September 2015 Term of Court

Term Stats:

Cases heard at oral argument this term: 28
Argued cases decided by authored decision: 28
Argued cases decided per curiam or by summary disposition: 0
Argued cases pending decision: 0
Other cases decided by authored decision: 1

Blog post: 2015 End o’ Term Stats

Cases with Authored Decisions (chronological by date of decision):

United States v. LaBella, 75 M.J. 52 (C.A.A.F. Dec. 11, 2015) (CAAFlog case page): In a short opinion a unanimous court holds that the Air Force Court of Criminal Appeals lacked jurisdiction to grant the appellant’s petition for reconsideration that was filed after the time for filing a petition for review by CAAF had expired.

United States v. Bess, 75 M.J. 70 (C.A.A.F. Jan. 6, 2016) (CAAFlog case page): A unanimous court concludes that the military judge abused his discretion when he provided additional evidence to the members during deliberations without allowing the appellant an opportunity to challenge the reliability of that evidence.

United States v. Riggins, 75 M.J. 78 (C.A.A.F. Jan. 7, 2016) (CAAFlog case page): A unanimous CAAF finds that assault consummated by a battery (in violation of Article 128) is not a lesser included offense of either sexual assault or abusive sexual contact by placing in fear through the use or abuse of military position, rank, or authority (in violation of Article 120(b)(1)(a) (2012) and Article 120(d) (2012)).

United States v. Busch, 75 M.J. 87 (C.A.A.F. Jan. 29, 2016) (CAAFlog case page): CAAF unanimously rejects the appellant’s ex post facto challenge to the military judge’s determination of the maximum authorized punishment for the offense of sexual abuse of a child in violation of Article 120b(c) (2012). However, sharply divided over a publishing decision involving the Manual for Courts-Martial, the court narrowly affirms the military judge’s determination, the findings and the sentence, and the decision of the Air Force CCA.

United States v. Captain, 75 M.J. 99, (C.A.A.F. Feb. 4, 2016) (CAAFlog case page). CAAF unanimously finds no prejudice to the appellant in his counsel’s failure to present extrinsic evidence of his prior good service and to maintain a written record of the appellant’s agreement to request a punitive discharge. However, the court finds that the convening authority’s action is ambiguous with respect to the punitive discharge, and remands the case for corrective action by the convening authority.

United States v. Hoffmann, 75 M.J. 120 (C.A.A.F. Feb. 18, 2016) (CAAFlog case page): CAAF unanimously finds that appellant validly withdrew his consent to seizure of his property prior to the Government meaningfully interfering with it, and the court also rejects an intuitive link between child enticement and possession of child pornography as sufficient to establish probable cause for a search, reversing the appellant’s convictions and the published opinion of the Navy-Marine Corps CCA.

United States v. Williams, 75 M.J. 129 (C.A.A.F. Feb. 23, 2016) (CAAFlog case page): In a case decided without oral argument, CAAF explains that larceny involving a debit or credit card is typically a larceny from the financial institution even though the true cardholder may suffer a consequence.

United States v. Wilder, 75 M.J. 135 (C.A.A.F. Mar. 7, 2016) (CAAFlog case page): CAAF unanimously rejects application of the judicially-created substantial information speedy trial rule, instead applying the plain language of R.C.M. 707 to find no speedy trial violation.

United States v. Gifford, 75 M.J. 140 (C.A.A.F. Mar. 8, 2016) (CAAFlog case page): Rejecting the Army CCA’s published decision that found that furnishing alcohol to a minor in violation of a general order is a strict liability (public welfare) offense, CAAF applies the Supreme Court’s recent decision in Elonis v. United States, 135 S. Ct. 2001 (2015), to conclude that the appellant must have acted with at least reckless disregard for the true age of the minors to whom he provided alcohol in order to be convicted of violating the order prohibiting such action.

United States v. Pease, 75 M.J. 180 (C.A.A.F. Mar. 17, 2016) (CAAFlog case page): A unanimous CAAF holds that the Navy-Marine Corps CCA properly defined the statutory term incapable of consenting and then rightly applied that definition to determine that the evidence was factually insufficient (despite no such definition being provided to the members at trial).

United States v. Rapert, 75 M.J. 164 (C.A.A.F. Mar. 18, 2016) (CAAFlog case page): Sharply divided, CAAF holds that the element of wrongfulness in the Article 134 offense of communicating a threat, as specified by the President, requires proof of an accused’s mens rea (“guilty mind”)

United States v. Henning, 75 M.J. 187 (C.A.A.F. Mar. 21, 2016) (CAAFlog case page): Directly reviewing the military judge’s ruling – without considering the opinion of the Army CCA that reversed the judge – a unanimous CAAF concludes that the military judge did not abuse his discretion when he excluded DNA evidence that would have been a match to approximately 1 in 220 unrelated individuals in the general population.

United States v. Atchak, 75 M.J. 193 (C.A.A.F. Apr. 12, 2016) (CAAFlog case page): Observing that Article 66(d) permits – but does not require – a court of criminal appeals to authorize a rehearing when it disapproves a finding of guilty, a unanimous CAAF finds that the Air Force CCA did not abuse its discretion by not authorizing a rehearing in this certified case.

United States v. Killion, 75 M.J. 209 (C.A.A.F. Apr. 19, 2016) (CAAFlog case page): A divided CAAF holds that the military judge failed to properly instruct the members on the offense of wrongfully using provoking speech because he directed the members to consider the speech from the perspective of a hypothetical average person rather than from the perspective of the actual audience.

United States v. Chin, 75 M.J. 220 (C.A.A.F. Apr. 29, 2016) (CAAFlog case page): Sharply divided, CAAF concludes that unless an appellant explicitly waives appellate review, Article 66(c) commands a court of criminal appeals to conduct a plenary review of the case including a review to determine whether to leave a trial-stage waiver of an error intact, and the court affirms the decision of the Air Force CCA that granted limited relief for an unreasonable multiplication of charges despite pleas of guilty and a pretrial agreement that agreed to waive all waivable motions.

United States v. Williams, 75 M.J. 244 (C.A.A.F. May 3, 2016) (CAAFlog case page): Concluding that the Air Force Appellate Government Division’s successive motions for reconsideration by the Air Force Court of Criminal Appeals did not toll the 60-day deadline in CAAF’s rules for the filing of a certificate for review, a unanimous CAAF dismisses the certificate for review as untimely filed.

United States v. Cooley, 75 M.J. 247 (C.A.A.F. May. 6, 2016) (CAAFlog case page): In a lengthy opinion addressing a complicated factual scenario, CAAF unanimously overrules the substantial information rule but affirms the decision of the Coast Guard CCA that dismissed the charges for violation of the right to a speedy trial.

United States v. Gay, 75 M.J. 264 (C.A.A.F. May 11, 2016) (CAAFlog case page): Recognizing that there are limits on the power of the courts of criminal appeals to grant sentence appropriateness relief, a unanimous CAAF nevertheless concludes that the Air Force CCA could grant sentence appropriateness relief without first finding the existence of cruel and unusual punishment in violation of Article 55 or the Eighth Amendment.

United States v. Rogers, 75 M.J. 270 (C.A.A.F. May 16, 2016) (CAAFlog case page): In a case that questioned whether a member was biased by her professional and personal experiences with sexual assault, CAAF unanimously finds that the member’s uncorrected misunderstanding about an intoxicated person’s ability to consent to sexual activity constituted bias.

United States v. Caldwell, 75 M.J. 276 (C.A.A.F. May 16, 2016) (CAAFlog case page): Finding that there is no scenario where an accused could innocently engage in the kind of conduct prohibited by the general intent military offense of maltreatment, a unanimous CAAF concludes that the military judge’s instructions were not erroneous in this case but also provides specific guidance for instructions in future cases.

United States v. Clark, 75 M.J. 298 (C.A.A.F. May 17, 2016) (CAAFlog case page): In a short opinion a unanimous CAAF affirms the NMCCA’s factual determinations about credibility that were contrary to special findings by the military judge and resulted in dismissal of the appellee’s convictions of rape and forcible sodomy due to factual insufficiency.

United States v. Evans, 75 M.J. 302, (C.A.A.F. Jun. 6, 2016) (CAAFlog case page): CAAF unanimously resolves an inconsistency in its own precedent regarding the appropriate test for whether a violation of the Article 31(b) statutory right to remain silent is harmless in a particular case, holding that when only the statutory provision (and not also the Fifth Amendment right against self-incrimination) is violated then the violation is tested using the four-part test set forth in United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).

United States v. Martin, 75 M.J. 321 (C.A.A.F. Jun. 17, 2016) (CAAFlog case page): A deeply divided CAAF finds that defense counsel invited the erroneous admission of human lie detector testimony.

EV v. United States & Martinez, 75 M.J. 331 (C.A.A.F. Jun. 21, 2016) (CAAFlog case page): A unanimous CAAF finds no jurisdiction under Article 6b to entertain a writ-appeal by an alleged victim who sought to reverse a military judge’s order for disclosure of portions of her mental health records.

United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page): A unanimous CAAF finds that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity evidence undermines the presumption of innocence.

United States v. Harrell, 75 M.J. 359 (C.A.A.F. Jun. 28, 2016) (CAAFlog case page): A unanimous CAAF finds no Fourth Amendment violation in the use of a canine leading to the discovery of marijuana and glass smoking pipes in the appellant’s vehicle.

United States v. Witt, 75 M.J. 380 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page): In a short opinion the court sets aside the second decision of the Air Force CCA (that affirmed the sentence of death) and reinstates the first decision (that reversed the sentence of death), authorizing a sentence rehearing.

Howell v. United States, 75 M.J. 386 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page): Unanimously affirming that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, CAAF splits 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute.

United States v. Sterling, 75 M.J. 407 (C.A.A.F. Aug. 10, 2016) (CAAFlog case page): CAAF holds that disobedience of an order could qualify for protection under the Religious Freedom Restoration Act (RFRA), however the majority finds that the appellant (who represented herself at trial) failed to establish that the order she violated substantially burdened her exercise of religion.

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