CAAFlog » October 2017 Term

CAAF decided the Air Force case of United States v. Wheeler, 77 M.J. 289, No.17-0456/AF (CAAFlog case page) (link to slip op.), on Thursday, March 22, 2018. Limiting the preemption doctrine to cases where a federal offense is incorporated under Clause 3 of Article 134 for the purpose of reducing the prosecution’s evidentiary burden at trial, CAAF concludes that the appellant’s conviction of coercion and enticement of a minor in violation of 18 U.S.C. § 2422(b) is not preempted by the enumerated offense of sexual abuse of a child in violation of Article 120b(c) because there is no indication that the federal offense was charged in order to circumvent an element of the Article 120b offense. Accordingly, CAAF affirms the findings, sentence, and published decision of the Air Force CCA.

Judge Ryan writes for a unanimous court.

Staff Sergeant (E-5) Wheeler was convicted contrary to his pleas of not guilty “of one specification of attempting to commit a lewd act upon a person he believed to be a child, in violation of Article 80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880 (2012), and one specification of attempting to persuade, induce, or entice a person he believed to be a child to engage in sexual activity through the use of interstate commerce in violation of 18 U.S.C. § 2422(b) (2012), and charged under clause three of Article 134, UCMJ, 10 U.S.C. § 934 (2012).” Slip op. at 1. He was sentenced to confinement for 30 months, reduction to E-1, total forfeitures, and a dishonorable discharge.

Wheeler moved to dismiss the Title 18 offense at trial, arguing that it was preempted by Article 120b. The preemption doctrine – the basis for Wheeler’s motion – is a limitation on the use of Article 134 that “prohibits application of Article 134 to conduct covered by Articles 80 to 132.” MCM pt. IV, para. 60.c.(5)(a). The military judge denied the motion, and the Air Force CCA affirmed in a published decision, reasoning in part that the Title 18 offense addresses “a harm that the UCMJ does not specifically address.” United States v. Wheeler, 76 M.J. 564, 572 (A.F. Ct. Crim. App. 2017).

CAAF then granted review to determine:

Whether the lower court erroneously concluded Charge II was not preempted by Article 120b, UCMJ, 10 U.S. C. § 920.

Yesterday’s decision affirms the Air Force CCA’s reasoning with a narrow interpretation of the preemption doctrine.

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Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Burris, No.17-0605/AR (CAAFlog case page): Oral argument audio.

United States v. Barry, No. 17-0162/NA (CAAFlog case page)Oral argument audio.

United States v. Armstrong, No. 17-0556/AR (CAAFlog case page): Oral argument audio.

United States v. Kelly, No.17-0559/AR (CAAFlog case page): Oral argument audio.

CAAF decided the Air Force case of United States v. Carpenter, 77 M.J. 285, No. 0476/AF (CAAFlog case page) (link to slip op.), on Tuesday, March 20, 2018. Reviewing the military judge’s restriction of the defense cross-examination of the alleged victim (based on Mil. R. Evid. 412), CAAF finds that the military judge did not abuse his discretion based on the defense argument at trial, despite the defense making a different argument on appeal. Accordingly, CAAF affirms the findings, sentence, and decision of the Air Force CCA.

Judge Ohlson writes for a unanimous court.

Senior Airman (E-4) Carpenter was convicted of sexual assault of a child in violation of Article 120b(b) for a sexual encounter with a 13-year-old boy (identified by the initials J.M.). Carpenter’s defense was that he mistakenly believed the boy was at least 16. In an effort to prove this mistaken belief, Carpenter’s defense counsel filed a motion in limine seeking to present evidence of J.M.’s sexual encounters with other adult men. The military judge denied the motion, however, holding “that the evidence was inadmissible because it was not relevant to Appellant’s mistake of fact as to J.M.’s age.” Slip op. at 3.

The Air Force CCA affirmed and CAAF granted review to determine:

Whether the Air Force Court of Criminal Appeals erred in limiting the cross-examination of the complaining witness under Military Rule of Evidence 412 on an issue showing that Appellant’s subjective mistake of fact as to the complaining witness’s age was objectively reasonable.

Emphasizing that “when reviewing a military judge’s ruling for an abuse of discretion, [CAAF] pierce[s] the CCA’s opinion and examine[s] the military judge’s ruling directly,” slip op. at 3 n.5, Judge Ohlson explains that “in the context of the argument made by trial defense counsel in the motion in limine, we conclude that the military judge’s decision to exclude evidence pursuant to M.R.E. 412 was not clearly erroneous,” slip op. at 6 (emphasis added).

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CAAF decided the certified Army case of United States v. Simpson, 77 M.J. 279, No. 17-0329/AR (CAAFlog case page) (link to slip op.), on Monday, March 19, 2018. Answering the certified issue in the negative, CAAF reemphasizes that the victim of a larceny under Article 121 is the person or entity from whom the accused obtained the goods or money at issue, and not merely any person who suffered a loss or consequence as a result of the accused’s actions. Nevertheless, CAAF reverses the Army CCA’s decision, finding that the appellant’s guilty plea to conspiracy to commit larceny may stand and that a conviction of attempted larceny (as a lesser included offense of larceny) may also be affirmed.

Judge Ryan writes for a unanimous court.

Sergeant (E-5) Simpson, in cahoots with his civilian girlfriend, initiated fraudulent electronic transfers from a corporate bank account used by Credit First National Association (CFNA). The account itself was held by JPMorgan Chase bank, and the frauds were accomplished by using the account’s information for electronic payments for Simpson’s bills. Simpson also conspired with another Soldier to use the CFNA account to pay the other Soldier’s bills. Simpson’s frauds amounted to over $30,000, and he ultimately pleaded guilty to one specification of larceny on divers occasions, and one specification of conspiracy to commit larceny, in violation of Articles 121 and 81, and was sentenced to confinement for two months, reduction to E-4, and a bad-conduct discharge.

On appeal, however, Simpson challenged his pleas on the basis that they identified CFNA as the victim when JPMorgan was the actual victim. A three-judge panel of the Army CCA agreed (in a 2-1 decision) and reversed both pleas. The Judge Advocate General of the Army then certified a single issue to CAAF:

Whether the Army Court of Criminal Appeals erred by finding a substantial basis in law and fact to question Appellant’s plea in light of the Supreme Court decision in United States v. Shaw, 137 S.Ct. 462 (2016), and the Court of Appeals for the Armed Forces decision in United States v. Cimball-Sharpton, 73 M.J. 299 (C.A.A.F. 2014).

In today’s opinion Judge Ryan explains that the answer to the certified question is no, but the Army CCA’s decision to reverse both convictions was mostly wrong for other reasons.

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CAAF will hear oral argument in the Navy case of United States v. Barry, No. 17-0162/NA (CAAFlog case page), on Thursday, March 22, 2018, after the argument in Kelly. Two issues question whether unlawful influence tainted the convening authority’s approval of the findings and sentence:

Specified issue: Whether a Deputy Judge Advocate General can commit unlawful command influence under Article 37, UCMJ, 10 U.S.C. § 837 (2012).

Granted issue: Whether military officials exerted actual unlawful command influence on the convening authority or created the appearance of doing so.

Senior Chief Special Warfare (E-8) Barry was convicted of sexual assault in violation of Article 120(b) and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Lorge – approved the findings and sentence as adjudged, but the case was returned for a new action because Lorge’s Staff Judge Advocate erroneously advised Lorge that he had no power to reverse the findings or reduce the sentence (based on the SJA’s reading of ALNAV 051/14, which I dissected here).

Lorge then took a closer look at the case, and he began to doubt the findings. He thought about reversing the conviction (a power he had in this case). But Lorge’s SJA advised against it. So Lorge reached out to then-Rear Admiral Crawford who at the time was the Deputy Judge Advocate General (JAG) of the Navy and with whom Lorge had previously served. Crawford later became the JAG – a position he still holds – and was promoted to Vice Admiral. Accordingly to Lorge, Crawford advised Lorge against reversing Barry’s conviction.

Ultimately, Lorge again approved the findings and sentence, but he modified the automatic reduction in rank to retain Barry at the rank of E-7. Then – in an unusual move – Lorge added the following language to his convening authority’s action:

In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause than the one that is before me now. The evidence presented at trial and the clemency submitted on behalf of the accused was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence.

Additionally, having personally reviewed the record of trial, I am concerned that the judicial temperament of the Military Judge potentially calls into question the legality, fairness, and impartially [sic] of this court-martial. The validity of the military justice system depends on the impartiality of military judges both in fact and in appearance. If prejudicial legal error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge[.]

Appellant’s Br. at 2 (marks in original). On appeal, the Navy-Marine Corps CCA affirmed the findings and sentence, rejecting four assignments of error. CAAF summarily affirmed on April 27, 2017.

But after CAAF acted Lorge provided an affidavit to Barry’s defense counsel claiming that he didn’t believe the evidence proved Barry’s guilt beyond a reasonable doubt and he wanted to disapprove the findings of the court-martial, however he did not do so because of pressure based on the politicization of the military’s response to sexual assault (the #1 Military Justice Story of 2012). The primary source of that pressure is said to have been Lorge’s discussion of the case with Crawford. Barry’s defense asked CAAF to reconsider its action, and CAAF ordered a post-trial fact-finding hearing to investigate the affidavit. The Chief Trial Judge of the Air Force presided over the hearing and then issued findings late last year (discussed here).

CAAF then ordered briefs filed on the issues shown above that functionally ask a single, two-part question: Could Crawford (then the DJAG) unlawfully influence Lorge, and if so then did he?

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In January 2015, Major Erik Burris, a former Army prosecutor, was himself convicted by a panel of officers, contrary to his pleas, of raping, forcibly sodomizing, and battering his wife. The members also convicted him of battering his daughter and disobeying a superior commissioned officer. As punishment, Major Burris was sentenced to be imprisoned for 20 years, to forfeit all pay and allowances, and to be dismissed from the service. Major Burris’ conviction and sentencing received extensive news coverage – including from international outlets like Reuters and the Daily Mail.

On March 21, 2018 at 1:30 p.m., CAAF will hear oral argument on the following issue:

Citing Rules for Courts-Martial 905(e) and 919(c), the Army Court held that the failure of Appellant’s trial defense counsel to object to improper character evidence and improper argument waived any error. This Court, however, treats such failures as forfeiture and tests for plain error. Which court is right?

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CAAF will hear oral argument in the Army case of United States v. Armstrong, No. 17-0556/AR (CAAFlog case page), on Wednesday, March 21, 2018. The court granted review of a single issue:

Whether assault consummated by a battery is a lesser included offense of abusive sexual contact by causing bodily harm.

Captain (O-3) Armstrong was charged with abusive sexual contact by causing bodily harm in violation of Article 120(d) (incorporating Article 120(b)(1)(B)) (2012). A general court-martial composed of members convicted him of assault consummated by a battery as a lesser included offense (LIO), and sentence him to be dismissed. The Army CCA summarily affirmed the findings and sentence.

The factual basis for the charge was that the alleged victim (the civilian wife of another officer) reported that she fell asleep on a couch during a party and awoke to Armstrong touching her. The specification as charged alleged that Armstrong: “commit[ed] sexual contact upon Mrs. BG, to wit: touching through the clothing the genitalia of the said Mrs. BG, by causing bodily harm to the said Mrs. BG, to wit: wedging his hands in between her thighs.” Gov’t Div. Br. at 9 (quoting record) (marks in original).

In United States v. Jones, CAAF explained that “the due process principle of fair notice mandates that an accused has a right to know what offense and under what legal theory he will be convicted; an LIO meets this notice requirement if it is a subset of the greater offense alleged.” 68 M.J. 465, 468 (C.A.A.F. 2010) (marks and citation omitted). When the decision was issued we analogized it to an easy button for determining LIOs.

The question in this case is whether the elements of assault consummated by a battery are a subset of the elements of abusive sexual contact by causing bodily harm

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A court-martial panel with enlisted representation convicted Sergeant Kelly, contrary to his pleas, of sexually assaulting a fellow noncommissioned officer who had become inebriated in his home after a night of drinking and playing board games. The members sentenced Sergeant Kelly to a dishonorable discharge, confinement for a year, total forfeitures of pay and allowances, and reduction to the lowest enlisted grade. That sentence was adjudged after the military trial judge instructed the panel that a dishonorable discharge was a mandatory punishment for Sergeant Kelly’s offense.

Before the Army Court, among other errors, Kelly asserted that the prosecutor’s argument (asserting that his in-court testimony was false) was improper, and that his sentence to a dishonorable discharge was inappropriately severe. In a published decision, the Army Court found that defense counsel’s failure to object to the prosecutor’s argument waived (rather than forfeited) that issue. As to Kelly’s request that his punitive discharge be set aside, the court held that it lacked the authority to even consider disturbing the mandatory minimum punitive discharge in a sexual assault case. United States v. Kelly, 76 M.J. 793 (A.C.C.A. 2017) (discussed here and discussed here).

From this background, on 22 March 2018 at 9:30 a.m., CAAF will hear oral argument on two issues. The first issue was raised by Kelly in the supplement to his petition for grant of review (discussed here):

Whether the Court of Criminal Appeals has the authority to disapprove a mandatory minimum punitive discharge.

On Kelly’s urging (see the footnote in Kelly’s Reply at *2), the Court specified the second issue itself (discussed here):

In light of this Court’s decisions in United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017) [CAAFLog case page] and United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) [CAAFlog case page] did the lower court err when it determined the standard of review was waived when there was no objection to improper argument?

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“There are a number of sources of the right to a speedy trial in the military: (1) statute of limitations; (2) Due Process Clause of the Fifth Amendment; (3) Sixth Amendment speedy-trial guarantee; (4) Articles 10 and 33 of the [UCMJ]; (5) RCM 707, [Manual for Courts-Martial]; and (6) case law.” United States v. Reed, 41 M.J. 449, 451 (C.A.A.F. 1995). These sources broadly fall into three categories: Constitutional, statutory, and regulatory.

On Monday CAAF granted review of an Army prosecution appeal under Article 62 involving the regulatory, R.C.M. 707, speedy trial right:

No. 18-0133/AR. U.S. v. James B. Hendrix. CCA 20170439. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING THE CHARGE AND SPECIFICATIONS WITH PREJUDICE FOR A VIOLATION OF R.C.M. 707.

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.

The Army CCA’s opinion is probably posted on the CCA’s website, but the website is inaccessible from the public internet (discussed here). The opinion is, however, available on Lexis at: United States v. Hendrix, 2017 CCA LEXIS 769 (A Ct. Crim. App. Dec. 14, 2017) (Lexis erroneously identifies this as an Air Force CCA case).

The accused, Private (E-2) Hendrix, was charged with two specifications of sexual assault on November 29, 2016. The alleged victim declined to participate in any prosecution, and the convening authority dismissed the charges. But then – three days later – the alleged victim changed her mind and the charges were re-preferred. Hendrix was then arraigned on June 8, 2017; 156 days after the first preferral.

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CAAF decided the Air Force case of United States v. Mooney, 77 M.J. 252, No. 17-0405/AF (CAAFlog case page) (link to slip op.), on March 12, 2018. The court concludes that the convening authority was prohibited from ordering the court-martial sentence to run consecutively with a federal sentence, reversing a published decision of the Air Force CCA and setting aside the convening authority’s action as void ab initio.

Judge Sparks writes for a unanimous court.

Senior Airman (E-4) Mooney had a sexual relationship with, and received sexually explicit images from, a 14-year-old girl. The consequences included guilty pleas in two separate forums: United States District Court and a general court-martial.

Mooney first pleaded guilty to receipt of child pornography in District Court and received a sentence of confinement for 72 months. He then pleaded guilty to sexual assault of a child and sexual abuse of a child in violation of Article 120b(b) and (c) at a general court-martial and received a sentence of confinement for 45 months, reduction to E-1, total forfeitures, and a dishonorable discharge. A pretrial agreement limited the court-martial confinement to two years.

The convening authority approved only two years of confinement, but ordered that the confinement run consecutively with (meaning begin after) the six years of confinement adjudged by the District Court. The Air Force CCA affirmed in a published decision, and CAAF granted review to determine:

Whether the convening authority’s action is void ab initio where it purports to order Appellant’s adjudged court-martial sentence to run consecutive to his previously adjudged federal sentence instead of concurrently as required by Article 57, UCMJ.

In yesterday’s decision CAAF rejects the argument that Mooney’s guilty plea waived this issue and it interprets Article 57a (10 U.S.C. § 857a) to hold that while “Congress expressly provided for deferment when a member is in custody of a state or foreign country, they intended to exclude when [as in this case] a member is in custody of the federal government.” Slip op. at 9.

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CAAF decided the certified Air Force case of United States v. Katso, 77 M.J. 247, No.17-0326/AF (CAAFlog case page) (link to slip op.) on Monday, March 12, 2018. Concluding that the Air Force CCA was wrong to apply the pretrial confinement review procedures of Rule for Courts-Martial 305 to Katso’s continued post-trial confinement while appellate review was underway, CAAF reverses the CCA’s award of 365 days of confinement credit.

Judge Ryan writes for a unanimous court.

Almost three years ago, in United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) (CAAFlog case page), CAAF reversed the Air Force CCA’s opinion that held that expert testimony violated Airman Basic (E-1) Katso’s constitutional right to confrontation. CAAF;s 2015 decision was the product of the Judge Advocate General of the Air Force certifying the case under Article 67(a)(2), and its decision reinstated Katso’s convictions of aggravated sexual assault, burglary, and unlawful entry, and the sentence of confinement for ten years, total forfeitures, and a dishonorable discharge.

Katso remained in confinement during that review. A year after the certification, however, Katso requested review of his confinement. A hearing was conducted and Katso was retained in confinement pending CAAF’s decision. Then, when CAAF returned the case to the Air Force CCA, the CCA found that Katso was entitled to credit for that year during which he was held without a hearing (despite having not requested a hearing), because that’s the remedy provided by R.C.M. 305(k) for the failure to conduct such a hearing for pretrial confinement.

The Judge Advocate General then certified the case again, with three issues:

I. Whether the Air Force Court of Criminal Appeals erred when it held that United States v. Miller, 47 M.J. 352 (C.A.A.F. 1997) required the government to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification.

II. Whether the Air Force Court of Criminal Appeals erred when it found that government’s failure to hold a continued confinement hearing within 7 days of the Judge Advocate General’s decision on certification automatically resulted in a day-for-day sentencing credit.

III. Whether Appellee was prejudiced when the government failed to hold a continued confinement hearing within 7 days of certification.

CAAF answers all three questions favorably for the Government, with Judge Ryan explaining that “the overarching problem with the AFCCA’s approach to this case is that, without any case law, or any rule-based or statutory authority, it imposed the entirety of R.C.M. 305 procedures and penalties, crafted for pretrial confinement, on the Government in a completely different context.” Slip op. at 5 (emphasis in original).

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CAAF decided the Air Force case of United States v. Condon, __ M.J. __, No.17-0392/AF (CAAFlog case page) (link to slip op.), on March 1, 2018. In a short, fact-specific opinion the court unanimously concludes that it was harmless to show the members a video of the appellant’s interrogation during which he invoked his right to counsel, affirming the decision of the Air Force CCA.

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of one issue and specified a second:

Granted Issue: Upon request by the defense counsel and utilizing a defense proposed instruction, should the military judge have provided the members with an explanation of the term “incapable”?

Specified Issue: Whether the military judge erred in admitting Appellant’s invocation of his right to counsel in his AFOSI interview at trial over defense objection, and, if so, whether that error was harmless beyond a reasonable doubt.

The granted issue is identical to the issue in United States v. Bailey, 77 M.J. 11 (C.A.A.F. Nov. 29, 2017) (CAAFlog case page), in which a unanimous CAAF held that the term incapable in the element of incapable of consenting has such a plain meaning that no instruction is required to define the term for members. It is similarly – and almost summarily – resolved here, with Chief Judge Stucky writing “that the military judge did not abuse his discretion in failing to give the proposed incorrect instruction, or a sua sponte instruction, on a term readily understandable by the members.” Slip op. at 3.

The specified issue, however, addresses the fact that Condon was interrogated by the Air Force Office of Special Investigations (AFOSI), during which he invoked his right to counsel. The investigators then told Condon that they had a warrant to search his home and asked for a key. Condon then decided to resume the interrogation. The entire process was recorded on video.

Over defense objection, the entire video (including the rights invocation) was played for the members, because the military judge “conclud[ed] it would be less confusing for the members if he gave the limiting instruction on the invocation than to redact the invocation and instruct the members on the resulting gap in the recording.” Slip op. at 3.

CAAF doesn’t find this was error. Instead, it concludes that:

we need not determine whether the admission of [Condon’s] invocation was error because we conclude he suffered no prejudice as a result—that is, even if the members were aware of the invocation later, the inclusion of it was unimportant in relation to everything else the panel considered in the case.

Slip op. at 4 (marks and citation omitted).

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CAAF decided the Air Force case of United States v. Blanks, 77 M.J. 239, No.17-0404/AF (CAAFlog case page) (link to slip op.), on Wednesday, February 28, 2018. Finding no persuasive reason to overrule 65 years of precedent holding that negligent dereliction of duty is an offense under the UCMJ, CAAF affirms the appellant’s conviction of negligent dereliction and the decision of the Air Force CCA.

Judge Ohlson writes for a unanimous court.

Senior Airman (E-4) Blanks was charged with willful dereliction of duty but convicted of the lesser included offense of negligent dereliction of duty. The factual basis for the conviction was that Blanks failed to provide adequate financial support to his wife. Blanks challenged the conviction on appeal, asserting that recent mens rea jurisprudence (the #8 Military Justice Story of 2017), including CAAF’s functionally-unanimous decision in United States v. Haverty, 76 M.J. 199, (C.A.A.F. Apr. 25, 2017) (CAAFlog case page), establishes recklessness as the lowest mens rea which separates wrongful conduct from otherwise innocent conduct, and therefore his conviction for negligent dereliction must be reversed.

Intrigued by the challenge, CAAF granted review to determine whether:

In light of this Court’s decision in United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017) [CAAFlog case page], did the military judge err when he instructed the members Appellant could be convicted of negligent dereliction of duty?

Today the court unanimously rejected the challenge. Acknowledging a “long line of precedent,” Judge Ohlson explains that “the military judge did not err, plainly or otherwise, by instructing the members on the negligent dereliction of duty offense.” Slip op. at 3. The reason is stare decisis.

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Audio of today’s oral argument at CAAF is available at the following link:

United States v. Andrews, No.17-0480/NA (CAAFlog case page): Oral argument audio.

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Barker, No. 17-0551/AF (CAAFlog case page): Oral argument audio.

United States v. Hardy, No. 17-0553/AF (CAAFlog case page): Oral argument audio.