CAAFlog: Oral Argument Audio Podcast

AFCCA: United States v. Lee, No. 39531

An episode of CAAFlog: Oral Argument Audio Podcast

By CAAFlog
About
CAAFlog is a military justice blog covering the Court of Appeals for the Armed Forces (CAAF) and the service Courts of Criminal Appeals.

This podcast re-distributes audio of oral arguments at CAAF and the CCAs, and occasionally at other courts. The audio recordings are created by the individual courts and the recordings are generally available on each court's website; this podcast duplicates those recordings in the form of a podcast for listener convenience.
More places to listen
CAAFlog is a military justice blog covering the Court of Appeals for the Armed Forces (CAAF) and the service Courts of Criminal Appeals.

This podcast re-distributes audio of oral arguments at CAAF and the CCAs, and occasionally at other courts. The audio recordings are created by the individual courts and the recordings are generally available on each court's website; this podcast duplicates those recordings in the form of a podcast for listener convenience.
www.caaflog.com

More places to listen

CAAF: United States v. Finch, No. 19-0298/AR
Argued on December 4, 2019. Issue : Whether the military judge erred in admitting over defense objection the video-recorded interview of AH by CID because it was not a prior consistent statement under Mil.R.Evid. 801(d)(1)(B). CAAFlog case page: http://www.caaflog.com/category/october-2019-term/united-states-v-finch-october-2019-term/ Note: Audio post-processed for this podcast with a dynamic normalizer filter.
43:15
December 4, 2019
CAAF: United States v. Easterly, No. 19-0398/AF
Argued on December 4, 2019. Issue: Whether the Air Force Court of Criminal Appeals erred in finding that the military judge committed plain and prejudicial error by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on Appellee’s potential permanent disability retirement where Appellee did not request such an instruction. CAAFlog case page: https://www.caaflog.com/category/october-2019-term/united-states-v-easterly/ Note: Audio post-processed for this podcast with a dynamic normalizer filter.
44:42
December 4, 2019
NMCCA: United States v. Begani, No. 201800082 (reconsideration)
Argued on November 20, 2019. Issues : I. Does Article 2 of the Uniform Code of Military Justice violate Appellant’s right to Equal Protection by subjecting him to court-martial as a member of the Fleet Reserve, if retired members of a reserve component are not subject to court-martial, except when receiving hospitalization from an armed force? II. Are members of the Fleet Reserve “similarly situated” for Equal Protection purposes with retired members of a regular component and retired members of a reserve component? III. What is the appropriate standard of review for this Court to apply to Article 2 in deciding an Equal Protection challenge? Prior coverage: • NMCCA opinion (withdrawn) • Blog post: The NMCCA torpedoes Article 2 • Blog post: The fundamental flaw in the NMCCA’s decision in Begani • Blog post: NMCCA withdraws opinion, grants reconsideration Note: Audio post-processed for this podcast with a dynamic normalizer filter.
1:04:12
November 30, 2019
AFCCA: United States v. Da Silva, No. 39599
Argued on October 30, 2019. Note: Audio post-processed for this podcast with a dynamic normalizer filter.
1:01:04
November 19, 2019
CAAF: United States v. Turner, No. 19-0158/AR
Argued on November 6, 2019. Issue: Whether the specification of Charge I alleging an attempted killing fails to state an offense because it does not explicitly, or by necessary implication, allege the attempted killing was unlawful. CAAFlog case page: https://www.caaflog.com/category/october-2019-term/united-states-v-turner/ Note: Audio post-processed for this podcast with a dynamic normalizer filter.
35:32
November 6, 2019
CAAF: United States v. Davis, No. 19-0104/AR
Argued on November 6, 2019. Issue: Whether the mens rea of “knowingly” applies to the consent element of Article 120c(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 920c(2) (2016). CAAFlog case page: http://www.caaflog.com/category/october-2019-term/united-states-v-davis-october-2019-term/ Note: Audio post-processed for this podcast with a dynamic normalizer filter.
27:45
November 6, 2019
CAAF: United States v. Muller, No. 19-0230/AF
Argued on November 5, 2019. Issues : I. Whether rule 15.5 of the Air Force Court of Criminal Appeals Rules of Practice and Procedure is invalid because it conflicts with the Uniform Code of Military Justice, this Court’s precedent, the Joint Courts of Criminal Appeals Rules of Practice and Procedure, the recently updated Joint Rules of Appellate Procedure, and the prior and current appellate rules of the other service Courts of Criminal Appeals. II. Whether the Air Force Court of Criminal Appeals deprived Appellant of his due process right to raise issues on appeal when it denied his timely request to file a supplemental brief on issues arising during remand proceedings. III. Whether a Court of Criminal Appeals must require certificates of correction to be accomplished, vice accepting documents via a motion to attach, when it finds a record of trial to be incomplete due to a missing exhibit. CAAFlog case page: http://www.caaflog.com/category/october-2019-term/united-states-v-muller/ Note: Audio post-processed for this podcast with a dynamic normalizer filter.
41:20
November 5, 2019
CAAF: United States v. Jessie, No. 19-0192/AR
Argued on November 5, 2019. Issues : I. Whether the Army court erred by considering military confinement policies but refusing to consider specific evidence of Appellant’s confinement conditions. II. Whether the Army court conducted a valid Article 66 review when it failed to consider Appellant’s constitutional claims. III. Whether Appellant’s constitutional rights were violated by a confinement facility policy that barred him from all forms of communication with his minor children without an individualized assessment demonstrating that an absolute bar was necessary. CAAFlog case page: https://www.caaflog.com/category/october-2019-term/united-states-v-jessie/ Note: Audio post-processed for this podcast with a dynamic normalizer filter. 
35:03
November 5, 2019
CAAF: United States v. Guardado, No. 19-0139/AR
Argued on October 23, 2019. Issue: Whether the military judge abused his discretion by failing to grant Appellant Article 13, UCMJ, credit in consequence of the Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016) violation present here. http://www.caaflog.com/category/october-2019-term/united-states-v-guardado-october-2019-term/ Note: Audio post-processed for this podcast with a dynamic normalizer filter. 
40:06
October 24, 2019
CAAF: United States v. Bess, No. 19-0086/NA
Argued on October 23, 2019. Issues: I. Whether the convening authority’s selection of members violated the equal protection requirements of the Fifth Amendment. II. Whether the convening authority’s selection of members constituted unlawful command influence. III. Whether the lower court erred in affirming the military judge’s denial of Appellant’s motion to produce evidence of the racial makeup of potential members. http://www.caaflog.com/category/october-2019-term/united-states-v-bess-october-2019-term/ Note: Audio post-processed for this podcast with a dynamic normalizer filter. 
42:40
October 24, 2019
CAAF: United States v. Hennis, No. 17-0263/AR
Argued on October 22, 2019. Index: Appellant's argument (MAJ Burroughs): 00:35 Appellant's argument (Mr. Potter): 41:20 Gov't Div. argument (MAJ Parnell): 56:25 Appellant's rebuttal argument (MAJ Burroughs): 1:32:15 Issues: I. Whether a break in Appellant’s service foreclosed the exercise of court-martial jurisdiction. II. Whether the charges arose in the Armed Forces, and fell within the subject matter jurisdiction of a capital court-martial. III. Whether the court-martial had personal jurisdiction over Appellant. IV. Whether the military judge denied appellant a meaningful opportunity to present a complete defense. V. Whether the military judge abused his discretion in restricting defense counsel’s voir dire and in denying defense challenges for cause. https://www.caaflog.com/category/october-2019-term/united-states-v-hennis-october-2019-term/ Note: Audio merged into a single file and post-processed for this podcast with a dynamic normalizer filter and a noise reduction filter. 
1:43:35
October 22, 2019
NMCCA: United States v. Nichol, No. 201800286
Argued on October 3, 2019. Case Summary:  A general court-martial consisting of members with enlisted  representation convicted Appellant, contrary to his pleas, of one  specification of forcible rape, in violation of Article 120(a)(1), UCMJ  (10 U.S.C. § 920 (2012)), two specifications of sexual assault, in  violation of Article 120(b)(1)(B), UCMJ (10 U.S.C. § 920), and one  specification of rape, in violation of Article 120(a)(5), UCMJ (10  U.S.C. § 920). The members sentenced Appellant to 25 years’ confinement,  reduction to paygrade E-1, total forfeitures, and a dishonorable  discharge. The Convening Authority approved the sentence as adjudged Issues: [I]. Did the military judge err in admitting over Defense objection AOAN  D.B.’s out-of-court statement pursuant to Military Rule of Evidence  801(d)(1)(B)(i) and (ii)? [II]. Did the Appellant waive objection on appeal to the military judge’s admission of Ms. D.R.’s out-of-court statement? Note: Audio remixed from stereo to mono and post-processed for this podcast with a dynamic normalizer filter.
56:54
October 22, 2019
NMCCA: United States v. Ayalacruz, No. 201800193
Argued on September 27, 2019. Case Summary:  A special court-martial consisting of officer members convicted  Appellant, contrary to his pleas, of one specification of dereliction of  duty, in violation of Article 92, UCMJ (10 U.S.C. § 892), one  specification of simple assault, in violation of Article 128, UCMJ (10  U.S.C. § 928), and one specification of disorderly conduct, in violation  of Article 134, UCMJ (10 U.S.C. § 934). The members sentenced Appellant  to a reprimand, reduction to paygrade E-1, and a bad-conduct discharge.  The Convening Authority approved the sentence as adjudged. Issues: I. Did the military judge violate Appellant’s constitutional protection  against double jeopardy when he instructed the court members to revise  the announcement of their findings? [II]A. Did the court members acquit  Appellant of both elements of simple assault in the second announcement  of their findings through improper exception and substitution? [II]B. Did the language substituted by the court members in the second announcement of their findings fail to state an offense? Note: Audio remixed from stereo to mono and post-processed for this podcast with a dynamic normalizer filter.
1:00:57
October 22, 2019
NMCCA: United States v. Kunishige, No. 201800110
Argued on September 20, 2019. Case Summary:  A panel of members with enlisted representation sitting as a general  court-martial convicted Appellant, contrary to his pleas, of violation  of a lawful order, rape and sexual abuse of a child, sexual assault,  aggravated assault, assault consummated by battery, solicitation and  distribution of child pornography, receipt and possession of child  pornography, obstruction of justice, and adultery,in violation of  Articles 92, 120, 120b, 128, and 134, UCMJ, 10 U.S.C. §§892, 920, 920b,  928, 934 (2016). The members sentenced Appellant to thirty-nine years of  confinement, reduction to pay grade E-1, forfeiture of all pay and  allowances, and a dishonorable discharge.The Convening Authority  approved the sentence as adjudged and, except for the dishonorable  discharge, ordered the sentence executed. Issues: I. The United States argues that Appellant waived his right to discovery  of communications relating to the members’ selection process. Did  Appellant waive his right to discovery in light of: 1) the civilian  trial defense counsel’s two written motions; 2) the military judge’s  order granting the motion to compel discovery; 3) the civilian trial  defense counsel’s repeated attempts to enforce the military judge’s  order during trial; and 4) the trial counsel’s conflicting statements  about the existence of discovery and completeness of discovery provided? II. Did the government’s actions in 1)  disclosing responsive communications on the last day of trial during  presentencing proceedings; and 2) disclosing additional responsive  communications shortly before a post-trial Article 39(a) session  constitute a discovery violation? III. Was Appellant materially prejudiced by either alleged discovery violation? Note: Audio remixed from stereo to mono and post-processed for this podcast with a dynamic normalizer filter.
1:04:13
October 22, 2019
CAAF: United States v. Rice, No. 19-0178/AR
Argued on October 16, 2019, at the J. Reuben Clark Law School, Brigham Young University, Provo, Utah. Issue: Whether the double jeopardy clause of the Fifth Amendment requires dismissal of Appellant’s convictions. https://www.caaflog.com/category/october-2019-term/united-states-v-rice/ Note: Audio post-processed for this podcast with a dynamic normalizer filter. 
51:04
October 18, 2019
AFCCA: United States v. Lee, No. 39531
Argued on September 30, 2019. Issue: Whether the military judge abused his discretion in refusing to give a defense-requested instruction that the panel could consider reasonable mistake of fact as to consent as a factor when evaluating whether appellant’s conduct was indecent. Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
53:59
October 10, 2019
NMCCA: United States v. Upshaw, No. 201600053
Argued on Friday, August 2, 2019. Case Summary: A general court-martial consisting of members with enlisted representation convicted Appellant, contrary to his pleas, of two specifications of abusive sexual contact and one specification of sexual assault, in violation of Article 120, UCMJ (10 U.S.C. § 920 (2012)), involving two separate victims. The members sentenced Appellant to reduction to paygrade E-1, forfeiture of all pay and allowances, ten years’ confinement, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged. On Appellant’s initial appeal, this Court affirmed his convictions of abusive sexual contact and set aside his conviction of sexual assault. The Court authorized a rehearing, and remanded the matter to the Convening Authority for action. On remand, the Convening Authority dismissed those specifications that this Court set aside and ordered a sentencing rehearing for the affirmed convictions. At the rehearing, a panel of members with enlisted representation sentenced Appellant to reduction in paygrade to E-1, thirty-six months’ confinement, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged. Appellant now challenges both his initially affirmed convictions of abusive sexual contact and his sentence from the rehearing. Issue: When a judge recuses himself, he may not subsequently play a procedural or substantive role in the case. Here, the military judge recused himself and continued to consult with his successor on important legal issues in the case. Did the military judge play a substantive role and act inconsistent with his recusal? Note: Audio post-processed for this podcast with a dynamic normalizer filter.
47:39
September 1, 2019
AFCCA: United States v. Scilluffo, No. 39539
Argued on August 13, 2019. Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
1:01:51
August 15, 2019
AFCCA: United States v. Owens, No. 39457
Argued on Thursday, August 8, 2019, at the University of  California, Hastings College of Law, Moot Courtroom (Room 423), 198 McAllister Street, San Francisco, CA 94102.  Note: Audio post-processed for this podcast with a dynamic normalizer filter and with a background noise reduction filter.  
1:04:14
August 14, 2019
CAAF: United States v. Hyppolite, II., Nos.19-0119/AF & 19-0197/AF
 Argued on May 22, 2019.    Granted issue:  Whether the military judge’s erroneous admission of evidence regarding  Specifications 1, 2, and 3 as a common plan or scheme for Specifications  4 and 5 was harmless. Certified issue:  Did the Air Force Court of Criminal Appeals err when it found the  military judge abused his discretion by ruling that the evidence  regarding Specifications 1, 2, and 3 could be considered as evidence of a  common plan or scheme for Specifications 4 and 5. https://www.caaflog.com/category/october-2018-term/united-states-v-hyppolite/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
43:47
May 22, 2019
CAAF: United States v. Coleman, No. 19-0087/AR
Argued on May 22, 2019. Issue: Whether Specification 1 of Charge VII is multiplicious with Specification 1 of Charge I, as they are part of the same transaction. http://www.caaflog.com/category/october-2018-term/united-states-v-coleman-october-2018-term/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
28:42
May 22, 2019
CAAF: United States v. Navarette, No. 19-0066/AR
Argued on May 21, 2019. Issues: I. Whether the Army Court erroneously denied appellant a post-trial R.C.M. 706 inquiry by requiring a greater showing than a non-frivolous, good faith basis articulated by United States v. Nix, 15 C.M.A. 578, 582, 36 C.M.R 76, 80 (1965). II. Whether the Army Court erred when it held that submitting matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), was evidence of Appellant’s competence during appellate proceedings. http://www.caaflog.com/category/october-2018-term/united-states-v-navarette/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
52:27
May 21, 2019
CAAF: United States v. English, No. 19-0050/AR
Argued on May 21, 2019. Issue: Whether the Army Court of Criminal Appeals can find the unlawful force, as alleged, factually insufficient and still affirm the finding based on a theory of criminality not presented at trial. http://www.caaflog.com/category/october-2018-term/united-states-v-english/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
41:51
May 21, 2019
NMCCA: Unites States v. Sager, No. 201400356
Argued on Wednesday, May 1, 2019. Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of one specification of abusive sexual contactin violation of Article120, UCMJ, 10 U.S.C. §920(2012). The Members sentenced Appellant to twenty-four months of confinement and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed. Issue: This case is before this Court for further review after our initial  decision on direct appeal was vacated by the United States Court of  Appeals for the Armed Forces and after this Court granted the  government’s request for reconsideration of its opinion on remand. May  the Court now consider the government’s argument, raised for the first  time, that the members announced a general verdict? See United States v. Sager, 76 M.J. 158 (C.A.A.F. Mar. 21, 2017) (CAAFlog case page). Note:  Audio post-processed for this podcast to remove background noise.
1:01:18
May 20, 2019
CAAF: United States v. Rodriguez, No.18-0350/CG
Argued on  April 24, 2019. Issue: Whether United States v. Orben,  which established what the government must show to prove intent for  indecent liberties under Article 134 (the precursor to Article 120b),  applies to the intent element of Article 120b(c), sexual abuse of a  child. http://www.caaflog.com/category/october-2018-term/united-states-v-rodriguez/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
32:38
April 24, 2019
CAAF: United States v. Haynes, No. 18-0359/AR
Argued on April 23, 2019. Issues: I. Whether an appellant is authorized to request Pierce credit for the first time at a Court of Criminal Appeals. II. If the Army Court of Criminal Appeals erred in holding that the failure to request Pierce credit below constituted waiver, was its actual review of this issue under its article 66(c), UCMJ authority still sufficient? http://www.caaflog.com/category/october-2018-term/united-states-v-haynes/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
40:02
April 24, 2019
CAAF: United States v. Gonzales, No. 18-0347/AR
 Argued on April 23, 2019. Issue: Whether aggravated sexual contact of a child is a lesser included offense of rape of a child.  http://www.caaflog.com/category/october-2018-term/united-states-v-gonzales/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
36:40
April 24, 2019
CAAF: United States v. Harris, No.18-0364/AR
Argued on April 10, 2019, at Fort Leavenworth, Kansas. Issue: Whether the Army court erroneously affirmed the military judge’s denial  of 291 days of Allen credit for pretrial confinement Appellant served in a civilian confinement facility awaiting disposition of state  offenses for which he was later court-martialed. http://www.caaflog.com/category/october-2018-term/united-states-v-harris/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
33:47
April 10, 2019
CAAF: United States v. Frost, No. 18-0362/AR
Argued on April 9, 2019, at the University of Kansas School of Law in Lawrence, Kansas. Issue: Whether the military judge erred in admitting hearsay statements as  prior consistent statements under Mil.R.Evid. 801(d)(1)(B)(i) where the defense theory posited the improper influence or motive preceded the  allegedly consistent statements. http://www.caaflog.com/category/october-2018-term/united-states-v-frost/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter 
46:51
April 9, 2019
NMCCA: United States v. Begani, No. 201800082
Argued on March 29, 2019, at Penn State Law, The Pennsylvania State University, University Park, PA 16802. Issue: Does Article 2 of the UCMJ violate the Appellant’s right to Equal Protection by subjecting him to court-martial after retiring from active service, if retired and non-activated Reservists are not subject to court-martial? Was this issue waived by the Appellant’s unconditional guilty plea? Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
1:22:28
March 29, 2019
CAAF: Hasan v. U.S. Army Court of Criminal Appeals, and United States, No. 19-0054/AR
Argued on March 27, 2019  Major Hasan seeks extraordinary relief in  the nature of a writ of   mandamus ordering the judges of the Army Court  of Criminal Appeals to disqualify themselves from his case. http://www.caaflog.com/category/october-2018-term/hasan-v-acca/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
42:47
March 28, 2019
CAAF: United States v. Lewis, No.19-0109/AR
Argued on March 27, 2019  Issue:  Whether the military judge abused his discretion when he suppressed SPC  Lewis’s third statement as involuntary under Military Rule of Evidence  304. http://www.caaflog.com/category/october-2018-term/united-states-v-lewis/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
29:48
March 28, 2019
NMCCA: United States v. Armendariz, No. 201700338
Argued on March 11, 2019. Case summary: A panel of members with enlisted representation sitting as a general court-martial convicted Appellant, contrary to his pleas, of violating a lawful general order, violating a lawful general regulation, sexual assault, abusive sexual contact, and adultery in violation of Articles 92, 120, and 134, UCMJ, 10 U.S.C. §§ 892, 920, 934 (2016). The Members sentenced Appellant to eighteen months’ confinement and a dishonorable discharge. The Convening Authority approved the sentence as adjudged and, except for the punitive discharge, ordered it executed. Issue: Did the military judge abuse his discretion in denying the defense’s motion to suppress evidence seized during searches on 25-26 July 2016 of MSgt Armendariz’s body, phones, vehicle, office, and office wall locker? Note: Audio post-processed for this podcast with a dynamic normalizer filter.
54:55
March 11, 2019
CAAF: United States v. Voorhees, No. 18-0372/AF
Argued on February 21, 2019 Issues: I. Whether the AFCCA erred in finding no plain error despite trial  counsel’s argument on findings that personally attacked appellant and  trial defense counsel, commented on Appellant’s silence, expressed his  personal opinions, bolstered his own credibility, vouched for government  witnesses, speculated, and made reference to facts not in evidence. II. Whether the AFCCA erred in finding  that the specifications alleging violations of Article 133, UCMJ, stated  an offense despite the fact that they lack words of criminality or a  mens rea. III. Whether plain error occurred when  the military judge failed to instruct the members that mens rea was an  element of an offense under Article 133. http://www.caaflog.com/category/october-2018-term/united-states-v-voorhees/ Note: Audio post-processed for this podcast with a dynamic normalizer filter.  
45:06
February 21, 2019
CAAF: United States v. Tovarchavez, No. 18-0371/AR
Argued on February 21, 2019 Issue: Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills,  75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for  prejudice in this case using the standard for nonconstitutional error. CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-tovarchavez/ Note: Audio post-processed for this podcast with a dynamic normalizer filter. 
43:10
February 21, 2019
CAAF: United States v. Gleason, No. 18-0305/AR
Argued on February 19, 2019 Issue: Whether the Army Court erred by affirming a novel specification covered by an enumerated Art. 134, UCMJ offense.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-gleason/ Note: Audio post-processed for this podcast with a dynamic normalizer filter.
40:37
February 19, 2019
CAAF: United States v. McDonald, No. 18-0308/AR
Argued on February 19, 2019 Issue: Whether the military judge erred in instructing the panel that a negligent mens rea was sufficient to make otherwise lawful conduct criminal. CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-mcdonald/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
33:31
February 19, 2019
NMCCA: United States v. King, No. 201800016
Argued on February 14, 2019. Case Summary: A panel of officer and enlisted members sitting as a general court-martial convicted appellant, a Master-At-Arms Seaman (E-3), contrary to his pleas, of one specification of sexual assault in violation of Article 120, UCMJ. The members sentenced him to confinement for eight years, reduction to the pay grade of E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The CA ordered the sentence executed, except for the dishonorable discharge. Issues: I. Does Article 120(b)(1)(B) of the UCMJ fail to provide adequate standards by which an ordinary person can intelligently choose, in advance, whether a sexual encounter would be lawful, rendering it unconstitutionally vague? II. Were the findings instructions plainly erroneous because lack of consent was not included as an element of the offense of sexual assault by bodily harm, and because the instructions would have permitted a conviction without the prosecution proving lack of consent beyond a reasonable doubt?   Note: Audio post-processed for this podcast with a dynamic normalizer filter.
41:04
February 14, 2019
NMCCA: United States v. Baas, No. 201700318
Argued on January 31, 2019. Case Summary: A panel of members with enlisted representation sitting as a general court-martial convicted the appellant, contrary to his pleas, of two specifications of conspiracy, one specification of making a false official statement, two specifications of committing a sexual act upon a child, two specifications of producing child pornography with intent to distribute, and two specifications of distributing child pornography in violation of Articles 81, 107, 120b, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 881, 907, 920b, and 934 (2012). The appellant was sentenced to fifteen years’ confinement, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the dishonorable discharge, ordered it executed. Issues: I. Did the military judge abuse his discretion in admitting the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer? II. Did the Diatherix gonorrhea test results and the related testimony of Drs. Hobbs and Kafer constitute testimonial hearsay, the admission of which violated the Sixth Amendment?   Note: Audio post-processed for this podcast with a dynamic normalizer filter.
56:14
January 31, 2019
DC Circuit: In re: Abd Al-Rahim Hussein Al-Nashiri, No. 18-1279
Argued on January 22, 2019. Discussed at:  http://www.caaflog.com/2019/01/22/twimj-addendum-al-nashiri-at-the-dc-circuit/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
1:06:40
January 27, 2019
NMCCA: United States v. Olivares, No. 201800125
Argued on January 24, 2019. Case summary: The case is an interlocutory government appeal pursuant to Article 62, UCMJ. The accused faces, inter alia, charges of sexual assault and sexual harassment. The military judge found the sole Specification of Charge I (violation of a lawful general order) failed to state an offense, finding that United States Navy General Regulations (1990) Article 1166 is not punitive and is void for vagueness. After the military judge granted the defense’s motion to dismiss the Specification, the government filed its appeal. Issue: Whether the military judge erred by dismissing the sole Specification of Charge I finding that Article 1166, United States Navy General Regulations (1990), is not punitive and is void for vagueness? Note: Audio post-processed for this podcast with a dynamic normalizer filter.
1:22:12
January 24, 2019
CAAF: United States v. Meakin, No. 18-0339/AF
Argued on January 23, 2019.  Issue: Whether Appellant’s conviction for engaging in anonymous, private, and  consensual communications with an unknown partner(s) in the privacy of  his home was legally sufficient. CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-meakin/ Note: Audio post-processed for this podcast with a dynamic normalizer filter.
40:48
January 24, 2019
CAAF: United States v. Hutchins, No. 18-0234/MC
Argued on January 23, 2019. Issue: Whether the military judge erred when he denied the defense motion to suppress evidence of conduct for which Appellant had been acquitted at his first trial. CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-hutchins-october-2018-term/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
53:16
January 23, 2019
CAAF: United States v. Perkins, No. 18-0365/MC
Argued on Tuesday, January 22, 2019  Issues: I. Whether this Court’s holding in United States v. Carter as applied by the Navy-Marine Corps Court of Criminal Appeals in this case, instead of the plain reading of MRE 311(c) this Court applied in United States v. Hoffman, controls in analyzing the applicability of the good faith exception to the exclusionary rule. II. Whether the military judge erred in denying a defense motion to suppress evidence obtained from a search of Appellant’s home. CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-perkins/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
50:43
January 23, 2019
CAAF: United States v. Smith, No. 18-0211/AR
Argued on Tuesday, January 22, 2019 Issues: I. Whether the military judge abused her discretion in denying a defense motion to suppress evidence obtained from Appellant’s cellular telephone because access to the contents of the iPhone would not have been available but for the government’s illegal search and the good faith doctrine would be inapplicable under the circumstances. II. Whether the Army Court of Criminal Appeals erred in deeming the insufficient nexus issue waived because there was no deliberate decision not to present a ground for potential relief but instead only a failure to succinctly articulate the grounds upon which relief was sought. CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-smith/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
38:32
January 23, 2019
AFCCA: United States v. Laubach, No. 39396
Argued on January 16, 2019.  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
1:06:22
January 16, 2019
NMCCA: United States v. Watkins, No. 201700246
Argued on December 20, 2018. Case Summary: A general court-martial composed of members with enlisted representation convicted the appellant, contrary to his pleas, of two specifications of violating a lawful order in violation of Article 92, UCMJ one specification of committing a lewd act upon a child in violation Article 120b, UCMJ; and one specification of obstructing justice in violation of Article 134, UCMJ. The members sentenced the appellant to five years confinement, reduction to paygrade E-1, and a dishonorable discharge. The convening authority approved the sentence as adjudged, and, except for the dismissal, ordered the sentence executed. Issues:  I. Did the military judge err in denying civilian defense counsel’s motion to withdraw as appellant’s counsel? II. The Sixth Amendment guarantees an accused the right, within limits, to retain counsel of his own choosing. Before trial, and after his civilian counsel moved to withdraw from the case citing a perceived conflict, the appellant asked to release his civilian counsel and hire a different one. Did the military judge err by denying this request? Note: Audio post-processed for this podcast with a dynamic normalizer filter.
1:02:20
December 20, 2018
CAAF: United States v. Stout, No. 18-0273/AR
Argued on December 4, 2018.  Issue: Whether the Government made major changes to the time frame of three offenses, over defense objection, and failed to prefer them anew in accordance with Rule for Courts-Martial 603.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-stout/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
36:23
December 4, 2018
CAAF: United States v. Briggs, No. 16-0711/AF
Argued on December 4, 2018.  Issues:  I. Does the 2006 amendment to Article 43, UCMJ, clarifying that rape is an offense with no statute of limitations, apply retroactively to offenses committed before enactment of the amendment but for which the then extant statute of limitations had not expired.  II. Can Appellant successfully raise a statute of limitations defense for the first time on appeal.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-briggs/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
36:59
December 4, 2018
CAAF: United States v. Forbes, No. 18-0304/NA
Argued on December 4, 2018.  Issue: Whether the Navy court erred in holding that appellant was provident to sexual assault by bodily harm due to his failure to inform his sexual partners of his HIV status.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-forbes/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
43:23
December 4, 2018
CAAF: United States v. Cooper, No. 18-0282/NA
Argued on December 4, 2018.  Issues:  I. Did the lower court err not finding waiver of the right to request individual military counsel where Appellee was advised of his right to request an individual military counsel, agreed he understood the right but wanted instead to be represented by trial defense counsel, and made no motion for individual military counsel?  II. Did the lower court err in not applying the Strickland ineffective assistance test where the government and trial judge played no part in the defense’s failure to request individual military counsel, and if so, did Appellee suffer ineffective assistance of counsel?  III. If Strickland does not apply, did the lower court correctly find Appellee was deprived of his statutory right to request individual military counsel?  IV. Did the lower court err in it’s prejudice analysis for Appellee’s asserted deprivation of his statutory right to individual military counsel when Appellee did not preserve the issue at trial, raised the issue for the first time on appeal, and has alleged no specific prejudice?  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-cooper/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
52:57
December 4, 2018
AFCCA: United States v. Simmons, No. 39342
http://www.caaflog.com/2018/11/29/afcca-argument-audio-simmons/
1:06:27
November 30, 2018
NMCCA: United States v. Jennings, No. 201700241
Argued on October 25, 2018.  Case Summary: A panel of officers sitting as a general court-martial convicted the appellant, contrary to his pleas, of six specifications under Article 80, Uniform Code of Military Justice (UCMJ), and one specification of solicitation under Article 134, UCMJ. The members sentenced the appellant to three years’ confinement, reduction to pay grade E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged and, except for the punitive discharge, ordered the sentence executed.  Issues: I. Whether the government failed to disprove the defense of entrapment—that the Naval Criminal Investigative Service Agent did not induce the Appellant or that the Appellant was predisposed to commit this crime.  II. The government cannot use liberty risk as a subterfuge for restriction. Here, the government held the appellant on liberty risk, which restricted him to base, for 732 days (513 days prior to arraignment). Did the government’s actions constitute restriction under Rule for Courts-Martial 304(a)(2) and trigger Rule for Courts-Martial 707?  III. The Sixth Amendment guarantees a servicemember the right to effective assistance of counsel. The appellant spent 732 days in restriction, which started the government’s Rule for Courts-Martial 707  http://www.caaflog.com/2018/11/26/nmcca-argument-audio-jennings/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
1:25:27
November 27, 2018
9th Circuit: EV v. Eugene Robinson, Jr., No. 16-16975
Discussed at: http://www.caaflog.com/2018/11/15/the-9th-circuit-affirms-the-dismissal-of-an-alleged-victims-collateral-challenge-of-a-discovery-order/
24:12
November 14, 2018
CAAF: United States v. Nicola, No. 18-0247/AR
Argued on November 7, 2018.  Issue: Whether the evidence of indecent viewing in violation of Article 120c, UCMJ, was legally sufficient.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-nicola/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
19:56
November 7, 2018
CAAF: United States v. Bodoh, No. 18-0201/AR
Argued on November 7, 2018.  Issue: Whether the military judge plainly erred by allowing the trial counsel to misstate the law and argue that the panel should base its verdict on SHARP training. CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-bodoh/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
38:31
November 7, 2018
CAAF: United States v. Kohlbek, No. 18-0267/AR
Argued on November 6, 2018.  Issue: Whether the military judge erred by misconstruing Mil.R.Evid. 707 and prohibiting Appellant from presenting evidence relevant to Appellant’s post-polygraph statement.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-kohlbek/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
41:54
November 7, 2018
CAAF: United States v. King, No. 18-0288/AF
Argued on November 6, 2018.  Issue: The military judge found Appellant guilty of viewing child pornography. But all of the alleged child pornography appellant allegedly viewed was found in unallocated space or a Google cache. Is the evidence legally sufficient?  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-king-october-2018-term/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
46:33
November 7, 2018
CAAF: United States v. Tucker, No. 18-0254/AR
Argued on October 24, 2018.  Issue: Whether the Army Court erred in holding that the minimum mens rea required under clauses 1 and 2 of Article 134, UCMJ, to separate wrongful from innocent conduct is simple negligence.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-tucker-2018/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
41:05
November 7, 2018
CAAF: United States v. Hale, No. 18-0162/AF
Argued on October 23, 2018.  Issues:  I. The lower court found as a matter of law that personal jurisdiction does not exist outside of the hours of inactive-duty training. The lower court proceeded to find personal jurisdiction existed over Appellant because he was “staying” with his in-laws. Was this error?  II. Whether the lower court erred when it concluded the military judge correctly instructed the members they could convict Appellant for conduct “on or about” the dates alleged in each specification.  Specified Issue:  III. Whether the lower court erred in concluding the court-martial had jurisdiction over specification 2 of additional charge 1, as modified to affirm the lesser included offense of attempted larceny.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-hale/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
42:23
November 7, 2018
CAAF: United States v. Hamilton, No. 18-0135/AF
Argued on October 23, 2018.  Issues:  I. Are victim impact statements admitted pursuant to R.C.M. 1001A evidence subject to the Military Rules of Evidence?  II. Whether the military judge erred in admitting prosecution exhibits 4, 5, and 6.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-hamilton/  Note:  Audio post-processed for this podcast with a dynamic normalizer filter. 
46:39
November 7, 2018
NMCCA: United States v. Jeter, No. 201700248
Argued on October 16, 2018.  Case Summary: A panel of officers sitting as a general court-martial convicted the appellant, contrary to his pleas, of one specification of sexual harassment, two specifications of drunken operation of a vehicle, three specifications of sexual assault, one specification of extortion, one specification of burglary, two specifications of conduct unbecoming an officer, one specification of communicating a threat, and two specifications of unlawful entry in violation of Articles 92, 111, 120, 127, 129, 133, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892, 911, 920, 927, 929, 933, and 934 (2016). The appellant was sentenced to twenty years’ confinement and a dismissal. The convening authority approved the sentence as adjudged and, except for the dismissal, ordered the sentence executed.  Issues:  I. After removing minority and female members from a panel, the government must provide a demographic-neutral reason for the removals. The convening authority removed two African Americans and three women from the appellant’s members panel and replaced them with only white men. Was it error to not require a demographic-neutral explanation after the defense objected?  [II]. Evidence admitted under military rule of evidence 404(b) must be materially relevant and the probative value must outweigh the prejudice. The military judge instructed the members they may use evidence that was not materially relevant and invited character inferences to prove intent and motive. Did the military judge err in assessing the material relevance, probative value and prejudicial effect on the evidence?  http://www.caaflog.com/2018/10/23/nmcca-argument-audio-jeter/
1:08:01
November 7, 2018
CAAF: United States v. Criswell, No. 18-0091/AR
Argued on September 13, 2018.  Issue: Whether the military judge abused his discretion in denying a defense motion to suppress the accusing witness’s in-court identification of Appellant.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-criswell/ Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
1:07:52
November 7, 2018
CAAF: United States v. Eugene, No. 18-0209/AR
Argued on September 12, 2018.  Issues:  I. Whether Appellant’s request to Criminal Investigation Command (CID) that his cell phone be returned was a withdrawal of the third party consent to search given by Appellant’s wife in Appellant’s absence.  II. Whether the Army Court erred in determining the applicability of the inevitable discovery doctrine where (1) the CID agents failed to take any steps to obtain a warrant and (2) the case took a “dead-end” until the warrantless search.  CAAFlog case page: http://www.caaflog.com/category/october-2018-term/united-states-v-eugene/   Note:  Audio post-processed for this podcast with a dynamic normalizer filter.
40:41
November 7, 2018
Make your own podcast for free with Anchor!