CAAF recently granted review in two Air Force cases.

First:

No. 19-0412/AF. U.S. v. Krishil S. Prasad. CCA 39003. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following 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 I WHEN IT FOUND PREJUDICIAL ERROR AS A RESULT OF A HILLS VIOLATION.

Briefs will be filed under Rule 25.

The appellant was convicted of three sexual offenses involving two alleged victims, and the Air Force CCA ultimately 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 (an error under United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (the #3 Military Justice Story of 2016)). But two of the three judges found the error harmless with respect to the other two convictions (both involving the same alleged victim). The CCA 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.

Second:

No. 19-0425/AF. U.S. v. Michael J. Rich. CCA 39224. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following 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?

Briefs will be filed under Rule 25.

The Air Force CCA issued two opinions in the case, both published. First, in 2018, a three-judge panel issued this opinion (78 M.J. 591), reversing the appellant’s conviction of sexual assault by false pretenses after concluding that the military judge erred in failing to instruct the members on the defense of mistake of fact. But the Air Force Appellate Government Division sought reconsideration, and the CCA sitting en banc granted it, vacated the panel’s decision, and then 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.

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