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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, May 9, 2017

9:30 a.m.:

United States v.	Stephan H. Claxton	No.17-0148/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Jarett Merk, USAF (sealed brief)
                                             --------------------------- (reply brief)
Counsel for Appellee:  Maj Mary Ellen Payne, USAF (brief)   

Case Summary: GCM conviction of attempted abusive sexual contact, wrongful sexual contact and assault. Granted issues question: (1) whether the findings and sentence must be set aside in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016); and (2)whether the Government's failure to disclose that Air Force Academy Cadet E.T. was a confidential informant for the Air Force Office of Special Investigations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), was harmless beyond a reasonable doubt.

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

Followed by:

United States v.	Patrick Carter	Nos. 17-0079/AF & 17-0086/AF
(Appellant/ Cross-Appellee)	(Appellee/ Cross-Appellant)	(audio)

Counsel for Appellant/Cross-Appellee: Maj Meredith L. Steer, USAF
                                                                   ------------------------- (brief)
                                                           --------- (Cross-Appellee brief) Counsel for Appellee/Cross-Appellant:   Brian L. Mizer, Esq. (brief)
                                                           --------- (Cross-Appellant brief)
                                                           -- (Cross-Appellant reply brief)

Case Summary: GCM conviction of child endangerment and indecent acts with a child. Certified issue questions whether the Air Force Court of Criminal Appeals (AFCCA) erred by finding that the convening authority exceeded the scope of AFCCA's remand when he referred Appellant's case to an "other" trial under R.C.M. 1107(e)(2) following AFCCA's original remand decision. Issues granted review are: (1) the Air Force Court of Criminal Appeals dismissed the charge and specifications in this case in 2013 and again in 2016. But it exceeded the eighteen-month presumption of unreasonable delay before doing so each time. Has Appellee been denied due process where he completed his sentence to three years of confinement 158 days before this court affirmed the lower court's first dismissal of this case on August 2, 2013? (2) whether Appellee's prosecution for child endangerment was barred by the statute of limitations where more than five years had elapsed and Appellee was not brought to trial within 180 days of this court's affirmance of the lower court's dismissal of that specification; (3) whether United States Court of Military Commission Review Judge, Martin T. Mitchell, was statutorily authorized to sit as one of the Air Force Court of Criminal Appeals judges on the panel that decided Appellant's case; (4) whether Judge Martin T. Mitchell's service on both the Air Force Court of Criminal Appeals and the United States Court of Military Commission Review violated the appointments clause given his status as a principal officer on the United States Court of Military Commission Review; and (5) whether Judge Martin T. Mitchell was in fact a principal officer following his appointment by the President of the United States Court of Military Commission Review in light of the provisions of 10 U.S.C. § 949b(b)(4)(C) and (D), authorizing reassignment or withdrawal of Appellate Military judges so appointed by the Secretary of Defense of his designee.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument. Oral argument will only be heard on the certified issue and granted issues I and II.

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Wednesday, May 10, 2017

9:30 a.m.:

United States v.	Steven M. Tucker	No. 17-0160/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Timothy G. Burroughs, JA, USA
                                              -----------------------------------(brief)
                                              --------------------------- (reply brief)
Counsel for Appellee:  Capt John Gardella, JA, USA (brief)

Case Summary: GCM conviction of conspiracy, obstruction of justice, aggravated sexual assault, and providing alcohol to a minor. Granted issue questions whether the Army Court erred in holding that the term "disorders and neglects" states a negligence standard for mental culpability under Article 134, UCMJ, which precludes application for United States v. Elonis.

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

Followed by:

United States v.	Brandon G. Darnall	No. 16-0729/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:  LT Christopher McMahon, JAGC, USN (brief)
Counsel for Appellee: Maj Cory A. Carver, USMC (brief)  

Case Summary: GCM conviction of conspiracy to distribute controlled substances, conspiracy to import controlled substances, making a false official statement, importing, possessing, manufacturing, distributing controlled substances or controlled substance analogs, attempted possession with intent to distribute a controlled substance analog, and using a communication facility in furtherance of a conspiracy. Granted issue questions whether the military judge erred in failing to suppress evidence directly flowing from the illegal apprehension of Appellant, whether the NMCCA ruling upholding this decision conflated reasonable suspicion with probable cause, and whether this decision should be reversed.

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

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Tuesday, May 23, 2017

9:30 a.m.:

United States v.	Nhubu C. Chikaka	No. 16-0586/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:  LT Douglas Ottenwess, JAGC, USN (brief)
                                            ------------------------------------------- (brief)
Counsel for Appellee:   LCDR Jeremy Brooks, JAGC, USN (brief)

Case Summary: GCM conviction of orders violations, attempted abusive sexual contact, abusive sexual contact, wrongful sexual contact, obstructing justice, adultery, and the use of indecent language. Granted issues question (I) whether the military judge admitted on the merits a campaign plan to "fully operationalize the Commandant's guidance" from the heritage tour, and then during sentencing admitted a picture of the Commandant and allowed Appellant's commanding officer to testify that it was important for the members to adjudge a harsh sentence, did the lower court err in failing to find evidence of unlawful command influence sufficient to shift the burden to the Government to disprove unlawful command influence in this case, and (II) whether the military judge erred when he instructed the members, "if, based on your consideration of the evidence, you are firmly convinced that the accused is guilty of the crime 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. Oral argument will be heard on Issue I only.