On December 1, 2020, CAAF heard oral arguments in United States v. Uribe, on the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING A JOINT MOTION TO RECUSE.
Uribe oral arguments and briefs here.
Today, CAAF will hear oral arguments in United States v. Harpole. Seaman Koda M. Harpole's case is based upon two assignments of error:
(1) whether the victim advocate was required to advise Appellant of his rights under Article 31(b), UCMJ?; and
(2) whether the trial defense counsel was ineffective when they failed to move to suppress Appellant's statement to the victim advocate when such statement was taken in violation of Article 31(b), UCMJ?
Harpole briefs here.
This morning I enjoyed a nostalgic in-person visit to CAAF's arguments, which had an elevated quality thanks to excellent counsel (especially for Upshaw).
I ran into Upshaw's attorneys on the stairs and we had an interesting discussion about Judge Sparks's line of questioning. The conundrum is this: how can an error be tested for whether or not it meets a burden (HBRD) if the error is itself an erroneous description of a burden (Hills--preponderance for past acts). See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993) ("[T]he essential connection to a 'beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings. A reviewing court can only engage in pure speculation—its view of what a reasonable jury would have done. And when it does that, 'the wrong entity judge[s] the defendant guilty'” ) (erroneous reasonable doubt instruction is structural error).
Today, December 1, 2020, CAAF will hear oral arguments in United States v. Upshaw. CAAF granted review on the following two issues:
(1) WAS THE MILITARY JUDGE’S IMPROPER PROPENSITY INSTRUCTION, IN VIOLATION OF UNITED STATES V. HILLS, 75 M.J. 350 (C.A.A.F. 2016), HARMLESS ERROR BEYOND A REASONABLE DOUBT?; AND
(2) WAS A RECUSED JUDGE'S SUBSTANTIVE PARTICIPATION IN APPELLANT'S CASE AFTER HE RECUSED HIMSELF HARMLESS ERROR?
Upshaw briefs here.
Today, December 1, 2020, CAAF will hear oral arguments in United States v. Uribe. CAAF granted Staff Sergeant Ryan G. Uribe's petition for review on the following issue:
WHETHER THE LOWER COURT ERRED IN FINDING THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING A JOINT MOTION TO RECUSE
Conviction & Sentence
Appellant was convicted of one specification of Art. 120, UCMJ, for sexual assault on divers occasions. He was then sentenced by the military judge to a dishonorable discharge, 20 months confinement, reduction to E-1, and a reprimand.
Uribe briefs here.
Editor's note: A recap of Uribe's oral arguments will be posted in the coming days.
In light of the responses to the recent Task and Purpose article, I thought a look at court-martial numbers and experience in the Air Force might be appropriate. The data comes from the annual reports available on the CAAF website and on the Joint Service Committee on Military Justice’s website and my review of official biographies.
Friends of CAAFlog Prof. Rachel VanLandingham, Prof. Joshua Kastenberg, and Don Christensen weigh in here: https://taskandpurpose.com/news/william-cooley-air-force-sexual-assault
Their main criticism is that the regular rotation from job to job prevents the development of expertise in criminal litigation.
Update: A response from Gregory Speirs here.
There can be no doubt--these people are experts. Prof. Dunlap should explain his repeated use of scare quotes around that word, which is a departure from norms of academic civility.
On Nov 9, the CAAF reversed the NMCCA in United States v. White. Judge Maggs delivered the unanimous opinion of the Court.
White opinion here.
The AFCCA affirmed the findings and sentence of Airman First Class Jenna E. Shouey, finding no error materially prejudicial.
Shouey opinion here
Counsel for SGT Bergdahl filed this reply today in his ACCA coram nobis case:
The AFCCA affirmed the findings and sentence of Second Lieutenant D'Andre M. Johnson, finding no error materially prejudicial to his substantial rights.
Johnson opinion here.
The NMCCA affirmed the findings and sentence of Lance Corporal Jonathan Quezada, finding no material prejudice to his case.
Quezada opinion here.
Practically: Not so important. There are very few retiree cases.
Symbolically: Hugely important. Larrabee shows that the talismanic invocation of "good order and discipline," absent a rational underpinning, is insufficient to decide the limits of military jurisdiction--even if Congress is the institution invoking it. The judiciary's response: "Please!"
We will be sure to watch the inevitable appeal and keep readers updated on its status.
U.S. District Court for the District of Columbia limits Congress’s provision of court-martial jurisdiction over military retirees
Larrabee v. Braithwaite, No. 19-654-RJL (D.D.C.)
In a consequential memorandum opinion issued on Friday, Judge Richard J. Leon of the United States District Court for the District of Columbia ruled that Congress’s grant of court-martial jurisdiction over military retirees in the Fleet Marine Corps Reserve for offenses committed after their retirement is unconstitutional. While the Court did not explicitly determine that court-martial jurisdiction over all military retirees is per se unconstitutional, the practical reach of the Court’s decision is likely to significantly curtail such jurisdiction over retirees for crimes committed after their retirement from active-duty service.
Yesterday, November 19, 2020, Professors Joshua Kastenberg and Rachel Vanlandingham filed a brief with ACCA in support of Bergdahl.
Elizabeth M. Berecin
On Monday, the D.C. Circuit conducted a nearly hour long oral argument in the case of Kareem v. Haspel, a case that asks whether an American citizen has the right to know whether they are being targeted for assassination, when the government claims that fact is secret.
Judge Patricia Millett expressed a great deal of concern that the Justice Department's argument would effectively mean that the government could assassination anyone, anywhere in the world, at its discretion. Judge Karen Henderson, by contrast, was skeptical of Kareem's claims, calling his fear of being the target of a drone strike a "spectacular delusion of some sort of grandeur." The outcome of the case is likely therefore to come down to Judge Sri Srinavasan, who served as Deputy Solicitor General early in the Obama Administration.
CAAFlog continues to expand. Today we are pleased to announce four new editors.
Dateline: 20 November 2020 (as of 1000); a summary of the week’s events.
The recent opinion of the United States Court of Appeals for the Eleventh Circuit in United States v. Boykins, 2020 WL 6441103 (11th Cir. 2020), provides a good example of testimony that violates Rule 704(b).
In Boykins, Jarrett Boykins was charged with two counts of possession of methamphetamine with intent to distribute and five related gun counts. At trial,
Officer John Walker, a member of the Birmingham Police Department and the Drug Task Force, testified as an expert witness for the government at trial. His direct examination included the following exchange:
Q. “Based on your training and experience and the evidence that you reviewed in relation to the Pleasant Grove case, do you believe that the 50-plus grams or more methamphetamine was possessed with the intent to distribute it?”
A. “Yes, sir, absolutely.”
Q. “In relation to the Homewood case, the 152 pills...do you believe that that quantity, in relation to the quantity that was possessed was possessed with the intent to distribute?”
A. “Yes, sir.”
When Boykins appealed his conviction and challenged this line of questioning, the State didn't even defend it; instead, as the Eleventh Circuit noted, "The government appears to concede, and we agree, that this testimony by Officer Walker violated Rule 704(b)....The question is whether this error satisfies the remaining prongs of plain error [because he did not object to the questioning]." (Emphasis added.)
The NMCCA affirmed the findings and sentence of Electrician's Mate Fireman Recruit Kondali A. Kangha, finding no prejudicial error.
Kangha opinion here.
The AFCCA set aside Airman Basic Robert J. Hernandez's findings of guilt and sentence, remanding his case to the convening authority for a rehearing or a dismissal.
Hernandez opinion here
On Monday, November 16, 2020, SSGT Willenbring filed a petition for extraordinary relief with CAAF. Note, this appeal comes almost nineteen years after ACCA's opinion.
"No. 21-0056/AR. Charles G. Willenbring, Appellant v. Secretary of the Army, Ryan D. Mitchell, et al., United States Army, Appellee and United States, Real Party in Interest. CCA 20200430. Notice is given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date."