September 2013 Term of Court

Term Stats:

Cases heard at oral argument this term: 32
Argued cases decided by authored decision: 32
Argued cases decided per curiam or by summary disposition: 0

September 2013 Term Mid-Term Review
• 2013 End o’ Term Stats – Part I (overview)
• 2013 End o’ Term Stats – Part II (dissents)
• 2013 End o’ Term Stats – Part III (individual judge stats)
• 2013 End o’ Term Stats – Part IV (civilian counsel and the appellate defense divisions)
• 2013 End o’ Term Stats – Part V (certified and specified issues, and the CCAs)


Cases with Authored Decisions (chronological by date of decision):

United States v. Mead, 72 M.J. 479 (C.A.A.F. Nov. 21, 2013) (CAAFlog case page): CAAF unanimously rejected the appellant’s claim to additional sentence credit for prior nonjudicial punishment.

United States v. Merritt, 72 M.J. 483 (C.A.A.F. Dec. 5, 2013) (CAAFlog case page): CAAF concluded that the appellant was not on notice that merely viewing child pornography could be prosecuted under Article 134, reversing the trial judge and the AFCCA, and dismissing the charge.

United States v. Warner, 73 M.J. 1 (C.A.A.F. Dec. 6, 2013) (CAAFlog case page): In a 4-1 decision, CAAF concluded that the appellant was not on notice that possession of images that depict minors “as sexual objects or in a sexually suggestive way” (such images are often called child erotica) was punishable under Article 134.

United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. Dec. 18, 2013) (CAAFlog case page): Finding that the Army CCA did not abuse its discretion when it decided to reassess the appellant’s sentence rather than remand the case for a sentence rehearing, CAAF affirmed the CCA and denied further relief to the appellant (whose original sentence included confinement for 31 years, but after two reassessments that term of confinement was reduced to eleven years). The court also identified four factors to guide a CCA in determining whether it can reassess a sentence.

United States v. Payne, 73 M.J. 19 (C.A.A.F. Jan. 6, 2014) (CAAFlog case page): A unanimous CAAF found that the military judge improperly instructed the members on the offense of attempted persuasion of a minor to create child pornography, but that the error was harmless beyond a reasonable doubt.

United States v. Passut, 73 M.J. 27 (C.A.A.F. Jan. 8, 2014) (CAAFlog case page): Affirming the appellant’s pleas of guilty to making false official statements, CAAF concluded that a civilian AAFES employee was performing a military function when the appellant lied in order to get checks cashed.

United States v. Knapp, 73 M.J. 33 (C.A.A.F. Jan. 15, 2014) (CAAFlog case page): CAAF was unanimous in its conclusion that the admission of human lie detector evidence against the appellant was obvious error. However, the court was sharply divided in its conclusion that the error was prejudicial to the appellant, narrowly reversing the decision of the Air Force CCA and setting aside the findings of guilty while authorizing a rehearing.

United States v. Moss, 73 M.J. 64 (C.A.A.F. Jan. 27, 2014) (CAAFlog case page): A sharply divided CAAF declined to address any of the granted issues in the case (which questioned whether the appellant received ineffective assistance from her military defense counsel when he gave an unsworn statement on her behalf during her trial in absentia). Instead, a narrow majority found that the appellant did not personally authorize the appeal, and it vacated the grant of review.

United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page): In this interlocutory Government appeal, a nearly-unanimous CAAF affirmed the military judge’s ruling that suppressed the results of a search of the accused’s cell phone. CAAF found that the Government failed to meet its burden to justify application of the third-party search doctrine, and the court also rejected the container analogy for electronic searches.

United States v. Hines, 73 M.J. 119 (C.A.A.F. Feb. 24, 2014) (CAAFlog case page): A unanimous CAAF reversed the decision of the Army CCA that found that the fraudulent receipt of a housing allowance constitutes a separate larceny for each month. The court expressly adopted the reasoning of the 5th Circuit Court of Appeals in United States v. Billingslea, 603 F.2d 515, 520 (5th Cir. 1979), and it affirmed the appellee’s guilty pleas to larceny specifications that aggregated the allowances over multiple months.

United States v. Finch, 73 M.J. 144 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page): A divided CAAF rejected the appellant’s claim that the maximum authorized confinement for his child pornography offenses totaled just eight months, and also found no substantial basis to question the providence of the appellant’s pleas of guilty to possession and distribution of child pornography in violation of clauses 1 and 2 of Article 134.

United States v. Hornback, 73 M.J. 155 (C.A.A.F. Mar. 6, 2014) (CAAFlog case page): Unanimously finding significant prosecutorial misconduct during the trial, CAAF was sharply divided in concluding that the misconduct was harmless.

United States v. Lee, 73 M.J. 166 (C.A.A.F. Mar. 7, 2014) (CAAFlog case page): In a unanimous decision in this long-running court-martial, CAAF held that the appellant’s unconditional pleas of guilty at a rehearing waived any speedy appellate review issue, and that the remaining post-trial delays were not significant enough to constitute a due process violation.

United States v. Gutierrez, 73 M.J. 172 (C.A.A.F. Mar. 20, 2014) (CAAFlog case page): Concluding that the members could independently consider the evidence supporting a rape charge (of which the appellant was acquitted) in convicting the appellant of stalking, a unanimous CAAF finds the appellant’s stalking conviction to be legally sufficient.

United States v. Kearns, 73 M.J. 177 (C.A.A.F. Mar. 21, 2014) (CAAFlog case page): Writing for a unanimous CAAF, Judge’s Ohlson’s first authored opinion held that the appellant’s conviction for transportation of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2423(a), is legally sufficient.

United States v. Danylo, 73 M.J. 177 (C.A.A.F. Mar. 24, 2014) (CAAFlog case page): A divided CAAF concluded that the delays in this case did not rise to the level of a violation of the appellant’s Sixth Amendment right to a speedy trial.

United States v. Talkington, 73 M.J. 212 (C.A.A.F. Apr. 7, 2014) (CAAFlog case page): Holding that “sex offender registration is a collateral consequence of the conviction alone, not the sentence,” slip op. at 2, CAAF affirmed the military judge’s instruction to the members that they could disregard the appellant’s discussion of sex offender registration in his unsworn statement during the sentencing phase of the court-martial.

United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page): Finding that Congress did not give the Secretary of Defense the authority to appoint a civilian as an appellate military judge, a unanimous CAAF concluded that the Secretary’s action appointing to the Air Force Court of Criminal Appeals one Mr. Soybel (a civilian litigation attorney employed by the Air Force who is also a retired Air Force judge advocate who served as an appellate military judge while on active duty), rather than recalling him to active duty to return to the CCA, was invalid.

United States v. Frey, 73 M.J. 245 (C.A.A.F. May 19, 2014) (CAAFlog case page): A unanimous CAAF found error in the trial counsel’s sentencing argument to the members to “think what we know, common sense, ways of the world, about child molesters.” Slip op. at 10. But the court split 4-1 to find the error harmless, affirming the sentence and the decision of the Air Force CCA.

United States v. Davis, 73 M.J. 268 (C.A.A.F. May 23, 2014) (CAAFlog case page): A unanimous CAAF found that that the military judge’s failure to instruct on the defense of defense of property was harmless beyond a reasonable doubt.

United States v. Paul, 73 M.J. 274 (C.A.A.F. May 29, 2014) (CAAFlog case page): A unanimous CAAF reversed the Air Force CCA’s decision that took judicial notice of the fact that 3,4-methylenedioxymethamphetamine (Ecstasy) is a controlled substance. CAAF concluded that “while a CCA might generally take judicial notice of an undisputed fact or question of domestic law that is important to the resolution of an appellate issue, it cannot take judicial notice of facts necessary to establish an element of the offense.” Slip op. at 15.

United States v. Cimball Sharpton, 73 M.J. 299 (C.A.A.F. Jun. 13, 2014) (CAAFlog case page): CAAF affirmed the published opinion of the Air Force CCA that found the appellant’s conviction of larceny from the Air Force, by misusing her Government Purchase Card (GPC) to purchase various items for personal use, to be legally sufficient. The court rejected the appellant’s argument that that the victim of the larceny was not the Air Force but was some other party (either the bank or the merchants).

United States v. Flesher, 73 M.J. 303 (C.A.A.F. Jul. 8, 2014) (CAAFlog case page): A fractured court concluded that the military judge erred when he permitted the expert testimony of a former sexual assault response coordinator (SARC), and that the Government failed to show that this error was harmless, reversing the decision of the Army CCA and the appellant’s conviction for aggravated sexual assault.

United States v. Elespuru, 73 M.J. 326 (C.A.A.F. Jul. 15, 2014) (CAAFlog case page): A nearly-unanimous court found that the appellant knowingly waived his multiplicity claim. Nevertheless, the court dismissed one of the offenses at issue; not for multiplicity, but instead because the Government made it clear that the offense was charged in the alternative.

United States v. Treat, 73 M.J. 331 (C.A.A.F. Jul. 16, 2014) (CAAFlog case page): A plurality of the court held that the military judge’s finding of guilty by exceptions and substitutions constituted a material variance but that the variance was not fatal because it did not prejudice the appellant.

United States v. Jones, 73 M.J. 357 (C.A.A.F. Jul. 21, 2014) (CAAFlog case page): A unanimous CAAF abrogated the subjective prong of the two-part Duga test for whether an Article 31(b) rights warning is required, replacing it with an objective test. The court then applied that test to the facts of the case and determined that the military judge’s ruling admitting that appellant’s confession was not clearly erroneous, affirming the conviction and the decision of the Army CCA.

United States v. Leahr, 73 M.J. 364 (C.A.A.F. Jul. 25, 2014) (CAAFlog case page): A divided court found that the appellant’s regulatory speedy trial right was not violated in this case because the charges were dismissed and re-preferred, resetting the 120-day speedy trial clock. Additionally, the court found no improper reason behind the dismissal.

United States v. Moon, 73 M.J. 382 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page): A divided court found two substantial bases in law and fact to question the appellant’s plea of guilty to wrongful possession of images of nude minors and persons appearing to be nude minors, in violation of Article 134, and set aside the plea.

United States v. Davenport, 73 M.J. 373 (C.A.A.F. Aug. 11, 2014) (CAAFlog case page): A majority of the court found that the total omission of the testimony of a witness from the trial transcript is a substantial omission that renders the transcript nonverbatim. As a result, Rule for Courts-Martial 1103(f) applies and it was error for the Army CCA to affirm the sentence. CAAF reversed the CCA and remanded the case for the convening authority to take action consistent with R.C.M. 1103(f).

United States v. McPherson, 73 M.J. 393 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page): CAAF held that Article 12 does apply to service members confined in civilian facilities within the United States, but also that a service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. The court rejected this appellant’s Article 12 claim because he failed to so exhaust his administrative remedies.

United States v. Wilson, 73 M.J. 404 (C.A.A.F. Aug. 21, 2014) (CAAFlog case page): In this companion case to McPherson, CAAF and echoed the holdings of McPherson that Article 12 applies to service members confined in civilian facilities within the United States and that service member must exhaust all administrative remedies prior to seeking judicial relief for a violation of Article 12. CAAF concluded that Article 12 was not violated in this case because the appellant was confined alone.

United States v. MacDonald, 73 M.J. 426 (C.A.A.F. Aug. 27, 2014) (CAAFlog case page): CAAF unanimously held that the military judge’s failure to give an involuntary intoxication instruction regarding Appellant’s use of the smoking-cessation drug Chantix was error that was not harmless, reversing the decision of the Army CCA that affirmed the appellant’s conviction for the premeditated murder of a fellow soldier by repeatedly stabbing him with a knife while he slept for which, along with, other offenses, the appellant was sentenced to confinement for life without the possibility of parole.

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