UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-121
CERTIFICATES FOR REVIEW FILED
No. 05-5001/MC.
I.
WHETHER THE
NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY APPLIED A
HEIGHTENED
STANDARD OF REVIEW IN DETERMINING THAT THE MILITARY JUDGE ABUSED HIS
DISCRETION
BY GRANTING THE GOVERNMENT'S CHALLENGE FOR CAUSE AGAINST MASTER
SERGEANT [B], A
VENIREMAN IN THE CASE.
II. WHETHER
THE
NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS IMPROPERLY CONSIDERED A
POSTTRIAL
AFFIDAVIT FROM MASTER SERGEANT [B], A VENIREMAN IN THIS CASE, IN
DETERMINING
THAT THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE
GOVERNMENT’S
CHALLENGE FOR CAUSE.
III. WHETHER
THE
NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT SET ASIDE BOTH THE FINDINGS AND SENTENCE, RATHER THAN THE
SENTENCE
ALONE, AS A REMEDY FOR THE MILITARY JUDGE’S EXCUSAL OF A VENIREMAN.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0385/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
05-8024/NA.
INTERLOCUTORY ORDERS
No. 05-6001/MC.
No. 05-8024/NA.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-120
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0708/NA.
No. 05-0227/AR.
No. 05-0299/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0384/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
05-8027/AR. Scott A.
BUBER, Petitioner, v. Colonel James
Harrison, Jr.,
In this case, the
United
States Army Court of Criminal Appeals determined that the evidence was
factually insufficient to support several convictions. Having
determined
that Petitioner has already served confinement in excess of the
affirmed sentence,
and that the Respondents have failed to show cause
why
the requested relief should not be granted, we find that he is entitled
to the
requested relief in this case. Accordingly, it is ordered that
said
petition for extraordinary relief in the nature of a writ of habeas
corpus is
hereby granted. Respondents are directed to release Petitioner
from
post-trial confinement immediately.1
CRAWFORD, Judge
(dissenting):
I respectfully
dissent from
the majority’s order to release Petitioner from post-trial
confinement.
Petitioner’s filing of a petition with this Court on the charge and
specification of a false official statement should not preclude the
Government
from seeking a timely reconsideration by the panel of the Court of
Criminal
Appeals of its dismissal of the remaining charges and specifications,
and if
that is denied, from seeking an en banc decision by that court.
Quite
simply, the majority’s action ignores this Court’s discretionary
authority to
suspend temporarily the proceedings before it and encourages the
parties to
race to the courthouse door to cut off reconsideration or en banc
decisions by
the courts below.
Our Court must be alert to
procedural manipulation of the rules. On
This Court could,
by
exercise of its discretion,2
remand to the Court of Criminal Appeals a motion for reconsideration of
that
Court’s factual findings on charges of the utmost gravity -- a motion
returned
to the Government without action by that court based on their
application of a
procedural rule. Instead, the majority now holds that the
expeditious
filing of a petition with this Court on the sole, remaining, and
comparatively
minor, charge irrevocably precludes the Government from seeking
reconsideration
from the court below of a determination designated by Congress as
invulnerable
to appeal in this Court, and pertaining to charges independent of those
that
form the subject of the petition filed with our Court. Surely,
this
constitutes “good cause” under Rule 33.
The non-binding
Discussion
to R.C.M. 1203(d)(2)(B), Manual for Courts-Martial, United States (2002
ed.),
provides: “The placing of a petition for review in proper
military
channels divests the Court of Criminal Appeals of jurisdiction over the
case,
and jurisdiction is thereby conferred on the Court of Appeals for the
Armed
Forces.” The majority holds this discussion is now binding.
Such a
holding not only ignores our discretionary authority but also
encourages a race
to the courthouse door. We should not permit a petition on a
lesser
offense to cut off other appellate options by the parties.3 To
prevent
this action in the future, there should be a change to the Courts of
Criminal
Appeals Rules of Practice and Procedure, Manual, and Code.
Based on the
timely filing
of the Government, until this Court gives the Court of Criminal Appeals
a
reasonable period of time to act on the Motion for Reconsideration on
the
unpremeditated murder charge, Petitioner should be held in post-trial
confinement. United States v. Miller, 47 M.J. 352
(C.A.A.F. 1997)
is not inconsistent. Because the Court refuses to exercise its
discretion, it permits a procedural rule to trump major substantive
issues on
unpremeditated murder and assault of a child charges and
specifications.
I cannot agree and respectfully dissent.
INTERLOCUTORY ORDERS
No. 05-0262/AR.
CRAWFORD, Judge
(dissenting): Remanding the
case for reconsideration would render moot the issue of
certification. Buber
v. Harrison, No. 05-8027, ___ M.J. ___ (C.A.A.F.
No. 05-0262/AR.
CRAWFORD, Judge
(dissenting): See my dissent
in Buber v. Harrison, No. 05-8027, ___ M.J. ___ (C.A.A.F. Mar.
30,
2005)(Crawford J., dissenting).
________________________
1 The Court’s order
does not stand for any of the
propositions set forth in the dissent. The
Government’s
motion for remand and the motion for an extension of time to file a
certificate
for review both lack merit and were denied on that basis.
2 C.A.A.F. R. 33, provides:
“For good cause shown, the Court may suspend any of these rules in a
particular
case, on application of a party or on its own motion, and may order
proceedings
in accordance with its direction.” See also FED. R. APP. P.
2: “On its own motion ... a Court of Appeals may ... for other
good
cause -- suspend any provision of these rules in a particular case and
order
proceedings as it directs....”
3 Cf. Tedford v.
Warner-Lambert, 327 F.3d 423, 428-29 (5th Cir. 2003). “Where a
plaintiff
has attempted to manipulate the statutory rules for determining federal
removal
jurisdiction, thereby preventing the defendant from exercising his
rights [to
remove the case to the federal district court], equity may require that
the
one-year limit in § 1446(b) be extended.”
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-119
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0383/AR.
INTERLOCUTORY ORDERS
No. 04-0669/AF.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-118
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0377/AR.
No. 05-0378/AR.
No. 05-0379/AR.
No. 05-0380/AF.
No. 05-0381/AF.
No. 05-0382/NA.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-117
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0494/AF.
No. 05-0364/AR.
No. 05-0365/AR.
No. 05-0366/MC.
No. 05-0367/MC.
No. 05-0368/AF.
No. 05-0369/AF.
No. 05-0370/AF.
No. 05-0371/AF.
No. 05-0372/AF.
No. 05-0373/AF.
No. 05-0374/AF.
No. 05-0375/AF.
No. 05-0376/AF.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
05-8028/AF. Bryan P. WALSWORTH,
Petitioner, v. The Air Force Court of Criminal Appeals, Major
General
Jack L. Rives, Deputy Judge Advocate General Performing the Duties of
The Judge
Advocate General, and the
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
05-8028/AF. Bryan P. WALSWORTH,
Petitioner, v. The Air Force Court of Criminal Appeals, Major
General
Jack L. Rives, Deputy Judge Advocate General Performing the Duties of
The Judge
Advocate General, and the
INTERLOCUTORY ORDERS
No. 05-0260/AF.
No. 05-0299/NA.
No. 05-0330/NA.
____________
*/ Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-116
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0778/AR.
WHETHER THE
MILITARY JUDGE ERRED BY FAILING TO
CONSOLIDATE SPECIFICATIONS 1 AND 2 OF THE ADDITIONAL CHARGE FOR
FINDINGS WHERE
APPELLANT USED ONE DRUG THAT WAS LACED WITH ANOTHER DRUG HE DID NOT
KNOW HE WAS
INGESTING.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 05-0215/AR.
No. 05-0222/AF.
No. 05-0246/AR.
No. 05-0248/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0360/AR.
No. 05-0361/AR.
No. 05-0362/AR.
No. 05-0363/NA.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-115
APPEALS - SUMMARY DISPOSITIONS
No. 04-0513/MC.
I. WHETHER
APPELLANT’S GUILTY PLEA TO
KNOWINGLY RECEIVING AND POSSESSING CHILD PORNOGRAPHY CAN BE AFFIRMED IN
LIGHT
OF THE SUPREME COURT’S DECISION IN ASHCROFT v. FREE SPEECH COALITION,
535 U.S. 234 (2002), AND THE COURT OF APPEALS FOR THE ARMED FORCES’
DECISION IN
UNITED STATES v. O’CONNOR, 58 M.J. 450 (C.A.A.F. 2003).
II. WHETHER APPELLANT
WAS SUBJECTED TO UNLAWFUL PRETRIAL PUNISHMENT WHEN THE CONDITIONS OF
HIS
PRETRIAL CONFINEMENT VIOLATED ARTICLE 13, UNIFORM CODE OF MILITARY
JUSTICE
(UCMJ), AND ALSO CONSTITUTED CRUEL AND UNUSUAL PUNISHMENT.
ISSUE I
The
providence inquiry established the “‘actual’ character of the visual
depictions” of child pornography at issue in this case.
Accordingly, we hold that the providence inquiry supports the finding
of guilty
to Charge III and its relevant supporting specifications.
ISSUE II
Before
the lower court, Appellant challenged several aspects of his pretrial
confinement
at the Marine Corps Base Brig,
In an unpublished opinion, the lower court rejected this
challenge.
After quoting
that portion of the record, the lower court wrote, “We find this
colloquy more
than sufficient to determine what, if any, Article 13 and Article 55, UCMJ, issues existed in the appellant’s
case.” The
lower court then specifically discussed Appellant’s challenge to the
brig’s
lack of a law library. Without mentioning any other aspect of
Appellant’s
pretrial confinement, the court ruled:
Based
on the
aforementioned, we find that the appellant’s pretrial confinement
conditions were
not more rigorous than necessary to ensure his presence at trial, nor
did those
conditions amount to cruel and unusual punishment. Furthermore,
we find
that the appellant affirmatively waived this issue and, finding no
plain error,
he is not entitled to relief.
(citing United
States v. Inong, 58 M.J. 460, 461
(C.A.A.F. 2003)).
The lower court’s reliance on Inong was legally erroneous. Inong expressly held that its “raise or waive” rule for illegal pretrial punishment issues was to be applied prospectively only. 58 M.J. at 464-65. This case was tried in 2001, two years before Inong was decided. Accordingly, United States v. Huffman, 40 M.J. 225 (C.M.A. 1994), not Inong, governs this case.
The
We cannot determine whether the lower court’s opinion included a ruling
on the
merits of Appellant’s illegal pretrial punishment issue. A
literal
reading of the opinion suggests that it does not. The lower court
wrote
that the quoted colloquy from the record of trial is “more than
sufficient to
determine what, if any, Article 13 and Article 55, UCMJ, issues existed
in the
appellant’s case.” This suggests that
the lower court was not ruling on
the merits of the challenges that Appellant raised post-trial in his
brief and
declaration. Nevertheless, the lower court specifically addressed
one
aspect of that challenge, but did not specifically address the
remainder.
In light of the
ambiguity in the lower court’s resolution of this case and its
erroneous
reliance on Inong, we remand the case to the lower court to
evaluate
Appellant’s illegal pretrial punishment claim under Huffman.
The decision of the Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and set aside as to sentence. The record is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration of Appellant’s contention that he was subjected to illegal pretrial punishment. Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), shall apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]
CRAWFORD, Judge
(dissenting):
Because there is “an
affirmative fully developed waiver on the record” that fully satisfies United
States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994), I respectfully
dissent. Although the lower court mistakenly cited United
States v.
Inong, 58 M.J. 460 (C.A.A.F. 2003), rather than Huffman in
its
opinion, it found an affirmative waiver on the record. The
following
colloquy, from the record, supports this finding:
MJ: [I]
calculate 251 days [of pretrial
confinement]. Is that what both sides come up with also?
TC: Yes sir.
CC: Yes,
sir.
MJ:
Okay. Has there been any other type
of pretrial restraint in this case?
CC: No, sir.
TC: No, sir.
MJ: Has
there been any other type of pretrial
punishment in this case?
CC: No, sir.
MJ: And you
agree with that [trial counsel]?
TC: Yes,
sir.
MJ: And
Staff Sergeant McKenzie, you agree
with that also, you’ve not been subject to any other punishment in this
case
other than the pretrial confinement?
ACC: No, sir.
MJ:
No. No as in there has been no other
pretrial punishment; right?
ACC: Yes,
sir.
Thus, the record includes
an affirmative waiver, so there is no reason to remand this case when
our order
could correct the mistaken cite.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0470/AR.
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---"
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."
No. 04-0513/MC.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 05-0078/AF.
No. 05-0225/AR.
No. 05-0226/AR.
No. 05-0256/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-6002/NA.
INTERLOCUTORY ORDERS
No. 03-0072/AF.
No. 05-0262/AR.
No. 05-0299/NA.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-114
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0765/AR.
No. 05-0267/AR.
No. 05-0268/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0359/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
04-8020/NA. Kenneth G.
PARKER, Petitioner, v.
The Government
stated in this Court that
(a) “[m]ental retardation
is generally thought to be present if an individual has an IQ
[intelligence
quotient] of approximately 70 or below” and that “[t]here is a standard
of
error of measurement, which is approximately 5 points overall,”; and
(b)“a full scale
Intelligence Quotient (IQ) test” administered prior to Petitioner’s
court-martial determined Petitioner’s IQ to be 74. See Atkins
v. Virginia, 536
That the Court of
Criminal Appeals shall consider
such other issues as may be raised by the parties; and
That the stay
previously ordered by the Court in
“all matters before the court below regarding the Mental Health
Evaluation of
Petitioner” shall remain in effect pending further order of this Court.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-113
APPEALS - SUMMARY DISPOSITIONS
No. 04-0757/NA.
WHETHER THE LOWER
COURT ERRED AND CREATED A SPLIT
AMONG THE SERVICE COURTS WHEN IT FOUND THE CONVENING AUTHORITY'S ACTION
AMBIGUOUS BUT REFUSED, INCONSISTENT WITH R.C.M. 1107(g), TO RETURN THE
RECORD
OF TRIAL TO THE CONVENING AUTHORITY FOR A NEW ACTION.
As the result of his conviction of various offenses at a special
court-martial,
Appellant was sentenced to a bad-conduct discharge, confinement for
seven months,
forfeiture of $700 pay per month for seven months, and reduction to pay
grade
E-1. The convening authority’s action stated that “only so much
of the
sentence as provides for confinement for six (6) months and forfeiture
of seven
hundred dollars ($700.00) pay per month for six (6) months is approved
and,
except for the part of the sentence extending to the bad conduct
discharge,
will be executed.”
While the case was pending before the Navy-Marine Corps Court of
Criminal
Appeals, Appellant moved to dismiss the appeal. He argued that
the
convening authority had disapproved the adjudged bad-conduct discharge,
thereby
depriving the Navy-Marine Corps Court of jurisdiction. The lower
court
initially denied that motion but ordered that the record be returned to
the
Judge Advocate General of the Navy for remand for a new convening
authority’s
action.
The Government then moved to reconsider that order. The
Government
provided the lower court with an affidavit from the original convening
authority.
The affidavit stated:
Review of my
action shows that it was not artfully
drafted. As drafted, my action appears to approve only six (6)
months of
confinement, and six (6) months of forfeitures, and disapprove the
reduction to
the paygrade of E-1 and the bad-conduct discharge. That was not my
intention.
In taking my
action, it was my intention to approve
the bad-conduct discharge, the reduction to the paygrade of E-1, and
the
confinement and forfeitures, but to limit the time of confinement to
six (6)
months, and to limit the amount of forfeitures to seven hundred dollars
($700.00) pay per month for six (6) months.
The lower court granted both the Government’s motion to file this
affidavit and
the Government’s motion to set aside its previous order. In its
ultimate
ruling on the merits of the case, the
Citing our opinion in United States v. Pineda, 54 M.J. 298, 299 n.1 (C.A.A.F. 2001), the lower court held
that it was
free to “review all relevant matters, including affidavits from the CA,
to
determine what sentence or portion of the sentence was approved.”
Robbins,
60 M.J. at 610. Appellant, however,
argued that Pineda
was inapposite because in that case, the appellant did not object to
our
consideration of the convening authority’s affidavit. In this
case, on
the other hand, Appellant opposed the
While the
While the lower court’s reliance on Pineda was understandable,
we agree
with Appellant that this case should be distinguished. The Pineda
footnote upon which the lower court relied observed that the convening
authority’s affidavit “was made part of the record without appellant’s
objection.” 54 M.J. at 299 n.1.
The same
is technically true in this case. Appellant did not object when
the
affidavit was originally attached to the record. Nevertheless, in
his
ultimate brief on the merits, Appellant challenged the lower court’s
jurisdiction and argued that it could not consult the convening
authority’s
affidavit without violating Rule for Courts-Martial 1107(f)(2), which
prohibits
a convening authority from recalling and modifying an action after the
case has
been forwarded to one of the four Courts of Criminal Appeals.
Based on
this objection, we decline to allow the Pineda footnote to
govern this
case’s resolution.
The convening authority’s action was ambiguous. Rule for
Courts-Martial
1107(g) allows us to instruct the convening authority to withdraw an
ambiguous
action and to substitute a corrected action. We conclude that in
this
case, using that power is the optimal method of resolving the ambiguity
in the
convening authority’s action.
Accordingly, 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 submission to the convening
authority
for a corrected action in accordance with Rule for Courts-Marital
1107.
Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10
U.S.C. §§
866 and 867 (2000), will apply. [See also ORDERS GRANTING
PETITION FOR
REVIEW this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0757/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0356/AR.
No. 05-0357/AR.
No. 05-0358/AR.
INTERLOCUTORY ORDERS
<