NEW GRANTS AND SUMMA9RY DISPOSITIONS
(Last Updated 6/25/09)

 Cases that have been decided will be removed from this page at the end of the term.




Tuesday, June 23, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-0376/AF.  U.S. v. James A. COWGILL.  CCA S31404.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING THE DEFENSE MOTION TO SUPPRESS ALL EVIDENCE FROM APPELLANT'S HOME.

 

    Briefs will be filed under Rule 25.



Monday, June 22, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0148/AR.  U.S. v. Jason A. DONNELLY.  CCA 20031026.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals,  said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Friday, June 19, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0720/AF.  U.S. v. Mohamed M. MOHAMED.  CCA 36421.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-0242/MC.  U.S. v. Benjamin W. ROSS.  CCA 200800313.  Review granted on the following issue:

 

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.  U.S. v. Daniel V. TREW.  CCA 200800250.  Review granted on the following issue:

 

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. WILSON __ M.J. ___ (C.A.A.F. 2009).

 

Briefs will be filed under Rule 25.

 



Thursday, June 11, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0804/AR.  U.S. v. Sabrina D. HARMAN.  CCA 20050597.  Review granted on the following issue:

 

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.  U.S. v. Christine N. THOMPSON.  CCA 20060901.  Review granted on the following issue:

 

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.  U.S. v. Shamush P. MYERS.  CCA 35781.  Review granted on the following issue:

 

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.  U.S. v. Daniel L. ELLIS.  CCA 37113.  Review granted on the following issue:

 

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.




Tuesday, June 9, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0079/AR.  U.S. v. Rickie E. PARRISH.  CCA 20020916.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Monday, June 8, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-0466/AF.  U.S. v. Adam D. DOUGLAS.  CCA S31059.  Review granted on the following issue:

 

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.

 

    Briefs will be filed under Rule 25.



Monday, June 1, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-0073/AR.  U.S. v. Rogelio M. MAYNULET.  CCA 20050412.  Review granted on the following issue:

 

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

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0474/AR.  U.S. v. Kevin C. CORUM.  CCA 20061124.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 09-0383/AF.  U.S. v. Eric M. JAMES.  CCA 37224.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-0380/AF.  U.S. v. James N. DURBIN.  CCA 36969.  Review granted on the following issues:

 

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.

 

  Briefs will be file under Rule 25.
___________________

*  It is directed that the promulgating order be corrected to reflect that Specification 9, Charge II, be modified to exclude the words “on divers occasions.”



Friday, May 22, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-0143/AR.  U.S. v. Keith S. CAMPBELL.  CCA 20060426.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed. 




Wednesday, May 20, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0339/AF.  U.S. v. Derrick M. WILLIAMS.  CCA 36679.  Review granted on the following issues:

 

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.  U.S. v. Raymond L. NEAL.  CCA 200800746.  On April 14, 2009, the United States filed a motion for an enlargement of time in which to file a certificate for review in the above-captioned case.  The Court granted that motion to May 15, 2009, (Daily Journal, April 23, 2009).  Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and a brief of the Appellant were filed under Rule 22 on May 15, 2009, on the following issues:

 

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 FORTH IN ARTICLE 120(t)(16), WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT CONGRESS CONSTITUTIONALLY ALLOCATED, TO THE ACCUSED, THE BURDEN OF PROVING CONSENT BY A PREPONDERANCE OF THE EVIDENCE.

 

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.




Thursday, May 7, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-0057/AR.  U.S. v. Craig A. ROSS.  CCA 20070503.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* Noting that the opinion of the United States Army Court of Criminal Appeals erroneously listed Appellant’s middle initial as R, vice A, it is directed that the middle initial be corrected.

 



Tuesday, May 5, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0344/AR.  U.S. v. Ryan G. ANDERSON.  CCA 20040897.  Review granted on the following issues:

 

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?

 

     Briefs will be filed under Rule 25.



Thursday, April 30, 2009

 

APPEALS – SUMMARY DISPOSITIONS

 

No. 06-0852/AR.  U.S. v. Willon B. BROWN.  CCA 20000971.  On consideration of the petition for grant of review of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed. 

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0660/NA.  U.S. v. Patrick P. CAMPBELL.  CCA 200700643.  Review granted on the following issues:

 

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 ERRED IN DETERMINING THAT THE THREE SPECIFICATIONS UNDER CHARGE II WERE NOT "FACIALLY DUPLICATIVE."

 

Briefs will be filed under Rule 25.

 

No. 08-0757/AR.  U.S. v. Jerry J. EDIGER.  CCA 20060275.  Review granted on the following issues:

 

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING THE TESTIMONY OF TG UNDER MILITARY RULES OF EVIDENCE 413 AND 414.

 

      Briefs will be filed under Rule 25.



Wednesday, April 29, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-0169/AR.  U.S. v. Michael J. SMITH.  CCA 20060541. Review granted on the following issues:

 

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."

 

   Briefs will be filed under Rule 25.



Friday, April 17, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-0142/AR.  U.S. v. Daniel W. BREWER.  CCA 20040625.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-0133/MC.  U.S. v. Raheem G. GREEN.  CCA 200800005.  Review granted on the following issue:

 

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.

 

  Briefs will be filed under Rule 25.



Thursday, April 9, 2009

 

CERTIFICATES FOR REVIEW FILED

 

No. 09-5002/NA.  United States, Appellant v. Willie A. BRADLEY, Appellee.  CCA 200501089.  On March 20, 2009, the United States filed a motion for enlargement of time in which to file a certificate of review in the above-captioned case.  The Court granted that motion to April 23, 2009.  Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on April 9, 2009, on the following issues:

 

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.  U.S. v. Brandon T. ROSE.  CCA 36508.  The Judge Advocate General of the Air Force requests action be taken with respect to the following issues:

 

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

     APPELLEE RECEIVING INEFFECTIVE ASSISTANCE OF COUNSEL.



Thursday, April 2, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0707/AF.  U.S. v. Calvin J. WHEELER  Jr.  CCA 36796.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is noted that the Court of Criminal Appeals has not had the opportunity to complete its review of this case under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), after the convening authority took action on October 3, 2008.  See Boudreaux v. U.S. Navy-Marine Corps C.M.R., 28 M.J. 181 (C.M.A. 1989).  Accordingly, it is, ordered that said petition is hereby granted on the following issue:

 

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?

 

The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Air Force Court of Criminal Appeals for consideration of the granted issue and completion of its Article 66(c),  UCMJ, review.  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.



Wednesday, April 1, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-0247/AF.  U.S. v. John V. NICHOLS.  CCA 37010.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*
_______________________

*  It is directed that the promulgating order be corrected to reflect that Appellant pleaded not guilty to the specification of Charge II.



Tuesday, March 31, 2009

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0738/NA.  U.S. v. Dennis A. THOMAS.  CCA 200700858.  On further consideration of the granted issue, 67 M.J. 187 (C.A.A.F. 2008), and the briefs submitted by the parties, we note that the United States Navy-Marine Corps Court of Criminal Appeals affirmed a finding of guilty of communicating indecent language under the sole specification of Additional Charge III.  We also note that the staff judge advocate’s recommendation and the court-martial promulgating order erroneously listed the offense as an attempted communication of indecent language, and the convening authority approved the sentence as adjudged without addressing the findings.

Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals may act only with respect to the findings as approved by the convening authority.  Under these circumstances, we conclude that, in affirming a finding of guilty of communicating indecent language, the Court of Criminal Appeals exceeded its authority.  See United States v. Diaz, 40 M.J. 335 (C.A.A.F. 1994).

Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Additional Charge III and its sole specification and as to sentence.  The finding of guilty of communicating indecent language under Additional Charge III is set aside and a finding of guilty of attempted communication of indecent language is hereby affirmed under Article 80, UCMJ, 10 U.S.C. § 880 (2000).  The remaining findings are affirmed.  The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for reassessment of the sentence in light of the amended findings.




Thursday, March 19, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0808/AR.  U.S. v. Derand M. DAVIS.  CCA 20070808.  Review granted on the following issue:

 

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.

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 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 United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

No. 09-0043/AR.  U.S. v. Neil S. LUBASKY.  CCA 20020924.  Review granted on the following issues:

 

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.  U.S. v. Makisha I. MORTON.  CCA 20060458.  Review granted on the following issue:

 

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 IN FINDING APPELLANT GUILTY OF A LESSER INCLUDED OFFENSE ON A THEORY NOT PRESENTED TO THE TRIER OF FACT.

 

   Briefs will be filed under Rule 25.



Wednesday, March 11, 2009

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0719/CG.  U.S. v. Webster M. SMITH.  CCA 1275.  Review granted on the following issue:

 

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.

 

  Briefs will be filed under Rule 25.



Friday, March 6, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0856/AR.  U.S. v. Dustin A. OWENS.  CCA 20070264.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and, the decision of the United States Army Court of Criminal Appeals is affirmed.



Friday, February 27, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0806/MC.  U.S. v. Archie L. ONEIL, Jr.  CCA 200602504.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0746/MC.  U.S. v. Joseph P. SCHWEITZER.  CCA 200000755.  Review granted on the following issues:

 

WHETHER APPELLANT, BY PLEADING GUILTY, WAIVED HIS RIGHT TO AN UNBIASED AND IMPARTIAL CONVENING AUTHORITY; ASSUMING THERE WAS NO WAIVER, WHETHER THE CONVENING AUTHORITY WAS DISQUALIFIED DUE TO HIS INVOLVEMENT IN THE INVESTIGATION INTO THE MISHAP, HIS ROLE IN IDENTIFYING THE ORIGINAL CHARGES, AND THE FACT THAT HE TESTIFIED FOR OVER TWO HOURS DURING THE HEARING OF PRETRIAL MOTIONS AS TO MATTERS WHICH CALLED INTO QUESTION HIS CONTINUED PARTICIPATION IN APPELLANT'S CASE.

 

WHETHER A GUILTY PLEA TO THE OFFENSES OF ENGAGING IN CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN THROUGH CONSPIRACY TO OBSTRUCT JUSTICE AND OBSTRUCTION OF JUSTICE IS PROVIDENT WHEN THE "CRIMINAL PROCEEDING" IN ISSUE IS A FOREIGN CRIMINAL INVESTIGATION.

 

WHETHER IN UNITED STATES v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008), THIS COURT SHIFTED THE BURDEN OF PROVING HARMLESSNESS BEYOND A REASONABLE DOUBT TO APPELLANTS CLAIMING UNREASONABLE DELAY DURING THEIR ARTICLE 66(c), UNIFORM CODE OF MILITARY JUSTICE (UCMJ), REVIEW; IF SO, DOES ALLENDE'S BURDEN SHIFTING VIOLATE THE CONSTITUTION AND, IF SO, MUST AN APPELLANT RECEIVE MEANINGFUL RELIEF WHERE THE GOVERNMENT FAILED TO REBUT INFORMATION PROVIDED BY APPELLANT AS TO HIS EFFORTS TO PROCURE EMPLOYMENT COMMENSURATE WITH HIS EDUCATION AND JOB EXPERIENCE.  IF ALLENDE'S BURDEN SHIFTING DOES NOT VIOLATE THE CONSTITUTION, DID THE LOWER COURT ERR IN FINDING THAT APPELLANT'S PROOF AS TO HIS EFFORTS TO PROCURE EMPLOYMENT COMMENSURATE WITH HIS EDUCATION AND JOB EXPERIENCE WAS INSUFFICIENT BECAUSE HE COULD NOT PRODUCE LETTERS THAT AFFIRMATIVELY STATED THAT HE WAS NOT HIRED BECAUSE HE DID NOT HAVE A DD-214.

 

WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY FAILING TO GRANT RELIEF ON SENTENCING FOR ITS SELF-ADMITTED "GROSS NEGLIGENCE" IN FAILING TO PROVIDE APPELLANT AN EXPEDITIOUS ARTICLE 66(c), UCMJ, REVIEW, PARTICULARLY AS TO THE 33 MONTHS THAT ELAPSED PENDING COURT ACTION ON APPELLANT'S MOTION FOR ORAL ARGUMENT.

 

Briefs may be filed under C.A.A.F. R. 25.  Should Appellant determine not to file a brief under C.A.A.F. R. 25, Appellant shall so notify the Court and Appellee within ten days of the date of this order.  Should Appellee determine not to file an answer, Appellee shall so notify the Court and Appellant within ten days of Appellant filing a brief under C.A.A.F. R. 25 or the date upon which Appellant declined to do so.  Should Appellee decline to file an answer, no reply will be permitted.  The parties shall comply with C.A.A.F. R. 24(f) not later than the date upon which Appellee files an answer or declines to do so.1

 

No. 08-0770/MC.  U.S. v. Richard J. ASHBY.  CCA 200000250.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION UNDER ARTICLE 133, UNIFORM CODE OF MILITARY JUSTICE (UCMJ), FOR OBSTRUCTION OF JUSTICE OR CONSPIRACY TO OBSTRUCT JUSTICE.

 

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION TO EXPAND THE TERM "CRIMINAL PROCEEDINGS" TO INCLUDE OBSTRUCTION OF FOREIGN CRIMINAL PROCEEDINGS.

 

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION TO PERMIT FAMILIES OF THE VICTIMS OF THE GONDOLA CRASH TO TESTIFY ON SENTENCING.

 

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S ARGUMENT THAT THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE MOTION FOR A MISTRIAL BASED ON THE TRIAL COUNSEL'S COMMENTS REFERENCING (1) APPELLANT'S INVOCATION OF HIS RIGHT TO REMAIN SILENT TO ITALIAN AUTHORITIES; AND (2) HIS GENERAL RIGHT TO REMAIN SILENT WITH RESPECT TO NOT DISCLOSING INFORMATION ABOUT THE VIDEOTAPE.

 

WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN NOT FINDING THAT A SENTENCE WHICH INCLUDED SIX MONTHS OF CONFINEMENT AND AN APPROVED DISMISSAL WAS INAPPROPRIATELY SEVERE.

 

WHETHER THE LOWER COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S ARGUMENT THAT THE DESTRUCTION OF THE VIDEOTAPE HAD NO EFFECT ON THE ADMINISTRATION OF JUSTICE BECAUSE IT CONTAINED NO MATERIAL EVIDENCE.

 

WHETHER APPELLANT'S DUE PROCESS RIGHTS HAVE BEEN VIOLATED BY THE UNTIMELY POST-TRIAL PROCESSING AND APPELLATE REVIEW OF HIS COURT-MARTIAL.

 

WHETHER THE LOWER COURT ERRED IN FINDING (1) THAT APPELLANT'S CASE WAS NOT TAINTED BY ACTUAL OR APPARENT UNLAWFUL COMMAND INFLUENCE; AND (2) THAT LTGEN PACE WAS NOT DISQUALIFIED TO ACT AS CONVENING AUTHORITY BY VIRTUE OF BEING A TYPE 2 AND TYPE 3 ACCUSER.

 

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE CONVENING AUTHORITY DID NOT ABUSE HIS DISCRETION IN FAILING TO WITHDRAW THE ARTICLE 133, UCMJ, CHARGE FROM REFERRAL TO A GENERAL COURT-MARTIAL ONCE APPELLANT WAS ACQUITTED OF THE ORIGINAL CHARGES.

 

Briefs under C.A.A.F. R. 25 may be filed.  Should Appellant determine not to file a brief under C.A.A.F. R. 25, Appellant shall so notify the Court and Appellee within ten days of the date of this order.  Should Appellee determine not to file an answer, Appellee shall so notify the Court and Appellant within ten days of Appellant filing a brief under C.A.A.F. R. 25 or the date upon which Appellant declined to do so.  Should Appellee decline to file an answer, no reply will be permitted.  The parties shall comply with C.A.A.F. R. 24(f) not later than the date upon which Appellee files an answer or declines to do so.2

 

No. 09-0010/AR.  U.S. v. James D. WILSON.  CCA 20061187.  Review granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT'S CONVICTION FOR RAPE WHEN THE MILITARY JUDGE EXCEPTED "ON DIVERS OCCASIONS" FROM THE SPECIFICATION AND DID NOT SPECIFY THE SINGLE OCCASION AS PART OF THE FINDING, BUT THE VICTIM ONLY TESTIFIED TO A SINGLE OCCURRENCE AND THE PARTIES ONLY ARGUED THIS SINGLE OCCASION TO THE MILITARY JUDGE.

 

Appellant’s brief on this issue shall be filed within 20 days of the date of this order.  Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief.  A reply may be filed by Appellant within 5 days of Appellee’s brief.  It is further ordered that the above-entitled action be called for hearing on the 27th day of April, 2009.  This hearing will commence immediately following the hearing in United States v. Nance, 09-0164/AF.  Each side will be allotted 20 minutes to present oral argument. 

 

No. 09-0032/NA.  U.S. v. Matthew W. MAZZA.  CCA 200400095.  Review granted on the following issue:

 

WHETHER THE CIVILIAN DEFENSE COUNSEL WAS INEFFECTIVE BY: (1) SOLICITING HUMAN LIE DETECTOR TESTIMONY, (2) FAILING TO OBJECT TO ADMISSION OF THE VICTIM'S VIDEOTAPED INTERVIEW, AND (3) PERMITTING THE VIDEOTAPE TO BE VIEWED DURING DELIBERATIONS.

 

Appellant’s brief on this issue shall be filed within 20 days of the date of this order.  Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief.  A reply may be filed by Appellant within 5 days of Appellee’s brief.  It is further ordered that the above-entitled action be called for hearing at 9:30 a.m. on the 28th day of April, 2009.  Each side will be allotted 20 minutes to present oral argument.

 

No. 09-0119/MC.  U.S. v. Marco A. BUSH.  CCA 200700137.  Review granted on the following issues:

 

WHETHER THE COURT OF CRIMINAL APPEALS' INTERPRETATION AND APPLICATION OF THIS COURT'S DECISION IN UNITED STATES v. ALLENDE, 66 M.J. 142 (C.A.A.F. 2008) PLACES IT AT ODDS WITH THIS COURT'S DECISION IN UNITED STATES v. GINN, 47 M.J. 236 (C.A.A.F. 1997).

 

WHETHER THE COURT OF CRIMINAL APPEALS MISINTERPRETED ALLENDE, CREATING THE PRACTICAL RESULT OF SHIFTING TO AN APPELLANT THE BURDEN OF PROVING THAT A CONSTITUTIONAL ERROR WAS HARMFUL.

 

Appellant’s brief on these issues shall be filed within 20 days of the date of this order.  Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief.  A reply may be filed by Appellant within 5 days of Appellee’s brief.  It is further ordered that the above-entitled action be called for hearing on the 28th day of April, 2009.  This hearing will commence immediately following the hearing in United States v. Mazza, 09-0032/NA.  Each side will be allotted 20 minutes to present oral argument. 

 

No. 09-0164/AF.  U.S. v. Wren A. NANCE.  CCA S31445.  Review granted on the following issue:

 

WHETHER APPELLANT'S PLEA OF GUILTY TO ENGAGING IN CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE WAS IMPROVIDENT BECAUSE OF A LACK OF EVIDENCE IN THE RECORD INDICATING THAT HIS CONDUCT WAS DIRECTLY PREJUDICIAL TO GOOD ORDER AND DISCIPLINE.

 

Appellant’s brief on this issue shall be filed within 20 days of the date of this order.  Appellee’s brief shall be filed within 20 days of the filing of Appellant’s brief.  A reply may be filed by Appellant within 5 days of Appellee’s brief.  It is further ordered that the above-entitled action be called for hearing at 9:30 a.m. on the 27th day of April 2009.  Each side will be allotted 20 minutes to present oral argument.

_________________________

 

1 Chief Judge Andrew S. Effron, Judge James E. Baker, and Judge Margaret A. Ryan have recused themselves from this case and did not participate in this order.  Senior Judge Robinson O. Everett, Senior Judge Walter T. Cox III, and Senior Judge H. F. “Sparky” Gierke have been called upon by Acting Chief Judge Charles E. “Chip” Erdmann and consented to participate in this case pursuant to Article 142(e)(1)(A)(iii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(iii) (2000). 


2
Chief Judge Andrew S. Effron, Judge James E. Baker, and Judge Margaret A. Ryan have recused themselves from this case and did not participate in this order.  Senior Judge Robinson O. Everett, Senior Judge Walter T. Cox III, and Senior Judge H. F. “Sparky” Gierke have been called upon by Acting Chief Judge Charles E. “Chip” Erdmann and consented to participate in this case pursuant to Article 142(e)(1)(A)(iii), Uniform Code of Military Justice, 10 U.S.C. § 942(e)(1)(A)(iii) (2000).




Thursday, February 26, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0269/AR.  U.S. v. Sean P. BRIGHT.  CCA 20020938.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and, the decision of the United States Army Court of Criminal Appeals is affirmed.
 


Tuesday, February 17, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0476/NA.  U.S. v. Audley G. EVANS.  CCA 200600806.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.



Friday, January 30, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0199/AR.  U.S. v. Joshua P. NAVRESTAD.  CCA 20030335.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Tuesday, January 27, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0696/MC.  U.S. v. Robert A. JOHANSSON.  CCA 200401940.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.



Friday, January 23, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0365/AR.  U.S. v. John M. DIAMOND.  CCA 20010761.  Review granted on the following issue:

 

WHETHER THE NAMED CO-CONSPIRATOR, MICHELLE THEER, PAID APPELLANT'S CIVILIAN DEFENSE COUNSEL RETAINER AND, IF SO, WHETHER THIS CONFLICT OF INTEREST WAS DISCLOSED TO THE COURT.

 

The record of trial is returned to the Judge Advocate General of the Army for remand to the Army Court of Criminal Appeals for further appellate inquiry on the granted issue.  Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), shall apply. 

 

No. 08-0651/AR.  U.S. v. Melanie A. MCPHERSON.  CCA 20070115.  Review granted on the following issue:

 

WHETHER AN HONORABLE DISCHARGE FROM THE UNITED STATES ARMY RESERVE WITH ACCOMPANYING ORDERS, EFFECTIVE AFTER SENTENCING BUT PRIOR TO ACTION BY THE CONVENING AUTHORITY, HAS THE EFFECT OF REMITTING THE BAD-CONDUCT DISCHARGE ADJUDGED AT THE APPELLANT'S COURT-MARTIAL AND LATER APPROVED BY THE CONVENING AUTHORITY.  SEE STEELE v. VAN RIPER, 50 M.J. 89 (C.A.A.F. 1999).


The record of trial is returned to the Judge Advocate General of the Army for remand to the Army Court of Criminal Appeals for consideration of the granted issue.  Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), shall apply.

No. 09-0001/AR.  U.S. v. Sheldon M. ARTHUR.  CCA 20071027.  Review granted on the following issue:

 

WHETHER THE APPROVED FORFEITURE OF $1,000.00 PAY PER MONTH FOR FOUR MONTHS AT A SPECIAL COURT-MARTIAL WAS ILLEGAL UNDER ARTICLE 19, UCMJ, WHEN APPELLANT WAS REDUCED TO E-1 AS PART OF THE SENTENCE.

The decision of the United States Army Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for forfeiture of $867.00 pay per month for four months, confinement for four months, reduction to pay grade E-1, and a bad-conduct discharge.

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0779/AR.  U.S. v. Bradley W. MARSHALL.  CCA 20060229.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE'S FINDING BY EXCEPTIONS AND SUBSTITUTIONS CREATED A MATERIAL FATAL VARIANCE IN CHARGE III AND ITS SPECIFICATION [ESCAPE FROM CUSTODY].

 

Briefs will be filed under Rule 25.

 

No. 09-0013/AF.  U.S. v. Andre M. SANDERS.  CCA 36443.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE IN VIOLATION OF R.C.M. 1001 AND MIL. R. EVID. 403.

 

Briefs will be filed under Rule 25

 

No. 09-0082/MC.  U.S. v. Jeff R. WIECHMANN.  CCA 200700593.  Review granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO COUNSEL WHEN THE CONVENING AUTHORITY AND STAFF JUDGE ADVOCATE FAILED TO RECOGNIZE ONE OF HIS TWO DETAILED DEFENSE COUNSEL.

 

  Briefs will be filed under Rule 25.



Thursday, January 15, 2009

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 09-0018/AR.  U.S. v. Paul E. CORTEZ.  CCA 20070169.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed. 

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0613/AR.  U.S. v. Christopher J. MATTHEWS.  CCA 20030404.  Review granted on the following issue:

 

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT MIL. R. EVID. 509 DOES NOT BAR THE GOVERNMENT FROM CALLING THE MILITARY JUDGE FROM A JUDGE-ALONE TRIAL TO TESTIFY AT A DUBAY HEARING AS TO HIS DELIBERATIVE PROCESS.

 

Briefs will be filed under Rule 25.




Wednesday, January 14, 2009

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-0028/NA.  U.S. v. Clinton C. MALONE.  CCA 20062512.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0703/AR.  U.S. v. Norman R. BREHM.  CCA 20070688.  Review granted on the following assigned issue:

 

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.  U.S. v. Andrew W.  SMEAD.  CCA200201020.  On consideration of the briefs of the parties on the issue granted on October 9, 2008, and oral argument held on January 12, 2009, it is ordered that the parties file supplemental briefs on the following additional issue:


WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE CHARGE OF RAPE OF A CHILD, WITHDRAWN AND DISMISSED “WITH PREJUDICE” AT APPELLANT’S FIRST COURT-MARTIAL, COULD BE REFILED PRIOR TO APPELLANT’S REHEARING.

 
  Appellant’s brief on this issue shall be filed within 15 days of the date of this order.  Appellee’s brief shall be filed within 15 days of the filing of Appellant’s brief.  A reply may be filed by Appellant within 5 days of the filing of Appellee’s brief.
______________________

 
*  It is directed that the convening authority’s action, as incorporated by the court-martial promulgating order, be corrected to reflect that this was a special court-martial, not a general court-martial.



Tuesday, January 13, 2009


APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0178/AF.  U.S. v. Kirk V. BRIGGS.  CCA 35123.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 



Thursday, December 18, 2008

 

APPEALS - SUMMARY DISPOSITIONS


No. 09-0055/MC.  U.S. v. Chad L. KLUEMPER.  CCA 20062366.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the court below affirmed a sentence that included “forfeiture of two-thirds pay per month for six months,” rather than a whole dollar amount of pay per month for six months.  See RCM 1003(b)(2).  Accordingly, it is ordered that said petition is hereby granted on the following specified issue:

 

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 Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for confinement for six months and forfeiture of $823.00 pay per month for six months.

 



Wednesday, December 17, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 04-5005/NA.  U.S. v. Todd R. FORBES.  CCA 9901454.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.



Monday, December 15, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0749/AR.  U.S. v. Michael E. MYERS.  CCA 20071091.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0594/MC.  U.S. v. Darrel A. WESTON.  CCA 200600985.  Review granted on the following issues:

 

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.

 

Briefs will be filed under Rule 25.
__________________

 

*  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

 

No. 08-0720/AF.  U.S. v. Mohamed M. MOHAMED.  CCA 36421.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is noted that in reassessing the sentence, the Court of Criminal Appeals made no mention of the dismissal that had been approved by the convening authority.  It is unclear whether the dismissal was affirmed and was part of that court’s sentence reassessment under United States v. Sales, 22 M.J. 305 (C.M.A. 1986).  Under Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c) (2000), this Court can only act with respect to the findings and sentence as affirmed by a court of criminal appeals.  If the affirmed sentence is ambiguous, the appropriate remedy is a remand for clarification.  United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994) (“The appropriate remedy for incomplete or ambiguous rulings is a remand for clarification.”).  Accordingly, because of the ambiguity as to the affirmed sentence, it is ordered that said petition is hereby granted on the following specified issue:
 

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.  U.S. v. Sydonna A. JONES.  CCA 20060821.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the petition is granted as to the following issue:

WHETHER APPELLANT’S TRIAL DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST ARTICLE 13 CREDIT FOR ALLEGED ILLEGAL PRETRIAL PUNISHMENT INFLICTED ON APPELLANT.

    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 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 United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.
 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0805/MC.  U.S. v. Manasses A. PAIGE.  CCA 200600587.  Review granted on the following issue:

 

WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS CLOSING ARGUMENT ON THE MERITS WHEN HE COMMENTED THAT THE GOVERNMENT'S EVIDENCE WAS UNCONTRADICTED, THEREBY INDIRECTLY COMMENTING ON APPELLANT'S FAILURE TO TESTIFY AND PRODUCE EVIDENCE IN HIS DEFENSE.

 

    Briefs will be filed under Rule 25.

 



Monday, December 8, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-6001/MC.  United States, Appellee v. Vernon E. HICKMAN, Jr., Appellant.  CCA 200800529.  On consideration of Appellee’s motion to dismiss the petition for grant of review, and Appellant’s indication that he will not file an opposition to the motion, it appears that the charge against the Appellant was withdrawn from the pending special court-martial and adjudicated at a summary court-martial, and the petition is now moot.  Accordingly, it is ordered that said motion is hereby granted, and that the hearing notice issued November 21, 2008, is hereby vacated.



Thursday, November 20, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 09-6001/MC.  U.S. v. Vernon E. HICKMAN, Jr.  CCA 200800529.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, on appeal by the United States under Article 62, 10 U.S.C. § 862 (2000), review granted on the following issue:

 

WHETHER THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS NOT ENTITLED TO ARTICLE 31(b) WARNINGS BEFORE HE WAS QUESTIONED ABOUT A CRIME OF WHICH HE WAS SUSPECTED OF COMMITTING.

 



Monday, November 17, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-6006/MC.  U.S. v. Frank D. WUTERICH.  CCA 200800183.  [See Opinion issued this date.]

 



Thursday, November 13, 2008

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0096/AR.  U.S. v. Robert J. MEDINA.  CCA 20040327.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Thursday, November 6, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0591/AR.  U.S. v. Harvey A. GARDINIER II.  CCA 20020427.  Review granted on the following issue:

 

WHETHER THE ARMY COURT ERRED WHEN IT FOUND THE MILITARY JUDGE'S ERRONEOUS ADMISSIONS OF EVIDENCE HARMLESS BEYOND A REASONABLE DOUBT.

 

Briefs will be filed under Rule 25.

 

No. 08-0596/AF.  U.S. v. Jesse I. RANNEY.  CCA S31046.  Review granted on the following issues:

 

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 SUPERIOR COMMISSIONED OFFICER.

 

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.  U.S. v. Dennis A. THOMAS.  CCA 200700858.  Review granted on the following issue:

 

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.  U.S. v. Carrie N. RIDDLE.  CCA 20070756.  Review granted on the following issue:

 

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.

 

  Briefs will be filed under Rule 25.



Wednesday, November 5, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0405/NA.  U.S. v. Brian DEARING.  CCA 200100291.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 08-0790/AR.  U.S. v. Miguel A. CAMPOS, Jr.  CCA 20060301.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 ______________________

*
It is directed that the promulgating order be corrected to reflect findings of not guilty of Additional Charge I and its specification. 
 


Thursday, October 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0299/AF.  U.S. v. Andrew J. VALLEJO.  CCA 35842.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 08-0750/AR.  U.S. v. Ricardo T. CARTER, II.  CCA 20061115.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and  the decision of the United States Army Court of Criminal Appeals is affirmed.*

_____________________

*  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

 
ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0589/AF.  U.S. v. Marcus W. STEPHENS.  CCA 36682.  Review granted on the following issue:

 

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


No. 7-0856/AR.  U.S. v. Dustin A. OWENS. CCA 20070264.  On consideration of the briefs of the parties on the granted issue (66 M.J. 288 (C.A.A.F. 2008)), it appears that the parties now agree that Appellant is entitled to confinement credit for his periods of civilian confinement from May 13 to June 21, 2006, and from September 8 to November 9, 2006.  The Court adopts the position of the parties.  Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside, and the record is returned to the Judge Advocate of the Army for remand to the United States Army Court of Criminal Appeals to provide meaningful relief.




Friday, October 17, 2008

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

No. 08-0260/AF.  United States, Appellee v. Daniel J. Brown, Appellant.  CCA 36695.  In an order dated June 17, 2008, (66 M.J. 491 (C.A.A.F. 2008)), this Court granted review of Appellant’s petition on the following specified issue:

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 U.S. v. MASON, 60 M.J. 15 (2004), AND U.S. v. O’CONNOR, 58 M.J. 450 (2003).

 

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.  U.S. v. Tyler K. MESUBED.  CCA 20061158.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we conclude that Charge III and its specification (indecent act) are multiplicious for findings with Charge I and its specification (rape).  United States v. Schoolfield, 40 M.J. 132 (C.M.A. 1994).  Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN NOT DISMISSING CHARGE III AND ITS SPECIFICATION AS MULTIPLICIOUS WITH CHARGE I AND ITS SPECIFICATION.

The decision of the United States Army Court of Criminal Appeals as to Charge III and its specification is reversed, the findings as to Charge III and its specification are set aside, and Charge III and its specification are dismissed.  In all other respects, the decision of the court below is affirmed.

No. 08-0737/MC.  U.S. v. Jerry E. SHUMATE, Jr.  CCA 200700941.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that Appellant pleaded guilty in accordance with a pretrial agreement and was sentenced to confinement for eight years, forfeiture of all pay and allowances, reduction to pay grade E-1, and a dishonorable discharge.  In the pretrial agreement, the convening authority agreed that any punitive discharge would be disapproved and that all confinement in excess of 21 months would be suspended for the period of confinement served plus 12 months.  When the convening authority took his action, he stated:


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 United States v. Dowis, 66 M.J. 382 (C.A.A.F. 2008); United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007); Rule for Courts-Martial 1107(g).  Accordingly it is ordered that said petition is hereby granted on the following specified issue:

 

WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE WHERE THE UNDERLYING CONVENING AUTHORITY’S ACTION WAS AMBIGUOUS AS TO THE FORFEITURE PORTION OF THE SENTENCE.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to the findings and to only so much of the sentence as provides for a reduction to pay grade E-1 and confinement for eight years, with confinement in excess of time served suspended.



Thursday, October 9, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 03-0390/AF.  U.S. v. Anthony F. BILLQUIST.  CCA 35003.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 08-0578/AR.  U.S. v. David R. THOMPSON.  CCA 20000342.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0376/MC.  U.S. v. Andrew W. SMEAD.  CCA 200201020.  Review granted on the following issue:

 

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.  U.S. v. Brandon I. MILLER.  CCA 20060224.  Review granted on the following issue:

 

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.  U.S. v. Bennie B. GOGUE.  CCA 20050650.  On consideration of the briefs and oral arguments of the parties on the granted issues (66 M.J. 287 (C.A.A.F. 2008)), it appears that the parties now agree that Appellant is entitled to 89 additional days of confinement credit.  The Court adopts the position of the parties.  Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside, and the record is returned to the Judge Advocate General of the Army for remand to the United States Army Court of Criminal Appeals to provide meaningful relief.




Wednesday, October 1, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0524/MC.  U.S. v. Jose R. CABRERA-FRATTINI.  CCA 200201665.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




Tuesday, September 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0674/AR.  U.S. v. Jeremy M. PHILLIPPE.  CCA 20040616.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


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.

 

We conclude that the Court of Criminal Appeals abused its discretion in reassessing Appellant’s sentence.  Accordingly, the decision of the United States Army Court of Criminal Appeals is reversed as to the sentence, but is affirmed in all other respects.  The sentence is set aside.  The record is returned to the Judge Advocate General of the Army.  A rehearing on sentence may be ordered.



Thursday, September 25, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 



Wednesday, September 24, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0495/NA.  U.S. v. Kimberly L. COLLIER.  CCA 200601218.  Review granted on the following issue:

 

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.  U.S. v. Stephen P. CHATFIELD.  CCA 2006002256.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

 

II.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.

 

Briefs will be filed under Rule 25.

 



Friday, September 19, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0602/MC.  U.S. v. James J. FISHER.  CCA 200700683.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0409/NA.  U.S. v. Juan J. CAMPOS.  CCA 200602523.  Review granted on the following specified issue:

 

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.  U.S. v. Richard M. DEAN.  CCA 20051336.  Review granted on the following issue:

 

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.

 

    Briefs will be filed under Rule 25.



Tuesday, September 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0417/AR.  U.S. v. Robert B. CLAYTON.  CCA 20040903.  Review granted on the following issues specified by the Court:

 

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.  U.S. v. Shaun K. BRASINGTON.  CCA 20060033.  Review granted on the following issue:

 

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 United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0518/AF.  U.S. v. Eddie J. ROGERS.  CCA 36768.  Review granted on the following issue:

 

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.  U.S. v. Phillip R. BROWN.  CCA 20040087.  Review granted on the following issue specified by the Court:

 

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, PARA. 53.c.(94) (2005 ED.).

 

  Briefs will be filed under Rule 25.



Thursday, September 4, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0335/NA.  U.S. v. William T. JONES.  CCA 200602320.  Review granted on the following modified issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT.

 

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.  U.S. v. Gustavo A. DELAROSA.  CCA 200602335.  Review granted on the following issue:

 

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.  U.S. v. Chad M. MCCRACKEN.  CCA 200600484.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF

CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

 

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 



Wednesday, August 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0649/AR.  U.S. v. Menkaura A. MOSS.  CCA 20071281.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

*  It is noted that the order of the U.S. Army Court of Criminal Appeals dated 16 May 2008 incorrectly stated one of Appellant’s pleas.  The order states that Appellant pleaded guilty to the rape of Senior Airman MW.  However, Appellant was not charged with rape of Senior Airman MW.  Under Charge I, Appellant pleaded not guilty to attempted rape of MW and the Government dismissed the charge.  Under Charge VI, Specification 1, Appellant pleaded guilty, by exception, to indecent assault of MW and was convicted in accordance with his plea.



Tuesday, September 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0674/AR.  U.S. v. Jeremy M. PHILLIPPE.  CCA 20040616.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


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.

 

We conclude that the Court of Criminal Appeals abused its discretion in reassessing Appellant’s sentence.  Accordingly, the decision of the United States Army Court of Criminal Appeals is reversed as to the sentence, but is affirmed in all other respects.  The sentence is set aside.  The record is returned to the Judge Advocate General of the Army.  A rehearing on sentence may be ordered.



Thursday, September 25, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 




Wednesday, September 24, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0495/NA.  U.S. v. Kimberly L. COLLIER.  CCA 200601218.  Review granted on the following issue:

 

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.  U.S. v. Stephen P. CHATFIELD.  CCA 2006002256.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

 

II.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.

 

Briefs will be filed under Rule 25.

 



Friday, September 19, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0602/MC.  U.S. v. James J. FISHER.  CCA 200700683.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0409/NA.  U.S. v. Juan J. CAMPOS.  CCA 200602523.  Review granted on the following specified issue:

 

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.  U.S. v. Richard M. DEAN.  CCA 20051336.  Review granted on the following issue:

 

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.

 

    Briefs will be filed under Rule 25.



Tuesday, September 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0417/AR.  U.S. v. Robert B. CLAYTON.  CCA 20040903.  Review granted on the following issues specified by the Court:

 

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.  U.S. v. Shaun K. BRASINGTON.  CCA 20060033.  Review granted on the following issue:

 

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 United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0518/AF.  U.S. v. Eddie J. ROGERS.  CCA 36768.  Review granted on the following issue:

 

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.  U.S. v. Phillip R. BROWN.  CCA 20040087.  Review granted on the following issue specified by the Court:

 

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, PARA. 53.c.(94) (2005 ED.).

 

  Briefs will be filed under Rule 25.



Thursday, September 4, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0335/NA.  U.S. v. William T. JONES.  CCA 200602320.  Review granted on the following modified issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT.

 

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.  U.S. v. Gustavo A. DELAROSA.  CCA 200602335.  Review granted on the following issue:

 

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.  U.S. v. Chad M. MCCRACKEN.  CCA 200600484.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF

CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

 

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 



Wednesday, August 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0649/AR.  U.S. v. Menkaura A. MOSS.  CCA 20071281.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

*  It is noted that the order of the U.S. Army Court of Criminal Appeals dated 16 May 2008 incorrectly stated one of Appellant’s pleas.  The order states that Appellant pleaded guilty to the rape of Senior Airman MW.  However, Appellant was not charged with rape of Senior Airman MW.  Under Charge I, Appellant pleaded not guilty to attempted rape of MW and the Government dismissed the charge.  Under Charge VI, Specification 1, Appellant pleaded guilty, by exception, to indecent assault of MW and was convicted in accordance with his plea.




Tuesday, September 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0674/AR.  U.S. v. Jeremy M. PHILLIPPE.  CCA 20040616.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


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.

 

We conclude that the Court of Criminal Appeals abused its discretion in reassessing Appellant’s sentence.  Accordingly, the decision of the United States Army Court of Criminal Appeals is reversed as to the sentence, but is affirmed in all other respects.  The sentence is set aside.  The record is returned to the Judge Advocate General of the Army.  A rehearing on sentence may be ordered.



Thursday, September 25, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 




Wednesday, September 24, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0495/NA.  U.S. v. Kimberly L. COLLIER.  CCA 200601218.  Review granted on the following issue:

 

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.  U.S. v. Stephen P. CHATFIELD.  CCA 2006002256.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

 

II.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.

 

Briefs will be filed under Rule 25.

 



Friday, September 19, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0602/MC.  U.S. v. James J. FISHER.  CCA 200700683.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0409/NA.  U.S. v. Juan J. CAMPOS.  CCA 200602523.  Review granted on the following specified issue:

 

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.  U.S. v. Richard M. DEAN.  CCA 20051336.  Review granted on the following issue:

 

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.

 

    Briefs will be filed under Rule 25.



Tuesday, September 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0417/AR.  U.S. v. Robert B. CLAYTON.  CCA 20040903.  Review granted on the following issues specified by the Court:

 

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.  U.S. v. Shaun K. BRASINGTON.  CCA 20060033.  Review granted on the following issue:

 

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 United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0518/AF.  U.S. v. Eddie J. ROGERS.  CCA 36768.  Review granted on the following issue:

 

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.  U.S. v. Phillip R. BROWN.  CCA 20040087.  Review granted on the following issue specified by the Court:

 

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, PARA. 53.c.(94) (2005 ED.).

 

  Briefs will be filed under Rule 25.



Thursday, September 4, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0335/NA.  U.S. v. William T. JONES.  CCA 200602320.  Review granted on the following modified issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT.

 

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.  U.S. v. Gustavo A. DELAROSA.  CCA 200602335.  Review granted on the following issue:

 

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.  U.S. v. Chad M. MCCRACKEN.  CCA 200600484.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF

CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

 

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 



Wednesday, August 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0649/AR.  U.S. v. Menkaura A. MOSS.  CCA 20071281.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

*  It is noted that the order of the U.S. Army Court of Criminal Appeals dated 16 May 2008 incorrectly stated one of Appellant’s pleas.  The order states that Appellant pleaded guilty to the rape of Senior Airman MW.  However, Appellant was not charged with rape of Senior Airman MW.  Under Charge I, Appellant pleaded not guilty to attempted rape of MW and the Government dismissed the charge.  Under Charge VI, Specification 1, Appellant pleaded guilty, by exception, to indecent assault of MW and was convicted in accordance with his plea.



Tuesday, September 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0674/AR.  U.S. v. Jeremy M. PHILLIPPE.  CCA 20040616.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:


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.

 

We conclude that the Court of Criminal Appeals abused its discretion in reassessing Appellant’s sentence.  Accordingly, the decision of the United States Army Court of Criminal Appeals is reversed as to the sentence, but is affirmed in all other respects.  The sentence is set aside.  The record is returned to the Judge Advocate General of the Army.  A rehearing on sentence may be ordered.



Thursday, September 25, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 




Wednesday, September 24, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0495/NA.  U.S. v. Kimberly L. COLLIER.  CCA 200601218.  Review granted on the following issue:

 

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.  U.S. v. Stephen P. CHATFIELD.  CCA 2006002256.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN FAILING TO SUPPRESS APPELLANT'S STATEMENT TO CIVILIAN AUTHORITIES AS INVOLUNTARY.

 

II.  WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO AFFIRM APPELLANT’S CONVICTION.

 

Briefs will be filed under Rule 25.

 



Friday, September 19, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0602/MC.  U.S. v. James J. FISHER.  CCA 200700683.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0409/NA.  U.S. v. Juan J. CAMPOS.  CCA 200602523.  Review granted on the following specified issue:

 

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.  U.S. v. Richard M. DEAN.  CCA 20051336.  Review granted on the following issue:

 

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.

 

    Briefs will be filed under Rule 25.



Tuesday, September 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0417/AR.  U.S. v. Robert B. CLAYTON.  CCA 20040903.  Review granted on the following issues specified by the Court:

 

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.  U.S. v. Shaun K. BRASINGTON.  CCA 20060033.  Review granted on the following issue:

 

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 United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0518/AF.  U.S. v. Eddie J. ROGERS.  CCA 36768.  Review granted on the following issue:

 

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.  U.S. v. Phillip R. BROWN.  CCA 20040087.  Review granted on the following issue specified by the Court:

 

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, PARA. 53.c.(94) (2005 ED.).

 

  Briefs will be filed under Rule 25.



Thursday, September 4, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0335/NA.  U.S. v. William T. JONES.  CCA 200602320.  Review granted on the following modified issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT'S PLEA WAS PROVIDENT.

 

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.  U.S. v. Gustavo A. DELAROSA.  CCA 200602335.  Review granted on the following issue:

 

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.  U.S. v. Chad M. MCCRACKEN.  CCA 200600484.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED BY AFFIRMING A LESSER-INCLUDED OFFENSE BASED ON A THEORY OF

CRIMINALITY NOT PRESENTED BY THE GOVERNMENT AT TRIAL.

 

WHETHER THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE INSTEAD OF REMANDING THE CASE FOR A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 



Wednesday, August 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0649/AR.  U.S. v. Menkaura A. MOSS.  CCA 20071281.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

*  It is noted that the order of the U.S. Army Court of Criminal Appeals dated 16 May 2008 incorrectly stated one of Appellant’s pleas.  The order states that Appellant pleaded guilty to the rape of Senior Airman MW.  However, Appellant was not charged with rape of Senior Airman MW.  Under Charge I, Appellant pleaded not guilty to attempted rape of MW and the Government dismissed the charge.  Under Charge VI, Specification 1, Appellant pleaded guilty, by exception, to indecent assault of MW and was convicted in accordance with his plea.



Wednesday, August 13, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0348/MC.  U.S. v. Stephen C. BOROSAK.  CCA 200500250.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the Court of Criminal Appeals found error in the post-trial processing of the case as a result of a failure to serve the staff judge advocate’s recommendation on Appellant prior to action by the convening authority.  See Rule for Courts-Martial 1105(f).  The court concluded that the error was prejudicial.  Noting that the case had been subject to significant delays, the court concluded that a remand for new action by the convening authority would further delay disposition of the case, and it ordered appropriate relief for the error by approving a sentence that did not include adjudged forfeitures.

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 United States v. Pflueger, 65 M.J. 127, 131 (C.A.A.F. 2007); United States v. Emminizer, 56 M.J. 441, 444-46 (C.A.A.F. 2002).  Such relief with respect to forfeitures may be provided by approving a sentence that does not include confinement, thereby removing the requirement for automatic forfeitures under Article 58b, UCMJ.  Accordingly, it is ordered that said petition is granted on the following issue:

 

WHETHER, AFTER FINDING PREJUDICIAL ERROR, THE LOWER COURT ERRED IN FAILING TO GRANT MEANINGFUL RELIEF.


  The portion of the United States Navy-Marine Corps Court of Criminal Appeals decision affirming confinement for two months is reversed and that portion of the sentence is set aside.  The remainder of the Navy-Marine Corps Court of Criminal Appeals’ decision, which affirmed the findings and only so much of the sentence as provided for a bad-conduct discharge and reduction to pay grade E-1, is affirmed.  

 



Thursday, August 7, 2008

 

APPEALS-SUMMARY DISPOSITIONS


No. 08-0339/AF.  U.S. v. Derrick M. WILLIAMS.  CCA 36679.  Review granted on the following issue:

 

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.  U.S. v. Matthew W. GLADUE.  CCA 36580.  Review granted on the following issue:

 

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.

 

Briefs will be filed under Rule 25.

 



Tuesday, August 5, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0502/AF.  U.S. v. Doncosta E. SEAWELL.  CCA 35531.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.



Monday, July 28, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0444/AR.  U.S. v. Gregory D. ROBERTSON.  CCA 20050565.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Thursday, July 24, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0225/AR.  U.S. v. Eduardo LIRIANO.  CCA 20061018.  We granted review in this case to consider whether the military judge erred in denying Appellant’s motion to exclude a physician from his court-martial panel because that selection violated Army regulations prohibiting medical personnel from performing court-martial duty.  In light of this Court’s opinion in United States v. Bartlett, 66 M.J. 426 (C.A.A.F. 2008), we conclude the military judge did not err.  Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




Tuesday, July 15, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0145/AR.  U.S. v. Anthony R. LUCERO.  CCA 20020869.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed. 

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0448/NA.  U.S. v. Matthew C. KUEMMERLE.  CCA 200700899.  Review granted on the following issue:

 

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 AND HE TOOK NO FURTHER STEPS TO DISTRIBUTE THE IMAGE AFTER IT WAS INITIALLY POSTED.

 

Briefs will be filed under Rule 25.

 



Monday, July 7, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 03-0629/AF.  U.S. v. David J. VON BERGEN.  CCA 34817.  Review granted on the following issue:

 

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.

 

    Briefs will be filed under Rule 25.



Thursday, July 3, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0474/AR.  U.S. v. Kevin C. CORUM.  CCA 20061124.  Review granted on the following issue personally raised by Appellant:

 

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 United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997).  Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

 



Wednesday, July 2, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0573/AR.  U.S. v. Rocky I. ALVAREZ.  CCA 20051360.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and 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 the beginning date of the offense in the Specification of Charge III was 4 November 2004 vice 4 November 2005.

 

No. 08-6001/NA.  U.S. v. Scott J. RATLIFF.  CCA 200700512.  On consideration of Appellant’s petition for grant of review and Appellee’s motion to dismiss that petition, in light of this Court’s decision in United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), it is ordered that the motion to dismiss is denied, and that the petition is granted on the following issue:

 
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.  U.S. v. William C. THOMPSON.  CCA 200600807.  Review granted on the following issues:

 

WHETHER THE LOWER COURT ERRED IN HOLDING THAT, EVEN IF THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO SUPPRESS APPELLANT'S CONFESSION TO INVESTIGATOR AR, THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

WHETHER THE LOWER COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY SUBSTITUTING ITS FINDING OF GUILT TO RECKLESS ENDANGERMENT UNDER ARTICLE 134, UCMJ, FOR THE COURT-MARTIAL'S FINDING OF GUILT AS TO THE OFFENSE OF KIDNAPPING AS PLED UNDER CHARGE V,SPECIFICATION 2.

 

   Briefs will be filed under Rule 25.



Wednesday, June 25, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0225/AR.  U.S. v. Eduardo LIRIANO.  CCA 20061018.  Review granted on the following issue:

 

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.  U.S. v. Leon A. SWAN.  CCA 36634.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

 

*  It is noted that the decision of the United States Air Force Court of Criminal Appeals incorrectly summarized the findings.  Under Additional Charge I, Appellant was convicted of two specifications of disrespect to a noncommissioned officer and one specification of assaulting a noncommissioned officer, under Article 91, Uniform Code of Military Justice, 10 U.S.C. § 891 (2000).  The lower court omitted any reference to the assault and mistakenly stated that there were three offenses of disrespect.




Tuesday, June 24, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0813/NA.  U.S. v. Richard S. ROWE.  CCA 200600184.  On further consideration of the granted issue, __ M.J. __ (C.A.A.F. April 2, 2008), and the briefs of the parties, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 08-0148/AF.  U.S. v. Damien G. KAWAI.  CCA 35366.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed. 

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0173/AR.  U.S. v. Shane T. OWENS.  CCA 20050641.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is noted that there was no evidence that in Specification 1 of Charge II that Appellant engaged in his misconduct with the victim.  See United States v. Rodriquez-Rivera, 63 M.J. 372, 385 (C.A.A.F. 2006); United States v. McDaniel, 39 M.J. 173, 175 (C.M.A. 1994).  Accordingly said petition is hereby granted on the following issue:

 

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.  U.S. v. Christopher R. MILLER.  CCA 36829.  Review granted on the following issue:

 

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.  U.S. v. Ernest D. GOODIN, Jr.  CCA 36266.  Review granted on the following issue:

 

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

 

No. 08-0534/NA.  U.S. v. Robert PERSON, Jr.  CCA 200600076.  Appellee’s motion to dismiss the petition for grant of review is granted.




Friday, June 20, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0082/CG.  U.S. v. Albert STELLON.  CCA 1264.  On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Coast Guard Court of Criminal Appeals is affirmed.* 

 

No. 08-0280/NA.  U.S. v. Charles B. SWANSON.  CCA 200501593.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

____________________

 

*  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.  U.S. v. Daniel J. BROWN.  CCA 36695.  Review granted on the following issue:

 

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 U.S. v. MASON, 60 M.J. 15 (2004), AND U.S. v. O'CONNOR, 58 M.J. 450 (2003).

 

  Briefs will be filed under Rule 25.




Monday, June 16, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0392/AR.  U.S. v. Demetrius R. CRUDUP.  CCA 20050112.  Review granted on the following issue:

 

WHETHER, AFTER FINDING A PROPER SIXTH AMENDMENT CONFRONTATION CLAUSE VIOLATION IN THE ADMISSION OF P. C.'S STATEMENTS, THE ARMY COURT ERRED WHEN IT HELD THE ERROR WAS NONETHELESS HARMLESS.

 

    Briefs will be filed under Rule 25.



Thursday, June 12, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0020/AR.  U.S. v. Lucille S. DIXON.  CCA 20050954.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0900/MC.  U.S. v. Carlos J. RODRIGUEZ.  CCA 9900997.  Review granted on the following issues:

 

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

 

No. 03-0403/NA.  U.S. v. Robert F. BRINTON.  CCA 200001971.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




Monday, June 2, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0213/NA.  U.S. v. Matthew STEVENS.  CCA 200401069.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is granted on the following issue:

 

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.  U.S. v. Joshua W. HUDDLESTON.  CCA 36875.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and  the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

No. 08-0316/NA.  U.S. v. Robert L. CAMPI.  CCA 200700563.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is noted that in the stipulation of fact, Appellant only admitted to stealing one Lan-Cay M9, not two, yet the military judge accepted his plea to stealing two.  Accordingly, in light of this error, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed, except for the word and figure, “Two (2)” in item 31 of the Specification under Charge III, substituting the word, “One.”  The finding of guilty as to the excepted word and figure is set aside and dismissed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0200/NA.  U.S. v. Michael C. DIPAOLA.  CCA 200602442.  Review granted on the following issue:

 

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.

 

   Briefs will be filed under Rule 25.
_________________________

* It is directed that the promulgating order be corrected to reflect that, with regard to Charge II, specifications 2 and 3, Appellant pleaded guilty to the lesser included offense of assault consummated by a battery.



Friday, May 30, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 04-0465/AF.  U.S. v. Terry A. FLETCHER.  CCA 34945.  We granted review to determine whether the military judge erred when he denied trial defense counsel’s motion to suppress Appellant’s positive urinalysis test.  66 M.J. 188 (C.A.A.F. 2008).  In this case, there was: (1) a properly constituted command drug testing program in effect at Appellant’s installation, and (2) evidence that the order to provide the specimen was incident to command under Military Rule of Evidence 313(b).  Therefore, we hold that the military judge did not abuse his discretion in denying the motion to suppress.  Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 



Thursday, May 29, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 03-0688/NA.  U.S. v. Stacie M. SOWELL.  CCA 9901777.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0602/NA.  U.S. v. Angela R. MITCHELL.  CCA 200600998.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.



Tuesday, May 27, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0795/AF.  U.S. v. Jeffrey R. RUTHERFORD.  CCA 36651. On further consideration of the granted issue, 66 M.J. 111 (C.A.A.F. 2008), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.




Thursday, May 22, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0168/NA.  U.S. v. Cooper JACKSON.  CCA 200700255.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




Tuesday, May 13, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0169/MC.  U.S. v. Byron M. LEWIS.  CCA 200600045.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that Appellant raises for the first time on appeal an issue regarding the legal sufficiency of the evidence with respect to Specification 1 of Charge I (conspiracy to distribute drugs).  It is appropriate for the court below to consider this issue initially.  Accordingly, it is ordered that said petition is granted on the following issue:

 

Whether the evidence is legally insufficient to support the conviction for conspiracy when the government PURPORTEDLY failed to provide any evidence that the alleged overt acts occurred after the conspiratorial agreement arose.


    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 consideration of the issue raised for the first time before us.  Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), shall apply.



Monday, May 12, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 02-0334/AR.  U.S. v. Michael L. BAKER.  CCA 9800743.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 05-0528/MC.  U.S. v. Michael S. SNOOK.  CCA 200201598.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 



Friday, May 9, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 07-0401/NA.  U.S. v. Russell B. MULLINS.  CCA 200200988.  On further consideration of the granted issues, 66 M.J. 188 (C.A.A.F. 2008), and United States v. Brooks, 64 M.J. 325 (C.A.A.F. 2007), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and that the record is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a new review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), to include consideration of the first granted issue in light of Brooks.

 



Wednesday, May 7, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 05-0647/NA.  U.S. v. Brendan C. FORNEY.  CCA 200200462.  Review granted on the following issue:

 

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.

 

      Briefs will be filed under Rule 25.



Tuesday, May 6, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0013/AR.  U.S. v. Louis S. LOPEZ.  CCA 20010994.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 08-0413/AR.  U.S. v. Eloy N. GARCIA.  CCA 20060895.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.



Thursday, May 1, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0848/AF.  U.S. v. Linwood W. BURTON, Jr.  CCA 36296.  Review granted on the following issues:

 

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.  U.S. v. Derek C. BURCH.  CCA 200700047.  Review granted on the following issue:

 

WHERE THE LOWER COURT FOUND A CONSTITUTIONAL VIOLATION, DID IT ERR WHEN IT FOUND THAT APPELLANT WAS NOT PREJUDICED WHEN HE WAS CONFINED FOR OVER SEVEN MONTHS BEYOND THE DATE HE SHOULD HAVE BEEN RELEASED UNDER THE CONVENING AUTHORITY'S UNAMBIGUOUS ACTION?

 

Briefs will be filed under Rule 25.




Tuesday, April 29, 2008

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 08-0283/MC.  U.S. v. Roosevelt D. ROBERTS.  CCA 200700027.  On consideration of the petition of grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that Appellant raises an issue not previously considered by the Court of Criminal Appeals.  Accordingly, it is ordered that review is granted on the following modified issue:

 

WHETHER THE MEMBERS ERRED WHEN THEY FOUND APPELLANT GUILTY OF STEALING ‘MILITARY’ PROPERTY IN ALL OF THE SPECIFICATIONS OF CHARGE I, WHEN THE PROPERTY WAS OWNED BY A NON-APPROPRIATED FUND INSTRUMENTALITY.

 

    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 the Court of Criminal Appeals 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).




Monday, April 28, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 08-0247/NA.  U.S. v. Sasha M. DOWIS.  CCA 200700428.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and in light of United States v. Wilson, 65 M.J. 140 (C.A.A.F. 2007), we hold that under the plain meaning of the language in the convening authority’s action of April 18, 2007, the bad-conduct discharge was not approved.  Accordingly, it is ordered that review is granted on the following issue:.

 

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.  U.S. v. Randy J. DARJEAN, Jr.  CCA 35938.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 06-0918/MC.  U.S. v. Raymon F. THOMAS.  CCA 200401149.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0600/NA.  U.S. v. Hawan T. CAMPBELL.  CCA 200400093.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0601/MC.  U.S. v. Jason M. RYAN.  CCA 200401577.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 98-0497/NA.  U.S. v. Charles W. DAVIS.  CCA 9600585.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0072/AF.  U.S. v. Edward S. MACOMBER.  CCA 36693.  Review granted on the following issue:

 

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.  U.S. v. Tyrice L. HAYES.  CCA 200600910.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it appears that in its rendition of the facts, the Court of Criminal Appeals may have considered matters from outside the record.  The facts alleged in the decision appear to have been taken from the victim’s summarized testimony presented at the Article 32, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 832 (2000), investigation, rather than from the evidence presented at trial.  This Court has previously held that a court of criminal appeals is constrained (1) by the evidence presented at trial when conducting its legal and factual review of the findings under Article 66(c), UCMJ, 10 U.S.C. § 866(c), and (2) by the evidence admitted at trial and those matters considered by the convening authority in his action when conducting its Article 66(c), UCMJ, sentence appropriateness review.  See United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007). 

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).

 

    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 the Court of Criminal Appeals for a new review under Article 66(c), UCMJ. 




Tuesday, April 22, 2008

 

CERTIFICATES FOR REVIEW FILED

 

No. 08-5006/CG.  U.S. v. Julian R. YANGER.  CCA 1271.  Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

 

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

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 22nd day of May, 2008.




Wednesday, April 16, 2008

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 07-0148/AR.  U.S. v. Jason A. DONNELLY.  CCA 20031026.  On further consideration of the granted issue, 65 M.J. 275 (C.A.A.F. 2007), and United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), it is ordered that the order granting the above-referenced issue in this case is vacated, and the petition is hereby granted on the following issue specified by the Court:

WHETHER THE ACTION OF THE COURT OF CRIMINAL APPEALS IN AMENDING SPECIFICATIONS 1, 2, AND 3 OF THE CHARGE FROM VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 3 (CRIMES AND OFFENSES NOT CAPITAL) TO VIOLATIONS OF ARTICLE 134, UCMJ, CLAUSE 1 (CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE) AND/OR CLAUSE 2 (SERVICE DISCREDITING CONDUCT) ADDED ELEMENTS TO THE OFFENSES 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 U.S. 705 (1989).

 The decision of the United States Army Court of Criminal Appeals is reversed.  The findings and sentence are set aside, and the record is returned to the Judge Advocate General of the Army.  A rehearing is authorized.

No. 07-0363/NA.  U.S. v. Kenneth R. FRANK.  CCA 200600894.  On further consideration of the granted issue, 65 M.J. 282 (C.A.A.F. 2007), and United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the findings and sentence are set aside.  The record is returned to the Judge Advocate General of the Navy.  A rehearing is authorized.

No.  07-0553/NA.  U.S. v. Christopher A. BOLSINS.  CCA 200602408.  On further consideration of the granted issue, 65 M.J. 292 (C.A.A.F. 2007), and United States v. Medina, 66 M.J. 21 (C.A.A.F. 2008), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Charge II and its specification and the sentence.  The findings as to Charge II and its specification are set aside.  The decision of the Court of Criminal Appeals as to Charge I and its specifications is affirmed.  The record is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a determination either to reassess the sentence or to order a rehearing.



Tuesday, April 8, 2008


ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0366/AR.  U.S. v. Jamie D. GONZALEZ.  CCA 20070301.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be corrected to reflect the convening authority’s action as follows:

 

     In the case of Private First Class Jaime D. Gonzalez, United States Army, A Company, 304th Signal            Battalion, 1st Signal Brigade, APO AP 96205, the sentence is approved and, except for that part extending      to a bad-conduct discharge, will be executed.




Wednesday, April 2, 2008

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0813/NA.  U.S. v. Richard S. ROWE.  CCA 200600184.  Review granted on the following issue:

 

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.  U.S. v. David V. MENDOZA.  CCA 200602353.  Review granted on the following issue:

 

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.  U.S. v. David M. TILLERY.  CCA 20030538.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.




Wednesday, March 26, 2008


 
ORDERS GRANTING PETITION FOR REVIEW

 

No. 08-0186/AF.  U.S. v. Dale D. HAYES, Jr.  CCA S31359.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*


 
* It is directed that the convening authority’s action and the promulgating order be corrected by                deleting the words, “and allowances.”
 

No. 08-0272/AF.  U.S. v. Elizabeth A. SCHWANINGER.  CCA S31380.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.**

 

** 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.  U.S. v. Mark R. CONLIFFE.  CCA 20040721.  Review granted on the following issue:

 

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.

 

    Briefs will be filed under Rule 25.



Thursday, March 20, 2008

 

APPEALS – SUMMARY DISPOSITIONS

 

No. 06-0793/AF.  U.S. v. Jeffrey D. BEATTY.  CCA 35523.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 07-0696/MC.  U.S. v. Robert A. JOHANSSON.  CCA 200401940.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is unclear whether the Court of Criminal Appeals considered the dramatic change in the sentencing landscape when it reassessed the sentence.  See United States v. Buber, 62 M.J. 476 (C.A.A.F. 2006).  Accordingly, said petition is granted on the following issue raised by Appellant:

 

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.  U.S. v. Andrew C. TAYLOR.  CCA 200602223.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is noted that Appellant pleaded guilty to two specifications of receiving and/or possessing child pornography while deployed to Qatar, in violation of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).  The specifications included language indicating that Appellant’s conduct was prejudicial to good order and discipline in the armed forces, of a nature to bring discredit upon the armed forces, and in violation of 18 U.S.C. § 2252A (2000) (charging clauses 1, 2, and 3 of Article 134, UCMJ).  This Court has held that 18 U.S.C. § 2252A does not have extraterritorial application.  United States v. Martinelli, 62 M.J. 52 (C.A.A.F. 2005).  As such, Appellant’s guilty pleas to the 18 U.S.C. § 2252A clause in Specifications 1 and 2 of Charge II are improvident, but are provident to the remaining clauses.  Accordingly, said petition is granted on the following issue:

 

IF THIS COURT DETERMINES THAT THE LOWER COURT AFFIRMED THE FINDINGS OF GUILT FOR VIOLATIONS

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.  U.S. v. Samir S. CHRISTIAN.  CCA 35905.  On further consideration of the granted issues, 65 M.J. 320 (C.A.A.F. 2007), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 06-0932/NA.  U.S. v. Javan R. GAINOUS.  CCA 200300953.  On further consideration of the granted issues, 65 M.J. 320 (C.A.A.F. 2007), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0053/NA.  U.S. v. Robert D. FELLS.  CCA 200500668.  On further consideration of the granted issue, 65 M.J. 252 (C.A.A.F. 2007), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 07-0615/NA.  U.S. v. Xavier R. ALLEN.  CCA 200600562.  On further consideration of the granted issue, 65 M.J. 476 (C.A.A.F. 2007), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 08-0029/AR.  U.S. v. William M. RIGBY, Jr.  CCA 20050708.  On further consideration of the granted issue, 66 M.J. ___ (C.A.A.F. January 18, 2008), and in view of United States v. Wilson, 66 M.J. 39 (C.A.A.F. 2008), the decision of the United States Army Court of Criminal Appeals is affirmed.




Tuesday, March 18, 2008

  

APPEALS – SUMMARY DISPOSITIONS

 

No. 07-0519/AR.  U.S. v. Luis A. AGUILAR.  CCA 20021439.  On further consideration of the granted issue, 65 M.J. 330 (C.A.A.F. 2007), and in view of United States v. Harcrow, 66 M.J. __ (C.A.A.F. March 13, 2008), and United States v. Gardinier, 65 M.J. 60 (C.A.A.F. 2007), the decision of the United States Army Court of Criminal Appeals is set aside.  The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for further consideration in view of Harcrow and Gardinier.

 



Monday, March 17, 2008

 

APPEALS – SUMMARY DISPOSITIONS

 

No. 07-0738/AF.  U.S. v. Stephen T. JONES.  CCA S31078.  On further consideration of the granted issue, 65 M.J. 446-47 (C.A.A.F. 2007), and in view of United States v. Scott, 66 M.J. 1 (C.A.A.F. 2008), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 08-0031/AF.  U.S. v. Levi W. ACKLEY.  CCA 36703.  On further consideration of the granted issue, __ M.J. __ (C.A.A.F. February 13, 2008), and in view of United States v. Scott, 66 M.J. 1 (C.A.A.F. 2008), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 



Thursday, March 13, 2008

 

APPEALS - SUMMARY DISPOSITIONS