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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001

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Tuesday, October 6, 2015

9:30 a.m.:

United States v.	Christopher S. Cooley	No.15-0384/CG & 15-0387/CG
(Appellee/ Cross-Appellant)	(Appellant/   Cross-Appellee)	(audio)

Counsel for Appellant: LT Philip A. Jones, USCG
Counsel for Appellee: LCDR Amanda M. Lee, USCG

Brief -- Government on Certified Issues
Brief -- Defense on Certified Issues
Brief -- Government Reply on Certified Issues
Brief -- Defense on Granted Issue
Brief -- Government on Granted Issue
Brief -- Defense Reply on Granted Issue

Case Summary: GCM conviction of attempted lewd acts with a child, disobeying an order, possession of child pornography, and attempted indecent conduct with a child. Granted issue questions whether the Government violated Appellant's rights under Article 10, UCMJ, when the Government possessed key evidence against Appellant on July 20, 2012, and February 5, 2013, yet made no move to prosecute Appellant for these offenses until June of 2013, despite his pretrial confinement from December 20, 2012. Certified issues question: (1) whether the Coast Guard Court of Criminal Appeals erred by finding that pre-trial confinement can serve as per se prejudice for purposes of determining a violation of Article 10, Uniform Code of Military Justice and (2) whether the facts and circumstances of the case, considering the factors set out in Barker v. Wingo, 407 U.S. 514, 530 (1972) and applied to review of Article 10 by United States v. Birge, 52 M.J. 209, 212 (C.A.A.F. 1999), amount to a violation of Article 10, Uniform Code of Military Justice.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

Followed by:

United States v.	Carlton Wilder, Jr.	No.15-0087/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: CAPT Bree A. Ermentrout, JAGC, USN (brief)                                                 ----------------------------------- (reply brief)
Counsel for Appellee: LT James Belforti, JAGC, USN (brief)    

Case Summary: GCM conviction of attempted sexual assault of a child, distributing child pornography, possession of child pornography, and distributing lewd photos. Granted issue questions whether the promulgation of RCM 707 abrogated the "substantial information" rule originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

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Wednesday, October 7, 2015

9:30 a.m.:

United States v.	Nicholas E. Busch	No.15-0477/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Luke D. Wilson, USAF (brief)
Counsel for Appellee: Maj Mary Ellen Payne, USAF (brief)    

Case Summary: GCM conviction of fraudulent enlistment, AWOL, making a false official statement, and sexual abuse of a child. Petition granted on the following issue: At the time of Appellant's alleged sexual abuse of a child offense, the President had not set the maximum punishment for the offense. The military judge used a later-enacted executive order to set the maximum punishment, even though it increased the confinement range from one year to fifteen years. Was the ex post facto clause violated?

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

Followed by:

United States v.	Alan J. Killion	No.15-0425/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Johnathan D. Legg, USAF (brief)                                                ------------------------------ (reply brief)
Counsel for Appellee: Maj Meredith L. Steer, USAF (brief)   

Case Summary: SPCM conviction of drunk and disorderly conduct, unlawful entry, and use of provoking speech. Granted issues question: (1) whether Appellant's conviction for provoking speech is legally insufficient because "under the circumstances" his words were not reasonably likely to provoke violence and (2) whether the military judge's instructions regarding provoking speech were deficient under the facts and circumstances of Appellant's case.

NOTE:Counsel for each side will be allotted 20 minutes to present oral argument.

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Tuesday, October 20, 2015

12:00 p.m.:

United States v.	Matthew P. Hoffmann	No.15-0361/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: C. Ed Massey, Esq. (brief) (reply brief)
Counsel for Appellee: Maj Suzanne M. Dempsey, USMC (brief)

Brief of Amicus Curiae -- Loren K. Peck and Timothy C. MacDonnell

Case Summary: GCM conviction of attempted sodomy with a child, indecent liberties with a child, possession of child pornography, and attempting to entice a child. Granted issues are: (1) whether the search and seizure of the personal items of an individual where the search was initially granted by consent, but later revoked before the seizure of items, violated the Fourth Amendment of the Constitution and (2) the Appellant was charged with crimes involving child enticement. The NMCCA found a search for a separate crime, child pornography, was supported by probable cause based solely on the child enticement allegations. In doing so, the NMCCA relied on a minority opinion in federal case law and applied it incorrectly. Should this court reverse?

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument. Project Outreach case to be heard at Washington and Lee University School of Law, Lexington, Virginia.

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Wednesday, October 21, 2015

10:30 a.m.:

United States v.	Eric L. Rapert	No.15-0476/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Katherine L. DePaul, JA, USA (brief)
Counsel for Appellee: Maj Steven J. Collins, JA, USA (brief)    

Brief of Amicus Curiae -- Stephen L. Braga, Hardev Chhokar, and Dana Wallace

Case Summary: SPCM conviction of communicating a threat against the President, having an unregistered firearm, lewd acts with a child, and assault of a child consummated by battery. Granted issue questions whether the finding of guilty for Charge I and its Specification for communicating a threat is legally insufficient because the comments are constitutionally protected and do not constitute a threat under the totality of the circumstances and in light of the Supreme Court's decision in Elonis v. United States, 575 U.S. _, 135 S. Ct. 2001 (2015).

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument. Project Outreach case to be heard at University of Virginia School of Law, Charlottesville, Virginia.

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Tuesday, October 27, 2015

9:30 a.m.:

United States v.	Francis L. Captain	No.15-0172/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt David A. Peters, USMC (brief)
Counsel for Appellee: Capt Cory A. Carver, USMC (brief)    

Case Summary: GCM conviction of aggravated sexual assault. Granted issues question: (1) whether trial defense counsel provided ineffective assistance of counsel by failing to offer evidence, other than an unsworn statement, in extenuation or mitigation and by conceding the appropriateness of a dishonorable discharge and (2) whether the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming a sentence that included a dishonorable discharge when the convening authority's action did not approve one.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

Followed by:

United States v.	Quantaus R. Riggins	No.15-0334/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Jeffrey S. Stephens, Esq. (brief)
Counsel for Appellee: LCDR Keith B. Lofland, JAGC, USN (brief)

Case Summary: GCM conviction of violating a general order, making a false official statement, adultery, use of indecent language, and assault consummated by a battery. Granted issue questions whether the lower court erred in deciding a question of law which has not been, but should be, settled by this court when it held that assault consummated by battery was a lesser included offense to abusive sexual contact and sexual assault.

NOTE:Counsel for each side will be allotted 20 minutes to present oral argument.

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Wednesday, October 28, 2015

9:30 a.m.:

United States v.	Sebastian P. LaBella	No.15-0413/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Maj Ja Rai Williams, USAF (brief)
Counsel for Appellee: Gerald R. Bruce, Esq. (brief)

Brief of Amicus Curiae -- Isaac C. Kennen, Brian L. Mizer, and Patrick J. Wells

Case Summary: GCM conviction of possessing child pornography. Briefs were requested on whether Appellant's petition for grant of review should be dismissed for lack of jurisdiction when the Court of Criminal Appeals entertained an untimely filed motion for reconsideration for "good cause," but denied the motion on other grounds, and Appellant filed a petition for grant of review with this Court under Article 67, UCMJ, more than 60 days after the original decision of the Court of Criminal Appeals, but within 60 days of the final decision on the motion for reconsideration. See, United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009); United States v. Smith, 68 M.J. 445 (C.A.A.F. 2010).

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.