Oral arguments in the case of United States v. Briggs were presented to the Supreme Court telephonically on Tuesday, October 13. The consolidated defendants, three male military personnel who were convicted of rape in three separate incidents, claim that the UCMJ’s standard 5-year statute of limitations should have barred their prosecutions.
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Dateline: 16 October 2020 (as of 1000). SUPREME COURT
Audio. Transcript. Post argument review on SCOTUSBlog. The NMCCA affirmed the findings and sentence of SSGT Antonio X. Zamora, finding that no error materially prejudicial to Appellant’s substantial rights.
Appellant was convicted of one specification of sexual assault and one specification of unlawful entry under Articles 120 and 134, UCMJ, contrary to his pleas. Zamora opinion here. Are there criminal offenses outside of Title 10 that apply only to military members (i.e., that have a personal jurisdiction element similar to UCMJ)? Answer: Yes. The following offense was created during the Reconstruction Era. My preliminary research indicates that it has never been litigated (there is certainly no appellate caselaw interpreting it). 18 U.S. Code § 592. Troops at polls "Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States." Brenner FissellEIC The AFCCA affirmed the findings and sentence of MSG Anthony W. Harris, Jr., finding no error materially prejudiced his substantial rights.
Appellant was convicted, contrary to his pleas, of one specification of sexual assault by causing bodily harm and one specification of abusive sexual contact in violation of Article 120, UCMJ. Harris opinion here. The traditional domain name for CAAFlog -- caaflog.com -- now redirects here. Thus, the site is accessible at either .com or .org.
The AFCCA affirmed the findings and sentence of Senior Airman Damon P. Linck, finding no error materially prejudicial to his substantial rights.
Linck opinion here. United States v. Harjung
Appellant was convicted of one specification of attempted sexual abuse of a child by communicating indecent language, one specification of attempted sexual abuse of a child by touching her breasts and licking her vulva, and one specification of attempted sexual assault of a child by penetrating her mouth with his penis. Appellant was sentenced to a dishonorable discharge, confinement for 18 months, and reduction to the grade of E-1.[1] On appeal, Appellant asks the Court to consider whether the evidence is legally and factually sufficient to support a guilty verdict for Specifications 2 and 3. The Court Affirmed the decision. Tomorrow, October 13, 2020, the Supreme Court will hear oral arguments in United States v. Briggs. United States v. Briggs will determine whether the statute of limitations should have barred Michael Briggs, Richard Collins, and Humphrey Daniels, from being prosecuted for rape. SCOTUSblog preview of United States v. Briggs here. Elizabeth BerecinResearch Fellow The Orders Project
GMJR Link Washington Post Article If you are a civilian attorney (and former judge advocate) interested in joining the volunteer list, email: ordersproject@protonmail.com UP PERISCOPE
Dateline: 9 October 2020 (as of 1000). SUPREME COURT
CAAF
No. 20-0286/AF. U.S. v. Jacob M. Ozbirn. CCA 39556. 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 hereby granted on the following issue: WHETHER THE EVIDENCE THAT APPELLANT ASKED FOR "NAKED PICTURES" FROM ADULTS PRETENDING TO BE MINORS IS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR ATTEMPTED RECEIPT OF CHILD PORNOGRAPHY.
ACCA affirmed the findings and sentence of SFC Robert L. Worsham, finding that Worsham's assignments of error warranted no relief.
Worsham opinion here. "No. 20-0372/AF. Paul D. Voorhees, Petitioner v. United States, Respondent. CCA 38836. On consideration of the petition for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the petition is denied."
We previously blogged about this here. On Tuesday, September 29th, the CAAF heard arguments in United States v. White. The case involved the sufficiency of a search authorization. During the court-martial, the military judge found that no reasonably well-trained officer would rely on the search authorization, and therefore it was insufficient. However, the NMCCA granted the Government’s appeal and vacated the military judge’s ruling.
CAAF reviews Whiteon 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? Capt. Mary Finnen, USMC, argued for Appellant and Lt. Joshua Fiveson, JAGC, USN argued for the Government. White's oral arguments here. The NMCCA set aside the conviction and sentence of Lieutenant Commander Jason S. Doyle, finding his plea improvident.
Doyle opinion here ACCA affirmed the findings and sentence of Private Erick C. Black, finding no actual bias by the military judge.
Black opinion here. "No. 21-0003/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party In Interest. CCA 20200436. Notice is given that a petition for extraordinary relief in the nature of writ of prohibition and brief were filed under Rule 27(a) on this date." Anyone know what this is about?
"No. 20-0286/AF. U.S. v. Jacob M. Ozbirn. CCA 39556. 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 hereby granted on the following issue:
WHETHER THE EVIDENCE THAT APPELLANT ASKED FOR "NAKED PICTURES" FROM ADULTS PRETENDING TO BE MINORS IS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR ATTEMPTED RECEIPT OF CHILD PORNOGRAPHY. Briefs will be filed under Rule 25." Lower court opinion here. UNITED STATES V. BRIGGS UNITED STATES V. COLLINS Court: USCA-AF Granted: 11/15/19 Argument Date: 3/23/20 Date: 3/16/20 – Argument Postponed 4/13/20 - Reschedule for 2020 Term Rescheduled Argument Date: 10/13/20 Phil CaveMJ Editor As Carol Rosenberg of the New York Times reported on Friday, Col. Stephen F. Keane, USMC, JAGC, has abruptly recused himself from presiding over the military commission trial of the accused plotters of the September 11th attacks. Col. Keane had only been detailed to preside over the case on 17 September 2020, and had not presided over any of the cases' long-running series of pre-trial hearings. His only substantive ruling during his brief tenure was to suspend further pre-trial hearings until 2021 due to risks posed by the COVID-19 pandemic and his own desire to get up to speed with the case. In his decision explaining his recusal, Col. Keane cited his work for a counter-terrorism unit of the Criminal Investigation Task Force, which worked in direct support of the Office of the Chief Prosecutor, responsible for the prosecution of detainees before military commissions as well as a further deployment to Iraq. He served in this role from 2003-2004 and insisted that he had no recollection of working on any matters relating to the accused September 11th plotters. A native of New York City, Col. Keane also obliquely referred to "significant personal connection to persons who were directly affected by the events of 9/11" that he only learned over of the past few weeks. Cumulatively, Col. Keane concluded that these facts called the appearance of his impartiality into reasonable question. Finding properly security cleared and qualified military judges to preside over the Guantanamo military commissions, and the September 11th case in particular, has been a recurring source of difficulty and delay in the proceedings. In 2019, the D.C. Circuit retroactively disqualified a military judge from the USS COLE case for judicial misconduct and vacated more than four years of pre-trial proceedings. As CAAFLog readers know, similar issues risk setting another of the military commissions back in a case that is currently before the D.C. Circuit. And Col. Keane was the fifth military judge to preside over the September 11th case in little more than two years. No replacement has yet been announced. Michel ParadisLOAC Editor UP PERISCOPE
Dateline: 2 October 2020. CAAF
United States v. Kaleb S. Garcia No. 20-0262/AF (Appellee) (Appellant) Counsel for Appellant: Capt David L. Bosner, USAF (supplement) Counsel for Appellee: Capt Kelsey Shust, USAF (answer) Case Summary: Appellant is charged at a general court-martial with sexual assault. The Military Judge issued a ruling suppressing evidence and the Government appealed the ruling to the AFCCA under Art. 62, UCMJ. The AFCCA granted the Government's appeal and reversed the ruling by the Military Judge. Appellant petitioned this Court for grant of review. Granted issue questions whether the Air Force Court of Criminal Appeals erred in finding that the Military Judge abused her discretion in suppressing evidence obtained as a result of a search and seizure of Appellant's DNA. The audio recording is here.
Readers of this site know well by now that in the 2020 NDAA, Section 540F, Congress tasked the DoD to conduct a feasibility study of a proposed “alternative” justice system, including the feasibility of a pilot program to test beta versions of such a system. This alternative would remove Court-Martial Convening Authority for all “felonies” from commanding officers and shift it to senior, experienced judge advocates. As Michael Paradis wrote, this would be a significant paradigm shift with dramatic practical consequences. As I wrote previously, the 540F proposal would be an escalation from the usual talk of taking such power away for sex crimes, but was actually quite limited in scope. It did not ask the DoD to differentiate UCMJ crimes based on anything more than the felony/misdemeanor distinction, thereby ignoring potentially relevant differences between “martial” and “non-martial” offenses (I define “martial offenses” as those military-nexus offenses with no civilian analogue like AWOL, malingering, trainee abuse, disobedience, conduct unbecoming an officer, and various others that may be “prejudicial to good order and discipline”). Nor did it task DoD to critically analyze or justify the myriad other investigative, prosecutorial, and quasi-judicial authorities currently invested in commanding officers other than court-martial convening authority, like the power to authorize searches and seizures, to arrest, to detain, to confine pre-trial, to decide what to charge, to dismiss charges, to approve plea deals, and to select panel members. Nor did it require the DoD to conduct any empirical survey or study to collect and quantify useful and relevant data (like, do commanders – at all echelons – actually understand their legal authorities, or do they default to reliance on their judge advocates anyway, and do they want those legal authorities?). The DoD’s Joint Service Committee’s ad hoc subcommittee for the “Prosecutorial Authority Study” (PAS) completed the 540F task and submitted its Report earlier this month, which Brenner Fissell recently summarized and critiqued here. [READ FULL ARTICLE BELOW]
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