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NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 7/9/14)

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Tuesday, July 8, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-6010/AF. U.S. v. Aaron M. BUFORD. CCA 2013-26. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 this date on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE FROM THE DELL LAPTOP, HEWLETT-PACKARD LAPTOP, AND CENTON HARD DRIVE.

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0568/AR. U.S. v. Edwin ZELAYA. CCA 20110507. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is noted that the military judge neglected to seal the portion of the record and exhibit pertinent to an MRE 412 closed hearing. Accordingly, the Clerk is directed to seal Defense Exhibit A and pages 226-232 of the transcript.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-6009/MC. U.S. v. Ruben VARGAS. CCA 201300426. Review granted on the following issue:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY INTERPRETED ARTICLE 62, UCMJ, TO ALLOW A GOVERNMENT APPEAL OF THE MILITARY JUDGE'S DENIAL OF A CONTINUANCE REQUEST AS WELL AS THE MILITARY JUDGE'S ORDER RESTING THE GOVERNMENT'S CASE.

 

In accordance with Rule 19(a)(7)(A), Rules of Practice and Procedure, no further pleadings will be filed.




Friday, June 27, 2014

APPEALS-SUMMARY DISPOSITIONS

 

No. 13-0531/AF. U.S. v. Matthew B. ALBRIGHT. CCA 37961. Upon further consideration of the granted issue, 73 M.J. 193 (C.A.A.F. Jan. 2, 2014), and in light of United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), before a properly constituted panel of that court.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Upon further consideration of the granted issue, 73 M.J. 138 (C.A.A.F. Dec. 23, 2013), it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE DE FACTO OFFICER DOCTRINE CONFERRED VALIDITY UPON JUDGE SOYBEL'S PARTICIPATION IN THE AIR FORCE COURT OF CRIMINAL APPEALS' DECISION IN APPELLANT'S CASE. SEE RYDER v. UNITED STATES, 515 U.S. 177, 182-84 (1995); NGUYEN v. UNITED STATES, 539 U.S. 69, 72-73 (2003); UNITED STATES v. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685 (1960); AYSHIRE COLLIERIES CORP. v. UNITED STATES, 331 U.S. 132 (1947); NORTON v. SHELBY COUNTY, 118 U.S. 425, 446 (1886); UNITED STATES v. JANSSEN, 73 M.J. 221 (C.A.A.F. 2014); UNITED STATES v. ELLIOTT, 15 M.J. 347 (C.M.A. 1983).

 

Briefs will be filed under Rule 25.

 

No. 14-0322/MC. U.S. v. Matthew A. GILBREATH. CCA 201200427. Review granted on the following issues:

 

I. WHETHER INDIVIDUAL READY RESERVISTS, SUBJECT TO PUNISHMENT UNDER THE UCMJ, ARE ENTITLED TO THE PROTECTIONS OF ARTICLE 31(b) WHEN QUESTIONED BY SENIOR SERVICE MEMBERS ABOUT SUSPECTED MISCONDUCT COMMITTED ON ACTIVE DUTY.

 

II. WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT APPELLANT'S STATEMENTS WERE ADMISSIBLE UNDER ARTICLE 31(b), UCMJ, AND MILITARY RULE OF EVIDENCE 305.

 

Briefs will be filed under Rule 25.

 

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499. Review granted on the following issue:

 

WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA), 18 U.S.C. SECTION 2250(a) (2006), APPLIED TO APPELLANT AS A RESULT OF EITHER THE ATTORNEY GENERAL'S 2007 INTERIM RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v. LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v. REYNOLDS, 710 F.3d 498 (3d Cir. 2013.)

 

Briefs will be filed under Rule 25.*

 

* Judge Ohlson has recused himself from participation in this case.




Monday, June 23, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0603/AR. U.S. v. Ryan R. MCINTYRE. CCA 20130374. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

*The military judge merged Specifications 1 and 2 of Charge I and convicted Appellant of the offense of conspiracy to steal and sell fuel, military property of the United States. The new specification is found at Appellate Exhibit V. However, the court-martial promulgating order omitted the words, "and selling of fuel" from Appellate Exhibit V. Accordingly, we direct that the court-martial promulgating order be corrected by adding the words "and selling of fuel" after the words, "larceny of fuel."




Tuesday, June 17, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0491/AR. U.S. v. Jacob T. NEMETH. CCA 20120653. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S PLEA OF GUILT TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT'S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER'S OFFICE TO LIFT THE DUTY "ABOVE THE COMMON RUCK."

 

No briefs will be filed under Rule 25.




Thursday, June 12, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE MARITAL PRIVILEGE.

 

Briefs will be filed under Rule 25.




Wednesday, June 11, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-5009/AF. U.S. v. Patrick J. HUEY. CCA 38139. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT IMAGES 00395505, 00394392, 00395408, 00395454, 00365481, FROM PROSECUTION EXHIBIT 11; THE THIRD AND FOURTH IMAGES ON PAGE 5, THE SECOND IMAGE ON PAGE 7, THE IMAGE ON PAGE 9, THE IMAGE ON PAGE 12, AND THE IMAGE ON PAGE 14 OF PROSECUTION EXHIBIT 14; IMAGE 00180276 IN THE "NON NCMECCP" FOLDER AND IMAGES ON PAGES 11, 14, 29, 31, 41, AND 42 IN THE WORD DOCUMENT TITLED "PE_THUMBNAILS" OF PROSECUTION EXHIBIT 15 DID NOT CONSTITUTE VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT AS A MATTER OF LAW.




Tuesday, June 10, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0519/AR. U.S. v. Cerion R. ALLEN. CCA 20120742. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we agree with Appellant's personally asserted contention that the facts established during the plea inquiry and in the stipulation of fact demonstrate only a single conspiracy. Appellant was convicted of one conspiracy to commit robbery (Specification 2 of Charge II) and one conspiracy to commit burglary (Specification 3 of Charge II), but the plea inquiry and stipulation of fact show that there was only one agreement between Appellant and his co-conspirators to break into and rob the alleged drug house. Therefore, Specification 3 of Charge II should be consolidated with Specification 2 of Charge II to become a single specification. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United States v. Reliford, 27 M.J. 176 (C.M.A. 1988) (summary disposition). Although the conspiracy offenses are consolidated, we are satisfied that Appellant suffered no prejudice as to his sentence. Accordingly, it is ordered that said petition is granted on the following personally asserted issue:

 

WHETHER IT WAS ERROR TO CONVICT APPELLANT SEPARATELY FOR SPECIFICATION 2 (CONSPIRACY TO COMMIT ROBBERY) AND SPECIFICATION 3 (CONSPIRACY TO COMMIT BURGLARY) OF CHARGE II.

 

Specifications 2 and 3 of Charge II are consolidated to allege the following conspiracy specification:

 

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 81.

 

SPECIFICATION 2: In that Private First Class Cerion R. Allen, U.S. Army, did, at or near Fort Bragg, North Carolina on or about 29 January 2011, conspire with Private (E1) Cordic L. Coleman, Private First Class Kamarques K. Dyess, Private (E1) Bryan C. N. Alston, and Private First Class Shelton A. Hunt to commit offenses under the Uniform Code of Military Justice, to wit: robbery with a firearm and burglary, and in order to effect the object of the conspiracy the said Private First Class Cerion R. Allen did dress in black, acquire a firearm, travel to the dwelling house of another, conceal his face, kick in the back door of said dwelling house to gain entrance, and enter the back door of said dwelling house.

 

The decision of the United States Army Court of Criminal Appeals is affirmed as to Charge I and its Specification, Charge II and Specification 2 (consolidated), Charges III through VI and their Specifications, and the sentence.




Monday, June 9, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-5008/AF. U.S. v. Joshua KATSO. CCA 38005. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND APPELLEE'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE PERMITTED, OVER DEFENSE OBJECTION, THE TESTIMONY OF THE GOVERNMENT'S DNA EXPERT, AND THAT THE ERROR WAS NOT HARMLESS.




Thursday, June 5, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0364/AR. U.S. v. Keith A. JACKSON. CCA 20120026. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be corrected to reflect that Appellant was found guilty of Charge I.

 

No. 14-0567/AR. U.S. v. Michael C. EVANS. CCA 20130251. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that Specification 3 of Charge IV charged Appellant with violating clause 1 of Article 134, not clause 2. However, the providence inquiry focused on clause 2 of Article 134, and there was no discussion on the record of clause 1. This was reversible error, where Appellant was unaware of one of the elements of the offense, either explicitly or inferentially. See United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013). Accordingly, it is ordered that said petition is granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT'S PLEA OF GUILTY TO BREACH OF RESTRICTION TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES (SPECIFICATION 3 OF CHARGE IV) WITHOUT QUESTIONING APPELLANT REGARDING CLAUSE 1 OF ARTICLE 134, UCMJ.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 3 of Charge IV, and the finding of guilty is set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Specification 3 of Charge IV and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specification and the sentence.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0457/AR. U.S. v. Eric R. CASTILLO. CCA 20110935. Review granted on the following issue:

 

WHETHER, UNDER THE TOTALITY OF THE CIRCUMSTANCES, THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE IMPLIED BIAS CHALLENGE AGAINST LTC DS IN LIGHT OF HIS PERSONAL EXPERIENCE AS A SEXUAL ASSAULT VICTIM, HIS DIRECT SUPERVISORY ROLE OVER TWO OTHER MEMBERS, HIS ONGOING RELIANCE ON THE TRIAL COUNSEL FOR MILITARY JUSTICE ADVICE, THE PRESENCE OF FOUR OTHER MEMBERS WHO ALSO RECEIVED MILITARY JUSTICE ASSISTANCE FROM THE TRIAL COUNSEL, AND THE FACT THAT THE PANEL WAS SELECTED EXCLUSIVELY FROM APPELLANT'S BRIGADE.

 

Briefs will be filed under Rule 25.




Tuesday, June 3, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0199/AR. U.S. v. Bryce M. PHILLIPS. CCA 20120585. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S PLEA OF GUILTY TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE OF BREAKING RESTRICTION DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT'S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER'S OFFICE TO LIFT THE DUTY IN THE PARLANCE OF THIS COURT'S EARLIER OPINION, "ABOVE THE COMMON RUCK."

 

Briefs will be filed under Rule 25.

 

No. 14-0289/AR. U.S. v. Jordan M. PETERS. CCA 20110057. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE IMPLIED BIAS CHALLENGE AGAINST LTC JC, IN LIGHT OF LTC JC'S PROFESSIONAL RELATIONSHIP WITH TRIAL COUNSEL, THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY, AND THE INVESTIGATING OFFICER.

 

Briefs will be filed under Rule 25.




Monday, June 2, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-5004/AF. U.S. v. Nicholas T. BURNS. CCA S32084. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Mar. 13, 2014), Appellee's motion to supplement the record, Appellant's motion to supplement the record, and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding that Appellee's conviction of the greater offense of willful and wrongful discharge of a firearm under circumstances such as to endanger human life was factually insufficient and in affirming a finding of guilt as to the lesser included offense of negligent discharge of a firearm. Accordingly, it is ordered that the motions to supplement the record are granted, the certified issue is answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.




Thursday, May 29, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0453/AR. U.S. v. James S. PIREN. CCA 20110416. Review granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY OVERRULING THE DEFENSE COUNSEL'S SCOPE OBJECTION DURING THE GOVERNMENT'S CROSS-EXAMINATION OF APPELLANT.

 

II. WHETHER THE MILITARY JUDGE ERRED BY DENYING THE MOTION TO SUPPRESS RESULTS OF THE DNA ANALYSIS.

 

Briefs will be filed under Rule 25.




Thursday, May 22, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0413/AF. U.S. v. Jason A. PATE. CCA 38250. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we conclude that the assault consummated by battery offense (Specification 2 of Charge I) involving rib fractures is a lesser included offense of the aggravated assault offense in which grievous bodily harm was intentionally inflicted (Specification 2 of Charge II). See United States v. Jones, 68 M.J. 465, 468 (C.A.A.F. 2010). Compare Manual for Courts-Martial, United States pt. IV, para.  54.b.(2) (2008 ed.) (MCM) with MCM pt. IV, para. 54.b.(4)(b)(i), (iii). We also conclude that the assault consummated by battery offense involving liver damage (Specification 4 of Charge I) is a lesser included offense of the aggravated assault by other means offense (Specification 1 of Charge II). See Jones, 68 M.J. at 468. Compare MCM pt. IV, para. 54.b.(2) with MCM pt. IV, para. 54.b.(4)(a)(i), (iii). We finally conclude that the aggravated assault by other means offense involving head injuries (Specification 4 of Charge II) is a lesser included offense of the maiming offense (Specification 1 of Charge I). See Jones, 68 M.J. at 468; see also United States v. McLean, 70 M.J. 573, 576 (A.F. Ct. Crim. App. 2011). These specifications therefore are impermissibly multiplicious. See United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002); see also Brown v. Ohio, 432 U.S. 161, 165-69 (1977). Thus, we dismiss the assault consummated by battery offenses and the aggravated assault by other means offense involving head injuries. See United States v. Leak, 61 M.J. 234, 249 (C.A.A.F. 2005). However, where the military judge found these offenses multiplicious for sentencing and because Appellant does not ask us to remand for a sentence reassessment, we will not reverse as to the sentence. Accordingly, it is ordered that the petition is granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING THE FINDINGS WHEN THREE CONVICTIONS WERE LESSER INCLUDED OFFENSES OF THREE OTHER CONVICTIONS.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specifications 2 and 4 of Charge I and Specification 4 of Charge II, but is affirmed in all other respects. The findings of guilty as to Specifications 2 and 4 of Charge I and Specification 4 of Charge II are set aside, and these specifications are dismissed.




Friday, May 16, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0236/AF. U.S. v. Horace C. WICKWARE. CCA 38074. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, the Court notes that the involuntary manslaughter and negligent homicide offenses were charged in the alternative to the unpremeditated murder offense. As Appellant was convicted of the unpremeditated murder offense, his convictions for involuntary manslaughter and negligent homicide must be dismissed on appeal. In light of the military judge's instruction to the court members that the three offenses were multiplicious for sentencing, however, Appellant was not prejudiced as to the sentence. Accordingly, it is ordered that the petition is granted on the following specified issue:

 

WHETHER APPELLANT'S CONVICTIONS FOR INVOLUNTARY MANSLAUGHTER AND NEGLIGENT HOMICIDE, WHICH WERE CHARGED IN THE ALTERNATIVE TO THE OFFENSE OF UNPREMEDITATED MURDER, SHOULD BE DISMISSED AS APPELLANT WAS CONVICTED OF UNPREMEDITATED MURDER.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge II and its Specification and Specification 3 of Charge IV, but is affirmed in all other respects. The findings of guilty as to Charge II and its Specification and Specification 3 of Charge IV are set aside, and those offenses are dismissed.




Monday, May 12, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0379/AR. U.S. v. Vincent J. UMHOLTZ. CCA 20111013. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*


* It is directed that the promulgating order be corrected to reflect that the military judge found Additional Charge II and its Specification and Specification 2 of Charge II multiplicious for findings and sentence.

 

No. 14-0532/AF. U.S. v. Brandon T. ROZELL. CCA 38381. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be corrected to (1) change the pleas to Charges I and II from "Not Guilty" to "Guilty," (2) change the finding to Charge I from "Dismissed after arraignment" to "Guilty," and (3) spell the word "specification" correctly in specification 1 of Charge I.

 

No. 14-0542/NA. U.S. v. Dominique YORK. CCA 201300287. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

 

* It is directed that the decision of the United States Navy-Marine Corps Court of Criminal Appeals be corrected to reflect that Appellant pled not guilty to Specification 2 of Charge II and this specification was withdrawn prior to announcement of findings vice Specification 1 of Charge II.

 

No. 14-6005/AF. U.S. v. Jacob R. MCINTYRE. CCA 2013-24. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Mar. 18, 2014), Appellee's motion to supplement the record, and Appellant's motion to supplement the record, we conclude that the military judge did not abuse his discretion in granting the motion to suppress Appellee's oral and written statements for lack of corroboration. Accordingly, it is ordered that the motions to supplement the record are granted; the certified issue is answered in the negative; and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

* Chief Judge Baker would have held oral argument before deciding this case.

 

No. 14-6008/AF. U.S. v. Steven E. SETON. CCA 2013-27. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Apr. 2, 2014), and Appellee's motion to supplement the record, we conclude that the military judge did not abuse his discretion in finding a Rule for Courts-Martial 703 violation and dismissing the Charge and Specification with prejudice. Accordingly, it is ordered that the motion to supplement the record is granted; the certified issue is answered in the negative; and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

* Chief Judge Baker and Judge Ohlson would have held oral argument before deciding this case.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0384/AF. U.S. v. Patrick J. HUEY, Jr. CCA 38139. Review granted on the following issue:

 

WHETHER THE GENERAL VERDICT OF GUILT RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED, IN THAT AT LEAST ONE OF THE IMAGES PRESENTED TO THE FINDER OF FACT WAS NOT CHILD PORNOGRAPHY.

 

Briefs will be filed under Rule 25.




Thursday, May 8, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0439/AF. U.S. v. Alain R. HICKS. CCA 38191. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

* It is noted that the decision of the United States Air Force Court of Criminal Appeals stated that Appellant was convicted of "five specifications of wrongful use of a controlled substance" and "three specifications of wrongful possession of a controlled substance" when in fact Appellant was convicted of six specifications of wrongful use and two specifications of wrongful possession.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0348/AF & 14-5002/AF. U.S. v. Michael C. MCPHERSON. CCA S32068. Review granted on the following issue:

 

THERE IS A SPLIT IN THE SERVICE COURTS. IN THIS CASE AND AT LEAST 10 UNPUBLISHED CASES, THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) HAS HELD THAT AN APPELLANT MUST EXHAUST ADMINISTRATIVE REMEDIES BEFORE RELIEF CAN BE GRANTED UNDER ARTICLE 12, UCMJ. NO OTHER SERVICE COURT HAS HELD THE SAME. GIVEN THE LEGISLATIVE HISTORY OF ARTICLE 12, UCMJ, DID THE AFCCA ERR WHEN IT REQUIRED APPELLANT TO EXHAUST ADMINISTRATIVE REMEDIES BEFORE RECEIVING RELIEF?

 

No briefs will be filed on this issue.




Thursday, April 24, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0501/AF. U.S. v. Jessica E. MCFADDEN. CCA 37438. Review granted on the following issues:

 

I.           WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

 

II.         WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING DEFENSE COUNSEL'S REQUEST FOR A MISTRIAL AFTER A COURT MEMBER ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER ARTICLE 31(b), UCMJ, RIGHT TO REMAIN SILENT.

 

Briefs will be filed under Rule 25.




Tuesday, April 22, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-5007/AF. U.S. v. Steven S. MORITA. CCA 37838. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THE COURT-MARTIAL LACKED SUBJECT MATTER JURISDICTION AND WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION WHEN IT REFUSED TO GRANT THE GOVERNMENT'S MOTION TO SUBMIT DOCUMENTS.




Friday, April 18, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-5006/AF & 14-0283/AF. United States, Appellee/Cross-Appellant v. Justin M. PIOLUNEK, Appellant/Cross-Appellee. CCA 38099. Notice is hereby given that a certificate for review of the decision of the Air Force Court of Criminal Appeals and supporting brief were filed under Rule 22 on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT IMAGES 8308, 8313, AND 0870 DID NOT CONSTITUTE VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT AS A MATTER OF LAW.

 

Appellant/Cross-Appellee will file a brief on both the issue granted review on April 1, 2014, and on the certified issue on or before May 19, 2014.

 

Appellee/Cross-Appellant will file a brief on the granted issue and may consolidate in that brief a reply to the brief of the Appellant/Cross-Appellee on the certified issue no later than 30 days after the filing of the brief of Appellant/Cross-Appellee.

 

Appellant/Cross-Appellee may file a reply brief on the granted issue no later than 10 days after the filing of the brief of Appellee/Cross-Appellant on the granted issue.




Wednesday, April 16, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0230/AR. U.S. v. Samuel R. SPOTTS. CCA 20111144. On further consideration of the granted issue, 73 M.J. __ (C.A.A.F. Jan. 16, 2014), and the briefs of the parties, it is ordered that the decision of United States Army Court of Criminal Appeals is affirmed.




Monday, April 14, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0261/AR. U.S. v. Elliot M. CARRASQUILLO. CCA 20110719. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS STATEMENTS TAKEN FROM APPELLANT IN VIOLATION OF ARTICLE 31(b), UCMJ.

 

Briefs will be filed under Rule 25.




Friday, April 11, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-5005/AF. U.S., Appellant v. Lieutenant Colonel Todd E. MCDOWELL, Appellee and Senior Airman Christopher A. DEMARIO, Real Party In Interest. CCA 2013-28. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED THE UNITED STATES' PETITION FOR EXTRAORDINARY RELIEF AND FOUND THE MILITARY JUDGE'S RULINGS DID NOT CONSTITUTE A JUDICIAL USURPATION OF POWER AND WERE NOT CHARACTERISTIC OF AN ERRONEOUS PRACTICE WHICH IS LIKELY TO RECUR.

 

WHETHER THIS HONORABLE COURT SHOULD ORDER THE MILITARY JUDGE TO REVERSE HIS DECISIONS TO ORDER AN ORAL DEPOSITION OF B.B. AND TO RE-OPEN THE ARTICLE 32 PRETRIAL INVESTIGATION.




Thursday, April 3, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0256/AR. U.S. v. Jeffry T. MILLER. CCA 20110406. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and, that the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is directed that the portion of the promulgating order referencing the amended language in the Specification of the Charge be corrected to allege: "[Prior to Pleas, the date '15 October 2008' was amended to read, '15 September 2008'. . ."

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0048/AR. U.S. v. Jason C. WAGNER. CCA 20111064. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO INSTRUCT THE PANEL MEMBERS THAT WRONGFUL SEXUAL CONTACT AND ASSAULT CONSUMMATED BY BATTERY ARE LESSER-INCLUDED OFFENSES OF AGGRAVATED SEXUAL ASSAULT.

 

No briefs will be filed under Rule 25.




Wednesday, April 2, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-6008/AF. U.S., Appellant v. Steven E. SETON, Appellee. CCA 2013-27. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING WITH PREJUDICE THE CHARGE AND SPECIFICATION BASED ON ALLEGED GOVERNMENTAL VIOLATIONS OF ARTICLE 46, UCMJ, R.C.M. 701, AND R.C.M. 703.




Tuesday, April 1, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0283/AF. U.S. v. Justin M. PIOLUNEK. CCA 38099. Review granted on the following issue:

 

WHETHER APPELLANT'S CONVICTIONS FOR POSSESSION AND RECEIPT OF CHILD PORNOGRAPHY ON DIVERS OCCASIONS MUST BE SET ASIDE BECAUSE SEVERAL IMAGES OFFERED IN SUPPORT OF THE SPECIFICATIONS ARE NOT CHILD PORNOGRAPHY AND ARE CONSTITUTIONALLY PROTECTED, A GENERAL VERDICT WAS ENTERED, AND IT IS IMPOSSIBLE TO DETERMINE WHETHER SAID IMAGES CONTRIBUTED TO THE VERDICT.

 

Briefs will be filed under Rule 25.




Tuesday, March 25, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0334/AF. U.S. v. Aaron J. JENNINGS. CCA 38230. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

 

* It is noted that the military judge neglected to seal Appellate Exhibits IX, X, and XI, pertaining to the admissibility of matters under MRE 412. Accordingly, the Clerk is directed to seal Appellate Exhibits IX, X, and XI.




Tuesday, March 18, 2014

DOCKETING NOTICE

 

No. 14-6005/AF. U.S. v. Jacob R. MCINTYRE. CCA 2013-24. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. 862, and a supporting brief were filed under Rule 22 this date on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY SUPPRESSING APPELLEE'S WRITTEN AND ORAL STATEMENTS THAT PERTAINED TO HIS VIEWING AND POSSESSING CHILD PORNOGRAPHY ON THE BASIS OF LACK OF CORROBORATION.

 

Appellee will file an answer under Rule 22(b)(1) on or before March 28, 2014.




Thursday, March 13, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-5004/AF. U.S. v. Nicholas T. BURNS. CCA S32084. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date, on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED A MISCARRIAGE OF JUSTICE BY REACHING ITS ERRONEOUS FACTUAL INSUFFICIENCY CONCLUSION AND BY RELYING UPON FACTS NOT ESTABLISHED IN THE RECORD IN FINDING APPELLANT'S CONVICTION NOT FACTUALLY SUFFICIENT.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before April 14, 2014. Appellee will file an answer no later than 30 days after the filing of Appellant's brief.




Wednesday, March 12, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 12-0516/AF. U.S. v. Michael S. TUNSTALL. CCA 37592. On consideration of the granted issue, __ M.J. __ (C.A.A.F. Daily Journal, March 5, 2014) (order granting review), and in view of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 14-0044/AF. U.S. v. Morgan A. WINN. CCA 37772. On consideration of the granted issue, __ M.J. __ (C.A.A.F. Daily Journal, December 23, 2013) (order granting review), and in view of United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0222/AF. U.S. v. Adrian TORRES. CCA 37623. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING THE DEFENSE REQUESTED INSTRUCTION.

 

Briefs will be filed under Rule 25.




Friday, March 7, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0378/AR. U.S. v. George A. FIEBELKORN. CCA 20130629. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be corrected to change the pleas to Specifications 1 and 2 of Charge II from "Not Guilty" to "Guilty."




Wednesday, March 5, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0516/AF. U.S. v. Michael S. TUNSTALL. CCA 37592. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) VIOLATED UNITED STATES v. BUBER, 62 M.J. 476 (C.A.A.F.2006), WHEN IT ONLY LOOKED AT THE CHANGE IN THE MAXIMUM POSSIBLE PUNISHMENT TO DETERMINE WHETHER THERE WAS A DRAMATIC CHANGE TO THE PENALTY LANDSCAPE, AND UNITED STATES v. MOFFEIT, 63 M.J. 40 (C.A.A.F. 2006), WHEN IT DID NOT USE THE PROPER STANDARD OF "BEYOND A REASONABLE DOUBT."

 

No briefs will be filed under Rule 25.




Friday, February 28, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0137/AR. U.S. v. Daniella M. HOWARD. CCA 20120844. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE DEFENSE COUNSEL FAILED TO CONDUCT A PROPER INVESTIGATION AND PRESENT VITAL EVIDENCE TO THE MILITARY JUDGE REGARDING THE DEFENSE OF DURESS AS A RESULT OF A SEXUAL ASSAULT BY A NONCOMMISSIONED OFFICER.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry on the granted issue. The Court of Criminal Appeals will obtain affidavits from the trial defense counsel (military and civilian) that respond to Appellant's allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2012), shall apply.

   

CERTIFICATES FOR REVIEW FILED

 

No. 14-5003/AF. U.S., Appellant v. Jimmy L. WILSON, Appellee. CCA 37897. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before March 31, 2014.




Thursday, February 27, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0280/AR. U.S. v. Michael L. TREAT. CCA 20110402. Review granted on the following issue:

 

WHETHER THERE IS A FATAL VARIANCE AND A VIOLATION OF APPELLANT'S DUE PROCESS RIGHT TO NOTICE WHEN THE GOVERNMENT ALLEGED THAT APPELLANT MISSED THE MOVEMENT OF A PARTICULAR AIRCRAFT BUT THE PROOF ESTABLISHED THAT HE MISSED THE MOVEMENT OF A PARTICULAR UNIT.

 

Briefs will be filed under Rule 25.




Friday, February 21, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0001/AR. U.S. v. George D. MACDONALD. CCA 20091118. Review granted on the following issues:

 

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DETERMINING THAT THE MILITARY JUDGE'S ERROR IN QUASHING A SUBPOENA ISSUED TO PFIZER, INC., TO PRODUCE RELEVANT AND NECESSARY DOCUMENTS REGARDING CLINICAL TRIALS, ADVERSE EVENT REPORTS, AND POST-MARKET SURVEILLANCE OF THE DRUG VARENICLINE WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE REQUESTED INSTRUCTION ON INVOLUNTARY INTOXICATION, AND ERRED IN FAILING TO INSTRUCT THE MEMBERS ON THE EFFECT OF INTOXICATION ON APPELLANT'S ABILITY TO FORM SPECIFIC INTENT AND PREMEDITATION.

 

Briefs will be filed under Rule 25.




Tuesday, February 18, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0265/CG. U.S. v. Jaason LEAHR. CCA 1365. Review granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION TO DISMISS FOR VIOLATION OF APPELLANT'S RIGHT TO SPEEDY TRIAL UNDER RCM 707.

 

II. WHETHER THE GOVERNMENT'S WITHDRAWAL OF CHARGES AND RE-REFERRAL TO ANOTHER COURT-MARTIAL WAS IN VIOLATION OF RCM 604(b) BECAUSE THEY WERE PREVIOUSLY WITHDRAWN FOR AN IMPROPER REASON.

 

III. WHETHER APPELLANT WAS DENIED A FAIR TRIAL WHEN THE MILITARY JUDGE TWICE SUGGESTED IN FRONT OF THE MEMBERS THAT APPELLANT WAS GUILTY, FIRST BY "THANKING" A WITNESS FOR HIS EFFORTS TO PROTECT THE VICTIM, AND THEN BY ASKING DEFENSE COUNSEL BEFORE FINDINGS WHETHER A WITNESS WOULD BE SUBJECT TO RECALL AS A "SENTENCING WITNESS."

 

Briefs will be filed under Rule 25.




Wednesday, February 12, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-5001/AR. U.S. v. Joshua R. SICKELS. CCA 20110110. On consideration of the issue certified by the Judge Advocate General of the Army, 73 M.J. __ (C.A.A.F. Oct. 16, 2013), concerning ineffective assistance of counsel in the sentencing phase of this child sexual assault court-martial, we note that Appellee faced a maximum sentence including confinement for life without parole and that the approved sentence includes that severe punishment. We also note that both the civilian and military defense counsel failed to: (1) interview or call as witnesses former supervisors who assert that they would have offered favorable testimony; (2) offer any evidence of Appellee's bravery in combat; (3) present any documentation of Appellee's personal decorations and other awards; and (4) offer any other evidence in extenuation or mitigation. See generally United States v. Boone, 49 M.J. 187 (C.A.A.F. 1998). Accordingly, we conclude that the United States Army Court of Criminal Appeals did not err when it held that the trial defense team's investigation and presentation of a sentencing case was ineffective. Accordingly, it is ordered that the certified issue is answered in the negative and the decision of the United States Army Court of Criminal Appeals is affirmed.




Friday, February 7, 2014

APPEALS-SUMMARY DISPOSITIONS

 

No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719.  On further consideration of the granted issues, 72 M.J. 389 (C.A.A.F. 2013) (order granting review), and in view of United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013), it is ordered that the judgment of the United States Army Court of Criminal Appeals is reversed as to Specification 2 of the Charge and the sentence. The finding of guilty as to Specification 2 of the Charge is set aside and the specification is dismissed.  The judgment as to the remaining findings is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to reassess the sentence.*

 

* BAKER, Chief Judge (dissenting):

 

I dissent from the dismissal of Specification 2 of the Charge. In my view, the charged conduct in this case is distinct from both the majority and dissenting positions in United States v. Warner, 73 M.J. 1 (C.A.A.F. 2013), for two reasons. First, the Specification 2 images depict children as completely nude in contrast to Appellant's brief which describes them as merely depicting "minors posing while wearing revealing clothes or while partially nude." (Reply Brief at 6). Second, several of these images directly expose the genitalia and pubic region of the children. This is unlike Warner, where none of the images consisted of completely nude children with exposed genitalia. Thus, on the basis of these factors, I do not find Warner dispositive. Moreover, the majority has not explained why Appellant was not on notice that the possession of images of nude children, including some with their genitalia exposed, was subject to criminal sanction. See 73 M.J. at 4 (Baker, C.J., dissenting).




Wednesday, February 5, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0033/AF. U.S. v. Anthony L.W. PEACOCK. CCA 38043. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.




Tuesday, February 4, 2014

APPEALS-SUMMARY DISPOSITIONS

 

No. 14-0242/AR. U.S. v. Steve A. FRASIER. CCA 20120744. Review granted on the following issue:

 

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL PHASE OF HIS COURT-MARTIAL WHEN TRIAL DEFENSE COUNSEL FAILED TO REQUEST DEFERRAL OF FORFEITURES AND REDUCTION IN GRADE ON APPELLANT'S BEHALF.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals will obtain an affidavit from trial defense counsel that responds to Appellant's allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C.  866(c) (2006), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavit and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C.  867 (2006), shall apply.




Friday, January 31, 2014

CERTIFICATES FOR REVIEW FILED

 

No. 14-5002/AF. U.S. v. Michael C. MCPHERSON. CCA S32068. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER ARTICLE 12, UCMJ, APPLIES TO THE CIRCUMSTANCE WHERE AN ACCUSED AND/OR CONVICTED MEMBER OF THE ARMED FORCES IS CONFINED IN IMMEDIATE ASSOCIATION WITH FOREIGN NATIONALS IN A STATE OR FEDERAL FACILITY WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES.




Thursday, January 30, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0158/AF. U.S. v. Candice N. CIMBALL SHARPTON. CCA 38027. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT ABUSED ITS DISCRETION IN FINDING THE EVIDENCE LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR LARCENY FROM THE AIR FORCE.

 

Briefs will be filed under Rule 25.




Monday, January 27, 2014

APPEALS SUMMARY DISPOSITIONS

 

No. 14-0134/AR. U.S. v. Brett M. GASKILL. CCA 20110028. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Lubasky, 68 M.J. 260 (C.A.A.F. 2010), we note that the proper victim in Specifications 2, 3, and 4 of Charge V was the merchant who provided the goods and services upon false pretenses, not the debit cardholder/Soldier. However, the charge sheet, stipulation of fact, and providence inquiry focused on the three Soldiers as victims, and there was no discussion on the record of whether the merchants were victimized. See Lubasky, 68 M.J. at 263. Accordingly, it is ordered that said petition is granted on the following issue:

 

WHETHER APPELLANT COMMITTED LARCENIES OF THE PROPERTY OF THREE SOLDIERS BY USING THEIR BANK CARDS WITHOUT AUTHORITY.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to Specifications 2, 3, and 4 of Charge V, and the findings of guilty as to those specifications are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Specifications 2, 3, and 4 of Charge V and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specifications and the sentence.




Thursday, January 23, 2014

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0070/AR. U.S. v. Steven V. RAGELS. CCA 20110955. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ACCEPTING APPELLANT'S GUILTY PLEA AS TO THE CLAUSE THREE, ARTICLE 134, UCMJ, OFFENSE CHARGED IN SPECIFICATION 1 OF THE CHARGE WHEN APPELLANT WAS NOT ON NOTICE OF THE THEORY OF LIABILITY.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to the words and figures "under 18 U.S.C. 2252A," in Specification 1 of the Charge, but is affirmed in all other respects. The finding of guilty as to those words and figures is set aside and that portion of Specification 1 is dismissed.




Thursday, January 16, 2014

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0573/AR. U.S. v. Calvin J. DAVENPORT. CCA 20081102. Review granted on the following issue:

 

WHETHER THE OMISSION OF TESTIMONY FROM A TRIAL TRANSCRIPT RENDERS THE TRANSCRIPT NON-VERBATIM AND THEREFORE SUBJECT TO THE REMEDY IN R.C.M. 1103(f)(1) WHERE THE WITNESS'S TESTIMONY IS ONLY RELEVANT TO AN OFFENSE OF WHICH APPELLANT HAS BEEN ACQUITTED; OR, WHETHER SUCH OMISSION SHOULD BE ADDRESSED UNDER R.C.M. 1103(b)(2)(A)(REQUIREMENT FOR A COMPLETE RECORD) AND THUS TESTED FOR WHETHER THE PRESUMPTION OF PREJUDICE HAS BEEN REBUTTED. SEE UNITED STATES v. GASKINS, 72 M.J. 225 (C.A.A.F. 2013); UNITED STATES v. HENRY, 53 M.J. 108 (C.A.A.F. 2000).

 

Briefs will be filed under Rule 25.

 

No. 14-0040/NA. U.S. v. Ethan S. SHORT. CCA 201200483. Review granted on the following issue:

 

A PUNITIVE DISCHARGE MAY NOT BE AFFIRMED WHEN THE RECORD IS NOT VERBATIM. HERE, DURING SENTENCING, THE MEMBERS HEARD SOME PORTION OF THE PROVIDENCE INQUIRY WHICH DREW A CURATIVE INSTRUCTION FROM THE MILITARY JUDGE. ON APPEAL, THE LOWER COURT ATTACHED, OVER DEFENSE OBJECTION, WHAT PURPORTED TO BE THE MISSING SECTION. THIS SECTION WAS NOT PROPERLY AUTHENTICATED NOR DOES IT ACCURATELY REFLECT THE MISSING PORTION. MAY APPELLANT'S PUNITIVE DISCHARGE BE AFFIRMED DESPITE THE LACK OF A VERBATIM RECORD?

 

Briefs will be filed under Rule 25.

 

No. 14-0071/AR. U.S. v. Travis D. JONES. CCA 20110679. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE DEFENSE'S MOTION TO SUPPRESS APPELLANT'S STATEMENT TO THE MILITARY POLICE.

 

Briefs will be filed under Rule 25.

 

No. 14-0230/AR. U.S. v. Samuel R. SPOTTS. CCA 20111144. Review granted on the following issue:

 

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL FAILED TO REQUEST DEFERMENT OF AUTOMATIC FORFEITURES ON HIS BEHALF.

 

Briefs will be filed under Rule 25.




Thursday, January 2, 2014

APPEALS-SUMMARY DISPOSITIONS

 

No. 14-0077/AR. U.S. v. Robert L. DAVIS, Jr. CCA 20120244. Review granted on the following issue:

 

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING THE POST-TRIAL PHASE OF HIS COURT-MARTIAL WHEN HIS TRIAL DEFENSE COUNSEL FAILED TO REQUEST DEFERMENT OF FORFEITURES DESPITE HIS REQUEST TO DO SO.

 

The decision of the United States Army Court of Criminal Appeals is set aside, as is the convening authority's action. The record of trial is returned to the Judge Advocate General of the Army for submission to an appropriate convening authority for a new recommendation and action. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. 866 and 867 (2012), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0531/AF. U.S. v. Matthew B. ALBRIGHT. CCA 37961. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED APPELLANT'S CASE WAS PROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.




Monday, December 23, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0044/AF. U.S. v. Morgan A. WINN. CCA 37772. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO ORDER A REHEARING ON SENTENCE.

 

No briefs will be filed under Rule 25.

 

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Review granted on the following issue:

 

PURSUANT TO THE SUPREME COURT'S HOLDING IN RYDER v. UNITED STATES, 515 U.S. 177 (1995), APPELLANT IS ENTITLED TO A HEARING BEFORE A PROPERLY CONSTITUTED PANEL OF THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA). WAS PETITIONER DENIED THAT RIGHT WHEN HIS CASE WAS HEARD BY A CIVILIAN JUDGE WHO WAS NOT PROPERLY APPOINTED TO THE AFCCA?

 

No briefs will be filed under Rule 25.

 

No. 14-0060/AF. U.S. v. Jeremy J. GRAWEY. CCA S32029. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.

 

No. 14-0125/AF. U.S. v. Danny L. ANNIS. CCA 38001. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.

 

No. 14-0138/AF. U.S. v. Danny M. BURNS. CCA 37847. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.

 

No. 14-0156/AF. U.S. v. Devon P. JOHNSON. CCA S32047. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.

 

No. 14-0157/AF. U.S. v. Alphonso K. DIXON. CCA S32061. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.




Thursday, December 19, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0130/AF. U.S. v. David J. JANSSEN. CCA 37681. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE CIVILIAN JUDGE ON APPELLANT'S AIR FORCE COURT OF CRIMINAL APPEALS PANEL WAS PROPERLY APPOINTED. See U.S. Const. Article II, Section 2, Clause 2; 10 U.S.C. 113 (2012); 5 U .S.C. 3101 (2012).

 

Briefs will be filed under Rule 25. Appellant's brief shall be filed within 15 days of the date of this order. Appellee's brief shall be filed within 10 days of the filing of Appellant's brief. Appellant may file a reply brief within 5 days of the filing of Appellee's brief. Requests for enlargements of time to file pleadings will not be favorably received.




Wednesday, December 4, 2013

APPEALS-SUMMARY DISPOSITIONS

 

No. 13-0522/AF. U.S. v. David J.A. GUTIERREZ. CCA 37913. On further consideration of this case, it is ordered that said petition is granted on the following additional issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED APPELLANT'S CASE WAS PROPERLY CONSTITUTED.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c) (2012). The Hearing Notice issued on November 6, 2013, is hereby rescinded.




Tuesday, December 3, 2013

APPEALS-SUMMARY DISPOSITIONS

 

No. 14-0166/AF. U.S. v. Brittany N. OLSON. CCA S32034. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED APPELLANT'S CASE WAS PROPERLY CONSTITUTED.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c)(2006).




Thursday, November 21, 2013

APPEALS-SUMMARY DISPOSITIONS

 

No. 14-0003/AF. U.S. v. Allen K. HOHENSTEIN. CCA 37965. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS NOT PROPERLY CONSTITUTED.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c)(2006).

 

No. 14-0096/AF. U.S. v. Travis W. PRICE. CCA 38045. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS NOT PROPERLY CONSTITUTED.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c)(2006).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0119/AF. U.S. v. Charles W. PAUL. CCA S32025. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF A CHARGE IN VIOLATION OF GARNER v. LOUISIANA, 368 U.S. 157 (1961) AND MILITARY RULE OF EVIDENCE (MRE) 201(c).

 

Briefs will be filed under Rule 25.




Tuesday, November 19, 2013

APPEALS-SUMMARY DISPOSITIONS

 

No. 14-0141/AF. U.S. v. Daniel G. CHAPPELL. CCA S32027. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS NOT PROPERLY CONSTITUTED.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c)(2006).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0029/AR. U.S. v. Ronald J. DAVIS. CCA 20100815. Review granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE'S FAILURE TO INSTRUCT ON THE AFFIRMATIVE DEFENSE OF DEFENSE OF PROPERTY WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

Briefs will be filed under Rule 25.




Friday, November 15, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0005/AF. U.S. v. Daniel A. FREY. CCA 37759. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT ERRED IN FINDING TRIAL COUNSEL'S PRESENTENCING ARGUMENT WAS HARMLESS ERROR WHERE TRIAL COUNSEL INSINUATED THAT APPELLANT WILL COMMIT FUTURE ACTS OF CHILD MOLESTATION.

 

Briefs will be filed under Rule 25.




Wednesday, November 13, 2013

APPEALS SUMMARY DISPOSITIONS

 

No. 14-0036/AF. U.S. v. Nicholas M. GARRISON. CCA 38093. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866 (2006).

 

No. 14-0127/AF. U.S. v. John I. RODRIGUEZ. CCA 38080. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS PANEL THAT REVIEWED THIS CASE WAS PROPERLY CONSTITUTED.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866 (2006).




Thursday, October 31, 2013

APPEALS SUMMARY DISPOSITIONS

 

No. 13-0619/NA. U.S. v. Gabriel A. MORA. CCA 201200335. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals and Appellant's motion to supplement the record, said petition is granted and the decision of the Court of Criminal Appeals is affirmed.* Said motion is denied as moot.

 

* It is noted that the ruling of the military judge on MRE 412 matters was not sealed as required by MRE 412(c)(2). Accordingly, the Clerk is directed to seal Appellate Exhibit XXXVII.

 

No. 13-0717/AF. U.S. v. Zachary R. LYNCH. CCA 38094. Review granted on the following issue:

 

PURSUANT TO THE SUPREME COURT'S HOLDING IN RYDER v. UNITED STATES, 515 U.S. 177 (1995), APPELLANT IS ENTITLED TO A HEARING BEFORE A PROPERLY CONSTITUTED PANEL OF THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA). WAS PETITIONER DENIED THAT RIGHT WHEN HIS CASE WAS HEARD BY A CIVILIAN JUDGE WHO WAS NOT PROPERLY APPOINTED TO THE AFCCA?

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review and consideration of the aforementioned issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c) (2006).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0602/AR. U.S. v. Thomas C. FLESHER. CCA 20110449. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ADMITTED THE TESTIMONY OF A PUTATIVE EXPERT WITNESS IN VIOLATION OF THE MILITARY RULES OF EVIDENCE AND CASE LAW ON BOLSTERING, EXPERT QUALIFICATIONS, RELEVANCE, AND THE APPROPRIATE CONTENT AND SCOPE OF EXPERT TESTIMONY.

 

Briefs will be filed under Rule 25.




Wednesday, October 16, 2013

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0699/AR. U.S. v. Roberto L. QUINONEZ. CCA 20110211. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

*It is noted that in summarizing the findings, the court omitted any reference to the conviction under Charge III, Specification 3, for indecent exposure under Article 120, Uniform Code of Military Justice, 10 U.S.C. 920 (2006).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0009/AR. U.S. v. Jesus GUTIERREZ, Jr. CCA 20120104. Review granted on the following issue:

 

WHETHER THE EVIDENCE OF STALKING WAS LEGALLY SUFFICIENT WHERE APPELLANT WAS ACQUITTED OF RAPE AND THE PROSECUTION RELIED ON THE EVIDENCE OF RAPE TO PROVE STALKING.

 

Briefs will be filed under Rule 25.

 

CERTIFICATES FOR REVIEW FILED

 

No. 14-5001/AR. U.S. v. Joshua R. SICKELS. CCA 20110110. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT DEFENSE COUNSEL'S INVESTIGATION AND PRESENTATION OF A SENTENCING CASE WAS INEFFECTIVE.




Tuesday, October 15, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0012/AF. U.S. v. Nicholas R. ELESPURU. CCA 38055. Review granted on the following issue:

 

WHETHER SPECIFICATIONS 2 AND 3 OF CHARGE I ARE MULTIPLICIOUS.

 

Briefs will be filed under Rule 25.




Thursday, October 10, 2013

APPEALS-SUMMARY DISPOSITIONS

 

No. 13-0231/AF. U.S. v. Andrew J. THOMPSON. CCA S32019. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT'S DECISION MUST BE SET ASIDE BECAUSE ONE OF THE JUDGES WHO PARTICIPATED IN THE DECISION OF APPELLANT'S CASE WAS UNCONSTITUTIONALLY APPOINTED.

 

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2006) will apply.




Wednesday, September 25, 2013

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0509/AF. U.S. v. Benjamin J. SIZEMORE. CCA 38020. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT'S DECISION MUST BE SET ASIDE BECAUSE ONE OF THE JUDGES WHO PARTICIPATED IN THE DECISION OF APPELLANT'S CASE WAS UNCONSTITUTIONALLY APPOINTED.

 

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2006) will apply.




Tuesday, September 24, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 07-0725/MC. U.S. v. Jonathan E. LEE. CCA 200600543. Review granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN FINDING NO DUE PROCESS VIOLATION WHERE 2,500 DAYS ELAPSED BETWEEN SENTENCING AND REMOVAL OF APPELLANT'S NAME FROM THE TEXAS SEX OFFENDER REGISTRY.

 

Briefs will be filed under Rule 25.

 

No. 13-0442/MC. U.S. v. Charles C. HORNBACK. CCA 201200241. Review granted on the following issue:

 

WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING NO MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL RIGHT TO A FAIR TRIAL AFTER IT ASSUMED, WITHOUT DECIDING, THAT TRIAL COUNSEL'S ACTIONS AMOUNTED TO MISCONDUCT, AND WHETHER THE MILITARY JUDGE'S CURATIVE INSTRUCTIONS SUFFICIENTLY ADDRESSED THE CUMULATIVE NATURE OF SUCH CONDUCT AS WELL AS ANY CORRESPONDING PREJUDICE IN LIGHT OF THE FACTORS IDENTIFIED IN UNITED STATES v. FLETCHER, 62 M.J. 175 (C.A.A.F. 2005).

 

Briefs will be filed under Rule 25.

 

No. 13-0522/AF. U.S. v. David J.A. GUTIERREZ. CCA 37913. Review granted on the following issues:

 

I. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ASSAULT LIKELY TO RESULT IN GRIEVOUS BODILY HARM.

 

II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED ADULTERY.

 

Briefs will be filed under Rule 25.

 

No. 13-0565/AR. U.S. v. Christopher R. KEARNS. CCA 20110348. Review granted on the following issue:

 

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE THAT APPELLANT HAD THE INTENT TO ENGAGE IN CRIMINAL SEXUAL CONDUCT WITH KO, A MINOR, WHEN HE FACILITATED KO'S TRAVEL IN INTERSTATE COMMERCE AND WAS FOUND GUILTY IN SPECIFICATION 1 OF CHARGE III OF VIOLATING 18 U.S.C. SECTION 2423(a).

 

Briefs will be filed under Rule 25.

 

No. 13-0601/AF. U.S. v. Korey J. TALKINGTON. CCA 37785. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS THAT CONSIDERATION OF SEX OFFENDER REGISTRATION IS "NOT A MATTER BEFORE THEM" AND "FRAUGHT WITH PROBLEMS."

 

Briefs will be filed under Rule 25.




Monday, September 23, 2013

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0196/MC. U.S. v. Brian P. HICKERSON. CCA 201100111. On further consideration of the granted issue, 72 M.J. 159 (C.A.A.F. 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0213/MC. U.S. v. Daniel W. SANDERS. CCA 201300202. On further consideration of the granted issue, 72 M.J. 159 (C.A.A.F. 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0241/MC. U.S. v. Richard T. PEARCE. CCA 201100110. On further consideration of the granted issues, 72 M.J. 154 (C.A.A.F. 2013), and 72 M.J. 159 (C.A.A.F. 2013), in light of United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013), and United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0268/MC. U.S. v. Samuel PACHECO, Jr. CCA 201200366. On further consideration of the granted issue, 72 M.J. 164 (C.A.A.F. 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0269/MC. U.S. v. Joshua W. TIGER. CCA 201300284. On further consideration of the granted issue, 72 M.J. 167 (C.A.A.F. 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0332/MC. U.S. v. Chad J. BATCHELDER. CCA 201200180. On further consideration of the granted issue, 72 M.J. 261 (C.A.A.F. 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0352/MC. U.S. v. Michael A. ARNOLD. CCA 201200382. On further consideration of the granted issue, 72 M.J. 261 (C.A.A.F. 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the cases are returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0408/MC. U.S. v. Don W. BAILEY. CCA 201200370. On further consideration of the granted issue, __ M.J. __ (C.A.A.F. August 5, 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the cases are returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0444/MC. U.S. v. Steven W. MYRICK. CCA 201200404. On further consideration of the granted issue, 72 M.J. 384 (C.A.A.F. 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-0445/MC. U.S. v. Erik J. ELLIS. CCA 201200406. On further consideration of the granted issue, 72 M.J. 386 (C.A.A.F. 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.

 

No. 13-5008/AF. U.S. v. Alejandro V. ARRIAGA. CCA 37439. On consideration of the issues certified by the Judge Advocate General of the Air Force, 72 M.J. 410 (C.A.A.F. 2013), and Appellee's motion to strike, we conclude that the United States Air Force Court of Criminal Appeals did not err in finding that Appellee was materially prejudiced by the government's failure to allege the terminal element for Specification 2 of Charge III alleging indecent assault in violation of Article 134, UCMJ. See United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013). Accordingly, it is ordered that the first certified issue is answered in the affirmative and the second and third certified issues are answered in the negative, that the motion to strike is denied as moot, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

*Baker, Chief Judge (dissenting):

 

I dissent based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

No. 13-5009/AF. U.S. v. Alan J. LINDGREN. CCA 37928. On consideration of the issues certified by the Judge Advocate General of the Air Force, __ M.J. __ (C.A.A.F. July 3, 2013), we conclude that the United States Air Force Court of Criminal Appeals did not err in finding that Appellee was materially prejudiced by the government's failure to allege the terminal element for Specifications 1 and 2 of Charge III alleging negligent homicide in violation of Article 134, UCMJ. See United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013). Accordingly, it is ordered that the first certified issue is answered in the affirmative and the second and third certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

*Baker, Chief Judge (dissenting):

 

I dissent based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

No. 13-0513/MC. U.S. v. Levon TYLER. CCA 201200327. On further consideration of the granted issue, __ M.J. __ (C.A.A.F. August 22, 2013), and in light of United States v. Kish, 72 M.J. 158 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration after the conclusion of its review in Kish.




Friday, September 20, 2013

APPEALS - SUMMARY DISPOSITIONS

 

No. 12-0428/MC. U.S. v. Stephen J. MCGUIRE. CCA 201000611. On further consideration of the granted issue, 72 M.J. 255 (C.A.A.F. 2013), and in view of United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013), and United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed 

 

INTERLOCUTORY ORDERS

 

No. 13-0348/AR. U.S. v. Amanda M. MOSS. CCA 20110337. Upon further consideration of the above-captioned case, and as discussed at oral argument, it isordered that counsel file additional briefs on the following issues:

 

I. Whether the decision to appeal to this Court is a personal decision of the Appellant, and if so, in what manner may such a decision be made?

II. Whether there is any evidence in the record that the Appellant has authorized an appeal to this Court, and if there is no such authorization, is there nonetheless a continuing duty to represent the Appellant, and if so, from where does this duty derive?

III. In circumstances where the Appellant cannot be located during the time period available to file a petition for grant of review at this Court, what is the responsibility of appellate defense counsel in the context of the statutory time limit in Article 67, UCMJ, to file an appeal?

IV. Should this case be dismissed with prejudice under the holding in United States v. Schreck, 10 M.J. 226 (C.M.A. 1981)?

The Court invites the parties to address United States v. Larson, 66 M.J. 212 (C.A.A.F. 2008); United States v. Schreck, 9 M.J. 217 (C.M.A. 1980); Article 67(a)(3) and (b), UCMJ, and any other pertinent sources. Appellate defense counsel will file a brief on the above issues on or before October 4, 2013. Appellate government counsel will file a brief on the above issues within 14 days of filing of the brief of the appellate defense counsel. The appellate government and appellate defense divisions of the Navy-Marine Corps, Air Force, and Coast Guard are invited to file amicus curiae briefs under Rule 26, U.S.C.A.A.F. Rules of Practice and Procedure.




Wednesday, September 11, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0570/AF. U.S. v. Steven A. DANYLO. CCA 37916. Review granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ONLY CONSIDERED THE PERIOD OF TIME FOR APPELLANT'S ARTICLE 62 APPEAL FOR THE PURPOSES OF APPELLANT'S SPEEDY TRIAL MOTION.

 

II. WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO SPEEDY TRIAL WHEN HIS COURT-MARTIAL OCCURRED 350 DAYS AFTER HE WAS PLACED IN PRETRIAL CONFINEMENT.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW SUMMARY DISPOSITIONS

 

No. 13-0492/AF. U.S. v. Taylor T. STICKNEY. CCA S32106. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and Appellant's motion for leave to file a supplemental issue, it is ordered that said motion is granted, and that said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT'S DECISION MUST BE SET ASIDE BECAUSE ONE OF THE JUDGES WHO PARTICIPATED IN THE DECISION OF APPELLANT'S CASE WAS UNCONSTITUTIONALLY APPOINTED.

 

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006), by a properly appointed court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2006) will apply.




Tuesday, September 10, 2013

PETITIONS FOR GRANT OF REVIEW SUMMARY DISPOSITIONS

 

No. 13-0500/AF. U.S. v. Edward W. GUSSMAN. CCA 38048. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and Appellant's motion for leave to file a supplemental issue, and motion to withdraw the petition for grant of review without prejudice, it is ordered that said motion to file a supplemental issue is hereby granted, that said motion to withdraw the petition for grant of review is hereby denied as moot, and that said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT'S DECISION MUST BE SET ASIDE BECAUSE ONE OF THE JUDGES WHO PARTICIPATED IN THE DECISION OF APPELLANT'S CASE WAS UNCONSTITUTIONALLY APPOINTED.

 

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2006) will apply.

 

No. 13-0503/AF. U.S. v. Valentino T. LEE. CCA S32009. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and Appellant's motion for leave to file a supplemental issue, it is ordered that said motion is hereby granted, and that said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT'S DECISION MUST BE SET ASIDE BECAUSE ONE OF THE JUDGES WHO PARTICIPATED IN THE DECISION OF APPELLANT'S CASE WAS UNCONSTITUTIONALLY APPOINTED.

 

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2006) will apply.




Wednesday, September 4, 2013

PETITION FOR GRANT OF REVIEW - SUMMARY DISPOSITIONS

 

No. 12-0501/AF. U.S. v. Jessica E. MCFADDEN. CCA 37438. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT'S DECISION MUST BE SET ASIDE BECAUSE ONE OF THE JUDGES WHO PARTICIPATED IN THE DECISION OF APPELLANT'S CASE WAS UNCONSTITUTIONALLY APPOINTED.

 

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2006) will apply.

 

No. 13-0524/AF. U.S. v. Senator G. NEGRON. CCA 37754. On consideration of Appellee's motion for leave to file a response to Appellant's reply and Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said motion is granted, said petition is hereby granted on the following issue:

 

WHETHER THE CIVILIAN JUDGE ON APPELLANT'S AIR FORCE COURT PANEL WAS UNCONSTITUTIONALLY APPOINTED.

 

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. 867 (2006) will apply.

 

No. 13-0669/AR. U.S. v. Brandon T. PARKER. CCA 20110248. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in view of United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013), it is ordered that said petition is hereby granted on the following assigned issue:

 

WHETHER THE ARMY COURT ERRED WHEN IT FOUND THAT THE FAILURE TO PLEAD THE TERMINAL ELEMENTS IN APPELLANT'S CASE DID NOT RESULT IN MATERIAL PREJUDICE TO APPELLANT'S RIGHT TO NOTICE WHERE THE ARMY COURT MERELY FOUND "INDIRECT MENTION" OF A TERMINAL ELEMENT THROUGH WITNESS TESTIMONY.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to Charge III and its specifications and as to the sentence. The findings of guilty to Charge III and its specifications are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Charge III and its specifications and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected charge and the sentence.




Thursday, August 22, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0513/MC. U.S. v. Levon TYLER. CCA 201200327. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. WITHIN MONTHS OF PRESIDING OVER APPELLANT'S COURT-MARTIAL, THE MILITARY JUDGE MADE SEVERAL STATEMENTS TO A GROUP OF MARINE OFFICERS REFLECTING HIS PARTIALITY, SAYING THAT DEFENDANTS ARE GUILTY, REFERRING TO DEFENDANTS AS "SCUMBAGS" AND MEMBERS AS "KNUCKLE-DRAGGERS AND MORONS" THAT HE "DESPISED," AND THAT DEFENDANTS NEEDED TO BE "CRUSHED." THE MILITARY JUDGE'S COMMENTARY PUT INTO DOUBT THE FAIRNESS AND IMPARTIALITY OF APPELLANT'S COURT-MARTIAL.

 

No briefs will be filed under Rule 25.




Thursday, August 15, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0512/AF. U.S. v. Michael L. KNAPP II. CCA 37718. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE (1) PLAINLY ERRED BY INITIALLY ALLOWING "HUMAN LIE DETECTOR" TESTIMONY, (2) ABUSED HIS DISCRETION BY ALLOWING FURTHER ADMISSION OF "HUMAN LIE DETECTOR" TESTIMONY, OVER DEFENSE OBJECTION, AND (3) ERRED BY NOT PROVIDING A CURATIVE INSTRUCTION ON THE "HUMAN LIE DETECTOR" TESTIMONY.

 

Briefs will be filed under Rule 25.




Monday, August 5, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0408/MC. U.S. v. Don W. BAILEY. CCA 201200370. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED. WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

Appellant's brief on this issue shall be filed within 20 days of the date of this order. Appellee's answer shall be filed within 20 days of the filing of Appellant's brief. A reply may be filed by Appellant within 5 days of Appellee's answer.

 

No. 13-0459/AR. U.S. v. Rollan D. MEAD. CCA 20110717. Review granted on the following issue:

 

WHETHER THE ARMY COURT INCORRECTLY RULED THAT PIERCE CREDIT MAY BE APPLIED AGAINST THE ADJUDGED SENTENCE WHERE THIS RESULTS IN NO RELIEF TO APPELLANT AND WHETHER THE ARMY COURT INCORRECTLY RULED THAT PAY LOST AS A RESULT OF PRIOR REDUCTION UNDER ARTICLE 15, UCMJ, NEED NOT BE RESTORED TO APPELLANT.

 

Appellant's brief on this issue shall be filed within 20 days of the date of this order. Appellee's answer shall be filed within 20 days of the filing of Appellant's brief. A reply may be filed by Appellant within 5 days of Appellee's answer.

 

No. 13-0518/AF. U.S. v. Jordan C. PASSUT. CCA 37755. Review granted on the following issue:

 

WHETHER A STATEMENT MADE TO AN AAFES EMPLOYEE FOR THE PURPOSE OF CASHING A WORTHLESS CHECK SATISFIES THE "OFFICIAL" ELEMENT OF A FALSE OFFICIAL STATEMENT.

 

Appellant's brief on this issue shall be filed within 20 days of the date of this order. Appellee's answer shall be filed within 20 days of the filing of Appellant's brief. A reply may be filed by Appellant within 5 days of Appellee's answer.

 

CERTIFICATES FOR REVIEW FILED

 

No. 13-5010/AR. U.S. v. Shawn M. HINES. CCA 20120024. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

 

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT APPELLEE'S PLEAS TO SPECIFICATIONS 1, 2, AND 3 OF CHARGE II WERE IMPROVIDENT BECAUSE THEFT OF BASIC ALLOWANCE FOR HOUSING AND FAMILY SEPARATION ALLOWANCE OCCURRING OVER MULTIPLE MONTHS "AMOUNTS TO A SEPARATE LARCENY EACH MONTH THE MONEY IS RECEIVED."

 

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT APPELLEE'S PLEAS TO SPECIFICATIONS 1 AND 3 OF CHARGE II WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE "NEVER SATISFACTORILY RESOLVED THE INCONSISTENCY BETWEEN [APPELLEE'S] PLEAS TO THE ENTIRE AMOUNT [OF BASIC ALLOWANCE FOR HOUSING] IN LIGHT OF HIS APPARENT ENTITLEMENT TO A LESSER AMOUNT."




Wednesday, July 31, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-6004/AF. U.S. v. Samuel A. WICKS. CCA 2013-08. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. 862, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING LAW ENFORCEMENT'S REPEATED WARRANTLESS SEARCHES OF APPELLANT'S IPHONE DID NOT VIOLATE THE FOURTH AMENDMENT.

 

A joint appendix will be filed on or before August 20, 2013.




Wednesday, July 10, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0536/AR. U.S. v. Jacob D. MOON. CCA 20120112. Review granted on the following issues:

 

I. WHETHER SPECIFICATION 2 OF THE ADDITIONAL CHARGE IS VOID FOR VAGUENESS BECAUSE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING "MULTIPLE IMAGES OF NUDE MINORS AND PERSONS APPEARING TO BE NUDE MINORS" WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

 

II. WHETHER THERE IS A SUBSTANTIAL BASIS IN LAW OR FACT TO QUESTION APPELLANT'S GUILTY PLEA TO SPECIFICATION 2 OF THE ADDITIONAL CHARGE, WHICH ALLEGES THAT APPELLANT POSSESSED "MULTIPLE IMAGES OF NUDE MINORS AND PERSONS APPEARING TO BE NUDE MINORS."

 

No briefs will be filed under Rule 25.




Wednesday, July 3, 2013

CERTIFICATES FOR REVIEW FILED

 

No. 13-5009/AF. U.S. v. Alan J. LINDGREN. CCA 37928. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

 

I. WHETHER APPELLEE SATISFIED HIS BURDEN TO DEMONSTRATE THAT DEFECTIVE SPECIFICATIONS UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED HIS SUBSTANTIAL RIGHTS WHEN HE WAS PROVIDED ACTUAL NOTICE OF THE TERMINAL ELEMENT THROUGH AN ARTICLE 32 REPORT RECEIVED PRIOR TO TRIAL.

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS APPLIED AN ERRONEOUS STANDARD OF LAW WHEN EVALUATING WHETHER THE DEFECTIVE SPECIFICATIONS UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS 1) BY FAILING TO CONSIDER WHETHER THE EVIDENCE ON THE MISSING ELEMENT WAS "OVERWHELMING AND ESSENTIALLY UNCONTROVERTED;" 2) BY FAILING TO FIND NOTICE OF THE MISSING ELEMENT WAS EXTANT IN THE RECORD; AND 3) BY CONFLATING ERROR IN THE LACK OF NOTICE IN THE SPECIFICATIONS WITH MATERIAL PREJUDICE CAUSED BY THE MISSING TERMINAL ELEMENT.

III. WHETHER THIS HONORABLE COURT SHOULD APPLY THE FOURTH PRONG OF THE PLAIN ERROR ANALYSIS AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. OLANO, 507 U.S. 725 (1993), WHEN ASSESSING WHETHER THE DEFECTIVE SPECIFICATIONS UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS IN THIS CASE.




Monday, June 24, 2013

CERTIFICATES FOR REVIEW FILED

 

No. 13-5008/AF. U.S. v. Alejandro V. ARRIAGA. CCA 37439. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on the following issues:

 

I. WHETHER APPELLEE SATISFIED HIS BURDEN TO DEMONSTRATE THAT THE DEFECTIVE SPECIFICATION UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED HIS SUBSTANTIAL RIGHTS WHEN HE WAS PROVIDED ACTUAL NOTICE OF THE TERMINAL ELEMENT THROUGH AN ARTICLE 32 REPORT RECEIVED PRIOR TO TRIAL.

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS APPLIED AN ERRONEOUS STANDARD OF LAW WHEN EVALUATING WHETHER THE DEFECTIVE SPECIFICATION UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS BY FAILING TO CONSIDER WHETHER THE EVIDENCE ON THE MISSING ELEMENT WAS "OVERWHELMING AND ESSENTIALLY UNCONTROVERTED" AND BY FINDING NOTICE OF THE MISSING ELEMENT WAS NOT EXTANT IN THE RECORD.

 

III. WHETHER THIS HONORABLE COURT SHOULD APPLY THE FOURTH PRONG OF THE PLAIN ERROR ANALYSIS AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. OLANO, 507 U.S. 725 (1993), WHEN ASSESSING WHETHER THE DEFECTIVE SPECIFICATION UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS IN THIS CASE.




Thursday, June 20, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0345/AF. U.S. v. Robert M. PAYNE. CCA 37594. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE MEMBERS OF THE ELEMENTS FOR CREATION OF CHILD PORNOGRAPHY.

 

Briefs will be filed under Rule 25.

 

No. 13-0348/AR. U.S. v. Amanda M. MOSS. CCA 20110337. Review granted on the following issues:

 

I. WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE DEFENSE COUNSEL MADE AN UNSWORN STATEMENT ON HER BEHALF WHEN SHE WAS TRIED IN ABSENTIA AND THERE IS NO EVIDENCE THAT SHE CONSENTED TO THE UNSWORN STATEMENT.

 

II. WHETHER APPELLANT WAS DEPRIVED OF HER RIGHT TO CONFLICT-FREE COUNSEL WHEN HER DEFENSE COUNSEL MADE AN UNSWORN STATEMENT WITHOUT HER CONSENT AND SUBSEQUENTLY INVOKED HIS FIFTH AMENDMENT RIGHTS AND FAILED TO ASSERT THAT APPELLANT WAS PREJUDICED.

 

III. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE ALLOWED THE DEFENSE COUNSEL TO MAKE AN UNSWORN STATEMENT ON BEHALF OF APPELLANT WHEN SHE WAS TRIED IN ABSENTIA.

 

IV. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FOUND THAT THERE WAS NO PREJUDICE WHEN THE DEFENSE COUNSEL READ AN UNSWORN STATEMENT WITHOUT APPELLANT'S CONSENT AND THEN FAILED TO INSTRUCT THE PANEL TO DISREGARD THE UNSWORN STATEMENT AND SERGEANT FIRST CLASS M'S REBUTTAL TESTIMONY.

 

Briefs will be filed under Rule 25.




Monday, June 17, 2013

CERTIFICATES FOR REVIEW FILED

 

No. 13-5007/AF. U.S. v. Laurence H. FINCH. CCA 38081. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

IF THE COURT FINDS THAT THE SPECIFICATIONS SUFFICIENTLY ALLEGED THAT THE VISUAL DEPICTIONS WERE OF ACTUAL MINORS BUT THAT THE MILITARY JUDGE'S DEFINITIONS WERE INCONSISTENT WITH THE ALLEGED SPECIFICATIONS, WHAT IS THE APPROPRIATE REMEDY, IF ANY, TO BE GIVEN?




Wednesday, May 22, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719. Review granted on the following issues:

 

I.           WHETHER SPECIFICATION 2 OF THE CHARGE IS VOID FOR VAGUENESS BECAUSE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING "SEXUALLY SUGGESTIVE" MATERIAL OF MINORS AS "SEXUAL OBJECTS" WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

 

II.         WHETHER THERE IS SUBSTANTIAL BASIS IN LAW TO QUESTION APPELLANT'S GUILTY PLEA TO SPECIFICATION 2 OF THE CHARGE WHEN THE MILITARY JUDGE FAILED TO PROPERLY DEFINE "SEXUAL OBJECTS OR IN A SEXUALLY SUGGESTIVE WAY" AND WHERE THE PROVIDENCE INQUIRY FOR THIS CONSTITUTIONALLY PROTECTED MATERIAL FAILED TO ELICIT APPELLANT'S ACTIONS AS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OR SERVICE DISCREDITING IN LIGHT OF UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).

 

Briefs will be filed under Rule 25.




Monday, May 20, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0435/AR. U.S. v. Gary D. WARNER. CCA 20120499. Review granted on the following issues:

 

I. WHETHER SPECIFICATION 3 OF CHARGE I IS VOID FOR VAGUENESS BECAUSE THE APPELLANT WAS NOT GIVEN FAIR NOTICE THAT THE CHARGED CONDUCT OF POSSESSING "SEXUALLY SUGGESTIVE" MATERIAL OF MINORS AS "SEXUAL OBJECTS" WAS FORBIDDEN AND SUBJECT TO CRIMINAL ACTION.

 

II. WHETHER SPECIFICATION 3 OF CHARGE I IS LEGALLY INSUFFICIENT WHEN THE GOVERNMENT FAILED TO PROVE THAT THE POSSESSION OF CONSTITUTIONALLY PROTECTED IMAGES OF MINORS AS "SEXUAL OBJECTS" AND IN "SEXUALLY SUGGESTIVE" POSES HAD A DIRECT AND PALPABLE EFFECT ON THE MILITARY MISSION AND THEREFORE WAS ACTUALLY SERVICE DISCREDITING AS REQUIRED BY UNITED STATES v. WILCOX, 66 M.J. 442 (C.A.A.F. 2008).

 

Briefs will be filed under Rule 25.




Friday, May 17, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0445/MC. U.S. v. Erik J. ELLIS. CCA 201200406. Review granted on the following issue:

 

WHERE AN APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO SHORTLY AFTER STATED THAT DEFENDANTS ARE "GUILTY," REFERRED TO DEFENDANTS AS "SCUMBAGS," AND STATED THAT DEFENDANTS NEED TO BE "CRUSHED," WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

No briefs will be filed under Rule 25.




Thursday, May 16, 2013

ORDERS GRANTING PETITION FOR REVIEW

   

No. 13-0353/AF. U.S. v. Laurence H. FINCH. CCA 38081. Review granted on the following issue:

 

WHERE THE ARTICLE 134 CHILD PORNOGRAPHY SPECIFICATIONS OF WHICH APPELLANT WAS CONVICTED DID NOT ALLEGE THAT THE IMAGES DEPICTED ACTUAL MINORS AND WHERE THE MILITARY JUDGE ADVISED APPELLANT DURING THE PROVIDENCE INQUIRY THAT "THERE IS NO REQUIREMENT THAT THE IMAGES IN THIS CASE INCLUDE ACTUAL IMAGES OF MINORS," IS THE MAXIMUM AUTHORIZED CONFINEMENT FOR EACH SPECIFICATION LIMITED TO FOUR MONTHS?

 

Briefs will be filed under Rule 25.

 

No. 13-0444/MC. U.S. v. Steven W. MYRICK. CCA 201200404. Review granted on the following issues:

 

WHERE AN APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO SHORTLY AFTER STATED THAT DEFENDANTS ARE "GUILTY," REFERRED TO DEFENDANTS AS "SCUMBAGS," AND STATED THAT DEFENDANTS NEED TO BE "CRUSHED," WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

No briefs will be filed under Rule 25.




Tuesday, April 30, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0283/AF. U.S. v. Timothy L. MERRITT. CCA 37608. Review granted on the following issues:

I. WHETHER APPELLANT'S CONSTITUTIONAL RIGHT TO FAIR NOTICE THAT AN ACT IS CRIMINAL WAS VIOLATED IN SPECIFICATION 2 OF THE CHARGE, WHERE THE ALLEGED OFFENSE OCCURRED IN MAY 2006 BUT CONGRESS DID NOT CRIMINALIZE THE INTENTIONAL VIEWING OF CHILD PORNOGRAPHY UNTIL OCTOBER 2008.

II. WHETHER APPELLANT'S DUE PROCESS RIGHT TO TIMELY APPELLATE REVIEW WAS VIOLATED WHERE THE AIR FORCE COURT DECIDED APPELLANT'S CASE ONE THOUSAND AND TWENTY-FOUR DAYS AFTER IT WAS DOCKETED.

 

Briefs will be filed under Rule 25.




Wednesday, April 24, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0332/MC. U.S. v. Chad J. BATCHELDER. CCA 201200180. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED. WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

No briefs will be filed under Rule 25.

 

No. 13-0352/MC. U.S. v. Michael A. ARNOLD. CCA 201200382. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED. WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

No briefs will be filed under Rule 25.

 




Wednesday, April 17, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0280/AR. U.S. v. Douglas K. WINCKELMANN. CCA 20070243. Review granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS, AFTER DISAPPROVING THE FINDINGS OF GUILTY FOR CHARGE IV AND ITS SPECIFICATIONS AND AFTER CONSIDERING THIS HONORABLE COURT'S DECISION DISMISSING SPECIFICATION 3 OF CHARGE III, ERRED BY REASSESSING APPELLANT'S SENTENCE TO CONFINEMENT, FIRST FROM 31 YEARS TO 20 YEARS (IN THEIR INITIAL DECISION), AND THEN FROM 20 YEARS TO 11 YEARS (IN A SUBSEQUENT DECISION), RATHER THAN DIRECTING A SENTENCE REHEARING.

 

Briefs will be filed under Rule 25.

 

No. 12-0428/MC. U.S. v. Stephen J. MCGUIRE. CCA 201000611. Review granted on the following issue:

 

WHETHER THE TWO ARTICLE 134 SPECIFICATIONS UNDER CHARGE III ARE PREJUDICIALLY DEFECTIVE BECAUSE THEY DO NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE TERMINAL ELEMENT.

 

Briefs will be filed under Rule 25.




Wednesday, March 27, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0269/MC. U.S. v. Joshua W. TIGER. CCA 201200284. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED. WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

No briefs will be filed under Rule 25.




Friday, March 22, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0268/MC. U.S. v. Samuel PACHECO, Jr. CCA 201200366. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED. WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

No briefs will be filed under Rule 25.




Thursday, March 14, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0196/MC. U.S. v. Brian P. HICKERSON. CCA 201100111. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT'S COURT-MARTIAL WAS PRESIDED OVER BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED. WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

No briefs will be filed under Rule 25.

 

No. 13-0213/MC. U.S. v. Daniel W. SANDERS. CCA 201200202. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED. WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

No briefs will be filed under Rule 25.

 

No. 13-0241/MC. U.S. v. Richard T. PEARCE. CCA 201100110. Review granted on the following additional issue:

 

AFTER APPELLANT'S COURT-MARTIAL, THE MILITARY JUDGE MADE EXTRA-JUDICIAL COMMENTS THAT CREATE THE APPEARANCE OF BIAS. DID THE MILITARY JUDGE'S COMMENTS DEPRIVE APPELLANT OF A FAIR AND IMPARTIAL COURT-MARTIAL?

 

No briefs will be filed under Rule 25.




Friday, March 8, 2013

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0241/MC. U.S. v. Richard T. PEARCE. CCA 201100110. Review granted on the following issue:

 

IN MILLER v. CALIFORNIA, THE SUPREME COURT HELD THAT THE TRIER OF FACT MUST DETERMINE WHETHER JUDICIALLY-CREATED FACTORS THAT DISTINGUISH BETWEEN CONSTITUTIONALLY-PROTECTED AND CRIMINAL CONDUCT ARE SATISFIED. THE FACTORS IDENTIFIED IN UNITED STATES v. MARCUM ARE AN EXAMPLE OF SUCH FACTORS. BUT THE LOWER COURT HELD THAT THE MILITARY JUDGE MUST DETERMINE WHETHER THE MARCUM FACTORS ARE SATISFIED. WHO DETERMINES WHETHER THEY HAVE BEEN SATISFIED?

 

No briefs will be filed under Rule 25.



Friday, May 4, 2012
ORDERS GRANTING PETITION FOR REVIEW

No. 12-0320/AF. U.S. v. Chadrick L. CAPEL. CCA S31819. Review granted on the following issue raised by appellate defense counsel:

 

I. 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.

 

And the following issue specified by the Court:

 

II. 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).

 

Briefs will be filed under Rule 25 on Issue II only.


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