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U.S. Court of Appeals for the Armed Forces
Granted.
United States v. Nelson.
Summary: On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES?
Briefs: Pending.
Lower Ct. Decision: United States v. Nelson (unpub.).
Argument audio: TBD.
Decision: Pending.
Comments:
Summary: On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES?
Briefs: Pending.
Lower Ct. Decision: United States v. Nelson (unpub.).
Argument audio: TBD.
Decision: Pending.
Comments:
Decided.
United States v. Schmidt.
Summary: GCM conviction of sexual abuse of a child. Granted issues question: (1) whether the phrase "in the presence of" used to define the term "lewd act" in Article 120b(h)(5)(d) requires the child to be aware of the lewd act or merely that the accused be aware of the child's presence; (2) whether Appellant affirmatively waived any objection to the military judge's instructions and the failure to instruct on the affirmative defense of mistake of fact; and (3) whether having assumed deficient performance by counsel, the lower court erred in finding no prejudice.
Briefs: Appellant, Appellee.
Lower Ct. Decision: United States v. Schmidt, 80 M.J. 586 (N-M Ct. Crim. App. 2020).
Argument audio: (October 5, 2021).
Decision: Pending.
Comments: CAAFlog comment.
Summary: GCM conviction of sexual abuse of a child. Granted issues question: (1) whether the phrase "in the presence of" used to define the term "lewd act" in Article 120b(h)(5)(d) requires the child to be aware of the lewd act or merely that the accused be aware of the child's presence; (2) whether Appellant affirmatively waived any objection to the military judge's instructions and the failure to instruct on the affirmative defense of mistake of fact; and (3) whether having assumed deficient performance by counsel, the lower court erred in finding no prejudice.
Briefs: Appellant, Appellee.
Lower Ct. Decision: United States v. Schmidt, 80 M.J. 586 (N-M Ct. Crim. App. 2020).
Argument audio: (October 5, 2021).
Decision: Pending.
Comments: CAAFlog comment.
United States v. Moratalia.
Summary: GCM conviction of attempted larceny, larceny, drawing and uttering a check without sufficient funds, bank fraud, and dishonorably failing to pay debt. Granted issue is whether the Appellant's guilty plea to bank fraud under 18 U.S.C. Section 1344 was improvident.
Briefs: Appellant, (reply brief), Appellee (brief)
Lower Ct. Decision: United States v. Moratalia (unpub.).
Argument audio: October 5, 2021.
Decision: Pending.
Comments:
Summary: GCM conviction of attempted larceny, larceny, drawing and uttering a check without sufficient funds, bank fraud, and dishonorably failing to pay debt. Granted issue is whether the Appellant's guilty plea to bank fraud under 18 U.S.C. Section 1344 was improvident.
Briefs: Appellant, (reply brief), Appellee (brief)
Lower Ct. Decision: United States v. Moratalia (unpub.).
Argument audio: October 5, 2021.
Decision: Pending.
Comments:
United States v. Metz.
Summary: GCM conviction of arson, housebreaking, and unlawful entry. Granted issue is did the lower court err by failing to apply Brown v. Illinois, 422 U.S. 590 (1975), despite finding Appellant was illegally apprehended.
Briefs: , Appellant (brief) (reply brief), Appellee (brief)
Lower Ct. Opinion: United States v. Metz (unpub.).
Argument audio: October 6, 2021.
Decision: Pending.
Comments: CAAFlog
Summary: GCM conviction of arson, housebreaking, and unlawful entry. Granted issue is did the lower court err by failing to apply Brown v. Illinois, 422 U.S. 590 (1975), despite finding Appellant was illegally apprehended.
Briefs: , Appellant (brief) (reply brief), Appellee (brief)
Lower Ct. Opinion: United States v. Metz (unpub.).
Argument audio: October 6, 2021.
Decision: Pending.
Comments: CAAFlog
United States v. Simmons.
Summary: GCM conviction of sexual assault of a child, extortion, and producing child pornography. Granted issue questions whether the military judge erred in allowing the government to make a major change to a specification, over defense objection – almost tripling the charged time frame – after the complaining witness's testimony did not support the offense as originally charged and the prosecution had rested its case.
Briefs: Appellant (brief) (reply brief), Appellee (brief).
Lower Ct. Decision: Simmons - I, Simmons II.
Argument audio:
Decision:
Comments:
Summary: GCM conviction of sexual assault of a child, extortion, and producing child pornography. Granted issue questions whether the military judge erred in allowing the government to make a major change to a specification, over defense objection – almost tripling the charged time frame – after the complaining witness's testimony did not support the offense as originally charged and the prosecution had rested its case.
Briefs: Appellant (brief) (reply brief), Appellee (brief).
Lower Ct. Decision: Simmons - I, Simmons II.
Argument audio:
Decision:
Comments:
United States v. Givens.
Summary: GCM conviction of assault and battery, making a false official statement, larceny, child endangerment, and communicating a threat. Granted issue questions whether the military judge erred in denying the defective preferral/unlawful command influence motion on procedural grounds.
Briefs: Appellant (brief) (reply brief), (brief)
Lower Cr. Decision: United States v. Givens (unpub.)
Argument audio: October 19, 2021.
Decision:
Comments:
Summary: GCM conviction of assault and battery, making a false official statement, larceny, child endangerment, and communicating a threat. Granted issue questions whether the military judge erred in denying the defective preferral/unlawful command influence motion on procedural grounds.
Briefs: Appellant (brief) (reply brief), (brief)
Lower Cr. Decision: United States v. Givens (unpub.)
Argument audio: October 19, 2021.
Decision:
Comments:
United States v. Whiteeyes.
Summary: GCM conviction of sexual abuse of a child. Granted issue questions whether the military judge committed prejudicial error by admitting Appellant's statements to law enforcement in violation of Military Rule of Evidence 304(c).
Briefs: Appellant (brief) (reply brief), Appellee (brief)
Lower Ct. Decision. United States v. Whiteeyes (unpub.).
Argument audio: October 19, 2021.
Decision:
Comments: CAAFlog.
Summary: GCM conviction of sexual abuse of a child. Granted issue questions whether the military judge committed prejudicial error by admitting Appellant's statements to law enforcement in violation of Military Rule of Evidence 304(c).
Briefs: Appellant (brief) (reply brief), Appellee (brief)
Lower Ct. Decision. United States v. Whiteeyes (unpub.).
Argument audio: October 19, 2021.
Decision:
Comments: CAAFlog.
United States v. Quezada.
Summary: GCM conviction of providing alcohol to a minor, making a false official statement, abusive sexual assault by bodily harm, and abusive sexual contact by bodily harm. In this case, the military judge instructed members that they could consider the fact that Appellant made the false official statement with which he was charged as evidence that he was guilty of another charged offense. Granted issue is did that instruction violate Appellant's right to a presumption of innocence under United States v. Hills, 75 M.J. 350 (2016).
Briefs: , Appellant (brief) (reply brief), Appellee (brief)
Lower Ct. Decision: United States v. Quezada (unpub.).
Argument audio: October 20, 2021.
Decision:
Comments:
Summary: GCM conviction of providing alcohol to a minor, making a false official statement, abusive sexual assault by bodily harm, and abusive sexual contact by bodily harm. In this case, the military judge instructed members that they could consider the fact that Appellant made the false official statement with which he was charged as evidence that he was guilty of another charged offense. Granted issue is did that instruction violate Appellant's right to a presumption of innocence under United States v. Hills, 75 M.J. 350 (2016).
Briefs: , Appellant (brief) (reply brief), Appellee (brief)
Lower Ct. Decision: United States v. Quezada (unpub.).
Argument audio: October 20, 2021.
Decision:
Comments:
United States v. Cooper.
Summary: GCM conviction of sexual assault and abusive sexual contact. Certified Issue: Did the lower court err applying United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), (A) as a prerequisite to considering ineffective assistance of counsel, and (B) to disregard the knowing, voluntary, and R.C.M. 905 waivers, of individual military counsel? Assigned issues: I. Did the military judge abuse his discretion when he allowed the members to recall the complaining witness after deliberations but refused the defense request to present a renewed closing summation on her new testimony? Did the lower court err by refusing to consider this issue? II. Were appellate counsel ineffective where: (1) counsel failed to assign as error the military judge's denial of a renewed closing argument despite defense counsel's objection at trial; (2) this court decided United States v. Bess, 75 M.J. 70 (C.A.A.F. 2016), one month before counsel filed a supplemental brief raising assignments of error before the lower court; and (3) the lower court refused to consider the issue when it was raised during a later remand to that court?
Briefs: Cross-Appellee (cross-appellee brief) (brief), Appellee/Cross-Appellant (cross-appellant brief) (cross-appellant reply brief)
Lower Ct. Decision: United States v. Cooper, 80 M.J. 664 (N-M Ct. Crim. App. 2020).
Argument audio: October 20, 2021.
Comments: CAAFlog.
Also, Cooper has a lengthy appellate history includind a 2019 Supreme Court denial of a petition. LEXIS history link.
Summary: GCM conviction of sexual assault and abusive sexual contact. Certified Issue: Did the lower court err applying United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), (A) as a prerequisite to considering ineffective assistance of counsel, and (B) to disregard the knowing, voluntary, and R.C.M. 905 waivers, of individual military counsel? Assigned issues: I. Did the military judge abuse his discretion when he allowed the members to recall the complaining witness after deliberations but refused the defense request to present a renewed closing summation on her new testimony? Did the lower court err by refusing to consider this issue? II. Were appellate counsel ineffective where: (1) counsel failed to assign as error the military judge's denial of a renewed closing argument despite defense counsel's objection at trial; (2) this court decided United States v. Bess, 75 M.J. 70 (C.A.A.F. 2016), one month before counsel filed a supplemental brief raising assignments of error before the lower court; and (3) the lower court refused to consider the issue when it was raised during a later remand to that court?
Briefs: Cross-Appellee (cross-appellee brief) (brief), Appellee/Cross-Appellant (cross-appellant brief) (cross-appellant reply brief)
Lower Ct. Decision: United States v. Cooper, 80 M.J. 664 (N-M Ct. Crim. App. 2020).
Argument audio: October 20, 2021.
Comments: CAAFlog.
Also, Cooper has a lengthy appellate history includind a 2019 Supreme Court denial of a petition. LEXIS history link.