450
E Street, Northwest
SCHEDULED HEARINGS
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(Appellee)
(Appellant)
Counsel for Appellant: Capt
Peter H. Griesch, USMC
Counsel for Appellee: LT
Craig A. Poulson, JAGC, USNR
Case
Summary: SPCM conviction of conspiracy,
making a false official statement, using LSD, using and possessing
methamphetamine, using and possessing cocaine, inhaling propellants,
and
communicating a threat. Granted issues
raised by appellate defense counsel question:
(I) whether the lower court erred in affirming the military
judge’s
denial of a mistrial, when the military judge failed to inquire into
the
circumstances of the convening authority’s presence at trial or to
require the
Government to disprove the existence of unlawful command influence once
that
issue was raised; (II) whether a delay of 2031 days between sentencing
and
conclusion of review under Article 66, UCMJ, comports with due process. And the following issue specified by the
Court: (III) whether the sentence was
properly reassessed after the convening authority disapproved a guilty
finding
but neither the Staff Judge Advocate’s recommendation nor the convening
authority’s action reflects cognizance of the sentence reassessment
criteria
under United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and
where the
lower court failed to review the convening authority’s reassessment
under the Sales
criteria.
(Appellee)
(Appellant)
Counsel for Appellant: LT
Robert E. Salyer, JAGC, USNR
Counsel for
Appellee: Major Kevin C.
Harris, USMC
Case Summary: GCM conviction of attempted kidnapping,
attempted robbery, and conspiracy. Granted
issue questions whether the lower court erred by holding that for the
purposes
of R.C.M. 202(c), court-martial jurisdiction attaches at the moment a
criminal
investigation division agent receives an allegation of a crime and an
allegation of a perpetrator of said crime.
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(Appellee)
(Appellant)
Counsel for Appellant: Capt
Rolando R. Sanchez, USMC
Counsel for Appellee: Major
Kevin C. Harris, USMC
Case
Summary: SPCM conviction of AWOL and missing
movement by design. Granted issue
questions whether the lower court erred when it refused to enforce the
pretrial
agreement’s provision to suspend the bad-conduct discharge.
NOTE: Counsel for each side will be allowed 15
minutes to present oral argument in this case.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Jeffrey S. Stephens, USMC
Counsel for Appellee: Maj
Raymond E. Beal II, USMC
Case Summary: SPCM conviction of making a false official
statement, introducing
cocaine onto a military installation, using cocaine, and soliciting
another to
use cocaine.
Specified issue questions
whether the United States Navy-Marine Corps Court of Criminal Appeals
had
jurisdiction to act on the findings and sentence under Article
66(b)(1),
Uniform Code of Military Justice, 10 U.S.C. § 866(b)(1), in light of
the
convening authority’s action that does not appear to have approved a
bad-conduct discharge.
NOTE: Counsel for each side will be allowed 15
minutes to present oral argument in this case.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Eric D. Noble,
Counsel for Appellee: Capt
Isaac C. Spragg,
Case
Summary:
GCM conviction of conduct unbecoming an
officer and dereliction of duty. Granted
issues question: (I) whether the military judge
erred when he considered Appellant's battalion commander’s improper
sentencing
testimony, “If I was sitting in that panel over there as a juror would
I allow
him [Appellant] to remain in the Army?
No---”; and (II) whether the military judge
and the Army Court of Criminal Appeals erred in holding that Military
Rule of
Evidence 606(b) precludes consideration of the military judge’s
post-trial
statement, “I was considering keeping [Appellant] until his commander
said he
did not want him back.”
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(Appellee)
(Appellant)
Counsel for Appellant: Capt
Julie A. Caruso,
Counsel for Appellee: Capt
Larry W. Downend,
Case Summary: GCM conviction of forcible sodomy upon a
child and indecent acts with a child. Granted
issue raised by appellate defense counsel questions:
(I) because life without parole was not an
authorized punishment under the Uniform Code of Military Justice for
forcible
sodomy of a child under twelve years of age, whether Appellant’s
pretrial
agreement is a nullity and it, and the findings and sentence which were
based
upon it, should be set aside as Appellant entered into the agreement
with a
material misunderstanding of the maximum imposable sentence. And the following issue personally asserted
by Appellant: (II) whether Appellant
received ineffective assistance of counsel when his trial defense
counsel
failed to request credit for Appellant’s illegal pretrial restraint and
pretrial confinement and then advised Appellant to affirmatively waive
these
issues.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
David P. Bennett, USAF
Counsel for
Appellee: Maj Michelle M.
Lindo, USAF
Case Summary: GCM conviction of indecent acts and indecent
assault.
Granted issue questions whether the military
judge erred when he denied Appellant’s motion to suppress statements he
made to
the base Inspector General.
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(Appellee)
(Appellant)
Counsel for Appellant: Capt
John N. Page III, USAF
Counsel for Appellee: Maj
Carrie E. Wolf, USAFR
Case Summary: GCM conviction
of assault and violating state
law by carrying and brandishing a knife. Granted issue
questions whether the military
judge
erred in refusing to instruct the members that simple assault was a
lesser-included offense of aggravated assault with a dangerous weapon.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Scott T. Ayers,
Counsel for Appellee: Capt
Isaac C. Spragg,
Case Summary: GCM conviction of indecent assault and false
swearing.
Granted issue questions whether the convening
authority improperly approved forfeiture of all pay and allowances
where
Appellant had already completed his sentence to confinement at the time
the
convening authority took action.
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(Appellee)
(Appellant)
Counsel for
Appellant: Capt John N. Page III, USAF
Counsel for
Appellee: Maj Jin-Hwa Lee Frazier, USAF
Case Summary: GCM conviction of using MDMA, possessing
marijuana, and carrying a concealed
weapon.
Granted issues question: (I)
whether Brady v.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Kimberly Quedensley, USAF
Counsel for Appellee: LtCol
Robert V. Combs, USAF
Case Summary: GCM
conviction of unlawful
entry, indecent assault, and indecent act.
Granted issue questions whether forfeitures were improperly
imposed on
the Appellant’s pay and allowances after he was released from
confinement and
returned to duty status on
NOTE: Counsel for each side will be allowed 15
minutes to present oral argument in this case.
(Appellee)
(Appellant)
Counsel for Appellant: Maj
Bryan A. Bonner, USAF
Counsel for
Appellee: Maj Michelle M.
McCluer,
USAF
Case Summary: GCM conviction of rape, soliciting the
commission of an offense to the prejudice of good order and discipline
in the
armed forces, and possessing percocet.
Granted issues question: (I)
whether the military judge erred by instructing the panel that the
maximum
sentence was life without parole when that punishment was not an
authorized
sentence as its implementation had not yet been ordered by the
President, or,
in the alternative, where insufficient evidence was presented at trial
to prove
that any alleged acts of rape had occurred after 19 November 1997; and
(II)
whether Appellant was subjected to cruel and unusual punishment while
in
post-trial confinement.
NOTE: Counsel for each side will be allowed 15
minutes to present oral argument in this case.
(Appellee)
(Appellant)
Counsel for Appellant: Maj
James M. Winner, USAF
Counsel for
Appellee: Maj Michelle M.
McCluer, USAFR
Case
Summary: GCM
conviction of possessing child pornography, communicating indecent
language to
a child, attempting to communicate indecent language to a child, and
using a
government computer for non-official purposes.
Granted issue questions whether the Air Force Court of Criminal
Appeals
erred by failing to set aside Appellant’s conviction for possession of
child
pornography despite the court’s conclusion that the conviction was
based on
constitutional error. And the following
issues
specified by the Court: (I) as Appellant’s record of trial does not
contain
expert testimony on the actual or virtual nature of the subjects of
photographic or electronic images, does the fact-finding authority of
the Air
Force Court of Criminal Appeals permit that court to determine, in
light of all
other evidence, whether the images themselves depict “actual” children,
sufficient to support Appellant’s conviction based on Title 18 U.S.C. §
2252a;
(II) whether the Air Force Court of Criminal Appeals can review the
images of
alleged child pornography and affirm the findings of guilty of
Specification 1
of Charge II (possession of child pornography in violation of 18 U.S.C.
§
2252(a)(5)(b)) where the military judge as trier of fact applied a
definition
of child pornography that was, in part, unconstitutional, and the
general
finding of guilt does not inform the reviewing court which, if any, of
the
images the finder of fact found to be “virtual” versus “actual”
children; (III)
whether the Air Force Court of Criminal Appeals erred when it reviewed
certain
images of alleged child pornography and affirmed Appellant’s conviction
for
possessing child pornography upon its own conclusion that the images
were of
“real” children where Appellant did not have the opportunity to present
a
defense against the limited constitutional definition of child
pornography; and
(IV) whether the Air Force Court of Criminal Appeals erred when it
reviewed
certain images of alleged child pornography and affirmed Appellant’s
conviction
for possessing child pornography upon its own conclusion that the
images were
of “real” children, thereby removing the Government’s burden of proving
that
the images were of actual and not virtual children beyond a reasonable
doubt in
a trial forum where the Government’s evidence would be subject to
confrontation
and cross-examination.
(Appellee)
(Appellant)
Counsel for Appellant: Capt
Sandra Whittington, USAF
Counsel for Appellee: Maj
Lane A. Thurgood,
USAFR
Case
Summary: SPCM
conviction of dereliction of
duty, carnal knowledge, and obstruction of justice. Granted issues
question: (I)
whether presenting evidence to the military judge that Appellant
had
previously received nonjudicial punishment under Article 15, Uniform
Code of
Military Justice, was plain error when Appellant had not in fact ever
received
nonjudicial punishment under Article 15; and (II) whether the trial
defense
counsel provided ineffective assistance of counsel in sentencing and
post-trial
processing by failing to object to the reference to nonjudicial
punishment on
the personal data sheet.
(Appellee)
(Appellant)
Counsel for Appellant: LT
Brian L. Mizer, JAGC, USNR
Counsel for
Appellee: LT Mark H.
Herrington, JAGC,
USNR
Case
Summary:
SPCM conviction of willfull disobedience of a
lawful command. Granted issues question: (I)
whether the military judge erred when he
declined to give Appellant sentencing credit for a previous nonjudicial
punishment for refusing to receive anthrax vaccine absorbed in
accordance with United
States v. Pierce, 27 M.J. 367 (C.M.A. 1989); and (II) whether the
order
directing Appellant to receive anthrax vaccine absorbed on October 5,
1999, was
unlawful.
(Appellee)
(Appellant)
Counsel for Appellant: LT
Anthony Yim, JAGC, USNR
Counsel for
Appellee: LT Kathleen A.
Helmann,
JAGC, USNR
Case
Summary:
SPCM conviction of unauthorized absence,
breaking restriction, and using marijuana. Granted issue
questions whether
Appellant was deprived of a substantive legal and factual review of his
case
when he died after the Court of Criminal Appeals affirmed his
conviction, but
before the time period for reconsideration had passed, in violation of
the
Constitution and United States v. Rorie, 58 M.J. 299 (C.A.A.F.
2003).