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.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0703/AR.
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.
Tuesday,
January 13, 2009
APPEALS - SUMMARY DISPOSITIONS
No.
06-0178/AF.
Thursday,
December 18, 2008
APPEALS - SUMMARY
DISPOSITIONS
APPEALS - SUMMARY DISPOSITIONS
Monday,
December 15, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0749/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0594/MC.
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.
*
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
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.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0805/MC.
WHETHER
TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS CLOSING
Monday,
December 8, 2008
APPEALS - SUMMARY
DISPOSITIONS
Thursday,
November 20, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-6001/MC.
WHETHER
THE
Monday,
November 17, 2008
ORDERS GRANTING PETITION FOR REVIEW
No. 08-6006/MC.
APPEALS - SUMMARY DISPOSITIONS
ORDERS GRANTING
PETITION FOR REVIEW
No.
06-0591/AR.
WHETHER THE
Briefs will be
filed under
Rule 25.
No.
08-0596/AF.
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
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.
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.
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.
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0405/NA.
No.
08-0790/AR.
Thursday,
October 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 06-0299/AF.
No. 08-0750/AR.
* 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
No. 08-0589/AF.
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
Friday,
October 17, 2008
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
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
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.
WHETHER THE
MILITARY JUDGE ERRED IN NOT DISMISSING
CHARGE III AND ITS SPECIFICATION AS MULTIPLICIOUS WITH CHARGE I AND ITS
SPECIFICATION.
No.
08-0737/MC.
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
Thursday,
October 9, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 03-0390/AF.
No. 08-0578/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0376/MC.
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.
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.
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
September 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0674/AR.
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.
Thursday,
September 25, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0519/AR.
Wednesday,
September 24,
2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0495/NA.
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.
I.
WHETHER
THE
II. WHETHER THE
Briefs will be
filed under
Rule 25.
Friday,
September 19, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0602/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0409/NA.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0417/AR.
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.
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
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0518/AF.
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.
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,
Thursday,
September 4, 2008
APPEALS-SUMMARY DISPOSITIONS
No. 08-0335/NA.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
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.
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.
WHETHER THE
CRIMINALITY
NOT PRESENTED BY THE GOVERNMENT AT TRIAL.
WHETHER THE
Briefs
will be filed under Rule 25.
Wednesday,
August 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
September 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0674/AR.
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.
Thursday,
September 25, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0519/AR.
Wednesday,
September 24,
2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0495/NA.
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.
I.
WHETHER
THE
II. WHETHER THE
Briefs will be
filed under
Rule 25.
Friday,
September 19, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0602/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0409/NA.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0417/AR.
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.
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
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0518/AF.
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.
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,
Thursday,
September 4, 2008
APPEALS-SUMMARY DISPOSITIONS
No. 08-0335/NA.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
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.
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.
WHETHER THE
CRIMINALITY
NOT PRESENTED BY THE GOVERNMENT AT TRIAL.
WHETHER THE
Briefs
will be filed under Rule 25.
Wednesday,
August 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
September 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0674/AR.
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.
Thursday,
September 25, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0519/AR.
Wednesday,
September 24,
2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0495/NA.
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.
I.
WHETHER
THE
II. WHETHER THE
Briefs will be
filed under
Rule 25.
Friday,
September 19, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0602/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0409/NA.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0417/AR.
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.
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
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0518/AF.
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.
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,
Thursday,
September 4, 2008
APPEALS-SUMMARY DISPOSITIONS
No. 08-0335/NA.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
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.
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.
WHETHER THE
CRIMINALITY
NOT PRESENTED BY THE GOVERNMENT AT TRIAL.
WHETHER THE
Briefs
will be filed under Rule 25.
Wednesday,
August 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
September 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0674/AR.
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.
Thursday,
September 25, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0519/AR.
Wednesday,
September 24,
2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0495/NA.
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.
I.
WHETHER
THE
II. WHETHER THE
Briefs will be
filed under
Rule 25.
Friday,
September 19, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0602/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0409/NA.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0417/AR.
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.
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
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0518/AF.
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.
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,
Thursday,
September 4, 2008
APPEALS-SUMMARY DISPOSITIONS
No. 08-0335/NA.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
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.
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.
WHETHER THE
CRIMINALITY
NOT PRESENTED BY THE GOVERNMENT AT TRIAL.
WHETHER THE
Briefs
will be filed under Rule 25.
Wednesday,
August 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Wednesday,
August 13, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0348/MC.
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
WHETHER, AFTER
FINDING PREJUDICIAL ERROR, THE
Thursday,
August 7, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 08-0339/AF.
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.
WHETHER
THE
Briefs
will be filed under Rule 25.
Tuesday,
August 5, 2008
APPEALS - SUMMARY
DISPOSITIONS
Monday,
July 28, 2008
APPEALS - SUMMARY
DISPOSITIONS
Thursday,
July 24, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
July 15, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0145/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0448/NA.
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
Briefs will be
filed under
Rule 25.
Monday,
July 7, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No.
03-0629/AF.
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.
Thursday,
July 3, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 08-0474/AR.
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
Wednesday,
July 2, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0573/AR.
* It is directed
that the
promulgating order be corrected to reflect that the beginning date of
the
offense in the Specification of Charge
No. 08-6001/NA.
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.
WHETHER
THE
WHETHER
THE
Wednesday,
June 25, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0225/AR.
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.
Tuesday,
June 24, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0813/NA.
No.
08-0148/AF.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0173/AR.
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.
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.
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
Friday,
June 20, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0082/CG.
No. 08-0280/NA.
____________________
*
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.
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
Monday,
June 16, 2008
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0392/AR.
WHETHER,
AFTER FINDING A PROPER SIXTH AMENDMENT CONFRONTATION CLAUSE VIOLATION
IN THE
ADMISSION OF P. C.'S STATEMENTS, THE
Thursday,
June 12, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0020/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0900/MC.
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
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0213/NA.
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.
No.
08-0316/NA.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0200/NA.
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.
Friday,
May 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
04-0465/AF.
Thursday,
May 29, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 03-0688/NA.
Tuesday,
May 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Thursday,
May 22, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
May 13, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0169/MC.
Monday,
May 12, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
02-0334/AR.
No.
05-0528/MC.
Friday,
May 9, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0401/NA.
Wednesday,
May 7, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 05-0647/NA.
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.
Tuesday,
May 6, 2008
APPEALS - SUMMARY DISPOSITIONS
No. 05-0013/AR.
Thursday,
May 1, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0848/AF.
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.
WHERE
THE
Briefs
will be filed under Rule 25.
Tuesday,
April 29, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0283/MC.
WHETHER THE
MEMBERS ERRED WHEN THEY FOUND APPELLANT
GUILTY OF STEALING ‘MILITARY’ PROPERTY IN
Monday,
April 28, 2008
APPEALS-SUMMARY DISPOSITIONS
No.
08-0247/NA.
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.
No. 06-0918/MC.
No.
07-0600/NA.
No.
07-0601/MC.
No.
98-0497/NA.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0072/AF.
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.
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).
Tuesday,
April 22, 2008
CERTIFICATES FOR
REVIEW FILED
No.
08-5006/CG.
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
Wednesday,
April 16, 2008
APPEALS-SUMMARY DISPOSITIONS
No.
07-0148/AR.
Tuesday,
April 8, 2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0366/AR.
* It is directed
that the promulgating
order be corrected to reflect the convening authority’s action as
follows:
Wednesday,
April 2, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0813/NA.
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.
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.
Wednesday,
March 26, 2008
No. 08-0186/AF.
** 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.
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.
Thursday, March 20,
2008
APPEALS – SUMMARY DISPOSITIONS
No.
06-0793/AF.
No.
07-0696/MC.
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.
IF THIS COURT
DETERMINES THAT THE
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.
No.
06-0932/NA.
No.
07-0053/NA.
No.
07-0615/NA.
No.
08-0029/AR.
Tuesday, March 18,
2008
APPEALS – SUMMARY DISPOSITIONS
No.
07-0519/AR.
Monday, March 17, 2008
APPEALS – SUMMARY DISPOSITIONS
No.
07-0738/AF.
No.
08-0031/AF.
Thursday,
March 13, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0894/MC.
No. 08-0278/AR.
*
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.
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
No. 07-0856/AR.
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.
No. 07-0887/AF.
Friday,
February 15, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0765/NA.
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).
Wednesday,
February 13, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0759/AR.
WHETHER THE
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.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0465/AF.
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.
WHETHER THE
WHETHER THE
Briefs
will be filed under Rule 25.
No. 08-0031/AF.
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.
Wednesday,
February 6, 2008
APPEALS - SUMMARY DISPOSITIONS
No. 08-0084/NA.
__________________
* 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.
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.
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.
ORDERS GRANTING PETITION FOR REVIEW
No.
07-0870/AF.
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.
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."
Briefs
will be filed under Rule 25.
Friday,
January 25, 2008
APPEALS - SUMMARY
DISPOSITIONS
Wednesday,
January 23, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0720/AR.
No. 07-0812/AR.
Friday,
January 18, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0029/AR.
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.
APPEALS - SUMMARY DISPOSITIONS
No. 07-0875/AF.
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.
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.
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.
Thursday,
January 3, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0613/MC.
No. 07-0788/AR.
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.
_____________________
**
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.
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.
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
Monday,
December 17, 2007
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0253/NA.
Friday,
December 14, 2007
APPEALS - SUMMARY DISPOSITIONS
No. 07-0516/AR.
No. 07-0762/MC.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0615/NA.
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.
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.
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
Friday,
December 7, 2007
CERTIFICATES FOR
REVIEW FILED
No. 08-5003/AF.
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
Tuesday,
December 4, 2007
APPEALS-SUMMARY DISPOSITIONS
No. 04-0313/AF.
Friday,
November 30, 2007
CERTIFICATES FOR
REVIEW FILED
No.
08-5002/AF.
No. 07-0263/AF.
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
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
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.
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.
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.
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.
No. 07-0476/NA.
No. 07-0598/NA.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0346/AR.
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.
WHETHER THE
Briefs
will be filed under Rule 25.
No. 07-0482/MC.
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.
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.
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.
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
Briefs
will be filed under Rule 25.
Wednesday,
November 14, 2007
No. 07-0787/MC.
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.
Wednesday,
November 7, 2007
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
November 6, 2007
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0796/AF.
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.
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.
Thursday,
October 4, 2007
No. 07-6004/AR.
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.
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.
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.
Tuesday,
September 25, 2007
ORDERS
GRANTING PETITION FOR REVIEW
No. 07-0544/AR.
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.
Briefs
will be filed under Rule 25.
No. 07-0639/MC.
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.
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.
Monday,
September 24, 2007
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0908/NA.
WHETHER
THE
WHETHER
THE
Briefs will be
filed under
Rule 25.
No. 07-0527/MC.
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.
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
Thursday,
September 13, 2007
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0508/MC.
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.
Thursday,
September 6, 2007
ORDERS GRANTING PETITION FOR REVIEW
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.
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.
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.
WHETHER,
IN LIGHT OF CRAWFORD v. WASHINGTON, 541
Friday,
August 17, 2007
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0384/MC.
WHETHER
THE
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.
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.
WHETHER THE
CHARGE AND SPECIFICATIONS SHOULD BE DISMISSED
FOR LACK OF PERSONAL JURISDICTION.
Briefs
will be filed under Rule 25.
No. 07-0269/AR.
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.
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.
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.
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.
Wednesday,
August 15, 2007
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.
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.
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
No
briefs will be filed under Rule 25.
Friday,
July 27, 2007
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0495/MC.
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.
WHETHER
APPELLANT'S GUILTY PLEA TO
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.
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.
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.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0229/NA.
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.
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
Briefs
will be filed under Rule 25.
Tuesday,
June 26, 2007
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0407/AR.
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.
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0833/AF.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0114/AR.
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.
WHETHER
THE LOWER COURT ERRED BY FINDING THAT TWO VIRGINIA STATE FORENSIC
LABORATORY
REPORTS WERE NOT TESTIMONIAL HEARSAY UNDER CRAWFORD v.
Briefs
will be filed under Rule 25.
No. 07-0194/AF.
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
Briefs
will be filed under Rule 25.
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0363/NA.
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
No
briefs will be filed under Rule 25.
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0199/AR.
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.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0028/MC.
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
Briefs
will be filed under Rule 25.
No. 07-0173/AR.
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.
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
No
briefs will be filed under Rule 25.
Monday,
June 4, 2007
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0105/NA.
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.
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
Briefs
will be filed under Rule 25.
Thursday,
May 24, 2007
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0316/NA.
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.
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
No. 07-0053/NA.
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.
DAILY
JOURNAL
No.
07-140
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0079/AR.
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.
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
Briefs will be
filed under
Rule 25.
Briefs will be
filed under
Rule 25. All government and defense
appellate divisions are also invited to file amicus curiae briefs under
Rule
26.
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0571/AF.
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.
No. 05-0745/AR.
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.
ORDERS GRANTING PETITION FOR REVIEW
No.
04-0778/AR.
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.
Home Page | Opinions & Digest | Daily Journal | Public Notice of Hearings