We’re fallen woefully behind in our coverage of published CCA opinions.  That’s one of the perils of a blog run by volunteers, most of whom are litigators in their day jobs.  While we never synopsized a host of recent published CCA opinions, including several ACCA opinions released in December, I’ll note the two most recent published CCA opinions.

NMCCA’s opinion in United States v. Lee, __ M.J. __, No.  200600543 (N-M. Ct. Crim. App. Feb. 21, 2013), first considers whether NMCCA retains jurisdiction where the sentence upon remand from an earlier NMCCA decision was subjurisdictional.  A similar issue recently arose in a couple of AFCCA cases.  Yes, holds NMCCA (as did AFCCA).

Once this court acquires jurisdiction, “no action by a lower court or convening authority will diminish it.”  United States v. Johnson III, 45 M.J. 88, 90 (C.A.A.F. 1996) (quoting United States v. Boudreaux, 35 M.J. 291, 295 (C.M.A. 1992)). Our appellate jurisdiction granted by Article 66 applies to, “appeal, new trial, sentence rehearing, and new review and action by the convening authority.” United States v. Davis, 63 M.J. 171, 177 (C.A.A.F. 2006). “Once jurisdiction is acquired pursuant to Article 66, the Court of Military Review has a statutory duty to review the case to completion unless the accused has waived his right to appeal or withdrawn it.” Boudreaux v. United States Navy-Marine Corps Court of Military Review, 28 M.J. 181, 182 (C.M.A. 1989).

Lee featured the odd wrinkle that upon remand, and pursuant to a PTA, a new charge was substituted for the original charges, all of which were withdrawn and dismissed.  The court observed that “the CA referred the revised additional charge and specifications to the same court-martial as the charges for which we authorized a rehearing.  . . .  This did not create a new trial on new charges before a new court-martial.”

Having determined that it possessed jurisdiction, NMCCA affirmed the findings and sentence, rejecting a due process challenge to the length of the appellate proceedings.  Chief Judge Perlak wrote for a unanimous panel.

[Disclosure:  I was counsel on an amicus brief during an earlier appeal in Lee.]

Also this week, ACCA issued a published opinion in United States v. Baxter, __ M.J. __, No. ARMY 20100487 (A. Ct. Crim. App. Feb. 20, 2013).  ACCA held that the facts of the case did not raise a reasonable and honest mistake of fact instruction as to the charged sex offenses.  If the alleged victim’s testimony was credited, the acts were nonconsensual.  If the accused’s account was credited the acts were consensual.  Neither scenario presented the possibility that the accused misperceived the alleged victim’s willingness to engage in the charged acts.  Judge Moran wrote for a unanimous panel.

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