450
E Street, Northwest
SCHEDULED HEARINGS
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(Appellee)
(Appellant)
Counsel for Appellant: Gary Myers, Esquire
Counsel for Appellee: Maj John C. Johnson, USAF
Case
Summary: GCM conviction
of rape. Granted issues question: (I) in light of United States v. Miles,
58 M.J. 192 (C.A.A.F. 2003),
A.
whether
the military judge erred by not granting two defense challenges for
cause
against a member whose daughter had been raped five years earlier and a
member
who had frequent interaction with the alleged rape victim;
B.
whether
it is appropriate to apply waiver where the defense used its peremptory
challenge against one of the two members challenged for cause and,
during
clemency, made it clear that it would have used that peremptory
challenge on
the other challenged member but for the military judge's error;
C.
whether
- if waiver applies - trial defense counsel provided ineffective
assistance of
counsel by not properly preserving the challenges for cause.
(II) whether the military judge erred by
applying MRE
412 to suppress defense evidence of the alleged victim's motive to lie
and
prior sexual behavior with Appellant; (III) whether the military judge
erred by
denying a defense motion to suppress a written confession to the Air
Force
Office of Special Investigations (AFOSI) where - prior to an imminent
interrogation - Appellant used a third party to invoke his rights to
remain
silent and request counsel; (IV) whether the military judge erred by
not providing
the members a mistake-of-fact instruction where some evidence raised
the
affirmative defense but Appellant's counsel did not rely on that
theory; and
(V) whether the evidence is legally sufficient to convict Appellant of
rape
where the alleged victim claimed to sleep through the entire incident
even
though she was not drunk, drugged, or suffering from a sleep disorder.
NOTE: This case will
be heard at the
United States Air Force Academy, Colorado Springs,
(Appellee)
(Appellant)
Counsel for Appellant: LT
Brian L. Mizer, JAGC, USNR
Counsel for
Appellee: Maj Kevin C. Harris,
USMC
Case
Summary: GCM conviction
of making a false official statement, forcible sodomy with a child,
taking
indecent liberties with a child, and indecent acts with a child. Granted issues question: (I)
whether trial counsel committed
prosecutorial misconduct by (1) violating the military judge's orders
regarding
witness sequestration; (2) by improperly coaching the six-year-old
complaining
witness during her direct testimony; (3) by purposefully allowing other
witnesses to improperly coach the complaining witness during her direct
testimony; (4) by failing to be candid with the court-martial regarding
the
coaching of the witnesses; and (5) by failing to be candid with the
court-martial about notes passed from a prosecution witness during the
defense's case; (II) whether the military judge erred to the
substantial
prejudice of Appellant by admitting over defense objection, the
inadmissible
hearsay statements of the complainant witness; (III) whether the
military judge
erred to the substantial prejudice of Appellant by granting the
Government's
challenge for cause of Chief Electronics Technician DJA; (IV) whether
the Staff
Judge Advocate erred by failing to serve Appellant with a letter from
trial
counsel to the convening authority that negatively characterized
Appellant's
unsworn statement; (V) whether the evidence presented on the merits was
legally
insufficient to prove beyond a reasonable doubt that Appellant took
indecent
liberties with JK by watching pornographic movies with JK; and (VI)
whether
Appellant was denied due process of law where the completion of the
first level
of appellate review took more than six years.
NOTE: This case will
be heard at the
University of Denver Sturm College of Law,
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Rolando R. Sanchez, USMC
Counsel for Appellee:
LT Mark
H. Herrington, JAGC, USNR
Case Summary: GCM conviction of
violating a general order, maltreatment of a subordinate, making a
false
official statement, indecent assault, and indecent acts. Granted
issue questions whether the lower court erred when it determined that
the
military judge did not abuse his discretion by admitting evidence of
uncharged
misconduct in violation of Military Rule of Evidence 404(b) over
defense
objection.
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(Appellee)
(Appellant)
Counsel for Appellant: LT
Brian L. Mizer, JAGC,
USNR
Counsel for Appellee:
Maj Wilbur Lee, USMC
Case Summary: GCM conviction of conspiring
to commit assault, assault, assault consummated by a battery, and
disorderly
conduct.
Granted issues question: (I)
whether the Court of Criminal Appeals
erred by holding that there was no reasonable probability that the
result of
the proceeding would have been different but for defense counsel’s
ineffective
assistance in failing to object to the admission of various documents
in the
Appellant’s service record book; (II) whether the Court of Criminal
Appeals
erred by holding that Appellant was not materially prejudiced by the
military
judge’s plain error in admitting into evidence various documents in
Appellant’s
service record book; and (III) whether the Court of Criminal Appeals
erred by
holding that Appellant was not materially prejudiced by the military
judge’s
plain error in instructing the panel that it could sentence the
Appellant to a
dishonorable discharge.
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(Appellee)
(Appellant)
Counsel for Appellant: Maj John N. Page
III, USAF
Counsel for Appellee:
Capt Jefferson
E. McBride, USAF
Case Summary: GCM conviction of using,
possessing, and distributing marijuana. Granted issue
questions whether
the military judge erred in admitting evidence of uncharged misconduct
(pre-service drug use).
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(Appellee)
(Appellant)
Counsel for Appellant: Capt
Doug J. Choi,
Counsel for Appellee:
Capt
Michael Friess,
Case Summary: GCM conviction of desertion,
larceny, and forgery. Granted issue questions whether the Army
Court of Criminal Appeals erred by returning the case for a new
post-trial
recommendation and action to allow the convening authority to approve a
guilty
finding when that finding had been omitted from the initial post-trial
recommendation and action.
NOTE: Each side allotted 15
minutes to present oral
argument.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Richard A. Viczorek,
USMC
Counsel for Appellee:
LT TyQuili R. Booker, JAGC, USNR
Case Summary: GCM conviction of
rape, forcible sodomy and indecent acts with a child. Granted
issue questions whether the lower court erred by holding that it was
harmless
error beyond a reasonable doubt for the military judge during
sentencing to
admit Appellant’s prior court-martial conviction that was subsequently
reversed.
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(Appellee)
(Appellant)
Counsel for Appellant: LT
Richard H. McWilliams, JAGC,
USNR
Counsel for Appellee:
LT
Kathleen A. Helmann, JAGC,
USNR
Case Summary: GCM
conviction of carnal knowledge with a child, and indecent acts with a
child.
Granted issues
question: (I) whether
legally sufficient evidence was presented to prove the
offense of carnal knowledge, and (II) whether the lower court erred
when it ruled
that a military judge may administer an oath of truthful testimony to a
child
after the testimony is complete.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Scott T. Ayers,
Counsel for
Appellee: Capt Mason S. Weiss,
Case
Summary: GCM conviction
of conspiracy, making a false official statement, disposing of military
property, larceny of military property, forgery, obtaining cellular
phone
services under false pretenses, desertion, and using cocaine and
marijuana. Granted issues question: (I) whether the Army Court erred when it
concluded that there was no evidence of prosecutorial interference in
Appellant’s case, and as a result, Appellant was deprived of his Fifth
Amendment right to due process and Sixth Amendment right to compulsory
process;
and (II) whether Appellant’s trial defense counsel was ineffective when
he
failed to personally inquire why a material defense witness refused to
testify
after the witness spoke with the prosecutor, and after trial defense
counsel
was informed that the same witness had allegedly invoked his Fifth
Amendment
right against self-incrimination.
NOTE: This case
will be heard at the Washington College of Law,