450
E Street, Northwest
SCHEDULED HEARINGS
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Tuesday,
December 2, 2008
9:00 a.m.:
(Appellee)
(Appellant)
Counsel for Appellant:
Counsel for Appellee: Capt
Larry W. Downend,
Case Summary: GCM conviction of rape, extortion, assault
with a
deadly weapon, indecent acts, adultery, making a false official
statement,
larceny, disobeying a no-contact order, and communicating a threat. Granted issue questions 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,
NOTE: Counsel for each side will be allowed 20
minutes to present oral argument in this case.
Followed by:
(Appellee)
(Appellant)
Counsel for Appellant: LT Gregory W. Manz,
JAGC, USN
Counsel for Appellee: Col Louis J.
Puleo, USMC
Case
Summary: GCM conviction
of indecent
assault, adultery, and drunk and disorderly conduct. The Court of Criminal Appeals modified the
guilty
finding of indecent assault to indecent acts with another, and reduced
the
period of confinement from one year to six months. Granted issues
question: (1)
whether the lower court erred by affirming a lesser-included offense
based on a
theory of criminality not presented by the Government at trial; and (2)
whether
the lower court erred in reassessing Appellant’s sentence instead of
remanding
the case for a sentence rehearing.
NOTE: Counsel for each side will be allowed 20
minutes to present oral argument in this case.
Wednesday,
December 3, 2008
9:00 a.m.:
(Appellee)
(Appellant)
Counsel for Appellant: Capt Tiffany M. Wagner
Counsel for Appellee: Capt Naomi N.
Porterfield, USAF
Case
Summary: GCM conviction
of wrongful
transportation of a firearm, communicating threats, conspiracy to
commit
murder, impeding a trial, solicitation of murder, and attempted
conspiracy to
commit murder. Granted issue questions whether the lower
court erred when it found that a provision in Appellant’s pretrial
agreement to
“waive all waivable motions” was an express waiver that bars Appellant
from
asserting any claims of multiplicity or multiplication of charges on
appeal.
NOTE: Counsel for each side will be allowed 20
minutes to present oral argument in this case.
Followed by:
(Appellee)
(Appellant)
Counsel for Appellant: Capt Lance J. Wood,
USAF
Counsel for Appellee:
Case
Summary: GCM conviction
of cocaine
use. Granted issue
questions
whether the military judge erred in denying Appellant’s motion to
suppress his
hair test results.
NOTE: Counsel for each side will be allowed 20
minutes to present oral argument in this case.
Tuesday,
December 16, 2008
9:00 a.m.:
(Appellee)
(Appellant)
Counsel for Appellant: Capt Kathleena R.
Scarpato,
Counsel for Appellee: Maj Dana E.
Leavitt,
Case
Summary: GCM conviction
of use
and possession of marijuana with intent to distribute, obstruction of
justice,
reckless driving, assault, and fleeing apprehension. Granted issues
question: (1) 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 exception against the accused would also be inadmissible
under any
other exception to the hearsay rule) with United States v. Hayes, 861
F.2d
1225, 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; and (2) if the military judge abused her discretion in
admitting the
police drug seizure report, whether the error materially prejudiced
Appellant’s
substantial rights?
NOTE: Counsel for each side will be allowed 20
minutes to present oral argument in this case.
Followed by:
(Appellee)
(Appellant)
Counsel for Appellant: Capt Richard P. Pizur,
Counsel for Appellee:
Case
Summary: GCM conviction
of arson,
larceny unlawful entry, and burglary.
Granted issue questions 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.
NOTE: Counsel for
each side will be allowed 20 minutes to
present oral argument in this case.
Wednesday,
December 17, 2008
9:00 a.m.:
(Appellee)
(Appellant)
Counsel for Appellant: LT W.S. Stoebner, JAGC,
USN
Counsel for Appellee: Col Louis J. Puleo, USMC
Case
Summary: SPCM conviction
of larceny
of military property, and obstruction of justice. Granted issue questions 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.
NOTE: Counsel for each side will be allowed 20
minutes to
present oral argument in this case.
Followed by:
(Appellee)
(Appellant)
Counsel for Appellant: Maj Christian J.
Broadston, USMC
Counsel for Appellee: LT Elliot W.
Oxman, JAGC, USN
Case Summary: GCM conviction of possession of child
pornography, and
receiving child pornography in violation of 18 U.S.C. § 2252A. Granted
issue
questions 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.
NOTE: Counsel for
each side will be allowed 20
minutes to present oral argument in this case.