U. S. Court of Appeals for the Armed Forces

United States v. Steele

Steele is a bouncer--ACCA remands for resentencing--back to ACCA--on to CAAF--back to ACCA. 

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[.]

• If not waived, ACCA must review for error or plain error.
• If waived, or no relief is available under plain error review, then the ACCA still has discretion under Article 66, UCMJ, to overlook the waiver or forfeiture and address the issue[.]
  

United States v. Lattin

A suppression issue.
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• AFCCA held that the search of his cell phone violated the Fourth Amendment because the search authorization was overbroad.
• AFCCA concluded that the military judge had not abused his discretion by declining to exclude evidence obtained and derived from the search.
• AFCCA rested its conclusion on the military judge’s ruling under M.R.E. 311(a)(3) that exclusion of the evidence would not result in appreciable deterrence of future unlawful searches or seizures and that even if it did, the benefits of such deterrence would not outweigh the costs to the justice system.

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.

A full house, in a 3-2 decision answers the questions in the negative. (S.J. Crawford was the third ace.)