CAAF grants [revised]

On Monday. CAAF granted review in United States v. Burleson, No. 09-0258/NA, where the granted issue is:

WHETHER, AT THE TIME OF APPELLANT'S COURT-MARTIAL, ARTICLE 134 (INDECENT ASSAULT), UNIFORM CODE OF MILITARY JUSTICE (UCMJ), WAS AN OFFENSE NECESSARILY INCLUDED IN ARTICLE 120 (RAPE), UCMJ, IN LIGHT OF ARTICLE 79, UCMJ, UNITED STATES v. MILLER, 67 M.J 385 (C.A.A.F. 2009), AND MANUAL FOR COURTS-MARTIAL, UNITED STATES, PT. IV, PARAS. 45.b(1) AND 63 (2005 ED.).

NMCCA's unpublished decision in the case is available here. United States v. Burleson, No. NMCCA 200700143 (N-M. Ct. Crim. App. Oct. 21, 2008).

CAAF also specified an issue in the previously-certified case of United States v. Bradley, No. 09-5002/NA, which we discussed here. The newly specified issue is "WHETHER APPELLEE WAIVED THE ISSUE OF THE DISQUALIFICATION OF THE TRIAL COUNSEL BY HIS UNCONDITIONAL GUILTY PLEAS." NMCCA's unpublished decision in the case is available here. United States v. Bradley, No. NMCCA 200501089 (N-M. Ct. Crim. App. Nov. 25, 2008).

CAAF grant

CAAF granted review on the following issue today:

Whether Appellant's conviction for indecent acts with another must be set aside because the military judge issued erroneous and misleading instructions supporting indecent acts as an available lesser-included offense to the original rape charge and the resulting conviction under Charge I and its specification amounted to a fatal variance.

United States v. Jones, __ M.J. ___, No. 09-0271/AF (C.A.A.F. July 1, 2009) (order).

AFCCA's unpublished decision in the case is available here. United States v. Jones, No. ACM 36965 (A.F. Ct. Crim. App. Oct. 22, 2008).

NMCCA's Ross opinion

Yesterday, we discussed CAAF's grant of a Walters/Seider issue in United States v. Ross. We have now received a copy of NMCCA's opinion in the case, which we've posted here. United States v. Ross, No. NMCCA 200800313 (N-M. Ct. Crim. App. Dec. 4, 2008) (per curiam).

This case effectively refutes some sniping in the comments section suggesting that the CCAs haven't been sufficiently attentive to Walters/Seider issues. This case was originally submitted on the merits to NMCCA, which specified the Walters/Seider issue.

New CAAF grant

CAAF granted review today on the following issue: "Whether the military judge abused her discretion in denying the defense motion to suppress all evidence from Appellant's home." United States v. Cowgill, __ M.J. ___, No. 09-0376/AF (C.A.A.F. June 23, 2009). AFCCA's unpublished decision in the case is available here. United States v. Cowgill, No. S31404 (A.F. Ct. Crim. App. June 23 2009). The AFCCA panel had split 2-1 on the validity of the search of SSgt Cowgill's home. Judge Helget's opinion for the court, joined by Judge Brand, concluded that the military judge didn't abuse her discretion by concluding that the civilian magistrate had a sufficient basis to issue the search warrant. The majority also concluded that even if there was inadequate probable cause, the fruits of the search would still be admissible under the Fourth Amendment exclusionary rule's good faith exception. Judge Jackson dissented from both of those holdings.

Two new Walters/Seider issues

When I was writing an extended post about remedies for Walters/Seider violations on Friday, I was unaware that on that very day, CAAF had granted review of two Walters/Seider issues arising from naval cases.

The granted issue in United States v. Ross, No. 09-0242/MC, is : "WHETHER, BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR THE WORDS 'ON DIVERS OCCASIONS,' THE MILITARY JUDGE RENDERED AMBIGUOUS FINDINGS NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866." I can't find NMCCA's opinion in the case anywhere online -- including in the formerly comprehensive but now useless Navy Knowledge Online. If anyone has a copy, please e-mail it to us at caaflog@caaflog.com. The wording of the issue makes clear that this is a judge-alone case, so it could present the remedy isuse we discussed regarding Wilson.

The granted issue in United States v. Trew, No. 09-0414/NA, is "WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003) AND UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND SPECIFICATION MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT CONDUCT A PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A REHEARING. SEE UNITED STATES v. WILSON __ M.J. ___ (C.A.A.F. 2009)." NMCCA's opinion in the case is published at 67 M.J. 603. We briefly discussed Trew here. Like Wilson, Trew was a judge-along court-martial. So if CAAF rules for the defense and CDR Battin is still on the bench, it could also provide CAAF with an opportunity to remand the case for clarification as a remedy for a Walters violation in a judge-alone case.

CAAF speedy trial grant

CAAF has granted review of a speedy trial issue: "WHETHER THE ARMY COURT ERRED WHEN IT RULED THAT APPELLANT'S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10, UCMJ, WAS NOT VIOLATED." United States v. Thompson, __ M.J. ___, No. 09-0145/AR (C.A.A.F. June 11, 2009). An unpublished ACCA decision granting an Article 62 appeal in the case is available here. United States v. Thompson, No. ARMY MISC. 20060901 (A. Ct. Crim. App. Nov. 30, 2006). I assume there's a more recent ACCA opinion in the case, but I can't find it online.

CAAF Abu Ghraib grant

We recently noted that ACCA will be holding oral argument next month in United States v. Lynndie England. Now we learn that CAAF will also be scrutinizing the legal fallout from Abu Ghraib. CAAF has granted review in United States v. Harman, __ M.J. ___, No. 08-0804/AR (C.A.A.F. June 11, 2009), where the granted issue is "WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN THE FINDINGS OF GUILTY BEYOND A REASONABLE DOUBT." ACCA's decision in the case, which we discussed here, is published at 66 M.J. 710.

CAAF grants

CAAF granted review of two Air Force cases yesterday. The granted issue in United States v. Ellis, No. 09-0382/AF, is: "Whether the military judge abused his discretion by allowing the government's expert witness to testify concerning Appellant's risk of recidivism." AFCCA's unpublished decision in the case is available here.

The granted issue in United States v. Myers, No. 09-0304/AF, is: "Whether the Air Force Court of Criminal Appeals erred in failing to grant any sentence relief to Appellant when that court found Appellant's due process right to timely post-trial processing was violated by the Government taking an unreasonable 946 days to return the record of trial to that court after remand for new post-trial processing." CAAF ordered that no briefs be filed. AFCCA's unpublished decision in the case is available here.

CAAF grant

While the big news of the day is SCOTUS's Denedo ruling, other courts were at work today as well. CAAF granted review of the following issue: "Whether the military judge reversibly erred when she did not dismiss the charges and specifications after she found that unlawful command influence existed in this case." United States v. Douglas, __ M.J. ___, No. 09-0466/AF (C.A.A.F. June 8, 2009).

Maynulet Case Fascinating Facts

Today's CAAF grant in United States v. Maynulet, __ M.J. ___, No. 09-0073/AR (C.A.A.F. June 1, 2009), is the latest chapter in what seems like a fascinating case. The case involves Army Captain Roselio Maynulet and an alleged unlawful killing of an Iraqi wounded during a firefight with US forces in Kufa, Iraq. As Stars and Stripes reported, here, Capt. Maynulet's case involved complex questions of conduct in "battle." This succinct summary of the case is courtesy of a thesis written by Maj. Mynda Ohman, see thesis here at page 124:

Captain Rogelio Maynulet was charged with murder and dereliction of duty for shooting an Iraqi on May 21, 2004. At the Article 32 pretrial hearing, witnesses testified that the man was badly wounded and missing part of his skull after a firefight and that CPT Maynulet told a fellow officer that he shot the man out of compassion. After the pretrial hearing, the division commander decided not to go forward with the murder charge and instead referred the charge to trial as assault with intent to commit murder. At the court-martial that began in late March 2005, CPT Maynulet was convicted of the lesser offense of assault with intent to commit voluntary manslaughter; facing a maximum of ten years of imprisonment, he was sentenced to a dismissal from the U.S. Army.

The Iraqi was rumored to be the driver for Muqtada al-Sadr, thus why the case garnered immediate attention.

Another interesting tidbit is that the case may never have come to the attention of the convening authority, but for video of the killing captured by an unmanned aerial droone. See S&S report here. The case was covered extensively in 2005 when the verdict was handed down, though the appeal to ACCA received little attention (I can't even find it on ACCA's website).

If anyone has the opinion or petition briefs please email them to us at noman@caaflog.com. We'd like to see what the mistake of law defense would have been and if it involved interpretation of ROE or something cool like that--this CBS report seems to suggest such an argument by the defense.

Part of the story of the case is the timing, March 2005. If anyone can tell us the other parallel story at that time that makes the case even more interesting you'll get . . . a big ata boy.

CAAF grant preview

I think the No Man is going to provide a post on this later providing far more detail. CAAF granted review yesterday of the following issue: "WHETHER THE MILITARY JUDGE ERRED WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF MISTAKE OF LAW." United States v. Maynulet, __ M.J. ___, No. 09-0073/AR (C.A.A.F. June 1, 2009).

CAAF grant

CAAF granted review of these two issues today:

I. Where the military judge found that Appellant and his wife had a private conversation while married and not separated, was the military judge correct that Appellant could claim the privilege under Mil. R. Evid. 504 only as to his statements during that conversation but not to his wife's as well.

II. Whether the Air Force Court of Criminal Appeals erred in finding there was no harm after overturning the military judge's ruling that Appellant's act of showing his wife that he had deleted the pictures he said he would was not communicative and therefore not privileged under Mil. R. Evid. 504.

United States v. Durbin, __ M.J. ___, No. 09-0380/AF (C.A.A.F. May 26, 2009).

CAAF grant

The second granted issue in Anderson looks fascinating:

SHOULD THE MILITARY JUDGE HAVE DISMISSED CHARGE III AS PREEMPTED, MULTIPLICIOUS, AND AN UNREASONABLE MULTIPLICATION OF CHARGES; AND THE ADDITIONAL CHARGE AS MULTIPLICIOUS WITH CHARGE I, SPECIFICATION 1, AND AN UNREASONABLE MULTIPLICATION OF CHARGES WITH CHARGE I, SPECIFICATION 2?

WAS APPELLANT AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?

United States v. Anderson, __ M.J. ___, No. 08-0344/AR (C.A.A.F. May 5, 2009).

I can find neither hide nor hair of ACCA's opinion online. If someone could throw it over our transom, we'd be grateful. As always, you can reach us at caaflog@caaflog.com.

Ediger grant, cont'

On Friday, we noted CAAF's grant of review in United States v. Ediger, __ M.J. ___, No. 08-0757/AR (C.A.A.F. Apr. 30, 2009). Here's a link to ACCA's unpublished opinion in the case. United States v. Ediger, No. ARMY 20060275 (A. Ct. Crim. App. June 11, 2008) (per curiam).

Two CAAF grants

CAAF granted review in two cases yesterday. In United States v. Ediger, __ M.J. ___, No. 08-0757/AR (C.A.A.F. Apr. 30, 2009), CAAF granted review of this rather uninformative issue: WHETHER THE MILITARY JUDGE ERRED IN ADMITTING THE TESTIMONY OF TG UNDER MILITARY RULES OF EVIDENCE 413 AND 414." ACCA's opinion in the case doesn't appear to be on its web site.

In United States v. Campbell, __ M.J. ___, No. 08-0660/NA (C.A.A.F. Apr. 30, 2009), CAAF granted review of three issues:

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE, AS (1) ITS REASSESSMENT CALCULUS WAS BASED UPON AN ERRONEOUS UNDERSTANDING OF WHAT SPECIFICATIONS WERE MERGED; (2) IT ABUSED ITS DISCRETION IN FAILING TO ORDER A SENTENCE REHEARING IN LIGHT OF APPELLANT BEING SENTENCED UPON TWICE THE AMOUNT OF SPECIFICATIONS AS APPROPRIATE; AND (3) THE UNDERLYING LOGIC USED TO NOT REDUCE APPELLANT'S SENTENCE WAS FAULTY.

WHETHER THE LOWER COURT ERRED IN FINDING THAT POSSESSION OF THE SAME IMAGES OF CHILD PORNOGRAPHY ON DIFFERENT MEDIA CAN BE CHARGED AS SEPARATE CRIMES UNDER 18 USC SECTION 2252A.

WHETHER THE LOWER COURT ERRED IN DETERMINING THAT THE THREE SPECIFICATIONS UNDER CHARGE II WERE NOT "FACIALLY DUPLICATIVE."

NMCCA's opinion in the case is available at 66 M.J. 578.

CAAF grant

Yesterday, CAAF granted review in United States v. Smith, No. 09-0169/AR, on these issues:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT ON OBEDIENCE TO LAWFUL ORDERS AS IT PERTAINED TO MALTREATMENT BY HAVING A MILITARY WORKING DOG (MWD) BARK AT A DETAINEE WHEN THERE WAS NO EVIDENCE BEFORE THE MILITARY JUDGE THAT SUCH AN ORDER WAS ILLEGAL.

WHETHER THE MILITARY JUDGE ERRED WHEN HE DID NOT INSTRUCT THE PANEL ON OBEDIENCE TO ORDERS (LAWFUL OR UNLAWFUL) AS IT PERTAINED TO MALTREATMENT BY HAVING A MWD BARK AT JUVENILE DETAINEES.

WHETHER THE EVIDENCE FOR ALL MALTREATMENT SPECIFICATIONS WAS LEGALLY INSUFFICIENT, BECAUSE THE DETAINEES WERE NOT "SUBJECT TO [APPELLANT'S] ORDERS" AND DID NOT HAVE A "DUTY TO OBEY."

CAAF issues new grant

Today's web update of CAAF's daily journal included a grant of this unlikely issue: "WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT APPELLANT'S UTTERANCE OF 'MMMM-MMMM-MMMM' WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR INDECENT LANGUAGE." United States v. Green, __ M.J. ___, No. 09-0133/MC (C.A.A.F. Apr. 17, 2009). NMCCA's unpublished opinion in the case is available here. United States v. Green, No. 200800005 (N-M. Ct. Crim. App. Aug. 28, 2008).

New CAAF grant

On Thursday, CAAF granted review of the following issues in an Army case:

WHETHER APPELLANT COMMITTED LARCENIES OF M.S.'S PROPERTY BY ENGAGING IN THE UNAUTHORIZED USE OF HER CREDIT, DEBIT, AND ATM CARDS.

WHETHER A VARIANCE AS TO OWNERSHIP IN LARCENY CASES IS FATAL IF THERE IS LEGALLY SUFFICIENT EVIDENCE THAT APPELLANT STILL COMMITTED A LARCENY OF PROPERTY.

United States v. Lubasky, __ M.J. ___, No. 09-0043/AR (C.A.A.F. March 19, 2009).

ACCA's decision in the case is available here. United States v. Lubasky, No. ARMY 20020924 (A. Ct. Crim. App. July 29, 2008). A previous ACCA decision in the case, which looks like it's more relevant to the granted issues, is available here. United States v. Lubasky, No. ARMY 20020924 (A. Ct. Crim. App. Jan. 31, 2006).

CAAF grant

As reported by Phil Cave's Court-Martial Trial Practice blog, CAAF yesterday granted review of the following issue in United States v. Morton, No. 09-0185/AR:

WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO THE ADDITIONAL CHARGE AND ITS SPECIFICATION (FORGERY), THE ARMY COURT ERRED IN FINDING APPELLANT GUILTY OF A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT.

ACCA's unpublished opinion in the case is available here. United States v. Morton, No. ARMY 20060458 (A. Ct. Crim. App. Sept. 30, 2008).

Another new CAAF grant

CAAF has now granted review of seven cases over the last fortnight. The latest is the Coast Guard case of United States v. Smith, No. 08-0719/CG, where the granted issue is: "WHETHER THE MILITARY JUDGE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONT HIS ACCUSERS BY LIMITING HIS CROSS-EXAMINATION OF [SR], THE GOVERNMENT'S ONLY WITNESS, ON THREE OF THE FIVE CHARGES." The Coast Guard Court's opinion in the case is published at 66 M.J. 556. We previously discussed the case here.