NEW GRANTS AND SUMMARY DISPOSITIONS
(Last Updated 1/15/09)

 Cases that have been decided will be removed from this page at the end of the term.




Wednesday, January 14, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-0028/NA.  U.S. v. Clinton C. MALONE.  CCA 20062512.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0703/AR.  U.S. v. Norman R. BREHM.  CCA 20070688.  Review granted on the following assigned issue:

 

I.   WHETHER IN LIGHT OF THE COURT'S RECENT RULING IN UNITED STATES v. LOPEZ DE VICTORIA, 66 M.J. 67 (C.A.A.F. 2008) SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES WITH A CHILD, SHOULD BE DISMISSED AS BEING TIME BARRED UNDER THE STATUTE OF LIMITATIONS.

 

and on the following specified issue:

 

II.  WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED EFFECTIVE ASSISTANCE OF COUNSEL AS TO THE ISSUE OF WAIVER OF THE STATUTE OF LIMITATIONS REGARDING SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES WITH A CHILD.

 

The decision of the United States Army Court of Criminal Appeals is set aside as to Specification 1 of Charge I and the sentence.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry on the granted and specified issues.  The Court of Criminal Appeals will obtain an affidavit from the trial defense counsel relating to the specified issue.  If the court, after reviewing the affidavit, determines that a fact-finding hearing is necessary, see United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997), that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).  Once the necessary information is obtained, the court will conduct its Article 66(c), UCMJ, review.  Thereafter, Article 67, UCMJ, shall apply.

 

INTERLOCUTORY ORDERS

 

No. 08-0376/MC.  U.S. v. Andrew W.  SMEAD.  CCA200201020.  On consideration of the briefs of the parties on the issue granted on October 9, 2008, and oral argument held on January 12, 2009, it is ordered that the parties file supplemental briefs on the following additional issue:


WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED “WITH PREJUDICE” AT APPELLANT’S FIRST COURT-MARTIAL, COULD BE REFILED PRIOR TO APPELLANT’S REHEARING.

 
  Appellant’s brief on this issue shall be filed within 15 days of the date of this order.  Appellee’s brief shall be filed within 15 days of the filing of Appellant’s brief.  A reply may be filed by Appellant within 5 days of the filing of Appellee’s brief.
______________________

 
*  It is directed that the convening authority’s action, as incorporated by the court-martial promulgating order, be corrected to reflect that this was a special court-martial, not a general court-martial.



Tuesday, January 13, 2009


APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0178/AF.  U.S. v. Kirk V. BRIGGS.  CCA 35123.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 



Thursday, December 18, 2008

 

APPEALS - SUMMARY DISPOSITIONS


No. 09-0055/MC.  U.S. v. Chad L. KLUEMPER.  CCA 20062366.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the court below affirmed a sentence that included “forfeiture of two-thirds pay per month for six months,” rather than a whole dollar amount of pay per month for six months.  See RCM 1003(b)(2).  Accordingly, it is ordered that said petition is hereby granted on the following specified issue:

 

WHETHER THE AFFIRMED FORFEITURE OF PAY WAS IN VIOLATION OF RULE FOR COURTS-MARTIAL 1003(b)(2) WHERE IT WAS NOT STATED IN A WHOLE DOLLAR AMOUNT. 


    The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for confinement for six months and forfeiture of $823.00 pay per month for six months.

 



Wednesday, December 17, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 04-5005/NA.  U.S. v. Todd R. FORBES.  CCA 9901454.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.



Monday, December 15, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0749/AR.  U.S. v. Michael E. MYERS.  CCA 20071091.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0594/MC.  U.S. v. Darrel A. WESTON.  CCA 200600985.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT GEORGIA v. RANDOLPH, 547 U.S. 103 (2006), DOES NOT APPLY TO THE CONSENT SEARCH OF APPELLANT'S MARITAL HOME WHERE AGENTS FROM THE MARINE CORPS' CRIMINAL INVESTIGATION DIVISION (CID) FIRST RECEIVED APPELLANT'S UNEQUIVOCAL OBJECTION TO A SEARCH OF HIS MARITAL HOME AND THEN OBTAINED CONSENT FROM APPELLANT'S WIFE, BOTH OF WHOM WERE PHYSICALLY LOCATED IN SEPARATE INTERROGATION ROOMS IN CID'S BUILDING ON MARINE CORPS BASE HAWAII, KANEOHE BAY, HAWAII.

 

II.  WHETHER, ASSUMING ARGUENDO THAT THE SEARCH OF APPELLANT'S MARITAL HOME WAS UNREASONABLE IN LIGHT OF GEORGIA v. RANDOLPH, 547 U.S. 103 (2006), THE LOWER COURT ERRED IN HOLDING THAT THE INEVITABLE DISCOVERY EXCEPTION TO THE EXCLUSIONARY RULE WOULD ALLOW ADMISSION OF THE SEIZED EVIDENCE.

 

Briefs will be filed under Rule 25.
__________________

 

*  It is directed that the promulgating order be corrected to reflect that the findings to the Specification of Charge I and to Specification 1 of Charge II should be “Guilty as pled,” vice “Guilty.”



Tuesday, December 9, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0720/AF.  U.S. v. Mohamed M. MOHAMED.  CCA 36421.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is noted that in reassessing the sentence, the Court of Criminal Appeals made no mention of the dismissal that had been approved by the convening authority.  It is unclear whether the dismissal was affirmed and was part of that court’s sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A. 1986).  Under Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c) (2000), this Court can only act with respect to the findings and sentence as affirmed by a court of criminal appeals.  If the affirmed sentence is ambiguous, the appropriate remedy is a remand for clarification.  United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994) (“The appropriate remedy for incomplete or ambiguous rulings is a remand for clarification.”).  Accordingly, because of the ambiguity as to the affirmed sentence, it is ordered that said petition is hereby granted on the following specified issue:
 

WHETHER THE DECISION OF THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS IS AMBIGUOUS AS TO WHETHER THE AFFIRMED SENTENCE, AS REASSESSED PURSUANT TO UNITED STATES v. SALES, 22 M.J. 305 (C.M.A. 1986), INCLUDED A DISMISSAL.

 

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but set aside as to sentence.  The record of trial is returned to the Judge Advocate General of the Air Force for remand to the United States Air Force Court of Criminal Appeals for clarification as to the affirmed sentence.  Thereafter Article 67, UCMJ, shall apply.

 

No. 08-0683/AR.  U.S. v. Sydonna A. JONES.  CCA 20060821.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the petition is granted as to the following issue:

WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST ARTICLE 13 CREDIT FOR ALLEGED ILLEGAL PRETRIAL PUNISHMENT INFLICTED ON APPELLANT.

    The decision of the United States Army Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court to obtain an affidavit from trial defense counsel that responds to Appellant’s allegation of ineffective assistance of counsel.  Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals shall review the granted issue in light of the affidavit and any other relevant matters.  See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.
 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0805/MC.  U.S. v. Manasses A. PAIGE.  CCA 200600587.  Review granted on the following issue:

 

WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS CLOSING ARGUMENT ON THE MERITS WHEN HE COMMENTED THAT THE GOVERNMENT'S EVIDENCE WAS UNCONTRADICTED, THEREBY INDIRECTLY COMMENTING ON APPELLANT'S FAILURE TO TESTIFY AND PRODUCE EVIDENCE IN HIS DEFENSE.

 

    Briefs will be filed under Rule 25.

 



Monday, December 8, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-6001/MC.  United States, Appellee v. Vernon E. HICKMAN, Jr., Appellant.  CCA 200800529.  On consideration of Appellee’s motion to dismiss the petition for grant of review, and Appellant’s indication that he will not file an opposition to the motion, it appears that the charge against the Appellant was withdrawn from the pending special court-martial and adjudicated at a summary court-martial, and the petition is now moot.  Accordingly, it is ordered that said motion is hereby granted, and that the hearing notice issued November 21, 2008, is hereby vacated.



Thursday, November 20, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-6001/MC.  U.S. v. Vernon E. HICKMAN, Jr.  CCA 200800529.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, on appeal by the United States under Article 62, 10 U.S.C. § 862 (2000), review granted on the following issue:

 

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS NOT ENTITLED TO ARTICLE 31(b) WARNINGS BEFORE HE WAS QUESTIONED ABOUT A CRIME OF WHICH HE WAS SUSPECTED OF COMMITTING.

 



Monday, November 17, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-6006/MC.  U.S. v. Frank D. WUTERICH.  CCA 200800183.  [See Opinion issued this date.]

 



Thursday, November 13, 2008

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0096/AR.  U.S. v. Robert J. MEDINA.  CCA 20040327.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Thursday, November 6, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0591/AR.  U.S. v. Harvey A. GARDINIER II.  CCA 20020427.  Review granted on the following issue:

 

WHETHER THE ARMY COURT ERRED WHEN IT FOUND THE MILITARY JUDGE'S ERRONEOUS ADMISSIONS OF EVIDENCE HARMLESS BEYOND A REASONABLE DOUBT.

 

Briefs will be filed under Rule 25.

 

No. 08-0596/AF.  U.S. v. Jesse I. RANNEY.  CCA S31046.  Review granted on the following issues:

 

I.  WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY FOR DISOBEYING A LAWFUL COMMAND WHERE THERE WAS NO EVIDENCE THAT THE COMMAND WAS DIRECTED PERSONALLY TO APPELLANT OR THAT APPELLANT KNEW IT WAS FROM A SUPERIOR COMMISSIONED OFFICER.

 

II.  WHETHER THE ORDER IN THE SPECIFICATION OF CHARGE II WAS LAWFUL ORDER WHEN THE EVIDENCE INDICATED THE ORDER'S PURPOSE WAS TO ACCOMPLISH SOME PRIVATE END.

 

Briefs will be filed under Rule 25.

 

No. 08-0738/NA.  U.S. v. Dennis A. THOMAS.  CCA 200700858.  Review granted on the following issue:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING A FINDING OF GUILTY OF COMMUNICATING INDECENT LANGUAGE WHERE THE STAFF JUDGE ADVOCATE'S RECOMMENDATION AND THE COURT-MARTIAL PROMULGATING ORDER STATED THE OFFENSE AS ATTEMPTED COMMUNICATION OF INDECENT LANGUAGE.  SEE UNITED STATES v. DIAZ, 40 M.J. 335 (C.M.A. 1994).

 

Briefs will be filed under Rule 25.

 

No. 08-0739/AR.  U.S. v. Carrie N. RIDDLE.  CCA 20070756.  Review granted on the following issue:

 

WHETHER APPELLANT'S PLEAS TO ALL CHARGES AND SPECIFICATIONS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE DID NOT EXPLAIN OR DISCUSS THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY, DID NOT SATISFY HIMSELF THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT NEGATED THE DEFENSE.

 

  Briefs will be filed under Rule 25.



Wednesday, November 5, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0405/NA.  U.S. v. Brian DEARING.  CCA 200100291.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 08-0790/AR.  U.S. v. Miguel A. CAMPOS, Jr.  CCA 20060301.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 ______________________

*
It is directed that the promulgating order be corrected to reflect findings of not guilty of Additional Charge I and its specification. 
 


Thursday, October 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0299/AF.  U.S. v. Andrew J. VALLEJO.  CCA 35842.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 08-0750/AR.  U.S. v. Ricardo T. CARTER, II.  CCA 20061115.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and  the decision of the United States Army Court of Criminal Appeals is affirmed.*

_____________________

*  It is directed that the promulgating order be changed to reflect that Charge I was a violation of Article 85, not Article 86.

 



Wednesday, October 29, 2008

 
ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0589/AF.  U.S. v. Marcus W. STEPHENS.  CCA 36682.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE FATHER OF THE ALLEGED VICTIM TO TESTIFY AS EVIDENCE IN AGGRAVATION, OVER DEFENSE OBJECTION, AS TO THE IMPACT ON THE ALLEGED VICTIM OF THE INVESTIGATION AND COURT-MARTIAL.

 

Briefs will be filed under Rule 25.

 



Friday, October 24, 2008

 

APPEALS-SUMMARY DISPOSITIONS


No. 7-0856/AR.  U.S. v. Dustin A. OWENS. CCA 20070264.  On consideration of the briefs of the parties on the granted issue (66 M.J. 288 (C.A.A.F. 2008)), it appears that the parties now agree that Appellant is entitled to confinement credit for his periods of civilian confinement from May 13 to June 21, 2006, and from September 8 to November 9, 2006.  The Court adopts the position of the parties.  Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside, and the record is returned to the Judge Advocate of the Army for remand to the United States Army Court of Criminal Appeals to provide meaningful relief.




Friday, October 17, 2008

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

No. 08-0260/AF.  United States, Appellee v. Daniel J. Brown, Appellant.  CCA 36695.  In an order dated June 17, 2008, (66 M.J. 491 (C.A.A.F. 2008)), this Court granted review of Appellant’s petition on the following specified issue:

WHETHER THE EVIDENCE ON THE ELEMENT OF SERVICE-DISCREDITING CONDUCT WAS LEGALLY SUFFICIENT WHEN: (1) THE SEXUALLY EXPLICIT CONTENT AT ISSUE INVOLVED VIRTUAL MINORS; (2) THE IMAGES OF VIRTUAL MINORS WERE VIEWED ON APPELLANT’S PRIVATELY-OWNED COMPUTER, AND (3) APPELLANT’S ACTIVITY WAS KNOWN ONLY TO LAW ENFORCEMENT PERSONNEL INVOLVED IN THE INVESTIGATION.  SEE U.S. v. MASON, 60 M.J. 15 (2004), AND U.S. v. O’CONNOR, 58 M.J. 450 (2003).

 

On examination of the record, we have determined that the granted issue was based on an incorrect premise, namely that the evidence in the record of the sexually explicit content at issue involved only virtual minors.  The record reveals, and the parties agree, that the record includes testimony that the sexually explicit content at issue includes depictions of actual minors.  Under these circumstances, the issue granted by this Court cannot be answered on the facts present in this case.  Upon further consideration of Appellant’s petition for review, we conclude that the record does not establish good cause for review under Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2000).  Therefore, on consideration of the granted issue, it is ordered that the order dated June 17, 2008, granting Appellant’s petition for review is vacated as improvidently granted, and that the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals is hereby denied.

 



Thursday, October 16, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0550/AR.  U.S. v. Tyler K. MESUBED.  CCA 20061158.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we conclude that Charge III and its specification (indecent act) are multiplicious for findings with Charge I and its specification (rape).  United States v. Schoolfield, 40 M.J. 132 (C.M.A. 1994).  Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN NOT DISMISSING CHARGE III AND ITS SPECIFICATION AS MULTIPLICIOUS WITH CHARGE I AND ITS SPECIFICATION.

The decision of the United States Army Court of Criminal Appeals as to Charge III and its specification is reversed, the findings as to Charge III and its specification are set aside, and Charge III and its specification are dismissed.  In all other respects, the decision of the court below is affirmed.

No. 08-0737/MC.  U.S. v. Jerry E. SHUMATE, Jr.  CCA 200700941.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that Appellant pleaded guilty in accordance with a pretrial agreement and was sentenced to confinement for eight years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge.  In the pretrial agreement, the convening authority agreed that any punitive discharge would be disapproved and that all confinement in excess of 21 months would be suspended for the period of confinement served plus 12 months.  When the convening authority took his action, he stated:


In the general court-martial case of [Appellant], tried on 13 October and 21 November 2006, at Camp Pendleton, California, only so much of the sentence as provides for reduction to pay grade E-1 and confinement for a period of eight years is approved, and ordered executed; however, the execution of that part of the sentence extending to forfeiture of all pay and allowances and confinement in excess of time served is suspended for a period of 12 months, at which time, unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

 

We conclude that because the convening authority’s action was ambiguous as to whether or not adjudged forfeitures were approved, the decision of the Court of Criminal Appeals in affirming the sentence was also ambiguous.  Instead of returning the case for further action by the convening authority, we will, in the interests of judicial economy, take corrective action at this level.  See United States v. Dowis, 66 M.J. 382 (C.A.A.F. 2008); United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007); Rule for Courts-Martial 1107(g).  Accordingly it is ordered that said petition is hereby granted on the following specified issue:

 

WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE WHERE THE UNDERLYING CONVENING AUTHORITY’S ACTION WAS AMBIGUOUS AS TO THE FORFEITURE PORTION OF THE SENTENCE.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to the findings and to only so much of the sentence as provides for a reduction to pay grade E-1 and confinement for eight years, with confinement in excess of time served suspended.



Thursday, October 9, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 03-0390/AF.  U.S. v. Anthony F. BILLQUIST.  CCA 35003.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 08-0578/AR.  U.S. v. David R. THOMPSON.  CCA 20000342.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0376/MC.  U.S. v. Andrew W. SMEAD.  CCA 200201020.  Review granted on the following issue:

 

WHETHER APPELLANT SUFFERED PREJUDICE, FOR PURPOSES OF ARTICLE 59(a), UCMJ, WHERE THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED "WITH PREJUDICE" AT APPELLANT'S FIRST COURT-MARTIAL, WAS REINSTITUTED AT APPELLANT'S REHEARING.

 

Briefs will be filed under Rule 25.

 

No. 08-0580/AR.  U.S. v. Brandon I. MILLER.  CCA 20060224.  Review granted on the following issue:

 

WHETHER, AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILTY TO CHARGE III AND ITS SPECIFICATION (RESISTING APPREHENSION), THE COURT OF CRIMINAL APPEALS COULD AFFIRM A FINDING OF GUILTY TO A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT.

 

Briefs will be filed under Rule 25.




Tuesday, October 7, 2008

 

APPEALS-SUMMARY DISPOSTIONS

 

No. 07-0826/AR.  U.S. v. Bennie B. GOGUE.  CCA 20050650.  On consideration of the briefs and oral arguments of the parties on the granted issues (66 M.J. 287 (C.A.A.F. 2008)), it appears that the parties now agree that Appellant is entitled to 89 additional days of confinement credit.  The Court adopts the position of the parties.  Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside, and the record is returned to the Judge Advocate General of the Army for remand to the United States Army Court of Criminal Appeals to provide meaningful relief.




Wednesday, October 1, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0524/MC.  U.S. v. Jose R. CABRERA-FRATTINI.  CCA 200201665.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




Tuesday, September 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0674/AR.  U.S. v. Jeremy M. PHILLIPPE.  CCA 20040616.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION IN REASSESSING APPELLANT’S SENTENCE, HAVING ALREADY CONCEDED THAT IT COULD NOT BE REASONABLY CERTAIN WHAT SENTENCE MIGHT BE IMPOSED AT THE TRIAL LEVEL.

 

We conclude that the Court of Criminal Appeals abused its discretion in reassessing Appellant’s sentence.  Accordingly, the decision of the United States Army Court of Criminal Appeals is reversed as to the sentence, but is affirmed in all other respects.  The sentence is set aside.  The record is returned to the Judge Advocate General of the Army.  A rehearing on sentence may be ordered.



Thursday, September 25, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 



Wednesday, September 24, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0495/NA.  U.S. v. Kimberly L. COLLIER.  CCA 200601218.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS.

 

Briefs will be filed under Rule 25.

 

No. 08-0615/NA.  U.S. v. Stephen P. CHATFIELD.  CCA 2006002256.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

 

II.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.

 

Briefs will be filed under Rule 25.

 



Friday, September 19, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0602/MC.  U.S. v. James J. FISHER.  CCA 200700683.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0409/NA.  U.S. v. Juan J. CAMPOS.  CCA 200602523.  Review granted on the following specified issue:

 

WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT AT SENTENCING A STIPULATION OF EXPERT TESTIMONY PERTAINING TO SEX OFFENDER TREATMENT IN MILITARY CORRECTIONAL FACILITIES WHERE THE EXPERT, WHO DID NOT PERSONALLY EVALUATE APPELLANT, OPINED GENERALLY ABOUT MINIMAL AND OPTIMAL TERMS OF CONFINEMENT FOR A PERSON DETECTED OF POSSESSING CHILD PORNOGRAPHY.

 

Briefs will be filed under Rule 25.

 

No. 08-0431/AR.  U.S. v. Richard M. DEAN.  CCA 20051336.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING THE CONVENING AUTHORITY TO WITHDRAW FROM HIS PRETRIAL AGREEMENT WITH APPELLANT DESPITE APPELLANT BEGINNING PERFORMANCE OF PROMISES CONTAINED IN THE AGREEMENT.

 

    Briefs will be filed under Rule 25.



Tuesday, September 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0417/AR.  U.S. v. Robert B. CLAYTON.  CCA 20040903.  Review granted on the following issues specified by the Court:

 

I.   WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS CASE IS A REPORT SETTING FORTH "MATTERS OBSERVED BY POLICE OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY," AND, IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6) (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION).  COMPARE, e.g., UNITED STATES v. OATES, 560 F.2d 45, 77-78 (2d Cir. 1977) (HOLDING THAT POLICE RECORDS THAT WOULD BE INADMISSIBLE UNDER THE PUBLIC RECORDS EXCEPTION AGAINST THE ACCUSED WOULD ALSO BE INADMISSIBLE UNDER ANY OTHER EXCEPTION TO THE HEARSAY RULE) WITH UNITED STATES v. HAYES, 861 F.2d 225, 1230 (10th Cir. 1988) (HOLDING THAT THERE IS NO LIMITATION TO THE BUSINESS RECORD EXCEPTION IF THE AUTHOR OF THE PROFFERED DOCUMENT TESTIFIES AT TRIAL).

 

II.  IF THE MILITARY JUDGE ABUSED HER DISCRETION IN ADMITTING THE POLICE DRUG SEIZURE REPORT, WHETHER THE ERROR MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS?

 

Briefs will be filed under Rule 25.

 



Wednesday, September 10, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0479/AR.  U.S. v. Shaun K. BRASINGTON.  CCA 20060033.  Review granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

 

The decision of the United States Army Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court to obtain an affidavit from the trial defense counsel responding to Appellant’s allegation of ineffective assistance of counsel.  In the course of conducting its new review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals shall review the trial defense counsel’s affidavit and any other relevant matters.  See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0518/AF.  U.S. v. Eddie J. ROGERS.  CCA 36768.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS HIS HAIR TEST RESULTS.

 

Briefs will be filed under Rule 25.

 



Monday, September 8, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0261/AR.  U.S. v. Phillip R. BROWN.  CCA 20040087.  Review granted on the following issue specified by the Court:

 

WHETHER THE PHRASE "WITH INTENT UNLAWFULLY TO OBTAIN AN ADVANTAGE, TO WIT: SEXUAL RELATIONS," IN THE SPECIFICATION OF CHARGE II STATES THE OFFENSE OF EXTORTION IN LIGHT OF THE PROVISION IN THE MANUAL FOR COURTS-MARTIAL THAT PROVIDES THAT "AN INTENT TO MAKE A PERSON DO AN ACT AGAINST THAT PERSON'S WILL IS NOT, BY ITSELF, SUFFICIENT TO CONSTITUTE EXTORTION."  SEE MANUAL FOR COURTS-MARTIAL, UNITED STATES PT. IV, PARA. 53.c.(94) (2005 ED.).

 

  Briefs will be filed under Rule 25.



Thursday, September 4, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0335/NA.  U.S. v. William T. JONES.  CCA 200602320.  Review granted on the following modified issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000).  The motion to attach is denied as moot.


ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0390/NA.  U.S. v. Gustavo A. DELAROSA.  CCA 200602335.  Review granted on the following issue:

 

WHETHER (1) THE LOWER COURT ERRED IN ADOPTING A TEST TO DETERMINE WHETHER APPELLANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS FROM THE TESTS SET FORTH BY THE UNITED STATES SUPREME   COURT IN MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AND UNITED STATES v. WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE CORRECTLY DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION MADE TO THE DETECTIVES AT THE NORFOLK, VIRGINIA, POLICE DEPARTMENT.

 

Briefs will be filed under Rule 25.

 

No. 08-0440/MC.  U.S. v. Chad M. MCCRACKEN.  CCA 200600484.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF

CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

 

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 



Wednesday, August 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0649/AR.  U.S. v. Menkaura A. MOSS.  CCA 20071281.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

*  It is noted that the order of the U.S. Army Court of Criminal Appeals dated 16 May 2008 incorrectly stated one of Appellant’s pleas.  The order states that Appellant pleaded guilty to the rape of Senior Airman MW.  However, Appellant was not charged with rape of Senior Airman MW.  Under Charge I, Appellant pleaded not guilty to attempted rape of MW and the Government dismissed the charge.  Under Charge VI, Specification 1, Appellant pleaded guilty, by exception, to indecent assault of MW and was convicted in accordance with his plea.



Tuesday, September 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0674/AR.  U.S. v. Jeremy M. PHILLIPPE.  CCA 20040616.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION IN REASSESSING APPELLANT’S SENTENCE, HAVING ALREADY CONCEDED THAT IT COULD NOT BE REASONABLY CERTAIN WHAT SENTENCE MIGHT BE IMPOSED AT THE TRIAL LEVEL.

 

We conclude that the Court of Criminal Appeals abused its discretion in reassessing Appellant’s sentence.  Accordingly, the decision of the United States Army Court of Criminal Appeals is reversed as to the sentence, but is affirmed in all other respects.  The sentence is set aside.  The record is returned to the Judge Advocate General of the Army.  A rehearing on sentence may be ordered.



Thursday, September 25, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 




Wednesday, September 24, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0495/NA.  U.S. v. Kimberly L. COLLIER.  CCA 200601218.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS.

 

Briefs will be filed under Rule 25.

 

No. 08-0615/NA.  U.S. v. Stephen P. CHATFIELD.  CCA 2006002256.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

 

II.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.

 

Briefs will be filed under Rule 25.

 



Friday, September 19, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0602/MC.  U.S. v. James J. FISHER.  CCA 200700683.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0409/NA.  U.S. v. Juan J. CAMPOS.  CCA 200602523.  Review granted on the following specified issue:

 

WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT AT SENTENCING A STIPULATION OF EXPERT TESTIMONY PERTAINING TO SEX OFFENDER TREATMENT IN MILITARY CORRECTIONAL FACILITIES WHERE THE EXPERT, WHO DID NOT PERSONALLY EVALUATE APPELLANT, OPINED GENERALLY ABOUT MINIMAL AND OPTIMAL TERMS OF CONFINEMENT FOR A PERSON DETECTED OF POSSESSING CHILD PORNOGRAPHY.

 

Briefs will be filed under Rule 25.

 

No. 08-0431/AR.  U.S. v. Richard M. DEAN.  CCA 20051336.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING THE CONVENING AUTHORITY TO WITHDRAW FROM HIS PRETRIAL AGREEMENT WITH APPELLANT DESPITE APPELLANT BEGINNING PERFORMANCE OF PROMISES CONTAINED IN THE AGREEMENT.

 

    Briefs will be filed under Rule 25.



Tuesday, September 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0417/AR.  U.S. v. Robert B. CLAYTON.  CCA 20040903.  Review granted on the following issues specified by the Court:

 

I.   WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS CASE IS A REPORT SETTING FORTH "MATTERS OBSERVED BY POLICE OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY," AND, IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6) (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION).  COMPARE, e.g., UNITED STATES v. OATES, 560 F.2d 45, 77-78 (2d Cir. 1977) (HOLDING THAT POLICE RECORDS THAT WOULD BE INADMISSIBLE UNDER THE PUBLIC RECORDS EXCEPTION AGAINST THE ACCUSED WOULD ALSO BE INADMISSIBLE UNDER ANY OTHER EXCEPTION TO THE HEARSAY RULE) WITH UNITED STATES v. HAYES, 861 F.2d 225, 1230 (10th Cir. 1988) (HOLDING THAT THERE IS NO LIMITATION TO THE BUSINESS RECORD EXCEPTION IF THE AUTHOR OF THE PROFFERED DOCUMENT TESTIFIES AT TRIAL).

 

II.  IF THE MILITARY JUDGE ABUSED HER DISCRETION IN ADMITTING THE POLICE DRUG SEIZURE REPORT, WHETHER THE ERROR MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS?

 

Briefs will be filed under Rule 25.

 



Wednesday, September 10, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0479/AR.  U.S. v. Shaun K. BRASINGTON.  CCA 20060033.  Review granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

 

The decision of the United States Army Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court to obtain an affidavit from the trial defense counsel responding to Appellant’s allegation of ineffective assistance of counsel.  In the course of conducting its new review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals shall review the trial defense counsel’s affidavit and any other relevant matters.  See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0518/AF.  U.S. v. Eddie J. ROGERS.  CCA 36768.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS HIS HAIR TEST RESULTS.

 

Briefs will be filed under Rule 25.

 



Monday, September 8, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0261/AR.  U.S. v. Phillip R. BROWN.  CCA 20040087.  Review granted on the following issue specified by the Court:

 

WHETHER THE PHRASE "WITH INTENT UNLAWFULLY TO OBTAIN AN ADVANTAGE, TO WIT: SEXUAL RELATIONS," IN THE SPECIFICATION OF CHARGE II STATES THE OFFENSE OF EXTORTION IN LIGHT OF THE PROVISION IN THE MANUAL FOR COURTS-MARTIAL THAT PROVIDES THAT "AN INTENT TO MAKE A PERSON DO AN ACT AGAINST THAT PERSON'S WILL IS NOT, BY ITSELF, SUFFICIENT TO CONSTITUTE EXTORTION."  SEE MANUAL FOR COURTS-MARTIAL, UNITED STATES PT. IV, PARA. 53.c.(94) (2005 ED.).

 

  Briefs will be filed under Rule 25.



Thursday, September 4, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0335/NA.  U.S. v. William T. JONES.  CCA 200602320.  Review granted on the following modified issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000).  The motion to attach is denied as moot.


ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0390/NA.  U.S. v. Gustavo A. DELAROSA.  CCA 200602335.  Review granted on the following issue:

 

WHETHER (1) THE LOWER COURT ERRED IN ADOPTING A TEST TO DETERMINE WHETHER APPELLANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS FROM THE TESTS SET FORTH BY THE UNITED STATES SUPREME   COURT IN MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AND UNITED STATES v. WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE CORRECTLY DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION MADE TO THE DETECTIVES AT THE NORFOLK, VIRGINIA, POLICE DEPARTMENT.

 

Briefs will be filed under Rule 25.

 

No. 08-0440/MC.  U.S. v. Chad M. MCCRACKEN.  CCA 200600484.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF

CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

 

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 



Wednesday, August 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0649/AR.  U.S. v. Menkaura A. MOSS.  CCA 20071281.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

*  It is noted that the order of the U.S. Army Court of Criminal Appeals dated 16 May 2008 incorrectly stated one of Appellant’s pleas.  The order states that Appellant pleaded guilty to the rape of Senior Airman MW.  However, Appellant was not charged with rape of Senior Airman MW.  Under Charge I, Appellant pleaded not guilty to attempted rape of MW and the Government dismissed the charge.  Under Charge VI, Specification 1, Appellant pleaded guilty, by exception, to indecent assault of MW and was convicted in accordance with his plea.




Tuesday, September 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0674/AR.  U.S. v. Jeremy M. PHILLIPPE.  CCA 20040616.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION IN REASSESSING APPELLANT’S SENTENCE, HAVING ALREADY CONCEDED THAT IT COULD NOT BE REASONABLY CERTAIN WHAT SENTENCE MIGHT BE IMPOSED AT THE TRIAL LEVEL.

 

We conclude that the Court of Criminal Appeals abused its discretion in reassessing Appellant’s sentence.  Accordingly, the decision of the United States Army Court of Criminal Appeals is reversed as to the sentence, but is affirmed in all other respects.  The sentence is set aside.  The record is returned to the Judge Advocate General of the Army.  A rehearing on sentence may be ordered.



Thursday, September 25, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 




Wednesday, September 24, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0495/NA.  U.S. v. Kimberly L. COLLIER.  CCA 200601218.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS.

 

Briefs will be filed under Rule 25.

 

No. 08-0615/NA.  U.S. v. Stephen P. CHATFIELD.  CCA 2006002256.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

 

II.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.

 

Briefs will be filed under Rule 25.

 



Friday, September 19, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0602/MC.  U.S. v. James J. FISHER.  CCA 200700683.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0409/NA.  U.S. v. Juan J. CAMPOS.  CCA 200602523.  Review granted on the following specified issue:

 

WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT AT SENTENCING A STIPULATION OF EXPERT TESTIMONY PERTAINING TO SEX OFFENDER TREATMENT IN MILITARY CORRECTIONAL FACILITIES WHERE THE EXPERT, WHO DID NOT PERSONALLY EVALUATE APPELLANT, OPINED GENERALLY ABOUT MINIMAL AND OPTIMAL TERMS OF CONFINEMENT FOR A PERSON DETECTED OF POSSESSING CHILD PORNOGRAPHY.

 

Briefs will be filed under Rule 25.

 

No. 08-0431/AR.  U.S. v. Richard M. DEAN.  CCA 20051336.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING THE CONVENING AUTHORITY TO WITHDRAW FROM HIS PRETRIAL AGREEMENT WITH APPELLANT DESPITE APPELLANT BEGINNING PERFORMANCE OF PROMISES CONTAINED IN THE AGREEMENT.

 

    Briefs will be filed under Rule 25.



Tuesday, September 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0417/AR.  U.S. v. Robert B. CLAYTON.  CCA 20040903.  Review granted on the following issues specified by the Court:

 

I.   WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS CASE IS A REPORT SETTING FORTH "MATTERS OBSERVED BY POLICE OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY," AND, IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6) (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION).  COMPARE, e.g., UNITED STATES v. OATES, 560 F.2d 45, 77-78 (2d Cir. 1977) (HOLDING THAT POLICE RECORDS THAT WOULD BE INADMISSIBLE UNDER THE PUBLIC RECORDS EXCEPTION AGAINST THE ACCUSED WOULD ALSO BE INADMISSIBLE UNDER ANY OTHER EXCEPTION TO THE HEARSAY RULE) WITH UNITED STATES v. HAYES, 861 F.2d 225, 1230 (10th Cir. 1988) (HOLDING THAT THERE IS NO LIMITATION TO THE BUSINESS RECORD EXCEPTION IF THE AUTHOR OF THE PROFFERED DOCUMENT TESTIFIES AT TRIAL).

 

II.  IF THE MILITARY JUDGE ABUSED HER DISCRETION IN ADMITTING THE POLICE DRUG SEIZURE REPORT, WHETHER THE ERROR MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS?

 

Briefs will be filed under Rule 25.

 



Wednesday, September 10, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0479/AR.  U.S. v. Shaun K. BRASINGTON.  CCA 20060033.  Review granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

 

The decision of the United States Army Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court to obtain an affidavit from the trial defense counsel responding to Appellant’s allegation of ineffective assistance of counsel.  In the course of conducting its new review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals shall review the trial defense counsel’s affidavit and any other relevant matters.  See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0518/AF.  U.S. v. Eddie J. ROGERS.  CCA 36768.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS HIS HAIR TEST RESULTS.

 

Briefs will be filed under Rule 25.

 



Monday, September 8, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0261/AR.  U.S. v. Phillip R. BROWN.  CCA 20040087.  Review granted on the following issue specified by the Court:

 

WHETHER THE PHRASE "WITH INTENT UNLAWFULLY TO OBTAIN AN ADVANTAGE, TO WIT: SEXUAL RELATIONS," IN THE SPECIFICATION OF CHARGE II STATES THE OFFENSE OF EXTORTION IN LIGHT OF THE PROVISION IN THE MANUAL FOR COURTS-MARTIAL THAT PROVIDES THAT "AN INTENT TO MAKE A PERSON DO AN ACT AGAINST THAT PERSON'S WILL IS NOT, BY ITSELF, SUFFICIENT TO CONSTITUTE EXTORTION."  SEE MANUAL FOR COURTS-MARTIAL, UNITED STATES PT. IV, PARA. 53.c.(94) (2005 ED.).

 

  Briefs will be filed under Rule 25.



Thursday, September 4, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0335/NA.  U.S. v. William T. JONES.  CCA 200602320.  Review granted on the following modified issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000).  The motion to attach is denied as moot.


ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0390/NA.  U.S. v. Gustavo A. DELAROSA.  CCA 200602335.  Review granted on the following issue:

 

WHETHER (1) THE LOWER COURT ERRED IN ADOPTING A TEST TO DETERMINE WHETHER APPELLANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS FROM THE TESTS SET FORTH BY THE UNITED STATES SUPREME   COURT IN MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AND UNITED STATES v. WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE CORRECTLY DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION MADE TO THE DETECTIVES AT THE NORFOLK, VIRGINIA, POLICE DEPARTMENT.

 

Briefs will be filed under Rule 25.

 

No. 08-0440/MC.  U.S. v. Chad M. MCCRACKEN.  CCA 200600484.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF

CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

 

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 



Wednesday, August 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0649/AR.  U.S. v. Menkaura A. MOSS.  CCA 20071281.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

*  It is noted that the order of the U.S. Army Court of Criminal Appeals dated 16 May 2008 incorrectly stated one of Appellant’s pleas.  The order states that Appellant pleaded guilty to the rape of Senior Airman MW.  However, Appellant was not charged with rape of Senior Airman MW.  Under Charge I, Appellant pleaded not guilty to attempted rape of MW and the Government dismissed the charge.  Under Charge VI, Specification 1, Appellant pleaded guilty, by exception, to indecent assault of MW and was convicted in accordance with his plea.



Tuesday, September 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0674/AR.  U.S. v. Jeremy M. PHILLIPPE.  CCA 20040616.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION IN REASSESSING APPELLANT’S SENTENCE, HAVING ALREADY CONCEDED THAT IT COULD NOT BE REASONABLY CERTAIN WHAT SENTENCE MIGHT BE IMPOSED AT THE TRIAL LEVEL.

 

We conclude that the Court of Criminal Appeals abused its discretion in reassessing Appellant’s sentence.  Accordingly, the decision of the United States Army Court of Criminal Appeals is reversed as to the sentence, but is affirmed in all other respects.  The sentence is set aside.  The record is returned to the Judge Advocate General of the Army.  A rehearing on sentence may be ordered.



Thursday, September 25, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 




Wednesday, September 24, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0495/NA.  U.S. v. Kimberly L. COLLIER.  CCA 200601218.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY EXCLUDING, PURSUANT TO M.R.E. 403, RELEVANT EVIDENCE OF A PRIOR HOMOSEXUAL RELATIONSHIP BETWEEN APPELLANT AND A CENTRAL GOVERNMENT WITNESS OFFERED BY THE DEFENSE TO SHOW BIAS AND MOTIVE TO MISREPRESENT ON THE PART OF THE GOVERNMENT WITNESS.

 

Briefs will be filed under Rule 25.

 

No. 08-0615/NA.  U.S. v. Stephen P. CHATFIELD.  CCA 2006002256.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

 

II.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.

 

Briefs will be filed under Rule 25.

 



Friday, September 19, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0602/MC.  U.S. v. James J. FISHER.  CCA 200700683.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0409/NA.  U.S. v. Juan J. CAMPOS.  CCA 200602523.  Review granted on the following specified issue:

 

WHETHER IT WAS PLAIN ERROR FOR THE MILITARY JUDGE TO ADMIT AT SENTENCING A STIPULATION OF EXPERT TESTIMONY PERTAINING TO SEX OFFENDER TREATMENT IN MILITARY CORRECTIONAL FACILITIES WHERE THE EXPERT, WHO DID NOT PERSONALLY EVALUATE APPELLANT, OPINED GENERALLY ABOUT MINIMAL AND OPTIMAL TERMS OF CONFINEMENT FOR A PERSON DETECTED OF POSSESSING CHILD PORNOGRAPHY.

 

Briefs will be filed under Rule 25.

 

No. 08-0431/AR.  U.S. v. Richard M. DEAN.  CCA 20051336.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING THE CONVENING AUTHORITY TO WITHDRAW FROM HIS PRETRIAL AGREEMENT WITH APPELLANT DESPITE APPELLANT BEGINNING PERFORMANCE OF PROMISES CONTAINED IN THE AGREEMENT.

 

    Briefs will be filed under Rule 25.



Tuesday, September 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0417/AR.  U.S. v. Robert B. CLAYTON.  CCA 20040903.  Review granted on the following issues specified by the Court:

 

I.   WHETHER THE CIVILIAN POLICE DRUG SEIZURE REPORT IN THIS CASE IS A REPORT SETTING FORTH "MATTERS OBSERVED BY POLICE OFFICERS . . . ACTING IN A LAW ENFORCEMENT CAPACITY," AND, IF SO, WHETHER IT WAS PROPERLY ADMITTED UNDER M.R.E. 803(6) (BUSINESS RECORD EXCEPTION), WHEN IT WOULD NOT BE ADMISSIBLE UNDER M.R.E. 803(8) (PUBLIC RECORDS EXCEPTION).  COMPARE, e.g., UNITED STATES v. OATES, 560 F.2d 45, 77-78 (2d Cir. 1977) (HOLDING THAT POLICE RECORDS THAT WOULD BE INADMISSIBLE UNDER THE PUBLIC RECORDS EXCEPTION AGAINST THE ACCUSED WOULD ALSO BE INADMISSIBLE UNDER ANY OTHER EXCEPTION TO THE HEARSAY RULE) WITH UNITED STATES v. HAYES, 861 F.2d 225, 1230 (10th Cir. 1988) (HOLDING THAT THERE IS NO LIMITATION TO THE BUSINESS RECORD EXCEPTION IF THE AUTHOR OF THE PROFFERED DOCUMENT TESTIFIES AT TRIAL).

 

II.  IF THE MILITARY JUDGE ABUSED HER DISCRETION IN ADMITTING THE POLICE DRUG SEIZURE REPORT, WHETHER THE ERROR MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS?

 

Briefs will be filed under Rule 25.

 



Wednesday, September 10, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0479/AR.  U.S. v. Shaun K. BRASINGTON.  CCA 20060033.  Review granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.

 

The decision of the United States Army Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Army for remand to that court to obtain an affidavit from the trial defense counsel responding to Appellant’s allegation of ineffective assistance of counsel.  In the course of conducting its new review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals shall review the trial defense counsel’s affidavit and any other relevant matters.  See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0518/AF.  U.S. v. Eddie J. ROGERS.  CCA 36768.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS HIS HAIR TEST RESULTS.

 

Briefs will be filed under Rule 25.

 



Monday, September 8, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0261/AR.  U.S. v. Phillip R. BROWN.  CCA 20040087.  Review granted on the following issue specified by the Court:

 

WHETHER THE PHRASE "WITH INTENT UNLAWFULLY TO OBTAIN AN ADVANTAGE, TO WIT: SEXUAL RELATIONS," IN THE SPECIFICATION OF CHARGE II STATES THE OFFENSE OF EXTORTION IN LIGHT OF THE PROVISION IN THE MANUAL FOR COURTS-MARTIAL THAT PROVIDES THAT "AN INTENT TO MAKE A PERSON DO AN ACT AGAINST THAT PERSON'S WILL IS NOT, BY ITSELF, SUFFICIENT TO CONSTITUTE EXTORTION."  SEE MANUAL FOR COURTS-MARTIAL, UNITED STATES PT. IV, PARA. 53.c.(94) (2005 ED.).

 

  Briefs will be filed under Rule 25.



Thursday, September 4, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0335/NA.  U.S. v. William T. JONES.  CCA 200602320.  Review granted on the following modified issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000).  The motion to attach is denied as moot.


ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0390/NA.  U.S. v. Gustavo A. DELAROSA.  CCA 200602335.  Review granted on the following issue:

 

WHETHER (1) THE LOWER COURT ERRED IN ADOPTING A TEST TO DETERMINE WHETHER APPELLANT'S ASSERTION OF HIS RIGHT TO REMAIN SILENT WAS SCRUPULOUSLY HONORED THAT DIFFERS FROM THE TESTS SET FORTH BY THE UNITED STATES SUPREME   COURT IN MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AND UNITED STATES v. WATKINS, 34 M.J. 344 (C.M.A. 1992); AND (2) WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE CORRECTLY DENIED THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION MADE TO THE DETECTIVES AT THE NORFOLK, VIRGINIA, POLICE DEPARTMENT.

 

Briefs will be filed under Rule 25.

 

No. 08-0440/MC.  U.S. v. Chad M. MCCRACKEN.  CCA 200600484.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF

CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

 

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 



Wednesday, August 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0649/AR.  U.S. v. Menkaura A. MOSS.  CCA 20071281.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

*  It is noted that the order of the U.S. Army Court of Criminal Appeals dated 16 May 2008 incorrectly stated one of Appellant’s pleas.  The order states that Appellant pleaded guilty to the rape of Senior Airman MW.  However, Appellant was not charged with rape of Senior Airman MW.  Under Charge I, Appellant pleaded not guilty to attempted rape of MW and the Government dismissed the charge.  Under Charge VI, Specification 1, Appellant pleaded guilty, by exception, to indecent assault of MW and was convicted in accordance with his plea.



Wednesday, August 13, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0348/MC.  U.S. v. Stephen C. BOROSAK.  CCA 200500250.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the Court of Criminal Appeals found error in the post-trial processing of the case as a result of a failure to serve the staff judge advocate’s recommendation on Appellant prior to action by the convening authority.  See Rule for Courts-Martial 1105(f).  The court concluded that the error was prejudicial.  Noting that the case had been subject to significant delays, the court concluded that a remand for new action by the convening authority would further delay disposition of the case, and it ordered appropriate relief for the error by approving a sentence that did not include adjudged forfeitures.

We further note that the corrective action ordered by the court below did not modify that portion of Appellant’s sentence that included confinement for two months.  In that posture, the corrective action had no actual effect on forfeitures because Appellant’s pay remained subject to automatic forfeitures under Article 58b, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 858b (2000) (“Sentences:  forfeiture of pay and allowances during confinement”).  Under these circumstances, the action taken by the court below did not take the steps necessary to provide Appellant with meaningful relief.  See United States v. Pflueger, 65 M.J. 127, 131 (C.A.A.F. 2007); United States v. Emminizer, 56 M.J. 441, 444-46 (C.A.A.F. 2002).  Such relief with respect to forfeitures may be provided by approving a sentence that does not include confinement, thereby removing the requirement for automatic forfeitures under Article 58b, UCMJ.  Accordingly, it is ordered that said petition is granted on the following issue:

 

WHETHER, AFTER FINDING PREJUDICIAL ERROR, THE LOWER COURT ERRED IN FAILING TO GRANT MEANINGFUL RELIEF.


  The portion of the United States Navy-Marine Corps Court of Criminal Appeals decision affirming confinement for two months is reversed and that portion of the sentence is set aside.  The remainder of the Navy-Marine Corps Court of Criminal Appeals’ decision, which affirmed the findings and only so much of the sentence as provided for a bad-conduct discharge and reduction to pay grade E-1, is affirmed.  

 



Thursday, August 7, 2008

 

APPEALS-SUMMARY DISPOSITIONS


No. 08-0339/AF.  U.S. v. Derrick M. WILLIAMS.  CCA 36679.  Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN NOT CONSIDERING THIS COURT'S DECISION IN UNITED STATES v. ADCOCK, 65 M.J. 18 (C.A.A.F. 2007), THAT KNOWING VIOLATION OF SERVICE REGULATIONS DESIGNED TO PROTECT THE RIGHTS OF SERVICEMEMBERS CAN AMOUNT TO AN ABUSE OF DISCRETION WARRANTING CREDIT UNDER R.C.M. 305(k).

 

The decision of the United States Air Force Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for consideration in light of United States v. Adcock, 65 M.J. 18 (C.A.A.F. 2007).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

No. 08-0452/AF.  U.S. v. Matthew W. GLADUE.  CCA 36580.  Review granted on the following issue:

 

WHETHER THE LOWER COURT ERRED WHEN IT FOUND THAT A PROVISION IN APPELLANT'S PRETRIAL AGREEMENT TO "WAIVE ALL WAIVABLE MOTIONS" WAS AN EXPRESS WAIVER THAT BARS APPELLANT FROM ASSERTING ANY CLAIMS OF MULTIPLICITY OR MULTIPLICATION OF CHARGES ON APPEAL.

 

Briefs will be filed under Rule 25.

 



Tuesday, August 5, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0502/AF.  U.S. v. Doncosta E. SEAWELL.  CCA 35531.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.



Monday, July 28, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0444/AR.  U.S. v. Gregory D. ROBERTSON.  CCA 20050565.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Thursday, July 24, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0225/AR.  U.S. v. Eduardo LIRIANO.  CCA 20061018.  We granted review in this case to consider whether the military judge erred in denying Appellant’s motion to exclude a physician from his court-martial panel because that selection violated Army regulations prohibiting medical personnel from performing court-martial duty.  In light of this Court’s opinion in United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008), we conclude the military judge did not err.  Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




Tuesday, July 15, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0145/AR.  U.S. v. Anthony R. LUCERO.  CCA 20020869.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed. 

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0448/NA.  U.S. v. Matthew C. KUEMMERLE.  CCA 200700899.  Review granted on the following issue:

 

WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER THE OFFENSE OF DISTRIBUTING AN IMAGE OF CHILD PORNOGRAPHY WHERE APPELLANT POSTED THE IMAGE ON THE INTERNET PRIOR TO ENTERING ACTIVE DUTY AND HE TOOK NO FURTHER STEPS TO DISTRIBUTE THE IMAGE AFTER IT WAS INITIALLY POSTED.

 

Briefs will be filed under Rule 25.

 



Monday, July 7, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 03-0629/AF.  U.S. v. David J. VON BERGEN.  CCA 34817.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE HELD APPELLANT'S WAIVER OF HIS ARTICLE 32 RIGHTS FOR HIS 20 SEPTEMBER 2001 COURT-MARTIAL APPLIED TO HIS 23 OCTOBER 2006 REHEARING.

 

    Briefs will be filed under Rule 25.



Thursday, July 3, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0474/AR.  U.S. v. Kevin C. CORUM.  CCA 20061124.  Review granted on the following issue personally raised by Appellant:

 

WHETHER APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL WHERE HE DESIRED TO PRESENT INFORMATION CONCERNING HIS MENTAL HEALTH DURING HIS UNSWORN STATEMENT BUT HIS TRIAL DEFENSE COUNSEL ALLEGEDLY REFUSED TO PERMIT HIM TO DO SO.  SEE UNITED STATES v. DOBRAVA, 64 M.J. 503 (A. Ct. Crim.  App. 2006).

 

  The record of trial is returned to the Judge Advocate General of the Army for remand to that court to obtain an affidavit from trial defense counsel that responds to Appellant’s allegation of ineffective assistance of counsel.  Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals shall review the granted issue in light of the affidavit and any other relevant matters.  See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 



Wednesday, July 2, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0573/AR.  U.S. v. Rocky I. ALVAREZ.  CCA 20051360.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed. *

 

* It is directed that the promulgating order be corrected to reflect that the beginning date of the offense in the Specification of Charge III was 4 November 2004 vice 4 November 2005.

 

No. 08-6001/NA.  U.S. v. Scott J. RATLIFF.  CCA 200700512.  On consideration of Appellant’s petition for grant of review and Appellee’s motion to dismiss that petition, in light of this Court’s decision in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), it is ordered that the motion to dismiss is denied, and that the petition is granted on the following issue:

 
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE NOVEMBER 2003 CONGRESSIONAL AMENDMENT TO ARTICLE 43(b) OF THE UCMJ APPLIES RETROACTIVELY TO OFFENSES COMMITTED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT THAT WERE NOT TIME-BARRED AS OF THAT DATE, BUT THAT WERE TIME-BARRED UNDER THE PREVIOUS STATUTE OF LIMITATIONS WHEN RECEIVED BY THE OFFICER EXERCISING SUMMARY COURT-MARTIAL JURISDICTION;

 

and,

 

That the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby reversed.  The Charge and Specifications are dismissed.  The record of trial is returned to the Judge Advocate General of the Navy. 

 



Tuesday, July 1, 2008


ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0334/MC.  U.S. v. William C. THOMPSON.  CCA 200600807.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED IN HOLDING THAT, EVEN IF THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION TO INVESTIGATOR AR, THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

WHETHER THE LOWER COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY SUBSTITUTING ITS FINDING OF GUILT TO RECKLESS ENDANGERMENT UNDER ARTICLE 134, UCMJ, FOR THE COURT-MARTIAL'S FINDING OF GUILT AS TO THE OFFENSE OF KIDNAPPING AS PLED UNDER CHARGE V,SPECIFICATION 2.

 

   Briefs will be filed under Rule 25.



Wednesday, June 25, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0225/AR.  U.S. v. Eduardo LIRIANO.  CCA 20061018.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT'S MOTION TO EXCLUDE A PANEL MEMBER FROM THE COURT-MARTIAL BECAUSE HIS SELECTION VIOLATED ARMY REGULATION 27-10 AND ARMY REGULATION 40-1.

 

No briefs will be filed under Rule 25.

 

No. 08-0487/AF.  U.S. v. Leon A. SWAN.  CCA 36634.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

 

*  It is noted that the decision of the United States Air Force Court of Criminal Appeals incorrectly summarized the findings.  Under Additional Charge I, Appellant was convicted of two specifications of disrespect to a noncommissioned officer and one specification of assaulting a noncommissioned officer, under Article 91, Uniform Code of Military Justice, 10 U.S.C. § 891 (2000).  The lower court omitted any reference to the assault and mistakenly stated that there were three offenses of disrespect.




Tuesday, June 24, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0813/NA.  U.S. v. Richard S. ROWE.  CCA 200600184.  On further consideration of the granted issue, __ M.J. __ (C.A.A.F. April 2, 2008), and the briefs of the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 08-0148/AF.  U.S. v. Damien G. KAWAI.  CCA 35366.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed. 

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0173/AR.  U.S. v. Shane T. OWENS.  CCA 20050641.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is noted that there was no evidence that in Specification 1 of Charge II that Appellant engaged in his misconduct with the victim.  See United States v. Rodriquez-Rivera, 63 M.J. 372, 385 (C.A.A.F. 2006); United States v. McDaniel, 39 M.J. 173, 175 (C.M.A. 1994).  Accordingly said petition is hereby granted on the following issue:

 

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT FINDINGS OF GUILTY TO CONDUCT UNBECOMING OF AN OFFICER BY TAKING INDECENT LIBERTIES WITH A CHILD BECAUSE APPELLANT’S ACTIONS DID NOT CONSTITUTE “INDECENT LIBERTIES” BECAUSE NO EVIDENCE SHOWS INTERACTION OR PARTICIPATION BY K. 

 

The decision of the United States Army Court of Criminal Appeals is reversed as to the words “take indecent liberties” in Specification 1 of Charge II and the finding of guilty as to those words is set aside and those words are dismissed.  We affirm the decision of the Court of Criminal Appeals as to the following amended Specification 1 of Charge II and the sentence:

 

In that Captain Shane T. Owens, U.S. Army, did, at or near Lawton, Oklahoma, on one occasion, between on or about 1 September 2004 and on or about 31 October 2004, dishonorably look in the bathroom window from outside the house in order to view in the shower the naked body of “K.J.O.,” a female under 16 years of age, not the wife of the accused, with the intent to gratify the lust of the accused, an act that was observed by the accused’s wife.  

 

No. 08-0307/AF.  U.S. v. Christopher R. MILLER.  CCA 36829.  Review granted on the following issue:

 

WHETHER APPELLANT'S CONVICTION OF ATTEMPTED INDECENT LIBERTIES WITH A CHILD IS LEGALLY SUFFICIENT WHEN APPELLANT WAS NEVER IN THE PHYSICAL PRESENCE OF THE PURPORTED CHILD, BUT WAS CONVICTED ON THE BASIS OF HIS SENDING HER THROUGH THE INTERNET A CONTEMPORANEOUS VIDEO OF HIS PERFORMING A SOLITARY SEXUAL ACT.

 

Briefs will be filed under Rule 25.

 

No. 08-0355/AF.  U.S. v. Ernest D. GOODIN, Jr.  CCA 36266.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY ALLOWING EVIDENCE OF LEGAL PORNOGRAPHY AND SEXUAL ACTS WITH HIS WIFE.

 

Briefs will be filed under Rule 25.

 



Monday, June 23, 2008

 

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

 

No. 08-0534/NA.  U.S. v. Robert PERSON, Jr.  CCA 200600076.  Appellee’s motion to dismiss the petition for grant of review is granted.




Friday, June 20, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0082/CG.  U.S. v. Albert STELLON.  CCA 1264.  On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Coast Guard Court of Criminal Appeals is affirmed.* 

 

No. 08-0280/NA.  U.S. v. Charles B. SWANSON.  CCA 200501593.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

____________________

 

*  It is directed that the promulgating order be corrected to add the date that the sentence was adjudged.

 



Tuesday, June 17, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0260/AF.  U.S. v. Daniel J. BROWN.  CCA 36695.  Review granted on the following issue:

 

WHETHER THE EVIDENCE ON THE ELEMENT OF SERVICE-DISCREDITING CONDUCT WAS LEGALLY SUFFICIENT

WHEN: (1) THE SEXUALLY EXPLICIT CONTENT AT ISSUE INVOLVED VIRTUAL MINORS; (2) THE IMAGES OF VIRTUAL MINORS WERE VIEWED ON APPELLANT'S PRIVATELY-OWNED COMPUTER, AND (3) APPELLANT'S ACTIVITY WAS KNOWN ONLY TO LAW ENFORCEMENT PERSONNEL INVOLVED IN THE INVESTIGATION.  SEE U.S. v. MASON, 60 M.J. 15 (2004), AND U.S. v. O'CONNOR, 58 M.J. 450 (2003).

 

  Briefs will be filed under Rule 25.




Monday, June 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0392/AR.  U.S. v. Demetrius R. CRUDUP.  CCA 20050112.  Review granted on the following issue:

 

WHETHER, AFTER FINDING A PROPER SIXTH AMENDMENT CONFRONTATION CLAUSE VIOLATION IN THE ADMISSION OF P. C.'S STATEMENTS, THE ARMY COURT ERRED WHEN IT HELD THE ERROR WAS NONETHELESS HARMLESS.

 

    Briefs will be filed under Rule 25.



Thursday, June 12, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0020/AR.  U.S. v. Lucille S. DIXON.  CCA 20050954.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0900/MC.  U.S. v. Carlos J. RODRIGUEZ.  CCA 9900997.  Review granted on the following issues:

 

WHETHER THE MILITARY JUDGE IMPROPERLY SHIFTED THE BURDEN OF PROOF TO APPELLANT IN ASKING APPELLANT TO EXPLAIN THE VICTIM'S MOTIVES IN ACCUSING HIM OF SEXUAL ABUSE.

 

WHETHER THIS COURT HAS JURISDICTION TO CONSIDER APPELLANT'S UNTIMELY PETITION IN LIGHT OF BOWLES v. RUSSELL, 127 S.Ct. 2360 (2007).

 

Briefs will be filed under Rule 25.

 



Wednesday, June 11, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 03-0403/NA.  U.S. v. Robert F. BRINTON.  CCA 200001971.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




Monday, June 2, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0213/NA.  U.S. v. Matthew STEVENS.  CCA 200401069.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is granted on the following issue:

 

WHETHER APPELLANT RECEIVED THE BENEFIT OF HIS PRETRIAL AGREEMENT BECAUSE THE GOVERNMENT FAILED TO FULFILL ITS OBLIGATIONS UNDER THE AGREEMENT.

 
  The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for a bad-conduct discharge, forfeiture of $700 pay per month for three months, and confinement for 45 days. 
 

No. 08-0285/AF.  U.S. v. Joshua W. HUDDLESTON.  CCA 36875.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and  the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

No. 08-0316/NA.  U.S. v. Robert L. CAMPI.  CCA 200700563.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is noted that in the stipulation of fact, Appellant only admitted to stealing one Lan-Cay M9, not two, yet the military judge accepted his plea to stealing two.  Accordingly, in light of this error, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed, except for the word and figure, “Two (2)” in item 31 of the Specification under Charge III, substituting the word, “One.”  The finding of guilty as to the excepted word and figure is set aside and dismissed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0200/NA.  U.S. v. Michael C. DIPAOLA.  CCA 200602442.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE DEFENSE OF MISTAKE OF FACT AS TO SPECIFICATION 2 OF CHARGE II.

 

   Briefs will be filed under Rule 25.
_________________________

* It is directed that the promulgating order be corrected to reflect that, with regard to Charge II, specifications 2 and 3, Appellant pleaded guilty to the lesser included offense of assault consummated by a battery.



Friday, May 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 04-0465/AF.  U.S. v. Terry A. FLETCHER.  CCA 34945.  We granted review to determine whether the military judge erred when he denied trial defense counsel’s motion to suppress Appellant’s positive urinalysis test.  66 M.J. 188 (C.A.A.F. 2008).  In this case, there was: (1) a properly constituted command drug testing program in effect at Appellant’s installation, and (2) evidence that the order to provide the specimen was incident to command under Military Rule of Evidence 313(b).  Therefore, we hold that the military judge did not abuse his discretion in denying the motion to suppress.  Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 



Thursday, May 29, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 03-0688/NA.  U.S. v. Stacie M. SOWELL.  CCA 9901777.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0602/NA.  U.S. v. Angela R. MITCHELL.  CCA 200600998.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.



Tuesday, May 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0795/AF.  U.S. v. Jeffrey R. RUTHERFORD.  CCA 36651. On further consideration of the granted issue, 66 M.J. 111 (C.A.A.F. 2008), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.




Thursday, May 22, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0168/NA.  U.S. v. Cooper JACKSON.  CCA 200700255.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




Tuesday, May 13, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0169/MC.  U.S. v. Byron M. LEWIS.  CCA 200600045.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that Appellant raises for the first time on appeal an issue regarding the legal sufficiency of the evidence with respect to Specification 1 of Charge I (conspiracy to distribute drugs).  It is appropriate for the court below to consider this issue initially.  Accordingly, it is ordered that said petition is granted on the following issue:

 

Whether the evidence is legally insufficient to support the conviction for conspiracy when the government PURPORTEDLY failed to provide any evidence that the alleged overt acts occurred after the conspiratorial agreement arose.


    The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for consideration of the issue raised for the first time before us.  Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), shall apply.



Monday, May 12, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 02-0334/AR.  U.S. v. Michael L. BAKER.  CCA 9800743.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 05-0528/MC.  U.S. v. Michael S. SNOOK.  CCA 200201598.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 



Friday, May 9, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0401/NA.  U.S. v. Russell B. MULLINS.  CCA 200200988.  On further consideration of the granted issues, 66 M.J. 188 (C.A.A.F. 2008), and United States v. Brooks, 64 M.J. 325 (C.A.A.F. 2007), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and that the record is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a new review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), to include consideration of the first granted issue in light of Brooks.

 



Wednesday, May 7, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 05-0647/NA.  U.S. v. Brendan C. FORNEY.  CCA 200200462.  Review granted on the following issue:

 

WHETHER APPELLANT'S ARTICLE 133 CONVICTION CAN BE SUSTAINED EVEN THOUGH HE PLEADED NOT GUILTY AND THE SPECIFICATION ON WHICH HE WAS TRIED EXPRESSLY RESTED ON A STATUTE THAT THE SUPREME COURT HAS FOUND UNCONSTITUTIONAL.

 

      Briefs will be filed under Rule 25.



Tuesday, May 6, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0013/AR.  U.S. v. Louis S. LOPEZ.  CCA 20010994.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 08-0413/AR.  U.S. v. Eloy N. GARCIA.  CCA 20060895.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Thursday, May 1, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0848/AF.  U.S. v. Linwood W. BURTON, Jr.  CCA 36296.  Review granted on the following issues:

 

WHETHER THE TRIAL COUNSEL ENGAGED IN IMPROPER ARGUMENT WHEN HE ARGUED THAT APPELLANT DEMONSTRATED A PROPENSITY TO ENGAGE IN SEXUAL ASSAULT.

 

ASSUMING ARGUENDO THAT IT WAS NOT IMPROPER FOR TRIAL COUNSEL TO ARGUE THAT APPELLANT HAD THE PROPENSITY TO COMMIT SEXUAL ASSAULTS, WHETHER THE MILITARY JUDGE ERRED BY FAILING TO GIVE AN ADDITIONAL INSTRUCTION ON THE USE OF PROPENSITY EVIDENCE.

 

Briefs will be filed under Rule 25.

 

No. 08-0092/MC.  U.S. v. Derek C. BURCH.  CCA 200700047.  Review granted on the following issue:

 

WHERE THE LOWER COURT FOUND A CONSTITUTIONAL VIOLATION, DID IT ERR WHEN IT FOUND THAT APPELLANT WAS NOT PREJUDICED WHEN HE WAS CONFINED FOR OVER SEVEN MONTHS BEYOND THE DATE HE SHOULD HAVE BEEN RELEASED UNDER THE CONVENING AUTHORITY'S UNAMBIGUOUS ACTION?

 

Briefs will be filed under Rule 25.




Tuesday, April 29, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0283/MC.  U.S. v. Roosevelt D. ROBERTS.  CCA 200700027.  On consideration of the petition of grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that Appellant raises an issue not previously considered by the Court of Criminal Appeals.  Accordingly, it is ordered that review is granted on the following modified issue:

 

WHETHER THE MEMBERS ERRED WHEN THEY FOUND APPELLANT GUILTY OF STEALING ‘MILITARY’ PROPERTY IN ALL OF THE SPECIFICATIONS OF CHARGE I, WHEN THE PROPERTY WAS OWNED BY A NON-APPROPRIATED FUND INSTRUMENTALITY.

 

    The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000).




Monday, April 28, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0247/NA.  U.S. v. Sasha M. DOWIS.  CCA 200700428.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and in light of United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007), we hold that under the plain meaning of the language in the convening authority’s action of April 18, 2007, the bad-conduct discharge was not approved.  Accordingly, it is ordered that review is granted on the following issue:.

 

Whether the lower court properly held that it could rely on the convening authority’s forwarding of the record of trial to the Navy-Marine Corps Appellate Review Activity (NAMARA) as evidence of ambiguity in the approval of Appellant’s bad-conduct discharge. 


  The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed.  The record of trial is returned to the Judge Advocate General of the Navy for remand to the convening authority, who shall then forward it directly to a judge advocate for review under Rule for Courts-Martial 1112.
 



Friday, April 25, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0360/AF.  U.S. v. Randy J. DARJEAN, Jr.  CCA 35938.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 06-0918/MC.  U.S. v. Raymon F. THOMAS.  CCA 200401149.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0600/NA.  U.S. v. Hawan T. CAMPBELL.  CCA 200400093.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0601/MC.  U.S. v. Jason M. RYAN.  CCA 200401577.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 98-0497/NA.  U.S. v. Charles W. DAVIS.  CCA 9600585.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0072/AF.  U.S. v. Edward S. MACOMBER.  CCA 36693.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS BECAUSE THE MILITARY MAGISTRATE HAD NO PROBABLE CAUSE TO ISSUE THE SEARCH.

 

Briefs will be filed under Rule 25.

 



Wednesday, April 23, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0215/NA.  U.S. v. Tyrice L. HAYES.  CCA 200600910.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it appears that in its rendition of the facts, the Court of Criminal Appeals may have considered matters from outside the record.  The facts alleged in the decision appear to have been taken from the victim’s summarized testimony presented at the Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 (2000), investigation, rather than from the evidence presented at trial.  This Court has previously held that a court of criminal appeals is constrained (1) by the evidence presented at trial when conducting its legal and factual review of the findings under Article 66(c), UCMJ, 10 U.S.C. § 866(c), and (2) by the evidence admitted at trial and those matters considered by the convening authority in his action when conducting its Article 66(c), UCMJ, sentence appropriateness review.  See United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007). 

Accordingly, it is ordered that review is granted on the following issue:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS FAILED TO CONDUCT A PROPER REVIEW UNDER ARTICLE 66(c), UCMJ, 10 U.S.C. SECTION 866(c), WHERE, IN ITS RENDITION OF THE FACTS OF THE CASE, THAT COURT APPEARS TO HAVE CONSIDERED EVIDENCE FROM OUTSIDE THE RECORD.  SEE UNITED STATES v. BEATTY, 64 M.J. 456 (C.A.A.F. 2007).

 

    The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a new review under Article 66(c), UCMJ. 




Tuesday, April 22, 2008

 

CERTIFICATES FOR REVIEW FILED

 

No. 08-5006/CG.  U.S. v. Julian R. YANGER.  CCA 1271.  Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

 

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE ACCUSED RAISED SUFFICIENT FACTS DURING THE PLEA INQUIRY REQUIRING THE MILITARY JUDGE TO EXPLAIN SELF-DEFENSE

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 22nd day of May, 2008.




Wednesday, April 16, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0148/AR.  U.S. v. Jason A. DONNELLY.  CCA 20031026.  On further consideration of the granted issue, 65 M.J. 275 (C.A.A.F. 2007), and United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), it is ordered that the order granting the above-referenced issue in this case is vacated, and the petition is hereby granted on the following issue specified by the Court:

WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AMENDING SPECIFICATIONS 1, 2, AND 3 OF THE CHARGE FROM VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIMES AND OFFENSES NOT CAPITAL) TO VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 1 (CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE) AND/OR CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDED ELEMENTS TO THE OFFENSES IN CONTRAVENTION OF APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000), JONES v. UNITED STATES, 526 U.S. 227 (1999), AND SCHMUCK v. UNITED STATES, 489 U.S. 705 (1989).

 The decision of the United States Army Court of Criminal Appeals is reversed.  The findings and sentence are set aside, and the record is returned to the Judge Advocate General of the Army.  A rehearing is authorized.

No. 07-0363/NA.  U.S. v. Kenneth R. FRANK.  CCA 200600894.  On further consideration of the granted issue, 65 M.J. 282 (C.A.A.F. 2007), and United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the findings and sentence are set aside.  The record is returned to the Judge Advocate General of the Navy.  A rehearing is authorized.

No.  07-0553/NA.  U.S. v. Christopher A. BOLSINS.  CCA 200602408.  On further consideration of the granted issue, 65 M.J. 292 (C.A.A.F. 2007), and United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Charge II and its specification and the sentence.  The findings as to Charge II and its specification are set aside.  The decision of the Court of Criminal Appeals as to Charge I and its specifications is affirmed.  The record is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a determination either to reassess the sentence or to order a rehearing.



Tuesday, April 8, 2008


ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0366/AR.  U.S. v. Jamie D. GONZALEZ.  CCA 20070301.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be corrected to reflect the convening authority’s action as follows:

 

     In the case of Private First Class Jaime D. Gonzalez, United States Army, A Company, 304th Signal            Battalion, 1st Signal Brigade, APO AP 96205, the sentence is approved and, except for that part extending      to a bad-conduct discharge, will be executed.




Wednesday, April 2, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0813/NA.  U.S. v. Richard S. ROWE.  CCA 200600184.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND MERE PREPARATION TO CROSS THE CRIMINALITY THRESHOLD OF "ATTEMPT," THUS RENDERING THE PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT.

 

Briefs will be filed under Rule 25.

 

No. 08-0246/NA.  U.S. v. David V. MENDOZA.  CCA 200602353.  Review granted on the following issue:

 

WHETHER THE LOWER COURT ERRED IN NOT MANDATING A NEW STAFF JUDGE ADVOCATE RECOMMENDATION IN COMPLIANCE WITH RULE FOR COURTS-MARTIAL 1106(f) BE SERVED ON APPELLANT'S TRIAL DEFENSE COUNSEL AFTER IT REMANDED APPELLANT'S CASE TO A NEW CONVENING AUTHORITY FOR CLARIFICATION OF AN AMBIGUOUS ACTION.

 

Briefs will be filed under Rule 25.

 



Tuesday, April 1, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0776/AR.  U.S. v. David M. TILLERY.  CCA 20030538.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.




Wednesday, March 26, 2008


 
ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0186/AF.  U.S. v. Dale D. HAYES, Jr.  CCA S31359.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*


 
* It is directed that the convening authority’s action and the promulgating order be corrected by                deleting the words, “and allowances.”
 

No. 08-0272/AF.  U.S. v. Elizabeth A. SCHWANINGER.  CCA S31380.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.**

 

** It is directed that the promulgating order be corrected to reflect that the sentence was adjudged on August 31, 2007.

 



Tuesday, March 25, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0158/AR.  U.S. v. Mark R. CONLIFFE.  CCA 20040721.  Review granted on the following issue:

 

WHETHER APPELLANT'S PLEAS OF GUILTY TO THE THREE  SPECIFICATIONS OF CHARGE II, HOUSEBREAKING, ARE IMPROVIDENT WHERE THE INTENDED CRIMINAL OFFENSE UPON ENTRY, CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN, IS A PURELY MILITARY OFFENSE.

 

    Briefs will be filed under Rule 25.



Thursday, March 20, 2008

 

APPEALS – SUMMARY DISPOSITIONS

 

No. 06-0793/AF.  U.S. v. Jeffrey D. BEATTY.  CCA 35523.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 07-0696/MC.  U.S. v. Robert A. JOHANSSON.  CCA 200401940.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is unclear whether the Court of Criminal Appeals considered the dramatic change in the sentencing landscape when it reassessed the sentence.  See United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006).  Accordingly, said petition is granted on the following issue raised by Appellant:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY REASSESSING

APPELLANT’S SENTENCE IN A MANNER THAT DID NOT AFFORD APPELLANT ANY RELIEF.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings, but reversed as to sentence.  The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals.  The Court of Criminal Appeals may reassess the sentence based on the affirmed findings of guilty after considering the dramatic change in the sentencing landscape or order a rehearing on sentence.  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000) shall apply.

 

No. 07-0809/MC.  U.S. v. Andrew C. TAYLOR.  CCA 200602223.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is noted that Appellant pleaded guilty to two specifications of receiving and/or possessing child pornography while deployed to Qatar, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).  The specifications included language indicating that Appellant’s conduct was prejudicial to good order and discipline in the armed forces, of a nature to bring discredit upon the armed forces, and in violation of 18 U.S.C. § 2252A (2000) (charging clauses 1, 2, and 3 of Article 134, UCMJ).  This Court has held that 18 U.S.C. § 2252A does not have extraterritorial application.  United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005).  As such, Appellant’s guilty pleas to the 18 U.S.C. § 2252A clause in Specifications 1 and 2 of Charge II are improvident, but are provident to the remaining clauses.  Accordingly, said petition is granted on the following issue:

 

IF THIS COURT DETERMINES THAT THE LOWER COURT AFFIRMED THE FINDINGS OF GUILT FOR VIOLATIONS

OF CLAUSE 3 OF ARTICLE 134, WHETHER SUCH FINDINGS ARE IN CONFLICT WITH THE COURT’S HOLDING IN

UNITED STATES v. MARTINELLI, 62 M.J. 52 (C.A.A.F. 2005), AND MUST BE SET ASIDE.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to the words and figures “each such reception and possession constituting a separate violation of 18 United States [C]ode §2252A” in Specification 1 of Charge II, and as to the words and figures “each such possession constituting a separate violation of 18 United States Code §2252A” in Specification 2 of Charge II, but is affirmed in all other respects.  The finding of guilty as to those words and figures is set aside and those portions of the specifications are dismissed.

 



Wednesday, March 19, 2008

 

APPEALS – SUMMARY DISPOSITIONS

 

No. 06-0906/AF.  U.S. v. Samir S. CHRISTIAN.  CCA 35905.  On further consideration of the granted issues, 65 M.J. 320 (C.A.A.F. 2007), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 06-0932/NA.  U.S. v. Javan R. GAINOUS.  CCA 200300953.  On further consideration of the granted issues, 65 M.J. 320 (C.A.A.F. 2007), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0053/NA.  U.S. v. Robert D. FELLS.  CCA 200500668.  On further consideration of the granted issue, 65 M.J. 252 (C.A.A.F. 2007), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0615/NA.  U.S. v. Xavier R. ALLEN.  CCA 200600562.  On further consideration of the granted issue, 65 M.J. 476 (C.A.A.F. 2007), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 08-0029/AR.  U.S. v. William M. RIGBY, Jr.  CCA 20050708.  On further consideration of the granted issue, 66 M.J. ___ (C.A.A.F. January 18, 2008), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Army Court of Criminal Appeals is affirmed.




Tuesday, March 18, 2008

  

APPEALS – SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On further consideration of the granted issue, 65 M.J. 330 (C.A.A.F. 2007), and in view of United States v. Harcrow, 66 M.J. __ (C.A.A.F. March 13, 2008), and United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007), the decision of the United States Army Court of Criminal Appeals is set aside.  The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for further consideration in view of Harcrow and Gardinier.

 



Monday, March 17, 2008

 

APPEALS – SUMMARY DISPOSITIONS

 

No. 07-0738/AF.  U.S. v. Stephen T. JONES.  CCA S31078.  On further consideration of the granted issue, 65 M.J. 446-47 (C.A.A.F. 2007), and in view of United States v. Scott, 66 M.J. 1 (C.A.A.F. 2008), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 08-0031/AF.  U.S. v. Levi W. ACKLEY.  CCA 36703.  On further consideration of the granted issue, __ M.J. __ (C.A.A.F. February 13, 2008), and in view of United States v. Scott, 66 M.J. 1 (C.A.A.F. 2008), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 



Thursday, March 13, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0894/MC.  U.S. v. Robert A. MCMATH.  CCA 200601191.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is granted, and the decision of the Court of Criminal Appeals is affirmed. 

 

No. 08-0278/AR.  U.S. v. Domique* A. UPSHAW.  CCA 20070741.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted, and the decision of the Court of Criminal Appeals is affirmed. 

 

* It is noted that Appellant’s service record, charge sheet, stipulation, and United States Army Court of Criminal Appeals opinion all refer to him as Domique.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0826/AR.  U.S. v. Bennie B. GOGUE.  CCA 20050650.  Review granted on the following issue raised by the Appellant:

 

WHETHER, PURSUANT TO 18 U.S.C. § 3585, APPELLANT IS ENTITLED TO CREDIT TOWARD THE CONFINEMENT ADJUDGED BY A COURT-MARTIAL FOR CONFINEMENT AT STATE FACILITIES SERVED FOR CHARGES UNRELATED TO HIS COURT-MARTIAL SENTENCE AND NOT CREDITED AGAINST ANOTHER SENTENCE.

 

and the following issue specified by the Court:

 

WHETHER, UNDER UNITED STATES v. WILSON, 503 U.S. 329 (1992), MILITARY JUDGES LACK THE AUTHORITY TO CALCULATE AND APPLY PRETRIAL CONFINEMENT CREDIT.

 

No. 07-0856/AR.  U.S. v. Dustin A. OWENS.  CCA 20070264.  Review granted on the following issue specified by the Court:

 

WHETHER, UNDER 18 U.S.C. § 3585, APPELLANT IS ENTITLED TO CONFINEMENT CREDIT FOR A PERIOD OF INCARCERATION THAT HE SERVED IN A STATE FACILITY FOR A STATE OFFENSE UNRELATED TO THE COURT-MARTIAL.

 



Thursday, February 21, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 04-0722/AF.  U.S. v. Anthony J. CLARK.  CCA 34791.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 07-0887/AF.  U.S. v. Jason P. ARINDAIN.  CCA 36357.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 



Friday, February 15, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0765/NA.  U.S. v. Sean C. SNYDER.  CCA 200602367.  Review granted on the following issues:

 

WHETHER THE SPECIFICATION UNDER THE ADDITIONAL CHARGE STATES AN OFFENSE FOR ATTEMPTED DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY JUSTICE (UCMJ).

 

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUSTAIN A FINDING OF GUILTY TO THE SPECIFICATION UNDER THE ADDITIONAL CHARGE - ATTEMPTED DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY JUSTICE (UCMJ).

 

     Briefs will be filed under Rule 25.




Wednesday, February 13, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0759/AR.  U.S. v. Thomas M. RAGER.  CCA 20051520.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we conclude that Specification 3 of the Charge constitutes an unreasonable multiplication of the charges with Specification 2 of the Charge.  Accordingly, it is ordered that said petition is granted on the following issue:

 
WHETHER THE
ARMY COURT ERRED BY AFFIRMING THE FINDINGS WHERE SPECIFICATIONS 2 AND 3 OF THE CHARGE CONSTITUTE AN UNREASONABLE MULTIPLICATION OF CHARGES UNDER UNITED STATES v. QUIROZ, 55 M.J. 334 (C.A.A.F. 2001).


  The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 3 of the Charge, the finding as to this specification is set aside, and this specification is dismissed.  In all other respects, the decision is affirmed.

No. 07-0786/MC.  U.S. v. Mitchell J. LARAMORE.  CCA 200601023.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 04-0465/AF.  U.S. v. Terry A. FLETCHER.  CCA 34945.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED TRIAL DEFENSE COUNSEL'S MOTION TO SUPPRESS APPELLANT'S POSITIVE URINALYSIS TEST RESULT AND THE EVIDENCE DERIVED THEREFROM.

 

Briefs will be filed under Rule 25.

 

No. 07-0401/NA.  U.S. v. Russell B. MULLINS.  CCA 200200988.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED IN HOLDING THAT THERE WAS NOTHING IMPERMISSIBLE IN THE MILITARY JUDGE ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR TESTIMONY IN VIOLATION OF MILITARY RULE OF EVIDENCE 702.

 

WHETHER THE LOWER COURT DENIED APPELLANT DUE PROCESS WHEN IT DENIED HIM RELIEF DUE TO EXCESSIVE POST-TRIAL PROCESSING DELAY AND DENIED HIS SUPPLEMENTAL ASSIGNMENTS OF ERROR.

 

Briefs will be filed under Rule 25.

 

No. 08-0031/AF.  U.S. v. Levi W. ACKLEY.  CCA 36703.  Review granted on the following issue:

 

WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS "NEW MATTER" NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE.

 

      No briefs will be filed under Rule 25.




Wednesday, February 6, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0084/NA.  U.S. v. Joshua A. GIFFORD.  CCA 200700296.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

__________________

 

*  It is directed that the promulgating order be corrected to reflect that the value of the military property listed in Charge II is $10.00, not $100.00.




Tuesday, January 29, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0636/AR.  U.S. v. David P. BARTLETT, Jr.  CCA 20021244.  Review granted on the following issue:

 

WHETHER THE SECRETARY OF THE ARMY'S DECISION TO EXEMPT FROM COURT-MARTIAL SERVICE OFFICERS OF THE SPECIAL BRANCHES NAMED IN AR 27-10 CONTRADICTS ARTICLE 25(d)(2), UCMJ, WHICH REQUIRES A CONVENING AUTHORITY TO SELECT COURT-MARTIAL MEMBERS BASED UPON AGE, EDUCATION, TRAINING, EXPERIENCE, LENGTH OF SERVICE, AND JUDICIAL TEMPERAMENT.

 

Briefs will be filed under Rule 25.

 

No. 07-0795/AF.  U.S. v. Jeffrey R. RUTHERFORD.  CCA 36651.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING EVIDENCE AT TRIAL THAT WAS OBTAINED AS A DIRECT RESULT OF AN ILLEGAL SEARCH OF APPELLANT'S GOVERNMENT ISSUED LAPTOP COMPUTER.

 

Briefs will be filed under Rule 25.

 



Monday, January 28, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0870/AF.  U.S. v. Charles S. ROACH.  CCA S31143.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY DECIDING APPELLANT'S CASE IN THE ABSENCE OF A SUBSTANTIVE SUBMISSION ON APPELLANT'S BEHALF DESPITE THIS COURT'S CASE LAW HOLDING THAT IT IS "ERROR" FOR A COURT OF CRIMINAL APPEALS TO DECIDE A "CASE WITHOUT ASSISTANCE OF COUNSEL" FOR AN APPELLANT. United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

 

WHETHER THE LOWER COURT ERRED BY HOLDING: (1) THAT IT WAS NOT OBJECTIVELY UNREASONABLE FOR THE APPELLATE DEFENSE COUNSEL TO FAIL TO FILE A BRIEF ON APPELLANT'S BEHALF DURING THE 182 DAYS BETWEEN THE EXPIRATION OF APPELLANT'S BRIEFING DEADLINE AND THE LOWER COURT'S DECISION IN APPELLANT'S CASE; AND (2) THAT APPELLANT DEMONSTRATED NO PREJUDICE, DESPITE THIS COURT'S CASE LAW HOLDING THAT WHERE APPELLATE COUNSEL "DO NOTHING" ON AN APPELLANT'S BEHALF, THE "APPELLANT HAS BEEN EFFECTIVELY DEPRIVED OF COUNSEL, AND PREJUDICE IS PRESUMED." United States v. May, 47 M.J. 478, 482 (C.A.A.F. 1998).

 

Briefs will be filed under Rule 25.

 



Friday, January 25, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0567/MC.  U.S. v. Alex A. KING.  CCA 200500797.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings but set aside as to sentence.  The record of trial is returned to the Judge Advocate General of the Navy for remand to the Navy-Marine Corps Court for a new sentence appropriateness review in light of United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005).  




Wednesday, January 23, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0720/AR.  U.S. v. Jeffery B. DENNING.  CCA 20030963.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 07-0812/AR.  U.S. v. Emily M. HAMILTON.  CCA 20050738.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted, and the decision of the United States Army Court of Criminal Appeals is affirmed. 

 



Friday, January 18, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0029/AR.  U.S. v. William M. RIGBY, Jr.  CCA 20050708.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE FAILED TO GIVE THE REQUESTED MISTAKE OF FACT AS TO AGE INSTRUCTION FOR THE OFFENSE OF SODOMY WITH A CHILD UNDER THE AGE OF SIXTEEN.

 

Briefs will be filed under Rule 25.

 



Tuesday, January 15, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0875/AF.  U.S. v. Murray M. JONES, Jr.  CCA 36577.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is noted that although Appellant’s guilty plea to Specification 6 of Charge I (making and delivering checks without sufficient funds) excepted a check totaling $108.06 from the specification, the total amount ($1,072) listed in the specification was not amended to reflect the exception. 

Accordingly, in light of this error, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed, except for the figure, “$1,072.00,” in Specification 6 of Charge I, substituting the figure, “$963.94.”  The finding of guilty as to the excepted figure is set aside and dismissed.

 

No. 08-0024/AR.  U.S. v. Shaun F. O’NEAL.  CCA 20051530.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO REOPEN THE PROVIDENCE INQUIRY IN ACCORDANCE WITH UNITED STATES v. PHILLIPPE, 63 M.J. 307 (C.A.A.F. 2006), WHEN FACTS ELICITED DURING APPELLANT’S UNSWORN STATEMENT RAISED THE POSSIBLE DEFENSE OF MISTAKE OF FACT AS TO AUTHORITY TO LEAVE.

 
  The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 2 of Charge I and as to the sentence, but is affirmed in all other respects.  The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals.  That court may either dismiss Specification 2 of Charge I and reassess the sentence based on the affirmed guilty findings or order a rehearing.

 

No. 08-0078/MC.  U.S. v. Robert P. WILLIAMS IV.  CCA 200700245.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, the Court notes that in accordance with a pretrial agreement, Appellant entered pleas of guilty to three offenses, to include Specification 1 of Charge II.  The military judge accepted his pleas, and then entered guilty findings with respect to two of those offenses, but omitted any finding as to Specification 1 of Charge II.  There was no objection at trial or in any post-trial processing.  We conclude that Appellant was not prejudiced by this omission.  See United States v. Davie, 18 M.J. 598, (N.M.C.M.R. 1984), petition denied, 19 M.J. 121 (C.M.A. 1984).  Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING THE FINDINGS AND SENTENCE AS APPROVED BY THE CONVENING AUTHORITY, WHEN THE MILITARY JUDGE DID NOT ENTER A FINDING FOR SPECIFICATION 1 OF CHARGE II.

 

   The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




Thursday, January 3, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0613/MC.  U.S. v. Richard J. ROGERS.  CCA 200600545.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. 

 

No. 07-0788/AR.  U.S. v. Patrick POPE.  CCA 20051147.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals,  said petition is hereby granted on the following issue:

 

WHETHER THE COURT-MARTIAL HAD PERSONAL JURISDICTION OVER APPELLANT WHERE HE RECEIVED HIS DD-214 PRIOR TO SENTENCING.

In light of United States v. Harmon, 63 M.J. 98, 101-03 (C.A.A.F. 2006), the decision of the United States Army Court of Criminal Appeals is affirmed.* 
     ____________________

 

* It is directed that the promulgating order be corrected to reflect that Charge II, Specification 1 (as amended – Record of Trial at 20-22) states the offense of willful dereliction of duty instead of the offense of failing to obey a lawful order. 

 

No. 08-0122/MC.  U.S. v. Andrew O. BOUDREAU.  CCA 200700202.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.** 

     _____________________

 

** It is directed that the promulgating order be corrected to add the words “the sentence” before the words “is approved” in the Convening Authority’s action.

 



Monday, December 31, 2007

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0385/NA.  U.S. v. Kenneth E. HARRIS.  CCA 200401897.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the entire record, including the file of the Administrative Law Division of the Judge Advocate General of the Navy, submitted under seal by Appellee to this Court on October 4, 2007, we conclude that the Court of Criminal Appeals abused its discretion in deciding Appellant’s Motion for Panel and En Banc Reconsideration and Appellant’s Panel and En Banc Motion to Recuse Senior Judge E. E. Geiser, and Judges J. W. Rolph and E. D. Mitchell from Appellant’s Case and to Rescind the Panel Two Opinion Issued in Appellant’s Case, without first considering the file of the Administrative Law Division.  Accordingly, it is ordered that said petition is hereby granted as to assigned issue I:

 
WHETHER A JUDGE ON THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS SHOULD HAVE BEEN RECUSED FROM ACTING ON A CASE IN WHICH HE HAD PREVIOUS OFFICIAL INVOLVEMENT AND KNOWLEDGE OF SALIENT FACTS OUTSIDE THE RECORD OF TRIAL.

 

The case is returned to the Judge Advocate General of the Navy for remand to the United States Navy-Marine Corps Court of Criminal Appeals to reconsider Appellant’s Motion for Panel and En Banc Reconsideration and Appellant’s Panel and En Banc Motion to Recuse Senior Judge E. E. Geiser, and Judges J. W. Rolph and E. D. Mitchell from Appellant’s Case, in light of the entire file of the Administrative Law Division of the Judge Advocate General of the Navy that is now attached to the record.  This reconsideration will be before judges who have not previously participated in this case.  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.  This is without prejudice to raising the other issues assigned in the instant petition for grant of review.




Wednesday, December 26, 2007

 

CERTIFICATES FOR REVIEW FILED

 

No. 08-5005/AF.  U.S. v. James L. MACKIE.  CCA S31090.  The Judge Advocate General of the Air Force requests that action be taken with respect to the following issues:

 


WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS APPLIED THE CORRECT STANDARD OF REVIEW WHEN DETERMINING WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A SANITY BOARD.

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED APPELLANT’S REQUEST FOR A SANITY BOARD FINDING HE HAD NOT MET HIS BURDEN OF FACTUAL PERSUASION TO JUSTIFY AN INQUIRY PURSUANT TO R.C.M. 706.

 



Thursday, December 20, 2007


APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0840/AF.  U.S. v. Naomi LANE.  CCA S30930.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that in affirming the sentence, that court stated that the sentence included a “forfeiture of $832.00 pay per month for 3 months,” when in fact the sentence included a forfeiture of $823.00 pay per month for 3 months.  Accordingly, it is ordered that said petition is hereby granted and that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for reduction to pay grade E-1, forfeiture of $823.00 pay per month for 3 months, confinement for 3 months, and a bad-conduct discharge.




Monday, December 17, 2007

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0253/NA.  U.S. v. John A. HALSEMA.  CCA 2000137.  On consideration of the petition for grant of review of the decision by the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the case is remanded to the Court of Criminal Appeals for consideration of assigned issue II.  Following the conclusion of this matter, the record will be returned directly to this Court for further proceedings.




Friday, December 14, 2007


APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0516/AR.  U.S. v. Andrew M. HUMISTON.  CCA 20030713.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 07-0762/MC.  U.S. v. Larry A. FRAMNESS.  CCA 200500152.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0615/NA.  U.S. v. Xavier R. ALLEN.  CCA 200600562.  Review granted on the following issue:

 

WHETHER, IN LIGHT OF THIS COURT'S DECISION IN UNITED STATES v. ZACHARY, 63 M.J. 438 (C.A.A.F.2006), THE CCA ERRED IN AFFIRMING APPELLANT'S GUILTY PLEA TO CONSENSUAL SODOMY WITH A PERSON UNDER THE AGE OF 16 WHEN THE MILITARY JUDGE ERRONEOUSLY INFORMED APPELLANT THAT A MISTAKE OF FACT DEFENSE AS TO AGE CATEGORICALLY DID NOT APPLY TO THE SODOMY CHARGE.

 

No briefs will be filed under Rule 25.

 

No. 07-0722/AR.  U.S. v. Andrew P. OBER.  CCA 20040081.  Review granted on the following issues:

 

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A FINDING OF GUILT FOR TRANSPORTING CHILD PORNOGRAPHY IN INTERSTATE COMMERCE WHEN NO EVIDENCE EXISTS THAT APPELLANT UPLOADED CHILD PORNOGRAPHY FROM HIS COMPUTER TO THE INTERNET FILE-SHARING PROGRAM "KAZAA."

 

WHETHER THE ARMY COURT ERRED IN AFFIRMING THE FINDING OF GUILTY FOR SPECIFICATION 1 OF CHARGE I WHEN THE COURT AFFIRMED UNDER A DIFFERENT THEORY OF LIABILITY THAN WAS PROFFERED TO THE MILITARY PANEL, IN CONTRAVENTION OF CHIARELLA v. UNITED STATES, 445 U.S. 222 (1980).

 

WHETHER THE MILITARY JUDGE FAILED TO PROPERLY INSTRUCT THE PANEL ON THE ELEMENTS FOR SPECIFICATION 1 OF CHARGE I, BY: (1) OMITTING THE CHARGED LANGUAGE "CAUSE TO BE TRANSPORTED" FROM THE ORAL AND WRITTEN INSTRUCTIONS; (2) FAILING TO INSTRUCT ON A POSSIBLE GOVERNMENT ALTERNATE THEORY OF LIABILITY UNDER ARTICLE 77, UCMJ; AND (3) FAILING TO PROPERLY INSTRUCT ON THE TERM "UPLOADING' WHEN THE COMPUTER EXPERTS AT TRIAL PROVIDED TWO VARYING DEFINITIONS.

 

Briefs will be filed under Rule 25.

 



Thursday, December 13, 2007

 

CERTIFICATES FOR REVIEW FILED

 

No. 08-5004/AR.  U.S. v. Juan R. GUTIERREZ.  CCA 20040596.  The Judge Advocate General of the Army requests that action be taken with respect to the following issue:

 

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HE WAIVED AN AFFIRMATIVE DEFENSE INSTRUCTION.

 


Monday, December 10, 2007

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0001/AR.  U.S. v. David L. ECKARD.  CCA 20010870.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Friday, December 7, 2007

 

CERTIFICATES FOR REVIEW FILED

 

No. 08-5003/AF.  U.S. v. Bennie C. MELSON.  CCA 36523.  The Judge Advocate General of the Air Force requests that action be taken with respect to the following issues:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING TRIAL DEFENSE COUNSEL INEFFECTIVE.

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN REJECTING TRIAL DEFENSE COUNSEL’S AFFIDAVIT AS UNTIMELY.

 



Tuesday, December 4, 2007

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 04-0313/AF.  U.S. v. George E. ROLLINS.  CCA 34515.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 



Friday, November 30, 2007

 

CERTIFICATES FOR REVIEW FILED

 

No. 08-5002/AF.  U.S. v. Adam P. PEREZ.  CCA 36799.  The Judge Advocate General of the Air Force requests that action be taken with respect to the following issue:

 

     WHETHER THE CONVENING AUTHORITY PROPERLY APPLIED RULE FOR COURTS-MARTIAL 1107.




Thursday, November 29, 2007


INTERLOCUTORY ORDERS

 

No. 07-0263/AF.  U.S. v. John R. LARSON.  CCA 35934.  On further consideration of the previously filed briefs and oral argument held on November 27, 2007, it is ordered that Appellant and Appellee shall brief the following issues:

 

IN THE MILITARY JUSTICE SYSTEM, IS THE DECISION TO CONCEDE GUILT TO ONE OF MULTIPLE CHARGED OFFENSES DURING ARGUMENT A TACTICAL DECISION THAT COUNSEL MAY MAKE WITHOUT OBTAINING CONSENT OF THE ACCUSED? SEE FLORIDA v. NIXON, 543 U.S. 175 (2004); UNITED STATES v. CARE, 18 C.M.A. 535, 40 C.M.R. 247 (1969); UNITED STATES v. BERTELSON, 3 M.J. 314 (C.M.A. 1977).

 

ASSUMING, ARGUENDO, THAT COUNSEL MAY CONCEDE GUILT AS A TACTICAL MATTER AFTER CONSULTATION BUT WITHOUT CONSENT OF THE ACCUSED, DOES THE RECORD IN THE PRESENT CASE SUPPORT A CONCLUSION THAT COUNSEL CONSULTED WITH APPELLANT PRIOR TO MAKING SUCH A CONCESSION? IF NOT, WAS THE FAILURE TO DO SO PREJUDICIAL AS TO THE FINDINGS OR SENTENCE? SEE STRICKLAND v. WASHINGTON, 466 U.S. 669 (1984).

 

The briefs of the parties shall be filed within twenty days of the date of this order.  Both parties may file reply briefs within seven days of the date of the filing of the last brief filed in response to this order.



Monday, November 26, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0738/AF.  U.S. v. Stephen T. JONES.  CCA S31078.  Review granted on the following issue:

 

WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS "NEW MATTER" NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE.

 

No briefs will be filed under Rule 25.

 



Tuesday, November 20, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0725/MC.  U.S. v. Jonathan E. LEE.  CCA 200600543.  Review granted on the following issue:

 

WHETHER CAPT [R]'S FAILURE TO DISCLOSE HIS CONFLICT OF INTEREST RESULTED IN AN UNINFORMED AND INVALID ELECTION OF COUNSEL.

 

Briefs will be filed under Rule 25.

 



Friday, November 16, 2007

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0532/NA.  U.S. v. Hector A. COLEMAN.  CCA 200101009.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, we conclude that any error in that regard was harmless beyond a reasonable doubt.  Accordingly, said petition is hereby granted on the following issue specified by the Court:

 
WHETHER THE POST-TRIAL DELAY IN THIS CASE DENIED APPELLANT DUE PROCESS OF LAW.

 

  The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0475/NA.  U.S. v. Anthony V. WILSON.  CCA 200300734.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0476/NA.  U.S. v. Audley G. EVANS, II.  CCA 200600806.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 
I.  WHETHER A PROVISION OF APPELLANT’S PRETRIAL AGREEMENT THAT AUTHORIZES THE CONVENING AUTHORITY TO SUSPEND A PORTION OF HIS SENTENCE UNTIL HE IS “DISCHARGED FROM THE U.S. NAVY” IS FOR AN UNREASONABLE AMOUNT OF TIME WITHIN THE MEANING OF R.C.M. 1108(d) AND SHOULD BE VOID FOR INDEFINITENESS.

 

II.  WHETHER APPELLANT’S SUSPENDED SENTENCE WAS IMPROPERLY VACATED BECAUSE HIS ALLEGED MISCONDUCT WAS NOT A MATERIAL BREACH OF THE PRETRIAL AGREEMENT.

 

III.  WHETHER APPELLANT’S SUSPENDED SENTENCE WAS IMPROPERLY VACATED BECAUSE THE R.C.M. 1109 VACATION HEARING WAS NOT HELD WITHIN A REASONABLE AMOUNT OF TIME.

    The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a new review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), to consider Issue I and further to consider Issues II and III in light of the vacation proceedings held after the decision of the Court of Criminal Appeals, without prejudice to Appellant’s future rights under Article 67, UCMJ, 10 U.S.C. § 867 (2000).


No. 07-0598/NA.
  U.S. v. Manuel A. MATOSPACHECO.  CCA 200101562.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0346/AR.  U.S. v. Ahmed M. ELFAYOUMI.  CCA 20010415.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE COUNSEL'S CHALLENGE FOR CAUSE AGAINST MAJOR [L.G.], A PANEL MEMBER, FOR IMPLIED BIAS.

 

Briefs will be filed under Rule 25.

 

No. 07-0382/MC.  U.S. v. William C. BRAGG.  CCA 200600228.  Review granted on the following issue:

 

WHETHER THE LOWER COURT ERRED IN UPHOLDING THE MILITARY JUDGE'S DENIAL OF THE CHALLENGE FOR CAUSE OF LIEUTENANT COLONEL [W.]

 

Briefs will be filed under Rule 25.

 

No. 07-0482/MC.  U.S. v. Matthew K. TRAVIS.  CCA 200600519.  Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT APPELLANT WAS NOT PREJUDICED BY THE FAILURE OF THE STAFF JUDGE ADVOCATE TO FORWARD CLEMENCY MATTERS SUBMITTED BY APPELLANT TO THE CONVENING AUTHORITY PRIOR TO TAKING INITIAL ACTION AND BY FINDING THAT APPELLANT WAS NOT PREJUDICED WHEN THE STAFF JUDGE ADVOCATE HELD ONTO THE CLEMENCY MATTERS FOR OVER A YEAR BEFORE FORWARDING MATTERS TO THE CONVENING AUTHORITY.

 

Briefs will be filed under Rule 25.

 

No. 07-0503/MC.  U.S. v. Daqric B. MOOREFIELD.  CCA 200600162.  Review granted on the following issue:

 

WHETHER THE STAFF JUDGE ADVOCATE WAS REQUIRED TO RECUSE HIMSELF FROM INVOLVEMENT IN APPELLANT'S CASE ON THE BASIS OF JAGINST 5803.B, RULE 1.12, OR OTHER LAW, REGULATION OR DIRECTIVE.  IF SO, WHETHER APPELLANT WAS PREJUDICED BY THE STAFF JUDGE ADVOCATE'S FAILURE TO DO SO.

 

Briefs will be filed under Rule 25.

 

No. 07-0647/AR.  U.S. v. Robert D. MAYNARD.  CCA 20060121.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR IN ALLOWING PANEL MEMBERS TO CONSIDER EVIDENCE OF APPELLANT'S ALLEGED ANTI-AMERICAN AND ANTI-WAR VIEWS AS AGGRAVATION EVIDENCE UNDER R.C.M. 1001(b)(4) TO THE OFFENSE OF ABSENCE WITHOUT LEAVE, THEREBY PREJUDICING APPELLANT'S SUBSTANTIAL RIGHTS.

 

Briefs will be filed under Rule 25.

 

No. 07-0701/CG.  U.S. v. Carl T. BRIDGES.  CCA 1233.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED PROSECUTION EXHIBIT 3 OVER DEFENSE OBJECTION BECAUSE IT WAS EXTRINSIC EVIDENCE OF SPECIFIC ACTS OF MISCONDUCT OFFERED TO REBUT AN OPINION.  See United States v. Hallum, 31 M.J. 254 (CMA 1990).

 

Briefs will be filed under Rule 25.

 



Wednesday, November 14, 2007

 
ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0787/MC.  U.S. v. Justin A. INABINETTE.  CCA 200602228.  Review granted on the following issue:

 
WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT REVIEWED FOR AN ABUSE OF DISCRETION, RATHER THAN DE NOVO, THE MILITARY JUDGE'S LEGAL CONCLUSION THAT APPELLANT'S PLEAS WERE PROVIDENT.

 

   Briefs will be filed under Rule 25.



Wednesday, November 7, 2007


APPEALS - SUMMARY DISPOSITIONS

 
No. 07-0740/AF.  U.S. v. Jeffrey W. GREENWAY, Jr.  CCA 37008.       On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is noted that in summarizing and modifying the approved findings, the Court of Criminal Appeals made no mention of the guilty findings to Charge IV and its Specification (making a false pass) that had been approved by the convening authority.  Because this offense went unmentioned, it is unclear whether it was affirmed and was part of that court’s sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A. 1986).  Under Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c) (2000), this Court can only act with respect to findings as affirmed by a court of criminal appeals.  If the findings are ambiguous, the appropriate remedy is a remand for clarification.  United States v. Kosek, 41 M.J. 60, 65 (C.M.A. 1994)(“The appropriate remedy for incomplete or ambiguous rulings is a remand for clarification.”).  Accordingly, because of the ambiguity as to the affirmed findings, it is ordered that said petition is hereby granted.  The decision of the United States Air Force Court of Criminal Appeals is set aside, and the record of trial is returned to the Judge Advocate General of the Air Force for remand to the United States Air Force Court of Criminal Appeals for clarification as to the affirmed findings.  Thereafter, Article 67, UCMJ, shall apply.  This is without prejudice to Appellant's right to resubmit any assignments of error in a subsequent petition for grant of review to this Court.



Tuesday, November 6, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0796/AF.  U.S. v. Antonyo T. ADAMS.  CCA 36226.  Review granted on the following issue:

 

WHETHER THE COURT-MARTIAL CONVENED BY SPECIAL ORDER AB-12 HAD PROPER JURISDICTION WHEN THAT ORDER DID NOT TRANSFER MEMBERS APPOINTED BY PRIOR ORDERS AB-01, AB-07, AND AB-09, BUT MEMBERS NAMED IN THOSE ORDERS NONETHELESS SAT AS MEMBERS OF APPELLANT'S COURT-MARTIAL.

 

  Briefs will be filed under Rule 25.




Monday, November 5, 2007


ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0379/NA.  U.S. v. David A. CZACHOROWSKI.  CCA 200400735.  Review granted on the following issues:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ADMITTING INTO EVIDENCE AAC'S HEARSAY STATEMENTS IN VIOLATION OF MIL.R.EVID. 807 AND THE SIXTH AMENDMENT OF THE CONSTITUTION.


WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ADMITTING INTO EVIDENCE AAC'S HEARSAY STATEMENTS IN VIOLATION OF THE NOTICE REQUIREMENT OF MIL.R.EVID. 807.

 

Briefs will be filed under Rule 25.

 



Thursday, November 1, 2007

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0028/MC.  U.S. v. Aaron A. MARTINEZ.  CCA 200301483.  Upon further consideration of the granted issue, 65 M.J. 278-79 (C.A.A.F. 2007), the Court notes that military judges are presumed to know the law and follow it absent clear evidence to the contrary, United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007), including the principle that each offense and the evidence supporting that offense must stand on its own.  See United States v. Southworth, 50 M.J. 74, 76-78 (C.A.A.F. 1999).  In this case, Appellant has not rebutted that presumption.  Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 



Thursday, October 4, 2007


 
ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-6004/AR.  U.S. v. Eric LOPEZ de VICTORIA.  CCA 20061248. On consideration of the petition for grant of review of the decision of the Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), said petition is hereby granted on the following issue raised by Appellant and modified by the Court:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE NOVEMBER 2003 CONGRESSIONAL AMENDMENT TO ARTICLE 43(b) OF THE UCMJ APPLIES RETROACTIVELY TO OFFENSES COMMITTED BEFORE THE EFFECTIVE DATE OF THE AMENDMENT THAT WERE NOT TIME-BARRED AS OF THAT DATE, BUT THAT WERE TIME-BARRED UNDER THE PREVIOUS STATUTE OF LIMITATIONS WHEN RECEIVED BY THE OFFICER EXERCISING SUMMARY COURT-MARTIAL JURISDICTION.

 

and the following issue specified by the Court:

 

WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER   EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867(a)(2), (3) (2000), FROM DECISIONS OF THE COURTS OF CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS COURT’S DECISION IN UNITED STATES v. TUCKER, 20 M.J. 52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

 

Appellant and Appellee shall file briefs under Rule 25 on the specified issue no later than October 19, 2007.  Reply briefs shall be filed no later than 5 days after the filing of the opposing party’s brief.

 

The government and defense appellate divisions of the Air Force and the Coast Guard are invited to file amicus curiae briefs on the specified issue under Rule 26 no later than October 19, 2007.

 

Requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

 

The above-entitled action shall be called for hearing at 9:00 a.m. on the 14th day of November, 2007.  Each side will be allotted 30 minutes to present oral argument.  The hearing will cover both the assigned and specified issues.

 

No. 07-6005/NA.  U.S. v. Joshua M. MICHAEL.  CCA 200700120.  On consideration of the petition for grant of review of the decision of the Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2000), said petition is hereby granted on the following issue raised by the Appellant:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY LIMITED THIS COURT’S HOLDING IN UNITED STATES v. CONKLIN, 63 M.J. 333 (C.A.A.F. 2006), BY FINDING THAT “IT APPEARS THE MILITARY JUDGE APPLIED AN ERRONEOUS STANDARD OF REASONABLENESS” IN SUPPRESSING THE SEARCH OF APPELLANT’S LAPTOP COMPUTER.

 

and the following issue specified by the Court:

 

WHETHER AND HOW THIS COURT HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER INTERLOCUTORY APPEALS UNDER EITHER ARTICLE 67(a)(2) OR (3), UCMJ, 10 U.S.C. § 867(a)(2),

(3) (2000), FROM DECISIONS OF THE COURTS OF CRIMINAL APPEALS UNDER ARTICLE 62, UCMJ, 10 U.S.C. § 862 (2000), AND WHETHER, AS A MATTER OF LAW, THIS COURT’S DECISION IN UNITED STATES v. TUCKER, 20 M.J. 52, 53 (C.M.A. 1985), SHOULD BE OVERTURNED.

 

Appellant and Appellee shall file briefs under Rule 25 on the specified issue no later than October 19, 2007.  Reply briefs shall be filed no later than 5 days after the filing of the opposing party’s brief.

 

The government and defense appellate divisions of the Air Force and the Coast Guard are invited to file amicus curiae briefs on the specified issue under Rule 26 no later than October 19, 2007.

 

Requests for enlargements of time will not be granted in the absence of extraordinary circumstances.

 

The above-entitled action will be called for hearing on the 14th day of November, 2007.  This hearing will commence immediately following the hearing in United States v. Lopez de Victoria, 07-6004/AR.  Each side will be allotted 30 minutes to present oral argument.  The hearing will cover both the assigned and specified issues.

 



Tuesday, October 02, 2007

 

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

 

No. 07-0302/MC.  U.S. v. Joseph M. MANCILLAS.  CCA 200401950.  On consideration of Appellant’s motion to attach additional documents to the record and his supplement to his petition for grant of review, it appears there may be an issue relating to Appellant’s mental responsibility at the time of the alleged offenses that has not been fully considered and addressed by the United States Navy-Marine Corps Court of Criminal Appeals.  Appellant was the subject of three Rule for Courts-Martial R.C.M. 706 boards prior to entering pleas.  According to the Court of Criminal Appeals, a first board, dated October 18, 2002, found Appellant “accountable for his actions.”  However, “based upon inconsistencies in this report, and the fact that a psychiatrist was not involved” a second board was ordered.  According to the Court of Criminal Appeals, the results of this second board were “inconclusive.”  As a result, a third board was ordered.  The R.C.M. 706 board report of December 24, 2002, states that the reporting psychiatrist for this third board was “unable to assess PFC Mancillas’ mental responsibility at the time of the alleged offense.”

On November 6, 2003, Appellant entered pleas of guilty to certain offenses and was found guilty in accordance with his pleas.  No resolution of the apparent issue of Appellant’s mental responsibility appears in the record.

After the Court of Criminal Appeals rendered its decision, a fourth sanity board was held.  The sanity board memo dated April 4, 2007, states that Appellant was “unable to appreciate and differentiate between right and wrong” at the time of the offenses.  Appellant has alleged the following errors regarding his mental capacity and competency in his petition supplement filed with this Court:

I.   WHETHER THE LOWER COURT ERRED BY NOT RESOLVING WHETHER APPELLANT HAD THE MENTAL CAPACITY FOR THE OFFENSES CHARGED PURSUANT TO RULE FOR COURT COURTS-MARTIAL 706.

II.  WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY DENYING APPELLANT’S REQUEST FOR A MENTAL COMPETENCY HEARING UNDER R.C.M. 706 AND BY FINDING APPELLANT MENTALLY COMPETENT TO STAND TRIAL WITHOUT PROPER DOCUMENTATION.

III. WHETHER THE LOWER COURT ERRED BY FINDING THAT APPELLANT’S TRIAL DEFENSE COUNSEL WAS EFFECTIVE AS SHE DID NOT PLACE ON THE RECORD THE MEDICAL DOCUMENTATION OF COMPETENCY CERTIFICATION AND DID NOT ENSURE THAT APPELLANT WAS MENTALLY COMPETENT AT THE TIME THE OFFENSES WERE COMMITTED.

Accordingly, it is ordered that Appellant’s motion to attach is granted with respect to the sanity board memo of April 4, 2007, and the medical evaluation board memo of April 10, 2007, but is denied in all other respects; and

That the record is remanded to the United States Navy-Marine Corps Court of Criminal Appeals for consideration of the issues set forth above and such other issues as may be raised by Appellant concerning his mental condition, and for such action thereon as may be deemed appropriate by that court.  This order is without prejudice to Appellant’s future rights under Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000).

RYAN, Judge, with whom ERDMANN, Judge, joins (dissenting):

 

I do not agree with the Court’s characterization of the record.  Appellant’s Rule for Courts-Martial (R.C.M.) 706 boards were conducted to ensure that he was competent to stand trial.  Appellant’s mental responsibility at the time of the offenses was never in question and, to the extent it was reviewed in the course of the R.C.M. 706 boards, the record reflects that, as the Court of Criminal Appeals noted, and contrary to the per curiam Order’s suggestion, the second board concluded “that (1) the appellant did not suffer from a major mood or thought disorder at the time of the offenses; (2) that he had the capacity ‘to understand the nature of his actions at the time of the offenses . . . .’”  United States v. Mancillas, NMCCA No. 200401950, 2006 CCA LEXIS 339, at *3, 2006 WL 4573010, at *1 (N-M. Ct. Crim. App. Dec. 18, 2006) (unpublished).  The results were “inconclusive” only with respect to Appellant’s competency to stand trial.  And it was that issue that the third board reviewed, and that issue that was fully and finally resolved by the Federal Medical Center.  That mental responsibility was never an issue is further confirmed by the fact that Appellant raised only the issue of his competency to stand trial in his initial appeal to the Court of Criminal Appeals.  Mancillas, 2006 CCA LEXIS 339, at *6, *12, 2006 WL 4573010, at *2, *5.

 

Prior to entering and accepting Appellant’s guilty plea, the defense counsel, the government, and the military judge undertook exhaustive efforts to ensure he was competent to stand trial.  The record supports the conclusions that Appellant was competent at the time of trial, that he understood the nature of the offenses for which he was charged, and that he knew they were wrong when he undertook them.  Mental responsibility was not at issue, nothing in the plea colloquy raised a mental responsibility defense, and it is not at all clear why the record can be undermined even in theory by a post hoc R.C.M. 706 board conducted several years later.  Consequently, I am not persuaded that a fourth sanity board conducted forty-one months after trial merits further consideration by the Court of Criminal Appeals.  I dissent.




Tuesday, September 25, 2007

 
ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0544/AR.  U.S. v. Kevin L. McILWAIN.  CCA 20040095.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE, IN A TRIAL BEFORE A COURT-MARTIAL PANEL ERRED IN DENYING A MOTION FOR RECUSAL AFTER STATING THAT WHILE SHE BELIEVED SHE COULD REMAIN IMPARTIAL IN A TRIAL BY MEMBERS, SHE WOULD RECUSE HERSELF IF SHE WERE THE TRIER OF FACT.  Compare, e.g., Parenteau v. Jacobson, 586 N.E.2d 15, 18 (Mass.  App. Ct. 1993) with Walberg v. Israel, 766 F.2d 1071, 1076 (7th Cir. 1985).

 

Briefs will be filed under Rule 25.

 

No. 07-0639/MC.  U.S. v. David M. BROOKS.  CCA 200501266.  Review granted on the following issue:

 

WHETHER APPELLANT'S SIXTH AMENDMENT RIGHT TO COUNSEL HAS BEEN VIOLATED WHERE, WHILE IN CONFINEMENT, BRIG PERSONNEL MONITORED HIS PHONE CONVERSATIONS WITH APPELLATE DEFENSE COUNSEL AND SEIZED HIS PRIVILEGED CORRESPONDENCE.

 

Briefs will be filed under Rule 25.

 

No. 07-0685/AF.  U.S. v. Michael RODRIGUEZ.  CCA 36455.  Review granted on the following issue:

 

SINCE TWO OF THREE ALLEGED USES OF MARIJUANA WERE BASED ON UNCORROBORATED CONFESSIONS AND APPELLANT'S CONVICTION FOR USING MARIJUANA ON DIVERS OCCASIONS WAS ACCORDINGLY TRANSFORMED INTO A SINGLE USE CONVICTION BY THE AFCCA, WHETHER UNITED STATES v. SEIDER AND UNITED STATES v. WALTERS PROHIBIT AFFIRMING EVEN A SINGLE USE OF MARIJUANA BECAUSE THE MEMBERS COULD HAVE BASED THEIR "ON DIVERS OCCASIONS" CONVICTION ON THE TWO UNCORROBORATED CONFESSIONS AND FOUND APPELLANT NOT GUILTY OF THE ALLEGED USE NOW USED BY THE AFCCA TO AFFIRM THE SPECIFICATION.

 

Briefs will be filed under Rule 25.

 

No. 07-0690/AF.  U.S. v. Rodger J. DAY.  CCA 36423.  Review granted on the following issue:

 

WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF CHARGE I AND ITS SPECIFICATION, FALSE OFFICIAL STATEMENT, ARTICLE 107, UCMJ, WHERE THE STATEMENTS WERE NOT "OFFICIAL" STATEMENTS.



Monday, September 24, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0908/NA.  U.S. v. Gilbert T. ALLENDE.  CCA 200001872.  Review granted on the following issues:

 

WHETHER THE LOWER COURT PROPERLY EVALUATED PREJUDICE AFTER IT FOUND THAT THE TRIAL COUNSEL ERRONEOUSLY AUTHENTICATED THE RECORD.

 

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHERE 2,484 DAYS ELAPSED BETWEEN THE ADJOURNMENT OF APPELLANT'S TRIAL AND COMPLETION OF ARTICLE 66, UCMJ, REVIEW, INCLUDING 734 DAYS IN PANEL.

 

Briefs will be filed under Rule 25.

 

No. 07-0527/MC.  U.S. v. Joey M. GALLAGHER.  CCA 200400151.  Review granted on the following issues:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE SEARCH OF APPELLANT'S CLOSED BRIEFCASE, LOCATED IN THE GARAGE OF APPELLANT'S HOME, DID NOT EXCEED THE SCOPE OF HIS WIFE'S CONSENT TO SEARCH THE AREAS OF THE HOME OVER WHICH SHE HAD ACTUAL OR APPARENT AUTHORITY.

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT THE EVIDENCE OF THE CONTENT OF APPELLANT'S COMPUTER HARDDRIVE WAS PROPERLY ADMITTED AND WAS NOT THE PRODUCT OF AN UNLAWFUL SEARCH.

 

Briefs will be filed under Rule 25.

 

No. 07-0575/MC.  U.S. v. Christopher A. GREATTING.  CCA 200401945.  Review granted on the following issues:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO RECUSE HIMSELF AFTER HE PRESIDED OVER FOUR COMPANION CASES AND WHEN HE PROVIDED SENTENCING ADVICE TO THE STAFF JUDGE ADVOCATE REGARDING THE FACTS ASSOCIATED WITH APPELLANT'S COURT-MARTIAL.

 

WHETHER THE LOWER COURT ERRED BY FAILING TO DISAPPROVE THE BAD-CONDUCT DISCHARGE WHEN SUCH RELIEF MIGHT HAVE REMEDIED THE VIOLATION OF APPELLANT'S RIGHT TO SPEEDY POST-TRIAL PROCESSING.

 

     Briefs will be filed under Rule 25.



Thursday, September 13, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0508/MC.  U.S. v. Allen S. HARRIS.  CCA 200500452.  Review granted on the following issue:

 

WHETHER THE LOWER COURT ERRED BY FAILING TO AWARD APPELLANT ADDITIONAL CONFINEMENT CREDIT OR OTHER MEANINGFUL RELIEF DUE TO THE UNDULY RIGOROUS BRIG CONDITIONS AND THE IMPROPER DENIAL OF NECESSARY MEDICAL CARE.

 

Briefs will be filed under Rule 25.

 



Friday, September 7, 2007

CERTIFICATES FOR REVIEW FILED

 

No. 07-5004/AF.  U.S. v. Michael C. MILLER.  CCA 2007-02.  The Judge Advocate General of the Air Force requests action be taken with respect to the following issue:

 

            WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN GRANTING THE DEFENSE MOTION TO SUPPRESS        ALL EVIDENCE RESULTING FROM APPELLEE’S URINALYSIS TEST.



Thursday, September 6, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 05-0159/AR.  U.S. v. Jeremy T. WILCOX.  CCA 20000876.  Review granted on the following specified issue:

 

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A DETERMINATION THAT APPELLANT'S STATEMENTS TO AN UNDERCOVER NCIS AGENT ON THE INTERNET WERE EITHER DETRIMENTAL TO GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES WHEN THE MILITARY NEXUS REFLECTED IN THE RECORD CONSISTED OF APPELLANT'S REFERENCE TO BEING A "US ARMY PARATROOPER," AND HIS STATEMENTS RAISE A SIGNIFICANT ISSUE UNDER THE FIRST AMENDMENT.

 

Briefs will be filed under Rule 25.

 

No. 07-0555/AR.  U.S. v. Daniel ORTIZ.  CCA 20040672.  Review granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL WHEN THE MILITARY JUDGE EXCLUDED THE PUBLIC FROM THE COURTROOM WHEN THE VICTIM, BP, TESTIFIED ON THE MERITS.

 

Briefs will be filed under Rule 25.

 

No. 07-0612/AR.  U.S. v. Brandon M. DACUS.  CCA 20050404.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S GUILTY PLEAS TO SPECIFICATIONS 1 AND 2 OF CHARGE I, AGGRAVATED ASSAULT, WHERE APPELLANT DID NOT ADMIT FACTS THAT OBJECTIVELY SUPPORTED HIS PLEAS DURING THE PROVIDENCE INQUIRY, AND INTRODUCED EVIDENCE THAT IS SUBSTANTIALLY INCONSISTENT WITH HIS PLEAS DURING PRESENTENCING.

 

Briefs will be filed under Rule 25.

 



Tuesday, August 28, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  Review granted on the following issue:

 

WHETHER, IN LIGHT OF CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004), THE ARMY COURT OF CRIMINAL APPEALS COMMITTED REVERSIBLE LEGAL ERROR BY AFFIRMING THE ADMISSION OF TESTIMONY BY A SEXUAL ASSAULT NURSE EXAMINER, WHO SERVED AS A CONDUIT FOR THE INADMISSIBLE HEARSAY STATEMENTS OF AN ABSENT BUT AVAILABLE VICTIM.

 

      Briefs will be filed under Rule 25.




Friday, August 17, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0384/MC.  U.S. v. Anthony T. HALL.  CCA 200600805.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED IN STATING THAT APPELLANT HAD RECEIVED A DISHONORABLE DISCHARGE AT TRIAL, WHEN THE MEMBERS SENTENCED HIM TO A BAD-CONDUCT DISCHARGE, AND THE CONVENING AUTHORITY APPROVED ONLY A BAD-CONDUCT DISCHARGE.

 

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY JUDGE'S DECISION TO ALLOW, OVER DEFENSE OBJECTION, A NONEXPERT NCIS AGENT TO PROVIDE EXPERT TESTIMONY TO THE MEMBERS WAS HARMLESS, WHERE THIS WAS IN VIOLATION OF MILITARY RULE OF EVIDENCE 701(c), AND THE GOVERNMENT HAS CONCEDED THAT THIS TESTIMONY WAS BOTH MATERIAL TO ITS CASE AND WAS OF HIGH QUALITY.

 

Briefs will be filed under Rule 25 on Issue II only.

 



Thursday, August 16, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0221/MC.  U.S. v. Joseph M. REYNOSO.  CCA 200401465.  Review granted on the following issues:

 

DID A DEFENSE OBJECTION OF "LACK OF FOUNDATION" TO A SUMMARY DOCUMENT MOVED INTO EVIDENCE UNDER M.R.E. 1006 EITHER INCLUDE OR PRESERVE AN OBJECTION TO THE ADMISSIBILITY OF THE UNDERLYING EVIDENCE UPON WHICH THE SUMMARY WAS BASED?

 

WAS THE EVIDENCE UPON WHICH THE M.R.E. 1006 SUMMARY WAS BASED ADMISSIBLE AS AN EXCEPTION TO HEARSAY AND PROFFERED BY A COMPETENT WITNESS?

 

Briefs will be filed under Rule 25.

 

No. 07-0247/AF.  U.S. v. Dustin M. HART.  CCA 36253.  Review granted on the following issue:

 

WHETHER THE CHARGE AND SPECIFICATIONS SHOULD BE DISMISSED FOR LACK OF PERSONAL JURISDICTION.

 

Briefs will be filed under Rule 25.

 

No. 07-0269/AR.  U.S. v. Sean P. BRIGHT.  CCA 20020938.  Review granted on the following issue:

 

WHETHER THE EVIDENCE OF RAPE WAS LEGALLY INSUFFICIENT TO SUPPORT CONVICTION WHERE THE GOVERNMENT OFFERED NO EVIDENCE OF IMMEDIATE FORCE AND LACK OF CONSENT AT OR REASONABLY NEAR THE TIME THAT THE PROSECUTRIX, INTER ALIA, ARRANGED FOR OFF-BASE HOTEL ROOMS TO MEET APPELLANT, MADE HER OWN WAY TO HOTEL ROOMS TO ENGAGE IN SEXUAL INTERCOURSE WITH APPELLANT, SMOKED CIGARETTES AND DRANK BEER IN BED WITH APPELLANT, AND ORDERED PIZZA AND ATE IT IN BED WITH APPELLANT DURING HER MEETINGS WITH APPELLANT WHERE SHE AND APPELLANT ENGAGED IN SEXUAL INTERCOURSE.

 

Briefs will be filed under Rule 25.

 

No. 07-0322/CG.  U.S. v. Christopher M. UPHAM.  CCA 1235.  Review granted on the following issues:

 

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED IN APPLYING A CHAPMAN-TYPE HARMLESS-ERROR ANALYSIS AS OPPOSED TO A STRUCTURAL-TYPE ERROR ANALYSIS AFTER IT CONCLUDED THAT THE MILITARY JUDGE COMMITTED AN ERROR OF CONSTITUTIONAL DIMENSION WHEN HE INSTRUCTED THE MEMBERS THAT A PERSON WHO HAS ENGAGED IN UNINFORMED AND UNPROTECTED SEXUAL INTERCOURSE WHILE HIV POSITIVE HAS COMMITTED AN OFFENSIVE TOUCHING.

 

WHETHER, AFTER THE COAST GUARD COURT OF CRIMINAL APPEALS SET ASIDE A CONVICTION OF THE GREATER OFFENSE OF AGGRAVATED ASSAULT, THE COURT WAS PROHIBITED FROM AFFIRMING A CONVICTION OF THE LESSER INCLUDED OFFENSE OF ASSAULT CONSUMMATED BY A BATTERY WHERE BOTH PARTIES HAD AFFIRMATIVELY WAIVED ANY INSTRUCTION ON THE LESSER INCLUDED OFFENSE AND THE MILITARY JUDGE DID NOT INSTRUCT THE MEMBERS ON THE LESSER INCLUDED OFFENSE.

 

Briefs will be filed under Rule 25.

 

No. 07-0350/CG.  U.S. v. Tom K. HOLBROOK.  CCA 1251.  Review granted on the following issue:

 

WHETHER APPELLANT'S PLEA TO FRAUDULENT ENLISTMENT (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO ELICIT FACTS SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW HE LIED ABOUT A MATERIAL FACT RELEVANT TO HIS QUALIFICATIONS FOR ENLISTMENT.

 

Briefs will be filed under Rule 25.

 

No. 07-0436/MC.  U.S. v. Jose C. MIERGRIMADO.  CCA 200501128.  Review granted on the following issue:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION AT TRIAL TO INSTRUCT THE MEMBERS ON THE CLAIMED LESSER INCLUDED OFFENSE OF ATTEMPTED MANSLAUGHTER OVER THE ACCUSED'S OBJECTION.

 

      Briefs will be filed under Rule 25.



Wednesday, August 15, 2007

 

  ORDERS GRANTING PETITION FOR REVIEW

 
No. 07-0597/AF.  U.S. v. Manuela Del Carmen SCOTT.  CCA 36514.  Review granted on the following issue:

 

WHETHER THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS "NEW MATTER" NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A NEW CONVENING AUTHORITY ACTION IN THIS CASE.

 

  Briefs will be filed under Rule 25.

 



Tuesday, August 14, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0906/AF.  U.S. v. Samir S. CHRISTIAN.  CCA 35905.  Review granted on the following issues:

 

WHETHER APPELLANT'S CONVICTION FOR VIOLATING ARTICLE 125, UCMJ, BY ENGAGING IN SODOMY WITH RJM MUST BE SET ASIDE IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003), AND UNITED STATES v. ZACHARY, 63 M.J. 438 (C.A.A.F. 2006).

 

WHETHER APPELLANT'S GUILTY PLEA TO SPECIFICATION 2 OF CHARGE III WAS IMPROVIDENT BECAUSE THE MISTAKE OF FACT DEFENSE APPLIES TO THE OFFENSE OF KNOWINGLY VIDEOTAPING A MINOR ENGAGED IN ORAL SODOMY.

 

No briefs will be filed under Rule 25.

 

No. 06-0932/NA.  U.S. v. Javan R. GAINOUS.  CCA 200300953.  Review granted on the following issues specified by the Court:

 

WHETHER THE DICTA IN UNITED STATES v. ZACHARY, 63 M.J. 438, 442 (C.A.A.F. 2006), INDICATING THAT THE DEFENSE OF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE CRIME OF SODOMY WITH A CHILD, OVERRULED UNITED STATES v. STRODE, 43 M.J. 29, 31 (C.A.A.F. 1995) (STATING THAT DEFENSE OF MISTAKE OF FACT AS TO AGE WAS NOT AVAILABLE TO STRICT LIABILITY OFFENSE OF SODOMY).

 

IF MISTAKE OF FACT AS TO AGE IS A DEFENSE FOR THE OFFENSE OF SODOMY WITH A CHILD, WHETHER APPELLANT'S GUILTY PLEA TO THAT OFFENSE WAS PROVIDENT.

 

No briefs will be filed under Rule 25.

 



Friday, July 27, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0495/MC.  U.S. v. Amador NIETO, Jr.  CCA 200600977.  Review granted on the following issue:

 

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT COMMIT PLAIN ERROR WHEN HE PERMITTED THE TRIAL COUNSEL TO ASK HYPOTHETICAL VOIR DIRE QUESTIONS THAT PRESENTED THE MEMBERS WITH SUCH DETAILED FACTS ABOUT APPELLANT'S CASE THAT THE TRIAL COUNSEL WAS IN EFFECT COMMITTING THE MEMBERS TO RETURN A VERDICT OF GUILTY PRIOR TO THE PRESENTATION OF EVIDENCE, ARGUMENT, AND INSTRUCTIONS.

 

Briefs will be filed under Rule 25.

 



Wednesday, July 25, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0225/MC.  U.S. v. Michael E. MITCHELL.  CCA 200501185.  Review granted on the following issue raised by appellate defense counsel:

 

WHETHER APPELLANT'S GUILTY PLEA TO INDECENT ASSAULT AS A PRINCIPAL WAS IMPROVIDENT WHERE THE PROVIDENCE INQUIRY DOES NOT ESTABLISH THAT APPELLANT POSSESSED THE SPECIFIC INTENT TO GRATIFY HIS LUST OR SEXUAL DESIRES.

 

and the following issue specified by the Court:

 

WHETHER APPELLANT'S GUILTY PLEA TO DISTRIBUTING MARIJUANA WAS PROVIDENT WHEN APPELLANT TOLD THE MILITARY JUDGE THAT THE SUBSTANCE HE DISTRIBUTED WAS    NOT MARIJUANA.

 

Briefs will be filed under Rule 25.




Tuesday, July 17, 2007

 

CERTIFICATES FOR REVIEW FILED

 

No. 07-5003/AF.  U.S. v. Demond WEBB.  CCA 2007-01.  The Judge Advocate General, U.S. Air Force, requests that action be taken on the following issues:

 

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN GRANTING THE DEFENSE MOTION FOR NEW TRIAL  

WHETHER PRIOR TO AUTHENTICATION THE MILITARY JUDGE HAS THE AUTHORITY IN A POST-TRIAL ARTICLE 39(a) SESSION TO SET ASIDE A CONVICTION AND ORDER A NEW TRIAL AS A REMEDY FOR A DISCOVERY VIOLATION DISCOVERED POST-TRIAL

 



Thursday, July 12, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0386/CG.  U.S. v. Jesse C. HUNTER.  CCA 1232.  Review granted on the following issues:

 

WHETHER R.C.M. 705(c)(2)(D) PERMITS PRETRIAL MISCONDUCT TO FORM THE BASIS FOR A WITHDRAWAL FROM THE SENTENCING LIMITATION OF THE PRETRIAL AGREEMENT WHEN PRETRIAL MISCONDUCT, BY ITS VERY NATURE, CANNOT FALL WITHIN ANY PERIOD OF SUSPENSION AS REQUIRED BY R.C.M. 1109 SINCE THERE IS NO SENTENCE PRIOR TO TRIAL.

 

WHETHER APPELLANT'S PLEAS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO ENSURE THAT APPELLANT UNDERSTOOD THE MEANING AND EFFECT OF THE MISCONDUCT PROVISIONS IN THE PRETRIAL AGREEMENT, AND THE CONVENING  AUTHORITY SUBSEQUENTLY WITHDREW FROM THE SENTENCING LIMITATION PORTION OF THE PRETRIAL AGREEMENT BASED ON PRETRIAL MISCONDUCT.

 

   Briefs will be filed under Rule 25.



Thursday, June 28, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0229/NA.  U.S. v. Laprie D. TOWNSEND.  CCA 200501197. Review granted on the following issue:

 

     WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT'S CHALLENGE FOR CAUSE AGAINST   LIEUTENANT[B].

 

  Briefs will be filed under Rule 25.

 

No. 07-0553/NA.  U.S. v. Christopher A. BOLSINS.  CCA 200602408. Review granted on the following issue:

 

WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AFFIRMING A CLAUSE 2 (SERVICE DISCREDITING CONDUCT) OFFENSE UNDER ARTICLE 134, UCMJ, AFTER IT FOUND CHARGED CLAUSE 3 (CRIME AND OFFENSE NOT CAPITAL) OFFENSE TO BE IMPROVIDENT, ADDED AN ELEMENT TO THE OFFENSE IN CONTRAVENTION OF APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000), JONES v. UNITED STATES, 526 U.S. 227 (1999),AND SCHMUCK v. UNITED STATES, 489 U.S. 705 (1989).

 

  Briefs will be filed under Rule 25.

 



Tuesday, June 26, 2007


ORDERS GRANTING PETITION FOR REVIEW

  

No. 07-0407/AR.  U.S. v. Michael D. GLENN.  CCA 20051482.  Review granted on the following issue:

 

WHETHER APPELLANT'S PLEAS TO ALL CHARGES AND SPECIFICATIONS ARE NOT PROVIDENT BECAUSE THE MILITARY JUDGE DID NOT EXPLAIN THE DEFENSE OF LACK OF MENTAL RESPONSIBILITY TO APPELLANT, DID NOT SATISFY HERSELF THAT COUNSEL HAD EVALUATED THE VIABILITY OF THE DEFENSE, AND DID NOT ELICIT FACTS FROM APPELLANT THAT NEGATED THE DEFENSE.

 

Briefs will be filed under Rule 25.

 



Wednesday, June 20, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0833/AF.  U.S. v. John S. FREEMAN.  CCA 35822.  Review granted on the following issues:

 

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS APPELLANT'S CONFESSION WHERE THE CONFESSION WAS NOT FREELY AND VOLUNTARILY GIVEN.

 

     WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING THE DEFENSE REQUEST FOR THE        APPOINTMENT OF A FORENSICALLY-QUALIFIED EXPERT CONSULTANT.

 

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING EVIDENCE OF UNCHARGED MISCONDUCT AND BAD CHARACTER IN VIOLATION OF MILITARY RULE OF EVIDENCE 404(b).

 

  Briefs will be filed under Rule 25.

 

No. 07-0397/AF.  U.S. v. Steven M. CUCUZZELLA.  CCA 36280.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN ADMISSION OF RC'S STATEMENTS TO THE REGISTERED NURSE AND SOCIAL WORKER AS MEDICAL EXCEPTIONS TO HEARSAY.

 

  Briefs will be filed under Rule 25.

 



Friday, June 15, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0114/AR.  U.S. v. Anthony L. REED.  CCA 20030921.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN HIS FINDINGS OF FACT OR CONCLUSIONS OF LAW REGARDING UNLAWFUL COMMAND INFLUENCE.

 

Briefs will be filed under Rule 25.

 

No. 07-0135/MC.  U.S. v. Josh R. HARCROW.  CCA 200401923.  Review granted on the following issue:

 

WHETHER THE LOWER COURT ERRED BY FINDING THAT TWO VIRGINIA STATE FORENSIC LABORATORY REPORTS WERE NOT TESTIMONIAL HEARSAY UNDER CRAWFORD v. WASHINGTON, 541 U.S. 36 (2004).

 

Briefs will be filed under Rule 25.

 

No. 07-0194/AF.  U.S. v. Jeremy R. WALLACE.  CCA 36174.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO GRANT THE DEFENSE MOTION TO SUPPRESS THE RESULTS OF THE SEARCH OF APPELLANT'S PERSONAL COMPUTER IN LIGHT OF APPELLANT'S REVOCATION OF CONSENT, HIS SUBSEQUENT ACQUIESCENCE TO PRESSURE BY LAW ENFORCEMENT, AND THE INAPPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE TO THE FACTS.  SEE GEORGIA v. RANDOLPH, 547 U.S. 103 (2006).

 

Briefs will be filed under Rule 25.

 



Thursday, June 14, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0363/NA.  U.S. v. Kenneth R. FRANK.  CCA 200600894.  Review granted on the following issue: 

 

WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AMENDING THE SPECIFICATION OF THE CHARGE FROM A VIOLATION OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIME AND OFFENSE NOT CAPITAL) TO A VIOLATION OF ARTICLE 134, UCMJ, CLAUSE 1 (CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE) AND CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDED ELEMENTS TO THE OFFENSE IN CONTRAVENTION OF APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000), JONES v. UNITED STATES, 526 U.S. 227 (1999), AND SCHMUCK v. UNITED STATES, 489 U.S. 705 (1989).

 

No briefs will be filed under Rule 25.

 



Wednesday, June 13, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0199/AR.  U.S. v. Joshua P. NAVRESTAD.  CCA 20030335.  Review granted on the following issues:
 

WHETHER SENDING, VIA A CHAT SESSION, A HYPERLINK TO A YAHOO! BRIEFCASE CONTAINING IMAGES OF CHILD PORNOGRAPHY CONSTITUTES KNOWINGLY AND WRONGFULLY DISTRIBUTING CHILD PORNOGRAPHY IN INTERSTATE COMMERCE THROUGH THE INTERNET, IN VIOLATION OF 18 U.S.C. SECTION 2252A(a)(1) OR CLAUSE 1 OR 2 OF ARTICLE 134, UCMJ.

 

WHETHER UTILIZING A PUBLIC COMPUTER TO VIEW IMAGES OF CHILD PORNOGRAPHY CONTAINED IN A YAHOO! BRIEFCASE, AND ACCESSED VIA A HYPERLINK, SUFFICIENTLY SUPPORTS A CONVICTION FOR KNOWINGLY AND WRONGFULLY POSSESSING ELECTRONIC IMAGES OF CHILD PORNOGRAPHY IN VIOLATION OF CLAUSE 1 OR 2 OF ARTICLE 134, UCMJ.

 

Briefs will be filed under Rule 25.

 


 
Wednesday, June 6, 2007


ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0028/MC.  U.S. v. Aaron A. MARTINEZ.  CCA 200301483.  Review granted on the following issue:

 

IN VIEW OF THE PRINCIPLE THAT A MILITARY JUDGE IS PRESUMED TO KNOW AND APPLY THE LAW CORRECTLY, IN A CASE IN WHICH THE JUDGE SITTING ALONE, EVALUATED THE APPELLANT'S CREDIBILITY BASED UPON TWO SPECIFICATIONS LATER DISMISSED ON APPEAL, DID THAT DISMISSAL CREATE IMPROPER SPILLOVER IN THE JUDGE'S CREDIBILITY DETERMINATIONS REGARDING THE APPELLANT'S TESTIMONY AS TO THE REMAINING OFFENSES?

 

Briefs will be filed under Rule 25.

 

No. 07-0173/AR.  U.S. v. Darnyell R. RHOADES.  CCA 20040109.  Review granted on the following issue:

 

DID THE MILITARY JUDGE, IN GRANTING THE GOVERNMENT'S MOTION TO DISQUALIFY APPELLANT'S CIVILIAN COUNSEL ON THE BASIS OF AN ALLEGED VIOLATION OF THE ETHICS IN GOVERNMENT ACT (18 U.S.C. 207(a)(2)), DENY THE APPELLANT HIS SIXTH AMENDMENT RIGHT TO CIVILIAN COUNSEL OF HIS CHOICE?

 

Briefs will be filed under Rule 25.

 



Tuesday, June 5, 2007


ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0148/AR.  U.S. v. Jason A. DONNELLY.  CCA 20031026.  Review granted on the following issue:

 

WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AMENDING SPECIFICATIONS 2 AND 3 OF CHARGE I FROM VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIMES AND OFFENSES NOT CAPITAL) TO VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDS AN ELEMENT TO THE OFFENSES IN CONTRAVENTION OF APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000), JONES v. UNITED STATES, 526 U.S. 227 (1999), AND SCHMUCK v. UNITED STATES, 489 U.S. 705 (1989).

 

No briefs will be filed under Rule 25.

 



Monday, June 4, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0105/NA.  U.S. v. Esteban FALCON.  CCA 200401483.  Review granted on the following issues:

 

WHERE THE SERVICE COURTS OF CRIMINAL APPEALS ARE SPLIT ON WHETHER THE WALLACE-ALLBERY GAMBLER'S DEFENSE APPLIES TO WORTHLESS CHECK OFFENSES PROSECUTED UNDER ARTICLE 123a, UCMJ, DID THE LOWER COURT ERR WHEN IT HELD THAT THE DEFENSE APPLIES ONLY TO WORTHLESS CHECK OFFENSES PROSECUTED UNDER ARTICLE 134, UCMJ, BUT NOT TO WORTHLESS CHECK OFFENSES PROSECUTED UNDER ARTICLE 123a, UCMJ?

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S GUILTY PLEAS TO VIOLATING ARTICLE 123a, UCMJ, WITHOUT RESOLVING WHETHER APPELLANT HAD A PARTIAL MENTAL RESPONSIBILITY DEFENSE AS A RESULT OF HIS DIAGNOSIS AS A PATHOLOGICAL GAMBLER.

 



Wednesday, May 30, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0934/NA.  U.S. v. Walter S. STEVENSON.  CCA 200301272.  Review granted on the following issues:

 

WHETHER NCIS AND VA HOSPITAL PERSONNEL VIOLATED THE FOURTH AMENDMENT BY SEIZING APPELLANT'S BLOOD AND SEARCHING IT FOR DNA EVIDENCE WITHOUT PROBABLE CAUSE OR A SEARCH WARRANT ISSUED ON PROBABLE CAUSE?

 

IF THIS COURT SUPPRESSES THE EVIDENCE FROM THE WARRANTLESS SEARCH AND SEIZURE, DID THE LOWER COURT ERR BY FAILING TO ADDRESS OR SUPPRESS BLOOD AND DNA EVIDENCE GAINED BY A SEARCH WARRANT ISSUED ON TAINTED EVIDENCE AND MATERIAL MISREPRESENTATIONS?

 

Briefs will be filed under Rule 25.

 



Thursday, May 24, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0316/NA.  U.S. v. Dennis R. TOY.  CCA 200001418.  Review granted on the following issue:

 

WHETHER MIL.R.EVID. 317(a) INCORPORATES STATE STATUTES WHEN DETERMINING AN UNLAWFUL INTERCEPTION OF AN ORAL OR WIRE COMMUNICATION.

 

Briefs will be filed under Rule 25.

 



Thursday, May 03, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0263/AF.  U.S. v. John R. LARSON.  CCA 35934.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues: 

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT APPELLANT HAD NO REASONABLE EXPECTATION OF PRIVACY IN HIS GOVERNMENT COMPUTER DESPITE THIS COURT'S RULING IN UNITED STATES v. LONG, 64 M.J. 57 (C.A.A.F. 2006).

 

WHETHER THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AMENDMENT AND ARTICLE 27, UCMJ, WHEN HIS CIVILIAN DEFENSE COUNSEL, IN HIS OPENING STATEMENT, DURING FINDINGS, AND AGAIN IN CLOSING ARGUMENT, CONCEDED THE APPELLANT'S GUILT TO VARIOUS CHARGES AND SPECIFICATIONS.

 

Briefs will be filed under Rule 25.

 



Wednesday, May 02, 2007

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0053/NA.  U.S. v. Robert D. FELLS.  CCA 200500668.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER, IN LIGHT OF THIS COURT'S DECISION IN UNITED STATES v. ZACHARY, 63 M.J. 438 (C.A.A.F. 2006), THE COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT'S GUILTY PLEAS TO CONSENSUAL SODOMY WITH A PERSON UNDER THE AGE OF 16 AND INDECENT ACTS WITH A CHILD WHEN THE MILITARY JUDGE ERRONEOUSLY INFORMED APPELLANT THAT A MISTAKE OF FACT DEFENSE AS TO AGE CATEGORICALLY DID NOT APPLY TO THE SODOMY CHARGE, AND THAT BASED ON THIS COURT'S DECISION IN UNITED STATES v. STRODE, 43 M.J. 29 (C.A.A.F. 1995), THE DEFENSE DID NOT APPLY TO THE INDECENT ACTS CHARGE.

 

No briefs will be filed under Rule 25.



 UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 07-140

Friday, April 27, 2007


ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0079/AR. U.S. v. Rickie E. PARRISH. CCA 20020916.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS PROPERLY EXERCISED ITS FACTFINDING POWER UNDER ARTICLE 66(c), UCMJ, IN RESOLVING THE QUESTION OF WHETHER THE GOVERNMENT VIOLATED A MATERIAL TERM OF APPELLANT’S PRETRIAL AGREEMENT DESPITE CONFLICTING AFFIDAVITS.  

 
Briefs will be filed under Rule 25.    

 

No. 07-0096/AR.  U.S. v. Robert J. MEDINA.  CCA 20040327.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AMENDING SPECIFICATIONS 2 AND 3 OF CHARGE I FROM VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIMES AND OFFENSES NOT CAPITAL) TO VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDS AN ELEMENT TO THE OFFENSES IN CONRAVENTION OF  APPRENDI v. NEW JERSEY, 530 U.S. 466 (2000), JONES v. UNITED STATES, 526 U.S. 227 (1999), AND SCHMUCK v. UNITED STATES, 489 U.S. 705 (1989).

 

Briefs will be filed under Rule 25.

 



Tuesday, February 20, 2007

 

ORDERS GRANTING PETITION FOR REVIEW

No. 06-0870/AR. U.S. v. Alexander N. WILSON. CCA 20040227.  Review granted on the following issue:

WHETHER THE ARMY COURT ERRED BY AFFIRMING THE FINDINGS AND SENTENCE WHERE THE MILITARY JUDGE, IN ACCEPTING APPELLANT’S GUILTY PLEA TO SODOMY WITH A CHILD UNDER 16, INSTRUCTED APPELLANT THAT HIS HONEST AND REASONABLE MISTAKE OF FACT DID NOT CONSTITUTE A DEFENSE.

 

Briefs will be filed under Rule 25.  All government and defense appellate divisions are also invited to file amicus curiae briefs under Rule 26.   

 


 

Tuesday, August 22, 2006

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0571/AF.  U.S. v. Christopher S. BARRETT.  CCA 35790.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE'S FAILURE TO PROPERLY INSTRUCT THE MEMBERS IN FINDINGS AND HER SUBSEQUENT DECISION TO CONVENING A PROCEEDING IN REVISION MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIVE RIGHTS AND WAS CONTRARY TO THIS HONORABLE COURT'S HOLDINGS IN UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003), UNITED STATES v. THOMPSON, 59 M.J. 432 (C.A.A.F. 2004), UNITED STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), AND UNITED STATES v. AUGSPERGER, 61 M.J. 189 (C.A.A.F. 2005).

 

     Briefs will be filed under Rule 25.

 



Wednesday, March 29, 2006

 

ORDERS GRANTING PETITION FOR REVIEW
 

No. 05-0745/AR.  U.S. v. Richard L. TURNER.  CCA 20011100.  Review granted on the following issue:

 

WHETHER THE 444 DAY DELAY BETWEEN TRIAL AND THE CONVENING AUTHORITY TAKING ACTION FOR A 263 PAGE GUILTY PLEA RECORD OF TRIAL WARRANTS RELIEF.

 

     Briefs will be filed under Rule 25.

 



Thursday, March 24, 2005

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0778/AR.  U.S. v. Patrick S. MCDERMOTT, Jr.  CCA 20020837.  Review granted on the following issue:


WHETHER THE MILITARY JUDGE ERRED BY FAILING TO CONSOLIDATE SPECIFICATIONS 1 AND 2 OF THE ADDITIONAL CHARGE FOR FINDINGS WHERE APPELLANT USED ONE DRUG THAT WAS LACED WITH ANOTHER DRUG HE DID NOT KNOW HE WAS INGESTING.



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