CAAF oral argument schedule for the September 2014 term originally included one more oral argument day, on June 9, 2015. However, Chief Judge Baker made a comment at the end of Tuesday’s oral arguments that implied that the court would not hear any more cases this term, and the court’s website no longer shows a June 9 date.

So it seems that the 2014 term’s oral argument calendar is complete. CAAF heard 36 37 (see note in comments) arguments this term. CAAF’s FY14 annual report shows how this number of arguments compares to prior years:

FY14 Oral Arguments Per Year

The court issued decisions in 18 of those. Here is a brief synopsis of the issues in the undecided 19 cases (listed in the order argued):

United States v. Katso, No. 14-5008/AF (CAAFlog case page) (argued Oct. 7, 2014): A certified Air Force case, Katso questions whether a Government DNA expert – who did not conduct the DNA testing at issue in the case – improperly repeated testimonial hearsay over defense objection and in violation of the Confrontation Clause.

United States v. Akbar, No. 13-7001/AR (CAAFlog case page) (argued Nov. 18, 2014): CAAF’s review of Sergeant Akbar’s death sentence for his attack on his fellow soldiers in Kuwait in 2003, that killed two and wounds 14 others, is mandatory. If CAAF affirms the sentence, Akbar will remain one of only six military death row inmates: Gray, Loving, Akbar, Witt, Hennis, and Hasan.

United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page) (argued Jan. 27, 2015): This certified interlocutory Army case questions a trial-stage ruling by 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.

United States v. Arness, No. 14-8014/AF (CAAFlog case page) (argued Feb. 10, 2015): CAAF will determine if the Courts of Criminal Appeals have jurisdiction to grant extraordinary writs in a cases where those courts do not have jurisdiction under Article 66, and a judge advocate general does not make a referral under Article 69.

United States v. Blouin, No. 14-0656/AR (CAAFlog case page) (argued Feb. 10, 2015): The latest in a string of cases involving child pornography, Blouin questions the providence of pleas of guilty to wrongful possession of such images, as defined by 18 U.S.C. § 2256(8), on the fairly narrow basis of the different definitions given in 18 U.S.C. § 2256(8)(A) and (B).

United States v. Carter, No. 14-0792/AR (CAAFlog case page) (argued Feb. 11, 2015): CAAF will determine whether an accused who receives judicial credit under Article 13 for unlawful pretrial punishment may also introduce evidence during the sentencing phase about that unlawful punishment in order to lessen the adjudged sentence.

United States v. Castillo, No. 14-0724/NA (CAAFlog case page) (argued Feb. 11, 2015): The Navy has long required that its members report offenses punishable under the UCMJ that are known to them. But one such requirement was invalidated in United States v. Serianne, 68 M.J. 580 (N-M. Ct. Crim. App. 2009), aff’d, 69 M.J. 8 (C.A.A.F. 2010). Castillo is a challenge to the Navy’s self-reporting requirement established after (and in response to) Serianne.

United States v. Simmermacher, No. 14-0744/NA (CAAFlog case page) (argued Feb. 25, 2015): The appellant was convicted of wrongful use of a controlled substance based on a positive urinalysis, but her urine sample was destroyed (pursuant to lab protocols) before trial because the Government failed to ensure its preservation. CAAF will determine whether this deprived the appellant of evidence essential to a fair trial.

United States v. Woods, No. 14-0783/NA (CAAFlog case page) (argued Feb. 25, 2015): The last of four members bias cases argued at CAAF this term (the others are McFadden, Castillo, and Peters), Woods questions the military judge’s denial of a defense challenge for cause of a member who wrote on a questionnaire that “the enforcement of you are guilty until proven innocent (just the opposite as in the civilian sector) is essential,” and that “you come into the service knowing that you will be held to this higher standards [sic] and give up your civil rights.”

United States v. Ward, No. 15-0059/NA (CAAFlog case page) (argued Mar. 17, 2015): Ward questions whether the improper exclusion of members by a convening authority on the basis of rank is harmless. A similar question is presented in the undecided Sullivan case, and in two trailer cases (Hernandez and Suazo-Lopez).

United States v. Nettles, No. 14-0754/AF (CAAFlog case page) (argued Mar. 17, 2015): Captain Nettles asserts that the Air Force permanently lost personal jurisdiction to try him by court-martial when his mandatory discharge from the reserves (for twice-failing in selection for promotion to Major) was effected.

United States v. Plant, No. 15-0011/AF (CAAFlog case page) (argued Apr. 14, 2015): CAAF will determine whether a conviction of child endangerment by culpable negligence is legally sufficient when it is based on the excessive use of alcohol by the primary caregiver of a sleeping infant.

United States v. Keefauver, No. 15-0029/AR (CAAFlog case page) (argued Apr. 15, 2015): Keefauver questions the validity of a protective sweep search. CAAF might also rule on whether an appellate court may consider evidence offered during the trial itself when reviewing a military judge’s pretrial ruling on a motion to suppress.

United States v. Murphy, No. 14-0767/AR (CAAFlog case page) (argued Apr. 28, 2015): The maximum punishments for wrongful sale of military property (in violation of Article 108) and larceny (in violation of Article 121) are enhanced when the object of the offenses is an explosive. In a published en banc, but non-unanimous, decision, the Army CCA held that 5.56 mm ammunition constitutes an explosive for the purpose of the sentence enhancement. CAAF will decide if the Army court was right.

United States v. Stellato, No. 15-0315/AR (CAAFlog case page) (argued Apr. 28, 2015): This Government interlocutory appeal under Article 62 challenges a military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations. CAAF’s decision will likely go far beyond the appropriateness of the military judge’s remedy, and has the potential to redefine a military prosecutor’s discovery obligations.

United States v. Schloff, No. 15-0294/AR (CAAFlog case page) (argued Apr. 28, 2015): Technically an interlocutory case, Schloff questions whether the statutory definition of sexual contact that took effect in 2012 includes touching with an object (a stethoscope in particular, but the accused’s counsel asserted at argument that an object could also include a dodgeball). The members entered findings of guilt and adjudged a sentence before the military judge ruled that the specification failed to state an offense. The Government appealed, the Army CCA reversed, and then CAAF granted review.

United States v. McIntosh, No. 14-0685/AF (CAAFlog case page) (argued Apr. 29, 2015): CAAF is reviewing whether the appellant received ineffective assistance of counsel when his defense team deliberately chose not to introduce evidence from sexual assault examinations that showed a lack of injury to the child victim.

United States v. Sullivan, No. 15-0186/CG (CAAFlog case page) (argued May 12, 2015): The only Coast Guard case argued at CAAF this term, Sullivan involves facts that are unique to the trial by court-martial of a senior Coast Guard Captain (O-6) for wrongful use of cocaine, but issues of judicial disqualification and member selection that have the potential to make significant law.

United States v. Quick, No. 15-0347/MC (CAAFlog case page) (argued May 12, 2015): This certified case has the potential to upend military law, as the Government asserts that the Courts of Criminal Appeals have no authority to order sentence-only rehearings, despite longstanding precedent dating to 1959 that says otherwise.

2 Responses to “What remains undecided at CAAF this term”

  1. The Silver Fox says:

    I don’t see McIntosh on here.

  2. Zachary D Spilman says:

    Thank you The Silver Fox! I failed to update my tracking spreadsheet with the McIntosh oral argument, and then used that spreadsheet to write this post, leading to the omission. 

    I have updated the post to reflect that in United States v. McIntosh, No. 14-0685/AF (CAAFlog case page) (argued Apr. 29, 2015), CAAF is reviewing whether the appellant received ineffective assistance of counsel when his defense team deliberately chose not to introduce evidence from sexual assault examinations that showed a lack of injury to the child victim.

    I’ve also updated the post to reflect that CAAF heard 37 arguments this term.