"No. 21-0137/AF. United States, Appellant v. Robert J. Hernandez, Appellee. CCA 39606. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:
WHETHER APPELLEE WAIVED A CHALLENGE TO THE SEARCH AUTHORIZATION FOR HIS URINE ON THE BASIS OF KNOWING AND INTENTIONAL FALSITY OR RECKLESS DISREGARD FOR THE TRUTH.
WHETHER THE MILITARY JUDGE PROPERLY ADMITTED EVIDENCE OF APPELLEE'S URINALYSIS.
Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 1st day of March, 2021."
Elizabeth M. Berecin
We follow from time to time military appellants after their court-martial is final through the court-martial appeals process to see what happened to the appellant.
The Volokh Conspiracy notes,
Airman faces court martial for sexually assaulting four female airmen. The jury is instructed that if they determine he committed one of the crimes, they may consider that as evidence showing his propensity to having committed any of the other crimes. They convict. A year after his conviction becomes final, the Court of Appeals for the Armed Forces holds the instruction unconstitutional in a different case. Ninth Circuit: Alas, the decision doesn't apply retroactively.
Lewis v. United States, __ F.3d ___, 2021 U.S. App. LEXIS 1952 (9th Cir. 2021), a habeas corpus case filed by counsel assigned to the Air Force Appellate Defense shop—one of several that we have been seeing--and good for them!
"No. 21-0066/AR. U.S. v. Alan D. Ross. CCA 20190537. On consideration of the motion to file a supplement exceeding the page and word limits and the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is granted, and the petition is granted on the following assigned issue:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS HAD JURISDICTION WHERE THE CONVENING AUTHORITY ELECTED TO TAKE NO ACTION ON THE SENTENCE FOR A SPECIFICATION ALLEGING THE COMMISSION OF AN OFFENSE BEFORE JANUARY 1, 2019.
No briefs will be filed under Rule 25."
Elizabeth M. Berecin
CAAF released its unanimous opinion in United States v. Chandler, siding with the government and affirming the sentence in its entirety.
Chandler opinion here.
Airman Basic (E-1) Kevin S. Chandler was convicted, pursuant to a guilty plea, of six specifications for consuming and distributing drugs, in violation of Article 112a. Pursuant to a pretrial agreement (PTA), the convening authority imposed a sentence of five months’ confinement, forfeiture of $5,000 pay over five months, and a bad-conduct discharge. AFCCA affirmed the findings and sentence.
CAAF granted review on the following issue: The staff judge advocate negotiated the inclusion of aggravating evidence in a stipulation of fact, over defense objection, and after disputing the defense’s version of events, the staff judge advocate provided post-trial advice to the convening authority. Did the staff judge advocate’s pretrial conduct warrant disqualification? CAAF answered in the negative and unanimously affirmed AFCCA’s decision.
On 7 January 2021, AFCCA released a unanimous, unpublished opinion affirming findings of guilty regarding Specification 7 of Charge II. However, the AFCCA set aside the words “with intent to distribute” and dismissed the finding as to the excepted words with prejudice. The AFCCA affirmed the findings, as modified, and the sentence, as reassessed.
Carter Opinion Here
CAAFlog 1.0 Archive
-Current Term Opinions
Joint R. App. Pro.
Global MJ Reform
LOC Mil. Law Resources