Oral Argument Audio Podcast

Argued on December 20, 2018.

Case Summary: A general court-martial composed of members with enlisted representation convicted the appellant, contrary to his pleas, of two specifications of violating a lawful order in violation of Article 92, UCMJ one specification of committing a lewd act upon a child in violation Article 120b, UCMJ; and one specification of obstructing justice in violation of Article 134, UCMJ. The members sentenced the appellant to five years confinement, reduction to paygrade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the dismissal, ordered the sentence executed.

Issues: 

I. Did the military judge err in denying civilian defense counsel’s motion to withdraw as appellant’s counsel?

II. The Sixth Amendment guarantees an accused the right, within limits, to retain counsel of his own choosing. Before trial, and after his civilian counsel moved to withdraw from the case citing a perceived conflict, the appellant asked to release his civilian counsel and hire a different one. Did the military judge err by denying this request?

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Argued on December 4, 2018. 

Issue: Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603. 

CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-stout/

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Argued on December 4, 2018. 

Issues: 

I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired. 

II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal. 

CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-briggs/

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Argued on December 4, 2018. 

Issue: Whether the Navy court erred in holding that appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status. 

CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-forbes/

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Argued on December 4, 2018. 

Issues: 

I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel? 

II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel? 

III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel? 

IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice? 

CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-cooper/

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Argued on October 25, 2018. 

Case Summary: A panel of officers sitting as a general court-martial convicted the appellant, contrary to his pleas, of six specifications under Article 80, Uniform Code of Military Justice (UCMJ), and one specification of solicitation under Article 134, UCMJ. The members sentenced the appellant to three years’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed. 

Issues:

II. The government cannot use liberty risk as a subterfuge for restriction. Here, the government held the appellant on liberty risk, which restricted him to base, for 732 days (513 days prior to arraignment). Did the government’s actions constitute restriction under Rule for Courts-Martial 304(a)(2) and trigger Rule for Courts-Martial 707? 

III. The Sixth Amendment guarantees a servicemember the right to effective assistance of counsel. The appellant spent 732 days in restriction, which started the government’s Rule for Courts-Martial 707 

http://www.caaflog.com/2018/11/26/nmcca-argument-audio-jennings/

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Argued on November 7, 2018. 

Issue: Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient. 

CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-nicola/

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Argued on November 7, 2018. 

Issue: Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training.

CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-bodoh/

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