Petition for Writ of Certiorari — Nicholas E. Davis, Petitioner v. United States

NO. 20IN THE

Supreme Court of the United

States

___________

NICHOLAS E. DAVIS,

v.

UNITED STATES,

____

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Armed Forces

___________

PETITION FOR A WRIT OF CERTIORARI

___________

BENJAMIN ACCINELLI *

ELIZABETH MAROTTA

TIFFANY POND

JOSEPH BORLAND

ZACHARY GRAY

Defense Appellate Division

U.S. Army Legal Services

Agency

9275 Gunston Road

Fort Belvoir, VA 22060

(703) 693-0682

Benjamin.A.Accinelli.mil

@mail.mil

Counsel for Petitioner

June 29, 2020

* Counsel of Record

QUESTION PRESENTED

Whether the failure to object to a pattern jury instruction erroneously describing the elements of the

offense constitutes affirmative waiver such that it categorically precludes plain error review?

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioner is Nicholas E. Davis. Respondent is

the United States. No party is a corporation.

ii

RULE 14.1(B)(III) STATEMENT

This case arises from a conviction by a panel of

officers, sitting as a general court-martial, on January

29, 2016 in United States v. Davis, General Court

Martial Order No. 4, Department of The Army, Headquarters, U.S. Army Medical Department Center and

School, Joint Base San Antonio-Fort Sam Houston,

Texas 78234, (November 30, 2016), and the following

proceedings in the United States Army Court of Criminal Appeals and the United States Court of Appeals

for the Armed Forces:

United States v. Davis, 79 M.J. 329 (C.A.A.F. Feb.

12, 2020)

United States v. Davis, No. ARMY 20160069 (A.

Ct. Crim. App. August 16, 2018)

There are no other proceedings in state or federal

trial or appellate courts, or in this Court directly related to this case.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... I

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ................................................... II

RULE 14.1(B)(III) STATEMENT ......................... III

TABLE OF CONTENTS ........................................ IV

TABLE OF AUTHORITIES .................................. VI

PETITION FOR A WRIT OF CERTIORARI ....... 1

OPINIONS BELOW ................................................. 1

JURISDICTION ....................................................... 1

STATUTORY AND REGULATORY

PROVISIONS INVOLVED ...................................... 1

STATEMENT OF THE CASE ................................. 2

A. FACTUAL BACKGROUND AND COURT-MARTIAL

PROCEEDINGS. .......................................................... 2

B. APPELLATE COURT PROCEEDINGS. .................... 4

REASONS FOR GRANTING THE PETITION .... 5

A.

THERE IS A WELL-DEVELOPED SPLIT BETWEEN

THE CIRCUITS............................................................ 5

B. THE CAAF AND ELEVENTH CIRCUIT POSITION

CONFLICTS WITH SUPREME COURT PRECEDENT. ...... 8

C. REVIEW OF INSTRUCTIONS FOR PLAIN ERROR

REMAINS A NECESSARY SAFEGUARD IN CRIMINAL

TRIALS. ..................................................................... 9

D. THIS CASE IS AN IDEAL VEHICLE. .................... 11

E. PRIVATE DAVIS WAS MATERIALLY

PREJUDICED............................................................ 12

CONCLUSION ........................................................ 14

iv

APPENDICES

APPENDIX A: United States v. Davis, 79 M.J. 329

(C.A.A.F. Feb. 12, 2020)

........................................................................ a1

APPENDIX B: United States v. Davis, No. ARMY

20160069 (A. Ct. Crim. App. August 16, 2018)

...................................................................... a12

v

Cases

TABLE OF AUTHORITIES

Page

Supreme Court of the United States

Johnson v. Zerbst, 304 U.S. 458 (1938)...................... 9

Rehaif v. United States, 139 S. Ct. 2191 (2019)......... 5

Rosales-Mireles v. United States, 138 S. Ct. 1897

(2018) ....................................................................... 9

Screws v. United States, 325 U.S. 91 (1945) ............ 12

United States v. Davis, 139 S. Ct. 2319 (2019) ........ 10

United States v. Olano, 507 U.S. 725 (1993) ........9, 11

Federal Courts of Appeal

Gov’t of Virgin Islands v. Rosa, 399 F.3d 283, 291

(3rd Cir. 2005) ......................................................... 7

United States v. Broadnax, 601 F.3d 336 (5th Cir.

2010) ........................................................................ 8

United States v. Feldman, 931 F.3d 1245 (11th Cir.

2019) ........................................................................ 6

United States v. Ferriero, 866 F.3d 107 (3d Cir.

2017) ........................................................................ 7

United States v. Griffin, 493 F.3d 856 (7th Cir.

2007) ........................................................................ 8

United States v. Hamilton, 499 F.3d 734 (7th Cir.

2007) ........................................................................ 8

vi

United States v. Kirklin, 727 F.3d 711 (7th Cir.

2013) ........................................................................ 9

United States v. Latorre-Cacho, 874 F.3d 299 (1st

Cir. 2017) ................................................................. 7

United States v. Middlemiss, 217 F.3d 112 (2d Cir.

2000) ........................................................................ 8

United States v. Ochoa-Vasquez, 428 F.3d 1015 (11th

Cir. 2005) ................................................................. 6

United States v. Santana, 352 F. App’x 867 (4th Cir.

2009) ........................................................................ 8

United States v. Wall, 349 F.3d 18 (1st Cir. 2003) .... 7

United States v. Wilkes, 662 F.3d 524 (9th Cir.

2011) ........................................................................ 8

Court of Appeals for the Armed Forces

United States v. Czekala, 42 MJ 168 (C.A.A.F.

1995) ...................................................................... 12

United States v. Davis, 32 MJ 166 (C.M.A 1991) .... 12

United States v. Davis, 76 MJ 224 (C.A.A.F. 2017) . 12

United States v. McDonald, 78 M.J. 376 (C.A.A.F.

2019) ........................................................................ 4

United States v. Williams, 2 C.M.R. 92 (U.S. C.M.A.

1952) ...................................................................... 12

vii

Service Courts of Criminal Appeals

United States v. Thompson, 1 C.M.R. 576 (C.G.

C.M.R. 1951) ............................................................ 6

Statutes

10 U.S.C. § 836 .....................................................11, 12

10 U.S.C. § 866 ............................................................ 4

10 U.S.C. § 867 .......................................................... 13

10 U.S.C. § 920c .......................................................... 2

28 U.S.C. § 1259 ........................................................ 13

Regulations

Rule for Courts-Martial 920 ..........................1, 2, 6, 11

Federal Rules of Criminal Procedure

Fed. R. Crim. P. 30...................................................... 5

Fed. R. Crim. P. 52(b) ............................................. 5, 7

Military Judges’ Benchbook

Dep’t of the Army Pamphlet 27-9, Legal Services:

Military Judges’ Benchbook................................ 3, 5

viii

PETITION FOR A WRIT OF CERTIORARI

The Petitioner, Nicholas E. Davis, respectfully

petitions for a writ of certiorari to review the judgement of the Court of Appeals for the Armed Forces

(CAAF).

OPINIONS BELOW

The opinion of the CAAF is reported at 79 M.J.

329 (C.A.A.F. 2020) and is reproduced in the appendix

to this petition at Pet. App. a1–a10. The opinion of the

Army Court of Criminal Appeals is available at 2018

CCA LEXIS 417 (A. Ct. Crim. App. Aug. 16, 2018) and

is reproduced at Pet. App. a11–a34.

JURISDICTION

The CAAF granted a petition for review and issued a final judgment affirming the decision of the

Army Court of Criminal Appeals on February 12,

2020. Pet. App. a1. Per Supreme Court Rule 13, as

amended by the Courts March 19, 2020 order, the petition is due on Saturday, July 11, 2020. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1259(3).

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Rule for Courts-Martial (R.C.M.) 920(a) states

“The military judge shall give the members appropriate instructions on findings.” R.C.M. 920(a), United

States Manual for Courts-Martial (2016 ed.). It further goes on to state that “Failure to object to an instruction or to omission of an instruction before the

1

members close to deliberate constitutes waiver in the

absence of plain error.” R.C.M. 920(f). 1

10 U.S.C. § 920c(a)(2) (2012) provides: “Any person subject to this chapter who . . . knowingly photographs, videotapes, films, or records by an means the

private area of another person, without that person’s

consent and under circumstances in which that other

person has a reasonable expectation of privacy . . . is

guilty of an offense under this chapter and shall be

punished as a court-martial may direct.”

STATEMENT OF THE CASE

A. Factual Background and Court-Martial

Proceedings.

Nicholas Davis is a Private in the United States

Army and subject to the Uniform Code of Military

Justice. Off work the Friday after Thanksgiving, Davis, JE, and several other soldiers rented an off-post

motel room to consume alcohol. Pet. App. a13. After

consuming various amounts of alcohol, most of the

soldiers left the motel room except for Davis, JE, JH,

and JS. Id. The motel room was located on the first

floor with a window and door facing the motel's parking lot. Id. The room had two beds and a separate

bathroom behind. Id.

1 Given this confabulation between waiver and plain error, the

President has since clarified by amending the language to read

“Failure to object to an instruction or omission of an instruction

before the members close to deliberate forfeits the objection.”

R.C.M. 920(f), United States Manual for Courts Martial (2019

ed.). The change was not substantive. Moreover, as detailed

below, forfeiting an objection to an instruction is now impossible

and thus presents an oft-repeating question. The historical confusion between waiver and forfeiture has bedeviled both the

military courts and the circuit courts for generations.

2

One Soldier, JS, fell asleep on the bed closest to

the window. Id. The other three—Davis (male), JE

(female), and JH (male)—engaged in a variety of sexual acts with one another on the other bed. Id.

Without seeking JE’s affirmative consent, appellant

used his cell phone to record JE’s buttocks as she was

bent over and faced away from him while the two engaged in sexual intercourse. Id. A few minutes after

appellant made the recording, several soldiers from

the group returned to the motel room and knocked on

the door. Pet. App. a14. When no one answered the

door, one of the soldiers walked over to the uncovered

window, looked in, saw the group sexual intercourse,

and then saw JE jump off the far bed and run into

the bathroom. Id. JE later claimed the sexual activities were nonconsensual. Id. Davis, on the other

hand, maintained the activities were consensual.

Pet. App. a17. Davis was court-martialed.

At trial, the military judge instructed the members—consistent with the Army’s pattern instruction 2 —that the government was required to prove

beyond a reasonable doubt that the recording was

made without JE’s consent and under circumstances

in which JE had a reasonable expectation of privacy.

Pet. App. a4-5. But also consistent with the existing

pattern instructions, the judge did not instruct the

members that appellant must have known JE did not

consent to the recording.

See Dep’t of the Army Pamphlet 27-9, Legal Services: Military

Judges’ Benchbook, para. 3-45c-1. Indecent Viewing, Indecent

Recording, or Broadcasting/Distribution of an Indecent Recording (Article 120c).

2

3

The judge asked the defense counsel generally if

he had objections or requests for additional instructions. Defense Counsel responded, “No changes, sir.”

Pet. App. a5. Neither judge nor counsel ever discussed whether the statutory mens rea of “knowingly” applied to both recording and without consent,

or simply recording as the judge instructed. The

members convicted Davis of false official statement,

indecent recording, and indecent broadcasting. Pet.

App. a2. Davis pled guilty to two counts of violating

a lawful general order. Pet. App. a2.

B. Appellate Court Proceedings.

Davis received an automatic appeal to the Army

Court of Criminal Appeals (Army Court). See 10

U.S.C. § 866. On appeal, among other claims, Davis

challenged whether the military judge had properly

instructed the members as to the correct mens rea

with regard to JE’s consent to record. The Army Court

did not address that specific issue, set aside Davis’s

conviction for indecent broadcasting on unrelated

grounds, and affirmed his conviction for indecent recording. Pet. App. a33-34.

Upon review at the CAAF, Davis again asserted

that the military judge erred in instructing the members that a negligence mens rea (reasonably should

have known) as to JE’s consent to record was sufficient. The CAAF granted review and affirmed in light

of its ruling in United States v. McDonald, 78 M.J. 376

(C.A.A.F. 2019), pet’n denied 589 U.S. __ (Mar. 30,

2020). Davis then filed a motion for reconsideration

in light of this Court’s decision in Rehaif v. United

States, 139 S. Ct. 2191 (2019). The CAAF granted the

motion for reconsideration and ordered additional

briefing.

4

Davis argued that, just as in Rehaif, the “knowing” mens rea appearing at the beginning of the statute applied not just to the act of recording, but also to

the subsequent element that it was without JE’s consent. Ultimately, however, the CAAF concluded: “Because Appellant affirmatively waived any objection to

the military judge’s instructions on the elements of Article 120c(a)(2), we need not reach the granted issue.”

Pet. App. a2.

REASONS FOR GRANTING THE PETITION

A. There is a Well-Developed Split between

the Circuits.

The CAAF and the Eleventh Circuit are glaringly

the only federal courts that conclusively treat counsel’s unknowing failure to object to an instruction as

affirmative waiver. These two jurisdictions have functionally precluded plain error review with regard to

instructional errors because the parties are always invited to submit proposed instructions to the trial

courts. 3 This, however, is contrary to Fed. R. Crim. P.

52(b), to R.C.M. 920(a) which explicitly makes instructional

error subject to plain error review, and to decades of precedent

in the military courts since their modern inception in

1951. See e.g. United States v. Thompson, 1 C.M.R.

576 (C.G. C.M.R. 1951)(“Article 59(a) provides for

3 See Fed. R. Crim. P. 30(d) (“An opportunity must be given to

object out of the jury’s hearing and, on request, out of the jury’s

presence.”); Dep’t of the Army Pamphlet 27-9, Legal Services:

Military Judges’ Benchbook, para. 2-5-14 Procedural Instructions on Findings (Judge: “Do counsel object to the instructions

given or request additional instructions?” Trial Counsel & Defense counsel: “Respond.”); Pet. App. a9, fn. 1 (Maggs, J., concurring).

5

courts-martial a harmless error rule essentially similar to Rule 52 of the Federal Rules of Criminal Procedure”).

The split between the circuits is clear. The deviation by the CAAF and Eleventh Circuit from the otherwise consistent approach of the majority of jurisdictions warrants correction. Those two courts have

drifted from the approach followed by every other

United States court. In 2005, the 11th Circuit held

that failure to request a jury instruction meant a defendant had “waived that issue absent plain error.”

United States v. Ochoa-Vasquez, 428 F.3d 1015, 1035

(11th Cir. 2005). Today, however, it would find the

error waived. United States v. Feldman, 931 F.3d

1245, 1260 (11th Cir. 2019) (“when a party agrees with

a court’s proposed instructions, the doctrine of invited

error applies, meaning that review is waived even if

plain error would result.”) This stands in stark contrast to the other circuits and this Court’s rules. The

availability of plain error review to something as fundamental as the elements of the offense should not

hinge on whether a prosecution occurs in New York,

California, Florida, or in the Armed Forces. This

Court should grant review and mandate plain error

review.

Contrary to CAAF and the Eleventh Circuit, the

Third Circuit has explicitly rejected the argument

that acquiescence is the equivalent of waiver CAAF

endorsed. United States v. Ferriero, 866 F.3d 107,

n.10 (3d Cir. 2017) (“if he acquiesced to an instruction,

then he forfeited (rather than waived) the argument

and we may correct the error if it was ‘plain error . . .

affecting substantial rights.’") (citing Fed. R. Crim. P.

52(b)). The Third Circuit thus reviews for plain error,

even when defense counsel repeatedly agrees to the

6

instructions, because his agreement “stemmed from

the circumstance that he was unaware of the correct

rule of law or, if aware of it, did not realize that the

intent instruction misstated it.” Gov’t of Virgin Islands v. Rosa, 399 F.3d 283 (3rd Cir. 2005).

The First Circuit too reviews for plain error. In

the case cited by the CAAF, United States v. Wall, the

defense counsel affirmatively proposed the instruction. 349 F.3d 18, 24 (1st Cir. 2003). That’s waiver.

However, the First Circuit clearly reviews for plain error when a defendant neither proposes nor objects to

an instruction. United States v. Latorre-Cacho, 874

F.3d 299, 303 (1st Cir. 2017). That is precisely what

happened here. Similarly, the Second, Fourth, Fifth,

Sixth, and Ninth Circuits also review unpreserved objections to the jury instructions for plain error. United

States v. Middlemiss, 217 F.3d 112, 121 (2d Cir. 2000);

United States v. Santana, 352 F. App’x 867, 874 (4th

Cir. 2009); United States v. Broadnax, 601 F.3d 336,

346–47 (5th Cir. 2010); United States v. Wilkes, 662

F.3d 524, 544 (9th Cir. 2011).

The Seventh Circuit precedent is muddled and

highlights the importance of granting review. In

United States v. Hamilton, the Seventh Circuit considered a party’s failure to object to one of the instructions proposed by the government and concluded that,

because the failure to object was “inadvertent,” it

could never be an “intentional relinquishment of a

known right.” 499 F.3d 734, 736 (7th Cir. 2007). That

court found that, absent affirmative evidence of

waiver, “doubts should be resolved against a finding

of waiver” that precludes appellate review. Id. The

Seventh Circuit appears to only find waiver when the

defense, rather than prosecution or judge, proposes

the instruction. Id. Later that same year, however, it

7

decided United States v. Griffin, 493 F.3d 856 (7th Cir.

2007). In that case, the defense proposed an instruction, but the judge believed it inaccurate and proposed

an alternative. Id. at 863. After further discussion

the defense attorney told the judge the instruction was

“proper” and “we have no objection.” Id. at 863-864.

Contrary to Hamilton, those actions constituted

waiver and precluded appellate review. Id. at 864.

Nevertheless, the landscape of the Seventh Circuit continues to shift with no promise of resolution,

absent this Court’s intervention. In United States v.

Kirklin, the Seventh Circuit again considered the scenario where a defense counsel “had no objections to

the final instructions before they were read to the

jury.” 727 F.3d 711, 716 (7th Cir. 2013). Despite no

evidence that the parties at trial identified the instructional defect later asserted on appeal, that court

found waiver and refused to reach the issue. Id. However, after finding waiver, the court then reviewed for

plain error anyways and found none. Id. But, if the

court found waiver, there was simply no error to consider correcting. United States v. Olano, 507 U.S. 725,

733 (1993). The distinction between waiver and plain

error apparently remains a vexing one for the federal

courts and marks yet one more reason this Court

should grant review.

B. The CAAF and Eleventh Circuit Position

Conflicts with Supreme Court Precedent.

This Court has long held that waiver, as opposed

to forfeiture, requires “an intentional relinquishment

or abandonment of a known right.” Johnson v. Zerbst,

304 U.S. 458, 464 (1938); United States v. Olano, 507

U.S. 725 (1993); Rosales-Mireles v. United States, 138

S. Ct. 1897 (2018). In this case, the right asserted on

8

appeal below is to have the members instructed that

the mens rea in the statutory preface, “knowingly,” applies to both elements. Despite granting review on

that issue, the CAAF refused to address this issue because Davis’ counsel “affirmatively declined to object”

and “expressly and unequivocally acquiesce[ed]” to the

instructions. Pet. App. a7. However, generally declining to object and acquiescing to what was then a

standard pattern instruction does not demonstrate

that an accused knew about the right. In fact, it

should be plain and obvious that neither counsel nor

the accused would knowingly decline an instruction

increasing the government’s burden with respect to a

defendant’s mens rea. The intentionality standard

was not met in this case. See Olano, supra. This

Court’s precedent is clear that inadvertent relinquishment of an unknown right constitutes forfeiture rather than waiver. See Rosales-Mireles, supra. Most

circuits acknowledge this and review for plain error.

The Eleventh Circuit and the CAAF do not and must

be corrected. This Court should grant this petition

and remand for plain error review.

C. Review of Instructions for Plain Error

Remains a Necessary Safeguard in Criminal Trials.

Finding waiver here creates the absurd result

that, if the military judge errs in describing the elements and defense counsel does not object, then the

two of them may rewrite the elements of the criminal

offense in an unreviewable manner. Yet, “only the

people’s elected representatives in Congress have the

power to write new federal criminal laws.” United

States v. Davis, 139 S. Ct. 2319, 2323 (2019). One of

the most important duties the judge does in a trial

9

court is explain the law to laymen who render the verdict. An appellate court’s ability to review whether

the judge correctly instructed the fact finder as to

something so fundamental as the elements of the

crime should not be conditioned entirely on whether

defense counsel recognizes a defect in the pattern instructions and objects. That rationale was explicitly

rejected in Olano and it should be rejected again here.

Olano, 507 U.S. at 733 (“Although in theory it could

be argued that ‘if the question was not presented to

the trial court no error was committed by the trial

court, hence there is nothing to review,’ . . . this is not

the theory that Rule 52(b) adopts.”).

The President is tasked with promulgating procedural rules in the Armed Forces that “so far as he considers practicable, apply the principles of law and the

rules of evidence generally recognized in the trial of

criminal cases in the United States district courts.”

10 U.S.C. § 836. Under this grant of authority, the

President has promulgated Rule for Courts-Martial

(R.C.M.) 920. This rule puts the initial burden of

properly instructing the members on the military

judge. R.C.M. 920(a) (“The military judge shall give

the members appropriate instructions on findings”).

This is reiterated in R.C.M. 920(e) which states in pertinent part “Instructions on findings shall include . . .

a description of the elements charged.” Implicit, but

obvious, is the requirement that the military judge

correctly provide “a description of the elements

charged.” Id. It then puts a burden on the defense by

stating that failure to object “constitutes waiver in the

absence of plain error.” R.C.M. 920(f). In other words,

it expressly established forfeiture as the standard of

review when counsel does not object. But, the lower

court’s decision functionally precludes appellate

courts from ever reviewing instructional errors for

10

plain error. Either defense counsel objects and preserves the issue, or, as here, does not, and the issue is

waived and therefore unreviewable.

This is a judicial abrogation of the President’s

powers under 10 U.S.C. § 836, and the CAAF erred in

so holding. The Rules have not changed and prior to

this decision (though unacknowledged in this opinion)

the CAAF routinely and properly conducted plain error review of instructional issues. See e.g. United

States v. Williams, 2 C.M.R. 92, 95 (U.S. C.M.A. 1952)

(Rule 52 “permits a federal court to notice plain errors

of defects affecting substantial rights, even though not

brought to the attention of the court. It has also been

held by the United States Supreme Court that it is the

fundamental obligation of the trial court to advise a

jury as to the essential ingredients of the offense

whether or not exception is taken.”) (citing Screws v.

United States, 325 U.S. 91 (1945)); United States v.

Davis, 32 MJ 166 (C.M.A 1991); United States v.

Czekala, 42 MJ 168, 170 (C.A.A.F. 1995) (“There were

no objections to the instructions; thus, absent plain error, we hold there was a waiver.”); United States v. Davis, 76 MJ 224, 226 (C.A.A.F. 2017) (“Because Appellant failed to object to the omission of a required instruction on a special defense we review the military

judge’s instructions for plain error.”).

D. This Case Is an Ideal Vehicle.

This petition does not request that this Court resolve the underlying issue. Instead, it merely asks

this Court to find that failure to object to a flawed pattern jury instruction should be reviewed for plain error. Accordingly, the only relevant record is the underlying decision. No further review of the record is

required.

11

Also, this case could be the Court’s only opportunity to remedy the CAAF’s error. In contrast to

other statutes providing for this Court’s appellate jurisdiction, 28 U.S.C. § 1259 grants this Court authority to review decisions of the CAAF only in very limited circumstances. 4 The CAAF will use this precedent to deny review in similar cases, precluding this

Court’s jurisdiction to review those cases. In short,

this case presents an important opportunity for this

Court to preserve the fundamental right to plain error

review and resolve a circuit court split.

E. Private Davis Was Materially Prejudiced.

The public nature of the sex acts bears upon Davis’ subjective belief that JE was not only willing to

have sex with him, but also have him record it. Given

the open nature of the sexual acts, the members could

have believed that Davis subjectively did not know

that she consented to open and notorious group sex,

but not to its recording, yet still convicted appellant

because they felt his decision-making was negligent,

as instructed by the military judge. At the time of the

recording, JE was in a motel room with three men and

having sex with two of them. The room was on the

first floor of the motel, and the sex acts were visible to

any random person who walked past the unobstructed

window. In fact, another soldier looked in the window

and saw Davis and JE having sex. Pet. App. a14. This

The CAAF has unfettered discretion to deny review except in capital

cases and those certified by the Judge Advocate General. 10 U.S.C. §

867(a). The CAAF does not often exercise this discretion. The CAAF issued only 32 opinions for the term beginning October 2018. United States

Court of Appeals for the Armed Forces, Opinions: October 2018 Term of

Court (Oct. 2, 2019), https://www.armfor.uscourts.gov/opinions/2018OctTerm.htm.

4

12

instructional error as to the elements of the offense

was thus not harmless. Davis should be entitled to

plain error review of this allegation of legal error.

13

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

BENJAMIN ACCINELLI *

ELIZABETH MAROTTA

TIFFANY POND

JOSEPH BORLAND

ZACHARY GRAY

Defense Appellate Division

U.S. Army Legal Services

Agency

9275 Gunston Road

Fort Belvoir, VA 22060

(703) 693-0682

Benjamin.A.Accinelli.mil

@mail.mil

Counsel for Petitioner

June 29, 2020

* Counsel of Record

14