October 2018 Term of Court

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

Cases heard at oral argument this term: 21
Argued cases decided by authored decision: 12
Argued cases decided per curiam or by summary disposition: 1
Argued cases pending decision: 8
Other cases noted below: 0

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

United States v. Stout, No. 18-0273/AR (CAAFlog case page) (argued on Tuesday, December 3, 2018): CAAF will determine whether changes to the time period alleged in three specifications were improper major changes.

United States v. Perkins, No. 18-0365/MC (CAAFlog case page) (argued on Tuesday, January 22, 2019): Two issues certified by the Judge Advocate General of the Navy ask CAAF to reconsider its precedent interpreting the good faith exception to the exclusionary rule.

United States v. Hutchins, No. 18-0234/MC (CAAFlog case page) (argued on Wednesday, January 23, 2019): This is CAAF’s third review of the long-running prosecution of Sergeant (E-5) Hutchins for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident.

United States v. Meakin, No. 18-0339/AF (CAAFlog case page) (argued on Wednesday, January 23, 2019): CAAF is reviewing whether indecent online communications are constitutionally-protected speech.

United States v. McDonald, No. 18-0308/AR (CAAFlog case page) (argued on Tuesday, February 19, 2019): The court granted review to determine the minimum mens rea (mental state) necessary to commit the offense of sexual assault by causing bodily harm where the bodily harm is a nonconsensual sexual act.

United States v. Gleason, No. 18-0305/AR (CAAFlog case page) (argued on Tuesday, February 19, 2019): A trailer to last term’s decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page), CAAF is reviewing the propriety of a novel Article 134 specification.

United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page) (argued on Wednesday, February 20, 2019): CAAF is reviewing the propriety of the Army CCA’s decision that affirmed a sexual assault conviction after concluding that the improper use of charged offenses for propensity purposes – a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – was harmless but not harmless beyond a reasonable doubt.

United States v. Voorhees, No. 18-0372/AF (CAAFlog case page) (argued on Wednesday, February 20, 2019): Three granted issues question the mens rea necessary to commit conduct unbecoming an officer and gentleman and the propriety of numerous aspects of the prosecution’s closing argument.


Authored Decisions (chronological by date of decision):

United States v. Eugene, 78 M.J. 132 (C.A.A.F. Oct. 29, 2018) (CAAFlog case page): Holding that the question of whether an accused revoked consent to a search is a question of fact, not a question of law, a unanimous CAAF finds no error in the military judge’s finding that the appellant did not revoke the consent his wife gave to law enforcement to search his phone.

United States v. Criswell, 78 M.J. 136 (C.A.A.F. Nov. 16, 2018) (CAAFlog case page): Reviewing a military judge’s ruling that allowed the alleged victim to identify the appellant as her assailant during her testimony, even though she did not know him before the alleged assault and she was shown a picture of him (and only him) before trial in a way that was found to be unnecessarily suggestive, CAAF narrowly affirms with a 3-2 decision. The majority applies a highly-deferential standard of review that focuses on the appellant’s appellate-stage objections to the military judge’s ruling, while the dissenters conduct a broader review, find numerous flaws in the military judge’s ruling, and would reverse the findings and authorize a rehearing.

United States v. Tucker, 78 M.J. 183 (C.A.A.F. Nov. 29, 2018) (CAAFlog case page): In its second review of a conviction of violation of Article 134 for negligently providing alcohol to a minor, CAAF holds that negligence is an insufficient mens rea (mental state) for the offense. The court reverses the Army CCA (for the second time), reverses the guilty plea to the offense, and remands for further action.

United States v. King, 78 M.J. 218 (C.A.A.F. Jan. 4, 2019) (CAAFlog case page): Emphasizing the ability of prosecutors to prove guilt with circumstantial evidence, the court finds that a conviction of viewing child pornography is legally sufficient even though computer forensics could not conclusively prove that the images were knowingly viewed.

United States v. Nicola, 78 M.J. 223 (C.A.A.F. Jan. 9, 2019) (CAAFlog case page): Because an accused who testifies in his own defense may be disbelieved by the trier of fact (members, in this case), and because such disbelief – coupled with other evidence – may form the basis for a conviction, CAAF finds a conviction for indecent viewing legally sufficient and affirms the decision of the Army CCA.

United States v. Bodoh, 78 M.J. __ (C.A.A.F. Jan. 23, 2018) (CAAFlog case page): Reviewing a number of instances during the trial where the prosecution referenced the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program – none of which drew a defense objection – the court finds some of the references improper but harmless.

United States v. Hale, 78 M.J. __ (C.A.A.F. Feb. 6, 2019) (CAAFlog case page): Addressing the limited (though recently expanded) UCMJ jurisdiction over members of the reserve components and the prosecution’s use of evidence of conduct that occurred outside of those limits in this case, a majority of CAAF finds the evidence was properly used to prove intent associated with conduct that was subject to UCMJ jurisdiction, and it affirms the findings, sentence, and decision of the Air Force CCA.

United States v. Forbes, 78 M.J. __ (C.A.A.F. Feb. 7, 2019) (CAAFlog case page): CAAF unanimously affirms guilty pleas to three specifications of sexual assault by causing bodily harm based on the appellant intentionally hiding his HIV-positive status from his sexual partners.

United States v. Cooper, 78 M.J. __ (C.A.A.F. Feb. 12, 2019) (CAAFlog case page): A nearly-unanimous court finds that an accused’s affirmative failure to request individual military defense counsel after a military judge discusses the right to make such a request with the accused is a knowing and intentional waiver of the right.

United States v. Briggs, __ M.J. __ (C.A.A.F. Feb. 22, 2019) (CAAFlog case page): Applying last term’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), CAAF holds that the 2006 amendment to the statute of limitations for the offense of rape was not retroactive, and that military law requires a military judge to advise an accused on the statute of limitations if it applies. Accordingly, because plain error applies the law as it exists at the time of the appeal (and not as it existed at the time of trial), Magahas makes the erroneous failure to advise on the statute of limitations plain, and Briggs’ conviction of a rape alleged to have occurred in 2005 is reversed.

United States v. Kohlbek, __ M.J. __ (C.A.A.F. Feb. 25, 2019) (CAAFlog case page): A unanimous court concludes that the seemingly-blanket prohibition in Mil. R. Evid. 707 against admitting evidence of polygraph examinations is not so broad; military judges may exercise their discretion in deciding whether to admit evidence regarding the facts and circumstances surrounding a polygraph examination to explain the reason or motivation for a confession.

United States v. Hamilton, __ M.J. __ (C.A.A.F. Feb. 28, 2019) (CAAFlog case page): Concluding that the military judge erred in admitting three victim impact statements into evidence during the sentencing phase of the court-martial – because they were not admissible under any rule – a unanimous CAAF avoids answering the separate question of whether a statement by a crime victim admissible under R.C.M. 1001A (the President’s implementation of the Article 6b right to be reasonably heard) (moved to R.C.M. 1001(c) in the 2019 MCM) is evidence that is subject to any of the Military Rules of Evidence.


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

United States v. Smith, __ M.J. __ (C.A.A.F. Feb. 22, 2019) (CAAFlog case page): In a short, per curiam opinion, CAAF applies Mil. R. Evid. 312(d)(2)(A) and last term’s decision in United States v. Robinson (AF), 77 M.J. 303 (C.A.A.F. Mar. 26, 2018) (CAAFlog case page), to hold that the failure to raise a basis for suppression of evidence at trial waived the basis on appeal.

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