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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, December 5, 2023

9:30 a.m.:

In re B.M. v.	U.S. & Bailey	No. 23-0233/NA
(Appellant)	(Appellee)	(audio -- mp3 wma)

Counsel for Appellant: LTCol Elizabeth A. Murphy, USA
                                       ------------------------- (redacted brief)
                                       ------------------ (redacted reply brief)
Counsel for Appellee: LTCol James A. Burkart, USMC (brief)

Real Party in Interest redacted answer brief

Real Party in Interest brief - under seal

Brief of Amicus Curiae -- Pink Berets and Not in My Marine Corps

Brief of Amicus Curiae -- Marine Corps Victims' Legal Counsel Organization and Navy Victims' Legal Counsel Program

Case Summary: The Accused was charged with abusive sexual contact and assault consummated by a battery for offenses allegedly committed upon B.M. The Accused filed a discovery request for B.M.'s mental health records. The Court will address two issues certified by The Judge Advocate General. First, M.R.E. 513 governs the procedures for production and in camera review of patient records that "pertain to" communications to a psychotherapist. The military judge applied R.C.M. 703 to order production and conduct an in camera review of B.M.'s diagnosis and treatment. Did the military judge err by applying the narrow scope of the M.R.E. 513(a) privilege defined in Mellette to bypass the procedural requirements of M.R.E. 513(e)? Second, the Army Criminal Court of Appeals held no constitutional exception to M.R.E. 513 exists. The Navy-Marine Corps Court of Criminal Appeals ruled the Constitution required production of mental health records. The resulting disparity in appellate precedent precludes uniform application of the law. Should Payton-O'brien be overturned?

NOTE: Counsel for Appellant, Appellee, and the Real Party in Interest will each be allotted 20 minutes to present oral argument.

Followed by:

H.V.Z. v.	U.S. & Fewell	No. 23-0250/AF
(Appellant)	(Appellee)	(audio -- mp3 wma)

Counsel for Appellant: Lt Col G. Matthew Osborn, USAF (brief)
                                       ----------------------------------- (reply brief)
Counsel for Appellee:  Devon A. R. Wells, AVC (brief)

Real Party in Interest Answer Brief

Brief of Amicus Curiae -- Navy-Marine Corps Appellate Defense Division

Brief of Amicus Curiae -- Navy Special Victims' Counsel and Coast Guard Special Victims' Counsel

Case Summary: The Accused was charged with sexual assault, domestic violence, and wrongful use of a controlled substance. The Accused's counsel filed a motion to compel discovery of H.V.Z.'s medical and Family Advocacy Program records. The Court will address four issues certified by The Judge Advocate General. First, whether the military judge erred when he determined that H.V.Z.'S DoD health record was in the possession, custody, or control of military authorities pursuant to RCM 701(a)(2)(A) and RCM 701(a)(2)(B). Second, whether the military judge erred when he did not consider H.V.Z.'s written objection to production of her DoD health record as he found she did not have standing nor a right to be heard? Third, whether H.V.Z. must show the military judge clearly and indisputably erred for writ to issue under Article 6b(e), UCMJ, or shall ordinary standards of appellate review apply. Fourth, whether this court should issue a writ of mandamus.

NOTE: Counsel for Appellant, Appellee, and the Real Party in Interest will each be allotted 20 minutes to present oral argument.

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Wednesday, December 6, 2023

9:30 a.m.:

United States v.	Kristopher D. Cole	No. 23-0162/AF
(Appellee)	(Appellant)	(audio -- mp3 wma)

Counsel for Appellant: Maj Samantha P. Golseth, USAF (brief)
                                       ---------------------------------- (reply brief)
Counsel for Appellee: Capt Jocelyn Q. Wright, USAF (brief)    

Case Summary: SGCM conviction for assault. Granted issue questions whether Appellant is entitled to relief because the military judge misapprehended the offense in Specification 2 of Charge II for which he sentenced Appellant.

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

Followed by:

United States v.	Ryan M. Palik	No. 23-0206/AF
(Appellee)	(Appellant)	(audio -- mp3 wma)

Counsel for Appellant: Maj. Matthew Blyth, USAFR (brief)
                                       ------------------------------ (reply brief)
Counsel for Appellee: Capt Tyler L. Washburn, USAF (brief)

Case Summary: GCM conviction for assault and battery and domestic violence. Granted issue is whether the defense counsel provided ineffective assistance by failing to file a RCM 914 motion after SM's testimony where the government lost the only two video-recorded statements from SM (the complaining witness for every offense of which Appellant was convicted).

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

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Tuesday, December 19, 2023

9:30 a.m.:

United States v.	Thomas L. Wheeler	No. 23-0140/NA
(Appellee)	(Appellant)	(audio -- mp3 wma)

Counsel for Appellant: LCDR Megan P. Marinos, USMC (brief)
                                       ---------------------------------- (reply brief)
Counsel for Appellee:  Brian K. Keller, Esq. (brief)    

Case Summary: SCM conviction for sleeping at his post. Granted issues are: (1) did the lower court err in holding that the due process clause of the Fifth Amendment does not protect a servicemember's fundamental right to a panel of members at court-martial; and (2) did the lower court err by deferring to a convening authority's case-by-case referral decision rather than an objective standard to determine whether an offense is serious?

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