21 June 2007


In a surprise, CAAF released 6 opinions today. By my calculations (more like guess work) that leaves only 10 opinions, give or take a few, to be released before the term ends on 30 September.

U.S. v. Albaaj
07-0002/AR(PDF) Jun 21, 2007

U.S. v. Jameson
06-0881/MC(PDF) Jun 21, 2007

U.S. v. Sanchez
06-0617/AR(PDF) Jun 21, 2007

U.S. v. Wilson
06-0503/NA(PDF) Jun 21, 2007

U.S. v. Thomas
06-0350/NA(PDF) Jun 21, 2007

U.S. v. Pflueger
05-0139/MC(PDF) Jun 21, 2007

I will discuss three of the cases here. At first glance, the others seem more involved and will have to await comment after I have had a chance to review them more carefully.

United States v. Pflueger
In United States v. Pflueger, the convening authority had suspended the BCD and ordered it remitted at the end of the 12-month suspension period unless it was sooner vacated. The NMCCA noted that it took almost a year for the CA action and three more years before the case arrived at the court. Finding the delays “both unreasonable and unconscionable,” the court determined that sentencing relief was appropriate under United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002)). But the relief the NMCCA ordered was to set aside the BCD that had already been remitted

Writing for a unanimous court, Chief Judge Effron guides the reader through the intricacies of Articles 58b, 60, 61, and 66, UCMJ. Court holds that the BCD no longer existed for the NMCCA to set aside. Case is remanded to the NMCCA to grant meaningful relief.
United States v. Wilson
At a contested trial, the accused was convicted of rape, assault, adultery, and unlawful entry into a dwelling. The members sentenced Wilson to
confinement for eight years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge. The convening authority's action stated "that part of the sentence extending to confinement in excess of 3 years and 3 months is disapproved. The remainder of the sentence, with the exception of the Dishonorable Discharge, is approved and will be executed."

Judge Erdmann, writing for the majority, relies on R.C.M. 1107(f)(4): "The action shall state whether the sentence adjudged by the court-martial is approved." He concludes that "the convening authority used facially clear and unambiguous language that excluded the dishonorable discharge from approval." Slip op. at 5.

Chief Judge Effron and Judge Baker dissent separately. Chief Judge Effron argues that the action is incomplete and therefore should be sent back to the convening authority for a new action that would clarify whether the intended to approve the discharge. Judge Baker argues for the same results but contends the action is ambiguous rather than incomplete.
United States v. Sanchez
The appellant was convicted of the rape and forcible sodomy of his 8-year-old stepdaughter. On appeal he contested the admissibility of the testimony of the expert witness who testified that the victim was "concerning for abuse."

Judge Ryan, writing for the majority, concluded the military judge did not abuse her discretion in admitting the testimony of the expert. The case includes a discussion of the rules for expert testimony under the Military Rules of Evidence, Daubert, and Kumho Tire.

Chief Judge Effron concludes the expert witness's testimony was not based on a reliable methodology.

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