CAAFlog » TWIMJ

This week at SCOTUS: Daniels filed this brief in opposition to the Solicitor General’s petition. In other news, the Solicitor General received a second extension of time to file the requested response to the petition in Richards, and the Court denied the cert. petitions in Livingstone and Camacho.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF will hear oral argument in one case this week, on Wednesday, October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah:

United States v. Rice, No. 19-0178/AR (CAAFlog case page)

Issue: Whether the double jeopardy clause of the Fifth Amendment requires dismissal of Appellant’s convictions.

Case Links:
ACCA opinion (78 M.J. 649)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 30, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: The next scheduled oral argument at CAAF (and the first of the 2019 term) is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on October 30, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA’s website is unreachable.

This week at the AFCCA: The Air Force CCA will hear oral argument in one case this week on Monday, September 30, 2019, at 10 a.m.:

United States v. Lee, No. 39531

Issue:
Whether the military judge abused his discretion in refusing to give a defense-requested instruction that the panel could consider reasonable mistake of fact as to consent as a factor when evaluating whether appellant’s conduct was indecent.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, October 3, 2019, at 10:00 a.m.:

United States v. Nichol, No. 201800286

Case Summary: A general court-martial consisting of members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of forcible rape, in violation of Article 120(a)(1), UCMJ (10 U.S.C. § 920 (2012)), two specifications of sexual assault, in violation of Article 120(b)(1)(B), UCMJ (10 U.S.C. § 920), and one specification of rape, in violation of Article 120(a)(5), UCMJ (10 U.S.C. § 920). The members sentenced Appellant to 25 years’ confinement, reduction to paygrade E-1, total forfeitures, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged

Issues:
[I]. Did the military judge err in admitting over Defense objection AOAN D.B.’s out-of-court statement pursuant to Military Rule of Evidence 801(d)(1)(B)(i) and (ii)?

[II]. Did the Appellant waive objection on appeal to the military judge’s admission of Ms. D.R.’s out-of-court statement?

Disclosure: I represent the appellant in my personal capacity and will argue this case.

This week at SCOTUS: The cert. petition in Briggs has been rescheduled and will not be considered at the Oct. 1 conference. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Friday, September 27, 2019, at 10:00 a.m.:

United States v. Ayalacruz, No. 201800193

Case Summary: A special court-martial consisting of officer members convicted Appellant, contrary to his pleas, of one specification of dereliction of duty, in violation of Article 92, UCMJ (10 U.S.C. § 892), one specification of simple assault, in violation of Article 128, UCMJ (10 U.S.C. § 928), and one specification of disorderly conduct, in violation of Article 134, UCMJ (10 U.S.C. § 934). The members sentenced Appellant to a reprimand, reduction to paygrade E-1, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged.

Issues:
I. Did the military judge violate Appellant’s constitutional protection against double jeopardy when he instructed the court members to revise the announcement of their findings?

[II]A. Did the court members acquit Appellant of both elements of simple assault in the second announcement of their findings through improper exception and substitution?

[II]B. Did the language substituted by the court members in the second announcement of their findings fail to state an offense?

This week at SCOTUS: As discussed here, Collins filed his response to the Solicitor General’s cert. petition, and the alleged victims (of both Collins and Daniels) filed an amicus brief in support of the petition. In other news, the petitions in Briggs are Camacho are scheduled for conference on Oct. 1, and the solicitor general received an extension of time to file the requested response in Richards. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, September 19, 2019, at 10 a.m.:

United States v. Smith, No. 20180156

Issue: Whether the court-martial was improperly convened where the convening authority considered criteria not listed in Article 25, UCMJ, when selecting panel members.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA will hear oral argument in one case this week, on Friday, September 20, 2019, at 12:45 p.m.:

United States v. Kunishige, No. 201800110

Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of violation of a lawful order, rapeand sexual abuse of a child, sexual assault, aggravated assault, assault consummated by battery, solicitation and distribution of child pornography, receipt and possession of child pornography, obstruction of justice, and adultery,in violation of Articles 92, 120, 120b, 128, and 134, UCMJ, 10 U.S.C. §§892, 920, 920b, 928, 934 (2016). The members sentenced Appellant to thirty-nine years of confinement, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorabled ischarge.The Convening Authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered the sentence executed.

Issues:
I. The United States argues that Appellant waived his right to discovery of communications relating to the members’ selection process. Did Appellant waive his right to discovery in light of: 1) the civilian trial defense counsel’s two written motions; 2) the military judge’s order granting the motion to compel discovery; 3) the civilian trial defense counsel’s repeated attempts to enforce the military judge’s order during trial; and 4) the trial counsel’s conflicting statements about the existence of discovery and completeness of discovery provided?

II. Did the government’s actions in 1) disclosing responsive communications on the last day of trial during presentencing proceedings; and 2) disclosing additional responsive communications shortly before a post-trial Article 39(a) session constitute a discovery violation?

III. Was Appellant materially prejudiced by either alleged discovery violation?

Significant military justice event this week: The seventh annual Joint Appellate Advocacy Training is this week, on September 10-12, at the Rosenthal Theater, Joint Base Myer-Henderson Hall, Arlington, VA.

You must have base access to reach the theater. If you do not have base access, you will need to contact JBMHH security for a visitor pass. Otherwise, no registration or RSVP is required for the training.

This week at SCOTUS: One of the two respondents in Collins (& Daniels) requested an extension of time to respond to the Solicitor General’s cert. petition. Additionally, the respondent(s) in Richards also requested an extension of time to respond. Finally, the Solicitor General waived the right to respond in Camacho.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Tuesday September 10, 2019, at 10:30 a.m.:

United States v. Rapmund, No. 20170564

Issues:
I. Whether the definition of “drunk” in the panel instructions misrepresented the law by stating that any impairment by alcohol was sufficient for the offense of drunken operation of a vehicle, which led the panel members to improperly convict on the offenses of drunken operation of a vehicle, negligent homicide, and involuntary manslaughter.

II. Whether appellant’s involuntary manslaughter conviction was supported by sufficient evidence of culpable negligence.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The next scheduled oral argument at the Navy-Marine Corps CCA is on September 27, 2019.

This week at SCOTUS: As noted here, the Solicitor General filed a reply brief in Briggs. In the companion case of Collins (& Daniels), Daniels requested an extension of time to respond to the Government’s cert. petition. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 10, 2019. The argument will be held at the New Mexico Court of Appeals.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: A new petition for certiorari was filed on August 21 in Camacho v. United States, No. 19-243. In May, CAAF summarily affirmed the Army CCA’s decision in the case (available here) that rejected claims of unlawful command influence based on the Army’s Sexual Harassment/Assault Response and Prevention (SHARP) program. The petition presents five questions:

I. Whether the Army’s Sexual Harassment Assault Response and Prevention Program (SHARP) reversed the constitutional presumption of innocence, diluted the “guilty beyond a reasonable doubt” standard of proof in criminal prosecutions, violated Fundamental Due Process, and disregarded the Sixth Amendment’s guaranty of a full and fair trial.

II. Whether the trial court, conditioned by the SHARP program’s reversal of the presumption of innocence, deprived Petitioner of his Constitutional Right to Fundamental Due Process where it allowed 13 instances of serious prosecutorial misconduct, to include making material misrepresentations in open court about digital images with which the prosecution tampered and on which the prosecution relied at trial, which further deprived Petitioner of the ability to put on a complete defense.

III. Whether the trial court, influenced by the SHARP program’s degradation of the presumption of innocence, wrongly admitted an unsigned, undated, typed copy of an “apology” letter introduced as uncharged misconduct to prove Petitioner may have assaulted his spouse and the purported victim a decade earlier, and hearsay testimony of her mother describing a graphic and degrading sexual assault of her daughter, which she did not witness.

IV. Whether the Army Court, predisposed to affirming guilt due to the SHARP program, misapplied its 10 U.S.C. § 866 plenary de novo jurisdiction when it declined to weigh the credibility of the complaining witness, where the record was replete with indications of her lack of candor and untrustworthiness, in violation of this Court’s precedent in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (standard for sufficiency of evidence to support conviction).

V. Whether the Army Court, oriented to affirming guilt due to the SHARP program, failed to follow Sixth Amendment Supreme Court precedent when it declined to factor into its ineffective assistance of counsel analysis the trial judge’s having found 12 instances where trial defense counsel did not exercise reasonable due diligence to uncover and develop exonerating and mitigating evidence.

Additionally, the Court granted an extension of time to file a cert. petition in McDonald v. United States (CAAFlog case page). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking six cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 10, 2019. The argument will be held at the New Mexico Court of Appeals.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on September 30, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: As noted here, Briggs filed his brief in opposition to the Solicitor General’s petition for cert.. In other news, the Court requested a response from the Solicitor General to the cert. petition in Richards (noted here). I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 10, 2019. The argument will be held at the New Mexico Court of Appeals.

This week at the AFCCA: The Air Force CCA’s website shows no scheduled oral arguments.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: As noted here, the Solicitor General filed a petition for certiorari in United States v. Collins, No. 19-184, on August 9. In other news, the petitions in Richards and Livingstone are scheduled for conference on October 1. I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 19, 2019.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Scilluffo, No. 39539, on Tuesday, August 13, 2019, at 10 a.m. No additional case information is available on the CCA’s website.

Disclosure: I represent the appellant as his civilian appellate defense counsel.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on September 19, 2019.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Owens, No. 39457, on Thursday, August 8, 2019, at the University of California, Hastings College of Law, Moot Courtroom (Room 423), 198 McAllister Street, San Francisco, CA 94102. No additional case information is available on the CCA’s website.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: As noted here, the Solicitor General filed a petition for certiorari in United States v. Briggs, No. 19-108, on Jul. 22. The response is due on Aug. 21.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: On Friday the Supreme Court docketed a pro se cert. petition in Livingstone v. United States, No. 19-5256, however the petition is not (yet) posted. Assuming it’s the same person, CAAF summarily affirmed the published decision of the Coast Guard CCA. United States v. Livingstone, 78 M.J. 619 (C.G. Ct. Crim. App. 2018) (available here), sum. aff’d, __ M.J. __ (C.A.A.F. Apr. 16, 2019).

In other news, the Solicitor General waived the right to respond to the cert. petition in Richards.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking four cases:

This week at CAAF: CAAF completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: A new petition for certiorari was filed in Richards v. Donovan, et al., No. 19-55. The petition is available here. The case (previously discussed here) involves an Air Force Lieutenant Colonel who was convicted of possession of child pornography and indecent acts with a child, and sentenced to confinement for 17 years, total forfeitures, and a dismissal. The Air Force CCA and CAAF affirmed the findings and sentence in United States v. Richards, No. ACM 38346, 2016 CCA LEXIS 285 (A.F. Ct. Crim. App. 2 May 2016) (unpub. op.), aff’d, 76 M.J. 365 (C.A.A.F. 2017), cert. denied, 138 S. Ct. 2707 (2018) (CAAFlog case page). Richards also filed numerous petitions for extraordinary relief with the military appellate courts, including petitions for habeas corpus that were denied on the basis of the Air Force Court’s holding that it lacks habeas jurisdiction in a case when direct review is over. Thereafter, CAAF dismissed a writ-appeal petition for lack of jurisdiction. Richards v. James, 78 M.J. 323 (C.A.A.F. 2019) (sum. disp.).

The case has a messy procedural history (with multiple petitions for extraordinary relief). In particular, there are three decisions (two orders and one opinion) on the Air Force CCA’s website addressing petitions for extraordinary relief. First, on October 19, 2018, the CCA denied a petition for a writ of mandamus in an unpublished decision. Richards v. James, No. 2017-04, 2018 CCA LEXIS 507 (A.F. Ct. Crim. App. Oct. 19, 2018) (available here). Then, on October 22, 2018, the CCA issued an order dismissing a habeas petition. Richards v. Wilson, No. 2018-07, 2018 CCA LEXIS 509 (A.F. Ct. Crim. App. Oct. 22, 2018) (available here). Finally, on December 7, 2018, the CCA issued an order dismissing a petition for a writ of mandamus (that seems to be based on the same underlying issue as the habeas petition). Richards v. Wilson, No. 2018-10, 2018 CCA LEXIS 562 (A.F. Ct. Crim. App. Dec. 7, 2018) (available here). As a result, there are three separate CCA docket numbers for petitions for extraordinary relief: 2017-04 (mandamus), 2018-07 (habeas), and 2018-10 (mandamus).

There are also multiple CAAF docket numbers. The only clear CAAF decision, however, is a summary disposition dismissing a writ-appeal petition for lack of jurisdiction. Richards v. James, No. 19-0093/AF, 78 M.J. 323 (C.A.A.F. 2019) (daily journal). According to CAAF’s daily journal, that writ-appeal was of the CCA’s action on the habeas petition (CCA No. 2018-07). I see no CAAF docket entries referencing the subsequent petition for mandamus (CCA No. 2018-10). It’s possible, however, that CAAF docket number 19-0166/AF – in which a motion for enlargement of time to file a writ-appeal was denied on February 6, 2019 – involves CCA No. 2018-10, even though CAAF’s daily journal associates that docket number with CCA No. 2018-07.

Richards’ cert. petition clearly references CAAF’s action on the habeas petition (78 M.J. 323, CAAF No. 19-0093/AF, CCA No. 2018-07), and it’s not clear that Richards filed a timely writ-appeal of the mandamus petition. Nevertheless, the body of the cert. petition challenges the CCA’s decision on the mandamus petition. The question presented is:

Can the Executive Branch divest an Article I military court of appeals of jurisdiction over an extraordinary writ brought under the All Writs Act, 28 U.S.C. § 1651(a), once jurisdiction has vested under the Uniform Code of Military Justice?

The Air Force CCA has held – seemingly in direct conflict with United States v. Denedo, 556 U.S. 904, 917 (2009) (rules of finality do not bar coram nobis jurisdiction) – that it lacks jurisdiction to grant extraordinary relief in a case that is final under Article 76. Sutton v. United States, 78 M.J. 537, 542 (A.F. Ct. Crim. App. 2018) (available here). Additionally, both the Air Force and the Army CCAs have held that they lack jurisdiction to grant habeas in a final case. See Chapman v. United States, 75 M.J. 598 (A.F. Ct. Crim. App. Feb. 18, 2016) (discussed here); Gray v. Belcher, 70 M.J. 646, 647 (Army Ct. Crim. App. 2012). CAAF seems to agree, as it held in United States v. Gray, 77 M.J. 5, 6 (C.A.A.F. 2017), that it does not have jurisdiction to entertain a request for coram nobis in a final case (discussed here and here). The Solicitor General later disagreed with CAAF’s finding of no jurisdiction (noted here).

In other news, the Solicitor General received a second extension of time to file a cert. petition in Collins.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

This week at SCOTUS: I’m not aware of any military justice developments at the Supreme Court, where I’m tracking three cases:

This week at CAAF: CAAF has completed its oral argument schedule for the current term. The first argument of the 2019 term is scheduled for October 16, 2019.

This week at the ACCA: The Army CCA’s website shows no scheduled oral arguments.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on August 8, 2019.

This week at the CGCCA: The Coast Guard CCA’s website shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.