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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, November 1, 2016

2:30 p.m.:

United States v.	Ellwood T. Bowen, III	No. 16-0229/AF
(Appellee)	(Appellant)	(audio)

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

Brief of Amicus Curiae -- Michael N. Mulvania and Patrick D. Kummerer

Brief of Amicus Curiae -- John G. Scott and Adam Zenger

Case Summary: GCM conviction of aggravated assault and assault. Granted issue questions whether the military judge erred in applying the "excited utterance" exception to the hearsay rule to permit the government to introduce through the testimony of law enforcement personnel that Appellant's wife nodded her head in response to a question whether her husband "did this," and in concluding that the prejudicial effect of this testimony was outweighed by its probative value. See M.R.E. 802 and 803(2); M.R.E. 403; United States v. Donaldson, 58 M.J. 477 (2003); United States v. Jones, 30 M.J. 127 (C.M.A. 1990); United States v. Arnold, 25 M.J. 129 (C.M.A. 1987); United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981).

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument. Counsel for each Amicus Curiae will be allotted 10 minutes to present oral argument. Project Outreach case to be heard at The University of Colorado Law School, Boulder, Colorado.

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Wednesday, November 2, 2016

2:00 p.m.:

United States v.	Trentlee D. McClour	No. 16-0455/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Annie W. Morgan, USAF (brief)
                                            --------------------------- (reply brief)
Counsel for Appellee:  Maj Mary Ellen Payne, USAF (brief)

Case Summary: GCM conviction of abusive sexual contact. Granted issue questions whether AFCCA erred when it failed to grant relief where the military judge instructed the members, "if based on your consideration of the evidence, you are firmly convinced that the accused is guilty of any offense charged, you must find him guilty," where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977) and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument. Project Outreach case to be heard at Peterson Air Force Base, Colorado Springs, Colorado.

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Tuesday, November 15, 2016

9:30 a.m.:

United States v.	Emmanuel Q. Bartee	No. 16-0391/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:  Maj Benjamin A. Robles, USMC (brief)
                                            ------------------------------ (reply brief)
Counsel for Appellee:   Capt Cory A. Carver, USMC (brief)

Case Summary: GCM conviction of conspiracy to commit larceny, making a false official statement, and larceny. Granted issue questions whether the systematic exclusion of individuals by rank from the member –selection process is prohibited. Here, the military judge dismissed the panel for violating Article 25, UCMJ, but the convening authority reconvened the exact same panel the same day. Is this systematic exclusion based on rank reversible error?

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

Followed by:

United States v.	Jeffrey D. Sager	No. 16-0418/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:  LT Doug Ottenwess, JAGC, USN (brief)
                                            --------------------------------- (reply brief)    
Counsel for Appellee:   LCDR Justin C. Henderson, JAGC, USN
                                            ---------------------------------------- (brief)

Case Summary: GCM conviction of abusive sexual contact. Granted issues are: (1) in affirming the abusive sexual contact conviction, the lower court relied on facts of which the members acquitted Appellant. Was this error? and (2) Article 120(d), UCMJ, prohibits sexual contact on another person when that person is "asleep, unconscious, or otherwise unaware." Despite these specific statutory terms, the lower court held that "asleep" and "unconscious" do not establish theories of criminal liability, but only the phrase "otherwise unaware" establishes criminal liability. Did the lower court err its interpretation of Article 120(d), UCMJ?

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

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Wednesday, November 16, 2016

9:30 a.m.:

United States v.	Justin P. Swift	No. 16-0407/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Michael A. Gold, JA, USA (brief)
                                             --------------------------- (reply brief)         
Counsel for Appellee:  Maj Jihan Walker, JA, USA (brief)    

Case Summary: GCM conviction of indecent acts with a child. Granted issues question: (1) whether the Army Court denied Appellant his substantial right to an Article 66(c) review by affirming the findings and sentence on uncharged misconduct presented at trial rather than the charged offenses; and (2) whether the military judge erred by admitting Appellant's pretrial statement where there was no independent evidence to corroborate the essential facts admitted; and the following specified issue: whether the evidence of the two convictions of indecent acts with a child is legally sufficient.

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

Followed by:

United States v.	Joseph R. Haverty	No. 16-0423/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:  Capt Cody Cheek, JA, USA (brief)
                                             ------------------------ (reply brief)    
Counsel for Appellee:   Capt John Gardella, JA, USA (brief)

Case Summary: GCM conviction of violating a general regulation, aggravated sexual contact, abusive sexual contact, indecent viewing, larceny, assault consummated by battery, and maltreatment. Granted issue questions whether the military judge committed plain error when he failed to instruct the panel on the mens rea required for an Article 92, UCMJ, violation of Army Regulation 600-20, which prohibits requiring the consumption of excessive amounts of alcohol as an initiation rite of passage.

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