United States v. Johnson

​For the reasons set forth below, we hold that this Court lacks authority to act upon a § 922 indication because no Court of Criminal Appeals has the authority to act upon that indication in the first instance. We also hold that remanding for the AFCCA to address the indication would be futile in this or any other case, because the very reason that this Court lacks authority to act upon the indication is that the AFCCA itself also lacks authority to act upon it. 

United States v. Taylor

The Uniform Code of Military Justice (UCMJ) and the Rules for Courts-Martial (R.C.M.) impose various limitations on trying reservists by court-martial. One limitation, states: “A member of a reserve component must be on active duty prior to arraignment at a general or special court-martial.” Appellant argues that his court-martial violated R.C.M. 204(b)(1) because he is a reservist who was not on active duty at the time of his arraignment and trial. The Government responds that the Air Force had properly ordered Appellant to active duty under Article 2(d)(1), UCMJ, 10 U.S.C. § 802(d)(1) (2018), which provides in relevant part that a “member of a reserve component . . . may be ordered to active duty involuntarily for the purpose of . . . trial by courtmartial.” We hold, however, that Article 2(d)(2), UCMJ, ​did not authorize ordering Appellant to active duty for trial by court-martial because Appellant was not “on active duty” or “inactive-duty training” at the time of the charged offenses, as the provision requires. Accordingly, we set aside the decision of the United States Air Force Court of Criminal Appeals (AFCCA), which affirmed the findings and sentence in this case. We further set aside the findings and the sentence.

For simplicity, we will assume, without deciding, that an accused may forfeit objections to compliance with R.C.M. 204(b)(1) and Article 2(d)(2), UCMJ, and that Appellant forfeited them in this case. Based on these assumptions, we will review the granted issue only for plain error. These assumptions will not prejudice Appellant because we ultimately hold, for reasons explained below, that Appellant has demonstrated plain error and that the findings and sentence must be set aside.

the plain language of Article 2(d)(2), UCMJ. Article 2(d)(2), UCMJ, precludes the involuntary ordering of a reservist to active duty for the purpose of trial by court-martial for offenses that did not occur when the reservist was on active duty or performing inactive-duty training. Congress could amend Article 2(d)(2), UCMJ, to cover intervals between two periods of inactive-duty training, but the current language of the statute does not include such periods.

because we fail to see any ambiguity in the word “and” in Article 2(a)(3)(A), UCMJ. In addition, Article 2(a)(3)(B), UCMJ, draws a clear distinction between “inactive-duty training” and “intervals between inactive-duty training” because it uses the terms separately in both subparagraph (B)(ii) and subparagraph (B)(iii). The Government, furthermore, offers no explanation for how to reconcile the definition of “inactive-duty training” in 10 U.S.C. § 101(d)(7), which applies to all of title 10 of the United States Code, with its theory that Congress used Article 2(a)(3)[.]

​that following the plain language of Article 2(d), UCMJ, would lead to the absurd result of Congress expanding court-martial jurisdiction under Article 2(a)(3), UCMJ, to include intervals between periods of inactive-duty training but then providing the Government only very limited means for effectuating that new jurisdiction due to the limitation in Article 2(d)(2), UCMJ.
. . .
The absurdity doctrine allows a court to depart from the plain language of a statute only in very limited circumstances. [The doctrine is] “ ‘a departure from the letter of the law’ may be justified to avoid an absurd result if ‘the absurdity . . . is so gross as to shock the general moral or common sense.’ ” We hold that the plain reading of Article 2(d), UCMJ, does not lead to a result that is so shocking to the general moral or common sense that it qualifies as absurd. Congress clearly recognized that reservists at times commit offenses on the Saturday night during the interval between their Saturday and Sunday inactive-duty training. Congress made progress in addressing this situation by amending Article 2(a)(3), UCMJ, so that reservists are subject to the UCMJ during this period. Congress, however, has not yet completely solved the problem of authorizing the calling of such reservists to active duty to stand trial. This is not an absurd result

United States v. Harborth

When can the government read your email or monitor your web surfing? When can the police search your phone or copy your computer files? In the United States, the answers come from the Fourth Amendment to the Constitution and its ban on 'unreasonable searches and seizures.'

The Digital Fourth Amendment: Privacy and Policing in Our Online World takes the reader inside the legal world of how courts are interpreting the Fourth Amendment in the digital age. Computers, smartphones, and the Internet have transformed criminal investigations, and even a routine crime is likely to lead to digital evidence. But courts are struggling to apply old Fourth Amendment concepts to the new digital world. Mechanically applying old rules from physical investigations doesn't make sense, as it often leads to dramatic expansions of government power just based on coincidences of computer design.

Written by a prominent law professor whose scholarship has often been relied on by courts in the field, The Digital Fourth Amendment shows how judges must craft new rules for the new world of digital evidence. It explains the challenges courts confront as they translate old protections to a new technological world, bringing the reader up to date on the latest cases and rulings. Informed by legal history and the latest technology, this book gives courts a blueprint for legal change with clear rules for courts to adopt to restore our constitutional rights in the computer age.

The book is part theory, part casebook, part policy roadmap—and somehow still manages to be readable, even for non-lawyers. Orin’s goal? To make sense of how the Fourth Amendment should apply in a world of smartphones, cloud storage, government-preserved Facebook accounts, and surveillance everywhere.

The core notion of the book is “equilibrium adjustment”—the idea that courts have always tweaked Fourth Amendment rules to preserve a balance between law enforcement power and personal privacy, even as technology shifts the terrain. From Prohibition-era wiretaps to the modern smartphone, that balancing act has never stopped. Orin walks us through how this theory applies to search warrants for digital devices, plain view exceptions in the age of limitless data, and the surprisingly murky question of whether copying your files counts as a seizure. It’s very persuasive, I say, if you ignore Congress’s contribution to equilibrium. In some cases, the courts are simply discovering principles in the Fourth Amendment that Congress put in statute decades earlier. Worse, courts (and Orin) have too often privileged their idea of equilibrium over the equilibrium chosen by Congress, ignoring or implicitly declaring unconstitutional compromises between privacy and law enforcement that are every bit as defensible as the courts’.

One example is preservation orders—those quiet government requests that tell internet providers to make a copy of your account just in case. Orin argues that’s a Fourth Amendment search and needs a warrant, even if no one looks at the data yet. But preservation orders without a warrant are authorized by Congress; ignoring Congress’s work should require more than a vague notion of equilibrium rebalancing, or so I argue. Orin is unpersuaded.

We also revisit Carpenter v. United States, the 2018 Supreme Court decision on location tracking, and talk about what it does—and doesn’t—mean for the third-party doctrine. Orin’s take is refreshingly narrow: Carpenter didn’t blow up the doctrine, but it did acknowledge that some records, even held by third parties, are just too revealing to ignore. I argue that Carpenter is the judiciary’s Vietnam war – it has committed troops to an unwinnable effort to replace the third party rule with a doomed series of touchy-feely ad hoc rulings. That said, Orin’s version of the decision, which deserves to be called the Kerr-penter doctrine, is more limited and more defensible than most of the legal (and judicial) interpretations over the last several years.
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Finally, we talk border searches, network surveillance, and whether the Supreme Court has any idea where to go next. (Spoiler: probably not.)