450
E Street, Northwest
SCHEDULED
HEARINGS
______________________________________________________________
______________________________________________________________
Monday,
January 11, 2010
9:30 a.m.
(Appellee)
(Appellant)
Counsel for Appellant: Col.
Dwight H. Sullivan, USMCR
Counsel for Appellee: LT
Timothy H. Delgado, JAGC, USN
Counsel for Non-Party
Appellee: Lee Levine, Esq.
Case Summary: GCM prosecution
for dereliction of duty and
manslaughter. At trial, the prosecution
issued a subpoena to CBS Broadcasting, Inc. for outtakes of a 60 minutes interview of the Appellant,
however, the military judge granted a motion filed by CBS to quash the
subpoena. The prosecution brought an
appeal to the U.S. Navy-Marine Corps Court of Criminal Appeals under
Article
62, UCMJ. That court directed the
military judge to conduct an in camera
review over any material that CBS asserted a privilege, to develop a
factual ad
legal basis for CBS’s refusal to comply with the subpoena if any of the
undisclosed material is relevant and necessary, and to address whether
and to
what extent any news-gathering privilege applied. This
Court vacated the decision of the Court
of Criminal Appeals and the order of the military judge quashing the
Government’s subpoena. It returned the
case to the military judge for further consideration of whether relief
should
be granted to CBS Broadcasting, Inc., under R.C.M. 703, following the
military
judge’s in camera inspection of the requested material.
After reviewing the material in camera, the
military judge again granted CBS’s motion to quash, finding that a
newsgathering privilege applied. The
Government appealed. The Court of
Criminal Appeals vacated the military judge’s ruling, holding that the
facts
presented did not support the recognition of a reporter’s privilege. The Judge Advocate General certified the
following issues to the Court: (1) whether a “reporter’s privilege”
applies in
military courts-martial under the First Amendment to the Constitution
of the
United States and Military Rule of Evidence 501(a) (1); (2) whether a
“reporter’s privilege” applies in military courts-martial under
Military Rule
of Evidence 501(a) (4) as a principle of common law generally
recognized in the
trial of criminal cases in the United States District Courts pursuant
to Rule
501 of the Federal Rules of Evidence; and (3) whether the military
judge abused
his discretion in applying a “reporter’s privilege” under Military Rule
of Evidence
501 (a) (4) as the basis for quashing a Government subpoena for CBS’s
nonbroadcast audio-video “outtakes” of an interview with the accused
that were
otherwise discoverable under Rule for Courts-Martial 703?
NOTE:
Counsel for Appellant, Appellee, and Non-Party Appellee, CBS
Broadcasting,
Inc., will each be allotted 20
minutes
to present oral argument.
Tuesday,
January 12, 2010
9:30 a.m.
(Appellee)
(Appellant)
Counsel for Appellant: Gary
Myers, Esq.
Counsel for Appellee:
Capt Joseph Kubler, USAF
Case Summary: GCM conviction
of soliciting indecent liberties. Granted issue questions whether the
military
judge erred in denying the defense motion to suppress Appellant’s oral
and
written statements based on a violation of Article 31, UCMJ; an issue
specified
by the Court questions whether the facts charged in the specification
are
sufficient as a matter of law to support a charge for solicitation of
indecent
liberties with a child under Article 134, UCMJ, where the person
solicited was
that child.
NOTE: Counsel for each side will be allowed
20
minutes to present
oral argument.
Followed
by:
(Appellee) (Appellant)
Counsel
for Appellant: Capt Andrew J. Unsicker, USAF
Counsel
for Appellee: Capt Michael T. Rakowski, USAF
NOTE:
Counsel for each side will be
allowed 20
minutes to present
oral argument.
Wednesday,
January 13, 2010
9:30 a.m.
(Appellee)
(Appellant)
Counsel for Appellant: LT Sarah E. Harris,
JAGC, USN
Counsel for Appellee: LT Timothy H. Delgado,
JAGC, USN
Case Summary: GCM
conviction of knowingly and wrongfully
possessing visual depictions of minors engaging in sexually explicit
conduct. Granted issue questions whether
by finding the 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.
NOTE:
Counsel for
each side will be allowed 20 minutes to present
oral argument.
Followed by:
(Appellee) (Appellant)
Counsel for Appellant: Maj Darrin K. Johns,
USAF
Counsel for Appellee:
Case Summary: GCM conviction of rape, assault, and
communicating a threat. Granted
issue questions whether the military judge’s denial of Appellant’s
Sixth
Amendment right to confront a witness against him was harmless error
when the judge
prohibited Appellant from demonstrating that his wife, the alleged rape
victim,
had a motive to fabricate the issue of consent based on her
extramarital
romantic relationship that gave her an incentive to either get
Appellant out of
the picture or protect her extramarital relationship.
NOTE:
Counsel for each side will be
allowed 20
minutes to present
oral argument.
Monday,
January 25, 2010
9:30 a.m.
(Appellee)
(Appellant)
Counsel for Appellant: Dwight
H. Sullivan, Esq.
Counsel for Appellee:
Case summary: SPCM
conviction of use of cocaine and willful dereliction of duty by misuse
of
government travel card. Granted issues question (1) whether the Air
Force Court
erred by refusing to vacate its ruling in light of the actions of the
Chief
Judge regarding the appointment of his replacement after he had recused
himself;
(2) whether the Air Force Court erred by basing its sentence disparity
analysis
on Appellant’s and his co-actor’s adjudged sentences rather than their
approved
sentences; (3) whether the Air Force Court erred by denying Appellant’s
motion
to compel production of e-mails sent between the Chief Judge and
Appellate
Government Counsel about this case following the Chief Judge’s recusal;
(4)
whether Appellant’s due process right to reasonably prompt Appellate
review was
denied by the delay in this appeal arising from the Air Force Court’s
processing of this appeal during its initial review.
NOTE: Counsel
for each side will be allowed 20 minutes to present oral
argument.
Followed by:
(Appellee) (Appellant)
Counsel for Appellant: Maj
Lance J. Wood, USAF
Counsel for Appellee: Maj
Coretta E. Gray, USAF
Case summary: GCM conviction of use of ecstasy,
methamphetamine, and marijuana and
dereliction of duty. Granted issue
questions whether, in light of Crawford v. Washington, 541 U.S.
36
(2004), Appellant was denied meaningful cross-examination of government
witnesses in violation of his Sixth Amendment right of confrontation
when the
military judge did not compel the government to produce essential
Brooks Lab
officials who handled Appellant’s urine samples and instead allowed the
expert
toxicologist to testify to non-admissible hearsay.
See Melendez-Diaz v.
NOTE: Counsel
for each side will be allowed 20 minutes to present oral
argument.
Tuesday,
January 26, 2010
9:30 a.m.
(Appellee) (Appellant)
Counsel for Appellant: Capt
Jennifer J. Raab, USAF
Counsel for Appellee: Gerald
R. Bruce, Esq.
Case summary: GCM conviction of attempting to
transfer
obscene materials to a minor,
communicating indecent language to a person believed to be a minor,
indecent
exposure and possession of child pornography. Granted issue questions
whether
Appellant’s plea to indecent exposure was provident.
NOTE: Counsel
for each side will be allowed 20 minutes to present oral
argument.
Followed by:
(Appellee)
(Appellant)
Counsel for Appellant:
Counsel for Appellee: Capt
James M. Hudson,
Case summary: GCM conviction of possession of adult
and child pornography. Granted
issues
question (1) whether the military judge erred in concluding that no
soldier at Forward
Operating Base (FOB) loyalty had
reasonable expectation of privacy in any regard; (2) whether the
military judge
erred in denying a motion to suppress Appellant’s external hard drive
and
password protected laptop when the commander who ordered the seizure of
the
equipment immediately searched the equipment upon seizure,
demonstrating that
he was performing law enforcement functions and was not neutral and
detached
when seizing the items; (3) whether the doctrine of inevitable
discovery is
applicable when there are no independent police activities, or
testimony or evidence
of routine police practices, that would have inevitably resulted in
discovery,
and no other exception to the Fourth Amendment applies.
NOTE: Counsel
for each side will be allowed 20 minutes to present oral
argument.
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