24 September 2007

CAAF Oral Arguments

On Monday 1 October and Tuesday 2 October, CAAF will hear the first four oral arguments of the new term. For those in the DC area who are able to get to the courthouse, there are some interesting issues being argued, although some are a bit esoteric.
Here is the schedule as taken from the CAAF web site

Monday, October 1, 2007

9:00 a.m.: Jacob Denedo v. United States, No. 07-8012/NA
(Appellant) (Appellee)

Counsel for Appellant: Matthew S. Freedus, Esq.
Counsel for Appellee: LCDR Paul D. Bunge, JAGC, USN

Case Summary: 1998 SPCM conviction for conspiracy to commit larceny, and larceny. Court of Criminal Appeals denied Appellant’s petition for extraordinary relief in the nature of writ of error coram nobis. Appellant’s writ-appeal raises the issue of whether his guilty plea was involuntary due to constitutionally ineffective assistance of counsel and affirmative misrepresentations regarding the deportation consequences of his plea. Oral argument will focus on whether the Court has jurisdiction over this writ-appeal petition, and if so, whether the Court is in a position to address the merits of the appeal without further fact-finding.

For those of you who have been following the debate over at CAAFlog on the CAAF's All Writs Jurisdiction after Clinton v. Goldsmith, this case will test the limits of that jurisdiction.
Followed by: United States v. Robert J. Medina, No. 07-0096/AR
(Appellee) (Appellant)

Counsel for Appellant: Maj Teresa L. Raymond, JA, USA
Counsel for Appellee: Capt Adam S. Kazin, JA, USA

Case Summary: GCM conviction for possession and transportation of child pornography, coercing a minor to produce child pornography, indecent acts with a minor, and disobedience. Army Criminal Court of Appeals amended the findings of child pornography specifications from Clause 3 violations of Article 134, UCMJ, to Clause 2 violations under United States v. Martinelli. The specified issue is whether the action of the Army Criminal Court of Appeals amending the findings adds an element to the offenses in violation of Apprendi v. New Jersey, Jones v. United States, and Schmuck v. United States.

I'm somewhat puzzled by this case. It appears the ACCA affirmed the LIO of service discrediting conduct under clause 2 of Article 134, rather than the clause 3 offense, but added that service discrediting language to the spec. it seems that doing so is harmless, unless the judges at CAAF have something else up their sleeves.
Tuesday, October 2, 2007

9:00 a.m.: United States v. Rickie E. Parrish, No. 07-0079/AR
(Appellee) (Appellant)

Counsel for Appellant: Capt Richard P. Pizur, JA, USA
Counsel for Appellee: Capt Mark E. Goodson, JA, USA

Case Summary: GCM conviction for sodomy and indecent acts with a child. Granted issue is whether the Army CCA properly exercised its fact-finding power under Article 66, UCMJ, in resolving the question of whether the Government violated a material term of Appellant’s pretrial agreement despite conflicting affidavits.

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.

Followed by: United States v. Anthony Brown, No. 07-0286/AR
(Appellee) (Appellant)

Counsel for Appellant: Frank J. Spinner, Esq.
Counsel for Appellee: Capt Clare L. O'Shaughnessy, JA, USA

Case Summary: GCM conviction of indecent assault, violation of orders and adultery. Granted issue is whether the military judge erred by instructing the members that they could convict Appellant of indecent assault, a lesser included offense of rape, without voting on each of the three separate factual scenarios, which constituted duplicitous pleading.

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.


Anonymous said...

Re Medina -- in what alternate universe can a court add/write-in elements to an offense after the conviction/guilty plea to a different offense? And in what alternate reality is something an LIO when the elements of the "LIO" offense did not have to be proven enroute to proving/pleading to the greater offense? I doubt anyone thinks that clause 2 of 134 needs to be proven enroute to a CPPA conviction. Basic principles of criminal law. Really basic.

Sacramentum said...

That's why I think there must be some ulterior motive behind CAAF taking the case and hearing oral argument. The ACCA opinion is somewhat cryptic, but it suggests they are adding the element knowing that this might cause a problem. They even mention that it is an important issue.

Anonymous said...

I also wonder now in light of Medina, if it's not error -- in a contested, members case -- for the judge to fail to instruct sua sponte on the "LIO" under clause 2?


Anonymous said...

Ahmm, if what the lower court did is "odd", if not flagrantly in violation of basic principles of criminal law, how is there an ulterior motive in CAAF taking the case? How about an ulterior motive in the CCA doing what it did?