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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 10, 2016

9:30 a.m.:

United States v.	Asa M. Evans	No. 16-0019/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Matthew D. Bernstein, JA, USA (brief)
                                      -----------------------------------------(reply brief)
Counsel for Appellee:  Capt Linda Chavez, JA, USA (brief)    

Case Summary: GCM conviction of making a false official statement, and larceny. Granted issue questions whether the Army Court of Criminal Appeals erred in applying the Kerr prejudice test as opposed to the Brisbane harmless beyond a reasonable doubt test regarding evidence admitted in violation of Appellant's Article 31(b) rights?

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

Followed by:

United States v.	Kendell Hills	No. 15-0767/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Heather L. Tregle, JA, USA (brief)
                                      ------------------------------------ (reply brief)
Counsel for Appellee:  Capt Carling M. Dunham, JA, USA (brief)

Case Summary: GCM conviction of abusive sexual contact. Granted issue questions whether the military judge abused his discretion by granting the Government's motion to use the charged sexual misconduct for Military Rule of Evidence 413 purposes to prove propensity to commit the charged sexual misconduct.

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

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Wednesday, May 11, 2016

9:30 a.m.:

Stephen P. Howell v.

United States

Nos.16-0289/MC & 16-0367/MC (audio)

Counsel for Howell: LT R. Andrew Austria, JAGC, USN
(writ-appeal petition) (writ-appeal reply brief)
(Defense brief on certified issue I)
(Defense answer on certified issues II, III, & IV)
(Defense reply on certified issue I)
Counsel for the United States: LT Robert J. Miller, JAGC, USN
(writ-appeal answer)
(Government brief on certified issues II, III, & IV )
(Government answer on certified issue I)
(Government reply on certified issues II, III, & IV)

Case Summary: GCM conviction on October 11, 2012, for violating a lawful general regulation, rape, aggravated sexual contact, forcible sodomy, assault consummated by a battery and adultery. The sentence included a dishonorable discharge, confinement for eighteen years, total forfeiture of pay and allowances, and reduction from E-6 to E-1. On May 22, 2014, the Court of Criminal Appeals set aside the findings and sentence and authorized a rehearing. On June 25, 2014, the convening authority ordered a rehearing. The accused was released on June 26, 2014 and assigned to duties at MCRD Parris Island, SC. The Government reinstated the accused to his pretrial rank, but continued to pay him at the rank of E-1.

On September 17, 2014, the accused filed a motion at the rehearing for appropriate relief to receive pay as an E-6. In the alternative, he argued that receiving the pay of an E-1 while performing the duties of an E-6 amounted to unlawful pretrial punishment under Article 13, UCMJ. The military judge granted the motion and awarded day-for-day confinement credit for each day the accused was paid as an E-1. The Government requested reconsideration, citing an opinion from DFAS that it was bound by 10 U.S.C. § 875, its interpretation of case law and fiscal law principles to pay members who are awaiting rehearing at the rate to which the member was reduced in the original court-martial. The military judge denied the request for reconsideration.

At a rehearing on April 29, 2015, the accused was convicted of violating a lawful general regulation, abusive contact and adultery and was sentenced to confinement for nine years, reduction to pay grade E-1, total forfeiture of pay and allowances, and a dishonorable discharge. The military judge ordered 343 days of confinement credit pursuant to Article 13, UCMJ.

On August 11, 2015, the Government petitioned the Court of Criminal Appeals for extraordinary relief to overturn the military judge's decision to order the confinement credit. The lower court issued a writ of prohibition vacating the decision of the military judge for the period from May 22, 2014 to June 25, 2014, but denied the Government's petition for the remainder of the confinement credit.

The accused filed a writ-appeal petition with this court, arguing that the lower court lacked jurisdiction under the All Writs Act to hear the matter. In addition, the Judge Advocate General of the Navy certified the following issues to the court: 1) whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for government appeal under Article 62, UCMJ; 2) whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that the accused was entitled to pay at the E-6 rate pending his rehearing; 3) whether the lower court erred by concluding that the setting aside of the accused's findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing; and 4) whether the action of paying a member at the E-1 rate pending a rehearing constitutes illegal pretrial punishment in the absence of any punitive intent where the member's original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside.

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

Followed by:

EV v.	LtCol E.H. Robinson, USMC, Military Judge, (Appellee), and David A. Martinez (Real Party in Interest)	No. 16-0398/MC
(Appellant)		(audio)

Counsel for Appellant: Maj Chad T. Evans, USAF and Maj Deanna Daly, USAF (writ-appeal petition) (reply brief) (specified issue brief)
Counsel for Appellee and United States: LCDR Justin C. Henderson, JAGC, USN ------------------------ (brief)
Counsel for Real Party in Interest: LT Doug Ottenwess, JAGC, USN                     -------------------------------- (Real Party in Interest brief)
                    -- (Real Party in Interest reply brief on specified issue)

Brief of Amicus Curiae -- Protect Our Defenders

Case Summary: GCM prosecution for violations of Articles 80, 107, and 120, UCMJ. The military judge initially denied the accused's motion for the production of mental health records of the Appellant, but later reversed himself and ordered the production of the records for in camera review. He subsequently disclosed limited portions of the records to the accused. The Appellant filed a petition for extraordinary relief at the Navy-Marine Corps Court of Criminal Appeals, which was denied. The Appellant then filed a writ-appeal petition before the Court of Appeals for the Armed Forces on the following issues: 1) whether the NMCCA erred by erroneously denying EV's petition for a writ of mandamus despite EV's clear and indisputable right to the issuance of a writ; 2)whether the military judge abused his discretion by erroneously ruling the defense satisfied each prong of Mil.R.Evid 513(e)(3) and by ruling that Mil.R.Evid. 513(d)(5) applied; and 3) whether the military judge violated EV's Article 6b rights by erroneously applying impermissible exceptions and denying EV a right to receive notice and to be heard. The Court also ordered briefs and oral argument on the following specified issue: whether the United States Court of Appeals for the Armed Forces has statutory authority to exercise jurisdiction over decisions of the Courts of Criminal Appeals rendered pursuant to Article 6b, UCMJ.

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