September 2014 Term of Court

Term Stats:

Cases heard at oral argument this term: 37
Argued cases decided by authored decision: 37
Argued cases decided per curiam or by summary disposition: 0

• Mid-Term Review: What remains undecided at CAAF this term
• End o’ Term Stats – Part I (overview)
• End o’ Term Stats – Part II (dissents)
• End o’ Term Stats – Part III (individual judge stats)
• End o’ Term Stats – Part IV (civilian counsel and the appellate defense divisions)
• 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. Vargas, 74 M.J. 1 (C.A.A.F. Dec. 8, 2014) (CAAFlog case page): A military judge denied the Government a brief continuance during trial. The Government appealed under Article 62. The NMCCA granted the appeal, but a four-judge majority of CAAF reversed, holding that the military judge did not exclude evidence (a statutory prerequisite to a Government appeal under Article 62).

United States v. Gilbreath, 74 M.J. 11 (C.A.A.F. Dec. 18, 2014) (CAAFlog case page): A unanimous CAAF concluded that Article 31(b) applies to members of the Individual Ready Reserve.

United States v. Phillips, 74 M.J. 20 (C.A.A.F. Jan. 6, 2015) (CAAFlog case page): Reversing a half-century old precedent that premised Article 90 liability on a commissioned officer giving an order with the full authority of his office, thereby lifting it above the common ruck, a unanimous CAAF restricted the application of the ultimate offense doctrine.

United States v. Piren, 74 M.J. 24 (C.A.A.F. Jan 15, 2015) (CAAFlog case page): CAAF unanimously held that when the appellant testified in his own defense, he opened the door to cross-examination about statements that were suppressed (because the questioner failed to advise him of his rights).

United States v. Peters, 74 M.J. 31 (C.A.A.F. Feb. 12, 2015) (CAAFlog case page): A case about member bias based on the professional relationship between a member and the trial counsel. In a 3-2 decision, CAAF  emphasized that a military judge should err on the side of granting a challenge for cause. The majority concluded that the relationship in this case rose to the level of implied bias requiring reversal. The dissenters each wrote separately, emphasizing largely pragmatic concerns with the majority’s analysis.

United States v. Castillo, 74 M.J. 39 (C.A.A.F. Feb. 12, 2015) (CAAFlog case page): Castillo was something of a companion case to Peters. However, CAAF reached the opposite result, holding that the members’ relationships with the trial counsel did not exceed the norm in a way that impacted the perception of fairness. The dissenters in Peters concurred with the result in Castillo.

United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. Feb. 23, 2015) (CAAFlog case page): Appellant was convicted of aggravated assault by a means likely to produce death or grievous bodily harm for engaging in sexual activity without disclosing his HIV-positive diagnosis to his partners. CAAF reversed in a unanimous decision, finding that the evidence presented at trial failed to prove that transmission of HIV was likely.

United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page): Interpreting the 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART”) Guidelines promulgated by the Attorney General of the United States, CAAF unanimously affirmed appellant’s conviction for failure to register as a sex offender (for a pre-service sexual offense conviction).

United States v. McFadden, 74 M.J. 87 (C.A.A.F. Mar. 3, 2015) (CAAFlog case page): A sharply divided CAAF held that the military judge did not err in denying the appellant’s motion for a mistrial, or in failing to sua sponte excuse a member for cause, after the member equated the appellant’s invocation of her 31(b) right to remain silent to lying by omission.

United States v. Jones, 74 M.J. 95 (C.A.A.F. Mar. 11, 2015) (CAAFlog case page): CAAF unanimously rejected application of the de facto officer doctrine to the attempted appointment of a civilian to the Air Force Court of Criminal Appeals. Jones is a sequel to the 2013 term’s blockbuster decision in United States v. Janssen, 73 M.J. 221 (C.A.A.F. Apr. 15, 2014) (CAAFlog case page), where CAAF found the appointment invalid.

United States v. Morita, 74 M.J. 116 (C.A.A.F. Mar. 16, 2014) (CAAFlog case page): A certified case about the existence of subject-matter jurisdiction over offenses committed by a reservist, CAAF unanimously rejected the Government’s assertion that a reservist can establish such jurisdiction by forging orders to active duty.

United States v. Buford, 74 M.J. 98 (C.A.A.F. Mar. 24, 2015) (CAAFlog case page): In this interlocutory case, a divided CAAF held that the military judge wrongly concluded that an active duty Air Force Security Forces member was acting as a Government agent when he collected evidence related to the case.

United States v. Piolunek, 74 M.J. 107 (C.A.A.F. Mar. 26, 2015) (CAAFlog case page): Bluntly acknowledging that it erred in its decision in United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012) (CAAFlog case page), CAAF reversed Barberi and highlighted the difference between a case involving an unconstitutional statute or legal theory, and one involving only a failure of proof.

United States v. Bennitt, 74 M.J. 125 (C.A.A.F. Apr. 2, 2015) (CAAFlog case page). Having previously reversed the appellant’s conviction for involuntary manslaughter (United States v. Bennitt, 72 M.J. 266 (C.A.A.F. 2013) (CAAFlog case page)), CAAF reviewed the Army CCA’s decision that re-affirmed the original sentence. In its decision, the CCA concluded that the fatality was proper aggravation evidence. However, CAAF reversed in a 4-1 decision, holding that that the CCA’s conclusion was improperly based on a legal theory that was not presented at trial.

United States v. Olson, 74 M.J. 132 (C.A.A.F. Apr. 2, 2015) (CAAFlog case page): A functionally-unanimous court concluded that the appellant gave valid, voluntary consent to a search of her home.

United States v. Adams, 74 M.J. 137 (C.A.A.F. Apr. 27, 2015) (CAAFlog case page): A significant decision about the corroboration rule, a sharply divided CAAF reversed the appellant’s conviction for larceny after concluding that his confession was improperly admitted because the essential facts that were admitted in the confession were not corroborated by independent evidence.

United States v. Norman, 74 M.J. 144 (C.A.A.F. Apr. 29, 2015) (CAAFlog case page): CAAF unanimously held that the military judge erred in admitting lay opinion testimony about the service discrediting nature of appellant’s offense, but that his conviction for a violation of Article 134 is nevertheless legally sufficient because of other evidence in the record that may have been considered by the members (even though the trial counsel didn’t argue that evidence).

United States v. Torres, 74 M.J. 154 (C.A.A.F. May 12, 2015) (CAAFlog case page): A unanimous CAAF held that the military judge erred in instructing the members on the defense of lack of mental responsibility when the appellant asserted the defense of automatism (in that that his act of choking his wife with his hands was involuntary because he had suffered a seizure). However, the court split 3-2 to find the error harmless. In dicta, the majority opined that automatism may negate the actus reus of a criminal offense.

United States v. Castillo, 74 M.J. 160 (C.A.A.F. May 18, 2015) (CAAFlog case page): A unanimous CAAF upheld the Navy’s self-reporting requirement that was re-written in direct response to to CAAF’s decision in United States v. Serianne, 69 M.J. 8 (C.A.A.F. 2010).

United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. May 28, 2015) (CAAFlog case page): In this certified interlocutory case, CAAF unanimously affirmed the trial-stage ruling of a military judge that stuck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. With a concurring opinion from one judge, CAAF considered and applied the Jencks Act (18 U.S.C. § 3500) and the corollary Rule for Courts-Martial 914.

United States v. Simmermacher, 74 M.J. 196 (C.A.A.F. Jun. 8, 2015) (CAAFlog case page): Holding that the appellant’s urine sample was of such central importance that it was essential to a fair trial, that there was no adequate substitute for the sample after it was destroyed by the Government, and that the appellant was blameless in its destruction, a unanimous CAAF applied R.C.M. 703(f)(2) and reversed the appellant’s conviction for wrongful use of cocaine.

United States v. Carter, 74 M.J. 204 (C.A.A.F. Jun. 10, 2015) (CAAFlog case page): Finding that there is no per se rule against an accused presenting evidence of unlawful pretrial punishment as mitigation evidence during the sentencing phase of a court-martial – even after the accused receives judicial credit for the same unlawful punishment – CAAF nevertheless held that the military judge did not abuse her discretion when she prevented the appellant from introducing such evidence to the members in this case.

United States v. Ward, 74 M.J. 225 (C.A.A.F. Jun. 11, 2015) (CAAFlog case page): Reconciling United States v. Kirkland, 53 M.J. 22 (C.A.A.F. 2000), and United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008), CAAF held that “an accused must be provided both a fair panel (Bartlett) and the appearance of a fair panel (Kirkland),” and then unanimously affirmed the NMCCA’s finding of harmlessness in the improper exclusion of members from the appellant’s court-martial panel on the basis of rank.

United States v. Keefauver, 74 M.J. 230 (C.A.A.F. Jun. 12, 2015) (CAAFlog case page): Extensively analyzing the requirements for a protective sweep, and holding that such sweeps are permissible outside of arrest situations, a unanimous CAAF found that the Government did not even attempt to meet the requirements for a sweep in this case, and so the court held that the sweep of the appellant’s on-base home was invalid.

United States v. Woods, 74 M.J. 238 (C.A.A.F. Jun. 18, 2015) (CAAFlog case page): CAAF unanimously concluded that the military judge erred in denying the appellant’s challenge of a member who initially believed that the military employs a guilty-until-proven-innocent standard. With four judges finding implied bias, and the fifth finding actual bias, CAAF reversed the decision of the NMCCA and the appellant’s conviction.

United States v. Blouin, 74 M.J. 247 (C.A.A.F. Jun. 25, 2015) (CAAFlog case page): Sharply divided, CAAF narrowly concluded that the appellant could not have understood how the child pornography laws applied to the facts of his case (that involved non-nude images of minors), and so the majority reversed the appellant’s pleas of guilty to wrongful possession of child pornography and the published decision of the Army CCA that affirmed those pleas. But the dissenters asserted that “it should not be this hard to plead guilty to possessing child pornography.”

United States v. Katso, 74 M.J. 273 (C.A.A.F. Jun. 30, 2015) (CAAFlog case page): In this certified case CAAF held that the testimony of a Government DNA expert – who did not conduct the DNA testing at issue in the case – did not violate the appellee’s constitutional right to confront the witnesses against him, reversing the published decision of the Air Force CCA and remanding the case for further proceedings.

United States v. Nettles, 74 M.J. 289 (C.A.A.F. Jul 6, 2015) (CAAFlog case page): Declining to apply to reservists not on active duty the general requirement of physical delivery of a discharge certificate, a unanimous CAAF concluded that the appellant was validly discharged on the effective date of his self-executing discharge orders and was not subject to trial by court-martial, despite the fact that his command attempted to retain him in a military status pending trial.

United States v. McIntosh, 74 M.J. 294 (C.A.A.F. Jul. 8, 2015) (CAAFlog case page): CAAF unanimously rejected the appellant’s claim of ineffective assistance of counsel, finding that there was a tactical reason for the appellant’s defense team to not seek the admission of sexual assault examination reports.

United States v. Murphy, 74 M.J. 302 (C.A.A.F. Jul. 8, 2015) (CAAFlog case page): Holding that ammunition is an explosive as the term is defined in the Manual for Courts-Martial, CAAF affirmed the appellant’s pleas of guilty to larceny and conspiracy to sell military 5.56mm ammunition with the aggravating factor that the ammunition was an explosive.

United States v. Plant, 74 M.J. 297 (C.A.A.F. Jul. 15, 2015) (CAAFlog case page): Taking a narrow view of the facts of the case based on the wording of the specification and the findings at trial, and holding that it “may not examine” the uncharged circumstances of the charged offense of child endangerment, a sharply divided CAAF found the evidence legally insufficient to support the appellant’s conviction.

United States v. Schloff, 74 M.J. 312 (C.A.A.F. Jul 16, 2015) (CAAFlog case page): A sharply divided CAAF concluded that sexual contact, as defined by Article 120(g)(2) (2012), includes both body-to-body contact and object-to-body contact.

United States v. Quick, 74 M.J. 332 (C.A.A.F. Aug. 11, 2015) (CAAFlog case page): A divided CAAF rejects a Government challenge to longstanding precedent that permits a court of criminal appeals to order a rehearing on only the sentence adjudged by a court-martial. Holding that the Government failed to justify reversing this precedent, CAAF affirms the decision of the NMCCA that ordered a sentence-only rehearing.

United States v. Akbar, 74 M.J. 364 (C.A.A.F. Aug 19, 2015) (CAAFlog case page): CAAF narrowly affirms Sergeant Akbar’s death sentence for his attack on his fellow soldiers in Kuwait in 2003. Akbar is one of only six military death row inmates: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

United States v. Sullivan, 74 M.J. 448 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page): Finding harmless error in the convening authority’s categorical exclusion of flag officers from the pool of potential members, and that the military judge’s extensive personal and professional relationships with the court-martial participants does not raise an appearance of bias, CAAF affirms the general court-martial drug conviction of a senior Coast Guard Captain (O-6), with 27 years of service at the time of trial.

United States v. Arness, 74 M.J. 441 (C.A.A.F. Aug. 19, 2015) (CAAFlog case page): CAAF finds that a CCA’s jurisdiction under Article 69(d) is conditional upon JAG referral, meaning that the Air Force CCA did not have jurisdiction to consider this appellant’s petition for extraordinary relief.

United States v. Stellato, 74 M.J. 473 (C.A.A.F. Aug. 20., 2015) (CAAFlog case page): In a decision that has the potential to redefine a military prosecutor’s discovery obligations, CAAF finds significant flaws in the way the trial counsel handled discovery in this interlocutory case involving the alleged sexual assault of a child, and the court affirms the pretrial ruling that dismissed the charges with prejudice.

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