CAAFlog » CAAF Grants

On Wednesday CAAF granted review in this Army case:

No. 20-0090/AR. U.S. v. Jesus D. Cardenas. CCA 20180416. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT, AFTER FINDING APPELLANT’S CONVICTIONS WERE MULTIPLICIOUS, ERRED IN PERMITTING THE GOVERNMENT TO CHOOSE WHICH OF THE APPELLANT’S CONVICTIONS TO DISMISS ON APPEAL.

Briefs will be filed under Rule 25.

The CCA’s decision is available here. Finding the appellant’s convictions of sexual assault and maltreatment are multiplicious (because they were based on the same underlying act), the CCA held:

Concluding that appellant’s conviction of maltreatment is multiplicious for findings with his conviction of sexual assault, we must set aside one of the convictions to remedy the error. The government has requested this court set aside and dismiss appellant’s conviction of maltreatment. In the past, our superior court has permitted the government to make such an election. See United States v. Palagar, 56 M.J. 294, 296-297 (C.A.A.F 2002); United States v. Frelix-Vann, 55 M.J. 329, 333 (C.A.A.F. 2001 ); and United States v. Cherukuri, 53 M.J. 68, 74 (C.A.A.F. 2000). Consistent with our superior court’s guidance, we grant the government’s request in our decretal paragraph.

Slip op. at 7 (emphasis added).

Yesterday CAAF granted review in this Air Force case:

No. 19-0449/AF. U.S. v. Ladarion D. Stanton. CCA 39161. 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:

THE CONVENING AUTHORITY AND APPELLANT ENTERED INTO AN AGREEMENT THAT APPELLANT WOULD BE ADMINISTRATIVELY DISCHARGED IN LIEU OF THE SENTENCE REHEARING AUTHORIZED BY THE LOWER COURT. THE CONVENING AUTHORITY THEN PROCEEDED WITH APPELLANT’S COURT-MARTIAL BY APPROVING A SENTENCE OF “NO PUNISHMENT” AND FORWARDING THIS CASE TO THE LOWER COURT FOR FURTHER APPELLATE REVIEW. SHOULD THIS CASE BE DISMISSED WITH PREJUDICE FOR BREACH OF A MATERIAL TERM OF APPELLANT’S PRETRIAL AGREEMENT WITH THE CONVENING AUTHORITY?

Briefs will be filed under Rule 25.

AFCCA’s opinion is available here. The opinion provides the following background:

On 20 July 2018, before the convening authority took action for the second time, the convening authority withdrew and dismissed without prejudice the pending two specifications of sexual assault and one specification of aggravated sexual contact. On the same day, Appellant requested to be administratively discharged “in lieu of trial by court-martial.” On 25 July 2018, the convening authority approved Appellant’s request and directed that Appellant be administratively discharged with an under other than honorable conditions service characterization. Two days later the convening authority took action on Appellant’s court-martial and approved a sentence of “no punishment,” as described above.

Slip op. at 1.

On Tuesday CAAF granted review in three cases.

Two involve the new Mil. R. Evid. 801(d)(1)(B)(ii), which is an issue the court is already considering in United States v. Finch, No. 19-0298/AR (CAAFlog case page). CAAF heard oral argument in Finch on December 4, 2019. During the oral argument, the Army Government Appellate Division largely conceded that the Army CCA correctly interpreted the new rule as not expanding the range of admissible statements beyond those that actually rehabilitate the witness on the specific point of impeachment (which have always been admissible, just not for their truth). The new cases are from the Navy and from the Army:

No. 20-0006/NA. U.S. v. Matthew D. Norwood. CCA 201800038. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING, OVER DEFENSE OBJECTION, THE ENTIRE VIDEO-RECORDED INTERVIEW OF THE COMPLAINING WITNESS UNDER MRE 801(d)(1)(B)(ii) AS A PRIOR CONSISTENT STATEMENT.

II. WHETHER THE GOVERNMENT TRIAL COUNSEL’S ARGUMENTS AMOUNTED TO PROSECUTORIAL MISCONDUCT THAT WARRANTS RELIEF.

Briefs will be filed under Rule 25.

No. 20-0033/AR. U.S. v. Thomas Ayala. CCA 20170336. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ADMITTING THE VICTIM’S PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) AND 801(d)(1)(B)(ii).

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA issued a published decision in Norwood (available here), that I noted in my post about CAAF’s grant in Finch. Norwood is like Finch in two significant aspects. First, the NMCCA reached the same basic decision about the scope of the new Mil. R. Evid. 801(d)(1)(B)(ii) in Norwood as the ACCA reached in Finch:

Only the second part of the amended rule is new and it does not change the admissibility of prior consistent statements used only to rehabilitate a witness’ credibility. It does, however, change what the statement can be used for once it is admitted into evidence. A prior consistent statement, not otherwise admissible under Mil. R. Evid. 801(d)(1)(B)(i), can now be used as substantive evidence as well as to rehabilitate the witness’ credibility.

United States v. Norwood, 79 M.J. 644, 655, slip op. at 4 (N-M Ct. Crim. App. 2019). Second, in both Norwood and Finch the CCAs concluded that the statements at issue were admissible under Mil. R. Evid. 801(d)(1)(B)(i) because they rebutted defense charges of recent fabrication. That makes the first granted issue in Norwood somewhat curious, as it is does not challenge the NMCCA’s conclusion that the prior statement “squarely falls under part (i) of the rule.” 79 M.J. at 656.

The NMCCA also found “isolated and brief” improper arguments that it concluded were harmless. 79 M.J. at 664-665.

The Army CCA’s opinion in Ayala is here. The CCA found portions of the prior consistent statement to be admissible under part (i) of the rule, and other portions admissible under part (ii).

CAAF’s the third grant is from the Air Force and involves probable cause:

No. 20-0019/AF. U.S. v. Jared D. Bavender. CCA 39390. 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 MILITARY JUDGE ERRED WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE LOCATED ON APPELLANT’S DIGITAL MEDIA.

Briefs will be filed under Rule 25.

The Air Force CCA’s opinion is available here. The appellant admitted to looking at child pornography, and his admissions were used as the basis for a search authorization for his electronic media (where investigators discovered contraband child pornography). The defense moved to suppress the fruits of the search on the basis that the admissions didn’t actually provide probable cause because:

no information was included in the affidavit [supporting the request for the search authorization] about Appellant’s account of the settings, actions or poses of the children. Similarly, Appellant told the agents how he sought pictures of nude children by searching “nudist websites.” The pictures he found, so he claimed, did not depict minors engaged in sexual acts. Appellant denied looking at images on the Internet of children “actually having sex,” and maintained that the closest thing to a sexual image he saw online was a photo from a nudist website of a group of people standing naked and looking at the camera. One of those individuals was a teenage girl, and it was possible she was looking at a boy’s genitalia. The Defense relayed to the military judge that none of these facts were included in SA VL’s affidavit or provided to the magistrate, thereby rendering the search authorization inadequate.

United States v. Bavender, No. 39390, slip op. at 5 (A.F. Ct. Crim. App. Aug. 23, 2019). The military judge denied the motion on the basis that the appellant’s admissions provided a sufficient factual basis for probable cause, and the CCA affirmed.

Yesterday CAAF granted review in this Army case:

No. 19-0339/AR. U.S. v. Marco A. Reyes. CCA 20160704. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO DISMISS THE CHARGES AND SPECIFICATIONS FOR A VIOLATION OF APPELLANT’S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10, UCMJ.

II. WHETHER THE RECORD OF TRIAL IS COMPLETE UNDER ARTICLE 54, UCMJ, WHERE IT CONTAINS ONLY A SUMMARIZED TRANSCRIPT OF THE ARTICLE 39(a), UCMJ, SESSIONS THAT OCCURRED PRIOR TO THE WITHDRAWAL AND RE-REFERRAL OF THE CHARGES.

Briefs will be filed under Rule 25.

The Army CCA issued a published opinion (available here) that addressed the Article 10 issue in a footnote and concluded that the delay was not unreasonable under the circumstances. The opinion did not discuss the incomplete record issue.

Article 10 contains a military speedy trial right. It was our #10 Military Justice Story of 2013 and #9 Military Justice Story of 2016.

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.

On Tuesday CAAF granted review in this Army case:

No. 19-0365/AR. U.S. v. Jason A. Scott. CCA 20170242. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT OF THE CONSTITUTION.

Briefs will be filed under Rule 25.

A decision issued by the CCA in 2018 (discussed after the jump) is available here.

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In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later he was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. In sentencing his defense counsel specifically requested that the military judge sentence him to a dishonorable discharge, and Bergdahl made it clear that he personally believed that a dishonorable discharge was the appropriate punishment. The military judge gave him that and little more, adjudging a sentence of reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The convening authority approved the sentence after Bergdahl elected to not request clemency.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not requested clemency, on appeal Bergdahl claimed that endemic unlawful command influence (UCI) denied him a fair trial, fair post-trial processing, or the appearance thereof, and sought dismissal of the charges. The Army CCA rejected the claim and affirmed the findings and sentence in a published decision discussed here. Bergdahl then petitioned CAAF for review (discussed here).

Yesterday, CAAF granted that review:

No. 19-0406/AR. U.S. v. Robert B. Bergdahl. CCA 20170582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

Briefs will be filed under Rule 25.

Last week CAAF granted review in this Marine Corps case:

No. 19-0377/MC. U.S. v. Nicholas S. Baas. CCA 201700318. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID ADMISSION OF AN ALLEGEDLY POSITIVE DIATHERIX LABORATORIES TEST FOR GONORRHEA WITHOUT TESTIMONY AT TRIAL OF AN WITNESS FROM DIATHERIX, VIOLATE THE SIXTH AMENDMENT CONFRONTATION CLAUSE?

II. DID THE LOWER COURT ABUSE ITS DISCRETION IN ADMITTING AN ALLEGED POSITIVE DIATHERIX TEST RESULT FOR GONORRHEA IN A CHILD’S RECTAL SWAB-WHERE DIATHRIX FAILED TO FOLLOW ITS OWN PROCEDURES AND THE RESULT WAS OF NEAR ZERO PROBATIVE VALUE?

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The appellant was convicted of numerous offenses including rape of a child. The evidence supporting the rape conviction included a positive test of the child for gonorrhea; a sexually-transmitted disease that the appellant told military law enforcement he had and that he encouraged them to test the child for in the belief that the test would exonerate him. Swabs were taken from the child and sent to Diatherix Laboratories, where a nucleic acid amplification test (NAAT) revealed the positive result. But the pediatrician who took the swabs explained that the NAAT was a screening test that was susceptible to false positives, and that urethral and rectal culture tests should be performed to confirm the diagnosis.

Those confirmatory tests were not performed. Rather, the child was treated with antibiotics, rendering further testing impossible. Nevertheless, the prosecution moved to introduce the NAAT result, and the parties litigated its admissibility. The military judge ultimately ruled that the result was admissible because the test was reliable and it was for the members to determine what weight to give the result.

The CCA considered and rejected the first granted issue, concluding that the Diatherix lab report was nontestimonial (and so could be admitted as business records) because the test was conducted primarily for treatment (not law enforcement), the report contained only unambiguous factual matters, and the report was not primarily created for the purpose of introducing it as evidence at trial.

The CCA’s opinion also references the underlying claim in the second granted issue – that the Diatherix laboratory failed to follow its own procedures – in a larger analysis of the military judge’s ruling that admitted the test result. The CCA affirmed the military judge’s ruling admitting the result.

Last week CAAF granted review in this Army case:

No. 19-0411/AR. U.S. v. Norman L. Clark, Sr. CCA 20170023. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID THE MILITARY JUDGE ERR IN APPLYING R.C.M. 914?

II. IF THE MILITARY JUDGE ERRED, UNDER WHAT STANDARD SHOULD THIS COURT ASSESS PREJUDICE?

III. WAS THERE PREJUDICE UNDER THE APPLICABLE STANDARD OF REVIEW?

Briefs will be filed under Rule 25.

R.C.M. 914 is the military’s version of the Jencks Act (18 U.S.C. § 3500), and it was last considered by CAAF in the interlocutory case of United States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015) (CAAFlog case page), in which the court unanimously affirmed the trial-stage ruling of 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.

The Army CCA’s opinion in Clark is available here.

On Monday – the last day of the 2018 term – CAAF granted review in this Marine Corps case:

No. 19-0376/MC. U.S. v. R. Bronson Watkins. CCA 201700246. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. A CONFLICT OF INTEREST EXISTS WHERE THE INTERESTS OF AN ATTORNEY AND DEFENDANT DIVERGE ON A MATERIAL FACTUAL OR LEGAL ISSUE, OR A COURSE OF ACTION. THREATS BY REGIONAL TRIAL COUNSEL AND A REGIONAL TRIAL INVESTIGATOR TOWARDS CIVILIAN DEFENSE COUNSEL CREATED A CONFLICT OF INTEREST BETWEEN CIVILIAN COUNSEL AND APPELLANT. DID THE MILITARY JUDGE ERR IN DENYING CIVILIAN COUNSEL’S MOTION TO WITHDRAW?

II. THE SIXTH AMENDMENT GUARANTEES AN ACCUSED THE RIGHT TO RETAIN COUNSEL OF HIS OWN CHOOSING. BEFORE TRIAL, AND AFTER HIS CIVILIAN COUNSEL MOVED TO WITHDRAW—CITING A PERCEIVED CONFLICT OF INTEREST—APPELLANT ASKED TO RELEASE HIS CIVILIAN COUNSEL AND HIRE A DIFFERENT COUNSEL. DID THE MILITARY JUDGE ERR BY DENYING THIS REQUEST?

III. DID THE LOWER COURT ERR IN RATIFYING THE MILITARY JUDGE’S DENIAL OF APPELLANT’S REQUEST FOR CONFLICT-FREE COUNSEL, WHERE IT: (A) FOUND THE REQUEST WAS IN “BAD FAITH,” BASED ON ALLEGED MISBEHAVIOR BY APPELLANT OCCURRING BEFORE THE RTC’S UNEXPECTED THREATS; AND, (B) TREATED THE MILITARY JUDGE’S FINDING THAT APPELLANT’S REQUEST FOR COUNSEL WAS “OPPORTUNISTIC,” AS A FINDING OF FACT INSTEAD OF A CONCLUSION OF LAW?

Briefs will be filed under Rule 25.

The NMCCA’s opinion is available here. It reveals that:

The appellant was represented by a civilian defense counsel, retired Marine Corps judge advocate Mr. W. After an angry off-the-record exchange between Mr. W and the Regional Trial Counsel, LtCol K, Mr. W moved to withdraw from the case and the appellant stated that he no longer wished to be represented by Mr. W. The military judge did not permit Mr. W to withdraw, and the appellant claims on appeal that Mr. W was encumbered by a conflict of interest.

Slip op. at 3. The CCA found no conflict of interest and affirmed.

Last Wednesday CAAF granted review in this Army case:

No. 19-0382/AR. U.S. v. Gerald R. Carter, Jr. CCA 20160770. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following assigned issue:

I. WHETHER TRIAL DEFENSE COUNSEL WERE INEFFECTIVE FOR FAILING TO INTRODUCE EXCULPATORY EVIDENCE IN THEIR POSSESSION.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO ORDER A MISTRIAL FOR THE CHARGES AND SPECIFICATIONS.

And the following personally asserted issue:

III. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY ADMITTING EVIDENCE OF HISTORICAL CELL-SITE LOCATION INFORMATION. See CARPENTER v. UNITED STATES, 138 S. Ct. 2206 (2018).

Briefs will be filed under Rule 25.

The CCA’s opinion is available here.

The IAC issue is based on evidence that the appellant’s brother – not the appellant – committed the charged offenses, and the fact that the appellant’s military defense counsel did not introduce that evidence at trial. The mistrial issue (while not discussed in the CCA’s opinion) involves an intentional discovery violation by the prosecution that was exposed during the trial. The judicial error issue is the Grostefon issue related to the admission of cell-site information.

Disclosure: I represented the appellant in my personal capacity during review of his case by the Army CCA.

CAAF granted review in this Army case on Tuesday:

No. 19-0384/AR. U.S. v. Michael J. Guinn. CCA 20170500. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. WHETHER THE ARMY COURT CONDUCTED A VALID ARTICLE 66 REVIEW WHEN IT FAILED TO CONSIDER APPELLANT’S FIRST AND FIFTH AMENDMENT CLAIMS EVEN WHILE ENTERTAINING HIS EIGHTH AMENDMENT CLAIMS.

II. WHETHER APPELLANT’S CONSTITUTIONAL RIGHTS WERE VIOLATED BY A CONFINEMENT FACILITY POLICY THAT BARRED HIM FROM ALL FORMS OF COMMUNICATION WITH HIS MINOR CHILDREN WITHOUT AN INDIVIDUALIZED ASSESSMENT DEMONSTRATING THAT AN ABSOLUTE BAR WAS NECESSARY.

No briefs will be filed under Rule 25.

The Army CCA’s website is down, but the CCA’s opinion is available here.

The case is a trailer to United States v. Jessie, No. 19-0192/AR (grant discussed here). Jessie challenges a confinement policy of the Joint Regional Confinement Facility (JRCF) at Fort Leavenworth, Kansas, whereby prisoners convicted of child sex offenses were prohibited from having any contact with children, including their own biological children. The appellant challenged the application of the policy to him as a denial of his First and Fifth Amendment rights. The policy was changed after it was challenged.

CAAF granted review in two cases yesterday.

The first is this Navy case, in which the court ordered that no briefs be filed:

No. 19-0198/NA. U.S. v. Willie C. Jeter. CCA 201700248. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

I. DID THE CONVENING AUTHORITY VIOLATE EQUAL PROTECTION WHEN HE SHOWED A PATTERN OF CONVENING AT LEAST THREE ALL WHITE MEMBERS’ PANELS FOR GENERAL COURTS-MARTIAL, INCLUDED RACE AND GENDER IDENTIFIERS IN MEMBERS’ QUESTIONNAIRES, REMOVED FIVE MINORITY MEMBERS FROM APPELLANT’S ORIGINAL CONVENING ORDER, AND ULTIMATELY ISSUED A CONVENING ORDER CONSISTING OF ONLY WHITE, MALE MEMBERS FOR APPELLANT’S COURT-MARTIAL, WHERE APPELLANT WAS AN AFRICAN-AMERICAN OFFICER?

II. DID THE DEFENSE SHOW SOME EVIDENCE OF UNLAWFUL COMMAND INFLUENCE IN THE FORM OF COURT PACKING WHEN IT SHOWED THE CONVENING AUTHORITY REMOVED FIVE MINORITY MEMBERS AND REPLACED THEM WITH FIVE WHITE MEN, CONVENED A MEMBERS’ PANEL WITH ALL WHITE MEN IN THIS CASE AND AT LEAST TWO OTHER CASES WITH AFRICAN-AMERICAN ACCUSED, AND INCLUDED RACE AND GENDER IDENTIFIERS ON THE MEMBERS’ QUESTIONNAIRES?

No briefs will be filed under Rule 25.

The Navy-Marine Corps CCA’s opinion is available here. Based on CAAF’s order that no briefs be filed, the case looks to be a trailer to United States v. Bess, No. 19-0086/NA (grant discussed here).

The second is this Army case:

No. 19-0297/AR. U.S. v. Adrian Gonzalez. CCA 20160363. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following assigned issue:

WHETHER THE ARMY COURT ABUSED ITS DISCRETION BY REASSESSING THE SENTENCE AFTER DISMISSING THE MOST EGREGIOUS SPECIFICATION, AND OFFERING THE CONVENING AUTHORITY THE OPTION TO APPROVE AN EXCESSIVE SENTENCE FOR THE REMAINING SPECIFICATION IN LIEU OF A REHEARING.

And the following issue specified by the Court:

WHETHER APPELLANT WAIVED OR FORFEITED HIS OBJECTION TO THE ARMY COURT’S INSTRUCTIONS TO THE CONVENING AUTHORITY.

Briefs will be filed under Rule 25.

The Army CCA’s opinion (prior to remand) is available here, but I can’t find an opinion post-remand. The granted issue raises substantially the same question as is raised in United States v. Wall, No. 19-0143/AR (last noted here).

Back in May, CAAF granted review in this Army case:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following specified issue:

WHETHER, AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE THE CONVENING AUTHORITY MAY APPROVE.

Briefs will be filed under C.A.A.F. R. 25.

I noted the grant in this post.

Yesterday, CAAF asked for additional briefs on whether the issue it specified is ripe for review:

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. On consideration of the briefs of the parties on the issue granted review on April 29, 2019, it is ordered that the parties file supplemental briefs on the following additional issue:

WHETHER THE GRANTED ISSUE IS RIPE FOR REVIEW BY THIS COURT AT THIS TIME.

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

On Monday CAAF granted review in this Army case:

No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY PERMITTING THE UNIT’S SHARP REPRESENTATIVE TO TESTIFY THAT “WHEN A PERSON SAYS ‘NO’ IT MEANS STOP, WALK AWAY.”

Briefs will be filed under Rule 25.

SHARP is the Army’s Sexual Harassment Assault Response and Prevention program.

No opinion is available on the Army CCA’s website (indicating that the CCA summarily affirmed).