450
E Street, Northwest
SCHEDULED HEARINGS
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(Appellee/Cross
Appellant) (Appellant/Cross-Appellee)
Counsel for
Appellant/Cross-Appellee: LT Jason S.
Grover,
JAGC, USN
Counsel for Appellee/Cross-Appellant: Capt
Wilbur Lee, USMC
Case
Summary: GCM conviction of attempted murder, carrying a
concealed weapon,
premeditated murder, aggravated assault, communicating a threat, and
obstructing justice. Certified issues
question: (I) whether the Navy-Marine
Corps Court of Criminal Appeals erroneously applied a heightened
standard of
review in determining that the military judge abused his discretion by
granting
the Government’s challenge for cause against a court member; (II)
whether the
Navy-Marine Corps Court of Criminal Appeals improperly considered a
post-trial
affidavit from a court member in determining that the military judge
abused his
discretion by granting the Government’s challenge for cause against
him; and
(III) whether the Navy-Marine Corps Court of Criminal Appeals erred
when it set
aside both the findings and sentence, rather than the sentence alone,
as a
remedy for the military judge’s excusal of the court member. And the following granted issues:
(I) whether the lower court found error in
the military judge's failure to sequester three Government witnesses
but held
that the error did not prejudice the Appellant.
Did the lower court properly apply the test for prejudice under United
States v. Langston, 53 M.J. 335 (C.A.A.F. 2000) and United
States v. Spann,
51 M.J. 89 (C.A.A.F. 1999)? (II) whether the lower court found that the
military judge used an incorrect legal test in granting a Government
challenge
for cause because a member might have "difficulty" in voting for a
death sentence. Did the lower court err
in nonetheless concluding that the military judge did not abuse his
discretion
in granting the challenge for cause? and (III) after the lower court
found
multiple occasions of prosecutorial misconduct in the court-martial,
did it err
in determining that the Appellant was not prejudiced by the
prosecutorial
misconduct?
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(Appellee)
(Appellant)
Counsel for Appellant: John
B. Wells, Esquire
Counsel for Appellee: Capt
Glen R. Hines, Jr., USMC
Case Summary: GCM conviction of indecent assault. Granted issue questions whether the military judge erred in not dismissing the charge and specification because the Appellant relied to his detriment on an agreement for immunity.
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(Appellee)
(Appellant)
Counsel for Appellant: Maj
Anniece Barber, USAF
Counsel for Appellee: Maj
Jin-Hwa L. Frazier, USAF
Case Summary: GCM
conviction of dishonorable
failure to maintain funds. Granted
issue questions whether Appellant’s guilty pleas to several electronic
“check
card” transactions under the specification of the second Additional
Charge were
improvident.
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(Appellee)
(Appellant)
Counsel for Appellant: Capt
Eric D. Noble,
Counsel for Appellee: Capt
Michael D. Wallace,
Case Summary: GCM
conviction of making a
false official statement, unpremeditated murder, and assault a child
under the
age of 16.
Granted issue questions whether the Army
Court of Criminal Appeals erred in reassessing Appellant’s sentence to
two
years confinement and a bad-conduct discharge for a single
specification of making
a false official statement to an investigator.
NOTE: Counsel for each side will be allowed 15
minutes to present oral argument in this case.
(Appellee)
(Appellant)
Counsel for Appellant: LT
Anthony Yim, JAGC, USNR
Counsel for Appellee: LT
TyQuili R. Booker, JAGC, USNR
Case Summary: SPCM
conviction of hazing and
assault.
Specified issue questions whether a duty to
intervene arises for purposes of aider and abettor liability when a
superior
witnesses the commission of an offense by or against a service member
in his
chain of command.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Rolando R. Sanchez, USMC
Counsel for Appellee: LT Mark H. Herrington, USMC
Case Summary: GCM conviction
of rape and assault. Granted issue
raised by appellate defense counsel questions:
whether the
lower court erred by holding that it was harmless error for the
military judge
to have ruled that if Appellant were to put into evidence his character
of
peacefulness then the Government would have the right to put into
evidence the
pornographic pictures for impeachment purposes.
And the following issues specified by the Court:
(I) whether the United States Navy-Marine
Corps Court of Criminal Appeals erred in determining that Appellant was
not
denied his due process right to speedy post-trial and appellate review
of his
court-martial conviction in light of the 644-day period from trial to
convening
authority’s action, the 146-day period from that action to docketing
the record
at the Court of Criminal Appeals, and the 1440-day period during which
the case
was pending at the Court of Criminal Appeals; (II) whether the delay in
the
post-trial and appellate review of Appellant’s court-martial conviction
is so
excessive as to give rise to a presumption of prejudice, and if so,
what is the
effect of that prejudice? See United
States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); and (III) whether the
United
States Navy-Marine Corps Court of Criminal Appeals abused its
discretion by
denying relief under Article 66(c), Uniform Code of Military Justice,
10 U.S.C.
§ 866(c) (2000), by holding that such sentence appropriateness relief
“should
only be granted under the most extraordinary of circumstances,” and by
concluding “there is nothing so extraordinary about this case that
merits the
exercise of our Article 66(c) powers.”
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(Appellee)
(Appellant)
Counsel for Appellant: Capt
John S. Fredland, USAF
Counsel for Appellee: Maj Matthew S. Ward, USAFR
Case
Summary:
GCM conviction of committing indecent acts
upon a child. Granted issue questions whether the military judge erred
when he admitted evidence that Appellant engaged in sexual acts with
another
female under the age of 16 where (A) the alleged acts occurred
subsequent to
the charged acts, and (B) the evidence admitted was of such an unfairly
prejudicial nature as to contribute to the members arriving at a
verdict on an
improper basis.
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(Appellee)
(Appellant)
Counsel for Appellant: Capt
Kimberly A. Quedensley, USAF
Counsel for Appellee: Capt
Jefferson E. McBride, USAF
Case
Summary: SPCM
conviction of AWOL and missing movement through design.
Specified issues question: (I)
whether Appellant’s guilty plea to being
absent from his place of duty at which he was required to be and to his
absence
being terminated by apprehension was provident; and (II) whether the
Air Force Court
of Criminal Appeals improperly increased Appellant’s sentence by
approving a
two-thirds forfeiture of pay at the E-4 rate rather than at the E-1
rate.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Todd N. George,
Counsel for Appellee: Capt
Michael C. Friess,
Case Summary: SPCM
conviction of willfully disobeying a lawful command. Granted issue
personally asserted by Appellant questions whether the order that
Appellant
submit to an anthrax vaccination on
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(Appellee)
(Appellant)
Counsel for Appellant: LT
Brian L. Mizer, JAGC, USNR
Counsel for Appellee: Maj
Kevin C. Harris, USMC
Case Summary: SPCM
conviction of willful disobedience of a
superior commissioned officer. Granted issues
question: (I) whether the order directing Appellant to
receive
anthrax vaccine absorbed on March 29, 2000, was unlawful; and (II)
whether
Appellant’s due process right to timely review of his appeal has been
denied.