On Wednesday CAAF granted review in this Army case:

No. 20-0090/AR. U.S. v. Jesus D. Cardenas. CCA 20180416. 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 granted on the following issue:

WHETHER THE ARMY COURT, AFTER FINDING APPELLANT’S CONVICTIONS WERE MULTIPLICIOUS, ERRED IN PERMITTING THE GOVERNMENT TO CHOOSE WHICH OF THE APPELLANT’S CONVICTIONS TO DISMISS ON APPEAL.

Briefs will be filed under Rule 25.

The CCA’s decision is available here. Finding the appellant’s convictions of sexual assault and maltreatment are multiplicious (because they were based on the same underlying act), the CCA held:

Concluding that appellant’s conviction of maltreatment is multiplicious for findings with his conviction of sexual assault, we must set aside one of the convictions to remedy the error. The government has requested this court set aside and dismiss appellant’s conviction of maltreatment. In the past, our superior court has permitted the government to make such an election. See United States v. Palagar, 56 M.J. 294, 296-297 (C.A.A.F 2002); United States v. Frelix-Vann, 55 M.J. 329, 333 (C.A.A.F. 2001 ); and United States v. Cherukuri, 53 M.J. 68, 74 (C.A.A.F. 2000). Consistent with our superior court’s guidance, we grant the government’s request in our decretal paragraph.

Slip op. at 7 (emphasis added).

In this order, reproduced below, CAAF announces that the April oral arguments will be held in June:

By Order of the Court dated March 30, 2020, the five hearings previously scheduled for April 20-22 were postponed pending further Order of the Court.

Per Order of the Chief Judge, these cases will be called for hearing beginning on the June 2, 2020 date that has long been on the Court’s calendar. Wednesday, June 3 and Thursday, June 4 are now added as additional hearing dates for these cases.

Prior to rescheduling, the Court will entertain consent motions from the parties to forgo oral argument,if counsel for both sides wish the Court to decide the cases on brief, with said motions due no later than Monday, April 20, 2020. The Court may or may not grant the motion. In the absence of a joined motion dispensing with oral argument, counsel are advised that the pending cases of Watkins 19-0376/MC, Armendariz 19-0437/MC, Bergdahl 19-0406/AR, Reyes 19-0339/AR and Blackburn, 20-0071/AF will be setfor hearing June2, 3 and 4, 2020, by updated hearing notices pertaining to each case.

In the following order available here, CAAF postpones the oral arguments scheduled for April:

The United States Court of Appeals for the Armed Forces remains open, with internal procedures to keep the essential business of the Court running—while minimizing social contact.

In view of the extension of the federal COVID-19 pandemic social distancing guidelines to April 30, 2020, by order of the Chief Judge:

The hearings scheduled for 20, 21 and 22 April, 2020, are hereby postponed pending further Order of the Court.

This week at SCOTUS: The Solicitor General filed this brief in opposition to the cert. petition in Richards. Richards responded with this motion requesting a two-week delay of distribution of the petition for conference, to enable him to file a reply. The Court granted the motion. In other news, the petition in Kelly was denied.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on April 20, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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

This week at the NMCCA: The Navy-Marine Corps CCA postponed the oral argument in Hedgecock (noted last week) to a date to be determined.

CAAF decided the Army case of United States v. Turner, __ M.J. __, No. 19-0158/AR (CAAFlog case page) (link to slip op.), on Wednesday, March 25, 2020. Considering a specification of attempted murder that failed to expressly allege that the attempt was unlawful (a necessary term because military service involves lawful killing), a majority of the court reads the specification with maximum liberality because the defense waited until after findings to object, and affirms the conviction and the decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Judge Maggs, who dissents.

CAAF granted review to determine:

Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.

Specialist (E-4) Turner was charged with a specification that read:

that, Specialist Malcolm R. Turner, U.S. Army, did, at or near Clarksville, Tennessee, on or about 1 January 2015, attempt to kill with premeditation Specialist [C.SG.] by means of shooting her with a loaded firearm, causing grievous bodily injury.

The charge arose from a violent encounter involving Turner, his wife, and a the victim. Turner served with the victim in Korea, and Turner had an adulterous relationship with her that ended when she learned he was married. The victim later learned that she was pregnant, gave birth, and sought child support from Turner. In 2015, Turner and his wife drove from Colorado to Tennessee to confront the victim. During the confrontation, Turner shot the victim multiple times. He was ultimately convicted of attempted murder (the specification at issue), conspiracy to commit premeditated murder, maiming, and obstruction of justice, and sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The Army CCA reversed the obstruction conviction (as factually insufficient) and conditionally dismissed the maiming charge, but affirmed the other findings and affirmed the sentence.

During the court-martial, Turner’s defense counsel objected to the attempted murder specification as failing to state an offense. However, counsel did not do so until after the members found Turner guilty. CAAF does not explicitly say that the delay was for purely tactical reasons, but it does suggest as much with a footnote quoting the Ninth Circuit’s observation that “delay in raising the issue suggests a purely tactical motivation of incorporating a convenient ground of appeal in the event the jury verdict went against the defendants.” Slip op. at 9 n.7 (citation omitted). That’s problematic because CAAF’s precedent strongly favors earlier objections, even though the Rules for Courts-Martial do not require an earlier objection to the failure of a specification to state an offense (something Judge Maggs highlights in his dissenting opinion). Specifically, when a specification is challenged at trial, CAAF reads the specification narrowly; but when it is first challenged after trial, it is read with “maximum liberality.” Slip op. at 7.

The result in this case turns on the majority’s conclusion that the defense objection was made after trial, and so the maximum liberality standard applies and the conviction is affirmed. Judge Ohlson’s majority opinion does not explicitly say that an earlier objection would have led to a different result, but it strongly implies that. Judge Maggs’ dissenting opinion, however, is clear that the specification fails under a narrow reading:

I agree with the Court’s implication that apart from the “maximum liberality” standard, the specification fails to allege criminality either expressly or by necessary implication.

Diss. op. at 3. In other words, Turner’s conviction of attempted murder is based on a deficient specification, but the conviction is affirmed because Turner’s defense counsel waited until after findings to object.

Read more »

This week at SCOTUS: The Supreme Court postponed its March oral arguments, including the argument in Briggs (that was scheduled for March 23). The arguments have not yet been rescheduled.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on April 20, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

This week at the CGCCA: The Coast Guard CCA’s website 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 Wednesday, March 25, 2020 at 10 a.m. However, according to this order, the hearing is closed to the public at the request of the appellant because “counsel intends to discuss privileged contents of [the appellant’s] Rule for Courts-Martial 706 mental health examination.”

United States v. Hedgecock, No. 201800333

Issues:
I. Did the military judge abuse his discretion when he denied defense counsel’s motion to compel the convening authority to appoint Dr. Stephen Zieman, Ph.D., or an adequate substitute neuropsychologist, as an expert consultant to the Defense?

II. Military Rule of Evidence 409 prohibits the admission of evidence of furnishing, promising to pay, or offering to pay medical bills to prove liability for an injury. Was it plain error when the military judge allowed the Government to admit evidence that Appellant offered to pay J.A.W.’s medical expenses to prove Appellant’s “consciousness of guilt”?

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

United States v. Baas, No. 19-0377/MC (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Moore, No. 20-0119/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

The following notice appears on CAAF’s website:

Due to a broken network connection, 3/16/2020 audio hearing recordings for U.S. v. Prasad (19-0412/AF) and U.S. v. Rich (19-0425/AF) have been lost.

CAAF will hear oral argument in the certified Army case of United States v. Moore, No. 20-0119/AR (CAAFlog case page), on Tuesday, March 17, 2020, after the argument in Baas. The case is an interlocutory appeal by the prosecution of a military judge’s ruling that dismissed all of one specification and part of a second specification for violation of the statute of limitations based on a post-referral major change. The Judge Advocate General of the Army certified one issue to CAAF:

Did the army court err when, upon reconsideration, it determined that the 5-year statute of limitations barred the rehearing of the two sexual assault specifications?

Staff Sergeant (E-6) Moore was convicted, by a general court-martial composed of officer members, of two specifications of violating a no-contact order, one specification of assault consummated by a battery of his stepdaughter, and six specifications of sexually assaulting his stepdaughter. The panel sentenced Moore to confinement for 20 years, total forfeitures, reduction to E-1, and a dishonorable discharge. On review, in an opinion available here, the Army CCA reversed five of the six convictions of sexual assault because of a Hills error, but it affirmed one conviction because it found the evidence for that allegation to be overwhelming. The CCA then authorized a rehearing, and CAAF summarily affirmed. The CCA also observed that at any such rehearing, Moore’s affirmed conviction of sexual assault could properly be used as evidence of his propensity to commit the other five alleged offenses.

The case was then returned to the convening authority, who ordered a rehearing. Prior to that, however, Army prosecutors amended the specifications to change the nature of the alleged offense. The specifications (or at least the two specifications in issue at CAAF) alleged sexual assault by causing bodily harm, and the change was to the nature of that bodily harm. Before the change the bodily harm in each allegation consisted of the application of force; after the change the bodily harm was a nonconsensual sexual act.

Those changes ultimately led the military judge to find a violation of the statute of limitations, and the prosecution appeals that finding.

The Government Division’s argument focuses on Article 34(c), which permits changing a specification to make it “conform to the substance of the evidence” contained in an Article 32 report. Article 34(c) was the focus of CAAF’s decision last term in United States v. Stout, 79 M.J. 168 (C.A.A.F. Aug. 22, 2019) (CAAFlog case page), in which a majority of the court applied the statute to affirm modified specifications notwithstanding language in R.C.M. 603(d) that would have prohibited such changes. Stout was also a case involving a rehearing where the prosecution made significant changes to the specifications, and CAAF’s decision provides a clear exception that – at least in a case such as this – appears to swallow the rule against such changes:

Like this case, Stout involved amendments made prior to a referral to a rehearing to conform specifications with the evidence adduced at an Article 32, UCMJ, investigation held prior to the original trial. Id. at 168-170. Here, just as in Stout, Article 34(c), UCMJ, specifically authorized the amendments and did not require a new preferral. Therefore, because the government neither preferred anew nor had an obligation to do so, Article 43(b)(1), UCMJ, dictates that the statute of limitations remained tolled by the receipt of the preferred specifications by the SCMCA on December 11, 2013.

Gov’t Div. Br. at 21.

Moore’s brief argues that Article 34 is not relevant to the issue in this case.

Case Links:
ACCA opinion
ACCA opinion on reconsideration
Blog post: CAAF grants review
Appellant’s (Gov’t Div.) brief
Appellee’s brief
Appellant’s (Gov’t Div.) reply brief
Blog post: Argument preview

This week at SCOTUS: The Solicitor General filed this reply brief in Briggs on Friday. Additionally, the petitioner in McDonald filed this reply to the Solicitor General’s opposition to the cert. petition, and the petition was distributed for conference on March 27. Finally, the petition in Voorhees was also distributed for conference on March 27.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking five cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Monday, March 16, 2020, at 9:30 a.m.:

United States v. Prasad, No. 19-0412/AF (CAAFlog case page)

Issue: Whether the Air Force Court erred in its first review of Appellant’s case by affirming the findings of guilt for Specifications 1 and 3 of Charge 1 when it found prejudicial error as a result of a Hills violation.

Case Links:
AFCCA opinion
AFCCA opinion after sentence rehearing
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Rich, No. 19-0425/AF (CAAFlog case page)

Issues:
I. Did the Court of Criminal Appeals err when it found that mistake of fact as to consent is not a special defense “in issue” for the offense of sexual assault by inducing a belief by concealment that Appellant was someone else?

II. If mistake of fact was not a special defense “in issue,” did the military judge abuse his discretion by denying the defense request for an instruction on mistake of fact?

Case Links:
AFCCA opinion (78 M.J. 591)
AFCCA opinion on reconsideration (en banc) (79 M.J. 572)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Tuesday, March 17, 2020, at 9:30 a.m.:

United States v. Baas, No. 19-0377/MC (CAAFlog case page)

Issues:
I. Did admission of an allegedly positive Diatherix Laboratories test for gonorrhea without testimony at trial of any witness from Diatherix violate the Sixth Amendment confrontation clause?

II. Did the lower court abuse its discretion in admitting an alleged positive Diatherix test result for gonorrhea in a child’s rectal swab-where Diatherix failed to follow its own procedures and the result was of near zero probative value?

Case Links:
NMCCA oral argument audio
NMCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

Followed by:

United States v. Moore, No. 20-0119/AR (CAAFlog case page)

Issue: Did the army court err when, upon reconsideration, it determined that the 5-year statute of limitations barred the rehearing of the two sexual assault specifications?

Case Links:
ACCA opinion
ACCA opinion on reconsideration
Blog post: CAAF grants review
Appellant’s (Gov’t Div.) brief
Appellee’s brief
Appellant’s (Gov’t Div.) reply brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on March 25, 2020.

CAAF will hear oral argument in the Marine Corps case of United States v. Baas, No. 19-0377/MC (CAAFlog case page), on Tuesday, March 17, 2020, at 9:30 a.m. The court granted review of two issues involving the admission of a laboratory test result:

I. Did admission of an allegedly positive Diatherix Laboratories test for gonorrhea without testimony at trial of any witness from Diatherix violate the Sixth Amendment confrontation clause?

II. Did the lower court abuse its discretion in admitting an alleged positive Diatherix test result for gonorrhea in a child’s rectal swab-where Diatherix failed to follow its own procedures and the result was of near zero probative value?

Corporal (E-4) Baas was convicted of numerous offenses including rape of a child (his son, who was one year old at the time). The evidence supporting the rape conviction included a positive gonorrhea test of the child. Baas told military law enforcement that he had gonorrhea (a sexually-transmitted disease) and he encouraged them to test the child for it in the belief that the test would exonerate him. Swabs were taken from the child by a pediatrician and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. However, the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that more reliable tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The Navy Marine Corps CCA affirmed, concluding that the Diatherix lab report was nontestimonial (and so could be admitted without calling a witness from the laboratory) because the report was merely a business record of a test conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

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CAAF will hear oral argument in the Air Force case of United States v. Rich, No. 19-0425/AF (CAAFlog case page), on Monday, March 16, 2020, after the argument in Prasad. Two granted issues question whether the defense of mistake of fact as to consent applies to a charge of sexual assault by inducing a belief by any artifice, pretense, or concealment that the accused is another person, in violation of Article 120(b)(1)(D) (2012) (relocated to Article 120(b)(1)(C) (2019))):

I. Did the Court of Criminal Appeals err when it found that mistake of fact as to consent is not a special defense “in issue” for the offense of sexual assault by inducing a belief by concealment that Appellant was someone else?

II. If mistake of fact was not a special defense “in issue,” did the military judge abuse his discretion by denying the defense request for an instruction on mistake of fact?

The elements of sexual assault by inducing a belief by any artifice, pretense, or concealment that the accused is another person are: (1) that the accused committed a sexual act upon another person; and (2) that the accused did so by inducing a belief by any artifice, pretense, or concealment that the accused is another person. Senior Airman (E-4) Rich was charged with the offense after a sexual encounter with a female airman who was spending the night in Rich’s home with her boyfriend (also an airman). The woman testified that she awoke to a person removing her clothes and initiating sexual intercourse, and that she thought the person was her boyfriend. She called out her boyfriend’s name twice during the encounter but the person did not respond. It was not until the person kissed her that she realized it was Rich and not her boyfriend. She cried out, and Rich responded by stating that he was drunk and thought she was someone else (his fiancé).

A general court-martial composed of members convicted Rich of sexual assault by inducing a belief by concealment (acquitting him of by artifice or pretense). The members sentenced him to confinement for 60 days, reduction to E-2, a reprimand, and the mandatory minimum dishonorable discharge. The Air Force CCA issued two opinions in the case, both published. First, a three-judge panel issued this opinion (78 M.J. 591), reversing the conviction after concluding that the military judge erred in failing to instruct the members on the defense of mistake of fact. The Air Force Appellate Government Division then sought reconsideration, and the CCA sitting en banc granted reconsideration, vacated the panel’s decision, and split evenly (4-4) over whether the failure to give the instruction was error, in a second published decision available here (79 M.J. 572). As a result, the CCA en banc affirmed the conviction.

Read more »

CAAF will hear oral argument in the Air Force case of United States v. Prasad, No. 19-0412/AF (CAAFlog case page), on Monday, March 16, 2020, at 9:30 a.m. The court granted review of a single issue involving a Hills error:

Whether the Air Force Court erred in its first review of Appellant’s case by affirming the findings of guilt for Specifications 1 and 3 of Charge 1 when it found prejudicial error as a result of a Hills violation.

Airman First Class (E-3) Prasad was convicted of three sexual offenses involving two alleged victims, and the Air Force CCA issued two opinions in the case. In the first opinion (available here), a three-judge panel of the CCA reversed one of the convictions because the military judge improperly instructed the members that they could use charged offenses for propensity purposes (the Hills error). However, two of the three judges found the error harmless with respect to the other two convictions (both involving the same alleged victim). The panel then remanded the case with a rehearing authorized. The convening authority elected to conduct only a sentence rehearing, after which the case returned to the CCA for further review. Upon further review, a slightly different three-judge panel (consisting of two of the original three judges) declined to reconsider the first decision and affirmed the new sentence, in an opinion available here.

The granted issue questions whether the Hills error requires reversal of the remaining convictions. Put differently, if the evidence of guilt supporting those convictions is strong enough then the convictions will be affirmed despite the Hills error.

Prasad’s argument focuses on the standard of review in a situation (like this) involving constitutional error, characterizing “the Government’s case []as anything but overwhelming” and insisting that “but for the improper propensity evidence and erroneous instruction, the panel members, in considering only the evidence related to A1C KF, may have harbored reasonable doubt of Appellant’s guilt and found him not guilty.” App. Br. at 12.

The Government Division responds with the argument that the evidence supporting the affirmed convictions “was overwhelming” because:

In addition to the victim’s credible testimony, Appellant corroborated her version of events through a text message exchange that he had with her. The victim directly confronted Appellant about having “fingered her” even after he heard her say no and Appellant admitted to both hearing her say no and to digitally penetrating her after that expression of non-consent.

Gov’t Div. Br. at 6. The Government Division also argues that propensity evidence used to disprove the existence of mistake of fact as to consent is not improper:

Moreover, for Specifications 1 and 3 of Charge I, the only plausible defense was a mistake of fact defense. Given the text messages between Appellant and KF, the elements of penetration and consent were not in issue. The only real issue in controversy was whether Appellant had an honest and reasonable mistake of fact that KF consented to the sexual act and sexual contact. The panel members could not have considered propensity evidence in an improper way in this particular case. The only way in which they could have realistically considered the evidence of other sexual misconduct was to determine that Appellant had an “absence of mistake” which, in fact, would have been an appropriate, non-propensity use of the evidence. See United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019).

. . . At most, the members would have used evidence of other sexual offenses to discount Appellant’s mistake of fact defense, which is a lawful, nonpropensity use of the evidence. This further diminishes any possibility that erroneous propensity instruction prejudiced Appellant. However, as argued above, the evidence in this case already weighed so strongly against a mistake of fact, that the member did not even need to use to the other charged acts to tip the balance to find Appellant guilty.

Gov’t Div. Br. at 20-21. In Hyppolite (CAAFlog case page), a majority of CAAF found no error in a military judge’s Mil. R. Evid. 404(b) ruling allowing the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme.

Prasad replies to the Government’s argument by focusing on the trial counsel’s repeated use of the word propensity in closing argument. The trial counsel’s closing argument included the statement:

it’s propensity evidence. And that’s the lens through which you have to view this entire court. He has a propensity not to stop when someone says, no. Five women told him, no, and he kept going. [] The law realizes that people who engage in sexual offenses may have a propensity to commit that crime again and again and again what is what happened here.

Reply Br. at 5 (quoting record) (modification omission in original). And the statement:

you can consider the fact that he doesn’t listen. That he ignores, no.

Reply Br. at 5 (quoting record). Considering that, Prasad argues:

The trial counsel’s reliance on the word “propensity” belies the Government’s suggestion that this argument was no different than “an appropriate, non-propensity use of the evidence” under Mil. R. Evid. 404(b), pursuant to United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019) (Gov. Br. at 20-21). First, “propensity” is the complete opposite of “non-propensity.” Second, the panel members were not instructed to consider the evidence for an “appropriate, nonpropensity purpose.” Third, this argument reveals the Government’s true motive for using Mil. R. Evid. 404(b) with respect to charged misconduct in sexual assault cases—to admit evidence of and argue “propensity” through the back door of Mil. R. Evid. 404(b) because the front door of Mil. R. Evid. 413 has been firmly and permanently closed. The Government’s argument on this point is a red flag that should cause this Court to reconsider its opinion in Hyppolite.

Reply Br. at 6.

Case Links:
AFCCA opinion
AFCCA opinion after sentence rehearing
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Today CAAF issued this guidance:

Per the Court’s standing guidance, if the Office of Personnel Management (http://www.opm.gov) announces that federal offices in the Washington, DC, area are closed, the Court will also be closed. In that eventuality, pleadings due on any closure days will be considered timely if filed on the next day the Court is open.

Specifically in view of public health concerns and the current COVID-19 pandemic, if federal offices in Washington remain open, by order of the Chief Judge, the following guidance and order pertains:

The hearings scheduled for 16 and 17 March, 2020, will be held as scheduled. In accordance with our constitutional obligation to maintain open courts, the Court will not, absent exceptional circumstances, prevent anyone from entering the hearing. With that said, individuals who do not have a professional need to be present are requested to seriously consider whether the public interest would be better served by remaining away from the hearings. Consistent with past practice, and absent any unforeseen technical difficulty, the audio recording of these hearings will be posted to the Court’s website the same day.

(emphasis in original).

Audio of the recent oral argument at the Air Force CCA in United States v. Garcia, No. 2019-07, on February 26, 2020, is available on the CCA’s website (here) and on the CAAFlog oral argument audio podcast.