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:
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.
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
No. 07-0894/MC. U.S. v. Robert A.
MCMATH.
CCA 200601191.
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, and the decision of the Court of
Criminal
Appeals is affirmed.
No. 08-0278/AR. U.S. v. Domique*
A. UPSHAW.
CCA 20070741.
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 Court of Criminal
Appeals is
affirmed.
*
It is noted that Appellant’s service record, charge sheet, stipulation,
and
United States Army Court of Criminal Appeals opinion all refer to him
as
Domique.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0826/AR. U.S. v. Bennie B.
GOGUE.
CCA 20050650.
Review granted on the following issue raised
by the Appellant:
WHETHER,
PURSUANT TO 18 U.S.C. §
3585, APPELLANT IS ENTITLED TO CREDIT TOWARD THE CONFINEMENT ADJUDGED
BY A
COURT-MARTIAL FOR CONFINEMENT AT STATE FACILITIES SERVED FOR CHARGES
UNRELATED
TO HIS COURT-MARTIAL SENTENCE AND NOT CREDITED AGAINST ANOTHER SENTENCE.
and
the following issue specified by the Court:
WHETHER,
UNDER UNITED STATES v. WILSON, 503 U.S.
329 (1992), MILITARY JUDGES LACK THE AUTHORITY TO CALCULATE AND APPLY
PRETRIAL
CONFINEMENT CREDIT.
No. 07-0856/AR. U.S. v. Dustin A.
OWENS.
CCA 20070264.
Review granted on the following issue
specified by the Court:
WHETHER,
UNDER 18 U.S.C. §
3585, APPELLANT IS ENTITLED TO CONFINEMENT CREDIT FOR A PERIOD OF
INCARCERATION
THAT HE SERVED IN A STATE FACILITY FOR A STATE OFFENSE UNRELATED TO THE
COURT-MARTIAL.
Thursday,
February 21, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 04-0722/AF. U.S. v. Anthony
J. CLARK.
CCA 34791.
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. 07-0887/AF. U.S. v. Jason P.
ARINDAIN.
CCA 36357.
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.
Friday,
February 15, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0765/NA. U.S. v. Sean C.
SNYDER.
CCA 200602367.
Review granted on the following issues:
WHETHER
THE SPECIFICATION UNDER THE ADDITIONAL CHARGE STATES AN OFFENSE FOR
ATTEMPTED
DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY
JUSTICE
(UCMJ).
WHETHER THE
EVIDENCE WAS LEGALLY SUFFICIENT TO SUSTAIN A
FINDING OF GUILTY TO THE SPECIFICATION UNDER THE ADDITIONAL CHARGE -
ATTEMPTED
DRUNK ON DUTY IN VIOLATION OF ARTICLE 80, UNIFORM CODE OF MILITARY
JUSTICE
(UCMJ).
Briefs
will be filed under Rule 25.
Wednesday,
February 13, 2008
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0759/AR. U.S. v. Thomas M.
RAGER.
CCA
20051520.
On consideration of the petition for grant of
review of the decision of the United States Army Court of Criminal
Appeals, we
conclude that Specification 3 of the Charge constitutes an unreasonable
multiplication of the charges with Specification 2 of the Charge. Accordingly, it is ordered that said petition
is granted on the following issue:
WHETHER THE ARMY COURT ERRED BY
AFFIRMING THE
FINDINGS WHERE SPECIFICATIONS 2 AND 3 OF THE CHARGE CONSTITUTE AN
UNREASONABLE
MULTIPLICATION OF CHARGES UNDER UNITED STATES v. QUIROZ, 55
M.J. 334
(C.A.A.F. 2001).
The
decision of the United
States Army Court of Criminal Appeals is reversed as to Specification 3
of the
Charge, the finding as to this specification is set aside, and this
specification is dismissed. In all other
respects, the decision is affirmed.
No. 07-0786/MC. U.S. v. Mitchell
J. LARAMORE.
CCA 200601023.
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 granted, and the decision of the United States Navy-Marine
Corps
Court of Criminal Appeals is affirmed.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0465/AF. U.S. v. Terry A.
FLETCHER.
CCA 34945.
Review granted on the following issue:
WHETHER
THE MILITARY JUDGE ERRED WHEN HE DENIED TRIAL DEFENSE COUNSEL'S MOTION
TO
SUPPRESS APPELLANT'S POSITIVE URINALYSIS TEST RESULT AND THE EVIDENCE
DERIVED
THEREFROM.
Briefs
will be filed under Rule 25.
No. 07-0401/NA. U.S. v. Russell
B. MULLINS.
CCA 200200988.
Review granted on the following issues:
WHETHER THE LOWER COURT ERRED IN HOLDING
THAT THERE WAS NOTHING IMPERMISSIBLE IN
THE MILITARY JUDGE ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR
TESTIMONY
IN VIOLATION OF MILITARY RULE OF EVIDENCE 702.
WHETHER THE LOWER COURT DENIED APPELLANT
DUE PROCESS WHEN IT DENIED HIM RELIEF DUE
TO EXCESSIVE POST-TRIAL PROCESSING DELAY AND DENIED HIS SUPPLEMENTAL
ASSIGNMENTS
OF ERROR.
Briefs
will be filed under Rule 25.
No. 08-0031/AF. U.S. v. Levi W.
ACKLEY.
CCA 36703.
Review granted on the following issue:
WHETHER
THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION CONTAINS "NEW
MATTER" NOT PROVIDED TO DEFENSE COUNSEL FOR COMMENT, NECESSITATING A
NEW CONVENING
AUTHORITY ACTION IN THIS CASE.
No
briefs will be filed under Rule 25.
Wednesday,
February 6, 2008
APPEALS - SUMMARY DISPOSITIONS
No. 08-0084/NA. U.S.
v. Joshua A.
GIFFORD. CCA 200700296.
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,
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 reflect that the
value of
the military property listed in Charge II is $10.00, not $100.00.
Tuesday,
January 29, 2008
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0636/AR. U.S. v. David P.
BARTLETT, Jr.
CCA 20021244.
Review granted on the following issue:
WHETHER
THE SECRETARY OF THE ARMY'S DECISION TO EXEMPT FROM COURT-MARTIAL
SERVICE
OFFICERS OF THE SPECIAL BRANCHES NAMED IN AR 27-10 CONTRADICTS ARTICLE
25(d)(2), UCMJ, WHICH REQUIRES A CONVENING AUTHORITY TO SELECT
COURT-MARTIAL
MEMBERS BASED UPON AGE, EDUCATION, TRAINING, EXPERIENCE, LENGTH OF
SERVICE, AND
JUDICIAL TEMPERAMENT.
Briefs
will be filed under Rule 25.
No. 07-0795/AF. U.S. v. Jeffrey
R. RUTHERFORD.
CCA 36651.
Review granted on the following issue:
WHETHER
THE MILITARY JUDGE ERRED BY ADMITTING EVIDENCE AT TRIAL THAT WAS
OBTAINED AS A
DIRECT RESULT OF AN ILLEGAL SEARCH OF APPELLANT'S GOVERNMENT ISSUED
LAPTOP COMPUTER.
Briefs
will be filed under Rule 25.
Monday,
January 28, 2008
ORDERS GRANTING PETITION FOR REVIEW
No.
07-0870/AF.
U.S. v. Charles S.
ROACH.
CCA S31143.
Review granted on
the following issues:
WHETHER
THE LOWER COURT ERRED BY DECIDING APPELLANT'S CASE IN THE ABSENCE OF A
SUBSTANTIVE SUBMISSION ON APPELLANT'S BEHALF DESPITE THIS COURT'S CASE
LAW HOLDING
THAT IT IS "ERROR" FOR A COURT OF CRIMINAL APPEALS TO DECIDE A
"CASE WITHOUT ASSISTANCE OF COUNSEL" FOR AN APPELLANT. United States v. May,
47 M.J. 478, 482 (C.A.A.F. 1998).
WHETHER
THE LOWER COURT ERRED BY HOLDING: (1) THAT IT WAS NOT OBJECTIVELY
UNREASONABLE
FOR THE APPELLATE DEFENSE COUNSEL TO FAIL
TO FILE A BRIEF ON APPELLANT'S BEHALF DURING THE 182 DAYS BETWEEN THE
EXPIRATION OF APPELLANT'S BRIEFING DEADLINE AND THE LOWER COURT'S
DECISION IN
APPELLANT'S CASE; AND (2) THAT APPELLANT DEMONSTRATED NO PREJUDICE,
DESPITE
THIS COURT'S CASE LAW HOLDING THAT WHERE APPELLATE COUNSEL "DO
NOTHING" ON AN APPELLANT'S BEHALF, THE "APPELLANT HAS BEEN EFFECTIVELY
DEPRIVED OF COUNSEL, AND PREJUDICE IS PRESUMED."