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Dateline: 28 August 2020
 
CAAF
 
            On 27 August 2020, CAAF issued its opinion in United States v. Bergdahl, an analysis is being written—standby.
 

• “Thus, simply stated, it was the totality of the circumstances surrounding Appellant’s misconduct rather than any outside influences that foreordained the Army’s handling and disposition of this case. Therefore, an objective, disinterested observer would not harbor any significant doubts about the ultimate fairness of these court-martial proceedings. Accordingly, we hold that there was no appearance of unlawful command influence in this case, and we affirm the decision of the United States Army Court of Criminal Appeals.

 

• As a threshold matter, based squarely on the plain language of Article 22, UCMJ, 10 U.S.C. § 822 (2012), Article 37, UCMJ, and R.C.M. 104, we hold that Senator McCain was capable of committing unlawful command influence and that a sitting president of the United States is also capable of committing unlawful command influence. Slip op. at 6."

 

• Query does this mean that other legislators can also commit UCI?

 
This past Saturday CAAF published a 19 August 2020 Order, No. 20-0342/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Appellant's (Government) motion to stay the trial proceedings is granted, and the trial proceedings are stayed pending further order of the Court.
 

• ACCA issued decisions in this case on 13 January and 3 June—the appellate case is an Article 62, UCMJ, appeal.

 

• The MJ had excluded hearsay statements offered by the prosecution under Mil. R. Evid. 803(1) and (2). In its 13 January decision the ACCA found no abuse of discretion by military judge in excluding the statements.

 

• The 3 June ACCA decision is on reconsideration of the 13 January decision. The ACCA reaffirmed it’s 13 January decision.

 
NMCCA
 
In Re Jordan 80 M.J. ___ (N-M.C. Ct. Crim. App. Aug. 27, 2020) (filed pro se), is a significant case of collateral attack of a conviction by a prisoner whose conviction is final. The en banc court held they lacked jurisdiction under the All Writs Act either for habeas corpus or coram nobis. Standby for an analysis and comment from Don Rehkopf— “The Military’s Schizophrenic Writ Practice.”
 

• Petitioner, a former Service Member confined at Federal Correctional Institution [FCI] Petersburg, Virginia, Medium Security, filing pro se, seeks extraordinary relief in the nature of a writ of habeas corpus under the All Writs Act. In July 2019, Petitioner filed with the Court of Appeals for the Armed Forces [CAAF] what it interpreted as a petition for extraordinary relief, which the CAAF dismissed for lack of jurisdiction. In July 2020, Petitioner filed another petition for extraordinary relief, which the CAAF again dismissed for lack of jurisdiction.
• Petitioner claims he is innocent of all charged offenses due to what he asserts was perjured trial testimony of his then-minor daughter, “Tina,” the victim of his sexual offenses. To that end, he prays for a Dubay hearing and vacation of his convictions. We find that because Petitioner’s case is final and he remains in confinement, we are without jurisdiction to consider his petition as submitted. Our holding today overturns the prior precedent of this Court insofar as it states that Article 76, Uniform Code of Military Justice (2018) [UCMJ], does not limit our jurisdiction. We further conclude that even if construed as a petition for a writ of error coram nobis, Petitioner’s claim does not merit relief.

 
In United States v. Faus, decided 27 August 2020,
 

• Appellant raises three assignments of error [AOE]: (1) the military judge abused his discretion when he failed to declare a mistrial following the trial counsel’s rebuttal argument; (2) Appellant’s sentence is inappropriately severe; and (3) the military judge abused his discretion in refusing to grant Appellant’s motion under Military Rule of Evidence 412 to offer into evidence certain text messages between Appellant and one of his victims.
• After careful consideration of the record of trial and the pleadings of the parties, we find no prejudicial error and affirm. 

 
ACCA
 
            In United States v. Castro, appellant contends that the military judge abused his discretion by accepting appellant's guilty plea to stealing gas from the GSA. Appellant does not fault the military judge's Care' inquiry as such, but rather contends that the
government charged the case incorrectly. More specifically, appellant claims that he could not have stolen gas from the GSA, because the GSA never possessed the gas.
[The court] reject[s] appellant's claim and affirm[s].
 
AFCCA
 
The AFCCA decision in United States v. (not Hugh) Jackman, No. ACM 39685 finds (again) defect in post-trial processing and remands for a do-over.
 
The AFCCA decision in United States v. Nolen, No. ACM S32559, says that,
 

• Appellant raises one issue on appeal pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): whether the findings and sentence must be set aside, and the sole Charge dismissed with prejudice, in order to negate the effects of unlawful command influence by Appellant’s chain of command. We also consider two additional issues not raised by Appellant: (1) whether the military judge erred by failing to instruct the court members orally in sentencing to vote on proposed sentences in order of severity, starting from the lightest; and (2) whether Appellant is entitled to relief for facially unreasonable appellate delay. We find no error that resulted in material prejudice to Appellant’s substantial rights, and we affirm the findings and sentence.

 
The AFCCA decision in United States v. (not Harry) Kane, No. ACM 39590, says that,
 

• On appeal, Appellant personally raises 16 issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Appellant asserts: Government agents entrapped him; his convictions are factually and legally insufficient; the Government conducted unlawful searches and seizures (Appellant alleges these as five separate errors); his speedy trial rights were violated; the Government charged him with an uninvestigated offense; the military judge erred in permitting expert testimony; the military judge erred in shifting the burden of proof to Appellant; his sentence was inappropriately severe; trial counsel made improper comments during the Government’s sentencing argument; he was subjected to illegal post-trial punishment; the convening authority took action prior to Appellant receiving a copy of the record of trial; and his trial defense counsel provided him ineffective assistance. Although not raised by Appellant, we consider whether he is entitled to relief for facially unreasonable post-trial delay.

 

• Of interest is that AFCCA took the time to write 25 pages on purely Grostefon issues yet granted no relief. I think it is fair to say AFCCA took their Article 66, UCMJ, responsibly here. Do not be discouraged—A CCA and CAAF have found prejudicial error in Grostefon issues sometimes. I know some appellate attorneys are reluctant to submit Grostefon issues because they “detract” from the merits of the issues. I take the opposite side.

 
The AFCCA decision in United States v. (not Deborah) Kerr, No. ACM S32570, saves some time because, “Appellant [only] raises one assignment of error on appeal: whether he is entitled to new post-trial processing because the staff judge advocate’s recommendation (SJAR) misstated the authority of the convening authority to grant clemency and the addendum to the SJAR failed to correct the error. We find the errors do not require new post-trial processing and action and affirm.
 
In the AFCCA decision in United States v. (not Blake) Griffin, No. ACM S32638, is not worth the read.
 
In the AFCCA decision in United States v. (definitely not Jen) Matichuk, No. ACM S32611, the Appellant thought his sentence didn’t agree with him for “one specification of wrongful use of a controlled substance on divers occasions and one specification of wrongful distribution of a controlled substance on divers occasions[.]” AFCCA did not agree and prescribed Pepcid twice a day.
 
In the AFCCA decision in United States v. Simon (not Templar), No. ACM S32569, the court says that,
 

• On appeal, Appellant personally raises two assignments of error pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). Appellant asserts: (1) the military judge committed plain error by considering a victim impact statement and failing to identify on the record which portions of the statement he was considering for the purposes of Rule for Courts-Martial (R.C.M.) 1001A; and (2) trial counsel’s sentencing argument was improper, amounting to plain error. Finding no error materially prejudicial to a substantial right of Appellant, we affirm the findings and sentence.

 
In the AFCCA decision in United States v. (definitely not Olympia) Snow[e], No. ACM S32584, the court says that, well—never mind—it’s another post-trial error case.
 
In the News—pending appellate cases.
 

• Navy Times is now reporting that, “Arson is suspected as the cause of a July 12 fire that left extensive damage to the amphibious assault ship Bonhomme Richard docked off San Diego, and a U.S. Navy sailor was being questioned as a potential suspect, a senior defense official said Wednesday.”

 

• Salem News has an article about “SEALs pulled from Iraq.” From a lengthy article here is why there is at least one possible appellate case.

 
The Navy fired three SEAL leaders in the aftermath of the alleged rape on the Iraq air base and charged one operator, an enlisted SEAL, with sexual assault, aggravated assault via strangulation and assault by battery for allegedly biting the victim on the face, according to his charge sheet. He faces a court-martial in November.
 
A hearing in the case was held Friday at Naval Base San Diego. At the hearing, the lawyer for the SEAL, said he was concerned his client, who identifies as “non-white,” cannot get a fair trial because of systemic racism in the military justice system, pointing out that there are no Black judges on the Navy bench.
 
Worth the Read.
 
Donald A. Dripps, Due Process Overbreadth? The Void for Vagueness Doctrine, Fundamental Rights, and the Brewing Storm over Undefined Consent in Sexual Assault Statutes. San Diego Legal Studies Paper No. 20-464 (2019). 73 OKLAHOMA L. REV. 119 (2019).
     

• This Article, contributed to a symposium on "Commerce, Institutions, and Consent" held at the University of Oklahoma Law School on October 19th, 2019, explains how three distinct legal developments are on a collision course. The criminal law of sexual assault has evolved to focus primarily on negative sexual autonomy, but there is no normative consensus on just what “consent” means, nor does typical statutory language suggest considered legislative choice from among the possible meanings. Meanwhile, time has reinforced the Supreme Court’s elevation of positive sexual autonomy above ordinary constitutional interests in Lawrence v. Texas. Finally, the Court’s decisions in Johnson and Dimaya have resolved decades of uncertainty in favor of a robust version of the void-for-vagueness doctrine.
  
  Conclusory statutory condemnations of sex without consent therefore have become plausible targets of facial constitutional challenges. The Article discusses the looming collision and offers ways to mediate the emerging conflicts among the values of negative autonomy, positive autonomy, and legality.

 
Research notes.
 
            Appellate Advocacy Blog [https://lawprofessors.typepad.com/ appellate_ advocacy/] is part of my daily news feed. On 22 August 2020, Prof. Dysart posted an item by Stephanie R. Williams, Jamison v. McClendon: Lessons in Rhetoric and Persuasion.
[https://lawprofessors.typepad.com/appellate_advocacy/2020/08/jamison-v-mcclendon-lessons-in-rhetoric-and-persuasion.html].
 
One point the piece advocates is something I like—use a quote(s) as a hook to move forward into your presentation—and if possible close with the same or similar quote. The piece concludes that “Commentators’ opinions differ on whether the Jamison court should have found the underlying facts here outside the scope of qualified immunity.” She goes on to stress the “clear tone, repetition, common sense language, and strong use of authority make the order an especially nice example of persuasive writing.”
 
Prof. Dysart posts her own piece, “Using Non-Precedential Opinions: A Practical, Cautionary Guide.” She opines, “Unpublished, or “non-precedential,” judicial opinions are especially misunderstood creatures of appellate litigation.  Yet they’re extremely common.”

Phil Cave

Military Justice Editor