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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001

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Tuesday, October 11, 2005

9:00 a.m.

United States v.	Jemima Harvey	No. 04-0801/MC
(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.

10:00 a.m.

United States v.	Nicholas A. Harmon	No. 05-0172/MC
(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.

1:00 p.m.:

United States v.	Christopher E. Parker	No. 05-0072/MC
(Appellee)	(Appellant)

Counsel for Appellant: Capt Rolando R. Sanchez, USMC
Counsel for Appellee: Capt 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.

1:30 p.m.:

United States v.	Michael J. Politte	No. 05-0271/NA
(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.

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Wednesday, October 12, 2005

9:00 a.m.:

United States v.	James H. Hill	No. 04-0470/AF
(Appellee)	(Appellant)

Counsel for Appellant: Capt Eric D. Noble, JA , USA
Counsel for Appellee: Capt Isaac C. Spragg, JA , USA

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.”

10:00 a.m.

United States v.	David P. Christian	No. 04-0797/AR
(Appellee)	(Appellant)

Counsel for Appellant: Capt Julie A. Caruso, JA , USA
Counsel for Appellee: Capt Larry W. Downend, JA , USA

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.

1:00 p.m.

United States v.	Alexander L. Cohen	No. 04-0606/AF
(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.

2:00 p.m.

United States v.	Michael R. Bean	No. 05-0101/AF
(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.

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Wednesday, October 19, 2005

9:00 a.m.

United States v.	Sharvenckie R. Lonnette	No. 05-0242/AR
(Appellee)	(Appellant)

Counsel for Appellant: Capt Scott T. Ayers, JA , USA
Counsel for Appellee: Capt Isaac C. Spragg, JA , USA

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.

10:00 a.m.

United States v.	Hector R. Gonzalez, Jr.	No. 03-0394/AF
(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. Maryland, 373 U.S. 83 (1963), and R.C.M. 701 required the Government to disclose evidence regarding an August 2000 Brooks Lab analytical false positive urinalysis result and prejudicially erred in failing to do so. And the following issue specified by the Court: (II) whether the Court of Criminal Appeals erred when it found no ineffective assistance of counsel because defense counsel failed to discover exculpatory evidence regarding an August 2000 Brooks Lab analytical false positive urinalysis result.

1:00 p.m.

United States v.	Michael D. Stewart	No. 05-0381/AF
(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 14 April 2002.

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.

1:30 p.m.

United States v.	Joshua P. Lovett	No. 03-0072/AF
(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.

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Thursday, October 20, 2005

9:00 a.m.

United States v.	Javier Cendejas	No. 04-0428/AF
(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.

10:00 a.m.

United States v.	John B. Cary, Jr.	No. 05-0403/AF
(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.

1:00 p.m.

United States v.	Daniel W. Stephens	No. 05-0103/MC
(Appellee)	(Appellant)

Counsel for Appellant: LT Brian L. Mizer, JAGC, USNR F
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.

2:00 p.m.

United States v.	Brandon T. Ribaudo	No. 05-0117/MC
(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).

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.