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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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Wednesday, March 1, 2006

9:00 a.m.

United States v.	Brian Dearing	No. 05-0405/NA
(Appellee)	(Appellant)

Counsel for Appellant: David P. Sheldon, Esq.
Counsel for Appellee: Maj Wilbur Lee, USMC

Case Summary: GCM conviction of murder, assault with the intent to inflict grievous bodily harm, assault with a dangerous weapon, and obstruction of justice. Granted issues question: (I) whether the military judge erred by failing to properly instruct the panel regarding Appellant’s right as an aggressor to exercise self-defense in an escalation of force situation, and (II) whether Appellant was provided with a timely post-trial and appellate review under the Uniform Code of Military Justice and the United States Constitution.

10:00 a.m.

United States v.	Donovan K. Frederickson	No. 04-0720/AF
(Appellee)	(Appellant)

Counsel for Appellant: Maj Sandra K. Whittington, USAF
Counsel for Appellee: Maj Heather L. Mazzeno, USAFR

Case Summary: GCM conviction of conspiracy, housebreaking, and opening and stealing mail matter. Granted issue questions whether the Air Force Court of Criminal Appeals erred in finding that none of the staff judge advocate’s comments in his addendum to the staff judge advocate’s review constituted new matter.

NOTE: Each side is allotted 15 minutes to present oral argument.

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Tuesday, March 21, 2006

9:00 a.m.

United States v.	Joseph J. Harding	No. 05-5003/AF
(Appellee)	(Appellant)

Counsel for Appellant: Maj Matthew S. Ward, USAF
Counsel for Appellee: David P. Sheldon, Esq.

Case Summary: Appellee was charged with one specification of rape and one specification of indecent assault at a GCM. In spite of being served with subpoenas and a warrant of attachment, a civilian social worker refused to produce documents pertaining to her counseling sessions with the alleged rape victim. The U.S. Marshals Service did not enforce the writ of attachment. The military judge abated the court-martial proceedings as to the rape charge, severed the indecent assault charge, and directed the indecent assault charge be tried. The prosecution moved to stay the trial on the indecent assault charge, but this was denied. The prosecution’s appeal under Article 62, UCMJ, was dismissed by the Air Force Court of Criminal Appeals as untimely because it was not forwarded within the 20-day period required by the Air Force Court’s rule. It also denied a motion to suspend the rule. The Judge Advocate General of the Air Force then certified the following question: whether the Air Force Court abused its discretion when it denied the United States’ appeal on the basis of untimely filing. On consideration of this question, the U.S. Court of Appeals for the Armed Forces also specified the following issues: (I) whether the action by the Court of Criminal Appeals on the motion to suspend that court’s rules is subject to certification under Article 67(a)(2) and review under Article 67 (c), UCMJ; (II) if so, whether a writ of mandamus is an available remedy in response to the issue certified to the court under Article 67 (a)(2), and, if available, whether it would be an appropriate remedy in this case; (III) whether the action by the Court of Criminal Appeals on the motion to suspend that court’s rules is subject to review and relief under the All Writs Act; and (IV) whether the military judge’s abatement ruling or any procedural matters relating thereto may be appealed by the Government under Article 62(a)(1).

10:00 a.m.

United States v.	William T. Lundy	No. 03-0620/AR
(Appellee)	(Appellant)

Counsel for Appellant: Capt Seth A. Director, JA, USA
Counsel for Appellee: Maj William J. Nelson, JA, USA

Case Summary: GCM conviction of attempted carnal knowledge, sodomy, and indecent acts with a child. Granted issue questions whether the U.S. Army Court of Criminal Appeals erred when it concluded that the implementation of a suspension of reduction in pay grade for six months would still constitute specific performance five years after Appellant’s trial.

NOTE: Each side is allotted 15 minutes to submit oral argument.

10:30 a.m.

United States v.	Jeremy M. Phillippe	No. 05-0674/AR
(Appellee)	(Appellant)

Counsel for Appellant: Capt Stephen P. Watkins, JA
Counsel for Appellee: Capt Flor M. Suarez, JA

Case Summary: SPCM conviction of unauthorized absence. Granted issue questions whether the military judge erred in accepting the Appellant’s guilty plea to a period of unauthorized absence from 24 July 2001 to 31 March 2004 when, in sentencing, Appellant indicated that he returned or attempted to return to military control on three separate occasions during the charged period of unauthorized absence.

NOTE: Each side is allotted 15 minutes to submit oral argument.

3:30 p.m.

United States v.	James H. Finch	No. 05-0453/MC
(Appellee)	(Appellant)

Counsel for Appellant: LT Brian L. Mizer, JAGC, USNR
Counsel for Appellee: LT Kathleen A. Helmann, JAGC, USNR

Case Summary: GCM conviction of conspiracy, violation of orders, making a false official statement, and drunk on duty. Granted issues question: (I) whether Appellant was denied the opportunity to defend himself against Charge I where the military judge’s findings of guilty by exceptions and substitutions resulted in a material variance; (II) whether the military judge erred to the substantial prejudice of Appellant when he failed to suppress Appellant’s statement in accordance with this Court’s ruling in United States v. McOmber, 1 M.J. 380 (C.M.A. 1976), and the Fifth Amendment to the United States Constitution; and (III) whether Appellant has been denied his due process right to timely review of his appeal.

NOTE: This case will be heard at the Catholic University of America Columbus School of Law, Washington, D.C., as part of the Court’s “Project Outreach” Program.