CAAFlog » TWIMJ

This week at SCOTUS: The Solicitor General filed the government’s brief in Briggs on January 6, 2020. It’s available here. The Solicitor General also received a second extension of time to file the requested response in McDonald.

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

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, January 14, 2020, at 9:30 a.m.:

United States v. Wall, No. 19-0143/AR (CAAFlog case page)

Granted 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.

Specified issue: Whether the granted issue is ripe for review at this time.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Blog post: CAAF questions ripeness
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s supplemental brief
Appellee’s (Gov’t Div.) supplemental brief
Blog post: Argument preview

Followed by:

United States v. Gonzalez, No. 19-0297/AR (CAAFlog case page)

Granted 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.

Specified issue: Whether Appellant waived or forfeited his objection to the Army Court’s instructions to the convening authority.

Case Links:
ACCA opinion
ACCA opinion after remand
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

Wednesday, January 15, 2020, at 9:30 a.m.:

United States v. Washington, No. 19-0252/AR (CAAFlog case page)

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.”

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

Followed by:

United States v. Avery, No. 19-0259/AR (CAAFlog case page)

Issue: Whether the specification of Charge II, alleging the communication of indecent language to a child in violation of Article 134, UCMJ, was preempted by Article 120b.

Case Links:
ACCA opinion
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 next scheduled oral argument at the Army CCA is on January 23, 2020, at Widener University Commonwealth Law School.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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 five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on January 14, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 23, 2020, at Widener University Commonwealth Law School.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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 five cases:

This week at CAAF: The next scheduled oral arguments at CAAF are on January 14, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 23, 2020, at Widener University Commonwealth Law School.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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 cert. petition (available here) was filed in Voorhees v. United States, No. 19-795, on Dec. 20, 2019. Earlier this year, in United States v. Voorhees, 79 M.J. 5 (C.A.A.F. Jun. 27, 2019) (CAAFlog case page), CAAF unanimously found grievous error in the prosecutor’s personal attacks on defense counsel, personal attacks on the accused, expressions of personal opinion, bolstering, and vouching, but nevertheless found the error harmless. The court also held that the offense of conduct unbecoming an officer in violation of Article 133 is a general intent crime that requires only that the accused intended to commit the conduct alleged (without any specific knowledge or intent regarding its unbecoming nature). The cert. petition addresses only that second holding, with the following question:

In Elonis v. United States, 135 S.Ct. 2001 (2015), this Court reaffirmed a long-standing principle under both the Fifth Amendment’s Due Process Clause and the Sixth Amendment’s Informed Clause, that criminal statutes must contain a mens rea element–with the exception of strict liability offenses. Furthermore, as Elonis explains, a “defendant must be ‘blameworthy in mind’ before he can be found guilty” of any offence in order to differentiate between lawful and unlawful conduct. Id. at 2009. Where a criminal statute is silent about scienter, a court must “read into” a criminal charge a mens rea element in its jury instructions as Elonis and its antecedents held, and as refined in Rehaif v. United States, 139 S.Ct. 2191 (2019).

Petitioner was convicted of five counts of violating 10 U.S.C. § 933, Article 133, Uniform Code of Military Justice, for “conduct unbecoming an officer.”

The Question Presented is:

Does this mens rea or scienter principle apply to criminal prosecutions under the Uniform Code of Military Justice, where the underlying statute at issue, 10 U.S.C. § 933, contains no mens rea element and the U.S. Court of Appeals for the Armed Forces held below that only a general intent was required using an objective, versus subjective standard, i.e., negligence, and thus, no mens rea element need be instructed to the jury, even where the “conduct” alleged to be criminal, is facially non-criminal?

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

This week at CAAF: The next scheduled date for oral argument at CAAF is January 14, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 23, 2020, at Widener University Commonwealth Law School.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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: The Court granted an extension of time to file a cert. petition in Kelly v. United States, No. 19A645 (disclosure: I represent the petitioner in my private capacity). In United States v. Kelly, 77 M.J. 404 (C.A.A.F. 2018) (CAAFlog case page), a unanimous CAAF held that a court of criminal appeals has the power to disapprove a mandatory minimum punitive discharge, reversing a published en banc (but non-unanimous) decision of the Army CCA. CAAF remanded the case, but on remand the Army Court held that it was prohibited from conducting a plenary review because “CAAF has retained jurisdiction over the case.” United States v. Kelly, 78 M.J. 638, 640 (A. Ct. Crim. App. Nov. 30, 2018) (en banc). CAAF thereafter denied review.

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

This week at CAAF: The next scheduled date for oral argument at CAAF is January 14, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on January 23, 2020, at Widener University Commonwealth Law School.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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: The next scheduled date for oral argument at CAAF is January 14, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 13, 2020, at the University of Texas at Austin.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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 will hear oral argument in two cases this week:

Wednesday, December 4, 2019, at 9:30 a.m.:

United States v. Easterly, No. 19-0398/AF (CAAFlog case page)

Issue: Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s (Gov’t Div.) brief
Appellee’s brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Finch, No. 19-0298/AR (CAAFlog case page)

Issue: Whether the military judge erred in admitting over defense objection the video-recorded interview of AH by CID because it was not a prior consistent statement under Mil.R.Evid. 801(d)(1)(B).

Case Links:
ACCA opinion (78 M.J. 781)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 13, 2020, at the University of Texas at Austin.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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:  The petition in Hutchins was denied on Nov. 18.

Additionally, on Nov. 21, the Court requested a response to the cert. petition in McDonald, and on Nov. 22 the Army Trial Defense Service filed this amicus brief in support of the petition.

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

This week at CAAF: The next scheduled oral argument at CAAF is on December 3, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on February 13, 2020, at the University of Texas at Austin.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 5, 2020, at the George Washington University Law School.

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:  The Court granted the Solicitor General’s petitions for certiorari in Briggs and Collins (noted here), and consolidated the cases under Briggs. The Court also granted an additional extension of time to file a response to the petition in Richards. Finally, McDonald was distributed for conference on Dec. 6.

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

This week at CAAF: The next scheduled oral argument at CAAF is on December 3, 2019.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, November 21, 2019, at 10 a.m.:

United States v. McDonlad, No. 20180387

Issue: Whether the offense of communicating indecent language to a child under Article 134, UCMJ, has been preempted by Article 120b, UCMJ.

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 will hear oral argument in one case this week, on Thursday, November 21, 2019, at 10 a.m., at the Navy-Marine Corps CCA courtroom:

United States v. Harpole (CAAFlog case page

Issue: Whether the DuBay Judge’s findings, which support the conclusion that trial defense counsel were not ineffective in failing to file a suppression motion on the basis of Article 31(b) where the victim advocate suspected SN Harpole of sexual assault and did not provide a rights advisement before questioning him, are clearly erroneous

This week at the NMCCA: The Navy-Marine Corps CCA, sitting en banc, will hear oral argument in one case this week, on Wednesday, November 20, 2019, at 9 a.m.:

United States v. Begani, No. 201800082

Issues:
A. Does Article 2 of the Uniform Code of Military Justice violate Appellant’s right to Equal Protection by subjecting him to court-martial as a member of the Fleet Reserve, if retired members of a reserve component are not subject to court-martial, except when receiving hospitalization from an armed force?

B. Are members of the Fleet Reserve “similarly situated” for Equal Protection purposes with retired members of a regular component and retired members of a reserve component?

C. What is the appropriate standard of review for this Court to apply to Article 2 in deciding an Equal Protection challenge?

Prior coverage:
NMCCA opinion (withdrawn)
Blog post: The NMCCA torpedoes Article 2
Blog post: The fundamental flaw in the NMCCA’s decision in Begani
Blog post: NMCCA withdraws opinion, grants reconsideration

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 is on December 3, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2019.

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 next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2019.

This week at SCOTUS: On Oct. 28 a new cert. petition was filed in McDonald v. United States, No. 19-557. The petition is available here. In United States v. McDonald, 78 M.J. 376 (C.A.A.F. Apr. 17, 2019) (CAAFlog case page), a unanimous CAAF 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, because “the burden is on the actor to obtain consent, rather than the victim to manifest a lack of consent.”

The question presented in the McDonald cert. petition is:

Whether Congress’s omission of a mens reafor the offense of sexual assault by bodily harm means mere negligence as to the lack of consent suffices.

The Solicitor General waived the right to respond on Nov. 1.

In other news, the cert. petition in Hutchins was distributed for conference on Nov. 15. 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 four cases this week:

Tuesday, November 5, 2019, at 9:30 a.m.

United States v. Jessie, No. 19-0192/AR (CAAFlog case page)

Issues:
I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions.

II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims.

III. 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.

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

Followed by:

United States v. Muller, No. 19-0230/AF (CAAFlog case page)

Issues:
I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals.

II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings.

III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit.

Case Links:
AFCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Amicus brief: Navy-Marine Corps Appellate Defense in support of Appellant
Blog post: Argument preview

Wednesday, November 6, 2019, at 9 a.m.

United States v. Davis, No. 19-0104/AR (CAAFlog case page)

Issue: Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016).

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

Followed by:

United States v. Turner, No. 19-0158/AR (CAAFlog case page)

Issue: Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful.

Case Links:
ACCA opinion
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 next scheduled oral argument at the Army CCA is on November 21, 2019.

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 next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2019.

This week at SCOTUS: The cert. petitions in Briggs and Collins have been distributed for conference on Nov. 8. Additionally, the Solicitor General filed this reply brief in Collins. The Solicitor General also waived the right to respond to the cert. petition in Hutchins.

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

This week at CAAF: The next scheduled oral arguments at CAAF are on November 5, 2019.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 21, 2019.

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Da Silva, No. 39599, on Wednesday, October 30, 2019, at 10 a.m. No additional 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 next scheduled oral argument at the Navy-Marine Corps CCA is on November 20, 2019.

This week at SCOTUS: A new cert. petition was filed in Hutchins v. United States, No. 19-489, on Oct. 11, 2019. The petition is available here. In United States v. Hutchins, 78 M.J. 437 (C.A.A.F. May 29, 2019) (CAAFlog case page), CAAF conducted its third review of the court-martial prosecution of Sergeant Hutchins for his participation in a 2006 kidnap-murder conspiracy in Iraq that is colloquially known as the Hamdania incident, and the court unanimously affirmed convictions of conspiracy, murder, and larceny. The question presented in the cert. petition is:

Whether the right under the Double Jeopardy Clause to the issue preclusive effect of an acquittal applies where precluded and un-precluded facts are alternative grounds for essential elements of a criminal charge.

Additionally, while it’s not yet on the Court’s website, an extension of time to file a cert. petition was requested in Voorhees v. United States. In United States v. Voorhees, 79 M.J. 5 (C.A.A.F. Jun. 27, 2019) (CAAFlog case page), CAAF unanimously found that the prosecutor’s personal attacks on defense counsel, personal attacks on the accused, expressions of personal opinion, bolstering, and vouching, amounted to grievous error, but nevertheless found the error harmless.

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 three cases this week:

Tuesday, October 22, 2019, at 9:30 a.m.

United States v. Hennis, No. 17-0263/AR (CAAFlog case page)

Issues:
I. Whether a break in Appellant’s service foreclosed the exercise of court-martial jurisdiction.

II. Whether the charges arose in the Armed Forces, and fell within the subject matter jurisdiction of a capital court-martial.

III. Whether the court-martial had personal jurisdiction over Appellant.

IV. Whether the military judge denied appellant a meaningful opportunity to present a complete defense.

V. Whether the military judge abused his discretion in restricting defense counsel’s voir dire and in denying defense challenges for cause.

Case Links:
ACCA opinion (75 M.J. 796)
Blog post: ACCA affirms death for Hennis
Blog post: Hennis docketed at CAAF
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Wednesday, October 23, 2019, at 9:30 a.m.

United States v. Bess, No. 19-0086/NA (CAAFlog case page)

Issues:
I. Whether the convening authority’s selection of members violated the equal protection requirements of the Fifth Amendment.

II. Whether the convening authority’s selection of members constituted unlawful command influence.

III. Whether the lower court erred in affirming the military judge’s denial of Appellant’s motion to produce evidence of the racial makeup of potential members.

Case Links:
NMCCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Amicus brief in support of Bess
Blog post: Argument preview

Followed by:

United States v. Guardado, No. 19-0139/AR (CAAFlog case page)

Issue: Whether the military judge abused his discretion by failing to grant Appellant Article 13, UCMJ, credit in consequence of the Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) violation present here.

Case Links:
ACCA opinion
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: 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.