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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001
Tuesday, April 4, 2006
7:00 p.m.
United States v.
Eric J. Leonard No. 05-0445/AF (Appellee) (Appellant) Counsel for Appellant: Gary Myers, Esquire
Counsel for Appellee: Maj John C. Johnson, USAFCase Summary: GCM conviction of rape. Granted issues question: (I) in light of United States v. Miles, 58 M.J. 192 (C.A.A.F. 2003),
A. whether the military judge erred by not granting two defense challenges for cause against a member whose daughter had been raped five years earlier and a member who had frequent interaction with the alleged rape victim;
B. whether it is appropriate to apply waiver where the defense used its peremptory challenge against one of the two members challenged for cause and, during clemency, made it clear that it would have used that peremptory challenge on the other challenged member but for the military judge's error;
C. whether - if waiver applies - trial defense counsel provided ineffective assistance of counsel by not properly preserving the challenges for cause.
(II) whether the military judge erred by applying MRE 412 to suppress defense evidence of the alleged victim's motive to lie and prior sexual behavior with Appellant; (III) whether the military judge erred by denying a defense motion to suppress a written confession to the Air Force Office of Special Investigations (AFOSI) where - prior to an imminent interrogation - Appellant used a third party to invoke his rights to remain silent and request counsel; (IV) whether the military judge erred by not providing the members a mistake-of-fact instruction where some evidence raised the affirmative defense but Appellant's counsel did not rely on that theory; and (V) whether the evidence is legally sufficient to convict Appellant of rape where the alleged victim claimed to sleep through the entire incident even though she was not drunk, drugged, or suffering from a sleep disorder.
NOTE: This case will be heard at the United States Air Force Academy, Colorado Springs, Colorado, as part of the Court’s “Project Outreach” Program.
9:30 a.m.
United States v.
Roberto Rodriguez-Rivera No. 05-0270/NA (Appellee) (Appellant) Counsel for Appellant: LT Brian L. Mizer, JAGC, USNR
Counsel for Appellee: Maj Kevin C. Harris, USMCCase Summary: GCM conviction of making a false official statement, forcible sodomy with a child, taking indecent liberties with a child, and indecent acts with a child. Granted issues question: (I) whether trial counsel committed prosecutorial misconduct by (1) violating the military judge's orders regarding witness sequestration; (2) by improperly coaching the six-year-old complaining witness during her direct testimony; (3) by purposefully allowing other witnesses to improperly coach the complaining witness during her direct testimony; (4) by failing to be candid with the court-martial regarding the coaching of the witnesses; and (5) by failing to be candid with the court-martial about notes passed from a prosecution witness during the defense's case; (II) whether the military judge erred to the substantial prejudice of Appellant by admitting over defense objection, the inadmissible hearsay statements of the complainant witness; (III) whether the military judge erred to the substantial prejudice of Appellant by granting the Government's challenge for cause of Chief Electronics Technician DJA; (IV) whether the Staff Judge Advocate erred by failing to serve Appellant with a letter from trial counsel to the convening authority that negatively characterized Appellant's unsworn statement; (V) whether the evidence presented on the merits was legally insufficient to prove beyond a reasonable doubt that Appellant took indecent liberties with JK by watching pornographic movies with JK; and (VI) whether Appellant was denied due process of law where the completion of the first level of appellate review took more than six years.
NOTE: This case will be heard at the University of Denver Sturm College of Law, Denver, Colorado, as part of the Court’s “Project Outreach” Program.
10:00 a.m.
United States v.
Ronald H. Barnett, Jr. No. 05-0322/MC (Appellee) (Appellant) Counsel for Appellant: Capt Rolando R. Sanchez, USMC
Counsel for Appellee: LT Mark H. Herrington, JAGC, USNRCase Summary: GCM conviction of violating a general order, maltreatment of a subordinate, making a false official statement, indecent assault, and indecent acts. Granted issue questions whether the lower court erred when it determined that the military judge did not abuse his discretion by admitting evidence of uncharged misconduct in violation of Military Rule of Evidence 404(b) over defense objection.
11:00 a.m.
United States v.
Nicholas Reyes No. 05-0550/MC (Appellee) (Appellant) Counsel for Appellant: LT Brian L. Mizer, JAGC, USNR
Counsel for Appellee: Maj Wilbur Lee, USMCCase Summary: GCM conviction of conspiring to commit assault, assault, assault consummated by a battery, and disorderly conduct. Granted issues question: (I) whether the Court of Criminal Appeals erred by holding that there was no reasonable probability that the result of the proceeding would have been different but for defense counsel’s ineffective assistance in failing to object to the admission of various documents in the Appellant’s service record book; (II) whether the Court of Criminal Appeals erred by holding that Appellant was not materially prejudiced by the military judge’s plain error in admitting into evidence various documents in Appellant’s service record book; and (III) whether the Court of Criminal Appeals erred by holding that Appellant was not materially prejudiced by the military judge’s plain error in instructing the panel that it could sentence the Appellant to a dishonorable discharge.
1:00 p.m.
United States v.
Benjamin D. Thompson No. 05-0575/AF (Appellee) (Appellant) Counsel for Appellant: Maj John N. Page III, USAF
Counsel for Appellee: Capt Jefferson E. McBride, USAFCase Summary: GCM conviction of using, possessing, and distributing marijuana. Granted issue questions whether the military judge erred in admitting evidence of uncharged misconduct (pre-service drug use).
2:00 p.m.
United States v.
Peter A. Ord No. 05-0651/AR (Appellee) (Appellant) Counsel for Appellant: Capt Doug J. Choi, JA, USA
Counsel for Appellee: Capt Michael Friess, JA, USACase Summary: GCM conviction of desertion, larceny, and forgery. Granted issue questions whether the Army Court of Criminal Appeals erred by returning the case for a new post-trial recommendation and action to allow the convening authority to approve a guilty finding when that finding had been omitted from the initial post-trial recommendation and action.
NOTE: Each side allotted 15 minutes to present oral argument.
9:00 a.m.
United States v.
William C. Tanner No. 05-0710/NA (Appellee) (Appellant) Counsel for Appellant: Capt Richard A. Viczorek, USMC
Counsel for Appellee: LT TyQuili R. Booker, JAGC, USNRCase Summary: GCM conviction of rape, forcible sodomy and indecent acts with a child. Granted issue questions whether the lower court erred by holding that it was harmless error beyond a reasonable doubt for the military judge during sentencing to admit Appellant’s prior court-martial conviction that was subsequently reversed.
10:00 a.m.
United States v.
Keith B. Washington No. 05-0650/MC (Appellee) (Appellant) Counsel for Appellant: LT Richard H. McWilliams, JAGC, USNR
Counsel for Appellee: LT Kathleen A. Helmann, JAGC, USNRCase Summary: GCM conviction of carnal knowledge with a child, and indecent acts with a child. Granted issues question: (I) whether legally sufficient evidence was presented to prove the offense of carnal knowledge, and (II) whether the lower court erred when it ruled that a military judge may administer an oath of truthful testimony to a child after the testimony is complete.
2:30 p.m.
United States v.
Stanley E. Edmond No. 03-0086/AR (Appellee) (Appellant) Counsel for Appellant: Capt Scott T. Ayers, JA, USA
Counsel for Appellee: Capt Mason S. Weiss, JA, USACase Summary: GCM conviction of conspiracy, making a false official statement, disposing of military property, larceny of military property, forgery, obtaining cellular phone services under false pretenses, desertion, and using cocaine and marijuana. Granted issues question: (I) whether the Army Court erred when it concluded that there was no evidence of prosecutorial interference in Appellant’s case, and as a result, Appellant was deprived of his Fifth Amendment right to due process and Sixth Amendment right to compulsory process; and (II) whether Appellant’s trial defense counsel was ineffective when he failed to personally inquire why a material defense witness refused to testify after the witness spoke with the prosecutor, and after trial defense counsel was informed that the same witness had allegedly invoked his Fifth Amendment right against self-incrimination.
NOTE: This case will be heard at the Washington College of Law, American University, Washington, D.C., as part of the Court’s “Project Outreach” Program.
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