhat unique circumstances” of the case, a majority of CAAF concludes that the conviction of kidnapping by inveiglement (luring or enticing) is legally sufficient, and affirms it and the decision of the Army CCA.

United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page): Answering only the issue specified by the court after oral argument in this interlocutory case, a unanimous CAAF holds that the offense of rape of an adult (without aggravating factors) is not constitutionally punishable by death, and so the statute of limitations for a court-martial prosecution for that offense (prior to amendments enacted in 2006) is just five years. Accordingly, the decision of the Air Force CCA is reversed and a two-decade old allegation of rape is dismissed.

United States v. Jerkins, 77 M.J. 225 (C.A.A.F. Feb. 8, 2018) (CAAFlog case page): Unanimously agreeing that the military judge abused her discretion by allowing the prosecution to introduce a non-final general officer memorandum of reprimand (GOMOR) into evidence during the sentencing phase of the court-martial, a bare majority of the court finds prejudice and reverses the sentence and the decision of the Army CCA, remanding for reassessment or a sentence rehearing.

United States v. Harpole, 77 M.J. 231 (C.A.A.F. Feb. 14, 2018) (CAAFlog case page): CAAF unanimously concludes that the appellant’s statements to a military victim advocate were not privileged because a third-party was present when the statements were made, however a majority finds that further fact-finding is necessary to determine whether it was ineffective assistance of counsel for the defense to fail to seek suppression of the statements for violation of Article 31(b). Accordingly, CAAF reverses the decision of the Coast Guard CCA and remands the case for a fact-finding hearing.

United States v. Blanks, 77 M.J. 239 (C.A.A.F. Feb. 28, 2018) (CAAFlog case page): Finding no persuasive reason to overrule 65 years of precedent holding that negligent dereliction of duty is an offense under the UCMJ, CAAF unanimously affirms the appellant’s conviction of negligent dereliction and the decision of the Air Force CCA.

United States v. Condon, 77 M.J. 244 (C.A.A.F. Mar. 1, 2018) (CAAFlog case page): In a short, fact-specific opinion CAAF unanimously concludes that it was harmless to show the members a video of the appellant’s interrogation during which he invoked his right to counsel, affirming the decision of the Air Force CCA.

United States v. Katso, 77 M.J. 247 (C.A.A.F. Mar. 12, 2018) (CAAFlog case page): Unanimously concluding that the Air Force CCA was wrong to apply the pretrial confinement review procedures of Rule for Courts-Martial 305 to Katso’s continued post-trial confinement while appellate review was underway, CAAF reverses the CCA’s award of 365 days of confinement credit.

United States v. Mooney, 77 M.J. 252 (C.A.A.F. Mar. 12, 2018) (CAAFlog case page): The court unanimously concludes that the convening authority was prohibited from ordering the court-martial sentence to run consecutively with a federal sentence, reversing a published decision of the Air Force CCA and setting aside the convening authority’s action as void ab initio.

United States v. Simpson, 77 M.J. 279 (C.A.A.F. Mar. 19, 2018) (CAAFlog case page): Answering the certified issue in the negative, CAAF reemphasizes that the victim of a larceny under Article 121 is the person or entity from whom the accused obtained the goods or money at issue, and not merely any person who suffered a loss or consequence as a result of the accused’s actions.

United States v. Carpenter, 77 M.J. 285 (C.A.A.F. Mar. 20, 2018) (CAAFlog case page): Reviewing the military judge’s restriction of the defense cross-examination of the alleged victim (based on Mil. R. Evid. 412), a unanimous CAAF finds that the military judge did not abuse his discretion based on the defense argument at trial, despite the defense making a different argument on appeal.

United States v. Wheeler, 77 M.J. 289 (C.A.A.F. Mar. 22, 2018) (CAAFlog case page): Limiting the preemption doctrine to cases where a federal offense is incorporated under Clause 3 of Article 134 for the purpose of reducing the prosecution’s evidentiary burden at trial, a unanimous CAAF concludes that the appellant’s conviction of coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) is not preempted by the enumerated offense of sexual abuse of a child in violation of Article 120b(c) because there is no indication that the federal offense was charged in order to circumvent an element of the Article 120b offense.

United States v. Robinson (AR), 77 M.J. 294 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page): CAAF finds any error harmless and a sexual assault conviction legally sufficient, dodging a contentious debate about the reach of the constitutionally-required exception to Mil. R. Evid. 412 (the military’s rape shield rule). This is one of two cases by the same name (but with different appellants) decided on the same day.

United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page):A majority of the court finds no constitutional violation in military investigators requesting a device passcode from a suspect who consented to a search of the device after invoking his right to remain silent and requesting an attorney, distinguishing this case from and rejecting application of last term’s decision in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page). This is one of two cases by the same name (but with different appellants) decided on the same day.

United States v. Eppes, 77 M.J. 339 (C.A.A.F. Apr. 10, 2018) (CAAFlog case page): Resolving challenges to two separate searches, CAAF unanimously concludes that one search was proper, and a majority find the fruits of the second search technically problematic but ultimately admissible. Accordingly, the appellant’s conditional pleas of guilty and the decision of the Air Force CCA are affirmed.

United States v. Barker, 77 M.J. 377 (C.A.A.F. May 21, 2018) (CAAFlog case page): Reviewing a written statement from a child pornography victim that was admitted during the sentencing phase of a court-martial under Rule for Courts-Martial 1001A – the President’s implementation of the Article 6b right of an alleged victim to be reasonably heard – a functionally-unanimous CAAF concludes that the statement was not admissible under that rule because the victim did not actually participate in the proceeding (and perhaps didn’t even know about the appellant’s prosecution). Nevertheless, the court concludes that the erroneous admission of the statement was harmless because the appellant pleaded guilty and was sentenced by a military judge alone, the defense sentencing case was weak, and the prosecution’s sentencing case was otherwise strong. Chief Judge Stucky dissents, but only because he would find the issue waived (and vacate the grant of review) due to a waiver term of the pretrial agreement.

United States v. Andrews, 77 M.J. 393 (C.A.A.F. May 22, 2018) (CAAFlog case page). Rejecting the Navy-Marine Corps Appellate Government Division’s argument that the failure to object to improper argument at trial waives any error on appeal, a unanimous CAAF applies stare decisis to hold that the failure to object merely forfeits any error. Any improper argument by the prosecution in this particular case, however, was harmless.

United States v. Kelly, 77 M.J. 404 (C.A.A.F. May 23, 2018) (CAAFlog case page): In a short, tightly-written opinion, CAAF holds that a court of criminal appeals does have the power to disapprove a mandatory minimum punitive discharge, reversing a published en banc (but non-unanimous) decision of the Army CCA.

United States v. Hardy, 77 M.J. 438 (C.A.A.F. Jun. 5, 2018) (CAAFlog case page): A somewhat fractured court concludes that an unconditional plea of guilty waives any issue of unreasonable multiplication of charges (UMC) (a doctrine that addresses uniquely-military factors increasing the potential for prosecutorial overreach).

United States v. Dinger, 77 M.J. 447 (C.A.A.F. Jun. 18, 2018) (CAAFlog case page): A unanimous CAAF affirms that a retired member of the armed forces can be sentenced to a punitive discharge.

United States v. Hendrix, 77 M.J. 454 (C.A.A.F. Jun. 19, 2018) (CAAFlog case page): Rejecting the military judge’s conclusion that a dismissal of charges (followed shortly by a re-preferral) was a subterfuge to avoid the regulatory (R.C.M. 707) speedy trial right, CAAF finds no speedy trial violation and reverses the military judge’s decision that dismissed the charges with prejudice.

United States v. Williams, 77 M.J. 459 (C.A.A.F. Jun. 27, 2018) (CAAFlog case page): In this Hills trailer case involving the improper use of charged offenses for propensity purposes, CAAF holds that the Army CCA wrongly held that the circumstances involve an exception to United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). The court reverses convictions of rape and forcible sodomy, affirms other convictions, and authorizes a rehearing.

United States v. Armstrong, 77 M.J. 465 (C.A.A.F. Jun. 28, 2018) (CAAFlog case page): CAAF unanimously holds that assault consummated by a battery is not a lesser included offense of abusive sexual contact by causing bodily harm because even though both offenses require bodily harm, a battery must involve unlawful force or violence, while abusive sexual contact need only involve a certain mental state. Nevertheless, reviewing for plain error (because the defense failed to preserve the issue with a timely objection) CAAF finds no material prejudice to the defense in this case and affirms the conviction of assault consummated by a battery.

United States v. Christensen, 78 M.J. 1 (C.A.A.F. July 10, 2018) (CAAFlog case page): In a narrowly-written opinion, the court distances itself from (but does not overrule) its precedent regarding when a servicemember is discharged from the service and court-martial jurisdiction ends. CAAF concludes that under the specific facts of this case, reason and policy dictate that the appellant was discharged prior to his court-martial and so the tribunal lacked personal jurisdiction to try him.

United States v. Jones, 78 M.J. 37 (C.A.A.F. July 31, 2018) (CAAFlog case page): Applying the old corroboration rule, CAAF unanimously finds that sufficient independent evidence was admitted to corroborate a confession to larceny of military property, even after excluding the statement of a co-conspirator that the Army Government Appellate Division conceded was improperly admitted (and used as corroboration at trial). Because the confession was otherwise corroborated, the erroneous admission of the co-conspirator’s statement is harmless and the findings, sentence, and decision of the Army CCA are affirmed.

United States v. Barry, 78 M.J. 70 (C.A.A.F. Sep. 5, 2018) (CAAFlog case page): A divided court agrees that the appellant’s conviction of sexual assault in violation of Article 120(b) must be reversed, but it disagrees about how and why that reversal should occur. The majority finds actual unlawful command influence and orders the charge and specification dismissed with prejudice, while the dissenters would instruct the convening authority to withdraw the action and substitute a corrected action disapproving the finding of guilty.


Summary & Per Curiam Decisions in Argued Cases (chronological by date of decision):

United States v. Gonzalez-Gomez, 77 M.J. 99 (C.A.A.F. Nov. 2, 2017) (summ. disp.) (CAAFlog case page): Just nine days after hearing oral argument, CAAF summarily reversed and remanded the case for further consideration of the adequacy of the CCA’s grant of 180 days of confinement credit for dilatory post-trial processing.

United States v. Burris, 78 M.J. 56 (C.A.A.F. Jul. 19, 2018) (summ. disp.) (CAAFlog case page): CAAF holds that a mere failure to object to evidence and to findings argument constitutes forfeiture, not waiver, and remands for a new review by the Army CCA.


Other Decisions (chronological by date of decision):

United States v. Gray, 77 M.J. 5 (C.A.A.F. Nov. 13, 2017) (per curiam) (CAAFlog case page): A decision issued without oral argument, CAAF dismisses with prejudice a writ-appeal of a petition for extraordinary relief in the form of a writ of error coram nobis, concluding that it does not have jurisdiction to consider the writ in a case that is final in all respects under the UCMJ. The decision seems to be in direct conflict with the Supreme Court’s decision in United States v. Denedo, 556 U.S. 904, 912-913 (2009).


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