A recent unpublished and per curiam decision by a three-judge panel of the Navy-Marine Corps CCA raises a serious concern: A military judge’s use of a prosecutors’ case tracking system.

On 9 October 2014, the appellant signed a PTA, agreeing to plead guilty to four specifications of possession and one specification of receipt of child pornography before a military judge. In return, the CA agreed to suspend any awarded confinement in excess of two years. While preparing for trial, the judge logged into Case Management System (CMS), the Navy’s online court-martial management database. Looking for confirmation of the appellant’s arraignment, the judge accessed a tab where court-martial milestone dates are recorded. While scanning that screen, the judge inadvertently stumbled upon a data entry he recognized as a PTA term capping confinement. The judge exited CMS and notified trial and defense counsel of the accidental disclosure via email.

United States v. Torres, No. 201500117, slip op. at 2 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.) (emphases added). The appellant in Torres pleaded guilty to numerous offenses pursuant to a pretrial agreement, and then on appeal asserted that his trial defense counsel was ineffective for failing to thoroughly investigate the military judge’s actions or move for recusal. The CCA rejects the claim, finding neither deficient performance nor prejudice. But the opinion notes that:

the military judge invited voir dire from both counsel. TDC began his voir dire by apologizing that he had not seen the data entry at issue, because he did not have access to CMS. The record contains no indication that TDC requested access to CMS or a screen shot or printout of the entry. The judge recalled the CMS entry being five or six words announcing that parties had reached a PTA and the maximum sentence.

Slip op. at 2-3 (emphasis added).

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The Military Officers Association of America is hosting a Military to Civilian Success for Legal Professionals event on December 15, 2015, at the Ritz-Carlton, Pentagon City, 1250 S Hayes St, Arlington VA 22202:

While the broader economic recovery is underway, a lagging job market and excess real estate plague many metropolitan areas. Big law and government relations firms are adjusting to less work and constrained government spending. Accordingly, many once dependable job markets are sputtering. Judge Advocates preparing to depart military service need a focused program to expand their network and accelerate their transition from military service to civilian career success.

The workshop will focus on key aspects of a successful transition for military leaders, including:

  • An expert panel of successfully transitioned legal professionals from a range of practice areas.
  • Connections with legal recruiters.
  • Networking strategies to accelerate your job search.
  • Understanding the cultural and psychological aspects of career transition.

JAGs in Transition Seminar costs: $125
JAA Members: $99

Additionally, the Navy is hiring a Highly Qualified Expert for its Defense Counsel Assistance Program. The position announcement is available here.

In United States v. Benjamin, No. 20130092 (A. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), a three-judge panel of the Army CCA finds that the appellant – a retirement-eligible Chief Warrant Office 3 who was convicted of forcible rape and adultery, and sentenced to confinement for ten years and total forfeitures but not a dismissal – was prejudiced by his military defense counsel’s (apparent) failure to properly submit a post-trial request for resignation for the good of the service (RFGOS) that could have resulted in the appellant’s release from post-trial confinement.

The appellant “contends he was denied effective assistance of counsel during the post-trial portion of his case because his trial defense counsel failed to properly submit a request for resignation to the convening authority following his conviction.” Slip op. at 2.

The CCA grants relief without making an explicit finding deficient performance by counsel:

Without reaching the ultimate issue of ineffective assistance of counsel, we conclude post-trial error and a colorable showing of possible prejudice have been sufficiently established. As a result, we set aside the action of the convening authority to provide appellant the requested opportunity to submit a resignation request to the Secretary of the Army through the convening authority.

Slip op. at 2. Interestingly, the CCA’s opinion notes that the appellant’s defense counsel did request “that the ‘Convening Authority disapprove the findings and sentence adjudged at the general court martial . . . and instead grant CW3 Wendell Benjamin’s request for resignation, conditioned on the disapproval of the findings and sentence.’” Slip op. at 3 (quoting clemency request). However,

The clemency submission did not specifically reference either AR 600-8-24 or AR 635-200 nor was the request for resignation submitted on the form or format required by controlling regulations. The convening authority did not formally recommend approval or disapproval of the “resignation request” nor was anything forwarded to the Secretary of the Army.

Slip op. at 3. The CCA concludes its decision by explaining that it “solely address[es] the appellant’s right to formally and properly submit a post-trial RFGOS request through the convening authority to the Secretary of the Army.” Slip op. at 6.

This week at SCOTUS: The motion to proceed as a veteran in Arness was denied by the Supreme Court. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: The next scheduled oral argument at  CAAF is on November 17, 2015.

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

Monday, November 9, 2015, at 10 a.m.: United States v. Randall, No. 20130452

I. Whether the military judge abused his discretion by failing to suppress Specialist Randall’s admissions because these admissions were made as a result of a coercive environment and Captain [MP] failed to read SPC Randall his Article 31 [UCMJ] rights. The military judge also failed to apply the proper objective standard of whether the questioning could reasonably be considered pursuant to an official law enforcement or disciplinary purpose.
II. Whether the evidence is legally and factually insufficient to support the findings that Specialist Randall unlawfully struck PWR and ELC on divers occasions.

Friday, November 13, 2015, at 2 p.m.: United State v. Ingle, No. 20121022

I. Whether the evidence is factually and legally insufficient to support the findings of guilty, except the findings of guilty of Charge III and the Specifications thereunder and Specification 2 of Charge IV.
II. Whether the approved sentence to confinement for 20 years is inappropriately severe.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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 November 10, 2015, at 10 a.m. The oral argument will occur at the University of North Carolina, School of Law, Chapel Hill, NC:

United States v. Johnston

Case summary: A panel of members sitting as a general court-martial convicted the appellant, contrary to his pleas, of four specifications of committing a lewd act upon a child and one specification of indecent exposure in violation of Articles 120b and 120c, UCMJ, 10 U.S.C. §§ 920b and 920c. The members sentenced the appellant to reduction to E-1, forfeiture of all pay and allowances, confinement for eight months, and a badconduct discharge. The convening authority approved the sentence as adjudged.

I. Whether the proscription of indecent exposure under Article 120c(c), UCMJ, is void for vagueness.
II. Whether Article 120c(c) violates the First Amendment overbreadth doctrine.


In a Government interlocutory appeal in United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015) (link to slip op.), a three-judge panel of the Army CCA reverses a military judge’s ruling that suppressed DNA evidence in a sexual assault case. Specifically:

The alleged victim, SLN, reported that appellee raped her. [The appellee] denied any and all sexual contact with SLN. Genetic material was recovered from the underwear SLN wore the evening in question. The Kansas City Police Crime Laboratory (KCPCL) conducted deoxyribonucleic acid (DNA) testing on that genetic material. After testing and analysis, the KCPCL reported that [the appellee] could not be excluded as a potential minor contributor to the tested sample. Furthermore, the KCPCL is of the opinion that approximately 1 in 220 unrelated individuals in the general population would be a match to the minor contributor’s profile. [The appellee] was charged with the rape of, and other sexual crimes against, SLN.

Slip op. at 1-2. Additional notable facts include that the genetic material tested was “an exceedingly small quantity,” slip op. at 5, and that “according to KCPCL, the two other males present in SLN’s home on the night in question were both excluded after comparison to the DNA profile.” Slip op. at 2 n.3.

The defense moved to suppress any evidence about the DNA analysis on the basis that it “does not meet the requirements for expert testimony established by Military Rule of Evidence 702.” Slip op. at 2 (marks omitted). The military judge granted the motion, concluding in part that the formula that the laboratory used to draw conclusions about the DNA was not reliable, that the ensuing battle of the experts would create a trial-within-a-trial, and that:

9. “Using the 1 in 220 statistic, in a population as small as Weston, Missouri [the location of the alleged assault –ZDS] (1,641 in the 2010 census (citation omitted)), only 7 people could be contributors to the genetic material in Mrs. [SLN]’s underwear.”

10. Because the “Government is sure to point out that of those seven possible people, only one was in Mrs. [SLN]’s house, . . . the probative value is substantially outweighed by the danger of unfair prejudice, misleading the panel members, and waste of time.”

Slip op. at 6 (quoting military judge’s ruling) (all marks other than my notation are in original).

The Government appealed and the CCA reverses by concluding that some of the judge’s findings of fact (regarding the procedure used by the laboratory) were clearly erroneous and also that his conclusions of law were erroneous.
The CCA’s opinion might reach the right result, however it will likely have unintended consequences that will fuel some (unfair) criticisms of the military justice system.

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The Army CCA issued two interesting decisions on petitions for extraordinary relief in the Bergdahl case (complete coverage here). The first decision involves a petition by Sergeant Bergdahl (last discussed here) seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture. The CCA’s decision denying the writ states that:

Although not phrased as such, the relief petitioner seeks is for this court to countermand an order given by a military commander, in a circumstance where there is not yet—and may never be—a court-martial. This would be a broad view of this court’s jurisdiction.

. . .

Viewing [ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997)] in light of [Clinton v. Goldsmith, 526 U.S. 529 (1999)], we reject the invitation to extend the jurisdiction of this court under the All Writs Act to the pre-referral matter raised in this writ.

Bergdahl v. Burke & the United States, No. 20150624, slip op. at 3 (A. Ct. Crim. App. Oct. 8, 2015) (link to slip op.). The CCA also concluded that even if it had jurisdiction, the petition failed to establish any right to relief.

The second decision involves a similar petition from Bergdahl and multiple media organizations, and the CCA again finds that it lacks jurisdiction:

The jurisdiction of this court to issue process under the All Writs Act is limited to issues having “the potential to directly affect the findings and sentence.” LRM v. Kastenberg, 72 M.J. 364, 368 (2013); 28 U.S.C. § 1651. This court does not have jurisdiction to oversee the administration of military justice generally. Clinton v. Goldsmith, 526 U.S. 529, 534 (1999). Petitioner has not demonstrated that the release of documents to the public, prior to any decision on whether this case should be referred to trial, has the potential to directly affect the findings and sentence.

Hearst Newspapers, LLC, et al., & Bergdahl v. Abrams, Burke, Visger & the United States, No. 20150652, slip op. at 2 (A. Ct. Crim. App. Oct. 14, 2015) (link to slip op.).

Writ-appeal petitions of both decisions have been filed at CAAF.

In a published opinion in United States v. Catano, No. 2015-04, __ M.J. __ (A.F. Ct. Crim. App. Oct. 14, 2015) (link to slip op.), a three-judge panel of the Air Force CCA denies a Government appeal of a military judge’s ruling that suppressed the accused’s statements to his first sergeant, additional statements made at a hospital, and the results of a probable cause urinalysis, because of the provisions of Air Force Instruction 44-121 that provide protections for an Airman who “voluntarily disclose[s] evidence of personal drug use or possession to the unit commander, first sergeant, substance use/misuse evaluator, or a military medical professional.” The accused in Catano made statement that included the admission: “I’m addicted to heroin.” Slip op. at 7.

The CCA finds that the military judge did not abuse her discretion in suppressing the evidence based upon the protections of AFI 44-121. Notably, the CCA’s decision includes consideration of the fact that after the military judge issued her initial ruling and the prosecution gave notice of its intent to appeal, the military judge:

issued a 6-page supplemental ruling that incorporated the entirety of her original ruling and added several findings of fact and conclusions of law. Her ultimate conclusion was unchanged.

Slip op. at 2. The Government asked the CCA to strike the supplemental ruling, asserting that “the automatic stay provision related to government appeals divested the military judge of jurisdiction over the court-martial once the notice of appeal was filed.” Slip op. at 2. But the CCA denied the motion and in its opinion it finds that a “military trial judge may sua sponte reconsider a ruling or order after notice of an Article 62, UCMJ, appeal and before the record of proceedings is authenticated.” Slip op. at 5.

Notably, in reaching this conclusion, the CCA describes the Government’s position in very harsh terms:

The Government expresses concern that the military judge amended her initial ruling in an effort “to strengthen her ruling with additional facts and analysis so that she would not be overturned.” Whether the changes found in the supplemental ruling favor the Government or Appellee is not the measure by which we determine the authority of the military judge to reconsider a prior ruling. We doubt the Government would object if the military judge had reconsidered her ruling and ruled in favor of the Government.

Slip op. at 6 (emphasis added).

In United States v. Riggins, No. 15-0334/MC (CAAFlog case page), CAAF is considering whether the offense of assault consummated by a battery in violation of Article 128 is a lesser included offense of the offenses of sexual assault in violation of Article 120(b) (2012) and abusive sexual contact in violation of Article 120(d) (2012).

Such a conviction was at issue in United States v. Bridenstine, No. 201500041 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), as the appellant was convicted contrary to his pleas of not guilty of assault consummated by a battery as a lesser included offense of sexual assault of a person who was incapable of consenting due to impairment by a drug, intoxicant, or similar substance. The general court-martial – composed of members with enlisted representation – sentenced the appellant to confinement for six months, reduction to E-1, forfeiture of $765.00 pay per month for 6 months, and a bad-conduct discharge (six months is the maximum authorized confinement for the offense).

But a three-judge panel of the NMCCA finds the evidence factually insufficient to support the conviction, and reverses the conviction. The facts of the case are somewhat bizarre, but the panel’s conclusion is straightforward:

Although there was evidence SR CW was intoxicated, we find no compelling evidence that she was so drunk as to prevent her from expressing her lack of consent to the touching (here, the sexual activity with the appellant). Every Government witness who saw her drinking that evening (Cpl DR, Capt BP, and Capt CM) testified that SR CW was neither slurring her words nor stumbling, that she was engaging in conversation, and that they had no concerns about her ability to understand what was going on around her. Upon leaving the last bar it appears she walked, on her own, some significant distance “to the other side of town.” Sgt BB, another Government witness, testified that SR CW was happy, talking, laughing, not slurring her words, and that she had her arm around Cpl MA in an affectionate manner. Thus, the evidence indicates that her presence in the hotel room with the appellant and Cpl MA was both knowing and voluntary. SR CW’s testimony also indicates she was sufficiently alert to be fully aware of her exact location in the room and that during  the sexual activity she was supporting her own weight while balancing in a difficult body position. Further, SR CW states that during the sexual encounter she was awake, the lights were on, and although she testified the appellant was “making” her perform oral sex, no evidence was presented that she demonstrated to the appellant or Cpl MA, in any manner, at any time, that she did not consent to any part of the encounter. Moreover, no evidence was presented to indicate SR CW was, through any means, prevented from manifesting her lack of consent or objection to the situation. To the contrary, we note SR CW spent the remainder of the night with Cpl MA, one of her alleged attackers, sleeping with her head on his chest.

Recognizing the high burden the Government carries in a criminal prosecution, and after considering all the evidence and pleadings in this case, we find the Government did not demonstrate the complainant’s lack of consent to the touching beyond a reasonable doubt and therefore failed to prove the offense’s second element beyond a reasonable doubt.

Slip op. at 7-8.

Significant military justice event this week: A meeting of the Judicial Proceedings Panel will be held on Friday, November 6, 2015, from 9:00 a.m. to 4:45 p.m, at The Holiday Inn Arlington at Ballston, 4610 N. Fairfax Drive, Arlington, Virginia 22203. Additional details are available here.

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

This week at CAAF: The next scheduled oral argument at  CAAF is on November 17, 2015.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 9, 2015.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

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 November 5, 2015:

United States v. Newlan

Case summary: An officer and enlisted members panel, sitting as a general court-martial, convicted the Appellant, contrary to his pleas, of one specification of sexual assault and one specification of adultery in violation of Articles 120 and 134, UCMJ, 10 USC §§ 920, 934 (2012). The members sentenced the Appellant to reduction to pay grade E-1, confinement for one year, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, and, except for the bad-conduct discharge, order the sentence executed.

I. A military judge has an obligation to provide an accurate, complete and intelligible statement of the law when instructing members. Did the military judge fail to do so by providing the members with the definition of “impairment” found in article 111, UCMJ and by failing to further instruct the members on the legal interplay between intoxication and LCpl H’s ability to consent? If so, what, if any, prejudice to the appellant resulted?
II. A member on the appellant’s panel made a post-trial statement that may have indicated he assumed the appellant was guilty prior to hearing evidence. Was the appellant’s panel tainted by actual or implied bias?

Our choice for the #4 military justice story of 2012 was: Mental health and disease.

Numerous mental health issues captured military justice headlines that year, including CAAF’s review of the court-martial of Marine Private Caldwell, who pleaded guilty to wrongful self-injury without intent to avoid service (in violation of Article 134) for intentionally opening his wrists with a razor blade in what an en banc Navy-Marine Corps Court of Criminal Appeals alternatively called “a bona fide suicide attempt” and “a leadership challenge.” United States v. Caldwell, 70 M.J. 630, 633 (N-M. Ct. Crim. App. 2011). CAAF reversed Private Caldwell’s guilty plea in 2013, concluding that the plea inquiry failed to establish that his suicide attempt was to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces. United States v. Caldwell, 72 M.J. 137 (C.A.A.F. 2013) (CAAFlog case page).

Yesterday, National Public Radio’s All Things Considered released a lengthy report about the Army’s use of the administrative separation process in cases involving soldiers seeking treatment for a range of apparently severe mental health crises. The report is: Missed Treatment: Soldiers With Mental Health Issues Dismissed For ‘Misconduct.’

The report includes this sad observation:

The cases of the 10 soldiers we investigated raise a question: Why would commanders kick out soldiers for misconduct, instead of giving them more intensive treatment or a medical retirement on the grounds that they have persistent mental health problems? Sources both inside and outside Fort Carson suggested one possible answer: It takes less time and money to get rid of problem soldiers on the grounds of misconduct.

Readers may recall the Wright case, which was an Air Force sexual assault prosecution that was dismissed last year by Air Force Lieutenant General Craig Franklin. After General Franklin dismissed the charges, authority over the case was transferred to Air Force District of Washington in Maryland, new charges were preferred, a second Article 32 pretrial investigation was conducted, and the charges were referred to trial. Litigation of defense claims of unlawful command influence followed, and the trial judge eventually abated the proceedings after the Government asserted an attorney-client privilege over documents sought by the defense in connection with those claims. The Government appealed that abatement and the AFCCA reversed, finding that the military judge’s findings were incomplete.

I discussed the AFCCA’s decision in this post. I summarized our prior coverage of the case in this post.

In a story available here, the Air Force Times reports that Airman Wright was just acquitted of all charges at trial:

An airman has been found not guilty of sexual assault after his case was transferred from Europe to Washington following a three-star general’s initial decision not to proceed with a court-martial.

A military panel of three officers and four enlisted airmen exonerated Senior Airman Brandon Wright on Wednesday evening, said Maj. Joel Harper, a spokesman for the Air Force District of Washington.

Wright had been accused of aggravated sexual assault in connection with a July 2012 incident while he was stationed at Aviano Air Base, Italy. Wright had also been charged with rape, but the prosecution later withdrew that charge.

Update: As noted in the comments, Stars & Stripes also has a report about the case, available here.

Audio of this morning’s oral argument in United States v. LaBella, No.15-0413/AF (CAAFlog case page) is available at the following link: Oral argument audio.

Today CAAF specified two issues for review in the Marine Corps case of United States v. Sterling, No. 15-0510/MC (previously discussed here and here):

I. Did appellant establish that her conduct in displaying signs referencing biblical passages in her shared workplace constituted an exercise of religion within the meaning of the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (2012), as amended? If so, did the actions of her superior noncommissioned officer in ordering her to take the signs down, and in removing them when she did not, constitute a substantial burden on appellant’s exercise of religion within the meaning of the Act? If so, were these actions in furtherance of a compelling government interest and the least restrictive means of furthering that interest?

II. Did appellant’s superior noncommissioned officer have a valid military purpose in ordering appellant to remove signs referencing biblical passages from her shared workplace?

Tomorrow, CAAF will hear oral argument in the Air Force case of United States v. LaBella, No.15-0413/AF (CAAFlog case page). The court specified an issue related to its jurisdiction over the appellant’s case. I previewed the argument in this post.

The major theme in LaBella is the ability of a court of criminal appeals to extend CAAF’s jurisdiction over a case by allowing a tardy motion for reconsideration. Under current caselaw (that the appellant in LaBella seeks to reverse), the 60-day time period for filing a petition for review at CAAF is jurisdictional, prohibiting late petitions. Caselaw also provides that the 60-day clock doesn’t start until a CCA addresses any motions for reconsideration. But in LaBella, the motion for reconsideration was months late to the CCA. Nevertheless, the CCA allowed the motion, permitting the appellant in LaBella to move for reconsideration and (perhaps) extending the deadline to petition CAAF to 60-days after the CCA resolved the motion.

But the minor theme in LaBella is why the appellant filed a tardy motion for reconsideration. It was, in reality, the Government’s fault. The appellant’s detailed military appellate defense counsel – Government attorneys provided to the appellant at no cost and without regard to his ability to hire his own counsel, in accordance with Article 70, UCMJ – failed to petition CAAF as the appellant desired. It’s unclear from the briefs how such a screw-up occurred (particularly since the AFCCA’s two opinions in the case identify a total of six field grade Air Force attorneys as appellate counsel for the appellant), but it happened. And the Government seemingly does not dispute that it happened or that the appellant himself is entirely blameless.

With this background, I received a copy of an amicus brief filed by the Air Force Appellate Government [bad typo!] Defense Division in support of the appellant’s argument to reverse CAAF’s caselaw that the 60-day time limit is jurisdictional. The brief is not (yet) on CAAF’s website, but it’s available here. Additionally, the Division’s motion to file the brief is available here, and it states the Division’s interest as including the fact that:

A client who waits more than 60 days has passed from notice or constructive notice of a Court of Criminal Appeals (CCA) to alert his or her Division lawyer of their desire to petition this Court currently has almost no recourse.

Mot. for Leave to File Amicus Br. at 1-2. The Division’s position invokes a hypothetical appellant who is not blameless – not exactly the facts of LaBella.

Surprisingly, the Government opposed the Division’s motion to file the brief. The Government’s opposition is available here, and its opening pages assert:

Appellant presented facts to both the Air Force Court of Criminal Appeals, which accepted his factual averment, and this Court demonstrating that his former counsel failed to file a timely petition for review with this Court contrary to Appellant’s request. The United States has not presented and does not possess evidence that challenges this factual predicate. Therefore, the matter presently before this Court does not involve a justiciable case or controversy between the adverse parties involving a “tardy client,” and Amicus’ proposed brief is irrelevant to resolution of the specified issue. If Amicus desires to make this argument, it should do so in a case where those facts are actually present. As such, the Court should deny the motion for leave to file the irrelevant amicus curiae brief.

Gov’t Ans. to Mot. for Leave to File Amicus Br. at 3. The Government’s response functionally proves that the appellant is blameless, and that it is his Government-furnished attorneys who deserve the blame for the jurisdictional conundrum facing CAAF.

CAAF permitted the motion to file the amicus brief over the Government’s opposition.

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

United States v. Captain, No. 15-0172/MC (CAAFlog case page): Oral argument audio.

United States v. Riggins, No. 15-0334/MC (CAAFlog case page): Oral argument audio.