YOU ARE HERE: HOME > HEARING CALENDAR > SEPTEMBER 2012 TERM > OCTOBER 2012

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

---

Tuesday, October 9, 2012

9:30 a.m.:

United States v.	Daniel J. Datavs	No. 12-5001/AF
(Appellant/ Cross-Appellee)	(Appellee/ Cross-Appellant)	(audio)

Counsel for Appellant/Cross-Appellee: Capt Tyson D. Kindness, USAF                       -------------------------------- (brief) (Cross-Appellee brief)
Counsel for Appellee/Cross-Appellant: Maj Michael S. Kerr, USAF                      -------------------------------- (brief) (Cross-Appellant brief)

Case Summary:  GCM conviction of making a false official statement and forcible sodomy. Certified issue questions whether the Air Force Court of Criminal Appeals incorrectly applied the standard of law under Strickland v. Washington, 466 U.S. 668 (1984) and Harrington v. Richter, 131 S. CT. 770 (2011), when evaluating whether trial defense counsel was ineffective for not seeking expert assistance during trial after the Government's expert witness testified. Granted issue questions whether Appellant received ineffective assistance of counsel when defense counsel failed to obtain an expert consultant in the field of sexual assault examinations, failed to make challenges for cause against two panel members who were base victim advocates, and failed to properly impeach S.M.R. using her personal telephone records.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

Followed by:

United States v.	Akeem A. Wilkins	No. 11-0486/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Michael Berry, USMC (brief)
Counsel for Appellee: Major Paul M. Ervasti, USMC (brief)

Case Summary:  GCM conviction of abusive sexual contact and forcible sodomy. Granted issue questions whether Appellant's right to due process of law was violated when he was convicted of abusive sexual contact as a lesser included offense of aggravated sexual assault.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

---

Wednesday, October 10, 2012

9:00 a.m.:

United States v.	Chadrick L. Capel	No. 12-0320/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Shane McCammon, USAF (brief)
Counsel for Appellee: Capt Brian C. Mason, USAF (brief)

Case Summary:  SPCM conviction of making a false official statement, larceny and use of another's debit card. Granted issues question (1) whether the evidence is legally sufficient to sustain Appellant's conviction for making a false official statement, Article 107, UCMJ, under this Court's decisions in United States v. Teffeau, 58 M.J. 62 (C.A.A.F. 2002), and United States v. Day, 66 M.J. 172 (C.A.A.F. 2008); and (2) whether the lower court misapplied United States v. Fosler and United States v. Watkins in finding that, despite failing to expressly allege the terminal element, the Article 134 specification here states an offense.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

Followed by:

United States v.	David G. Spicer, Jr.	No. 12-0414/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Frank J. Spinner, Esq. (brief)
Counsel for Appellee: Capt Steve T. Nam, JA, USA (brief)

Case Summary: GCM conviction of making false official statements and endangering a child. Granted issue questions whether the evidence is legally sufficient to support the finding of guilty of making false official statements under Charge I.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

Followed by:

Center for Constitutional Rights et al. v.	United States and Colonel Denise Lind, Military Judge	No. 12-8027/AR
(Appellants)	(Appellees)	(audio)

Counsel for Appellants: Shayana D. Kadidal, Esq.
                 ------------------------------- (writ-appeal petition) (reply brief)
Counsel for Appellees: Capt Chad M. Fisher, JA, U.S. Army (brief)

Case Summary: Appellants requested access to documents in the court-martial proceedings against PFC Bradley Manning, U.S. Army. The military judge treated the request as a request to intervene and denied the request. Appellants sought extraordinary relief from the Army Court of Criminal Appeals. The CCA denied the petition in a summary order. Appellants filed a writ-appeal petition requesting public access to all papers and pleadings filed by the parties, court orders, and transcripts of all proceedings as well as an order to the military judge to reconstitute past R.C.M. 802 conferences in the court-martial of PFC Manning and to conduct future conferences in a manner not inconsistent with the First Amendment right of public access.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

---

Tuesday, October 23, 2012

9:30 a.m.:

United States v.	Andrew D. Tearman	No. 12-0313/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Michael D. Berry, USMC (brief)                     ------------------------------------------- (reply brief)
Counsel for Appellee:  Major William C. Kirby, USMC (brief)

Brief of Amicus Curiae -- Air Force Appellate Defense Division

Case Summary: SPCM conviction of marijuana use. Granted issues question (1) whether the lower court held that the admission, over Appellant's objection, of two pieces of testimonial hearsay found within the DD Form 2624 was harmless error beyond a reasonable doubt. But it misapplied the Sweeney factors and did not consider the Blazier II factors in assessing prejudice. Did the lower court err in holding that the testimonial hearsay did not contribute to Appellant's conviction; and (2) whether the lower court held that the military judge did not abuse his discretion in admitting, over Appellant's objection, the chain-of-custody documents and internal review worksheets because they were non-testimonial. Are these non-machine generated documents and worksheets testimonial?

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

Followed by:

United States v.	Michael A. Garner	No. 12-0282/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: William E. Cassara, Esq. (brief)
Counsel for Appellee: Capt Kenneth W. Borgnino, JA, USA (brief)

Case Summary: GCM conviction of rape, forcible sodomy, indecent assault, possession of child pornography, desertion and disobeying a no-contact order. Granted issues question (1) whether the military judge erred when she failed to give the necessary instructions on sentence reconsideration; (2) whether the Army Court of Criminal Appeals erred when it held that Specification 1 of Charge II states an offense even though the Government did not allege the terminal element, either expressly or by necessary implication, as required by United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

---

Wednesday, October 24, 2012

9:30 a.m.:

United States v.	Andrew P. Halpin	No. 12-0418/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Luke D. Wilson, USAF (brief)
Counsel for Appellee:  Capt Brian C. Mason, USAF (brief)

Case Summary: SPCM conviction of disobeying an order, using Adderall, adultery and reckless endangerment. Granted issues question (1) whether trial counsel's improper sentencing argument amounted to prosecutorial misconduct; (2) whether the military judge prejudicially erred when he failed to stop trial counsel's improper sentencing argument or issue a curative instruction; and (3) whether trial defense counsel rendered ineffective assistance when he failed to object to trial counsel's improper sentencing argument.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

Followed by:

United States v.	Ray A. Vazquez	No. 12-5002/AF
(Appellant)	(Appellee)	(audio)

Counsel for Appellant: Capt Tyson D. Kindness, USAF (brief)                       ------------------------------------------------- (reply brief)
Counsel for Appellee:  William E. Cassara, Esq. (brief)

Case Summary: GCM conviction of aggravated sexual contact with a child. Certified issues question (1) whether the Air Force Court of Criminal Appeals erred by holding that Appellee was not afforded a fundamentally fair trial, as guaranteed by military due process and the UCMJ, when two replacement court members detailed after trial on the merits had begun were presented recorded evidence previously introduced before the members of the court in compliance with Article 29, UCMJ, and R.C.M. 805(d) (1); and (2) whether the Air Force Court of Criminal Appeals erred by failing to find waiver or by failing to conduct a plain error analysis; instead, the court incongruously found the alleged violation of Appellee's right to military due process was per se prejudicial despite declaring that the error was not structural.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.