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.
WHETHER THE
MILITARY JUDGE
ABUSED HER DISCRETION IN DENYING THE DEFENSE MOTION TO SUPPRESS ALL
EVIDENCE FROM
APPELLANT'S HOME.
Monday,
June 22, 2009
APPEALS - SUMMARY DISPOSITIONS
Friday,
June 19, 2009
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0720/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0242/MC.
WHETHER,
BY FINDING APPELLANT GUILTY OF THE CHARGE AND SPECIFICATION EXCEPT FOR
THE
WORDS "ON DIVERS OCCASIONS," THE MILITARY JUDGE RENDERED AMBIGUOUS
FINDINGS
NOT CAPABLE OF REVIEW UNDER ARTICLE 66, UCMJ, 10 U.S.C. § 866.
Briefs
will be filed under Rule 25.
No. 09-0414/NA.
WHETHER,
IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F.
2003) AND UNITED
STATES v. SEIDER, 60 M.J. 36 (C.A.A.F. 2004), THE CHARGE AND
SPECIFICATION
MUST BE DISMISSED WITH PREJUDICE, BECAUSE THE LOWER COURT COULD NOT
CONDUCT A
PROPER APPELLATE REVIEW UNDER ARTICLE 66 AND DOUBLE JEOPARDY PREVENTS A
REHEARING. SEE UNITED STATES v.
Briefs
will be filed under Rule 25.
Thursday,
June 11, 2009
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0804/AR.
WHETHER THE
EVIDENCE IS
LEGALLY SUFFICIENT TO SUSTAIN THE FINDINGS OF GUILTY BEYOND A
REASONABLE DOUBT.
Briefs will be
filed under
Rule 25.
No.
09-0145/AR.
WHETHER THE ARMY
COURT ERRED
WHEN IT RULED THAT APPELLANT’S RIGHT TO A SPEEDY TRIAL UNDER ARTICLE
10, UCMJ,
WAS NOT VIOLATED.
Briefs will be
filed under
Rule 25.
No.
09-0304/AF.
WHETHER THE AIR
FORCE COURT
OF CRIMINAL APPEALS ERRED IN FAILING TO GRANT ANY SENTENCE RELIEF TO
APPELLANT WHEN
THAT COURT FOUND APPELLANT'S DUE PROCESS RIGHT TO TIMELY POST-TRIAL
PROCESSING
WAS VIOLATED BY THE GOVERNMENT TAKING AN UNREASONABLE 946 DAYS TO
RETURN THE
RECORD OF TRIAL TO THAT COURT AFTER REMAND FOR NEW POST-TRIAL
PROCESSING.
No briefs will be
filed
under Rule 25.
No.
09-0382/AF.
WHETHER THE
MILITARY JUDGE
ABUSED HIS DISCRETION BY ALLOWING THE GOVERNMENT'S EXPERT WITNESS TO
TESTIFY CONCERNING
APPELLANT'S RISK OF RECIDIVISM.
Briefs will be
filed under
Rule 25.
Tuesday,
June 9, 2009
APPEALS - SUMMARY DISPOSITIONS
Monday,
June 8, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-0466/AF.
WHETHER
THE MILITARY JUDGE REVERSIBLY ERRED WHEN SHE DID NOT DISMISS THE
CHARGES AND
SPECIFICATIONS AFTER SHE FOUND THAT UNLAWFUL COMMAND INFLUENCE EXISTED
IN THIS CASE.
Monday,
June 1, 2009
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0073/AR.
WHETHER
THE MILITARY JUDGE ERRED WHEN HE REFUSED TO INSTRUCT THE MEMBERS ON THE
DEFENSE
OF MISTAKE OF LAW.
Briefs
will be filed under Rule 25.
Tuesday,
May 26, 2009
APPEALS - SUMMARY DISPOSITIONS
No. 08-0474/AR.
No. 09-0383/AF.
ORDERS GRANTING PETITION
FOR REVIEW
No. 09-0380/AF.
WHERE THE
MILITARY JUDGE
FOUND THAT APPELLANT AND HIS WIFE HAD A PRIVATE CONVERSATION WHILE
MARRIED AND
NOT SEPARATED, WAS THE MILITARY JUDGE CORRECT THAT APPELLANT COULD
CLAIM THE
PRIVILEGE UNDER MIL. R. EVID. 504 ONLY AS TO HIS STATEMENTS DURING THAT
CONVERSATION BUT NOT TO HIS WIFE'S AS WELL.
WHETHER THE AIR
FORCE COURT
OF CRIMINAL APPEALS ERRED IN FINDING THERE WAS NO HARM AFTER
OVERTURNING THE MILITARY
JUDGE'S RULING THAT APPELLANT'S ACT OF SHOWING HIS WIFE THAT HE HAD
DELETED THE
PICTURES HE SAID HE WOULD WAS NOT COMMUNICATIVE AND THEREFORE NOT
PRIVILEGED
UNDER MIL. R. EVID. 504.
Friday,
May 22, 2009
APPEALS - SUMMARY
DISPOSITIONS
Wednesday,
May 20, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0339/AF.
WHETHER, HAVING
FOUND
KNOWING VIOLATIONS OF AFI 31-205, THE MILITARY JUDGE ERRED IN NOT
DETERMINING
THAT THE VIOLATION INVOLVED AN ABUSE OF DISCRETION WARRANTING CREDIT
UNDER RCM
305(K).
WHETHER THE
CONDITIONS OF
APPELLANT'S PRETRIAL CONFINEMENT IN SUICIDE WATCH, WHICH INCLUDED,
INTER ALIA,
DENIAL OF BOOKS, A RADIO, AND/OR A CD PLAYER, AND 24-HOUR-A-DAY
LIGHTING, WERE
SO EXCESSIVE THAT THEY CONSTITUTE PUNISHMENT IN VIOLATION OF ARTICLE
13, UCMJ, AND
THUS, APPELLANT IS ENTITLED TO ADDITIONAL SENTENCE CREDIT.
Briefs will be
filed under 25.
Friday,
May 15, 2009
CERTIFICATES FOR
REVIEW FILED
No. 09-5004/NA.
I.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING IT HAD
JURISDICTION
OVER THIS ARTICLE 62, UCMJ, APPEAL, WHERE THE APPEAL WAS TAKEN AFTER
THE CASE
WAS ADJOURNED AND THE MEMBERS DISMISSED.
II.
DESPITE
THE LANGUAGE OF ARTICLE 120(r), UCMJ, WHETHER THE NAVY-MARINE CORPS
COURT OF
CRIMINAL APPEALS CORRECTLY HELD THAT THE ARTICLE DOES NOT PROHIBIT THE
ACCUSED
FROM INTRODUCING EVIDENCE OF CONSENT IN ORDER TO NEGATE AN ELEMENT OF
THE OFFENSE.
III.
CONCERNING
THE AFFIRMATIVE DEFENSE SET
IV.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT
“LACK OF
CONSENT” IS NOT AN IMPLICIT ELEMENT OF ARTICLE 120 CRIMES, INCLUDING
THE
CHARGED OFFENSE, GIVEN THE DEFINITION OF “FORCE” IN ARTICLE 120(t)(5),
AND THUS
ARTICLE 120, UCMJ, DOES NOT UNCONSTITUTIONALLY SHIFT THE BURDEN TO THE
ACCUSED
TO “DISPROVE AN ELEMENT OF THE OFFENSE.”
V.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE
EVIDENCE TRIGGERED THE AFFIRMATIVE DEFENSE OF CONSENT AS DEFINED IN
ARTICLE
120(t)(16), UCMJ, DESPITE THE FACT THAT THE APPELLANT FAILED TO
ACKNOWLEDGE THE
OBJECTIVE ACTS OF THE ALLEGED OFFENSE.
VI.
WHETHER
THE FINAL TWO SENTENCES OF ARTICLE 120(t)(16), UCMJ, WHICH ALLOWS FOR
CONSIDERATION AS TO WHETHER THE GOVERNMENT HAS DISPROVED THE
AFFIRMATIVE
DEFENSE OF CONSENT BEYOND A REASONABLE DOUBT, AFTER THE ACCUSED HAS
PROVED THE
DEFENSE BY A PREPONDERANCE OF THE EVIDENCE, CREATE A LEGALLY IMPOSSIBLE
BURDEN
ALLOCATION.
Appellee
will file a brief regarding the certified issues on or before May 26,
2009.
Appellant may file a reply no later than five days after the
filing of
Appellee’s brief.
Thursday,
May 7, 2009
APPEALS - SUMMARY
DISPOSITIONS
No. 09-0057/AR.
* 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.
SHOULD THE
MILITARY JUDGE
HAVE DISMISSED CHARGE III AS PREEMPTED, MULTIPLICIOUS, AND AN
UNREASONABLE MULTIPLICATION
OF CHARGES; AND THE ADDITIONAL CHARGE AS MULTIPLICIOUS WITH CHARGE I,
SPECIFICATION 1, AND AN UNREASONABLE MULTIPLICATION OF CHARGES WITH
CHARGE I, SPECIFICATION
2?
WAS APPELLANT
AFFORDED A
FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC PSYCHIATRIST WAS
DENIED AND
THE GOVERNMENT THEREAFTER AVAILED ITSELF OF A FORENSIC PSYCHIATRIST AND
ATTACKED THE QUALIFICATIONS OF THE VERY EXPERT IT DID MAKE AVAILABLE TO
THE
DEFENSE?
Thursday,
April 30, 2009
APPEALS – SUMMARY DISPOSITIONS
No. 06-0852/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0660/NA.
WHETHER
THE LOWER COURT ERRED IN REASSESSING APPELLANT'S SENTENCE, AS (1) ITS
REASSESSMENT CALCULUS WAS BASED UPON AN ERRONEOUS UNDERSTANDING OF WHAT
SPECIFICATIONS WERE MERGED; (2) IT ABUSED ITS DISCRETION IN FAILING TO
ORDER A
SENTENCE REHEARING IN LIGHT OF APPELLANT BEING SENTENCED UPON TWICE THE
AMOUNT
OF SPECIFICATIONS AS APPROPRIATE; AND (3) THE UNDERLYING LOGIC USED TO
NOT
REDUCE APPELLANT'S SENTENCE WAS FAULTY.
WHETHER
THE LOWER COURT
ERRED IN FINDING THAT POSSESSION OF THE SAME IMAGES OF CHILD
PORNOGRAPHY ON
DIFFERENT MEDIA CAN BE CHARGED AS SEPARATE CRIMES UNDER 18 USC SECTION
2252A.
WHETHER
THE LOWER COURT
Briefs
will be filed under Rule 25.
No. 08-0757/AR.
WHETHER
THE MILITARY JUDGE ERRED IN ADMITTING THE TESTIMONY OF TG UNDER
MILITARY RULES
OF EVIDENCE 413 AND 414.
Wednesday,
April 29, 2009
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0169/AR.
WHETHER
THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT ON OBEDIENCE TO LAWFUL
ORDERS
AS IT PERTAINED TO MALTREATMENT BY HAVING A MILITARY WORKING DOG (MWD)
BARK AT
A DETAINEE WHEN THERE WAS NO EVIDENCE BEFORE THE MILITARY JUDGE THAT
SUCH AN
ORDER WAS ILLEGAL.
WHETHER
THE MILITARY JUDGE ERRED WHEN HE DID NOT INSTRUCT THE PANEL ON
OBEDIENCE TO
ORDERS (LAWFUL OR UNLAWFUL) AS IT PERTAINED TO MALTREATMENT BY HAVING A
MWD
BARK AT JUVENILE DETAINEES.
WHETHER
THE EVIDENCE FOR ALL MALTREATMENT SPECIFICATIONS WAS LEGALLY
INSUFFICIENT,
BECAUSE THE DETAINEES WERE NOT "SUBJECT TO [APPELLANT'S] ORDERS" AND
DID NOT HAVE A "DUTY TO OBEY."
Friday,
April 17, 2009
APPEALS - SUMMARY
DISPOSITIONS
No.
09-0142/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
09-0133/MC.
WHETHER THE LOWER
COURT ERRED
WHEN IT HELD THAT APPELLANT'S UTTERANCE OF "MMMM-MMMM-MMMM" WAS
LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR INDECENT LANGUAGE.
Thursday,
April 9, 2009
CERTIFICATES FOR REVIEW FILED
No. 09-5002/NA.
WHETHER THE LOWER
COURT ERRED
BY FINDING THAT THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED
THE
DEFENSE MOTION TO DISQUALIFY TRIAL COUNSEL FROM FURTHER PARTICIPATION
IN THE
CASE.
WHETHER THE LOWER
COURT ERRED IN SETTING ASIDE THE FINDINGS AND SENTENCE BASED UPON
SPECULATION
THAT THE TRIAL COUNSELS’ CONTINUED PARTICIPATION IN THE CASE COULD HAVE
PREJUDICED APPELLEE, WITHOUT MAKING ANY FINDING THAT THEIR CONTINUED
PARTICIPATION DID MATERIALLY PREDJUDICE APPELLEE, AS REQUIRED BY
ARTICLE 59(a),
UCMJ.
Appellant
will file a brief in accordance with Rule 24 in support of the
certified issues
on or before the 11th day of May, 2009. Appellee
will file an answer no later than 30
days after the filing of Appellant’s brief.
Wednesday,
April 8, 2009
CERTIFICATES FOR
REVIEW FILED
No. 09-5003/AF.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN DENYING
THE UNITED STATES’ REQUEST THAT
THE COURT ORDER AN AFFIDAVIT FROM APPELLEE’S ORIGINAL MILITARY DEFENSE
COUNSEL.
WHETHER
AN “IMPRESSION” LEFT BY CIVILIAN DEFENSE COUNSEL THAT APPELLEE MAY NOT
HAVE TO
REGISTER AS A SEX OFFENDER AMOUNTED TO AN AFFIRMATIVE MISREPRESENTATION
AND LED
TO
Thursday,
April 2, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0707/AF.
APPELLANT WAS
CONVICTED OF
RAPE AND ADULTERY BASED ON A SINGLE ACT OF SEXUAL INTERCOURSE. DURING THE COURT-MARTIAL, THE PROSECUTION'S
EXPERT PSYCHOLOGIST PROVIDED HUMAN LIE DETECTOR TESTIMONY THAT
BOLSTERED THE
ALLEGED VICTIM'S RAPE ACCUSATION. BASED
ON THIS TESTIMONY, THE AIR FORCE COURT OF CRIMINAL APPEALS SET ASIDE
THE RAPE
CONVICTION. HOWEVER, IT AFFIRMED THE
ADULTERY CONVICTION. DID THE COURT ERR
SINCE THE MEMBERS MUST HAVE BASED THEIR ADULTERY CONVICTION ON THE
FORCE AND
CONSENT FINDINGS OF RAPE THAT WERE SET ASIDE?
Wednesday,
April 1, 2009
APPEALS - SUMMARY DISPOSITIONS
Tuesday,
March 31, 2009
APPEALS-SUMMARY DISPOSITIONS
No. 08-0738/NA.
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
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.
WHETHER TRIAL
DEFENSE
COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT,
INEFFECTIVE ASSISTANCE
OF COUNSEL IN THE POST-TRIAL PHASE WHEN HE, WITHOUT CONSULTING WITH
APPELLANT,
SUBMITTED MATTERS TO THE CONVENING AUTHORITY BUT FAILED TO SUBMIT
APPELLANT'S
PERSONAL STATEMENT.
No.
09-0043/AR.
WHETHER APPELLANT
COMMITTED
LARCENIES OF M.S.'S PROPERTY BY ENGAGING IN THE UNAUTHORIZED USE OF HER
CREDIT,
DEBIT, AND ATM CARDS.
WHETHER A
VARIANCE AS TO
OWNERSHIP IN LARCENY CASES IS FATAL IF THERE IS LEGALLY SUFFICIENT
EVIDENCE
THAT APPELLANT STILL COMMITTED A LARCENY OF PROPERTY.
Briefs will be
filed under
Rule 25.
Monday,
March 16, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-0185/AR.
WHETHER,
AFTER FINDING THE EVIDENCE FACTUALLY INSUFFICIENT TO SUPPORT A FINDING
OF
GUILTY TO THE ADDITIONAL CHARGE AND ITS SPECIFICATION (FORGERY), THE
ARMY COURT ERRED
Wednesday,
March 11, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0719/CG.
WHETHER
THE MILITARY JUDGE VIOLATED APPELLANT'S CONSTITUTIONAL RIGHT TO
CONFRONT HIS
ACCUSERS BY LIMITING HIS CROSS-EXAMINATION OF [SR], THE GOVERNMENT'S
ONLY
WITNESS, ON THREE OF THE FIVE CHARGES.
Friday,
March 6, 2009
APPEALS - SUMMARY
DISPOSITIONS
Friday,
February 27, 2009
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0806/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0746/MC.
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
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.
WHETHER THE
WHETHER THE
WHETHER THE
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
WHETHER THE
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
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
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.
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.
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.
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.
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
Tuesday,
February 17, 2009
APPEALS - SUMMARY DISPOSITIONS
Friday,
January 30, 2009
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
January 27, 2009
APPEALS - SUMMARY
DISPOSITIONS
Friday,
January 23, 2009
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0365/AR.
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.
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.
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.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0779/AR.
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.
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.
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.
Thursday,
January 15, 2009
APPEALS-SUMMARY
DISPOSITIONS
No.
09-0018/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0613/AR.
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.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0703/AR.
I.
WHETHER IN LIGHT
OF THE COURT'S RECENT RULING IN UNITED STATES v. LOPEZ DE VICTORIA,
66
M.J. 67 (C.A.A.F. 2008) SPECIFICATION 1 OF CHARGE I, INDECENT LIBERTIES
WITH A
CHILD, SHOULD BE DISMISSED AS BEING TIME BARRED UNDER THE STATUTE OF
LIMITATIONS.
and
on the following specified issue:
II.
WHETHER THE TRIAL
DEFENSE COUNSEL PROVIDED EFFECTIVE ASSISTANCE OF COUNSEL AS TO THE
ISSUE OF
WAIVER OF THE STATUTE OF LIMITATIONS REGARDING SPECIFICATION 1 OF
CHARGE I,
INDECENT LIBERTIES WITH A CHILD.
The decision of
the United
States Army Court of Criminal Appeals is set aside as to Specification
1 of
Charge I and the sentence. The record of
trial is returned to the Judge Advocate General of the Army for remand
to that
court for further appellate inquiry on the granted and specified issues. The Court of Criminal Appeals will obtain an
affidavit from the trial defense counsel relating to the specified
issue. If the court, after reviewing the
affidavit,
determines that a fact-finding hearing is necessary, see United
States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997), that court shall order
a
hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37
C.M.R. 411
(1967). Once the necessary information
is obtained, the court will conduct its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, shall apply.
INTERLOCUTORY ORDERS
No.
08-0376/MC.
Tuesday,
January 13, 2009
APPEALS - SUMMARY DISPOSITIONS
No.
06-0178/AF.
Thursday,
December 18, 2008
APPEALS - SUMMARY
DISPOSITIONS
APPEALS - SUMMARY DISPOSITIONS
Monday,
December 15, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0749/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0594/MC.
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.
*
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
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.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0805/MC.
WHETHER
TRIAL COUNSEL COMMITTED PLAIN ERROR DURING HIS CLOSING
Monday,
December 8, 2008
APPEALS - SUMMARY
DISPOSITIONS
Thursday,
November 20, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 09-6001/MC.
WHETHER
THE
Monday,
November 17, 2008
ORDERS GRANTING PETITION FOR REVIEW
No. 08-6006/MC.
APPEALS - SUMMARY DISPOSITIONS
ORDERS GRANTING
PETITION FOR REVIEW
No.
06-0591/AR.
WHETHER THE
Briefs will be
filed under
Rule 25.
No.
08-0596/AF.
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
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.
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.
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.
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0405/NA.
No.
08-0790/AR.
Thursday,
October 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 06-0299/AF.
No. 08-0750/AR.
* 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
No. 08-0589/AF.
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
Friday,
October 17, 2008
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
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
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.
WHETHER THE
MILITARY JUDGE ERRED IN NOT DISMISSING
CHARGE III AND ITS SPECIFICATION AS MULTIPLICIOUS WITH CHARGE I AND ITS
SPECIFICATION.
No.
08-0737/MC.
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
Thursday,
October 9, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 03-0390/AF.
No. 08-0578/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0376/MC.
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.
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.
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
September 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0674/AR.
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.
Thursday,
September 25, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0519/AR.
Wednesday,
September 24,
2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0495/NA.
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.
I.
WHETHER
THE
II. WHETHER THE
Briefs will be
filed under
Rule 25.
Friday,
September 19, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0602/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0409/NA.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0417/AR.
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.
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
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0518/AF.
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.
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,
Thursday,
September 4, 2008
APPEALS-SUMMARY DISPOSITIONS
No. 08-0335/NA.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
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.
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.
WHETHER THE
CRIMINALITY
NOT PRESENTED BY THE GOVERNMENT AT TRIAL.
WHETHER THE
Briefs
will be filed under Rule 25.
Wednesday,
August 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
September 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0674/AR.
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.
Thursday,
September 25, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0519/AR.
Wednesday,
September 24,
2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0495/NA.
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.
I.
WHETHER
THE
II. WHETHER THE
Briefs will be
filed under
Rule 25.
Friday,
September 19, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0602/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0409/NA.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0417/AR.
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.
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
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0518/AF.
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.
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,
Thursday,
September 4, 2008
APPEALS-SUMMARY DISPOSITIONS
No. 08-0335/NA.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
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.
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.
WHETHER THE
CRIMINALITY
NOT PRESENTED BY THE GOVERNMENT AT TRIAL.
WHETHER THE
Briefs
will be filed under Rule 25.
Wednesday,
August 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
September 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0674/AR.
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.
Thursday,
September 25, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0519/AR.
Wednesday,
September 24,
2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0495/NA.
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.
I.
WHETHER
THE
II. WHETHER THE
Briefs will be
filed under
Rule 25.
Friday,
September 19, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0602/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0409/NA.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0417/AR.
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.
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
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0518/AF.
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.
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,
Thursday,
September 4, 2008
APPEALS-SUMMARY DISPOSITIONS
No. 08-0335/NA.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
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.
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.
WHETHER THE
CRIMINALITY
NOT PRESENTED BY THE GOVERNMENT AT TRIAL.
WHETHER THE
Briefs
will be filed under Rule 25.
Wednesday,
August 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
September 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
05-0674/AR.
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.
Thursday,
September 25, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 07-0519/AR.
Wednesday,
September 24,
2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0495/NA.
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.
I.
WHETHER
THE
II. WHETHER THE
Briefs will be
filed under
Rule 25.
Friday,
September 19, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0602/MC.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0409/NA.
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.
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.
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0417/AR.
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.
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
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0518/AF.
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.
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,
Thursday,
September 4, 2008
APPEALS-SUMMARY DISPOSITIONS
No. 08-0335/NA.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE
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.
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.
WHETHER THE
CRIMINALITY
NOT PRESENTED BY THE GOVERNMENT AT TRIAL.
WHETHER THE
Briefs
will be filed under Rule 25.
Wednesday,
August 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Wednesday,
August 13, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0348/MC.
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
WHETHER, AFTER
FINDING PREJUDICIAL ERROR, THE
Thursday,
August 7, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 08-0339/AF.
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.
WHETHER
THE
Briefs
will be filed under Rule 25.
Tuesday,
August 5, 2008
APPEALS - SUMMARY
DISPOSITIONS
Monday,
July 28, 2008
APPEALS - SUMMARY
DISPOSITIONS
Thursday,
July 24, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
July 15, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0145/AR.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0448/NA.
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
Briefs will be
filed under
Rule 25.
Monday,
July 7, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No.
03-0629/AF.
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.
Thursday,
July 3, 2008
APPEALS-SUMMARY
DISPOSITIONS
No. 08-0474/AR.
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
Wednesday,
July 2, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0573/AR.
* It is directed
that the
promulgating order be corrected to reflect that the beginning date of
the
offense in the Specification of Charge
No. 08-6001/NA.
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.
WHETHER
THE
WHETHER
THE
Wednesday,
June 25, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 08-0225/AR.
WHETHER
THE MILITARY JUDGE ERRED BY DENYING APPELLANT'S MOTION TO EXCLUDE A
PANEL
MEMBER FROM THE COURT-MARTIAL BECAUSE HIS SELECTION VIOLATED ARMY
REGULATION
27-10 AND ARMY REGULATION 40-1.
No
briefs will be filed under Rule 25.
No. 08-0487/AF.
Tuesday,
June 24, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0813/NA.
No.
08-0148/AF.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0173/AR.
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.
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.
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
Friday,
June 20, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0082/CG.
No. 08-0280/NA.
____________________
*
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.
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
Monday,
June 16, 2008
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0392/AR.
WHETHER,
AFTER FINDING A PROPER SIXTH AMENDMENT CONFRONTATION CLAUSE VIOLATION
IN THE
ADMISSION OF P. C.'S STATEMENTS, THE
Thursday,
June 12, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0020/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0900/MC.
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
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0213/NA.
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.
No.
08-0316/NA.
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0200/NA.
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.
Friday,
May 30, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
04-0465/AF.
Thursday,
May 29, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 03-0688/NA.
Tuesday,
May 27, 2008
APPEALS - SUMMARY
DISPOSITIONS
Thursday,
May 22, 2008
APPEALS - SUMMARY
DISPOSITIONS
Tuesday,
May 13, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0169/MC.
Monday,
May 12, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
02-0334/AR.
No.
05-0528/MC.
Friday,
May 9, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0401/NA.
Wednesday,
May 7, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 05-0647/NA.
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.
Tuesday,
May 6, 2008
APPEALS - SUMMARY DISPOSITIONS
No. 05-0013/AR.
Thursday,
May 1, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0848/AF.
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.
WHERE
THE
Briefs
will be filed under Rule 25.
Tuesday,
April 29, 2008
APPEALS - SUMMARY
DISPOSITIONS
No.
08-0283/MC.
WHETHER THE
MEMBERS ERRED WHEN THEY FOUND APPELLANT
GUILTY OF STEALING ‘MILITARY’ PROPERTY IN
Monday,
April 28, 2008
APPEALS-SUMMARY DISPOSITIONS
No.
08-0247/NA.
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.
No. 06-0918/MC.
No.
07-0600/NA.
No.
07-0601/MC.
No.
98-0497/NA.
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0072/AF.
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.
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).
Tuesday,
April 22, 2008
CERTIFICATES FOR
REVIEW FILED
No.
08-5006/CG.
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
Wednesday,
April 16, 2008
APPEALS-SUMMARY DISPOSITIONS
No.
07-0148/AR.
Tuesday,
April 8, 2008
ORDERS GRANTING PETITION FOR REVIEW
No.
08-0366/AR.
* It is directed
that the promulgating
order be corrected to reflect the convening authority’s action as
follows:
Wednesday,
April 2, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0813/NA.
WHETHER THE
MILITARY JUDGE
FAILED TO ESTABLISH THAT APPELLANT TOOK ANY SUBSTANTIAL STEP BEYOND
MERE PREPARATION
TO CROSS THE CRIMINALITY THRESHOLD OF "ATTEMPT," THUS RENDERING THE
PLEA OF GUILTY TO CHARGE II, SPECIFICATION 2, IMPROVIDENT.
Briefs will be
filed under
Rule 25.
No. 08-0246/NA.
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.
Wednesday,
March 26, 2008
No. 08-0186/AF.
** 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.
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.
Thursday, March 20,
2008
APPEALS – SUMMARY DISPOSITIONS
No.
06-0793/AF.
No.
07-0696/MC.
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.
IF THIS COURT
DETERMINES THAT THE
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.
No.
06-0932/NA.
No.
07-0053/NA.
No.
07-0615/NA.
No.
08-0029/AR.
Tuesday, March 18,
2008
APPEALS – SUMMARY DISPOSITIONS
No.
07-0519/AR.
Monday, March 17, 2008
APPEALS – SUMMARY DISPOSITIONS
No.
07-0738/AF.
No.
08-0031/AF.
Thursday,
March 13, 2008
APPEALS - SUMMARY
DISPOSITIONS