UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-100
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0260/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0378/AR.
No.
06-0379/AR.
No.
06-0380/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 06-8009/NA.
Misc.
No. 06-8010/NA.
INTERLOCUTORY ORDERS
No.
06-0297/NA.
No.
06-0304/MC.
No.
06-0305/NA.
No.
06-0308/AR.
No.
06-5004/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-099
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0717/MC.
No.
05-0753/AR.
No.
06-0081/AR.
No.
06-0186/AR.
No.
06-0256/AR.
No.
06-0266/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0375/AR.
No.
06-0376/CG.
No.
06-0377/AR.
INTERLOCUTORY ORDERS
No.
05-0741/NA.
MANDATES ISSUED
No.
05-0117/MC.
No.
05-0242/AR.
No.
05-0280/AF.
No.
05-0381/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-098
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0367/AF.
No.
06-0368/AF.
No.
06-0369/AF.
No.
06-0370/AF.
No.
06-0371/AF.
No.
06-0372/AF.
No.
06-0373/AF.
No.
06-0374/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-097
HEARINGS
No.
05-0235/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0366/MC.
INTERLOCUTORY ORDERS
No.
03-0473/NA.
No.
05-0235/NA.
No.
06-0191/NA.
No.
06-0215/MC.
No.
06-0275/MC.
No.
06-0278/AR.
No.
06-0289/NA.
No.
06-0290/MC.
No.
06-0291/NA.
No.
06-0293/AR.
1/
Hearing held
at Florida A & M University College of Law,
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-096
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0365/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-095
HEARINGS
No.
05-5002/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0067/MC.
No.
06-0356/AR.
No.
06-0357/AR.
No.
06-0358/AR.
No.
06-0359/AF.
No.
06-0360/AF.
No.
06-0361/AF.
No.
06-0362/NA.
No.
06-0363/NA.
No.
06-0364/MC.
MANDATES ISSUED
No.
05-0288/AR.
____________
1/
Hearing
held at Barry University School of Law,
2/
Second
petition filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-094
APPEALS - SUMMARY DISPOSITIONS
No. 05-0029/AR.
WHETHER WHAT IS SUBSTANTIALLY ONE TRANSACTION SHOULD
NOT BE MADE THE BASIS FOR AN UNREASONABLE MULTIPLICATION OF CHARGES. THE ARMY COURT OF CRIMINAL APPEALS ERRED BY
FAILING TO CONSOLIDATE THE SPECIFICATION OF CHARGE III AND THE
SPECIFICATION OF
CHARGE I FOR FINDINGS WHERE BOTH OFFENSES ALLEGE THE SAME MISCONDUCT
AND BOTH
HAVE THE SAME FACTUAL PREDICATE.
THEREFORE, THIS COURT SHOULD CONSOLIDATE THE SPECIFICATIONS AND
DISMISS
CHARGE III AND ITS SPECIFICATION AND ORDER A SENTENCE REASSESSMENT.
CRAWFORD,
Judge (dissenting): I respectfully
dissent because the offenses are not multiplicious
and the Court of Criminal Appeals (CCA) did
not err
by not dismissing one of the specifications as an unreasonable
multiplication
of charges.
Initially, Appellant pleaded guilty to
violation of a lawful general regulation by “wrongfully having a
relationship
not required by the training mission with [CR], an initial entry
training
soldier,” maltreatment of a trainee [CR], indecent assault with CR (a
lesser-included offense of rape), adultery with CR, and an improper
relationship with HR. Prior to the
pleas, Appellant asked that the maltreatment of CR be dismissed as an
unreasonable multiplication of charges, in light of the improper
relationship
charge involving CR. In this motion, the
defense conceded that the charges and specifications were not multiplicious. App.
Ex. VI.
During the
providence inquiry, the judge advised
Appellant of the elements of the offense of violating a lawful general
regulation, Army Regulation (AR) 600-20 ¶ 4-15a (
We must also consider that while the
providence inquiry focused on Appellant’s acts with CR, the stipulation
of fact
graphically recounted the language Appellant used to CR that clearly
was not
required by the training mission. Pros.
Ex. 1. The stipulation mentions this
language both in the elements portion and in the narrative. Further, the stipulation
details how Appellant had CR come to his office in the middle of the
night, how
Appellant had sent the other guard away, and how Appellant then closed
the door
and approached CR from behind the desk.
When the Army CCA
found Appellant not guilty of an indecent assault, but guilty of the
lesser-included offense of a disorder, they focused on Appellant’s
status as
cadre, on CR’s status as an initial entry
level
trainee, and on Appellant’s acts with CR.
They did not address the relationship, nor did they address the
language
used by Appellant. The disorder is based
on acts of a traditional nature, not necessarily violative
of AR 600-20 and not duplicating other acts and words that could
expressly
violate the regulation. Appellant
violated Article 92 by ordering a trainee to his office and engaging
her in a
conversation that established a “relationship not required by the
trainee
mission.” Had he stopped there,
Appellant would have been guilty only under Article 92; however, he
chose to
continue with sexual acts, which acts have now been found by the CCA to have comprised only a simple disorder.
Appellant called CR to his office, after
having sent the other guard away, approached her from behind his desk
for other
than a purpose related to the training mission, and then “made
inappropriate
sexual remarks to [CR] such as asking her whether she ever had sex.” Pros. Ex. 1, ¶ 8. Thus, Appellant violated the fraternization
regulation by engaging in a relationship not required by the training
mission
as noted by the judge and as charged by the Government.
Appellant is guilty of the disorder based on
his status, CR’s status, Appellant’s
touching of CR,
and Appellant’s intent. As such, the
disorder does not require a relationship prohibited by AR 600-20 and
excludes
other aspects of the relationship which were covered by the stipulation
of fact
and are consistent with the guilty plea inquiry as mentioned above. When Appellant improperly interacted with CR
as a predicate to the sexual acts, he established a prohibited
relationship,
independent of the sexual acts comprising the disorder.
Thus, there is no multiplicity or
unreasonable multiplication of the charges in this case.
No. 05-0240/MC.
WHETHER
THE COURT BELOW ERRED BY FAILING TO AWARD ANY SENTENCE RELIEF IN
APPELLANT'S
CASE BASED ON EXCESSIVE AND UNREASONABLE DELAY.
The decision of the United States
Navy-Marine Corps 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 Navy for remand
to the United
States Navy-Marine Corps Court of Criminal Appeals for further
consideration of
this issue in light of this Court’s decision in United States v.
Jones,
61 M.J. 80 (C.A.A.F.
2005). 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): I dissent for the
reasons set forth in my separate opinion in United States v. Jones,
61 M.J. 80, 86 (C.A.A.F.
2005)
(Crawford, J., dissenting).
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0029/AR.
No. 05-0240/MC.
No. 06-0027/AF.
WHETHER THE
MILITARY JUDGE ABUSED HIS DISCRETION IN
ADMITTING APPELLANT'S CONFIDENTIAL COMMUNICATIONS WITH A PSYCHOLOGIST
DURING A
COMMANDER-DIRECTED MENTAL HEALTH EVALUATION.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0105/AR.
No.
06-0087/AR.
No.
06-0154/AF.
No.
06-0163/MC.
No.
06-0166/AR.
No.
06-0175/AR.
No.
06-0270/AF.
PETITIONS FOR NEW TRIAL DENIED
No.
05-0105/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0352/AR.
No.
06-0353/AF.
No.
06-0354/AF.
No.
06-0355/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-093
APPEALS - SUMMARY DISPOSITIONS
No. 04-0310/AF.
No. 05-0635/MC.
No. 05-0662/NA.
WHETHER
APPELLANT'S PLEAS TO SPECIFICATIONS 1 AND 2 OF THE CHARGE (VIOLATING 18
U.S.C. § 2252A) WERE PROVIDENT IN LIGHT OF
THIS COURT'S
DECISION IN UNITED STATES v. MARTINELLI,
62 M.J. 52 (C.A.A.F.
2005).
The decision of the United States
Navy-Marine Corps Court of Criminal Appeals as to Specifications 1 and
2 of the
Charge and the sentence is reversed, but is affirmed in all other
respects. The findings of guilty of
Specifications 1 and 2 of the Charge and the sentence are set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to the Court of Criminal
Appeals. That court may either dismiss
Specifications
1 and 2 of the Charge and reassess the sentence based on the affirmed
guilty
findings or order a rehearing. [See also
ORDERS GRANTING PETITION FOR REVIEW this date.]
ORDERS GRANTING PETITION FOR REVIEW
No.
04-0310/AF.
No. 05-0635/MC.
No.
05-0662/NA.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0629/AR.
No.
05-0699/AR.
No.
06-0188/AR.
No.
06-0193/AR.
No.
06-0198/AF.
No.
06-0217/AF.
PETITIONS FOR GRANT OF REVIEW – OTHER SUMMARY
DISPOSITIONS
No.
06-6003/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0351/NA.
No.
06-6004/CG.