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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, December 6, 2005

9:00 a.m.

United States v.	Jessie A. Quintanilla	Nos. 05-0274/MC & 05-5001/MC
(Appellee/Cross Appellant)	(Appellant/Cross-Appellee)

Counsel for Appellant/Cross-Appellee: LT Jason S. Grover, JAGC, USN
Counsel for Appellee/Cross-Appellant: Capt Wilbur Lee, USMC

Case Summary: GCM conviction of attempted murder, carrying a concealed weapon, premeditated murder, aggravated assault, communicating a threat, and obstructing justice. Certified issues question: (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 a court member; (II) whether the Navy-Marine Corps Court of Criminal Appeals improperly considered a post-trial affidavit from a court member in determining that the military judge abused his discretion by granting the Government’s challenge for cause against him; and (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 the court member. And the following granted issues: (I) whether the lower court found error in the military judge's failure to sequester three Government witnesses but held that the error did not prejudice the Appellant. Did the lower court properly apply the test for prejudice under United States v. Langston, 53 M.J. 335 (C.A.A.F. 2000) and United States v. Spann, 51 M.J. 89 (C.A.A.F. 1999)? (II) whether the lower court found that the military judge used an incorrect legal test in granting a Government challenge for cause because a member might have "difficulty" in voting for a death sentence. Did the lower court err in nonetheless concluding that the military judge did not abuse his discretion in granting the challenge for cause? and (III) after the lower court found multiple occasions of prosecutorial misconduct in the court-martial, did it err in determining that the Appellant was not prejudiced by the prosecutorial misconduct?

10:00 a.m.

United States v.	Joshua R. McKeel	No. 05-0363/NA
(Appellee)	(Appellant)

Counsel for Appellant: John B. Wells, Esquire
Counsel for Appellee: Capt Glen R. Hines, Jr., USMC

Case Summary: GCM conviction of indecent assault. Granted issue questions whether the military judge erred in not dismissing the charge and specification because the Appellant relied to his detriment on an agreement for immunity.

1:00 p.m.

United States v.	Jim G. Reily, Jr.	No. 05-0310/AF
(Appellee)	(Appellant)

Counsel for Appellant: Maj Anniece Barber, USAF
Counsel for Appellee: Maj Jin-Hwa L. Frazier, USAF

Case Summary: GCM conviction of dishonorable failure to maintain funds. Granted issue questions whether Appellant’s guilty pleas to several electronic “check card” transactions under the specification of the second Additional Charge were improvident.

2:00 p.m.

United States v.	Scott A. Buber	No. 05-0262/AR
(Appellee)	(Appellant)

Counsel for Appellant: Capt Eric D. Noble, JA, USA
Counsel for Appellee: Capt Michael D. Wallace, JA, USA

Case Summary: GCM conviction of making a false official statement, unpremeditated murder, and assault a child under the age of 16. Granted issue questions whether the Army Court of Criminal Appeals erred in reassessing Appellant’s sentence to two years confinement and a bad-conduct discharge for a single specification of making a false official statement to an investigator.

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

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Wednesday, December 7, 2005

9:00 a.m.

United States v.	Jessie C. Simmons	No. 05-0263/MC
(Appellee)	(Appellant)

Counsel for Appellant: LT Anthony Yim, JAGC, USNR
Counsel for Appellee: LT TyQuili R. Booker, JAGC, USNR

Case Summary: SPCM conviction of hazing and assault. Specified issue questions whether a duty to intervene arises for purposes of aider and abettor liability when a superior witnesses the commission of an offense by or against a service member in his chain of command.

10:00 a.m.

United States v.	Jeffrey G. Toohey	No. 05-0127/MC
(Appellee)	(Appellant)

Counsel for Appellant: Capt Rolando R. Sanchez, USMC
Counsel for Appellee: LT Mark H. Herrington, USMC

Case Summary: GCM conviction of rape and assault. Granted issue raised by appellate defense counsel questions: whether the lower court erred by holding that it was harmless error for the military judge to have ruled that if Appellant were to put into evidence his character of peacefulness then the Government would have the right to put into evidence the pornographic pictures for impeachment purposes. And the following issues specified by the Court: (I) whether the United States Navy-Marine Corps Court of Criminal Appeals erred in determining that Appellant was not denied his due process right to speedy post-trial and appellate review of his court-martial conviction in light of the 644-day period from trial to convening authority’s action, the 146-day period from that action to docketing the record at the Court of Criminal Appeals, and the 1440-day period during which the case was pending at the Court of Criminal Appeals; (II) whether the delay in the post-trial and appellate review of Appellant’s court-martial conviction is so excessive as to give rise to a presumption of prejudice, and if so, what is the effect of that prejudice? See United States v. Jones, 61 M.J. 80 (C.A.A.F. 2005); and (III) whether the United States Navy-Marine Corps Court of Criminal Appeals abused its discretion by denying relief under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), by holding that such sentence appropriateness relief “should only be granted under the most extraordinary of circumstances,” and by concluding “there is nothing so extraordinary about this case that merits the exercise of our Article 66(c) powers.”

1:00 p.m.

United States v.	Daniel G. James	No. 05-0374/AF
(Appellee)	(Appellant)

Counsel for Appellant: Capt John S. Fredland, USAF
Counsel for Appellee: Maj Matthew S. Ward, USAFR

Case Summary: GCM conviction of committing indecent acts upon a child. Granted issue questions whether the military judge erred when he admitted evidence that Appellant engaged in sexual acts with another female under the age of 16 where (A) the alleged acts occurred subsequent to the charged acts, and (B) the evidence admitted was of such an unfairly prejudicial nature as to contribute to the members arriving at a verdict on an improper basis.

2:00 p.m.

United States v.	Jamahl D. Gaston	No. 05-0462/AF
(Appellee)	(Appellant)

Counsel for Appellant: Capt Kimberly A. Quedensley, USAF
Counsel for Appellee: Capt Jefferson E. McBride, USAF

Case Summary: SPCM conviction of AWOL and missing movement through design. Specified issues question: (I) whether Appellant’s guilty plea to being absent from his place of duty at which he was required to be and to his absence being terminated by apprehension was provident; and (II) whether the Air Force Court of Criminal Appeals improperly increased Appellant’s sentence by approving a two-thirds forfeiture of pay at the E-4 rate rather than at the E-1 rate.

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Thursday, December 8, 2005

9:00 a.m.

United States v.	Andrew J. Kisala	No. 04-0246/AR
(Appellee)	(Appellant)

Counsel for Appellant: Capt Todd N. George, JA, USA
Counsel for Appellee: Capt Michael C. Friess, JA, USA

Case Summary: SPCM conviction of willfully disobeying a lawful command. Granted issue personally asserted by Appellant questions whether the order that Appellant submit to an anthrax vaccination on August 24, 2000, was a lawful order under the circumstances at that time.

10:00 a.m.

United States v.	Ocean T. Rose	No. 05-0521/MC
(Appellee)	(Appellant)

Counsel for Appellant: LT Brian L. Mizer, JAGC, USNR
Counsel for Appellee: Maj Kevin C. Harris, USMC

Case Summary: SPCM conviction of willful disobedience of a superior commissioned officer. Granted issues question: (I) whether the order directing Appellant to receive anthrax vaccine absorbed on March 29, 2000, was unlawful; and (II) whether Appellant’s due process right to timely review of his appeal has been denied.