CAAF specifies major jurisdictional issue and requests amicus briefs

Today's daily journal update included two very important orders that CAAF issued yesterday, granting review of two petitions in which the accused asked CAAF to further review a CCA ruling in an Article 62 government appeal. CAAF questions whether it has jurisdiction in such cases, an issue we previously discussed here. One of the granted cases is from the Army and one from the Navy-Marine Corps. CAAF issued an extremely truncated simultaneous briefing schedule for the specified issues and invited amicus briefs from the Air Force and Coast Guard appellate shops. Oral argument will be held on both the substantive and jurisdictional issues on 14 November before what is sure to be a packed house on E Street.

It isn't apparent to me under the orders when, if ever, the parties are supposed to file their briefs on the merits. Can any of the parties shed light on that? Have substantive briefs already been filed on the merits?

Here are the granted issues and orders, both of which were issued yesterday:

No. 07-6004/AR. U.S. v. Eric LOPEZ de VICTORIA. CCA 20061248. On consideration of the petition for grant of review of the decision of the Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), said petition is hereby granted on the following issue raised by Appellant and modified by the Court:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE NOVEMBER 2003 CONGRESSIONAL AMENDMENT TO ARTICLE 43(b) OF THE UCMJ APPLIES RETROACTIVELY TO OFFENSES COMMITTED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT THAT WERE NOT TIME-BARRED AS OF THAT DATE, BUT THAT WERE TIME-BARRED UNDER THE PREVIOUS STATUTE OF LIMITATIONS WHEN RECEIVED BY THE OFFICER EXERCISING SUMMARY COURT-MARTIAL JURISDICTION.

and the following issue specified by the Court:

WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867(a)(2), (3) (2000), FROM DECISIONS OF THE COURTS OF CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS COURT'S DECISION IN UNITED STATES v. TUCKER, 20 M.J. 52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

Appellant and Appellee shall file briefs under Rule 25 on the specified issue no later than October 19, 2007. Reply briefs shall be filed no later than 5 days after the filing of the opposing party's brief.

The government and defense appellate divisions of the Air Force and the Coast Guard are invited to file amicus curiae briefs on the specified issue under Rule 26 no later than October 19, 2007.

Requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

The above-entitled action shall be called for hearing at 9:00 a.m. on the 14th day of November, 2007. Each side will be allotted 30 minutes to present oral argument. The hearing will cover both the assigned and specified issues.

No. 07-6005/NA. U.S. v. Joshua M. MICHAEL. CCA 200700120. On consideration of the petition for grant of review of the decision of the Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), said petition is hereby granted on the following issue raised by the Appellant:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY LIMITED THIS COURT'S HOLDING IN UNITED STATES v. CONKLIN, 63 M.J. 333 (C.A.A.F. 2006), BY FINDING THAT "IT APPEARS THE MILITARY JUDGE APPLIED AN ERRONEOUS STANDARD OF REASONABLENESS" IN SUPPRESSING THE SEARCH OF APPELLANT’S LAPTOP COMPUTER.

and the following issue specified by the Court:

WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867(a)(2), (3) (2000), FROM DECISIONS OF THE COURTS OF CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS COURT'S DECISION IN UNITED STATES v. TUCKER, 20 M.J. 52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

Appellant and Appellee shall file briefs under Rule 25 on the specified issue no later than October 19, 2007. Reply briefs shall be filed no later than 5 days after the filing of the opposing party's brief.

The government and defense appellate divisions of the Air Force and the Coast Guard are invited to file amicus curiae briefs on the specified issue under Rule 26 no later than October 19, 2007.

Requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

The above-entitled action will be called for hearing on the 14th day of November, 2007. This hearing will commence immediately following the hearing in United States v. Lopez de Victoria, 07-6004/AR. Each side will be allotted 30 minutes to present oral argument. The hearing will cover both the assigned and specified issues.