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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, 2016

9:30 a.m.:

United States v.	Luis G. Nieto	No. 16-0301/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Joshua G. Grubaugh, JA, USA (brief)                                                  ---------------------------------- (reply brief)
Counsel for Appellee:  Capt Tara E. O'Brien, JA, USA (brief)    

Case Summary: GCM conviction of abusive sexual contact, AWOL, violation of a general order, making a false official statement, and indecent visual recording. Granted issue questions whether the military judge erred in denying Appellant's motion to suppress the evidence seized from Appellant's laptop computer.

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

Followed by:

Thomas J. Randolph v.	HV and United States	No. 16-0678/CG
(Appellant)	(Appellee) (Respondent)	(audio)

Counsel for Appellant: LT Jason W. Roberts, USCG
(writ-appeal petition) (writ-appeal reply brief)
Counsel for Appellee: LCDR Kismet R. Wunder, USCG    
(writ-appeal answer)

Brief of Amicus Curiae -- Air Force Appellate Defense Division, joined by the Army Defense Appellate Division, and the Navy-Marine Corps Appellate Defense Division

Brief of Amicus Curiae -- Air Force Appellate Government Division

Brief of Amicus Curiae -- Coast Guard Appellate Defense Division

Brief of Amicus Curiae -- Coast Guard Appellate Government Division

Brief of Amicus Curiae -- Special Victims' Counsel

Brief of Amicus Curiae -- Navy-Marine Corps Appellate Gov't Division

Case Summary: Appellant is charged with dereliction of duty, false official statement, rape, larceny, assault, and uttering a check without sufficient funds. At trial, the defense requested discovery of HV's mental health records. The Government opposed the request under MRE 513. The defense requested an in camera review of HV's communications made to her psychotherapist. The military judge denied the request for discovery of HV's communications, but ordered production of those portions of HV's mental health record indicating a diagnosis, the date of diagnosis, medications prescribed, therapies used, and the resolution of the diagnosed psychiatric condition. HV filed a petition for extra- ordinary relief at the Coast Guard Court of Criminal Appeals. That court granted the petition and Appellant filed a writ-appeal petition in this court. The court will hear oral argument on the issue of whether the "confidential communications" protected by MRE 513 includes records of diagnosis.

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

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Wednesday, October 12, 2016

9:30 a.m.:

United States v.	Todd D. Sewell	No. 16-0360/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:  Capt Ryan T. Yoder, JA, USA (brief)
Counsel for Appellee:   Capt Linda Chavez, JA, USA (brief)

Case Summary: GCM conviction of indecent acts and assault with intent to commit rape. Granted issue questions whether the trial counsel committed prosecutorial misconduct by making improper argument on the findings.

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

Followed by:

United States v.	Michael Z. Pabelona	No. 16-0214/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:  LT Christopher C. McMahon, JAGC, USN
                                             ------------------------ (brief)
                                             ------------------------ (reply brief)
Counsel for Appellee:   Capt Matthew M. Harris, USMC (brief)

Case Summary: GCM conviction of larceny and making a false official request. Granted issue ask if prosecutors must act within the bounds of propriety. Here, in front of members, the prosecutor expressed his opinion of Appellant including, "I think he's an idiot," opined on defense-friendly evidence, characterized Appellant's statements as "ridiculous," vouched for government-friendly evidence, diagnosed Appellant as schizophrenic, asked members to disregard defense arguments, and told members that Appellant "sleeps in a bed of lies." Was this plain error?

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

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Tuesday, October 25, 2016

9:30 a.m.:

United States v.	Justin L. Fetrow	No. 16-0500/AF
(Appellant)	(Appellee)	(audio)

Counsel for Appellant:  Capt Tyler B. Musselman, USAF (brief)
                                               ---------------------------- (reply brief)
Counsel for Appellee:   Capt Johnathan D. Legg, USAF (brief)

Case Summary: GCM conviction of attempted abusive contact with a child, attempted aggravated sexual contact with a child, abusive sexual contact with a child, aggravated sexual abuse of a child. Certified issues question: (1) whether the Air Force Court of Criminal Appeals committed legal error when it found that in order for conduct to constitute child molestation under Mil. R. Evid. 414, the conduct must have been an offense under the UCMJ, or federal or state law, at the time it was committed and, if offered under Mil. R. Evid. 414 (d)(2)(A)-(C), that the conduct must meet the definition of an offense listed under the version of the applicable enumerated statute in effect on the day of trial and (2) whether the Air Force Court of Criminal Appeals committed legal error when it found that the erroneous admission of two acts of indecent liberties committed by Appellee on his child age daughter had a substantial influence on the members' verdict requiring set aside of the findings and sentence.

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

Followed by:

United States v.	Joseph R. Dockery III	No. 16-0296/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:  Maj Lauren A. Shure, USAF (brief)    
Counsel for Appellee:   Maj Mary Ellen Payne, USAF (brief)

Case Summary: GCM conviction of adultery and sexual assault. Granted issues question: (1) whether the military judge erred by granting over defense objection, the Government's challenge for cause against MSgt LW and (2) whether the Air Force Court of Criminal Appeals erred by finding that the military judge did not err, and by concluding that even if the military judge did err there was no prejudice, contrary to this court's precedent in United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015), United States v. Woods, 74 M.J. 283 (C.A.A.F. 2015), United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012) United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007), and United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995).

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

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Wednesday, October 26, 2016

9:30 a.m.:

United States v.	Omar M. Gomez	No. 16-0336/CG
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: LT Philip A. Jones, USCG (brief)                                               ----------------------- (reply brief)
Counsel for Appellee:  LT Tereza Z. Ohley, USCG (brief)    

Case Summary: GCM conviction of sexual harassment, maltreatment, making a false official statement, aggravated sexual assault, aggravated sexual contact, indecent exposure, and a general disorder. Granted issue questions whether the military judge erred by permitting two complaining witnesses to testify on sentencing that Appellant was responsible for their pregnancy complications with no evidence connecting his misconduct to the complications.

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

Followed by:

United States v.	Nathan C. Wilson	No. 16-0267/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Matthew L. Jalandoni, JA, USA (brief)
Counsel for Appellee:  Capt John Gardella, JA, USA (brief)    

Case Summary: GCM conviction of housebreaking, possession of codeine syrup and xanax, and larceny. Granted issue questions whether the military judge erred in denying the defense motion for appropriate relief under Rule for Courts-Martial 917 where the military judge improperly applied Article 130, UCMJ, housebreaking, to a motor pool.

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