Sometimes cases can be decided like math problems—a legal rule, when applied to the facts, makes clear the outcome. At other times, it seems as if the law provides almost no guidance to the judge, giving only a vague standard that different people might apply differently. The difference between the two is the relative “determinacy” of the relevant law. Cases of the first type are undoubtedly easier for outsiders to evaluate as “correct” or not. Cases of the second type are more difficult to evaluate in that mathematic manner, but their reduced determinacy in some sense invites a higher-order evaluation that would not be permissible in a case where a rule is strongly determinate. Put another way, when rules do not strongly constrain judicial decision making, we are freer to consider the substantive justice of the decision or, say, its implication for future cases and for the court as an institution. Apparent unlawful command influence is a doctrine in this second category. The test is one of the vaguer legal tests one might ever find: whether the official conduct “place[d] an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would…harbor a significant doubt about the fairness of the proceeding.” 76 M.J. at 249. Thus, a court reviewing a case for apparent unlawful command influence is explicitly licensed to consider “public perception[s]”[1] of “fairness.”
 
Given such a doctrinal license, and given a case involving the most egregious and high level politicization of a criminal case in recent memory, CAAF had a chance in Bergdahl to make a proclamation about its institutional status and about the military justice system more generally—to proclaim that the system was truly independent of command influence (especially of politician-commanders), and that it would stand as the guarantor of that independence. CAAF had the chance to go on record that it would not condone criminal punishment resulting from a politicized process. Such a message in this era of politicized military justice—this era in which a president criticizes the light sentences of some, but pardons others and invites them on the campaign trail—would have been most welcome.
 
Of course, CAAF did not do that. It descended into a burden-shifting maze, cloaking a judgment-call in technocratic language. And even when one descends into the maze with the court, one must conclude that it took wrong turns. Most significantly, the court sub silentio applied the actual UCI test when the question at bar was apparent UCI. The evidence for the claim that the public would perceive no unfairness, according to the court, was that the result did not seem to be affected by the UCI. The case would have been referred to a GCM regardless of the comments, and in any event he pled guilty and received a very light sentence. What this misses is that “fairness” is more capacious a concept than getting a fair result—it is also about fairness in the process. Moreover, one should not so quickly assume away the inevitability of the result. The court suggests that the most important factor (“it cannot be emphasized strongly enough”) in determining absence of unfairness was Bergdahl’s guilty plea. Op. at 20. But guilty pleas take place against a coercive backdrop of government threats, and the court should not have been so easily comforted that a plea erases any procedural unfairness. Indeed, legions of academic studies support the opposite conclusion—that many pleas are themselves the result of an unfair process. See generally, Natapoff, Punishment Without Crime; Bibas, The Machinery of Criminal Justice. Bergdahl’s plea was made in the shadow of the official comments and the public controversy.
 
Two judges realized what was at stake. Judge Sparks’s dissent details a history of the system and of the court that shows that both Congress and the early CMA judges saw UCI as a threat, and that in some sense the whole point of the court was to mitigate it. Chief Judge Stucky went to the heart of the matter: the commander-in-chief’s “vicious and demeaning” remarks were heard by various decisionmakers, and the resultant strain on the system was therefore “intolerable.” In the words of John Hart Ely, “You don't need many heroes if you choose carefully.” Ely, Democracy and Distrust (regarding Earl Warren).
 
[1] One might expect that in a case considering public perceptions, amicus briefs from members of the public would be especially welcome. In this case, though, the court inexplicably rejected two academic amicus briefs: one from myself and LOAC editor Michel Paradis, and a second from eminent historians Jonathan Lurie and Richard Kohn. This is a highly unusual practice for an appellate court.

Did McCain and Trump's Conduct Place an Intolerable Strain on the Public’s Perception of the Military Justice System?

Take the ​Anonymous Poll Here. Really...we can't see your name.

In an important decision clarifying the extent to which the law of unlawful command influence applies to senior civilians, a divided CAAF affirmed the Army Court of Criminal Appeals in United States v. Bergdahl, finding that statements made by the late Senator John McCain and President Trump did not constitute apparent unlawful command influence.

​On Tuesday, August 25th, CAAF granted the following petition for review. 

No. 20-0289/AR. U.S. v. Kevin M. Furth. CCA 20180191. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER APPELLANT RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS ERRONEOUSLY ADVISED THAT HIS PENDING RESIGNATION REQUEST, IF APPROVED, WOULD VACATE HIS GUILTY PLEA.

     CAAF reviews U.S. v. Furth, on an issue that was personally submitted to ACCA pursuant to U.S. v. Grostefan.  Furth, on appeal to ACCA, argued that his plea was improvident because he believed that acceptance of his RFGOS would vacate his findings and sentence and that the Secretary's approval of his RFGOS was an exercise of his power under Art. 74, UCMJ. Additionally, Furth submitted a Grostefan issue alleging that if the RFGOS did not set aside his findings and sentence, then he received IAC because he was advised that his plea would have that effect.
      ACCA only discussed Furth's Grostefan issue in a footnote, stating that they did not find any prejudice in his counsel's alleged deficiency. Furth's affidavit submitted to ACCA included the following language, "[i]f I had known that pleading guilty would have prevented me from fully benefitting from an approved RFGOS, I would not have pleaded guilty prior to receiving a decision on my RFGOS." However, ACCA  was not persuaded by this statement, stating that Furth did not state that "he would have pleaded not guilty but for his counsel's advice regarding the effect of a RFGOS approved post-trial." Additionally, ACCA stated that it was "objectively reasonable" to accept the plea deal.  CAAF now reviews ACCA's finding that Furth was not prejudiced by his counsel's alleged deficiency. 

ACCA's opinion here.

Global Military Reform Blog will hold its next Town Hall with Lieut. Col. Dan Maurer (West Point) who will speak on Going Deeper than the "Purpose" of Military Justice: Determining its Logic after Ortiz v. United States (Town Hall 7, Sept. 15, 2020, 0900 East Coast US Time). Please join us, and feel free to pass this invitation along to others who may be interest.

The TH is open to all

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​

The AFCCA remanded Senior Airman Christopher P. Finco's case, after finding colorable prejudice in the convening authority's decision memorandum. 

Joshua Kastenberg (University of New Mexico) has posted this article to SSRN:

FEARS OF TYRANNY: THE FINE LINE BETWEEN PRESIDENTIAL AUTHORITY OVER MILITARY DISCIPLINE AND UNLAWFUL COMMAND INFLUENCE THROUGH THE LENS OF MILITARY LEGAL HISTORY IN THE ERA OF BERGDAHL

Posted today regarding an order last week:

"No. 20-0342/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Appellant's motion to stay the trial proceedings is granted, and the trial proceedings are stayed pending further order of the Court."

This is the case in which the Government has sought interlocutory review regarding an evidentiary ruling, and TJAG certified the issue. 

On August 5, 2020, the AFCCA denied Senior Airman Charles B. Justice's writ of mandamus, asking the Court to direct the military judge to initiate proceedings in his GCM on August 10, 2020. 

On August 7, 2020, the AFCCA affirmed the conviction of Technical Sergeant Jeremy M. Holder on one specification of wrongfully possessing child pornography in violation of Art. 134, UCMJ. Opinion here.

On August 7, 2020, the AFCCA affirmed the sentence of SSgt Yogendra Rambharose, as reassessed by the convening authority. The AFCCA found that Rambharose's assignments of error did not materially prejudice his substantial rights. 

Dateline: 21 August 2020
 
12 August 2020—AFCCA issued an Order in In re Justice a writ petition.

• On 5 August 2020, Petitioner requested we issue a writ of mandamus directing the military judge to initiate proceedings in his general court-martial on 10 August 2020, the original docketed trial date. According to the petition, the Government does not have a plan for preserving Petitioner’s constitutional rights now that the military judge has granted a continuance. This court docketed the petition the same day it was filed.

 

• This is a COVID case with speedy trial implications. The petitioner is in custody because,

 

• On 16 March 2020, a criminal complaint was filed against Petitioner in United States District Court in Albuquerque, New Mexico. The complaint alleged Petitioner unlawfully imported a firearm, a violation of 18 U.S.C. § 922(l), and possessed an unregistered silencer, a violation of 26 U.S.C. § 5861(d). Petitioner was taken into custody and is currently detained at the Cibola County Detention Center (CCDC) in New Mexico.

 

• On 16 April 2020 court-martial charges were preferred on charges unrelated to the alleged importation.

 

• The issue arises because the accused was apparently COVID positive and so there were difficulties in producing him for trial. The Government requested and got a delay in trial of quite some over defense opposition.

 

• The defense petitioned, AFCCA denied.

 
12 August 2020—AFCCA decided United States v. Heeter.

• On appeal, Appellant raises two assignments of error (AOEs): (1) whether civilian trial defense counsel (JP) was ineffective when he (a) advised Appellant that he had ten days from the date JP received the staff judge advocate’s recommendation (SJAR) to submit his clemency matters, and (b) requested that the convening authority set aside Appellant’s bad-conduct discharge, which was beyond the convening authority’s power; and (2) whether new posttrial processing is required because (a) the convening authority denied Appellant the required ten days from the date he received the SJAR to submit clemency matters, and (b) the staff judge advocate (SJA) did not address JP’s request in the addendum to the SJAR. Because we find in favor of Appellant as to the second AOE, his first issue is moot and is not addressed in this opinion.

 
17 August 2020—NMCCA decides United States v. Lewis.

• Appellant was convicted, contrary to his pleas, of three specifications of failure to obey a lawful order or regulation for fraternization and wrongfully providing alcohol to a person under the age of 21, one specification of sexual assault by causing bodily harm, one specification of indecent viewing, and one specification of assault consummated by a battery. He asserts that the evidence is legally and factually insufficient to support his convictions for assault consummated by a battery, sexual assault, and indecent viewing.

 

• Bill Cassara posted a fuller note on this at https://www.caaflog.org/home/recent-nmcca-opinion-us-v-lewis.

 

• Of note, the Keago USNA, case made it to the Kenyan media. http://www.mwakilishi.com/article/diaspora-news/2020-08-20/kenyan-born-us-naval-officer-jailed-for-25-years-for-sexual-assault.

 
In the News—pending appellate cases.
 
            Ongoing events suggest the possibility of courts-martial coming from the field either as a direct result of the incidents under investigation or because commanders will pay more attention to future similar events with attendant disciplinary actions— 

• Army Times reports that Congress wants to hold hearings into the number and type of military training “accidents.” As examples of the types of issues see UnitedStates v. Cherry, 22 M.J. 284 (C.M.A. 1986); United States v. Ducharme, 59 M.J. 816 (N-M.C. Ct. Crim. App. Mar. 12, 2004) (unpub.).

 

• Army Times reports leadership and Congressional interest in the number of murders and sexual harassment at Fort Hood--here and here. On 17 August 2020, Stars & Gripes reports that the Committee to review Fort Hood’s command climate and culture has begun it’s work.

 

• “Justice Served” is a regular “service” of the Fort Hood Sentinel. They are reporting for the month of June and July 2 new appellate cases out of 21. (Quite a few acquittals including “a specialist acquitted by a military judge of one specification of attempted premeditated murder, one specification of aggravated assault with a dangerous weapon, and one specification of wrongfully appropriating a government firearm.”

 

• This all happens as Task&Purposehas a report on a third Soldier missing at Fort Hood.

 
Worth the Read.
 
            With a declaration of martial law come courts-martial. So, Joseph Nunn, Martial Law in the United States: Its Meaning, Its History, and Why the President Can’t Declare It—. The Brennan Center 20 August 2020—a topical discussion. https://www.brennancenter.org/our-work/research-reports/martial-law-united-states-its-meaning-its-history-and-why-president-cant
            
            We all have clients who are subject to sex offender registration. Here is a report which may have some small relevance or give ideas to us. Pickett, Satifka, & Shah, Labeled for Life: A Review of Youth Sex Offender Registration. Juvenile Law Center, 2020. 
https://jlc.org/sites/default/files/attachments/2020-08/Labeled%20for%20Life%20August%202020.pdf
 
            Ligeia Quackberg, The Prosecutorial Duty to Disclose Exculpatory Material: Appropriate Remedies and Sanctions. The writer was a LLM student in International Rights and Criminal Justice, Utrecht University.

• This essay will discuss the Prosecutor’s duty to disclose exculpatory evidence to the defense. It will try to highlight the different aspects of this obligation, the complexity and controversy surrounding this obligation and lastly try to specify in what way the international criminal tribunals and the international criminal court have dealt with a violation of this obligation. This obligation is seen as an essential part of the right to a fair trial. Nevertheless, it has been violated repeatedly in the history of criminal justice. The International Courts have developed a variety of remedies and sanctions to address a violation of this obligation, which will be discussed in detail. Despite this, an accountability gap exists. It is undoubtedly crucial that this obligation be respected. 

 
​             Justin Murray, Policing Procedural Error in the Lower Criminal Courts, Fordham L. Rev. (forthcoming) [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3675869].

• The criminal justice system depends on reviewing courts to formulate norms of procedural law and to make sure those norms are actually followed in the lower courts. Yet reviewing courts are not performing either of these functions very well. No single factor can fully explain why this is the case, for there is plenty of blame to go around. But the harmless error rule is a major culprit. The conventional approach to harmless error review prohibits reversal of a defendant’s conviction or sentence, even when the law was violated during proceedings in the lower court, unless that violation influenced the outcome below. This limitation impedes effective oversight of the lower courts in two significant ways. First, it enables trial judges, prosecutors, and other relevant entities (such as a district attorney’s office, to name one example) to persistently evade accountability for procedural errors, diminishing their incentives to comply with legal norms. And second, it provides reviewing courts with a handy tool to avoid resolving legal claims on their merits. Instead of holding that an error did or did not occur, thereby helping trial judges, prosecutors, and others learn what the law requires going forward, reviewing courts can—and often do—affirm on fact-bound harmless error grounds without ever adjudicating the legality of the challenged conduct.

 

• These failings call for a major shift in how courts review procedural error. [The author] propose[s] that, in addition to examining whether an error affected the outcome, as current law directs, a reviewing court should also consider whether (1) reversal would substantially help to prevent future errors, (2) the error caused substantial harm to a legally protected interest unrelated to the outcome, and (3) the benefits of reversal, as tabulated in the previous steps, outweigh its costs. After making the case for this framework and discussing how to operationalize each of its components, I then explore, a bit more tentatively, whether the same set of ideas could help stimulate much-needed rethinking of other controversial rules that further obstruct the policing of procedural error in the lower criminal courts.

 
On the horizon.
 
At Global Military Justice Reform blog, Joshua Grubaugh writes about Gangs and Extremists in the U. S. Military, activity which is or may become a source of appellate cases. https://globalmjreform.blogspot.com/2020/08/gangs-and-extremists-in-us-military.html. There is a link to a Military.com report about Army CID reports on such activity. Out in the civilian counsel world we are having people reach out who are under investigation—investigations that may lead to court-martial and an appeal.
 
A bit of history.
 
21 August 1987, Sgt. Clayton Lonetree, the first Marine court-martialed for spying, was convicted in Quantico, Va., of passing secrets to the KGB. Lonetree ended up serving eight years in a military prison. Dwight “ML” Sullivan was one of 12 counsel out of Code 45 who represented him in this one of many interesting cases. See United States v. Lonetree, 35 M.J.396 (C.M.A. 1990). The issues were complicated, including lying to a suspect that his statements would be kept confidential, lack of Art. 31, UCMJ, warnings by intelligence agents, and is there a right to a public oral argument on appeal. The case joined those seeking to set boundaries where non-DoD agents or civilian DoD employees interrogate a suspect. One of the early cases in that line is Quillen. 

• “This Court has previously addressed the question whether an AAFES store detective must give a warning. United States v. Quillen, 27 M.J. 312 (1988). There we held that an AAFES store detective "in a very real and substantial sense acted as an instrument of the military" and thus was subject to the warning requirement of Article 31(b). United States v. Ruiz, 54 M.J. 138, 140 (C.A.A.F. 2000).”

 
Research notes.
 
            We all know that the briefs in CAAF granted cases become available once oral argument is scheduled. Did you know—you now do—that the CGCCA publishes all briefs of cases pending before them—go to https://www.uscg.mil/Resources/Legal/Court-of-Criminal-Appeals/Court-of-Criminal-Appeals-Appellate-Briefs/. Briefs, even in unrelated cases or with unrelated issues can sometimes be a goldmine for your case.

​Last month, we flagged the case of Kareem v. Haspel, a case currently pending in the D.C. Circuit that asks whether U.S. citizens have a right to know whether they are being targeted for assassination abroad. The district court had dismissed Kareem's case on the ground that it was preempted by the state secrets privilege. Yesterday, Kareem filed his reply brief, arguing:

One hears rumblings through the grapevine that many members of the bar are concerned about a four-judge court acting on petitions. Of course it is simple math that fewer judges means a lower probability of potentially garnering enough votes for a grant—a zealous advocate would/should  make a claim that this prejudices his or her client. It is no surprise, then, that these rumblings broke through very recently in an amicus authored by Military Justice Editor Phil Cave for the National Institute of Military Justice (I played no role in the filing). Link here.

P.S.
Some have asked whether a motion to reconsider a grant denial on the basis of the above argument would “waive” the argument itself, since the motion would be made to a four-judge court. In other words, asking four to decide whether five are needed would constitute an admission that only four are needed. In my view the four would be able to decide this issue under the doctrine of the “Rule of Necessity.” Beer v. United States, 696 F.3d 1174, 1179 (Fed. Cir. 2012) (federal circuit judges could decide case about judicial pay despite conflict of interest because they were only tribunal able to address claims).

​No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:
 
I.  WHETHER RULE FOR COURTS-MARTIAL (R.C.M.) 912(f)(4) VIOLATES A SERVICEMEMBER'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
 
II. WHETHER APPELLANT WAIVED, FORFEITED, OR PRESERVED A CHALLENGE TO THE CONSTITUTIONALITY OF R.C.M. 912(f)(4).

​Link here.

Editor's note: FYI RCM 912(f)(4) relates to member selection/striking.

On August 7, 2020, the NMCCA affirmed the conviction of SgtMaj Schmidt for one specification of Article 120b(c), UCMJ, for committing a lewd act upon a 15 year old boy by indecent conduct. 

Five years after the 20th edition was published, the Bluebook’s 21st edition is now available. That development affects military appellate practitioners, as CAAF Rule 37(c)(2) provides, with commendable simplicity:  “Citations shall conform with the Uniform System of Citation.”  ACCA Rule 17.1(c), on the other hand, states:  “Citations must conform to the style prescribed in the current editions of the U.S. Army Court of Appeals Citation Guide, the Judge Advocate General’s School Military Citation Guide, and The Bluebook: A Uniform System of Citation, published and distributed by the Harvard Law Review Association.”  Unhelpfully, the link to “Army Court Citation Guide” on ACCA’s website is inoperable.  AFCCA Rule 17.1(a) directs:  “Citations in filings shall conform to [the] current version of the U. S. Air Force Court of Criminal Appeals Citation Guide and the most recent edition of THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al.).”  The AFCCA citation guide is available on the court’s website.  The CGCCA rules don’t appear to address citation style.  If I’m overlooking something in those rules, please let me know.  Finally, NMCCA Rule 17.2 provides:  “Citation form and writing style for appellate filings shall conform to the current edition of the Uniform System of Citation (‘Bluebook’), U.S. Government Publishing Office Style Manual, and The Chicago Manual of Style, in that order of precedence.  Once available, the citation form and writing style prescribed in the Manual of Uniform Citation and Legal Style for the Military Courts (‘PurpleBook’)—which is based on the foregoing—shall take precedence over all other citation and style guides.”  The PurpleBook?  Does anyone know its status?
 
The Bluebook’s 21st edition is more svelte than its predecessor; it comes in at only 365 pages, compared to the 560-page 20th edition.  Much of the reduction comes from exiling Table 2 – Foreign Jurisdictions – to a free online page.
 
One significant change is practitioners now have the option of citing case reporters’ names without a space where Bluebook rules would otherwise require one.  B6.  So, for example, West’s Supreme Court Reporter may be cited as either “S.Ct.” or the more traditional “S. Ct.”  The “compilers” tell use this change was made to “address word limit constraints in court documents.”  Judges everywhere are likely cursing that rule change. 
 
Another change significant for military justice practitioners is that citations to the U.S. Code no longer require a date.  Rule 12.3.2.  This will help when citing the current version of the oft-amended Uniform Code of Military Justice.  Practitioners can easily find the current edition of U.S. Code sections on the Office of the Law Revision Counsel’s website, currently updated through 8/8/2020.
 
The portion of the Bluebook’s Table 1 addressing citation of military appellate court decisions remains unchanged.  The 21st edition continues to misidentify the old Lawyers Co-operative Publishing Company’s Court-Martial Reports as “Court Martial Reports.”  And one curious omission remains.  While providing citation styles for CAAF, CMA, the CCAs, the CMRs, and the Boards of Review, the Bluebook ignores the existence of the Court of Military Commission Review.

NMCCA issued an authored opinion in the case of US v Lewis on 17 August. Appellant was convicted of three specifications of failure to obey a lawful order, one specification of sexual assault by causing bodily harm, one specification of indecent viewing, and one specification of assault consummated by a battery. On appeal, Appellant argued that his convictions for sexual assault, indecent viewing, and assault consummated by a battery were legally and factually insufficient.

  

"​The Supreme Court described the American military justice system, as it had existed for nearly two centuries from the founding of the nation through World War II, as “a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties.” At that time, the Court believed that military law “emphasize[d] the iron hand of discipline more than it [did] the even scales of justice.”

Finding this situation unacceptable, in the early 1950s, Congress dramatically reformed the military justice system to ensure that the men and women who serve in the armed forces enjoy— to the extent possible given the needs of the military—the same constitutional and legal protections that our service members swear to defend. As part of those reforms, Congress enacted the Uniform Code of Military Justice and established an independent, civilian court—the Court of Military Appeals, now the U.S. Court of Appeals for the Armed Forces. Those actions demonstrated our country’s dedication to protecting the constitutional and due process rights of service members, while also maintaining the disciplined and effective operation of the military.

Today, the success of those reforms is obvious. The Supreme Court recently observed that the Court of Appeals for the Armed Forces functions much like any other American appellate court, reviewing criminal convictions without any suggestion that it is beholden to or under the influence of the military. The Court confirmed that military justice system’s essential character is “judicial.” If confirmed and appointed, I intend to continue that tradition of judicial independence and civilian oversight of the military justice system."

--Liam Hardy, 8/4/2020, Opening Statement, Nominations Hearing, Senate Armed Services Committee

​Dateline: 14 August 2020
 
07082020—CAAF grants in White, No. 20-0231/NA
 

• "DID THE LOWER COURT ERR IN DETERMINING THE GOOD FAITH EXCEPTION APPLIED WHEN THE MILITARY JUDGE FOUND SO LITTLE INDICIA OF PROBABLE CAUSE EXISTED THAT NO REASONABLY WELL-TRAINED OFFICER WOULD RELY ON THE SEARCH AUTHORIZATION?"

 
07082020--ACCA decides United States v. Stanley.
 

• "Appellant’s case is now pending review before this court pursuant to Article 66, UCMJ. Appellant claims the military judge abused his discretion in allowing the panel to hear Private (PV2) CL’s unsworn victim impact statement pursuant to Rule for Courts-Martial [R.C.M.] 1001A. As discussed below, we find the military judge did not abuse his discretion in admitting the victim impact statement at issue and, accordingly, grant no relief."

 
12082020—ACCA decides United States v. Bruner.
 

• "On appeal, appellant raises three assignments of error, two of which we will address. In his first assignment of error, appellant contends the convening authority improperly approved appellant's sentence without a substantially verbatim transcript in violation of Rule for Courts-Martial [R.C.M.] 1103(f). In his third assignment of error, appellant avers he is entitled to relief where the government took 216 days from sentencing until action to process his record of trial. We agree with appellant on both counts."

 
07082020—AFCCA decides—yes--United States v. Bruner and, United States v. Holder.
 

• "Appellant raises two issues on appeal: whether Appellant is entitled to sentence relief because (1) the sentence to confinement for five years is inappropriately severe, and (2) his combat service was omitted from the personal data sheet (PDS) provided to the military judge and the convening authority.4 We find no error that resulted in material prejudice to Appellant’s substantial rights, and we affirm the findings and sentence."

 
And, United States v. Rambharose.
 
This is a convoluted case decided by AFCCA for the third time.
 

• "Upon our initial review, this court set aside Appellant’s conviction of one of the specifications of abusive sexual contact as factually insufficient (Specification 3). We affirmed the convictions for the remaining specification of abusive sexual contact (Specification 1) and two specifications of assault consummated by a battery (Specifications 2 and 4), and reassessed the sentence[.]"

 
CAAF remanded because of United States v. Hukill. AFCCA took additional action and remanded to the CA for a potential rehearing.
 

• "Appellant now raises three issues on appeal: (1) whether it was improper for the convening authority to reassess the sentence where this court had not expressly authorized a reassessment; (2) whether it was improper for the convening authority to reassess the sentence given the dramatic change in the penalty landscape and impossibility of ascertaining how severe the punishment would have been absent the constitutional error at trial; and (3) whether Appellant is entitled to sentence relief because the Air Force improperly discharged him while his appeal was pending. In addition, we consider whether Appellant is entitled to relief for unreasonable post-trial delay. We find no error materially prejudicial to Appellant’s substantial rights, and we affirm the sentence as reassessed by the convening authority."

 
Will CAAF grant—case to watch for. There are several fairly recent cases about what a remand means and what actions the CA can take on remand.
 
07082020—NMCCA decides United States v. Schmidt in a published opinion. (Unfortunately, NMCCA is set up to prohibit cut-and-paste.) But,
 

• "Appellant asserts the following assignments of error [AOE], which we reorder as follows: (1) the military judge erred in denying a Defense challenge for cause against a panel member; (2) the evidence is legally and factually insufficient to sustain Appellant’s conviction; (3) the military judge erred in his instructions on the definitions of “upon” and “in the presence of” in the specification; (4) the military judge erred in failing to instruct that Appellant’s honest but mistaken belief that the victim was asleep is a defense; (5) Appellant’s trial defense counsel were ineffective for failing to object to the military judge’s instructions on the definition of “upon” and “in the presence of”; (6) Appellant’s trial defense counsel were ineffective for failing to object to the Government forensics expert’s testimony as a violation of Appellant’s right to confront the person who conducted the actual forensic testing; and (7) officials at Camp Pendleton unreasonably interfered with Appellant’s ability to communicate and meet with his civilian appellate defense counsel. We find no prejudicial error and affirm."

 
Schmidt was convicted of one specification of sexual abuse of a child by masturbating in the child’s presence.
 
In the news—pending appellate cases.
 
The Omaha World-Herald (as well as other news outlets) is reporting.

• "A Navy chief petty officer who formerly worked at U.S. Strategic Command faces court-martial in Virginia on charges that he leaked classified information to a Russian national, Navy officials disclosed Thursday. Chief Petty Officer Charles T. Briggs served as an information systems technician at Offutt Air Force Base from April 2018 to July 2019, according to Navy documents. He has been held since August 2019 at a Navy brig in Virginia near his last duty station at Naval Medical Center Portsmouth. Briggs is accused of sending an email containing classified information to a Russian national “with reason to believe the information could be used to injure the United States or benefit a foreign nation” while working at Offutt in January 2019, according to a charge sheet."

U.S. v. Feeney-Clark, Army 20180694, July 20, 2020
 
No Remedy For AWOL Soldier Who Experienced Unreasonable Post-Trial Delay
 
Synopsis: Joseph-Feeney Clark is a soldier who was charged with absence of leave, however over 300 days elapsed between his sentence and the convening authority taking action. On appeal, Feeney-Clark argued that he was owed sentencing credit for the post-trial delay. Although the delay was unreasonable as it exceeded 120 days and the government provided no explanation for the delay, the Appellant had previously been granted sentencing credit that exceeded his sentence. The Court declined to provide the Appellant with a remedy and affirmed his conviction.

Appellant was convicted of one specification of attempted sexual assault of a child and two specifications of attempted sexual abuse of a child, in violation of Article 80, Uniform Code of Military Justice [UCMJ] , 10 U.S.C. § 80 (2012), for communicating indecent language to, and arranging to meet and have sex with a fictitious individual named “Sarah.” Appellant believed Sarah to be a 14-year-old female, but the individual with whom Appellant communicated was in fact an online persona portrayed by a special agent of the Air Force Office of Special Investigations. On appeal, Appellant asserts four assignments of error.[1] The Court, addressing only the first two assignments, found no abuse of discretion and affirmed the decision.

[1] (1) The military judge abused his discretion when he denied in part a Defense motion to compel an expert consultant in forensic psychology; (2) the military judge abused his discretion when he denied a Defense motion to suppress a statement by Appellant under Military Rule of Evidence [Mil. R. Evid.] 404(b); (3) trial defense counsel was ineffective for waiving a potential defense of entrapment; and (4) Appellant's convictions are not legally or factually sufficient because the special agent with whom Appellant communicated did not provide an age or gender in the chat application profile used to communicate with Appellant, and sent him images that were in fact of adults.

Opinion Here.

CAAF announced today that it granted a new case for review on Friday. The case deals with the probable cause to support a search authorization. CAAF's jurisprudence on this narrow area of law is expanding rapidly. NMCCA opinion here. DJ text here:

"No. 20-0231/NA. U.S. v. Jerry R. White. CCA 201900221. On consideration of Appellant's petition for grant of review of the decision of the United States 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 (2012), it is ordered that said petition is granted on the following issue:
 
DID THE LOWER COURT ERR IN DETERMINING THE GOOD FAITH EXCEPTION APPLIED WHEN THE MILITARY JUDGE FOUND SO LITTLE INDICIA OF PROBABLE CAUSE EXISTED THAT NO REASONABLY WELL-TRAINED OFFICER WOULD RELY ON THE SEARCH AUTHORIZATION?"