Appeals Category Archives — Page 4 of 5 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Appellate (and trial) advocacy

October 29, 2016 | The Law Office of Philip D. Cave

John Wesley Hall’s website is an excellent resource for issues involving the Fourth Amendment–FourthAmendment.com. In pointing to a search warrant case Mr. Hall quotes from the opinion.

We remind McCollum’s counsel that “the statement of facts in an appellate brief should be a concise narrative of the facts stated in accordance with the standard of review appropriate to the judgment and should not be argumentative.” King v. State, 799 N.E.2d 42, 45 n.2 (Ind. Ct. App. 2003) (citing Ind. Appellate Rule 46(A)(6)), trans. denied (2004), cert. denied. Also, we disapprove of counsel’s accusation that the State has “stoop[ed]” to “desperate measures … to attempt to demonstrate the reliability and credibility of the confidential informant” mentioned in the affidavit and has “either played word games with this court or simply fabricated facts in its efforts to make an argument.” Reply Br. at 10, 11. Such hyperbolic barbs have no place in an appellate brief. Cnty. Line Towing, Inc. v. Cincinnati Ins. Co., 714 N.E.2d 285, 291 (Ind. Ct. App. 1999), trans. denied (2000).

McCollum v. State, 2016 Ind. App. LEXIS 370 (Sept. 30, 2016).

Supreme Court grants of interest to military justice practitioners

October 29, 2016 | The Law Office of Philip D. Cave

Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state’s registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

In Esquivel-Quintana v. Lynch, into an area of law called by Prof. Berman, as “crimmigration” – the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.

Supreme Court gossip

October 23, 2016 | The Law Office of Philip D. Cave

SCOTUSBlog has an interesting post about the court’s relist practice. Some of us discussed the relist option when the court was considering the petition in United States v. Sullivan, 74 M.J. 448 (C.A.A.F. 2015) cert. denied.

When last we wrote about the statistics of relists a little over a year ago, it was to report on what was then a new trend: the court’s practice of routinely relisting petitions that are under serious consideration for review at second or subsequent conferences prior to entering orders granting or denying certiorari. The practice is by now an accepted feature of the certiorari process, and at least one relist is generally viewed as a necessary step on the way to a grant of further review. Here, we offer an update on the statistics of relists. Focusing on October Term 2015, we highlight some emerging trends in what appears to be an evolving practice.

Regrettably, on 3 October 2016 the court declined to take Captain Sullivan’s petition.

Hennis decided–findings and sentence affirmed

October 7, 2016 | The Law Office of Philip D. Cave

The Army Court of Criminal Appeals has decided United States v. Hennis, the military’s latest death penalty appeal.

The opinion is 106 pages long, so it will take a little time read. But what struck me immediately were the statistics.

The case was heard en banc. However, of 12 judges assigned to court and initially eligible to participate, all but four were disqualified for one reason or another.

Odd specified issue at CAAF

September 29, 2016 | The Law Office of Philip D. Cave

In United States v. Lopez, Army Court of Criminal Appeals affirmed, but there is no opinion on the Army court website and I don’t see it in Lexis.

The Court of Appeals for the Armed Forces has specified an issue for review in this case as follows:

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943 [2016 CAAF LEXIS 773]. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

Sentence Relief-Worth the Read

September 26, 2016 | The Law Office of Philip D. Cave

This article showed that the vast majority of court-martial sentences are affirmed by AFCCA. On the rare occasion when sentence relief was granted, it was usually not based on factual sufficiency or sentence appropriateness. While there has been some fluctuation in how often AFCCA grants sentence relief, it is minimal and to some extent explained by the influence CAAF has on it.

That’s the conclusion of Maj. Kevin Gotfredson and Capt. Micah Smith in their article, Sentence Relief: At the Air Force Court of Criminal Appeals During the Last 10 Years. 43(3) THE REPORTER 21 (2016). Their research was motivated by public discussion of an “epidemic” number of valid convictions being reversed because of “factual sufficiency.”

See more discussion at my website here.

New NMCCA cases worth the read

August 12, 2016 | The Law Office of Philip D. Cave

The NMCCA has issued two significant opinions this week, one of which is worth the read while the United States prosecution of Bowe Bergdahl continues.

United States v. Solis, __ M.J. ___ (N-M Ct. Crim. App. 2016). The case presents discussion of continuing issues relating to the nature of the proof and member (jury) instructions in military sexual assault cases. These types of cases, especially where alcohol is involved present complex challenges to the military defense counsel.

Article 120(b)(3)(A) of the UCMJ is unconstitutional because the language “incapable of consenting to the sexual act because she was impaired by . . . alcohol” is unconstitutionally vague.

Don’t do it, but according to ACCA it may not be a crime

July 6, 2016 | The Law Office of Philip D. Cave

Is it an indecent exposure offense under UCMJ art. 120, to show someone a digital picture of your own genitals?

In a published opinion in United States v. Williams, __ M.J. __, No. 20140401 (A. Ct. Crim. App. Mar. 30, 3016), the Army Court of Criminal Appeals split 2-1 in deciding the case. The court holds that the offense of indecent exposure in violation of Article 120(n) (2006) and 120c(c) (2012) does not include showing a person a photograph or digital image of one’s genitalia.

That’s the BLUF.

Now what, the appeal is done

June 12, 2016 | The Law Office of Philip D. Cave

I came across a couple of Air Force opinions and have posted about habeas corpus and coram nobis.

https://www.court-martial.com/habeas-coram.html

Exhaustion

May 21, 2016 | The Law Office of Philip D. Cave

I have commented on this before–post-CAAF habeas corpus, but a new case from the 9th is time for a reminder.

Narula v. Yakubisin (CO, NAVCONBRING Miramar), No. 15-55658 (9th Cir. 17 May 2016).

It is common for the military appellant to think about federal court once their military appeal is complete. The route to federal court is through a federal habeas corpus proceeding, in accordance with 28 U.S.C. § 2241. It is rare to get past a motion to dismiss, let alone win on the merits.