October 2017 Term of Court

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

 

Cases heard at oral argument this term (includes 1 motion): 25
Argued cases decided by authored decision: 12
Argued cases decided per curiam or by summary disposition: 1
Argued cases pending decision: 12
Other cases noted below: 1

Cases Heard at Oral Argument Pending Decision (chronological by date of argument):

United States v. Eppes, No. 17-0364/AF (CAAFlog case page) (argued on Wednesday, November 8, 2017): Two granted issues present Fourth Amendment challenges to two separate searches.

United States v. Robinson, No. 17-0231/AR (CAAFlog case page) (argued on Wednesday, November 29, 2017): With two granted issues and one issue specified by the court, CAAF is reviewing the exclusion of evidence under Mil. R. Evid. 412, the mens rea required for fraternization, and the legal sufficiency of a conviction of sexual assault of a person who was incapable of consenting due to impairment by an intoxicant.

United States v. Simpson, No. 17-0329/AR (CAAFlog case page) (argued on Wednesday, November 29, 2017): The Army JAG certified this case to determine whether the Army CCA erred in reversing guilty pleas on the basis that the wrong entity was charged as the victim of a larceny involving electronic transaction.

United States v. Katso, No.17-0326/AF (CAAFlog case page) (argued on Tuesday, December 5, 2017): This certified case questions whether the Air Force CCA erred in giving 365 days of credit against the adjudged sentence to confinement as a remedy for the Air Force failing to conduct a confinement review hearing after the CCA issued its original decision in the case (a decision that was reversed by CAAF in a prior review).

United States v. Harpole, No.17-0171/CG (CAAFlog case page) (argued on Wednesday, December 6): CAAF’s review is focused on statements made by the appellant to a military victim advocate about the sexual encounter forming the basis for his convictions. Those statements were admitted into evidence after the military judge concluded that Mil. R. Evid. 514 (the victim advocate-victim privilege) did not apply because a third party was present when the statements were made. The Coast Guard CCA affirmed that ruling.

United States v. Williams, No. 17-0285/AR (CAAFlog case page) (argued on Tuesday, January 9, 2018): CAAF will – for the second time – consider the impact of the military judge’s instruction that allowed the members to use one charged sexual offense as evidence of the Appellant’s propensity to commit another charged sexual offense. Such an instruction was found to be both constitutional error and inconsistent with the military rules of evidence in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

United States v. Carpenter, No. 0476/AF (CAAFlog case page) (argued on Wednesday, January 10, 2018): A single issue questions whether it was error to apply Mil. R. Evid. 412 to prevent the defense from eliciting evidence that might support a mistake of fact as to age defense. The briefs, however, are sealed.

United States v. Mooney, No. 17-0405/AF (CAAFlog case page) (argued on Wednesday, January 10, 2018): CAAF will determine whether court-martial sentences may run consecutively (one-after-another) with federal sentences.

United States v. Condon, No.17-0392/AF (CAAFlog case page) (argued on Tuesday, January 23, 2018): Two issues question the value and harm of showing the members video of the appellant invoking his rights during an interrogation by military investigators.

United States v. Wheeler, No.17-0456/AF (CAAFlog case page) (argued on Tuesday, January 23, 2018): CAAF will determine whether Article 120b preempts attempted enticement of a minor under 18 U.S.C. § 2422(b).

United States v. Blanks, No.17-0404/AF (CAAFlog case page) (argued on Wednesday, January 24, 2018): A single granted issue questions whether mere negligence is enough to constitute dereliction of duty in violation of Article 92(3), despite longstanding precedent holding that is is sufficient.

United States v. Robinson, No.17-0504/AF (CAAFlog case page) (argued on Wednesday, January 24, 2018): Two issues challenge admission of evidence obtained from the appellant’s cell phone based last term’s decision in United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page).

 

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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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.

 

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

United States v. Gonzalez-Gomez, __ M.J. __ (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.

 

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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