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): 33
Argued cases decided by authored decision: 23
Argued cases decided per curiam or by summary disposition: 1
Argued cases pending decision: 9
Other cases noted below: 1

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

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. Barker, No. 17-0551/AF (CAAFlog case page) (argued on Tuesday, February 27, 2018): Two granted issues question the Air Force CCA’s finding of error in the admission of two out of three victim-impact statements offered by the prosecution, but no prejudice to the appellant’s rights.

United States v. Hardy, No. 17-0553/AF (CAAFlog case page) (argued on Tuesday, February 27, 2018): A single granted issue questions whether the Air Force CCA’s holding that an unconditional plea of guilty waives anu unreasonable multiplication of charges.

United States v. Andrews, No.17-0480/NA (CAAFlog case page) (argued on Wednesday, February 28, 2018): The second prosecutorial misconduct case of the term, CAAF is reviewing the NMCCA’s decision that found severe prosecutorial misconduct, but no prejudice, from an award-winning trial counsel’s closing argument.

United States v. Burris, No.17-0605/AR (CAAFlog case page) (argued on Wednesday, March 21, 2018): CAAF will determine whether the Army CCA was right when it held that under R.C.M. 905(e) and 919(c) the mere failure to object to improper character evidence and improper argument waives any error.

United States v. Armstrong, No. 17-0556/AR (CAAFlog case page) (argued on Wednesday, March 21, 2018): CAAF will determine whether assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm.

United States v. Kelly, No.17-0559/AR (CAAFlog case page) (argued on Thursday, March 22, 2018): CAAF whether determine whether a court of criminal appeals has the authority to disapprove a mandatory minimum punitive discharge.

United States v. Barry, No. 17-0162/NA (CAAFlog case page) (argued on Thursday, March 22, 2018): Two issues question whether unlawful influence tainted the convening authority’s approval of the findings and sentence.

United States v. Jones, No. 17-0608/AR (CAAFlog case page) (argued Wednesday, April 4, 2018): CAAF granted review of three issues involving the admission of a confession of a co-conspirator, however concessions by the Army Government Appellate Division leave only a fact-bound issue questioning whether the record provides sufficient independent corroboration of essential facts of the appellant’s confession without the erroneously-admitted statement of the co-conspirator.

 

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

 

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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