CAAFlog » CAAF Docket

Last term, in Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR (CAAFlog case page), Major Hasan – the Fort Hood shooter and one of four current residents of the military’s death row – asked CAAF to grant him a writ of mandamus ordering all of the judges of the Army CCA to recuse themselves from his case.

The asserted basis for the mass recusal was that the Deputy Judge Advocate General of the Army (DJAG), Major General Risch, who evaluates the Chief Judge of the Army CCA, had previous involvement in the case as the Fort Hood SJA. CAAF heard oral argument on the petition on March 27, 2019, and then summarily denied it six days later, on April 2, ruling:

In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the [All Writs Act].

Two weeks ago Hasan filed two new writ petitions, and yesterday CAAF granted one in part, disqualifying one ACCA judge from the case:

No. 20-0009/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (recusal of judges), it is ordered that the petition is granted as to Judge Walker and denied as to Judge Brookhart without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

No. 20-0010/AR. Nidal M. Hasan v. ACCA. CCA 20130781. On consideration of the petition for extraordinary relief (appointment of a chief judge), it is ordered that the petition is denied without prejudice to Petitioner’s right to raise the matters asserted in the normal course of appellate review.

Yesterday’s daily journal contains this summary disposition:

No. 19-0345/AF. U.S. v. Humphrey Daniels III. CCA 39407. On consideration of the issue certified by the Judge Advocate General of the Air Force, __ M.J. __ (C.A.A.F. Jun. 19, 2019), Appellant’s brief, and Appellant’s motion for a summary disposition, motion to suspend this Court’s rules, and motion to dispense with the requirement to file a joint appendix all filed June 19, 2019, and in light of United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018), it is ordered that the motions are granted, and the certified issue is answered in the affirmative, and the decision of the United States Air Force Court of Criminal Appeals is therefore affirmed.

The Air Force CCA’s opinion is available here.

Last month CAAF ordered the Army Government Appellate Division to file a response to a Grostefon issue questioning whether a military judge should have recused himself (noted here). Last week the court ordered the Army CCA to consider the issue:

No. 19-0212/AR. U.S. v. Patrick B. Teer. CCA 20170601. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, Appellee’s motion to remand, and Appellant’s motion to supplement the record, it is ordered that said petition is granted on the following personally asserted issue:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO RECUSE HIMSELF BASED ON CIRCUMSTANCES THAT, IF KNOWN AT THE TIME OF APPELLANT’S COURT-MARTIAL, WOULD HAVE PROVIDED REASONS TO REASONABLY QUESTION HIS IMPARTIALITY.

That the motion to remand is granted, that the motion to supplement the record is denied without prejudice to raising the matter before the United States Army Court of Criminal Appeals, and the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for a new review and consideration of the aforementioned issue under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012) shall apply.

CAAF also summarily affirmed in two cases that were trailers to United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page), in which the court unanimously held that the mens rea (mental state) for the offense of sexual assault by causing bodily harm in violation of Article 120(b)(1)(B) (2012), where the bodily harm is a nonconsensual sexual act, is only the general intent to commit the sexual act:

No. 19-0051/AR. U.S. v. Korey B. Kangich. CCA 20170170. On consideration of the granted issue, 78 M.J. 304 (C.A.A.F. 2019), the judgment of the United States Army Court of Criminal Appeals, United States v. Kangich, No. 20170170 (A. Ct. Crim. App. Sep 27, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that because the affirmative defense of mistake of fact as to consent applies only if the mistake is reasonable as well as honestly held, the military judge did not err. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of the granted issue, __M.J. __ (C.A.A.F. 2019), the opinion of the United States Army Court of Criminal Appeals, United States v. Davis, No. 20160069 (A. Ct. Crim. App. Aug. 16, 2018) (unpublished), and the opinion of this Court in United States v. McDonald, __ M.J. __ (C.A.A.F. Apr. 17, 2019), we conclude that the military judge did not err in instructing the court members that for the affirmative defense of mistake of fact as to consent to apply, the mistake must have been reasonable as well as honestly held. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

Finally, CAAF summarily affirmed in this Navy case:

No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. On further consideration of the granted issue, 78 M.J. 61 (C.A.A.F. 2018), and in view of Gamble v. United States, __ S. Ct. __ (2019), No. 17-646, 2019 U.S. LEXIS 4173, 2019 WL 2493923 (June 17, 2019), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

We noted CAAF’s grant of review in Greening here, and SCOTUS’ grant of review in Gamble here. The SCOTUS docket page for Gamble is here.

Last month CAAF heard oral argument on whether to grant a writ of mandamus to Army Major Hasan – who was sentenced to death for 13 specifications of murder and 32 specifications of attempted murder (the #2 Military Justice Story of 2013) – and then CAAF summarily denied the request. Last week CAAF denied a second requested writ:

No. 19-0053/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. Appellate defense counsel petitioned this Court for extraordinary relief in the nature of a writ of mandamus, seeking access to matters that were sealed by the military judge at trial as being privileged between Major Hasan and his standby counsel.[1] In two decisions, the United States Army Court of Criminal Appeals denied appellate defense counsel access to these sealed privileged materials because appellate defense counsel admitted that Major Hasan had not authorized them to review those documents. United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. July 6, 2018) (order); United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. Oct. 16, 2018) (order).

To prevail on a writ of mandamus, the petitioner must show that: “(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances.” Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). Appellate defense counsel failed to establish (2).

We find unpersuasive appellate defense counsel’s argument that issuance of the writ is clear and indisputable under Rule for Courts-Martial 1103A. Although that rule does not except attorney-client privileged material from its ambit, neither does it include it. On consideration of the petition and the briefs of the parties, as appellate defense counsel failed to establish a clear and indisputable right to the writ it is ordered that the petition is denied.

[1] Although captioned as Hasan v. United States Army Court of Criminal Appeals, it appears that Major Hasan has not authorized this petition, as he has not waived his attorney-client privilege to these materials.

Additionally, on Monday CAAF ordered supplemental briefs in the Army case of United States v. Stout, No. 18-0273/AR (CAAFlog case page):

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the briefs of the parties on the issue granted on August 6, 2018, and oral argument held on December 4, 2018, it is ordered that the parties file supplemental briefs on the following additional issues:

I. WHETHER UNITED STATES v. BROWN, 4 C.M.A. 683, 16 C.M.R. 257 (1954), IS NOT CONTROLLING IN THIS CASE BECAUSE THE DECISION PREDATES THE PROMULGATION OF THE APPLICABLE VERSION OF R.C.M. 603(d).

II. WHETHER THE APPLICABLE VERSION OF R.C.M. 603(d) IS CONTRARY TO AND INCONSISTENT WITH THE APPLICABLE VERSION OF ARTICLE 34(c), UCMJ, AND THEREFORE VOID TO THE EXTENT IT PROHIBITS MAJOR CHANGES, BEFORE REFERRAL, TO CHARGES AND SPECIFICATIONS THAT WERE AMENDED TO “CONFORM TO THE SUBSTANCE OF THE EVIDENCE CONTAINED IN THE REPORT OF THE INVESTIGATING OFFICER.” ARTICLE 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.

CAAF originally granted review of one issue questioning whether changes to the time frame of three specifications were proper, and it heard oral argument on December 4, 2018.

On Tuesday CAAF summarily affirmed the Air Force CCA’s decision in United States v. Collins, 78 M.J. 530 (A.F. Ct. Crim. App. Jul 23, 2018) (discussed here), certified, 78 M.J. 190 (C.A.A.F. Nov. 5, 2018) (noted here).

No. 19-0052/AF. U.S. v. Richard D. Collins. CCA 39296. On consideration of the three issues certified by the Judge Advocate General of the Air Force, 78 M.J. 190 (C.A.A.F. 2018), the briefs of the parties, and Appellee’s motion to summarily affirm filed on February 26, 2019, and in light United States v. Briggs, __ M.J. __(C.A.A.F. Feb. 22, 2019), it is ordered that the three certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is therefore affirmed. Appellee’s motion is denied as moot.

An unsurprising result considering the court’s unanimous decision in United States v. Briggs, 78 M.J. 289 (C.A.A.F. Feb. 22, 2019) (CAAFlog case page).

OPM closed federal offices in Washington, DC today.

Pursuant to yesterday’s order, today’s arguments in Tovarchavez and Voorhees are rescheduled to tomorrow (assuming things are back to the new normal by then).

CAAF closes when the Office of Personnel Management orders a closure due to inclement weather.

The National Weather Service has posted a winter storm warning for Washington, DC for tomorrow morning. Considering that, CAAF has posted this notice regarding tomorrow’s scheduled oral arguments. The notice includes the following:

In the event the Office of Personnel Management authorizes a two hour delay in reporting, Counsel should expect the cases set for hearing on Wednesday, February 20, 2019, to be called on time, starting at 0930, as previously set by hearing notices.

In the event of a Court closure on Wednesday, February 20, 2019, the cases set for hearing on that date, Tovarchavez 18-0371/AR and Voorhees 18-0372/AF, will be heard at the same times and sequence on the following day, Thursday, February 21, 2019.

Monday’s daily journal includes this entry:

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent, and United States, Real Party in Interest. U.S. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, we note that this Court previously ordered the United States to show cause why the requested relief should not be granted. We also ordered the United States to “specifically address the jurisdiction of this Court to grant the requested relief.” Hasan v. United States Army Court of Criminal Appeals and United States, No. 19-0054, __ M.J. __ (C.A.A.F. Dec. 28, 2018) (order).

Citing Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005), the United States submitted an answer that in two sentences conceded jurisdiction of this Court over this case. In reply, Petitioner stated that the United States had correctly conceded jurisdiction and cited LRM v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013), Center for Constitutional Rights v. United States, 72 M.J. 126 (C.A.A.F. 2013), and Hasan v. Gross, 71 M.J. 416 (C.A.A.F. 2012). We consider the answer of the United States to be inadequate. Accordingly, it is ordered that the United States is directed to specifically address the jurisdiction of this Court to grant the requested relief, including citation to all relevant authorities, in light of the fact that the Army Court of Criminal Appeals has not completed its appellate review pursuant to Article 66, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012), and to do so on or before February 11, 2019. See, e.g., United States v. Denedo, 556 U.S. 904 (2009), Clinton v. Goldsmith, 526 U.S. 529 (1999).

Petitioner may file a reply within 5 days of the filing by the United States.

(emphasis added).

Unfortunately, this sort of thing has happened before.

Over a year ago, in this post, I analyzed an unpublished opinion by a panel of the Army CCA in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017).

The case involved the improper use of charged offenses for propensity purposes; a persistent error that CAAF addressed in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) (our #3 Military Justice Story of 2016), reiterated in United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page), emphasized as a serious and likely prejudicial error in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), and then reiterated again – with exasperation – in United States v. Williams, 77 M.J. 459 (C.A.A.F. Jun. 27, 2018) (CAAFlog case page), where Chief Judge Stucky (writing for a unanimous court) observed that:

this is the third case in which we have had to correct a Court of Criminal Appeals’ judgment on this issue.

77 M.J. at 460 (citing Hukill and Guardado). Left unsaid was that all three cases – four, including Hills – were Army cases.

Sanchez, however, was different in a remarkable way. Staff Sergeant (E-6) Sanchez was tried by a court-martial composed of a military judge alone way back in 2014, long before CAAF decided Hills. The trial even pre-dated the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), which affirmed the use of charged offenses for propensity purposes and was widely accepted as good law (the Air Force and Navy-Marine Corps CCA both reached similar conclusions, and that was our #6 Military Justice Story of 2015). CAAF even denied review in Barnes on July 28, 2015. The military judge in Sanchez did what Barnes later allowed but Hills even later prohibited. Yet the CCA found “no improper use of propensity evidence by the military judge.” Sanchez, slip op. at 1. Furthermore, the CCA found that the defense waived any error by either failing to object or agreeing that the issue was moot. I summarized those finding in the title of my post as:

A panel of the Army CCA presumes that a military judge knows and follows (and that defense counsel makes decisions based on) law that isn’t made yet

Yesterday CAAF returned the case to the Army CCA:

No. 17-0592/AR. U.S. v. Angel M. Sanchez. CCA 20140735. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Burris, 78 M.J. 56 (C.A.A.F. 2018) (summary disposition), United States v. Williams, 77 M.J. 459 (C.A.A.F. 2018), United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018), United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT MISAPPLIED THIS COURT’S CONTROLLING PRECEDENTS IN CONCLUDING: (1) THE MILITARY JUDGE DID NOT CONSIDER EVIDENCE TO COMMIT OTHER CONDUCT, AND (2) DEFENSE COUNSEL “WAIVED” THIS ISSUE BY FAILING TO OBJECT AT TRIAL.

The decision of the United States Army Court of Criminal Appeals is reversed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012).

This action is also remarkable, in part because it’s a long time coming (Sanchez petitioned CAAF for review way back on September 15, 2017 (77 M.J. 35)) and in part because it returns the case to the Army CCA for what will be its third review (the CCA issued its first opinion – affirming the findings and sentence – on March 28, 2017, but then granted reconsideration in light of Hukill).

CAAF recently posted its oral argument calendar for next term:

June
2019
  • 4
May
2019
  • 7
  • 8
  • 21
  • 22
April
2019
  • 9
  • 10
  • 11
  • 23
  • 24
March
2019
  • 19
  • 20
February
2019
  • 19
  • 20
January
2019
  • 22
  • 23
December
2018
  • 4
  • 5
November
2018
  • 6
  • 7
October
2018
  • 23
  • 24
September
2018
  • 12 (Project Outreach)
  • 13 (Project Outreach)

A note on the calendar explains that the first two hearings “will occur in advance of the formal calendar start of the term, in order to support two Project Outreach commitments by the Court. Future Hearing Notices will provide the details on the venues and times.”

CAAF modified its term to begin on October 1 – rather than September 1 – effective in 2016 (change discussed here).

The 24 scheduled oral argument dates for the 2018 term is a significant reduction from the 30 scheduled dates for the 2017 term (of which only 19 were actually used), and the 27 scheduled dates for the 2016 term (of which only 23 were actually used).

Yeterday CAAF affirmed the findings in a Hills (CAAFlog case page) / Hukill (CAAFlog case page) trailer:

No. 18-0107/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the granted issue, 77 M.J. 273 (C.A.A.F. 2018), the judgment of the United States Army Court of Criminal Appeals, United States v. Hazelbower, No. 20150335 (A. Ct. Crim. App. Nov. 22, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that the military judge’s erroneous use of charged misconduct for propensity purposes was harmless beyond a reasonable doubt, for “there [i]s no reasonable possibility that the error contributed to [Appellant]’s verdict.” United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (citation omitted). In the instant case, the victims’ accounts were corroborated by a wealth of independent supporting evidence, including (but not limited to) admissions of rape, incriminating text and Skype messages, and the exchange of nude photographs. Given the overwhelming evidence of Appellant’s guilt, we are convinced beyond a reasonable doubt that Appellant was convicted on the strength of the evidence alone. Guardado, 77 M.J. at 94. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

I discussed CAAF’s grant of review in this post.

Yesterday CAAF summarily reversed in a Hills / Guardado trailer:

No. 18-0002/AR. U.S. v. Elmer F. Hoffmann III. CCA 20140172.

On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that (1) Appellant did not waive the error resulting from the improper propensity instructions as we do not construe the failure to object to what was the settled law at the time as an intentional relinquishment of a known right, and (2) the error was not harmless beyond a reasonable doubt. Accordingly, it is, by the Court, this 7th day of May, 2018,

ORDERED:

That said petition is hereby granted on the following issues:

I. WHETHER APPELLANT WAIVED ANY ERROR RESULTING FROM THE MILITARY JUDGE’S IMPROPER PROPENSITY INSTRUCTION AT A TRIAL PRIOR TO THIS COURT’S OPINION IN UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

II. WHETHER THE ARMY COURT INCORRECTLY PLACED THE BURDEN OF PERSUASION ON APPELLANT FOR THE THIRD PRONG OF THE PLAIN ERROR TEST IN VIOLATION OF THE CONSTITUTIONAL STANDARD THAT THIS COURT HAD ARTICULATED IN PLAIN ERROR CASES SINCE UNITED STATES v. POWELL, 49 M.J. 460 (C.A.A.F. 1998).

The decision of the United States Army Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing is authorized to the extent that the charges and specifications are not barred by the statute of limitations. See United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). See also United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998) (stating that the circuits are in agreement “that extending a limitations period before the prosecution is barred does not violate the Ex Post Facto Clause”).

(emphasis added). A footnote clarifies that the appellant’s name is spelled with two Ns (the CCA’s opinion uses only one N).

I last mentioned this case in this post where I first discussed a series of Army CCA decisions holding that the failure to object to improper argument waives any error. CAAF subsequently granted review of that issue in a number of cases, including in United States v. Burris, No.17-0605/AR (CAAFlog case page), which I argued before CAAF on March 22, 2018.

Yesterday’s summary disposition in Hoffmann does not directly answer the issue presented in Burris, however the court’s observation that the failure to object to settled law is not a waiver is important. It’s also consistent with CAAF’s waiver precedent; specifically United States v. Harcrow where the court observed that changes in the law after trial “opened the door for a colorable assertion . . . where it was not previously available.” 66 M.J. 154, 157-158 (C.A.A.F. 2009). I discussed Harcrow (and how I think it applies to a Hills issue) in this post in which I analyzed the Army CCA’s opinion in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017), pet. filed, __ M.J. __, No. 17-0592/AR (C.A.A.F. Sep. 14, 2017).

Additionally, while much of the recent waiver mania is based on the mere failure of defense counsel to object, the Supreme Court applies a very different test for waiver:

Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.

United States v. Olano, 507 U.S. 725, 733 (1993) (citations omitted).

On Friday CAAF denied two writ-appeal petitions:

No. 18-0167/NA. Charles M. Burleson, Appellant v. United States, Appellee. CCA 200700143. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is hereby denied.

No. 18-0180/MC. Luiji R. Pierre, Appellant v. United States, Appellee. CCA 201300257. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

I discussed the NMCCA’s decisions in these cases last month, in this post. Both decisions rejected retroactive application of CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

CAAF previously rejected a writ-appeal petition raising the same issue in the Air Force case of  Lewis v. United States, 76 M.J. 829 (A.F. Ct. Crim. App. Sep. 20, 2017) (discussed here), pet. denied, 77 M.J. 106 (C.A.A.F. Nov. 13, 2017).

Two weeks ago, in this post, I discussed the Army CCA’s rejection of a petition for writs of mandamus and habeas corpus in Adams v. Cook, Military Judge, No. 20170581 (A. Ct. Crim. App. Jan. 23, 2018), writ-appeal filed, __ M.J. __, No. 18-0171/AR (C.A.A.F. Mar. 19, 2018).

My post was particularly critical of the prosecution’s decision to prefer new charges – and a staff judge advocate’s advice to dismiss the original charges – in a case referred for a rehearing after the result of the first trial was reversed on appeal. I opined that while the acting staff judge advocate’s bad advice to dismiss the original charges and refer only the new charges made a mess of the case, it’s highly unlikely that Adams will be successful in stopping a second trial.

Adams can still litigate the issue at the trial level, but last Thursday CAAF declined to intervene at this stage:

No. 18-0171/AR. U.S. v. Thomas M. Adams. CCA 20170581. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is hereby denied without prejudice to Appellant’s right to raise the issue asserted during the course of normal appellate review.

Yesterday CAAF reversed convictions in three Hills trailer cases:

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to the Charge and Specification 3 thereunder and the sentence. The findings of guilty as to the Charge and Specification 3 thereunder and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing is authorized.

No. 18-0101/AF. U.S. v. Xavier L. Rice. CCA 39071. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN DECIDING THAT A PROPENSITY INSTRUCTION IN VIOLATION OF UNITED STATES v. HILLS WAS HARMLESS BEYOND A REASONABLE DOUBT BECAUSE IT DID NOT CONTRIBUTE TO THE VERDICT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specifications 3, 4, and 5 of the Charge and the sentence. The findings of guilty as to Specifications 3, 4, and 5 of the Charge and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Specifications 3, 4, and 5 of the Charge and the sentence.

No. 18-0122/AF. U.S. v. Corey J. Campbell. CCA 38875. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT INCORRECTLY FOUND THAT A MILITARY JUDGE’S IMPERMISSIBLE USE OF PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence. The findings of guilty as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence.

The reversal in Robertson is particularly significant because the Air Force CCA found the error harmless beyond a reasonable doubt in a published decision. United States v. Robertson, 77 M.J. 518, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (analyzed here).

In Rice the CCA rejected a Government Division assertion that the error was waived, but found it harmless beyond a reasonable doubt because:

Under the particular circumstances of this case, where (1) the military judge did not provide a propensity instruction with conflicting standards of proof, (2) senior trial counsel only briefly mentioned propensity, (3) the Defense conceded the non-consensual touchings occurred, and (4) the military judge instructed on and senior trial counsel argued limited non-propensity uses of the abusive sexual contact offenses evidence, we are satisfied beyond a reasonable doubt that the military judge’s Mil. R. Evid. 413 instruction did not contribute to the verdict.

United States v. Rice, No. 39071, slip op. at 18 (A.F. Ct. Crim. App. Nov. 21, 2017) (link to slip op.)

Campbell was a judge-alone case and so more Hukill trailer than Hills trailer. The CCA issued two decisions in the case – the first was reversed by CAAF for further consideration in light of Hukill (noted here) – and the second opinion found the error harmless based on the strength of the prosecution’s case:

The propensity evidence played very little part in the Government’s case or argument. The senior trial counsel did make a brief mention that Appellant “prior to this assault, demonstrated over a period of months, a desire, a willingness, and a brazen capacity to fondle teenage girls without their consent.” This line of argument, while not particularly persuasive, does assert propensity. Much more persuasive was the Government’s direct evidence of Appellant’s acts, including the testimony of the victims and eye witnesses.

United States v. Campbell, No. 38875, slip op. at 7 (A.F. Ct. Crim. App. Dec. 13. 2017) (link to slip op.).