During the oral argument at CAAF on Monday 12 December in United States v. Watson, No. 11-0523/MC, the court considered whether the appellant’s plea to fraudulent enlistment was provident.
The appellant’s counsel discussed two different fraudulent enlistment rules: (1) the absolute-bar-to-enlistment rule; and (2) the initially-disqualified, need-a-waiver rule. While he argued that the appellant’s plea was improvident under either rule, because he set up a matter inconsistent with the plea, he urged the court to adopt the absolute-bar-to-enlistment rule. This rule would require a prosecution for fraudulent enlistment involve a misrepresentation of a fact so disqualifying that, were it disclosed, the applicant would be absolutely-barred from enlistment. In the words of the appellant’s counsel at the beginning of the argument:
The very purpose of the statute is not simply to punish those who misrepresented themselves during the enlistment process, but rather to punish those who receive pay and allowances … from the government that they otherwise were not entitled to receive – would never have received under any circumstances. Argument audio at 2:00.
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CAAF heard oral argument in United States v. King, No. 11-0583/NA, on Monday 12 December. The case questions whether indecent language amounts to indecent conduct in violation of Article 120(k) (“indecent acts”).
The appellant’s counsel began his argument by setting out two reasons why the court should answer the issue in the negative and find that the specification at issue failed to state an offense. First, he argued that the definitions of “indecent conduct” and “indecent liberty” make this plan. Second, he argued that legislative history reveals that the offense of indecent acts was never intended to criminalize indecent language. Both of these arguments boil down to a parsing of the language of the text of Article 120(t)(11), which states:
The term “indecent liberty” means indecent conduct, but physical conduct is not required. . . . An indecent liberty may consist of communication of indecent language so long as the communication is made in the physical presence of the child.
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CAAF heard oral argument in United States v. Fry, No. 11-5003/NA, on 3 November at Scott Air Force Base. The case deals with the validity of an enlistment contract where the enlistee is subject to a state-court ordered limited conservatorship.
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Oral argument at CAAF in United States v. Hayes, No. 11-5003/NA, occurred on 2 November at Washington University School of Law. The case focuses on the availability of a duress defense when an accused is faced with a person threatening to commit suicide. The case was certified to CAAF by the Navy after the N-MCCA set aside the findings, which were entered in accordance with the pleas of the accused. The facts of the case are discussed in the argument preview.
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Tuesday’s oral argument at CAAF in United States v. Campbell, No. 11-0403/AF, addressed the following issue:
I. Whether the military judge erred, after finding all three charges arose out of the same transaction and were part of the same impulse, by merging them for sentencing rather than dismissing them.
The appellant, an emergency room nurse manager, obtained Vicodin and Percocet by false pretenses on approximately 28 occasions, obtaining the drugs from a medication dispensing machine in the ER pharmacy. He was charged with a total of three specifications of violations of Article 107, 112a, and 121, UCMJ, each on divers occasions, based on his false assertions about doctors orders, his theft of the medication from the government, and his corresponding unlawful possession thereof. He was sentenced to a dismissal.
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Yesterday’s oral argument at CAAF in United States v. Winckelmann, reviewed when an accused takes the substantial step required to prove attempted enticement of a minor in violation of 18 U.S.C. § 2422(b).
The argument was fact-intensive. Our own Mary T. Hall, arguing for the appellant, opened with a list of things that the appellant did not do (that, perhaps, one would expect him to have done) in the course of attempting to entice a minor. Then, after about 20 minutes of argument on how the facts of this case are insufficient to prove the offense, she closed with citation to precedent that states that “not every communication with a minor about sex is a violation of § 2422(b).”
Counsel for the government focused on the things the appellant did do during the online chat with the minor, and early in the government’s argument (and a full week before Halloween), the appellant’s actions were characterized as a Christmas tree, with the different parts of the chat taking the place of ornaments. The court also focused on the meaning of “mere preparation” and “a substantial step,” at one point questioning whether it was necessary for the trial military judge to instruct the members on the meaning of these terms (they were not so instructed).
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Yesterday’s oral argument at CAAF in United States v. Kreutzer, Jr., reviewed the issue of what additional sentence credit, if any, should be applied when an accused remains on death row after his sentence to death is set-aside.
The argument focused on the lack of explicit findings of fact in the record establishing the presence or absence of intent to punish the appellant by keeping him on death row after the sentence was set-aside, and the standard of review to be applied. The court seemed to embrace the government’s position that they review only the trial military judge’s decision denying additional credit (beyond the administrative credit for the time-served) for an abuse of discretion, and not conduct a de novo review of the issue of unlawful pretrial punishment. In part, this seemed to be a matter of necessity, because the record doesn’t appear to give the court enough hard facts about the conditions on death row to undertake a more rigorous analysis.
The argument also included some discussion that I took to indicate the possibility that the defense can create a rebuttable presumption of violation of Article 13, UCMJ. For instance, at 23:00 the court quizzed the government counsel on why it isn’t intuitive that pre-trial confinement on death row is more rigorous than required. The government responded that the conditions the appellant faced on death row (as preserved in the record) weren’t significantly different from the conditions he faced after he was removed from death row, and that the court is not now in a position to second-guess that later determination.
However, there seemed to be reluctance at the notion that judicially-ordered credit is, per se, required in this case. There was also some incredulity expressed at the need for 10-for-1 credit for the 280 days on death row.