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: 15
Argued cases decided by authored decision: 5
Argued cases decided per curiam or by summary disposition: 0
Argued cases pending decision: 10
Other cases noted below: 0

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

United States v. Hamilton, No. 18-0135/AF (CAAFlog case page) (argued on Tuesday, October 23, 2018): CAAF is reviewing review whether an unsworn statement by a crime victim (allowed by R.C.M. 1001A) is evidence that must be evaluated under the rules of evidence.

United States v. Hale, No. 18-0162/AF (CAAFlog case page) (argued on Tuesday, October 23, 2018): Three issues – two granted and one specified by CAAF – question the existence of personal jurisdiction for offenses committed by a drilling reservist.

United States v. Kohlbek, No. 18-0267/AR (CAAFlog case page) (argued on Tuesday, November 6, 2018): CAAF is reviewing whether the general prohibition in Mil. R. Evid. 707 against evidence of polygraph examinations applies to a defense request to introduce into evidence the fact that a confession was preceded by a polygraph.

United States v. Bodoh, No. 18-0201/AR (CAAFlog case page) (argued on Wednesday, November 7, 2018): CAAF will determine whether it was plain error for the military judge to allow the prosecution to repeatedly reference the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program during closing arguments to the members.

United States v. Cooper, No. 18-0282/NA (CAAFlog case page) (argued on Tuesday, December 3, 2018): Four certified issues question whether there was – and if so how to address – a denial of the statutory right to request individual military defense counsel.

United States v. Forbes, 18-0304/NA (CAAFlog case page) (argued on Tuesday, December 3, 2018): A single granted issue challenges a plea of guilty to sexual assault based solely on the failure to inform a sexual partner of HIV status.

United States v. Briggs, No. 16-0711/AF (CAAFlog case page) (argued on Tuesday, December 3, 2018): Remanded from the Supreme Court in August for review in light of CAAF’s decision in United States v. Mangahas, 77 M.J. 220 (C.A.A.F. Feb. 6, 2018) (CAAFlog case page), this case presents two issues questioning whether the 2006 change to the statute of limitations for rape was retroactive and whether a statute of limitations defense can be raised for the first time on appeal.

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. Smith, No. 18-0211/AR (CAAFlog case page) (argued on Tuesday, January 22, 2018): The first of two cases involving the good faith exception to the exclusionary rule, Smith presents multiple appellate-stage challenges to the admission of the fruits of a search of electronic devices.

United States v. Perkins, No. 18-0365/MC (CAAFlog case page) (argued on Tuesday, January 22, 2018): 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.


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. __ (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. __ (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.

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