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): 18
Argued cases decided by authored decision: 5
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. Mangahas, No. 17-0434/AF (CAAFlog case page) (argued on Wednesday, October 11, 2017): CAAF granted review in this interlocutory case after the Air Force CCA reversed the military judge’s ruling that dismissed the charge with prejudice after finding a violation of the accused’s Fifth Amendment (due process) right to a speedy trial based on an 18-year delay and the death of a witness.

United States v. Short, No. 17-0187/AR (CAAFlog case page) (argued on Tuesday, October 24, 2017): A single issue questions the propriety of the trial counsel’s closing argument in a case where the defense counsel did not object to the argument, but did make multiple sustained objections during the prosecution’s case.

United States v. Riesbeck, No. 17-0208/CG (CAAFlog case page) (argued on Wednesday, October 25, 2017): Two issues specified by the court question the selection and fairness of the members of the court-martial.

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. Jerkins, No. 17-0203/AR (CAAFlog case page) (argued on Tuesday, November 28, 2017): A single issue challenges the admission of a General Officer Memorandum of Reprimand (GOMOR) – that was issued approximately two weeks before trial – into evidence during the sentencing phase of the court-martial.

United States v. Acevedo, No. 17-0224/AR (CAAFlog case page) (argued on Tuesday, November 28, 2017): A single issue challenges the legal sufficiency of a conviction of kidnapping by inveiglement based on a taxicab ride.

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. Chisum, No.17-0199/AF (CAAFlog case page) (argued on Tuesday, December 5, 2017): A single issue questions the military judge’s application of Mil. R. Evid. 513 (the psychotherapist-patient privilege).

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.  Honea III, No.17-0347/AF (CAAFlog case page) (argued on Wednesday, December 6, 2017): CAAF granted review of two issues involving the appellant’s conviction of assault consummated by a battery in violation of Article 128 as a lesser included offense of abusive sexual contact by causing bodily harm in violation of Article 120(h) (2007).


Authored Decisions (chronological by date of decision):

United States v. Pugh, __ M.J. __ (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, __ M.J. __ (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, __ M.J. __ (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, __M.J. __ (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, __ M.J. __ (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).


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, __ M.J. __ (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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