Audio of today’s arguments at CAAF is available at the following links:

United States v. Howell, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page): Oral argument audio.

EV v. United States & Martinez, No. 16-0398/MC (CAAFlog case page): Oral argument audio.

Audio of yesterday’s oral arguments at CAAF is available at the following links:

United States v. Evans, No. 16-0019/AR (CAAFlog case page): Oral argument audio.

United States v. Hills, No. 15-0767/AR (CAAFlog case page): Oral argument audio.

On April 29 the Air Force JAG certified Fetrow:

No. 16-0500/AF. U.S. v. Justin L. Fetrow. CCA 38631. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT IN ORDER FOR CONDUCT TO CONSTITUTE CHILD MOLESTATION UNDER MIL. R. EVID. 414, THE CONDUCT MUST HAVE BEEN AN OFFENSE UNDER THE UCMJ, OR FEDERAL OR STATE LAW, AT THE TIME IT WAS COMMITTED AND, IF OFFERED UNDER MIL. R. EVID. 414(d)(2)(A)-(C), THAT THE CONDUCT MUST MEET THE DEFINITION OF AN OFFENSE LISTED UNDER THE VERSION OF THE APPLICABLE ENUMERATED STATUTE IN EFFECT ON THE DAY OF TRIAL.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT THE ERRONEOUS ADMISSION OF TWO ACTS OF INDECENT LIBERTIES COMMITTED BY APPELLEE ON HIS CHILD AGE DAUGHTER HAD A SUBSTANTIAL INFLUENCE ON THE MEMBERS’ VERDICT REQUIRING SET ASIDE OF THE FINDINGS AND SENTENCE.

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 31st day of May, 2016.

I discussed the Air Force CCA’s opinion in Fetrow here.

Additionally, on May 3 CAAF granted review in three cases:

No. 16-0267/AR. U.S. v. Nathan C. Wilson. CCA 20140135. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by appellant:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR APPROPRIATE RELIEF UNDER RULE FOR COURT-MARTIAL 917 WHERE THE MILITARY JUDGE IMPROPERLY APPLIED ARTICLE 130, UCMJ, HOUSEBREAKING, TO A MOTOR POOL.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Wilson is available here.

No. 16-0296/AF. U.S. v. Joseph R. Dockery III. CCA 38624. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED BY GRANTING, OVER DEFENSE OBJECTION, THE GOVERNMENT’S CHALLENGE FOR CAUSE AGAINST MSGT LW.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE DID NOT ERR, AND BY CONCLUDING THAT EVEN IF THE MILITARY JUDGE DID ERR THERE WAS NO PREJUDICE, CONTRARY TO THIS COURT’S PRECEDENT IN UNITED STATES v. PETERS, 74 M.J. 31 (C.A.A.F. 2015), UNITED STATES v. WOODS, 74 M.J. 238 (C.A.A.F. 2015),UNITED STATES V. NASH, 71 M.J. 83 (C.A.A.F. 2012), UNITED STATES v. CLAY, 64 M.J. 274 (C.A.A.F. 2007), AND UNITED STATES v. DALE, 42 M.J. 384 (C.A.A.F. 1995).

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion in Dockery is available here.

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by appellant:

WHETHER THE MILITARY JUDGE UNCONSTITUTIONALLY APPLIED MRE 413 BY DETERMINING THAT A FACTFINDER COULD FIND BY A PREPONDERANCE OF THE EVIDENCE THAT APPELLANT COMMITTED EACH OF THE PRIOR ACTS ALLEGED IN THE THREE SPECIFICATIONS.

Briefs will be filed under Rule 25.

No opinion is available on the Army CCA’s website.

The grants in Wilson and Tafoya are the fourth and fifth cases with Grostefon issues granted this term. The first three are United States v. Caldwell, No. 16-0091/AR (CAAFlog case page), United States v. Nieto, No. 16-0301/AR (discussed here), and United States v. Sewell, No. 16-0360/AR (discussed here).

Additionally, CAAF summary reversed the decision of the Army CCA and remanded for additional proceedings in a case involving a claim of ineffective assistance of counsel also asserted personally by the appellant:

No. 16-0433/AR. U.S. v. James E. Hopkins. CCA 20140913. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following personally asserted issue:

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals will obtain affidavits from civilian and military trial defense counsel that respond to Appellant’s allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a factfinding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

Hopkins is the sixth grant of the term of a Grostefon issue. All six are army cases.

As the Military Justice Act of 2015 works its way through Congress, a Legal Memorandum from the Heritage Foundation considers the proposed changes in the context of history, contemporary practice, and the press to modernize:

Paul Larkin and Charles “Cully” Stimson, The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System

The websites for CAAF and the AFCCA are now accessible.

CAAF will hear oral argument in the Marine Corps case of EV v. United States & Martinez, No. 16/0398/MC (CAAFlog case page), on Wednesday, May 11, 2016 (after the oral argument in Howell).

The case is a writ-appeal by an alleged victim (EV) who sought extraordinary relief from the Navy-Marine Corps CCA to reverse a military judge’s order for disclosure of portions of her mental health records. Such records are normally privileged from disclosure under Mil. R. Evid 513 (the psychotherapist-patient privilege), however the military judge found that disclosure was required to protect the constitutional rights of the accused (Sergeant Martinez) and also that the crime/fraud exception in Mil. R. Evid. 513(d)(5) applies to the facts of this case. That exception removes the privilege against disclosure for any communications that “clearly contemplate[] the future commission of a fraud or crime.”

EV filed her petition pursuant to the recently-enacted provision in Article 6b(e), which states that an alleged victim “may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.” The NMCCA denied the petition, concluding that EV did not have a clear and indisputable right to reversal of the judge’s order. EV appealed that denial to CAAF, raising three issues that challenge the military judge’s ruling and the NMCCA’s denial of relief. CAAF then specified a fourth issue questioning whether the court has jurisdiction to consider this case:

I. Whether the NMCCA erred by erroneously denying EV’s petition for a writ of mandamus despite EV’s clear and indisputable right to the issuance of a writ.

II. Whether the military judge abused his discretion by erroneously ruling the defense satisfied each prong of Mil. R. Evid. 513(e)(3) and by ruling that Mil. R. Evid. 513(d)(5) applied.

III. Whether the military judge violated EV’s Article 6b rights by erroneously applying impermissible exceptions and denying EV a right to receive notice and to be heard.

IV. (specified by CAAF). Whether the United States Court of Appeals for the Armed Forces has statutory authority to exercise jurisdiction over decisions of the courts of criminal appeals rendered pursuant to Article 6b, UCMJ.

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Here is the NIMJ amicus brief in support of the Petition for Certiorari in Akbar v. United States, No. 15-1257.  The general theme of the brief is that “in contrast to [] civilian criminal convictions, Congress specifically intended for [the Supreme] Court to take a more active role in supervising military convictions on direct appeal.”  Brief at 18.

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This week at SCOTUS: The Solicitor General received an extension of time, to June 8, to respond to the cert. petition in Akbar. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF will hear oral argument in four cases this week (note: as the court’s website is down, I’m hosting the briefs on CAAFlog):

Tuesday, May 10, 2016, at 9:30 a.m.:

United States v. Evans, No. 16-0019/AR (CAAFlog case page)

Issue: Where the Army Court of Criminal Appeals found evidence was admitted in violation of Appellant’s Article 31(b), UCMJ, rights, did the court err in applying the Kerr prejudice test as opposed to the Brisbane harmless beyond a reasonable doubt test?

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Hills, No. 15-0767/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, May 11, 2016, at 9:30 a.m:

United States v. Howell, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page)

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?
III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?
IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

Case Links:
• NMCCA opinion
Blog post: The NMCCA splits 4-4 on the propriety of Art. 13 relief for a pay issue
Blog post: Navy JAG certified Howell
Blog post: Judge Ryan recuses herself from Howell
Howell’s brief: Certified issue 1
Government brief: Certified issue 1
• Howell’s reply brief: Certified issue 1
Government brief: Certified issues 2-4
• Howell’s brief: Certified issues 2-4
• Government reply brief: Certified issues 2-4
Blog post: Argument preview

Followed by:

EV v. United States & Martinez, No. 16-0398/MC (CAAFlog case page)

Issues:
I. Whether the NMCCA erred by erroneously denying EV’s petition for a writ of mandamus despite EV’s clear and indisputable right to the issuance of a writ.
II. Whether the military judge abused his discretion by erroneously ruling the defense satisfied each prong of Mil. R. Evid. 513(e)(3) and by ruling that Mil. R. Evid. 513(d)(5) applied.
III. Whether the military judge violated EV’s Article 6b rights by erroneously applying impermissible exceptions and denying EV a right to receive notice and to be heard.
IV (specified by CAAF). Whether the United States Court of Appeals for the Armed Forces has statutory authority to exercise jurisdiction over decisions of the courts of criminal appeals rendered pursuant to Article 6b, UCMJ.

Case Links:
Blog post: A writ-appeal by an apparent alleged victim
Blog post: CAAF grants review of a writ-appeal by an alleged victim
EV’s brief (writ-appeal petition)
• EV’s brief (specified issue)
• Government’s brief
• Martinez’s brief
Martinez’s brief (specified issue)
EV’s reply brief
• Amicus brief in support of EV (Protect Our Defenders)

This week at the ACCA: The Army CCA will hear oral argument in two cases this week:

Monday, May 9, 2016, at 10 a.m.: United States v. Craig, No. 20150272

Issue: Whether the military judge abused his discretion in accepting the accused’s guilty plea when he failed to address the mistake of fact defense and failed to obtain an adequate factual basis for the plea.

Thursday, May 12, 2016, at 10 a.m.: United States v. Bonilla, No. 20131084

Issues:
I. Whether the military judge erred by allowing a damaging hearsay statement into evidence after he already ruled the specific statement inadmissible.
II. Whether the military judge abused his discretion in prohibiting the defense from completing their closing argument.

This week at the AFCCA: The Air Force CCA’s website is currently inaccessible.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, May 12, 2016, at 10 a.m.:

United States v. Neiman

Case summary: A panel of members with enlisted representation sitting as general court-martial convicted the appellant, contrary to his pleas, of one specification of murder and one specification of obstruction of justice in violation of Articles 118 and 134, UCMJ, 10 U.S.C. §§ 918 and 934. The members sentenced appellant to confinement for life with the possibility of parole, forfeiture of all pay and allowances, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed.

Issue: Whether the military judge erred in finding that the appellant’s statements to NCIS were voluntary and admissible.

CAAF will hear oral argument in the certified Marine Corps case of United States v. Howell, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page), on Wednesday, May 11, 2016, at 9:30 a.m. The case presents four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?
III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?
IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of a sexual assault conviction with a rehearing authorized. Howell was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

Howell complained, asserting that he was entitled to be paid as an E-6, and the military judge agreed, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

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CAAF decided the certified Coast Guard Case of United States v. Cooley, 75 M.J. 247, No.s 15-0384/CG & 15-0387/CG (CAAFlog case page) (link to slip op.), on Friday, May 6, 2016. In a lengthy opinion addressing a complicated factual scenario, CAAF affirms the decision of the Coast Guard CCA that dismissed the charges (all but one with prejudice) for violation of Cooley’s right to a speedy trial.

Judge Ryan writes for a unanimous court.

Pursuant to a pretrial agreement Cooley entered conditional pleas of guilty, at a general court-martial composed of a military judge alone, to four offenses: one specification of attempting a lewd act with a child of more than 12 years but less than 16 years, two specifications of attempting to wrongfully commit indecent conduct, one specification of failing to obey an order, and one specification of wrongfully and knowingly possessing apparent child pornography, in violation of Articles 80, 92, and 134. He was sentenced to confinement for seven years, total forfeitures, reduction to E-1, and a bad-conduct discharge. In accordance with the pretrial agreement the convening authority suspended all confinement in excess of 50 months.

The conditional pleas reserved Cooley’s right to appeal the question of whether he was denied his right to a speedy trial. The court-martial occurred in 2013 – the same year that we declared the death of Article 10. However, in late 2014 the Coast Guard CCA found a violation of Cooley’s Article 10 right to a speedy trial, and also a violation of the R.C.M. 707 speedy trial rule, and it dismissed the charges (three with prejudice, one without). In making those findings the CCA also concluded that pretrial confinement is prejudicial to the rights of an accused no matter how well such confinement is justified. The Judge Advocate General of the Coast Guard then certified the case to CAAF with two issues challenging the CCA’s conclusions, and CAAF subsequently granted review of an additional issue:

Certified Issues:
I. Whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice.
II. Whether the facts and circumstances or Appelle’s case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

Granted Issue:
Whether the government violated Appellant’s rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012 and Feberuary 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012.

With yesterday’s decision CAAF issues its most significant Article 10 decision in years. While the court rejects the CCA’s conclusion that pretrial confinement is per se prejudicial, and also overrules the substantial information rule, the court reanimates the seemingly dead Article 10 speedy trial right by castigating the Government for its lack of diligence in avoiding pretrial delays and concluding that “this case is the outlier that warrants the interposition of Article 10, UCMJ, to fill the interstice in speedy trial rights left open by R.C.M. 707.” Slip op. at 13.

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CAAF will hear oral argument in the Army case of United States v. Hills, No. 15-0767/AR (CAAFlog case page), on Tuesday, May 10, 2016 (after the argument in Evans). The case challenges the use of the charged offenses as propensity evidence under Military Rule of Evidence 413 – our #6 Military Justice Story of 2015 – with the following granted issue:

Whether the military judge abused his discretion by granting the government’s motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

Sergeant Hills was convicted by a general court-martial composed of members with enlisted representation, contrary to his pleas of not guilty, of one specification of abusive sexual contact in violation of Article 120. The conviction arose from an alleged sexual encounter with a heavily intoxicated female soldier. Hills was acquitted to two additional specifications of abusive sexual contact arising out of the same encounter with the same alleged victim. The members sentenced him to confinement for six months, reduction to E-1, and a bad-conduct discharge.

At trial, and over the objection of the defense, the military judge granted a Government motion to permit the use of the three charged violations of Article 120 as evidence to prove Hills’ propensity to commit those same offenses. While American law generally prohibits using a person’s bad character to prove them guilty of a criminal offense, Congress created two exceptions (for sexual offenses) with the enactment of Federal Rules of Evidence 413 and 414 in the Violent Crime Control and Law Enforcement Act of 1994, § 320935, 108 Stat. 1796, 2135 (1994). Those Rules were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30,065, 30078 (June 2, 1998).

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So here is the headline and first paragraph of Military Times’ coverage of the latest DoD report on sexual assault in the military:

Military sex assault: Just 4 percent of complaints result in convictions

The military received more than 6,000 reports of sexual assaults last year, but only a small fraction, about 250, led to a court-martial and conviction for a related crime, according to a new Pentagon report.

Here is the article and here is the report (FY2015 report here).  And here is what those stats actually mean, 13 paragraphs later:

Of the 6,083 initial complaints filed last year, about 1,500 were “restricted,” meaning the victim was a service member who reported the assault but refused to participate in any criminal investigation and only sought healthcare and victims’ support services.

In 2015, military criminal investigators reviewed 4,584 “unrestricted” reports from victims who were willing to participate in a potential prosecution. . . .

After completing investigations, 2,783 cases were sent to military commanders.

. . . .
Commanders launched court-martial proceedings against the alleged perpetrator in 926 cases. Among those, 159 were closed because the alleged perpetrator resigned from the military, and 111 were closed because the case was dismissed in pretrial proceedings.
Of the 543 cases that ultimately went to court-martial, 130 resulted in not-guilty verdicts.
Of the 413 troops convicted at court-martial, 161 resulted in charges unrelated to sex assault.
In 254 cases, a service member as convicted of a sexual assault-related offense.

And here is what a senior DoD official in the SAPRO said about those numbers:

“Yeah, it doesn’t make us feel very comfortable that we can’t, when an allegation is made, that we can’t take every single allegation to court. But that is our justice system,” said Nate Galbreath, a senior executive adviser for the Pentagon’s sexual assault prevention and response program.

Nice.  For more fun with statistics, see this opinion piece from Senator Kirsten Gillibrand.

Today CAAF issued its opinion in the certified Coast Guard case of United States v. Cooley, No.15-0384/CG & 15-0387/CG (CAAFlog case page).

While CAAF’s website is down, the opinion is available here.

Analysis to follow.

In (sort of) related news, the Army CCA’s website is now accessible to the public.

I’ve been informed that CAAF is optimistic that its website will be restored tomorrow (the AFCCA’s site is on the same server and is also currently inaccessible).

CAAF decided the certified Air Force case of United States v. Williams, 75 M.J. 244, No. 16-0053/AF (CAAFlog case page) (link to slip op.) on Tuesday, May 3, 2016. Concluding that the Air Force Appellate Government Division’s successive motions for reconsideration by the Air Force Court of Criminal Appeals did not toll the 60-day deadline in CAAF’s rules for the filing of a certificate for review, CAAF dismisses the certificate for review as untimely filed.

Judge Stucky writes for a unanimous court.

A general court-martial composed of members with enlisted representation convicted Senior Airman Williams of rape, contrary to his pleas of not guilty. The approved sentence included confinement for two years, reduction to E-1, and a bad-conduct discharge. On appeal, however, the Air Force CCA reversed the conviction after finding that the military judge improperly admitted evidence of a prior alleged sexual offense under Military Rule of Evidence 413. The CCA’s issued its decision on June 19, 2015.

On July 20, 2015, the Government filed a motion for reconsideration with the CCA. That motion was denied four days later. The Government then filed a second motion for reconsideration on August 3, 2015, challenging the denial of the first motion and “asking the AFCCA ‘to reconsider … its order dated 24 July 2015.'” Slip op. at 2. The CCA denied the second motion on August 10, 2015. Almost two months after that – and 75 days after the first motion for reconsideration was denied – the Judge Advocate General of the Air Force certified the case to CAAF. Williams then moved to dismiss the certification on the basis that it was untimely.

Article 67 gives CAAF jurisdiction over three kinds of cases: Capital cases, cases that a Judge Advocate General orders sent to the court for review (known as certified cases), and cases in which the court grants review for good cause shown upon petition of the accused. Article 67 also sets a 60-day jurisdictional deadline for an accused’s petition for review, but no time limit for a JAG’s certification. However, CAAF’s rules (established pursuant to Article 144) set a 60-day non-jurisdictional deadline for certification by a JAG. Both the petition deadline and the certification deadline begin on the later of the date of the CCA’s decision or its action on a petition for reconsideration.

Writing for a unanimous court Judge Stucky finds that the Air Force JAG’s certification of Williams was untimely because the Government’s second reconsideration motion was not a petition for reconsideration of the substantive decision of the CCA, but rather was a petition for reconsideration of the CCA’s denial of the Government first request for reconsideration.

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