CAAFlog » TWIMJ

This week at SCOTUS: The Court denied review in McDonald (CAAFlog case page) and Voorhees (CAAFlog case page). 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 postponed the April oral arguments and cancelled the May oral argument dates. The next scheduled date for oral arguments at CAAF is June 2, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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 Solicitor General filed this brief in opposition to the cert. petition in Richards. Richards responded with this motion requesting a two-week delay of distribution of the petition for conference, to enable him to file a reply. The Court granted the motion. In other news, the petition in Kelly was denied.

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 arguments at CAAF are on April 20, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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 postponed the oral argument in Hedgecock (noted last week) to a date to be determined.

This week at SCOTUS: The Supreme Court postponed its March oral arguments, including the argument in Briggs (that was scheduled for March 23). The arguments have not yet been rescheduled.

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 arguments at CAAF are on April 20, 2020.

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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 Wednesday, March 25, 2020 at 10 a.m. However, according to this order, the hearing is closed to the public at the request of the appellant because “counsel intends to discuss privileged contents of [the appellant’s] Rule for Courts-Martial 706 mental health examination.”

United States v. Hedgecock, No. 201800333

Issues:
I. Did the military judge abuse his discretion when he denied defense counsel’s motion to compel the convening authority to appoint Dr. Stephen Zieman, Ph.D., or an adequate substitute neuropsychologist, as an expert consultant to the Defense?

II. Military Rule of Evidence 409 prohibits the admission of evidence of furnishing, promising to pay, or offering to pay medical bills to prove liability for an injury. Was it plain error when the military judge allowed the Government to admit evidence that Appellant offered to pay J.A.W.’s medical expenses to prove Appellant’s “consciousness of guilt”?

This week at SCOTUS: The Solicitor General filed this reply brief in Briggs on Friday. Additionally, the petitioner in McDonald filed this reply to the Solicitor General’s opposition to the cert. petition, and the petition was distributed for conference on March 27. Finally, the petition in Voorhees was also distributed for conference on March 27.

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:

Monday, March 16, 2020, at 9:30 a.m.:

United States v. Prasad, No. 19-0412/AF (CAAFlog case page)

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 1 when it found prejudicial error as a result of a Hills violation.

Case Links:
AFCCA opinion
AFCCA opinion after sentence rehearing
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. Rich, No. 19-0425/AF (CAAFlog case page)

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?

Case Links:
AFCCA opinion (78 M.J. 591)
AFCCA opinion on reconsideration (en banc) (79 M.J. 572)
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

Tuesday, March 17, 2020, at 9:30 a.m.:

United States v. Baas, No. 19-0377/MC (CAAFlog case page)

Issues:
I. Did admission of an allegedly positive Diatherix Laboratories test for gonorrhea without testimony at trial of any 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 Diatherix failed to follow its own procedures and the result was of near zero probative value?

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

Followed by:

United States v. Moore, No. 20-0119/AR (CAAFlog case page)

Issue: Did the army court err when, upon reconsideration, it determined that the 5-year statute of limitations barred the rehearing of the two sexual assault specifications?

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

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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 March 25, 2020.

Significant military justice event this week: CAAF’s 2020 Continuing Legal Education and Training Program is this week, on Tuesday and Wednesday and Thursday, March 11-12, at the American University Washington College of Law. The registration form is available here and the schedule of events is available here.

This week at SCOTUS: The petitioner in Voorhees filed this reply to the Solicitor General’s opposition to the cert. 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 arguments at CAAF are on March 16, 2020

This week at the ACCA: The next scheduled oral argument at the Army CCA is on May 1, 2020.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on April 24, 2020.

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 March 25, 2020.

This week at SCOTUS: The cert. petition in Kelly is scheduled for conference on March 20. 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 arguments at CAAF are on March 16, 2020

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

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 March 25, 2020.

This week at SCOTUS: The Solicitor General filed this brief in opposition to the cert. petition in Voorhees, and this brief in opposition to the cert. petition in McDonald. The respondents (servicemembers) in Briggs filed their merits brief (available here), and the Court also received amicus briefs in support of the respondents from the Army Appellate Defense Division (available here), and the National Association of Criminal Defense Lawyers (available here). Finally the Solicitor General waived the right to respond to the cert. petition in Kelly.

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 arguments at CAAF are on March 16, 2020

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Garcia, No. 2019-07, on Wednesday, February 26, 2020, at 3 p.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 March 25, 2020.

Significant military justice event this week: The Joint Service Committee on Military Justice will hold a public meeting on Wednesday, February 19, 2020, at 10:00 a.m., at CAAF, about the proposed changes to the Manual for Courts-Martial for 2020 (discussed here).

This week at SCOTUS: A new military cert. petition was filed in Kelly v. United States, No. 19-1011. The petition is available here. In 2018, CAAF held that a CCA has the authority to disapprove a mandatory minimum punitive discharge, reversing a published, en banc decision of the Army CCA. On remand, however, in a second published, en banc decision, the CCA refused to consider any issue beyond the appropriateness of the discharge, concluding in part that CAAF “retained jurisdiction over the case.” 78 M.J. 638, 640 (A. Ct. Crim. App. 2018). CAAF, however, denied a petition for further review and took no further action in the case. The question presented by the petition is:

Whether a military Court of Criminal Appeals must review the results of a court-martial anew when the court previously reviewed the case but its judgment was set aside.

Disclosure: I represent the petitioner in my personal capacity and am counsel of record on 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 date for oral argument at CAAF is March 16, 2020, however no arguments are posted on the court’s public calendar.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Hernandez, No. 39606, on Thursday, February 20, 2020, at 2 p.m., at Liberty University School of Law, 1971 University Boulevard, Lynchburg, VA 24515. 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 Navy-Marine Corps CCA will hear oral argument in one case this week, on Wednesday, February 19, 2020, at 10 a.m.:

United States v. Sandoval, No. 2021800355

Issues:
I. Did the military judge err when he instructed the members they could use charged offenses to defeat BM1 Sandoval’s entrapment defense on other charges?

II. Is Specification 1 of Charge II, alleging attempted inducement of a minor, legally sufficient?

Significant military justice event this week: The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) will hold a public meeting this Friday, February 14, 2020, from 9:00 a.m. to 3:30 p.m., at the Westin Arlington Gateway Hotel, 801 N Glebe Road, Arlington, VA 22203 Arlington, Virginia. Additional details about the meeting are available here and the agenda is available here.

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: CAAF will hear oral argument in two cases this week, both on Tuesday, February 11, 2020:

At 9:30 a.m.:

United States v. Clark, No. 19-0411/AR (CAAFlog case page)

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?

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. Carter, No. 19-0382/AR (CAAFlog case page)

Issues:
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.

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).

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 will hear oral argument in one case this week, on Thursday, February 13, 2020, at noon at the University of Texas at Austin:

United States v. McPherson, No. 20180214

Issue: Whether the statute of limitations expired for the Specifications of Charge I.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on February 20, 2020.

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 February 19, 2020.

This week at SCOTUS: The Court has scheduled oral argument in Briggs for March 23, 2020. 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 arguments at CAAF are on February 11, 2020.

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

This week at the AFCCA: The Air Force CCA will hear oral argument in United States v. Painter, No. 39646, on Wednesday, February 5, 2020, at noon at the George Washington University Law School. 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 Navy-Marine Corps CCA will hear oral argument in one case this week, on Thursday, February 6, 2020, at 10 a.m.:

United States v. Simpson, No. 201800268

Issues:
I. To convict under Article 120c(a)(3), must the Government prove the attendant circumstances of both an indecent viewing under Article 120c(a)(1) and an indecent recording under Article 120c(a)(2)?

II. Whether one who causes another to deliver an indecent visual recording to oneself may providently plead guilty to distribution of that same indecent visual recording under Articles 77 and 120c(a)(3) in light of United States v. Hill, 25 M.J. 411 (C.M.A. 1988)?

III. Given the Government’s charging theory, were Appellant’s guilty pleas to Charge I, Specifications 2 and 3 provident when his alleged co-conspirator was not subject to the UCMJ?

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 February 11, 2020.

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

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 next scheduled oral argument at the Navy-Marine Corps CCA is on February 6, 2020.

This week at SCOTUS: Two amicus briefs – both in support of the Government – were filed in Briggs. First, 13 members of Congress (4 Republicans and 9 Democrats) filed this brief arguing that CAAF’s decision in Mangahas improperly rewrote the UCMJ to eliminate Congress’ intent that no statute of limitations apply to rape from 1986 onward. Second, Ms. Harmony Allen (the victim in Collins) and the special interest group Protect our Defenders filed this brief that makes a broad-based attack on CAAF’s decision in Mangahas.

In other news, the Government requested additional time to file the requested response in Richards, and it requested additional time to respond to the cert. petition in Voorhees.

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 arguments at CAAF are on February 11, 2020.

This week at the ACCA: The Army CCA will hear oral argument in one case this week, on Thursday, January 23, 2020, at 3 p.m., at the Widener University Commonwealth Law School, 3800 Vartan Way, Harrisburg, Pennsylvania  17110:

United States v. Holmes, No. 20180572

Issue: Applying self-defense, as recognized under Rule for Courts-Martial 916(e) and common law, is appellant’s conviction for maiming legally and factually sufficient?

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 next scheduled oral argument at the Navy-Marine Corps CCA is on February 6, 2020.

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.