NEW GRANTS AND SUMMA9RY DISPOSITIONS
(Last
Updated 2/4/10)
Cases
that have been decided will be removed from this page at the end of the
term.
Tuesday,
February 2, 2010
APPEALS - SUMMARY
DISPOSITIONS
Monday,
February 1, 2010
APPEALS - SUMMARY
DISPOSITIONS
Wednesday,
January 27, 2010
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
09-0795/MC.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell, 68
M.J. 79, 80 (C.A.A.F. 2009) (Effron, C.J., concurring in the result).
BAKER, Judge
(concurring in the result):
Friday,
January 22, 2010
APPEALS-SUMMARY DISPOSITIONS
No. 09-5005/AF.
The record of
trial is returned to the Judge
Advocate General of the Air Force for remand to the Court of Criminal
Appeals
for a new review under Article 66, UCMJ, 10 U.S.C. § 866. Thereafter, Article 67, UCMJ, 10 U.S.C. §
867
shall apply.
Thursday,
January 21, 2010
APPEALS - SUMMARY
DISPOSITIONS
No. 10-0001/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0822/AR.
WHETHER THE ARMY
COURT ERRONEOUSLY AFFIRMED APPELLANT'S SENTENCE WHICH INCLUDED A
BAD-CONDUCT
DISCHARGE WHERE APPELLANT RECEIVED A VALID HONORABLE DISCHARGE FROM THE
Friday,
January 15, 2010
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0283/MC.
No. 08-0307/AF.
No. 08-0779/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0401/NA.
WHETHER
THE LOWER COURT ERRED IN HOLDING THAT THERE WAS NOTHING IMPERMISSIBLE
IN THE
MILITARY
JUDGE
ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR TESTIMONY IN
VIOLATION OF
MILITARY RULE OF EVIDENCE 702.
WHETHER
THE LOWER COURT
DENIED APPELLANT DUE PROCESS WHEN IT DENIED HIM RELIEF DUE TO EXCESSIVE
POST-TRIAL PROCESSING DELAY AND DENIED HIS SUPPLEMENTAL ASSIGNMENTS OF
ERROR.
Briefs
will be filed under Rule 25.
No. 09-0729/MC.
WHETHER
THE COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT'S CONVICTION
FOR
ATTEMPTING TO ENTICE A MINOR TO ENGAGE IN ILLEGAL SEXUAL ACTIVITY, IN
VIOLATION
OF 18 U.S.C. SECTION 2422(b), WHERE THE RECORD OF TRIAL FAILED TO SHOW
THAT
APPELLANT TOOK THE "SUBSTANTIAL STEP" NECESSARY FOR AN ATTEMPT
CONVICTION UNDER THE STATUTE.
Briefs
will be filed under Rule 25.
No. 09-0754/AF.
WHETHER
THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING
CRIMINAL
OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A
PURELY
MILITARY OFFENSE.
Briefs
will be filed under Rule 25.
Tuesday,
January 5, 2010
APPEALS - SUMMARY DISPOSITIONS
No. 10-0024/MC.
WHETHER
THE DECISION OF THE UNITED STATES NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS IS AMBIGUOUS AS TO WHETHER THE AFFIRMED SENTENCE
INCLUDED
FORFEITURE OF ALL PAY AND ALLOWANCES.
The decision of the United
States
Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings
but set
aside as to sentence. The record of
trial is returned to the Judge Advocate General of the Navy for remand
to the
United States Navy-Marine Corps Court of Criminal Appeals for
clarification as
to the affirmed sentence. Thereafter
Article 67, UCMJ, shall apply.
ORDERS GRANTING
PETITION FOR REVIEW
No. 10-0013/AF.
WHETHER THE
MILITARY JUDGE ERRED IN
FINDING APPELLANT'S ADDITIONAL URINALYSES CONDUCTED PURSUANT TO UNITED
STATES
v. BICKEL, 30 M.J. 277 (C.M.A. 1990), WERE FOR A PERMISSIBLE
PURPOSE.
Briefs will be
filed under Rule 25.
CERTIFICATES FOR REVIEW FILED
No. 10-5001/NA.
I.
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
ERRONEOUSLY HELD
THAT THE DUTY IMPOSED ON SAILORS BY CHIEF OF NAVAL OPERATIONS
INSTRUCTION
5350.4C TO NOTIFY THEIR COMMANDING OFFICER OF AN ARREST BY CIVIL
AUTHORITY FOR
AN ALCOHOL-RELATED OFFENSE COMPELLED A TESTIMONIAL COMMUNICATION THAT
WAS
INCRIMINATING.
II. WHETHER THE
NAVY-MARINE CORPS COURT
OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT NO EXCEPTION TO THE FIFTH
AMENDMENT
SELF-INCRIMINATION CLAUSE, INCLUDING THE REGULATORY EXCEPTION DEVELOPED
IN CALIFORNIA
v. BYERS, APPLIES TO THE REPORTING REQUIREMENT IN CHIEF OF NAVAL
OPERATIONS
INSTRUCTION 5350.4C.
Appellee shall
file an answer to Appellant’s
brief on or before January 15, 2010.
Appellant may file a reply no later than 5 days after the filing
of
Appellee’s answer.
Wednesday,
December 30, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
09-0755/AF.
WHETHER THE
MILITARY JUDGE
ABUSED HER DISCRETION WHEN SHE DENIED THE DEFENSE REQUEST FOR AN EXPERT
CONSULTANT IN THE FIELD OF BLOOD SPATTER.
Briefs will be
filed under
Rule 25.
Wednesday,
December 16, 2009
APPEALS
- SUMMARY DISPOSITIONS
No. 08-0651/AR.
No. 09-0821/AR.
* It is directed
that the
promulgating order be corrected to reflect that the absence termination
date in
Specification 2 of the Charge is 21 May 2006.
No. 10-0121/NA.
Friday,
December 4, 2009
Thursday,
December 3, 2009
APPEALS - SUMMARY DISPOSITIONS
No. 09-0783/NA.
*
It is directed that the promulgating order be corrected to reflect that
Additional Charge II is a violation of Article 134, UCMJ.
No. 10-0010/AR.
The
court-martial promulgating order correctly states the charge, pleas,
and
findings, but it fails to explain that the specifications were modified
to
conform to the pleas. Thus, the order is
misleading as to the true findings.
Accordingly,
it is ordered that said petition is hereby granted; that the
court-martial
promulgating order be corrected to include that the military judge
modified
Specifications 4 and 5 of Additional Charge II to conform to
Appellant’s pleas
of guilty to the lesser included offense of wrongful appropriation; and
that
the decision of the United States Army Court of Criminal Appeals is
affirmed.
No. 10-0091/AR.
*
It is
noted that the decision of the United States Army
Court of Criminal Appeals stated that Appellant was convicted of three
specifications of conspiracy to commit larceny and two specifications
of
larceny of property other than military property of a value of $500.00
or less,
when he was in fact only convicted of one specification of each.
Monday,
November 30, 2009
APPEALS - SUMMARY
DISPOSITIONS
Friday,
November 20, 2009
APPEALS - SUMMARY DISPOSITIONS
No. 10-0041/NA.
*It is directed
that the promulgating
order be corrected to reflect that Charge II was a violation of Article
125 and
Charge III was a violation of Article 134.
Thursday,
November 19, 2009
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0738/NA.
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0759/NA.
WHETHER
THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE DID NOT DECLARE SUA
SPONTE
THAT THE OFFENSES OF RECEIVING AND POSSESSING THE SAME CHILD
PORNOGRAPHY WERE
MULTIPLICITOUS.
Thursday,
October 29, 2009
ORDERS GRANTING PETITION FOR REVIEW
No.
09-0441/AF.
WHETHER, IN LIGHT
OF CRAWFORD
v. WASHINGTON, 541 U.S. 36 (2004), APPELLANT WAS DENIED MEANINGFUL
CROSS-EXAMINATION OF GOVERNMENT WITNESSES IN VIOLATION OF HIS SIXTH
AMENDMENT
RIGHT OF CONFRONTATION WHEN THE MILITARY JUDGE DID NOT COMPEL THE
GOVERNMENT TO
PRODUCE ESSENTIAL BROOKS LAB OFFICIALS WHO HANDLED APPELLANT'S URINE
SAMPLES
AND INSTEAD ALLOWED THE EXPERT TOXICOLOGIST TO TESTIFY TO
NON-ADMISSIBLE
HEARSAY. SEE MELENDEZ-DIAZ v.
Briefs will be
filed under
Rule 25.
No.
09-0660/AF.
I.
WHETHER, IN LIGHT OF MELENDEZ-DIAZ v.
MASSACHUSETTS, 557
II.
WHETHER TRIAL DEFENSE COUNSEL'S STATEMENT
THAT HE DID NOT OBJECT TO THE ADMISSION OF THE DRUG LABORATORY REPORT
AT TRIAL
WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF FORFEITED,
WHETHER
ADMISSION OF THE REPORT CONSTITUTED PLAIN ERROR.
Briefs will be
filed under
Rule 25.
Wednesday,
October 28, 2009
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0596/AF.
No.
09-0581/AF.
I.
WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED IN DENYING THE UNITED STATES’ REQUEST THAT THE COURT
ORDER AN
AFFIDAVIT FROM APPELLEE’S ORIGINAL MILITARY DEFENSE COUNSEL.
II. WHETHER AN
“IMPRESSION”
LEFT BY CIVILIAN DEFENSE COUNSEL THAT APPELLEE MAY NOT HAVE TO REGISTER
AS A SEX
OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION AND LED TO
INEFFECTIVE
ASSISTANCE OF COUNSEL.
We conclude that
the United States Air Force Court
of Criminal Appeals erred in denying the Government’s request that the
lower
court order an affidavit from Appellee’s original military defense
counsel. We remand to the lower court to
reconsider Issue II after receiving this affidavit.
“It is
black-letter law that a military accused has
a privilege to prevent the unauthorized disclosure of his confidential
communications to his attorney.”
A servicemember
therefore waives his attorney-client
privilege by claiming ineffective assistance of counsel.
As the effectiveness of counsel is “‘measured
by the combined efforts of the defense team as a whole,’” an
ineffective
assistance of counsel claim waives privilege with respect to counsel
generally,
and not just that counsel against whom the claim is levied. United States v. McConnell, 55 M.J.
479, 481 (C.A.A.F. 2001) (quoting United States v. Boone, 42
M.J. 308,
313 (C.A.A.F. 1995)). Further, an
ineffective assistance of counsel claim waives all “‘matters reasonably
related
to that’” claim. United States v.
Lewis, 42 M.J. 1, 5 (C.A.A.F. 1995) (citation omitted). However, to protect against the disclosure of
privileged communications, or those communications not reasonably
related to a
claim of ineffectiveness, counsel may present questions of application
to a
military judge for a relatedness determination, and, if necessary,
direction
prior to disclosing information.
In this case, Mr.
Connors, as civilian defense
counsel, and Capt George, as assistant military defense counsel,
represented
Appellee during the Article 32, UCMJ, 10 U.S.C. § 832 (2006),
investigation. On July 28, 2005,
Appellee released Capt George from representation and Capt Logan was
detailed
to Appellee as new assistant defense counsel.1
This replacement occurred before Appellee
offered to enter into a pretrial agreement and before the court-martial
convened. Nonetheless, Capt George
represented Appellee during pretrial proceedings. The
military judge at the hearing conducted
pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R.
411 (1967)
(DuBay hearing), found that “[s]ex offender registration was a
key
concern for [Appellee] in regards to the indecent assault
specifications.” However, the DuBay
military judge
declined to hear any testimony regarding Capt George on the grounds
that:
[T]his [DuBay]
hearing is limited to the
issue of ineffective assistance of counsel by the trial defense counsel. The court doesn’t see it as an issue that is
extending to this prior [assistant defense counsel (ADC)] that was
released
before trial. Given that Airman Rose
does not wish to waive privilege in regards to his prior ADC, as the
court sees
it, this court has no authority to pursue any testimony or information
from
this prior ADC.
We disagree with
the DuBay military judge’s
conclusion. Capt George’s representation
of Appellee relates to the ineffective assistance of counsel claim in
at least
three ways. First, if sex offender
registration was a central concern to Appellee, one might reasonably
anticipate
that the matter was raised with Appellee’s original assistant military
defense
counsel. Second, whether registration
was raised, how it was raised, and in what manner Appellee was advised
about
registration, if at all, might better establish the full context of Mr.
Connors’s advice (or lack of advice) and the context in which Appellee
responded to the military judge’s questions regarding the performance
of
counsel during the plea colloquy. Third,
any preliminary discussion of sex offender registration could also
inform the
lower court’s judgment with respect to the application of the prejudice
prong
in Strickland v. Washington, 466 U.S. 668, 694 (1984). See Hill v. Lockhart, 474
Appellee
emphasizes that Capt George was not a
member of the trial defense team at the point in the court-martial
proceedings
at which Appellee alleges that Mr. Connors engaged in ineffective
assistance of
counsel. Thus, according to Appellee,
requiring submission of an affidavit from Capt George in this case
could open
the floodgates to allow affidavits on ineffective assistance of counsel
claims
from everyone involved in the case.
However, substantive and procedural safeguards protect against
this
concern. First, only that information
reasonably related to the ineffective assistance of counsel claims is
subject
to disclosure. Second, such disclosure
need not be automatic in the absence of waiver, but rather is subject
to review
and supervision by a court.
EFFRON,
Chief Judge, with whom ERDMANN, Judge, joins (dissenting):
The Government
had an opportunity at a court-ordered
factfinding hearing to move for production of an affidavit from
Appellee’s
original defense counsel. The Government
failed to file such a motion. The
majority now would provide the Government with a belated opportunity to
engage
in additional factfinding. For the
reasons set forth below, I respectfully dissent.
During the
initial review of this case at the Air
Force Court of Criminal Appeals, Appellee contended that he had
received
ineffective assistance of counsel at his court-martial in response to
his
inquiries concerning the relationship between a guilty plea and sex
offender
registration. The court determined that
it could not resolve Appellee’s claim without a post-trial hearing to
examine
what advice Appellee received regarding sex offender registration. United States v. Rose, No. ACM 36508,
slip op. at 1 (A.F. Ct. Crim. App. Sept. 7, 2007) (DuBay order). The court ordered a hearing under United
States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), instructing a
military judge to hear testimony and examine evidence to resolve
outstanding
issues of fact.
At the DuBay
hearing, the military judge
raised the issue of whether Appellee’s first defense counsel, Captain
(Capt)
George, would testify. She noted that
Appellee had not waived the attorney-client privilege, see
Military Rule
of Evidence (M.R.E.) 502, and stated that in view of the privilege,
Capt George
would not testify at the DuBay hearing.
The Government had filed no motion requesting the appearance of
Capt
George, and it filed no brief or memorandum of law on the subject of
privilege. The only explanation for the
military judge’s privilege inquiry appears in her findings, which note
that
before the hearing, the Government “expressed a desire to explore”
whether Capt
George advised Appellee regarding sex offender registration. United States v. Rose, No. ACM 36508,
slip op. at 1 (A.F. Ct. Crim. App. Jan. 11, 2008) (setting out findings
following DuBay hearing) [hereinafter DuBay Findings]. The record does not reveal when or in what
manner the Government expressed this desire, and there is no motion on
the
record.
After
determining that Capt George would not
testify, the DuBay judge invited trial counsel to share “any
comments or
anything you’d like to add on that issue” of privilege.
Trial counsel replied “No, Your Honor,”
raising no objection to the DuBay judge’s ruling.
The Court of
Criminal Appeals did not abuse its
discretion when it denied the Government’s motion for an affidavit from
Capt
George. The DuBay procedure
exists to provide a forum for investigating and resolving post-trial
factual
disputes. See United States v.
Ginn, 47 M.J. 236, 243-44 (C.A.A.F. 1997) (discussing the value of DuBay
hearings in light of limited appellate factfinding capabilities). The Court of Criminal Appeals ordered a DuBay
hearing in this case to determine what advice Appellee received from
his attorneys. See United
States v. Baker, 58
M.J. 380, 387 (C.A.A.F. 2003) (ordering DuBay hearing to review
questions of fact surrounding ineffective assistance of counsel claim). If the Government believed it was necessary
to have the testimony of Capt George to amplify the factual record, the
proper
time to make a motion and litigate the issue of privilege was at the DuBay
hearing, not following the oral argument in the subsequent appeal. The DuBay hearing presented the
Government with an opportunity to litigate Capt George’s role in this
dispute. The Government relinquished
this opportunity. The Court of Criminal
Appeals was not obligated to allow the Government to expand the
post-trial
factual record seven months later. Under
these circumstances, I respectfully dissent.
ORDERS GRANTING PETITION FOR REVIEW
No.
09-0589/AR.
I.
WHETHER
THE MILITARY JUDGE ERRED IN CONCLUDING THAT NO SOLDIER AT FORWARD
OPERATING
BASE (FOB) LOYALTY HAD A REASONABLE EXPECTATION OF PRIVACY IN ANY
REGARD.
II. WHETHER THE MILITARY JUDGE ERRED IN DENYING A
MOTION TO SUPPRESS APPELLANT'S EXTERNAL HARD DRIVE AND PASSWORD
PROTECTED
LAPTOP WHEN THE COMMANDER WHO ORDERED THE SEIZURE OF THE EQUIPMENT
IMMEDIATELY
SEARCHED THE EQUIPMENT UPON SEIZURE, DEMONSTRATING THAT HE WAS
PERFORMING LAW
ENFORCEMENT FUNCTIONS AND WAS NOT NEUTRAL AND DETACHED WHEN SEIZING THE
ITEMS.
III. WHETHER THE
DOCTRINE OF INEVITABLE DISCOVERY IS APPLICABLE WHEN THERE ARE NO
INDEPENDENT
POLICE ACTIVITIES, OR TESTIMONY OR EVIDENCE OF ROUTINE POLICE
PRACTICES, THAT
WOULD HAVE INEVITABLY RESULTED IN DISCOVERY, AND NO OTHER EXCEPTION TO
THE
FOURTH AMENDMENT APPLIES.
IV. WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED IN CONCLUDING THAT PROBABLE CAUSE EXISTED TO SUPPORT THE SEARCH
AUTHORIZATION OF APPELLANT'S LAPTOP COMPUTER AND DETACHABLE HARD DRIVE.
Briefs will be
filed under
Rule 25.
No.
10-0030/AF.
WHETHER THE
MILITARY JUDGE'S
DENIAL OF APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT A WITNESS
AGAINST HIM
WAS HARMLESS ERROR WHEN THE JUDGE PROHIBITED APPELLANT FROM
DEMONSTRATING THAT
HIS WIFE, THE ALLEGED RAPE VICTIM, HAD A MOTIVE TO FABRICATE THE ISSUE
OF
CONSENT BASED ON HER EXTRAMARITAL ROMANTIC RELATIONSHIP THAT GAVE HER
AN
INCENTIVE TO EITHER GET APPELLANT OUT OF THE PICTURE OR PROTECT HER
EXTRAMARITAL RELATIONSHIP.
Briefs will be
filed under
Rule 25.
1 Both Capt George and Capt Logan have since
separated from military service.
Wednesday,
October 21, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0870/AF.
I.
WHETHER THE AIR FORCE COURT ERRED BY REFUSING TO VACATE ITS
RULING IN LIGHT OF THE
ACTIONS OF
THE CHIEF JUDGE REGARDING THE APPOINTMENT OF HIS REPLACEMENT AFTER HE
HAD
RECUSED HIMSELF.
II.
WHETHER THE AIR FORCE COURT ERRED BY BASING ITS SENTENCE
DISPARITY
III. WHETHER THE
AIR FORCE COURT ERRED BY DENYING
APPELLANT'S MOTION TO COMPEL PRODUCTION OF E-MAILS SENT BETWEEN THE
CHIEF JUDGE
AND APPELLATE GOVERNMENT COUNSEL ABOUT THIS CASE FOLLOWING THE CHIEF
JUDGE'S RECUSAL.
IV.
WHETHER
APPELLANT'S DUE PROCESS RIGHT TO REASONABLY PROMPT APPELLATE REVIEW WAS
DENIED
BY THE DELAY IN THIS APPEAL ARISING FROM THE AIR FORCE COURT'S
PROCESSING OF
THIS
APPEAL DURING ITS INITIAL REVIEW.
Briefs
will be filed under Rule 25.
No. 10-0020/AF.
WHETHER
APPELLANT'S PLEA TO INDECENT EXPOSURE WAS PROVIDENT.
Thursday,
October 15, 2009
APPEALS - SUMMARY
DISPOSITIONS
Friday,
October 9, 2009
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0417/AR.
Thursday,
October 8, 2009
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0642/AF.
I.
WHETHER THE AIR
FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT THE POST-TRIAL
PROCESSING TIME OF 560 DAYS WAS HARMLESS BEYOND A REASONABLE DOUBT.
II.
WHETHER APPELLANT
WAS DENIED PLENARY REVIEW WITH THE ASSISTANCE OF APPELLATE COUNSEL WHEN
THE
AFCCA REVIEWED AND AFFIRMED THIS CASE WITHOUT A SUBSTANTIVE PLEADING ON
HIS
BEHALF BY HIS APPELLATE DEFENSE COUNSEL.
Thursday,
October 1, 2009
APPEALS - SUMMARY
DISPOSITIONS
Wednesday,
September 30, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-0720/MC.
WHETHER
THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED EVIDENCE OF
FILE
NAMES FOUND ON APPELLANT'S COMPUTER THAT WERE SUGGESTIVE OF HAVING
CONTAINED
CHILD PORNOGRAPHY BUT WHOSE ACTUAL CONTENT WAS UNKNOWN, ALLOWING THE
GOVERNMENT
TO ARGUE APPELLANT'S PROPENSITY OR MOTIVE TO COMMIT SODOMY OR INDECENT
ACTS
WITH A MINOR.
Briefs
will be filed under Rule 25.
CERTIFICATES FOR REVIEW FILED
No.
10-6001/MC.
I.
WHETHER A “REPORTER’S PRIVILEGE”
APPLIES
IN MILITARY COURTS-MARTIAL UNDER THE FIRST AMENDMENT TO THE
CONSTITUTION OF THE
UNITED STATES AND MILITARY RULE OF EVIDENCE 501(a)(1).
II. WHETHER A “REPORTER’S PRIVILEGE” APPLIES IN
MILITARY COURTS-MARTIAL UNDER MILITARY RULE OF EVIDENCE 501(a)(4) AS A
PRINCIPLE OF COMMON LAW GENERALLY RECOGNIZED IN THE TRIAL OF CRIMINAL
CASES IN
THE UNITED STATES DISTRICT COURTS PURSUANT TO RULE 501 OF THE FEDERAL
RULES OF
EVIDENCE.
III. WHETHER THE
MILITARY JUDGE ABUSED
HIS DISCRETION IN APPLYING A “REPORTER’S PRIVILEGE” UNDER MILITARY RULE
OF
EVIDENCE 501(a)(4) AS THE BASIS FOR QUASHING A GOVERNMENT SUBPOENA FOR
CBS’S NONBROADCAST
AUDIO-VIDEO “OUTTAKES” OF AN INTERVIEW WITH THE ACCUSED THAT WERE
OTHERWISE DISCOVERABLE
UNDER RULE FOR COURTS-MARTIAL 703.
Further
action on the certificate shall be held in abeyance pending the Court’s
final
action on the motion.
Wednesday,
September 23, 2009
APPEALS - SUMMARY DISPOSITIONS
No.
09-0539/AR.
* The
Army Court of Criminal Appeals’ order correcting the promulgating order
is
vacated. It is directed that the
promulgating order be corrected by deleting the word “less” in
Specification 3
of Charge II and substituting therefore the word “more.”
Tuesday,
September 22, 2009
APPEALS - SUMMARY DISPOSITIONS
No.
05-0159/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
09-0519/NA.
I.
WHETHER APPELLANT'S PLEAS ARE PROVIDENT WHERE
THE DEFERRED/WAIVED FORFEITURE PROVISIONS OF THE PRETRIAL AGREEMENT
ALLEGEDLY
WERE NOT FULFILLED.
II. WHETHER TRIAL
DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FOR
ALLEGEDLY
FAILING TO SET UP AN ALLOTMENT FOR APPELLANT IN ACCORDANCE WITH THE
PRETRIAL
AGREEMENT.
Thursday,
September 17, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-0523/AF.
I.
WHETHER APPELLANT
WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
II. WHETHER THE
LOWER COURT ABUSED ITS DISCRETION IN FAILING TO GRANT
APPELLANT'S REQUEST FOR CM'S MENTAL HEALTH RECORDS FROM
Tuesday,
September 15, 2009
APPEALS - SUMMARY
DISPOSITIONS
Thursday,
September 3, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-0458/AF.
WHETHER THE
MILITARY JUDGE ERRED IN DENYING THE DEFENSE
MOTION TO SUPPRESS APPELLANT'S ORAL AND WRITTEN STATEMENTS BASED ON A
VIOLATION
OF ARTICLE 31, UCMJ.
WHETHER
THE FACTS CHARGED IN THE SPECIFICATION ARE SUFFICIENT AS A MATTER OF
LAW TO
SUPPORT A CHARGE FOR SOLICITATION OF INDECENT LIBERTIES WITH A CHILD
UNDER
ARTICLE 134, UCMJ, WHERE THE PERSON SOLICITED WAS THAT CHILD.
Wednesday,
September 2, 2009
APPEALS - SUMMARY
DISPOSITIONS
No.
09-0728/AF.
*
It is noted that the decision of the United States Air Force Court of
Criminal
Appeals incorrectly stated that Appellant was tried by a general
court-martial. In fact, as the prefatory
information of that decision correctly indicates, this was a special
court-martial.
No.
09-0778/AF.
WHETHER THE
AFFIRMED
FORFEITURE OF PAY WAS IN VIOLATION OF RULE FOR COURTS-MARTIAL
1003(b)(2) WHERE
IT WAS NOT STATED IN A WHOLE DOLLAR AMOUNT.
The
decision of
the United States Air Force Court of
Criminal Appeals is affirmed as to findings and only so much of the
sentence as
provides for a bad-conduct discharge, confinement for six months,
forfeiture of
$898.00 pay per month for six months, and a $1,000.00 fine.
ORDERS GRANTING PETITION FOR REVIEW
No.
09-0535/NA.
I.
WHETHER
THE LOWER COURTS MISREAD THE SCIENTER AND NATIONAL SECURITY ELEMENTS OF
THE
ESPIONAGE ACT.
II. WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION IN REJECTING AS IRREGULAR APPELLANT'S PROFFERED GUILTY PLEA
TO A
VIOLATION OF ARTICLE 133.
III. WHETHER THE
EVIDENCE OF THE CIRCUMSTANCES UNDER WHICH AN ACCUSED ACTED, INCLUDING
HIS
MOTIVE, IS RELEVANT TO A CHARGE UNDER ARTICLE 133.
Briefs will be
filed under
Rule 25.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0215/NA.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND
THAT
APPELLANT WAS NOT DENIED HIS RIGHT TO A FAIR TRIAL DESPITE THE MILITARY
JUDGE'S
(1)EXHIBITION OF BIAS, AFTER TRIAL, IN ANNOUNCING HIS PERSONAL DISTASTE
FOR
BOTH HOMOSEXUALITY AND APPELLANT; AND (2) HIS EXHIBITION OF PARTIALITY,
DURING
TRIAL, BY ADVISING THE GOVERNMENT ON TRIAL TACTICS.
CERTIFICATES FOR
REVIEW FILED
No. 09-5006/AF.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN NULLIFYING APPELLEE’S
FACTUALLY
AND LEGALLY SUFFICIENT CONVICTION FOR POSSESSION OF CHILD PORNOGRAPHY.
Wednesday,
July 22, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0644/AR.
WHETHER THE
MILITARY JUDGE
ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED
FROM
APPELLANT'S QUARTERS.
Briefs will be
filed under
Rule 25.
No.
09-0252/AF.
WHETHER THE
MILITARY JUDGE
ERRONEOUSLY ACCEPTED APPELLANT'S PLEA OF GUILTY TO WILLFULLY SUFFERING
THE
DAMAGE OF A MILITARY FIRE EXTINGUISHER, AND THE OWER COURT ERRED BY
AFFIRMING
THE FINDING OF GUILTY TO THAT SPECIFICATION.
Briefs will be
filed under
Rule 25.
No.
09-0429/MC.
WHETHER THE
MILITARY JUDGE
ABUSED HIS DISCRETION IN DENYING APPELLANT'S CHALLENGE FOR CAUSE OF
CAPTAIN STOJKA,
CREATING SERIOUS DOUBTS AS TO WHETHER APPELLANT HAD A FAIR AND
IMPARTIAL PANEL
WHERE THE SENIOR MEMBER AND ONE OF HIS SUBORDINATES COMPRISED THE
TWO-THIRDS
MAJORITY SUFFICIENT TO CONVICT APPELLANT.
Briefs will be
filed under
Rule 25.
No.
09-0445/AF.
WHETHER THE
MILITARY JUDGE
ABUSED HIS DISCRETION BY FAILING TO GRANT APPELLANT'S RECUSAL MOTION
UNDER R.C.M.
902(a).
Monday,
July 6, 2009
ORDERS GRANTING PETITION FOR REVIEW
No.
09-0258/NA.
WHETHER, AT THE
TIME OF
APPELLANT'S COURT-MARTIAL, ARTICLE 134 (INDECENT ASSAULT), UNIFORM CODE
OF MILITARY
JUSTICE (UCMJ), WAS AN OFFENSE NECESSARILY INCLUDED IN ARTICLE 120
(RAPE), UCMJ,
IN LIGHT OF ARTICLE 79, UCMJ, UNITED STATES v. MILLER, 67 M.J
385
(C.A.A.F. 2009), AND MANUAL FOR COURTS-MARTIAL, UNITED STATES,
PT. IV,
PARAS. 45.b(1) AND 63 (2005 ED.).
Briefs will be
filed under
Rule 25.
No.
09-5002/NA.
WHETHER APPELLEE
WAIVED THE
ISSUE OF THE DISQUALIFICATION OF THE TRIAL COUNSEL BY HIS UNCONDITIONAL
GUILTY
PLEAS.
Wednesday,
July 1, 2009
ORDERS GRANTING PETITION FOR REVIEW
No.
09-0271/AF.
WHETHER
APPELLANT'S
CONVICTION FOR INDECENT ACTS WITH ANOTHER MUST BE SET ASIDE BECAUSE THE
MILITARY JUDGE ISSUED ERRONEOUS AND MISLEADING INSTRUCTIONS SUPPORTING
INDECENT
ACTS AS AN AVAILABLE LESSER-INCLUDED OFFENSE TO THE ORIGINAL RAPE
CHARGE AND
THE RESULTING CONVICTION UNDER CHARGE I AND ITS SPECIFICATION AMOUNTED
TO A
FATAL VARIANCE.
Briefs will be
filed under
Rule 25.
Tuesday,
June 23, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
09-0376/AF.
WHETHER THE
MILITARY JUDGE
ABUSED HER DISCRETION IN DENYING THE DEFENSE MOTION TO SUPPRESS ALL
EVIDENCE FROM
APPELLANT'S HOME.
Friday,
June 19, 2009
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0242/MC.
WHETHER,
BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR
THE
WORDS "ON DIVERS OCCASIONS," THE MILITARY JUDGE RENDERED AMBIGUOUS
FINDINGS
NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866.
Briefs
will be filed under Rule 25.
No. 09-0414/NA.
WHETHER,
IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F.
2003) AND UNITED
STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND
SPECIFICATION
MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT
CONDUCT A
PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A
REHEARING. SEE UNITED STATES v.
Briefs
will be filed under Rule 25.
Thursday,
June 11, 2009
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0804/AR.
WHETHER THE
EVIDENCE IS
LEGALLY SUFFICIENT TO SUSTAIN THE FINDINGS OF GUILTY BEYOND A
REASONABLE DOUBT.
Briefs will be
filed under
Rule 25.
No.
09-0145/AR.
WHETHER THE ARMY
COURT ERRED
WHEN IT RULED THAT APPELLANT’S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE
10, UCMJ,
WAS NOT VIOLATED.
Briefs will be
filed under
Rule 25.
No.
09-0304/AF.
WHETHER THE AIR
FORCE COURT
OF CRIMINAL APPEALS ERRED IN FAILING TO GRANT ANY SENTENCE RELIEF TO
APPELLANT WHEN
THAT COURT FOUND APPELLANT'S DUE PROCESS RIGHT TO TIMELY POST-TRIAL
PROCESSING
WAS VIOLATED BY THE GOVERNMENT TAKING AN UNREASONABLE 946 DAYS TO
RETURN THE
RECORD OF TRIAL TO THAT COURT AFTER REMAND FOR NEW POST-TRIAL
PROCESSING.
No briefs will be
filed
under Rule 25.
No.
09-0382/AF.
WHETHER THE
MILITARY JUDGE
ABUSED HIS DISCRETION BY ALLOWING THE GOVERNMENT'S EXPERT WITNESS TO
TESTIFY CONCERNING
APPELLANT'S RISK OF RECIDIVISM.
Briefs will be
filed under
Rule 25.
Monday,
June 8, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-0466/AF.
WHETHER
THE MILITARY JUDGE REVERSIBLY ERRED WHEN SHE DID NOT DISMISS THE
CHARGES AND
SPECIFICATIONS AFTER SHE FOUND THAT UNLAWFUL COMMAND INFLUENCE EXISTED
IN THIS CASE.
Monday,
June 1, 2009
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0073/AR.
WHETHER
THE MILITARY JUDGE ERRED WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE
DEFENSE
OF MISTAKE OF LAW.
Briefs
will be filed under Rule 25.
Tuesday,
May 26, 2009
ORDERS GRANTING PETITION
FOR REVIEW
No. 09-0380/AF.
WHERE THE
MILITARY JUDGE
FOUND THAT APPELLANT AND HIS WIFE HAD A PRIVATE CONVERSATION WHILE
MARRIED AND
NOT SEPARATED, WAS THE MILITARY JUDGE CORRECT THAT APPELLANT COULD
CLAIM THE
PRIVILEGE UNDER MIL. R. EVID. 504 ONLY AS TO HIS STATEMENTS DURING THAT
CONVERSATION BUT NOT TO HIS WIFE'S AS WELL.
WHETHER THE AIR
FORCE COURT
OF CRIMINAL APPEALS ERRED IN FINDING THERE WAS NO HARM AFTER
OVERTURNING THE MILITARY
JUDGE'S RULING THAT APPELLANT'S ACT OF SHOWING HIS WIFE THAT HE HAD
DELETED THE
PICTURES HE SAID HE WOULD WAS NOT COMMUNICATIVE AND THEREFORE NOT
PRIVILEGED
UNDER MIL. R. EVID. 504.
Wednesday,
May 20, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0339/AF.
WHETHER, HAVING
FOUND
KNOWING VIOLATIONS OF AFI 31-205, THE MILITARY JUDGE ERRED IN NOT
DETERMINING
THAT THE VIOLATION INVOLVED AN ABUSE OF DISCRETION WARRANTING CREDIT
UNDER RCM
305(K).
WHETHER THE
CONDITIONS OF
APPELLANT'S PRETRIAL CONFINEMENT IN SUICIDE WATCH, WHICH INCLUDED,
INTER ALIA,
DENIAL OF BOOKS, A RADIO, AND/OR A CD PLAYER, AND 24-HOUR-A-DAY
LIGHTING, WERE
SO EXCESSIVE THAT THEY CONSTITUTE PUNISHMENT IN VIOLATION OF ARTICLE
13, UCMJ, AND
THUS, APPELLANT IS ENTITLED TO ADDITIONAL SENTENCE CREDIT.
Briefs will be
filed under 25.
Friday,
May 15, 2009
CERTIFICATES FOR
REVIEW FILED
No. 09-5004/NA.
I.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING IT HAD
JURISDICTION
OVER THIS ARTICLE 62, UCMJ, APPEAL, WHERE THE APPEAL WAS TAKEN AFTER
THE CASE
WAS ADJOURNED AND THE MEMBERS DISMISSED.
II.
DESPITE
THE LANGUAGE OF ARTICLE 120(r), UCMJ, WHETHER THE NAVY-MARINE CORPS
COURT OF
CRIMINAL APPEALS CORRECTLY HELD THAT THE ARTICLE DOES NOT PROHIBIT THE
ACCUSED
FROM INTRODUCING EVIDENCE OF CONSENT IN ORDER TO NEGATE AN ELEMENT OF
THE OFFENSE.
III.
CONCERNING
THE AFFIRMATIVE DEFENSE SET
IV.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT
“LACK OF
CONSENT” IS NOT AN IMPLICIT ELEMENT OF ARTICLE 120 CRIMES, INCLUDING
THE
CHARGED OFFENSE, GIVEN THE DEFINITION OF “FORCE” IN ARTICLE 120(t)(5),
AND THUS
ARTICLE 120, UCMJ, DOES NOT UNCONSTITUTIONALLY SHIFT THE BURDEN TO THE
ACCUSED
TO “DISPROVE AN ELEMENT OF THE OFFENSE.”
V.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE
EVIDENCE TRIGGERED THE AFFIRMATIVE DEFENSE OF CONSENT AS DEFINED IN
ARTICLE
120(t)(16), UCMJ, DESPITE THE FACT THAT THE APPELLANT FAILED TO
ACKNOWLEDGE THE
OBJECTIVE ACTS OF THE ALLEGED OFFENSE.
VI.
WHETHER
THE FINAL TWO SENTENCES OF ARTICLE 120(t)(16), UCMJ, WHICH ALLOWS FOR
CONSIDERATION AS TO WHETHER THE GOVERNMENT HAS DISPROVED THE
AFFIRMATIVE
DEFENSE OF CONSENT BEYOND A REASONABLE DOUBT, AFTER THE ACCUSED HAS
PROVED THE
DEFENSE BY A PREPONDERANCE OF THE EVIDENCE, CREATE A LEGALLY IMPOSSIBLE
BURDEN
ALLOCATION.
Appellee
will file a brief regarding the certified issues on or before May 26,
2009.
Appellant may file a reply no later than five days after the
filing of
Appellee’s brief.
Tuesday,
May 5, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0344/AR.
SHOULD THE
MILITARY JUDGE
HAVE DISMISSED CHARGE III AS PREEMPTED, MULTIPLICIOUS, AND AN
UNREASONABLE MULTIPLICATION
OF CHARGES; AND THE ADDITIONAL CHARGE AS MULTIPLICIOUS WITH CHARGE I,
SPECIFICATION 1, AND AN UNREASONABLE MULTIPLICATION OF CHARGES WITH
CHARGE I, SPECIFICATION
2?
WAS APPELLANT
AFFORDED A
FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS
DENIED AND
THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND
ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO
THE
DEFENSE?
Thursday,
April 30, 2009
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0660/NA.
WHETHER
THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE, AS (1) ITS
REASSESSMENT CALCULUS WAS BASED UPON AN ERRONEOUS UNDERSTANDING OF WHAT
SPECIFICATIONS WERE MERGED; (2) IT ABUSED ITS DISCRETION IN FAILING TO
ORDER A
SENTENCE REHEARING IN LIGHT OF APPELLANT BEING SENTENCED UPON TWICE THE
AMOUNT
OF SPECIFICATIONS AS APPROPRIATE; AND (3) THE UNDERLYING LOGIC USED TO
NOT
REDUCE APPELLANT'S SENTENCE WAS FAULTY.
WHETHER
THE LOWER COURT
ERRED IN FINDING THAT POSSESSION OF THE SAME IMAGES OF CHILD
PORNOGRAPHY ON
DIFFERENT MEDIA CAN BE CHARGED AS SEPARATE CRIMES UNDER 18 USC SECTION
2252A.
WHETHER
THE LOWER COURT
Briefs
will be filed under Rule 25.
No. 08-0757/AR.
WHETHER
THE MILITARY JUDGE ERRED IN ADMITTING THE TESTIMONY OF TG UNDER
MILITARY RULES
OF EVIDENCE 413 AND 414.
Wednesday,
April 29, 2009
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0169/AR.
WHETHER
THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT ON OBEDIENCE TO LAWFUL
ORDERS
AS IT PERTAINED TO MALTREATMENT BY HAVING A MILITARY WORKING DOG (MWD)
BARK AT
A DETAINEE WHEN THERE WAS NO EVIDENCE BEFORE THE MILITARY JUDGE THAT
SUCH AN
ORDER WAS ILLEGAL.
WHETHER
THE MILITARY JUDGE ERRED WHEN HE DID NOT INSTRUCT THE PANEL ON
OBEDIENCE TO
ORDERS (LAWFUL OR UNLAWFUL) AS IT PERTAINED TO MALTREATMENT BY HAVING A
MWD
BARK AT JUVENILE DETAINEES.
WHETHER
THE EVIDENCE FOR ALL MALTREATMENT SPECIFICATIONS WAS LEGALLY
INSUFFICIENT,
BECAUSE THE DETAINEES WERE NOT "SUBJECT TO [APPELLANT'S] ORDERS" AND
DID NOT HAVE A "DUTY TO OBEY."
Friday,
April 17, 2009
APPEALS - SUMMARY
DISPOSITIONS
No.
09-0142/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
09-0133/MC.
WHETHER THE LOWER
COURT ERRED
WHEN IT HELD THAT APPELLANT'S UTTERANCE OF "MMMM-MMMM-MMMM" WAS
LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR INDECENT LANGUAGE.
Thursday,
April 9, 2009
CERTIFICATES FOR REVIEW FILED
No. 09-5002/NA.
WHETHER THE LOWER
COURT ERRED
BY FINDING THAT THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED
THE
DEFENSE MOTION TO DISQUALIFY TRIAL COUNSEL FROM FURTHER PARTICIPATION
IN THE
CASE.
WHETHER THE LOWER
COURT ERRED IN SETTING ASIDE THE FINDINGS AND SENTENCE BASED UPON
SPECULATION
THAT THE TRIAL COUNSELS’ CONTINUED PARTICIPATION IN THE CASE COULD HAVE
PREJUDICED APPELLEE, WITHOUT MAKING ANY FINDING THAT THEIR CONTINUED
PARTICIPATION DID MATERIALLY PREDJUDICE APPELLEE, AS REQUIRED BY
ARTICLE 59(a),
UCMJ.
Appellant
will file a brief in accordance with Rule 24 in support of the
certified issues
on or before the 11th day of May, 2009. Appellee
will file an answer no later than 30
days after the filing of Appellant’s brief.
Wednesday,
April 8, 2009
CERTIFICATES FOR
REVIEW FILED
No. 09-5003/AF.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN DENYING
THE UNITED STATES’ REQUEST THAT
THE COURT ORDER AN AFFIDAVIT FROM APPELLEE’S ORIGINAL MILITARY DEFENSE
COUNSEL.
WHETHER
AN “IMPRESSION” LEFT BY CIVILIAN DEFENSE COUNSEL THAT APPELLEE MAY NOT
HAVE TO
REGISTER AS A SEX OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION
AND LED
TO
Thursday,
April 2, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0707/AF.
APPELLANT WAS
CONVICTED OF
RAPE AND ADULTERY BASED ON A SINGLE ACT OF SEXUAL INTERCOURSE. DURING THE COURT-MARTIAL, THE PROSECUTION'S
EXPERT PSYCHOLOGIST PROVIDED HUMAN LIE DETECTOR TESTIMONY THAT
BOLSTERED THE
ALLEGED VICTIM'S RAPE ACCUSATION. BASED
ON THIS TESTIMONY, THE AIR FORCE COURT OF CRIMINAL APPEALS SET ASIDE
THE RAPE
CONVICTION. HOWEVER, IT AFFIRMED THE
ADULTERY CONVICTION. DID THE COURT ERR
SINCE THE MEMBERS MUST HAVE BASED THEIR ADULTERY CONVICTION ON THE
FORCE AND
CONSENT FINDINGS OF RAPE THAT WERE SET ASIDE?
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0808/AR.
WHETHER TRIAL
DEFENSE
COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT,
INEFFECTIVE ASSISTANCE
OF COUNSEL IN THE POST-TRIAL PHASE WHEN HE, WITHOUT CONSULTING WITH
APPELLANT,
SUBMITTED MATTERS TO THE CONVENING AUTHORITY BUT FAILED TO SUBMIT
APPELLANT'S
PERSONAL STATEMENT.
No.
09-0043/AR.
WHETHER APPELLANT
COMMITTED
LARCENIES OF M.S.'S PROPERTY BY ENGAGING IN THE UNAUTHORIZED USE OF HER
CREDIT,
DEBIT, AND ATM CARDS.
WHETHER A
VARIANCE AS TO
OWNERSHIP IN LARCENY CASES IS FATAL IF THERE IS LEGALLY SUFFICIENT
EVIDENCE
THAT APPELLANT STILL COMMITTED A LARCENY OF PROPERTY.
Briefs will be
filed under
Rule 25.
Monday,
March 16, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-0185/AR.
WHETHER,
AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING
OF
GUILTY TO THE ADDITIONAL CHARGE AND ITS SPECIFICATION (FORGERY), THE
ARMY COURT ERRED
Wednesday,
March 11, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0719/CG.
WHETHER
THE MILITARY JUDGE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO
CONFRONT HIS
ACCUSERS BY LIMITING HIS CROSS-EXAMINATION OF [SR], THE GOVERNMENT'S
ONLY
WITNESS, ON THREE OF THE FIVE CHARGES.
Wednesday,
January 14, 2009
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-6001/MC.
WHETHER
THE
ORDERS GRANTING
PETITION FOR REVIEW
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.
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.
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
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.
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