Appellant raises several assignments of error, asserting: (1) private masturbation with a doll is constitutionally protected conduct; (2) Appellant did not have fair notice that private masturbation with a doll was subject to criminal sanction; (3) the military judge erred in denying the Defense’s motion to dismiss for failure to state an offense; (4) trial defense counsel was ineffective; and (5) Appellant’s conviction is not legally and factually sufficient. Additionally, Appellant asserts: (6) the Government cannot meet its burden to prove that the military judge’s failure to instruct the panel that a guilty verdict must be unanimous was harmless beyond a reasonable doubt; (7) trial defense counsel was ineffective for failing to ask two panel members questions regarding their experience and ability to sit in Appellant’s court-martial; and (8) trial counsel engaged in prosecutorial misconduct in findings argument. Because we find in Appellant’s favor on issue (2), we do not address the remaining issues. 

Appellant purchased online a short silicone doll with female physical characteristics, including oral, anal, and vaginal orifices and small breasts. Appellant had the doll shipped to another Airman’s house; Appellant lived on base and could not receive the package at his on-base postal box. Appellant also purchased clothing for the doll. About three weeks after Appellant received the doll, Appellant’s commander ordered an inspection of the dorms, including Appellant’s dorm room. Command representatives received a briefing from agents from the Air Force Office of Special Investigations (AFOSI) before beginning their inspection. Appellant shared a kitchen and bathroom with another Airman, but had his own separate bedroom.

A sergeant entered Appellant’s bedroom to inspect it, and saw something on the bed. She called over to Appellant’s first sergeant, who saw “a very life like doll on the bed.” Near the clothed doll were two body pillows, each with a female anime character on the pillowcase. Unsure what to do upon seeing the doll, they asked for assistance from AFOSI agents. Special Agent (SA) JL arrived in response, and entered Appellant’s room. He “saw a doll that scared [him] because it kind of looked like a child.” SA JL testified, “Once I kind of realized that it was not a real person, I started making phone calls immediately because it was kind of something outside of the realm that I’ve encountered before.” One of his calls was to the legal office.

United States v. Steele

In this second appeal, Appellant raised a new argument with respect to the findings that he had not raised at trial, in his first appeal, or at resentencing. The ACCA, however, declined to consider this new argument because Appellant could not show “good cause for his failure to raise the claim in the prior appeal” and “actual prejudice resulting from the newly-raised assignment of error.” The ACCA adopted this “cause and prejudice” standard in part because federal courts use this standard when hearing successive appeals in habeas corpus litigation. In the sole assigned issue before this Court, Appellant contends that the ACCA’s application of a cause and prejudice standard violated Article 66, Uniform Code of Military Justice. We remand the case for the ACCA to clarify whether Appellant waived or forfeited the issue that he raised for the first time in his second appeal. Answering this question is essential to the resolution of the case[.]

United States v. Lattin

I. Whether the lower court erred when it did not apply the exclusionary rule.

II. Whether the lower court erred when it failed to address a search authorization’s stated expiration date.

Brown v. Kendall, et al

Jamie L. Brown filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the validity of his court-martial by the United States Air Force (the "Air Force"). ECF 1 & 4. The respondents, Frank Kendall, Secretary of the Air Force, and Thomas Shubert, President of the Air Force Clemency & Parole Board, move to dismiss the petition. ECF 16. The motion is fully briefed. ECF 18 & 21. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the following reasons, the petition is dismissed for failure to state a claim.

Brown claims that the military judge overseeing the court-martial panel in his case violated his due process rights by (1) permitting the panel to return findings by less than a unanimous verdict; (2) instructing the panel as to uncharged theories of criminal liability; and (3) excluding potentially exculpatory evidence and refusing to permit Brown to cross examine a witness based on that evidence. The respondents argue that Brown's claims were fully and fairly considered by the military courts.

Courts "consistently justify adoption of the Tenth Circuit's standard on the basis that the United States Disciplinary Barracks are located at Fort Leavenworth, Kansas, which has enabled the Tenth Circuit to develop expertise and a significant body of case law in this area." Anderson v. Bolster, No. 1:19cv75 (LO/TCB), 2020 WL 5097516, at *4 n.4 (E.D. Va. Aug. 27, 2020), aff'd, No. 20-7707, 2022 WL 4998074 (4th Cir. Oct. 4, 2022) (unpublished).

Brown attempts to sidestep [this] problem by arguing that his Ramos claim is a jurisdictional claim and not subject to the Burns full-and-fair-consideration analysis. He cites Larrabee v. Braithwaite, 502 F. Supp. 3d 322, 327 (D.D.C. 2020), rev'd sub nom. Larrabee v. Del Toro, 45 F.4th 81 (D.C. Cir. 2022), for the proposition that a court-martial is void if the statute creating it is unconstitutional and void "because courts-martial have no inherent jurisdiction or independent existence." ECF 18, at 2-3. He contends that the court-martial in his case is void because "the portion of the UCMJ authorizing non-unanimous panel verdicts is unconstitutional and void" under Ramos. Id. In short, he reads Larrabee as rendering any constitutional challenge to the statutory procedures of the military courts a jurisdictional claim. But Larrabee did not say that.
. . . 
Brown's Ramos claim, conversely, attacks the statutory provision permitting non-unanimous panel decisions. He does not attack a jurisdictional statute. Nor does he question that the court-martial proceedings here were "convened and constituted in conformity with the applicable statutes[.]" See Willenbring, 559 F.3d at 231. Thus, Brown's Ramos claim is not jurisdictional and is subject to the Burns analysis.

the Tenth Circuit's recent and repeated affirmations that full and fair consideration is given when a claim is adequately and thoroughly briefed, even if the military courts summarily disposed of the claim.