YOU ARE HERE: > HOME > GRANTS AND DISPOSITIONS

 


NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 10/17/17)

Cases that have been decided will be removed from this page at the end of the term.
See Daily Journal for complete court proceedings.


Subscribe to this feed Subscribe to this feed for updates on new grants and dispositions (Google Chrome will require free extension to see feed.)




Monday, October 16, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0308/AR. U.S. v. Dwayne M. Williams. CCA 20140924. 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.

 

Orders Granting Petition for Review

 

No. 17-0491/AR. U.S. v. Nicholas S. Marcum. CCA 20150500. 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 on the following issue:

 

APPELLANT CLAIMED THE PROSECUTION'S ARGUMENTS ON FINDINGS AND SENTENCE WERE ERRONEOUS AND PREJUDICIAL. THE COURT BELOW APPLIED THE STANDARD OF REVIEW IN UNITED STATES v. AHERN, 76 M.J. 194 (C.A.A.F. 2017), AND DID NOT FIND PREJUDICE. DID THE COURT BELOW ERR, BECAUSE THE PROPER STANDARD OF REVIEW IS FOUND IN UNITED STATES v. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES v. PABELONA, 76 M.J. 9 (C.A.A.F. 2017)?

 

Briefs will be filed under Rule 25.

 

No. 17-0510/MC. U.S. v. Derrick L. Dinger. CCA 201600108. 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 on the following issue:

 

10 U.S.C. 6332 STATES THAT WHEN A PERSON IS PLACED IN A RETIRED STATUS, THIS "TRANSFER IS CONCLUSIVE FOR ALL PURPOSES." CAN A COURT-MARTIAL LAWFULLY SENTENCE A RETIREE TO A PUNITIVE DISCHARGE?

 

Briefs will be filed under Rule 25.




Thursday, October 12, 2017

Orders Granting Petition for Review

 

No. 17-0551/AF. U.S. v. Thomas E. Barker. CCA 39086. 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 issues:

 

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD PROPER FOUNDATION HAD BEEN LAID TO ADMIT EVIDENCE IN AGGRAVATION.

 

II. WHETHER THE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED A REVIEW OF THE PREJUDICE RESULTING FROM THE MILITARY JUDGE'S ERRONEOUS ADMISSION OF EVIDENCE IN AGGRAVATION.

 

Briefs will be filed under Rule 25.

 

No. 17-0553/AF. U.S. v. Ryan A. Hardy. CCA 38937. 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 AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLANT WAIVED, RATHER THAN FORFEITED, HIS CLAIM OF UNREASONABLE MULTIPLICATION OF CHARGES.

 

Briefs will be filed under Rule 25.

 

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. 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 on the following issue:

 

WHETHER ASSAULT CONSUMMATED BY A BATTERY IS A LESSER INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM.

 

Briefs will be filed under Rule 25.

 

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. 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 on the following issue:

 

WHETHER A COURT OF CRIMINAL APPEALS HAS THE AUTHORITY TO DISAPPROVE A MANDATORY MINIMUM PUNITIVE DISCHARGE.

 

Briefs will be filed under Rule 25.




Wednesday, October 11, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0541/NA. U.S. v. John M. Peeler. CCA 8601781. Appellee's motion to dismiss the petition for grant of review is granted.

 

No. 17-0590/AR. U.S. v. John W. Loniak. CCA 20150835. On consideration of Appellant's motion to dismiss the petition for grant of review without prejudice and motion to extend time to file the supplement to the petition for grant of review, it is ordered: that the motion to dismiss the petition for grant of review without prejudice is granted; and that the motion to extend time to file the supplement to the petition for grant of review is denied as moot.




Thursday, August 31, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0443/AF. U.S. v. Brandon M. Hardee. CCA S32360. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that in affirming the sentence, the Court of Criminal Appeals stated that Appellant's approved sentence included a "forfeiture of $1301.00 pay per month for six months," when in fact the sentence included a forfeiture of $1031.00 pay per month for six months. Accordingly, it is ordered that said petition is hereby granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for confinement for six months, forfeiture of $1031.00 pay per month for six months, reduction to E-1, and a bad-conduct discharge.

 

Orders Granting Petition for Review

 

No. 17-0482/AF. U.S. v. Kenneth W. Frank, Jr. CCA 38854. 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 issues:

 

I. WHETHER TSGT MA SHOULD HAVE BEEN DISMISSED FROM THE COURT-MARTIAL PANEL FOR IMPLIED BIAS.

 

II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF MISCONDUCT THAT WAS CHARGED AND LATER DISMISSED FOR LACK OF EVIDENCE UNDER MILITARY RULE OF EVIDENCE 413 AND PROVIDING THE STANDARD MILITARY RULE OF EVIDENCE 413 INSTRUCTION.

 

Briefs will be filed under Rule 25.

 

No. 17-0495/MC. U.S. v. Benjamin D. Luna. CCA 201500423. 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 on the following issue:

 

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY APPLIED THE STANDARD FOR ASSESSING PREJUDICE AFTER FINDING CONSTITUTIONAL ERROR BASED ON UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

 

No briefs will be filed under Rule 25.




Tuesday, August 29, 2017

Orders Granting Petition for Review

 

No. 17-0404/AF. U.S. v. Vashaun M. Blanks. CCA 38891. 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:

 

IN LIGHT OF THIS COURT'S DECISION IN UNITED STATES v. HAVERTY, 76 M.J. 199 (C.A.A.F. 2017), DID THE MILITARY JUDGE ERR WHEN HE INSTRUCTED THE MEMBERS APPELLANT COULD BE CONVICTED OF NEGLIGENT DERELICTION OF DUTY?

 

Briefs will be filed under Rule 25.




Friday, August 18, 2017

Orders Granting Petition for Review

 

No. 17-0480/NA. U.S. v. Raiden J. Andrews. CCA 201600208. 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 on the following issue:

 

THE LOWER COURT FOUND SEVERE PROSECUTORIAL MISCONDUCT. THEN IT AFFIRMED THE FINDINGS AND SENTENCE, GIVING ITS IMPRIMATUR TO THE PROSECUTORIAL MISCONDUCT IN APPELLANT'S CASE. DID THE LOWER COURT ERR?

 

Briefs will be filed under Rule 25.

 

No. 17-0504/AF. U.S. v. Hank W. Robinson. CCA 38942. 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 issues:

 

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT'S CELL PHONE.

 

II. WHETHER THE AIR FORCE COURT ERRED IN HOLDING APPELLANT WAIVED OBJECTIONS REGARDING INVESTIGATORS' EXCEEDING THE SCOPE OF APPELLANT'S CONSENT.

 

Briefs will be filed under Rule 25.




Wednesday, August 16, 2017

Orders Granting Petition for Review

 

No. 17-0456/AF. U.S. v. Alexander S. Wheeler. CCA 38908. 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 LOWER COURT ERRONEOUSLY CONCLUDED CHARGE II WAS NOT PREEMPTED BY ARTICLE 120b, UCMJ, 10 U.S.C. 920.

 

Briefs will be filed under Rule 25.




Thursday, August 10, 2017

Orders Granting Petition for Review

 

No. 17-0458/AF. U.S. v. Chad A. Blatney. CCA 2016-16. 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 MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE OBTAINED FROM APPELLANT'S CELLULAR PHONE, WHERE LAW ENFORCEMENT REQUESTED THAT APPELLANT ENTER HIS PASSWORD TWICE TO DECRYPT THE PHONE AND DISABLE SECURITY AFTER HE INVOKED HIS RIGHT TO COUNSEL.

 


Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.




Monday, July 31, 2017

Certificates for Review Filed

 

No. 17-0537/MC. United States, Appellant v. James A. Hale, Appellee. CCA 201600015. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

 

WHAT IS THE CORRECT TEST WHEN ANALYZING AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED UPON A CONFLICT OF INTEREST NOT INVOLVING MULTIPLE REPRESENTATION.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 30th day of August, 2017.

 

Orders Granting Petition for Review

 

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. 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 LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHEN THE GOVERNMENT WAS INACTIVE FOR OVER 17 YEARS BEFORE INVESTIGATING A CLAIM OF RAPE, VIOLATING LTCOL MANGAHAS' FIFTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

 

Pursuant to Rule 19(a)(7)(A), no further pleadings will be filed.




Thursday, July 27, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0395/AR. U.S. v. Noel G. Aguiar-Perez. CCA 20140715. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, bearing USCA Docket Number 17-0395/AR, it is ordered that so much of the order of this Court dated March 3, 2017 and relating to USCA Docket Number 17-0167/AR, which affirmed the remaining findings is hereby vacated. The decision of the United States Army Court of Criminal Appeals on the remaining findings is set aside. The record of trial is returned to the Judge Advocate General of the Army 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), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

Appeals - Summary Dispositions

 

No. 16-0716/AR. U.S. v. Manuel Ortiz III. CCA 20150267. On further consideration of the granted issue, 75 M.J. 494 (C.A.A.F. 2016), it is ordered that 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 the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0037/AF. U.S. v. Cory D. Phillips. CCA S38771. On further consideration of the granted issue, 76 M.J. 57 (C.A.A.F. 2017), and the briefs of the parties, it is ordered that 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 under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0041/AR. U.S. v. Justin M. Gurczynski. CCA 20140518. On further consideration of the granted issues, (United States v. Gurczynski, 76 M.J. 42 (C.A.A.F. 2016) (order granting review in No. 17-0041)), and in view of United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals in No. ARMY 20140518, dated August 31, 2016, is hereby affirmed.

 

No. 17-0084/AR. U.S. v. James N. Costigan. CCA 20150052. On further consideration of the granted issue, 76 M.J. 65 (C.A.A.F. 2017), and the briefs of the parties, it is ordered that 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 the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0087/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On further consideration of the granted issue, 76 M.J. 63 (C.A.A.F. 2017), and the briefs of the parties, it is ordered that 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 the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0222/AF. U.S. v. Yogendra Rambharose. CCA 38769. On further consideration of the granted issue, 76 M.J. 262 (C.A.A.F. 2017), it is ordered that 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 under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0253/AR. U.S. v. Douglas E. Reynolds, Jr. CCA 20140856. On further consideration of the granted issue, 76 M.J. 259 (C.A.A.F. 2017), it is ordered that 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 the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0319/AR. U.S. v. Eric A. Ramos-Cruz. CCA 20150292. On further consideration of the granted issue, __ M.J. __ (C.A.A.F. 2017) (order granting review, May 10, 2017), it is ordered that 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 the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).




Wednesday, July 26, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0282/AF. U.S. v. Michael R. Lightsey. CCA 38851. 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 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 under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0298/AR. U.S. v. Dwight D. Harris. CCA 20131045. 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 set aside. The record of trial is returned to the Judge Advocate General of the Army 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), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0333/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. 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 set aside. The record of trial is returned to the Judge Advocate General of the Army 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), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0341/AR. U.S. v. Vincent P. Degregori III. CCA 20150581. 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 set aside. The record of trial is returned to the Judge Advocate General of the Army 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), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).

 

No. 17-0381/AF. U.S. v. Corey J. Campbell. CCA 38875. 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 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 under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017).




Tuesday, July 25, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0376/AR. U.S. v. Torie A. Cash. CCA 20150484. 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.

 

Orders Granting Petition for Review

 

No. 17-0405/AF. U.S. v. Sean C. Mooney. CCA 38929. 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 CONVENING AUTHORITY'S ACTION IS VOID AB INITIO WHERE IT PURPORTS TO ORDER APPELLANT'S ADJUDGED COURT-MARTIAL SENTENCE TO RUN CONSECUTIVE TO HIS PREVIOUSLY ADJUDGED FEDERAL SENTENCE INSTEAD OF CONCURRENTLY AS REQUIRED BY ARTICLE 57, UCMJ.

 

Briefs will be filed under Rule 25.




Wednesday, July 19, 2017

Orders Granting Petition for Review

 

No. 17-0306/AF. U.S. v. Joseph A. Pugh. CCA 2016-11. 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 the petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT AFI 90-507 SERVES NO VALID MILITARY PURPOSE AND DISMISSING THE ADDITIONAL CHARGE AND ITS SPECIFICATION.

 

Although ordinarily an appeal pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. 862 (2012), does not require additional pleadings, because the granted issue differs from the assigned issue, additional briefing is necessary. See CAAF Rules 19(a)(7)(A) and 25. Accordingly, Appellant's brief on this issue shall be filed within 20 days of the date of this order. Appellee's brief 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 brief. Absence extraordinary circumstances, extensions of time to file the briefs will not be granted.

 

No. 17-0392/AF. U.S. v. Robert A. Condon. CCA 38765. 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 raised by appellate defense counsel:

 

I. UPON REQUEST BY THE DEFENSE COUNSEL AND UTILIZING A DEFENSE PROPOSED INSTRUCTION, SHOULD THE MILITARY JUDGE HAVE PROVIDED THE MEMBERS WITH AN EXPLANATION OF THE TERM "INCAPABLE"?

 

And the following issue specified by the Court:

 

II. WHETHER THE MILITARY JUDGE ERRED IN ADMITTING APPELLANT'S INVOCATION OF HIS RIGHT TO COUNSEL IN HIS AFOSI INTERVIEW AT TRIAL OVER DEFENSE OBJECTION, AND IF SO, WHETHER THAT ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

Briefs will be filed under Rule 25.




Friday, July 14, 2017

Certificates for Review Filed

 

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. 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 on this date on the following issues:

 

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS IMPERMISSIBLY EXCEEDED THE LIMITATIONS OF ITS AUTHORITY ON REMAND FROM THIS COURT BY CONDUCTING A FACTUAL SUFFICIENCY REVIEW.

 

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY FINDING SPECIFICATION 1 OF CHARGE II FACTUALLY AND LEGALLY INSUFFICIENT.

 

III. WHETHER NUDITY IS A PER SE REQUIREMENT FOR AN IMAGE TO CONSTITUTE A "LASCIVIOUS EXHIBITION OF THE GENITALS OR PUBIC AREA" IN 18 U.S.C. 2256(8)(A).

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before August 14, 2017.




Thursday, July 13, 2017

Orders Granting Petition for Review

 

No. 17-0476/AF. U.S. v. David C. Carpenter II. CCA 38995. 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 AIR FORCE COURT OF APPEALS ERRED IN LIMITING THE CROSS-EXAMINATION OF THE COMPLAINING WITNESS UNDER MILITARY RULE OF EVIDENCE 412 ON AN ISSUE SHOWING THAT APPELLANT'S SUBJECTIVE MISTAKE OF FACT AS TO THE COMPLAINING WITNESS'S AGE WAS OBJECTIVELY REASONABLE.

 

Briefs will be filed under Rule 25.




Wednesday, July 12, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0441/AF. U.S. v. Michael R. Henry. CCA 38886. On consideration of Appellee's motion to dismiss the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals for lack of jurisdiction, it is noted that the Court of Criminal Appeals affirmed several of the findings of guilty, set aside other findings of guilty and the sentence, and remanded the record with a rehearing authorized. Under Article 67(c), UCMJ, this Court has jurisdiction to consider the petition. However, given the possibility of a rehearing, the petition is not ripe for review at this time. Accordingly, it is ordered that the motion to dismiss the petition for lack of jurisdiction is hereby denied, and the petition for grant of review is denied without prejudice to Appellant's right to raise the matters asserted during the normal course of appellate review.




Tuesday, June 27, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0370/AR. U.S. v. Adam G. Koenig. CCA 20150225. 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.




Monday, June 26, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0353/AR. U.S. v. Jeremy C. Bardin. CCA 20150378. 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 Court of Criminal Appeals is affirmed.




Thursday, June 22, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0373/AR. U.S. v. David M. Ozoskey. CCA 20160085. 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.

 

Orders Granting Petition for Review

 

No. 17-0323/AR. U.S. v. Antonio T. Moore. CCA 20140875. 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 on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRONEOUSLY FOUND THERE WAS NO REASONABLE POSSIBILITY THE IMPROPER PROPENSITY INSTRUCTION INVALIDATED BY THIS COURT IN UNITED STATES v. HILLS, 75 M.J. 360 (C.A.A.F. 2016), COULD HAVE AFFECTED THE PANEL'S GUILTY FINDING FOR SPECIFICATION 1 OF ADDITIONAL CHARGE I.

 

No briefs will be filed under Rule 25.




Monday, June 19, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. On consideration of Appellant's petition for reconsideration of this Court's order of April 27, 2017, summarily affirming the decision of the United States Navy-Marine Corps Court of Criminal Appeals, Appellant's motions to appoint a special master, to supplement the record, and for oral argument, and Appellee's motion to remand for new post-trial processing, we note that Appellant has presented an affidavit from the convening authority averring that he felt pressure from senior civilian and military leaders to approve the findings in this case. In order to resolve this allegation of unlawful command influence, we conclude that further factfinding must be conducted pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Accordingly, it is ordered that the petition for reconsideration is granted, this Court's order of April 27, 2017, is vacated, and the petition for grant of review is granted on the following issue:

WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY.

In addition, the motion to appoint a special master is denied, the motions to supplement the record are granted, the motion for oral argument is denied, and the motion to remand for new post-trial processing is denied. The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority other than the one who convened the court-martial concerned and one who is at a higher echelon of command. This convening authority shall order a factfinding hearing pursuant to DuBay. The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps. See Rule for Court-Martial 503(b)(3).

 

This military judge shall inquire fully and make findings of fact and conclusions of law related to the alleged unlawful command influence matter underlying the granted issue. At the conclusion of the DuBay hearing, the military judge will return the record directly to this Court for further review of the granted issue under Article 67, Uniform Code of Military Justice, 10 U.S.C. 867 (2012). The hearing shall be completed and the record returned to this Court no later than November 1, 2017.*

 

* It is noted that the military judge neglected to seal the transcript of the Military Rule of Evidence (MRE) 513 hearing and some of the associated pleadings, contrary to the requirements of MRE 513(e)(5). Accordingly, the Clerk is directed to seal the MRE 513 matters (pages 26-47 and 57-61 and AE V and VIII of the record of trial).




Thursday, June 15, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0428/AR. U.S. v. Raymond P. Pasay. CCA 20140930. On consideration of Appellant's motion to dismiss the petition for grant of review pending reconsideration at the United States Army Court of Criminal Appeals, and subsequent motion to dismiss the petition for grant of review, or in the alternative, to file the supplement out of time, it is ordered that Appellant's motion to dismiss the petition for grant of review dated May 30, 2017, is hereby granted without prejudice, and Appellant's motion to dismiss the petition for grant of review, or in the alternative, to file the supplement out of time dated June 13, 2017, is hereby denied as moot.




Monday, June 12, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0241/AR. U.S. v. Shawn E. Earle. CCA 20150184.

No. 17-0244/AR. U.S. v. Joseph Kargbo. CCA 20150011.

No. 17-0363/AR. U.S. v. David Garman. CCA 20150164.

 

In the above referenced cases, 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.

 

Orders Granting Petition for Review

 

No. 17-0285/AR. U.S. v. Gene N. Williams. CCA 20130582. 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 on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRONEOUSLY FOUND THAT THE PROPENSITY INSTRUCTION GIVEN IN THIS CASE FALLS WITHIN AN EXCEPTION TO THE HOLDING IN UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

 

Briefs will be filed under Rule 25.

 

No. 17-0364/AF. U.S. v. Tyler G. Eppes. CCA 38881. 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 issues:

 

I. WHETHER THE SEARCH OF APPELLANT'S PERSONAL BAGS EXCEEDED THE SCOPE OF THE SEARCH AUTHORIZATION WHERE THE AGENT REQUESTED AUTHORITY TO SEARCH APPELLANT'S PERSON, PERSONAL BAGS, AND AUTOMOBILE, BUT THE MILITARY MAGISTRATE AUTHORIZED ONLY THE SEARCH OF APPELLANT'S PERSON AND AUTOMOBILE AND DID NOT AUTHORIZE THE SEARCH OF APPELLANT'S PERSONAL BAGS.

 

II. WHETHER APPELLANT'S RIGHT TO FREEDOM FROM UNREASONABLE SEARCH AND SEIZURE UNDER THE FOURTH AMENDMENT WAS VIOLATED WHEN THERE WAS NO PROBABLE CAUSE FOR THE 7 DECEMBER 2012 WARRANT.

 

Briefs will be filed under Rule 25.




Friday, June 9, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0374/AR. U.S. v. Anthony C. Toney. CCA 20150565. 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.




Thursday, June 8, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0252/AR. U.S. v. Nicholas A. Solt. CCA 20130029.

No. 17-0375/AR. U.S. v. David C. Robinson. CCA 20150120.

No. 17-0380/AR. U.S. v. Bianca L. Koth. CCA 20150179.

 

In the above referenced cases, 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.




Wednesday, June 7, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0240/AR. U.S. v. Stephen B. Perry. CCA 20140904.

No. 17-0280/AR. U.S. v. Joshua A. Kundradurham. CCA 20160059.

No. 17-0320/AR. U.S. v. Eric K. McFadden. CCA 20140815.

No. 17-0321/AR. U.S. v. Carlton D. Sharpe. CCA 20150101.

 

In the above reference cases, 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.




Tuesday, June 6, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0342/AR. U.S. v. Thomas D. Rodgers. CCA 20150706. 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.

 

Appeals - Summary Dispositions

 

No. 17-0407/AF. U.S. v. Thomas P.J. Drayton. CCA S32374. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the Court of Criminal Appeals stated that Appellant's approved sentence included a bad-conduct discharge, confinement for 12 months, forfeiture of $850.00 pay per month for 12 months, and reduction to E-1. It then affirmed that sentence. In fact, the sentence approved by the convening authority reduced the confinement to 8 months. Accordingly, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for confinement for 8 months, forfeiture of $850.00 pay per month for 12 months, reduction to E-1, and a bad-conduct discharge.




Thursday, June 1, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0337/AR. U.S. v. Dontae D. Stanford. CCA 20150745. 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.

 

No. 17-0338/AR. U.S. v. Matthew S. Dejesus. CCA 20150666. 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.

 

No. 17-0355/AR. U.S. v. Jose L. Cuellar. CCA 20150375. 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.

 

No. 17-0372/AR. U.S. v. Lawrence E. Gore. CCA 20160275. 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.

 

Appeals - Summary Dispositions

 

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. On further consideration of the granted issue (76 M.J. 62 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, it is ordered that 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 the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Sager, 76 M.J. 158 (C.A.A.F. March 21, 2017).




Friday, May 26, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0235/AR. U.S. v. Joshua P. Maez. CCA 20150810. 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.

 

No. 17-0259/AR. U.S. v. Erick A. Medrano. CCA 20140167. 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.

 

No. 17-0354/AR. U.S. v. Mack R. Goss III. CCA 20150024. 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.

 

Appeals - Summary Dispositions

 

No. 17-0077/AR. U.S. v. Salvador Jimenez-Victoria. CCA 20140733. On further consideration of the granted issues, and in view of United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

Orders Granting Petition for Review

 

No. 17-0347/AF. U.S. v. Robert L. Honea III. CCA 38905. 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 issues:

 

I. IMMEDIATELY BEFORE THE DEFENSE RESTED ITS CASE, THE MILITARY JUDGE INVITED THE PARTIES' ATTENTION TO R.C.M. 910, AND DIRECTED THE DEFENSE TO PROVIDE THE MILITARY JUDGE WITH A DRAFT SPECIFICATION OF ASSAULT CONSUMMATED BY A BATTERY. DID THE LOWER COURT ERR WHEN IT HELD THAT THE DEFENSE'S COMPLIANCE WITH THE MILITARY JUDGE'S DIRECTIVE CONSTITUTED A DE FACTO DEFENSE REQUEST TO MODIFY THE SPECIFICATION PURSUANT TO R.C.M. 603 WHERE THERE IS NO EVIDENCE THAT EITHER THE DEFENSE OR THE CONVENING AUTHORITY WERE AWARE THE CHARGE WAS BEING AMENDED PURSUANT TO R.C.M. 603?

 

II. THE MILITARY JUDGE DISMISSED SPECIFICATION 2 OF CHARGE II, ABUSIVE SEXUAL CONTACT BY CAUSING BODILY HARM, FOR FAILURE TO STATE AN OFFENSE, BUT SHE ALLOWED THE GOVERNMENT TO PROCEED TO TRIAL ON THE PURPORTED LESSER INCLUDED OFFENSE OF ASSAULT CONSUMMATED BY A BATTERY. DID THE MILITARY JUDGE ERR?

 

Briefs will be filed under Rule 25.




Thursday, May 25, 2017

Miscellaneous Docket - Summary Dispositions

 

No. 17-0366/AR. Ronald E.V. Layton, Appellant v. United States, Appellee. CCA 20160756. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby dismissed for lack of jurisdiction.




Tuesday, May 23, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0350/AR. U.S. v. Leroy A. Greene. CCA 20150228. 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.




Monday, May 22, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0312/AR. U.S. v. Thomas J. Watford. CCA 20150549. 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.

 

No. 17-0314/AR. U.S. v. Michael J. Rosadodejesus. CCA 20140087. 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.




Wednesday, May 17, 2017

Appeals - Summary Dispositions

 

No. 16-0497/MC. U.S. v. Reece N. Tso. CCA 201400379. On further consideration of the granted issues, and in light of United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017), and United States v. Bartee, 76 M.J.141 (C.A.A.F. 2017), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 17-0112/AR. U.S. v. Jason R. Crews. CCA 20130766. On further consideration of the granted issues, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




Tuesday, May 16, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0205/AR. U.S. v. Kenneth B. Boyd. CCA 20150632.

No. 17-0207/AR. U.S. v. David Montoya. CCA 20150211.

No. 17-0302/AR. U.S. v. Michael S. Knoop. CCA 20160353.

 

In the above reference cases, 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.




Monday, May 15, 2017

Certificates for Review Filed

 

No. 17-0408/AR. United States, Appellant v. Erik P. Jacobsen, Appellee. CCA 20160786. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, UCMJ, and a supporting brief were filed under Rule 22, together with a motion to stay trial proceedings on this date on the following issue:

 

WHETHER THE TRIAL COUNSEL'S CERTIFICATION THAT EVIDENCE IS "SUBSTANTIAL PROOF OF A FACT MATERIAL IN THE PROCEEDING" IS CONCLUSIVE FOR PURPOSES OF ESTABLISHING APPELLATE JURISDICTION UNDER ARTICLE 62(a)(1)(B), UNIFORM CODE OF MILITARY JUSTICE.

 

Appellee will file an answer under Rule 22(b) on or before May 25, 2017.




Wednesday, May 10, 2017

Orders Granting Petition for Review

 

No. 17-0319/AR. U.S. v. Eric A. Ramos-Cruz. CCA 20150292. 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 on the following issue:

 

WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

 

No briefs will be filed under Rule 25.




Tuesday, May 9, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0192/AR. U.S. v. Jermaine C. Sampson. CCA 20140841.

No. 17-0210/AR. U.S. v. Randon P. Mazzie, Jr. CCA 20140923.

No. 17-0216/AR. U.S. v. Luis A. Torres-Garza. CCA 20160142.

No. 17-0228/AR. U.S. v. Jeffrey T. Murdorf II. CCA 20150038.

No. 17-0242/AR. U.S. v. Nicholas J. Majetich. CCA 20150085.

No. 17-0247/AR. U.S. v. Deandre J. George. CCA 20150793.

No. 17-0260/AR. U.S. v. Marques D. Entzminger. CCA 20150672.

No. 17-0262/AR. U.S. v. Charles Maston. CCA 20140537.

No. 17-0266/AR. U.S. v. Jesse E. Bullock, Jr. CCA 20160347.

No. 17-0267/AR. U.S. v. LaDonte A. Smith. CCA 20160480.

No. 17-0269/AR. U.S. v. Michael J. Slater. CCA 20150494.

No. 17-0270/AR. U.S. v. Loren R. Berg. CCA 20150548.

No. 17-0271/AR. U.S. v. Brandon C. Patterson. CCA 20150325.

No. 17-0274/AR. U.S. v. Victor D. Wilson. CCA 20140220.

No. 17-0275/AR. U.S. v. Gavin C. Hirsch. CCA 20160416.

No. 17-0276/AR. U.S. v. Dennis Bailon. CCA 20160240.

No. 17-0281/AR. U.S. v. Kaitlin Shave. CCA 20160048.

No. 17-0288/AR. U.S. v. Stephon D. Threat. CCA 20160593.

No. 17-0293/AR. U.S. v. Edgar Huertalopez. CCA 20150059.

No. 17-0294/AR. U.S. v. James R. Reed. CCA 20150284.

No. 17-0303/AR. U.S. v. Jeffrey I. Averett, Jr. CCA 20160669.

No. 17-0340/AR. U.S. v. Khristian Mairena. CCA 20160327.

No. 17-0345/AR. U.S. v. Rinard A. Orage. CCA 20150682.

No. 17-0348/AR. U.S. v. Keimara N. Brooks. CCA 20160715.




Monday, May 8, 2017

Appeals - Summary Dispositions

 

No. 16-0741/AR. U.S. v. Nicholas A. Piszcz. CCA 20140842.

No. 16-0754/AR. U.S. v. Arthur Martin, Jr. CCA 20130207.

No. 17-0090/AR. U.S. v. Ronnie T. Williams. CCA 20150302.

No. 17-0094/AR. U.S. v. Jeffrey W. Thompson, Jr. CCA 20160169.

No. 17-0111/AR. U.S. v. Francisco Galvan. CCA 20150574.

No. 17-0121/AR. U.S. v. Elvis R. Garcia. CCA 20150715.

 

In the above referenced cases, on further consideration of the granted issues, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 17-0095/AR. U.S. v. Marcus V. Davis. CCA 20150100.

No. 17-0129/AR. U.S. v. Khristophor M. Villar. CCA 20160117.

No. 17-0133/AR. U.S. v. Paul E. Thomas. CCA 20150269.

No. 17-0170/AR. U.S. v. Nicholas Doherty. CCA 20160390.

No. 17-0176/AR. U.S. v. Reginald E. Charles. CCA 20160414.

 

In the above referenced cases, on further consideration of the granted issue, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




Friday, May 5, 2017

Miscellaneous Docket - Summary Dispositions

 

No. 17-0307/AR. Robert B. Bergdahl v. Jeffrey R. Nance and United States. CCA 20170114. No. 17-0307/AR. Robert B. Bergdahl, Appellant v. Jeffrey R. Nance, Colonel, J.A. Military Judge, and United States, Appellees. CCA 20170114. On consideration of the writ-appeal petition and the motion of Former Federal Judges to file an amicus brief, it is ordered that said motion is hereby denied, and that said writ-appeal petition is hereby denied.

 

Appeals - Summary Dispositions

 

No. 16-0693/AR. U.S. v. Marcos A. Bustamante. CCA 20150486.

No. 17-0008/AR. U.S. v. Matthew R. Strempler. CCA 20150527.

No. 17-0038/AR. U.S. v. Christopher B. Smith. CCA 20140353.

No. 17-0040/AR. U.S. v. Keith D. Land. CCA 20160220.

No. 17-0044/AR. U.S. v. Andy Delvalle. CCA 20160157.

No. 17-0047/AR. U.S. v. Adrian T. Douglas. CCA 20140449.

No. 17-0056/AR. U.S. v. Jodi R. Coker. CCA 20160202.

No. 17-0059/AR. U.S. v. Ethan J. Markley. CCA 20140956.

No. 17-0064/AR. U.S. v. Nathan A. Kelley. CCA 20140701.

No. 17-0065/AR. U.S. v. Cassandra M. Riley. CCA 20150687.

No. 17-0066/AR. U.S. v. Marcelino Trejo. CCA 20160479.

No. 17-0067/AR. U.S. v. Anthony K. Bickerstaff. CCA 20160065.

No. 17-0073/AR. U.S. v. William C. Millay. CCA 20130341.

No. 17-0074/AR. U.S. v. Jose L. Nataren. CCA 20130413.

No. 17-0083/AR. U.S. v. Thomas L. Humburd, Jr. CCA 20150214.

 

In the above referenced cases, on further consideration of the granted issues, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 17-0042/AR. U.S. v. Ali A. Alirad, Jr. CCA 20150404.

No. 17-0048/AR. U.S. v. David J. Dorris. CCA 20140185.

No. 17-0050/AR. U.S. v. Donnell M. Spriggs. CCA 20150077.

No. 17-0070/AR. U.S. v. Kyle W. Miner. CCA 20160268.

No. 17-0091/AR. U.S. v. Stefan D. Hughes. CCA 20150022.

No. 17-0166/AR. U.S. v. Dustyn R. Kidd. CCA 20150280.

 

In the above referenced cases, on further consideration of the granted issue, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




Thursday, May 4, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0211/AR. U.S. v. Sean A. Mecker. CCA 20150533. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0215/AR. U.S. v. Kevin Greytunkl. CCA 20150644. 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 on Issues II, III and IV, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0219/AR. U.S. v. George L. Smith II. CCA 20160266. 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 on Issue 11 raised by Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0220/AR. U.S. v. Andrew D. Curry. CCA 20140860. 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 on the assigned issue, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0225/AR. U.S. v. Mario I. Jeffers. CCA 20150740. 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 on Issue II, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0229/AR. U.S. v. Lauro P. Francisco. CCA 20140541. 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 on Issue III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0230/AR. U.S. v. William E. Threet. CCA 20140852. 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 on Issue II, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0233/AR. U.S. v. Nija D. Jones. CCA 20150189. 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 on the assigned issue, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0234/AR. U.S. v. Wendell W. Benjamin. CCA 20130092. 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 on Issue II, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0237/AR. U.S. v. Andrew M. Viera. CCA 20150487. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0238/AR. U.S. v. Terrance T. Johnson. CCA 20140297. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0239/AR. U.S. v. Marcus L. Pretlow. CCA 20150220. 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 on the assigned issue, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0245/AR. U.S. v. Terry J. Ayers. CCA 20160362. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0248/AR. U.S. v. Anthony T. Davenport. CCA 20150322. 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 on Issues III, IV, and V, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0249/AR. U.S. v. Olyn V. Lowrey. CCA 20150466. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0256/AR. U.S. v. Jason E. Dunham. CCA 20150467. 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 on the assigned issue, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0258/AR. U.S. v. Keevan D. Tyson. CCA 20160580. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0305/AR. U.S. v. Marcus A. Barksdale, Jr. CCA 20160587. 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 on issue two raised by Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

Appeals - Summary Dispositions

 

No. 16-0713/AR. U.S. v. Samuel E. Nealy III. CCA 20140029.

No. 17-0002/AR. U.S. v. Alvin J. Fogle. CCA 20140534.

No. 17-0004/AR. U.S. v. Jason A. Maestre. CCA 20140549.

No. 17-0014/AR. U.S. v. Stephen C. Warren. CCA 20140510.

No. 17-0016/AR. U.S. v. Christopher L. Cottner. CCA 20150733.

No. 17-0017/AR. U.S. v. Jasmine S. Hercules. CCA 20150197.

No. 17-0021/AR. U.S. v. Alvin S. Banks. CCA 20130948.

No. 17-0026/AR. U.S. v. Joshua R. Luna. CCA 20150365.

No. 17-0027/AR. U.S. v. Nicholas E. White. CCA 20140945.

No. 17-0081/AR. U.S. v. Eric A. LeRoy. CCA 20160294.

No. 17-0093/AR. U.S. v. Michael B. O'Connor. CCA 20130853.

No. 17-0105/AR. U.S. v. Anthony v. Santucci. CCA 20140216.

No. 17-0110/AR. U.S. v. Manuel Rios. CCA 20140971.

No. 17-0112/AR. U.S. v. Jason R. Crews. CCA 20130766.

No. 17-0118/AR. U.S. v. Tyrone E. Stanley. CCA 20150772.

No. 17-0124/AR. U.S. v. Phillip S. Lewis, Jr. CCA 20160329.

No. 17-0145/AR. U.S. v. Michael C. Morrill. CCA 20140197.

No. 17-0151/AR. U.S. v. Dayshawn M. Guice. CCA 20150774.

No. 17-0159/AR. U.S. v. Jeffrey Soria. CCA 20150537.

No. 17-0164/AR. U.S. v. Corey J. Brookshire. CCA 20160332.

 

In the above referenced cases, on further consideration of the granted issues, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 17-0116/AR. U.S. v. Aarron D. Buckner. CCA 20150323.

No. 17-0128/AR. U.S. v. Anthony E. Perez. CCA 20160256.

No. 17-0130/AR. U.S. v. Seddrick M. Rhodes. CCA 20160265.

No. 17-0142/AR. U.S. v. Antione D. Williams. CCA 20130446.

No. 17-0173/AR. U.S. v. Patrick Podobnik. CCA 20150692.

 

In the above referenced cases, on further consideration of the granted issue, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




Wednesday, May 3, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0109/AR. U.S. v. Charles Bonilla. CCA 20131084. 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 on Issues III, IV, and V, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0132/AR. U.S. v. Scott E. Kissell. CCA 20160014. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0141/AR. U.S. v. Raymond J. Cooper. CCA 20150425. 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 on the assigned issue, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0172/AR. U.S. v. Zachary S. Richardson-Hoeg. CCA 20150503. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0175/AR. U.S. v. Christopher R. Murphy. CCA 20160088. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0177/AR. U.S. v. Brian K. Jewell II. CCA 20160464. 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 on the issue raised by Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0178/AR. U.S. v. Michael J. Sadler. CCA 20160300. 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 on Issues I, II, and III, and the decision of the United States Court of Criminal Appeals is affirmed.

 

No. 17-0179/AR. U.S. v. Eric R. Ramirez. CCA 20140022. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0180/AR. U.S. v. Cassandra M. Riley. CCA 20140960. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0188/AR. U.S. v. Tyran M. Alexander. CCA 20150223. 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 on the issue raised by Appellant pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0189/AR. U.S. v. Gary S. Oscar. CCA 20140445. 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 on Issues II, III, and IV, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0194/AR. U.S. v. Dallas R. Sutton. CCA 20150268. 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 granted on the Issues I-III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0197/AR. U.S. v. Jeffery E. Prewitt. CCA 20160295. 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 on Issues I, II, and III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0202/AR. U.S. v. Austin L. Girau. CCA 20150698. 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 on Issues II, III, and IV, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 17-0206/AR. U.S. v. Liban H. Abdirahman. CCA 20150216. 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 granted on Issues I-III, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

Appeals - Summary Dispositions

 

No. 16-0658/AR. U.S. v. Tyler F. Ho. CCA 20140068. On further consideration of the granted issues, 75 M.J. 468 (C.A.A.F. 2016), and the briefs of the parties, we conclude that Appellant waived Issue I (whether Appellant was punished by being forced to quarter a junior officer in his home). Issues II, III, and IV were resolved against Appellant in United States v. Ortiz, __M.J.__ (C.A.A.F. 2017). Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 16-0670/AR. U.S. v. Matthew N. Watkins. CCA 20140275. On further consideration of the granted issues, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 16-0675/AF. U.S. v. Brandi D. Medeiros. CCA S32289. On further consideration of the granted issues, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 16-0677/AR. U.S. v. Jovanni Pimentel. CCA 20150361.

No. 16-0680/AR. U.S. v. Shquon T. Hodge. CCA 20160056.

No. 16-0712/AR. U.S. v. James G. Donohue. CCA 20140124.

No. 16-0714/AR. U.S. v. Mattie L. Brown. CCA 20140346.

No. 16-0715/AR. U.S. v. Zachary A. Bennett. CCA 20121072.

No. 16-0719/AR. U.S. v. John G. Birdsong. CCA 20140887.

No. 16-0720/AR. U.S. v. Robert S. Echols. CCA 20160126.

No. 16-0723/AR. U.S. v. Kyle D. Rich. CCA 20130805.

No. 16-0725/AR. U.S. v. Jacob D. Blakesley. CCA 20150012.

No. 16-0732/AR. U.S. v. Kameron M. Coleman. CCA 20140709.

No. 16-0733/AR. U.S. v. Christopher B. Melvin. CCA 20140761.

No. 16-0735/AR. U.S. v. Rhandall S. Lavasseur, Jr. CCA 20150475.

No. 16-0739/AR. U.S. v. Collins Nyangau. CCA 20150495.

No. 16-0745/AR. U.S. v. Andrew D. Griffith. CCA 20150195.

No. 16-0746/AR. U.S. v. Ryan W. Rochford. CCA 20140565.

No. 16-0749/AR. U.S. v. Richard S. Carroll. CCA 20150049.

No. 16-0751/AR. U.S. v. D'Andre R. Fletcher. CCA 20140949.

No. 16-0753/AR. U.S. v. Taylor A. Layton. CCA 20150260.

No. 16-0757/AR. U.S. v. Trevor L. Sands. CCA 20130946.

No. 16-0758/AR. U.S. v. Jesse M. Taylor. CCA 20150158.

No. 16-0761/AR. U.S. v. Jacob I. McGowan. CCA 20150807.

 

In the above referenced cases, on further consideration of the granted issues, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 16-0711/AF. U.S. v. Michael J.D. Briggs. CCA 38730. On further consideration of the granted issue, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 16-0722/AR. U.S. v. Max S. Maydoney. CCA 20150324. On further consideration of the granted issue, and in view of United States v. Ortiz, __M.J.__ (C.A.A.F. 2017), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




Monday, May 1, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0475/AF. U.S. v. Nathan G. Wilson-Crow. CCA 38706. On further consideration of the granted issues (76 M.J. 59 (C.A.A.F. 2017)), and the briefs of the parties, it is ordered that 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 under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), to evaluate the case in light of United States v. Fetrow, 76 M.J. ___ (C.A.A.F. April 17, 2017), United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017), and United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

 

Orders Granting Petition for Review

 

No. 17-0171/CG. U.S. v. Koda M. Harpole. CCA 1420. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ALLOWED A VICTIM ADVOCATE TO TESTIFY AS TO APPELLANT'S PRIVILEGED COMMUNICATIONS, IN VIOLATION OF M.R.E. 514.

 

II. WHETHER THE TRIAL DEFENSE COUNSEL WERE INEFFECTIVE BY FAILING TO SUPPRESS APPELLANT'S UNWARNED ADMISSIONS. THESE ADMISSIONS WERE MADE TO YNI NIPP WHEN SHE KNEW HE WAS A SUSPECT AND UNDER INVESTIGATION. SHE INTENDED TO REPORT THESE ADMISSIONS TO THE COMMAND AND QUESTIONED HIM WITHOUT ADVISING HIM OF HIS ART. 31, UCMJ, RIGHTS.

 

III. UPON REQUEST BY THE DEFENSE COUNSEL AND USING A DEFENSE-DRAFTED INSTRUCTION, SHOULD THE MILITARY JUDGE HAVE PROVIDED THE MEMBERS WITH AN EXPLANATION OF THE TERM "INCAPABLE"?

 

Briefs will be filed under Rule 25 on Issues I and II only.




Friday, April 28, 2017

Orders Granting Petition for Review

 

No. 17-0208/CG. U.S. v. John C. Riesbeck. CCA 1374. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

 

I. WHETHER THE MEMBERS OF APPELLANT'S COURT-MARTIAL PANEL WERE PROPERLY SELECTED.

 

II. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL, OR THE APPEARANCE OF A FAIR TRIAL, WHERE A MAJORITY OF THE PANEL MEMBERS WERE FORMER VICTIM ADVOCATES AND THE MILITARY JUDGE DENIED A CHALLENGE FOR CAUSE AGAINST ONE OF THEM.

 

Briefs will be filed under Rule 25.




Thursday, April 27, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. 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 noted that the military judge neglected to seal the transcript of the MRE 513 hearing and some of the associated pleadings, contrary to the requirements of MRE 513(e)(5). Accordingly, the Clerk is directed to seal MRE 513 matters (pages 26-47 and 57-61 and AE V and VIII of the record of trial).




Friday, April 21, 2017

Miscellaneous Docket - Summary Dispositions

 

No. 17-0315/NA. Jeremy E. Hassett, Appellant v. United States, Appellee. CCA 201600118. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied.




Thursday, April 20, 2017

Orders Granting Petition for Review

 

No. 17-0265/CG. U.S. v. Colby C. Bailey. CCA 1428. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. UPON REQUEST BY THE DEFENSE COUNSEL AND USING A DEFENSE-DRAFTED INSTRUCTION, SHOULD THE MILITARY JUDGE HAVE PROVIDED THE MEMBERS WITH AN EXPLANATION OF THE TERM "INCAPABLE"?

 

II. WHETHER THE DECISION OF THE UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS IS AMBIGUOUS AS TO WHETHER THE AFFIRMED SENTENCE INCLUDED FORFEITURE OF ALL PAY AND ALLOWANCES.

 

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




Friday, April 14, 2017

Orders Granting Petition for Review

 

No. 17-0199/AF. U.S. v. Ricky D. Chisum, Jr. CCA S32311. 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 MILITARY JUDGE'S FAILURE TO CONDUCT AN IN CAMERA REVIEW OF AND FAILURE TO DISCLOSE THE MENTAL HEALTH RECORDS OF AB AK AND AB CR DEPRIVED APPELLANT OF HIS RIGHT TO CONFRONT THE SOLE WITNESSES AGAINST HIM IN VIOLATION OF THE SIXTH AMENDMENT TO THE CONSTITUTION.

 

Briefs will be filed under Rule 25.

 

No. 17-0224/AR. U.S. v. Jorge F. Acevedo. CCA 20150076. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED JUDGE BURTON'S MILITARY COMMISSION, BUT SEE UNITED STATES v. ORTIZ, NO. 16-0671/AF (C.A.A.F. 9 FEB. 2017).

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE BURTON WAS NOT AN APPELLATE MILITARY JUDGE UNDER THE UCMJ, BUT SEE UNITED STATES v. ORTIZ, NO. 16-0671/AF.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL VIOLATED THE APPOINTMENTS CLAUSE, BUT SEE UNITED STATES v. ORTIZ, NO. 16-0671/AF.

 

IV. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT A CHARGE OF KIDNAPPING BY INVEIGLEMENT.

 

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




Wednesday, April 12, 2017

Miscellaneous Docket - Summary Dispositions

 

No. 17-0310/AF. Joshua Katso, Petitioner v. Christopher F. Burne, Lieutenant General, United States Air Force, in his official capacity as Judge Advocate General of the United States Air Force, and Katherine E. Oler, Colonel, United States Air Force, in her official capacity as Chief of the United States Air Force Government Trial and Appellate Counsel Division, Respondents. CCA 38005. On consideration of the petition for extraordinary relief in the nature of a petition for writ of prohibition, it is ordered that said petition is hereby denied.




Tuesday, April 11, 2017

Orders Granting Petition for Review

 

No. 17-0222/AF. U.S. v. Yogendra Rambharose. CCA 38769. 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 MILITARY JUDGE ABUSED HER DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER M.R.E. 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

 

No briefs will be filed under Rule 25.




Monday, April 10, 2017

Appeals - Summary Dispositions

 

No. 17-0278/AR. U.S. v. Ronald E.V. Layton. CCA 20160756. On consideration of the Docketing Notice issued March 7, 2017, in the above-referenced case, it is ordered that said Docketing Notice is hereby vacated.




Monday, April 3, 2017

Certificates for Review Filed

 

No. 17-0329/AR. U.S. v. Randy L. Simpson Jr. CCA 20140126. 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 on this date on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY FINDING A SUBSTANTIAL BASIS IN LAW AND FACT TO QUESTION APPELLANT'S PLEA IN LIGHT OF THE SUPREME COURT DECISION IN UNITED STATES v. SHAW, 137 S.CT. 462 (2016), AND THE COURT OF APPEALS FOR THE ARMED FORCES DECISION IN UNITED STATES v. CIMBALL-SHARPTON, 73 M.J. 299 (C.A.A.F. 2014).

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before May1, 2017.

 

Orders Granting Petition for Review

 

No. 17-0253/AR. U.S. v. Douglas E. Reynolds, Jr. CCA 20140856. 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 on the following issue:

 

WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT IN LIGHT OF UNITED STATES v. HILLS AND THAT ERROR WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

 

No briefs will be filed under Rule 25.




Friday, March 31, 2017

Certificates for Review Filed

 

No. 17-0326/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 on this date on the following issues:

 

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT UNITED STATES v. MILLER, 47 M.J. 352 (C.A.A.F. 1997) REQUIRED THE GOVERNMENT TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF THE JUDGE ADVOCATE GENERAL'S DECISION ON CERTIFICATION

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT GOVERNMENT'S FAILURE TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF THE JUDGE ADVOCATE GENERAL'S DECISION ON CERTIFICATION AUTOMATICALLY RESULTED IN DAY-FOR-DAY SENTENCING CREDIT.

 

III. WHETHER APPELLEE WAS PREJUDICED WHEN THE GOVERNMENT FAILED TO HOLD A CONTINUED CONFINEMENT HEARING WITHIN 7 DAYS OF CERTIFICATION.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before May 1, 2017.




Tuesday, March 28, 2017

Orders Granting Petition for Review

 

No. 17-0231/AR. U.S. v. Torrence A. Robinson. CCA 20140785. 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 on the following issues raised by Appellant:

 

I. WHETHER THE MILITARY JUDGE ERRED BY FAILING TO ADMIT CONSTITUTIONALLY REQUIRED EVIDENCE UNDER MILITARY RULE OF EVIDENCE 412(b)(1)(C).

 

II. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR THE SPECIFICATION OF CHARGE I, WHICH INVOLVED AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20.

 

And the following issue specified by the Court:

 

III. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO ESTABLISH THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SPC VM WAS TOO INTOXICATED TO CONSENT TO A SEXUAL ACT.

 

Briefs will be filed under Rule 25.




Tuesday, March 21, 2017

Orders Granting Petition for Review

 

No. 17-0187/AR. U.S. v. Brian G. Short. CCA 20150320. 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 on the following issue:

 

WHETHER GOVERNMENT COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY MADE IMPROPER ARGUMENT AFTER REPEATEDLY ELICITING INADMISSIBLE TESTIMONY.

 

Briefs will be filed under Rule 25.

 

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. 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 on the following issue:

 

WHETHER DILATORY POST-TRIAL PROCESSING VIOLATED APPELLANT'S DUE PROCESS RIGHTS AND WARRANTS RELIEF WHEN 782 DAYS ELAPSED BETWEEN DOCKETING AT THE ARMY COURT AND OPINION.

 

Briefs will be filed under Rule 25.

 

No. 17-0203/AR. U.S. v. David L. Jerkins. CCA 20140071. 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 on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ALLOWING A GENERAL OFFICER MEMORANDUM OF REPRIMAND INTO SENTENCING EVIDENCE WHERE THE REPRIMAND WAS ISSUED TWO WEEKS BEFORE THE COURT-MARTIAL AND CONTAINED HIGHLY PREJUDICIAL AND MISLEADING LANGUAGE.

 

Briefs will be filed under Rule 25.




Monday, March 20, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0169/AF. U.S. v. Marcus A. Mancini. CCA 38783. On consideration of Appellee's motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that said motion is hereby granted without prejudice to Appellant's right to file a petition during the course of normal appellate review.

 

No. 17-0196/AF. U.S. v. Paul D. Voorhees. CCA 38836. On consideration of Appellee's motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that said motion is hereby granted without prejudice to Appellant's right to file a petition during the course of normal appellate review.




Wednesday, March 8, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0226/AF. U.S. v. Dorian K. Owens. CCA 38834. 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 COURT OF CRIMINAL APPEALS VIOLATED APPELLANT'S FIFTH AMENDMENT RIGHT AGAINST DOUBLE JEOPARDY WHEN IT AFFIRMED A CONVICTION FOR THE LESSER-INCLUDED OFFENSE OF SEXUAL ASSAULT BY BODILY HARM, WHEN APPELLANT WAS CHARGED WITH THAT SAME OFFENSE AT TRIAL AND ACQUITTED BY A PANEL OF OFFICERS.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specification 4 of Charge II. The finding of guilty as to that specification is set aside, and the specification is dismissed. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may reassess the sentence based on the affirmed findings.




Friday, March 3, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0167/AR. U.S. v. Noel G. Aguiar-Perez. CCA 20140715. 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 on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING APPELLANT'S CONVICTION OF SPECIFICATION 1 OF CHARGE IV WHERE THE FINDINGS OF THE COURT-MARTIAL FAILED TO REFLECT WHICH OF SEVERAL ALLEGED OFFENSES CONSTITUTED THE OFFENSE.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 1 of Charge IV. The finding of guilty as to that specification is set aside, and the specification is dismissed. 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 reassess the sentence based on the affirmed findings.

 

Orders Granting Petition for Review

 

No. 17-0183/AR. U.S. v. Alan S. Guardado. CCA 20140014. 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 on the following issues:

 

I. WHETHER THE ARMY COURT INCORRECTLY FOUND THAT THE MILITARY JUDGE'S PANEL INSTRUCTIONS WERE HARMLESS ERROR IN LIGHT OF UNITED STATES v. HILLS.

 

II. WHETHER THE ARMY COURT INCORRECTLY RULED THAT AN OFFENSE DEFINED BY THE PRESIDENT CANNOT PREEMPT A GENERAL ARTICLE 134, UCMJ, OFFENSE, AND THAT PREEMPTION IS NOT JURISDICTIONAL IN SUCH CIRCUMSTANCES.

 

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




Thursday, March 2, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0190/AR. U.S. v. Issac G. Aguigui. CCA 20140260. 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 be, and the same is hereby dismissed without prejudice to Appellant's right to raise the matters asserted during the normal course of appellate review.




Wednesday, March 1, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0213/AR. U.S. v. Ahessan H. Ali. CCA 20150366. 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 Charge was a violation of Article 134, UCMJ, vice Article 120.


Orders Granting Petition for Review

 

No. 16-0729/NA. U.S. v. Brandon G. Darnall. CCA 20150010. 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 on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS EVIDENCE DIRECTLY FLOWING FROM THE ILLEGAL APPREHENSION OF APPELLANT, WHETHER THE NMCCA RULING UPHOLDING THIS DECISION CONFLATED REASONABLE SUSPICION WITH PROBABLE CAUSE, AND WHETHER THIS DECISION SHOULD BE REVERSED.

 

Briefs will be filed under Rule 25. Appellant's brief shall be filed within 25 days of the date of this order. Appellee's brief shall be filed within 25 days of the filing of the Appellant's brief. Appellant may file a reply brief within 5 days of the filing of Appellee's brief.

 

Petitions for New Trial - Summary Dispositions

 

No. 17-0068/AF. U.S. v. Andre K. Lewis. CCA 38671. On consideration of the petition for new trial, it is ordered that said petition be, and the same is hereby denied.




Thursday, February 16, 2017

Orders Granting Petition for Review

 

No. 17-0086/AF. United States, Appellant/Cross-Appellee v. Patrick Carter, Appellee/Cross-Appellant. CCA 38708. 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 issues:

 

I. THE AIR FORCE COURT OF CRIMINAL APPEALS DISMISSED THE CHARGE AND SPECIFICATIONS IN THIS CASE IN 2013 AND AGAIN IN 2016. BUT IT EXCEEDED THE EIGHTEEN-MONTH PRESUMPTION OF UNREASONABLE DELAY BEFORE DOING SO EACH TIME. HAS APPELLEE BEEN DENIED DUE PROCESS WHERE HE COMPLETED HIS SENTENCE TO THREE YEARS OF CONFINEMENT 158 DAYS BEFORE THIS COURT AFFIRMED THE LOWER COURT'S FIRST DISMISSAL OF THIS CASE ON AUGUST 2, 2013?

 

II. WHETHER APPELLEE'S PROSECUTION FOR CHILD ENDANGERMENT WAS BARRED BY THE STATUTE OF LIMITATIONS WHERE MORE THAN FIVE YEARS HAD ELAPSED AND APPELLEE WAS NOT BROUGHT TO TRIAL WITHIN 180 DAYS OF THIS COURT'S AFFIRMANCE OF THE LOWER COURT'S DISMISSAL OF THAT SPECIFICATION.

 

III. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, WAS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

IV. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

V. WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. 949b(b)(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPPELLATE MILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OF HIS DESIGNEE.

 

Briefs will be filed under Rule 25 on Issues I and II only.

 

No. 17-0143/CG. U.S. v. Ernest M. Ramos. CCA 1418. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER APPELLANT WAS ENTITLED TO ARTICLE 31(b), UCMJ, WARNINGS AT ANY POINT DURING HIS INTERROGATION BY CGIS, AND IF SO, WHETHER HE WAS PREJUDICED BY THE ADMISSION OF ANY OF HIS STATEMENTS.

 

Briefs will be filed under Rule 25.




Tuesday, February 14, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0155/AF. U.S. v. Nehral Albert R. Maliwat. CCA 38579. 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 MILITARY JUDGE ABUSED HIS DISCRETION BY PROVIDING THE PROPENSITY INSTRUCTION UNDER MILITARY RULE OF EVIDENCE 413 AFTER FAILING TO PERFORM THE REQUIRED ANALYSIS ON THE RECORD AND AFTER THE GOVERNMENT FAILED TO PROVIDE THE REQUIRED NOTICE OF ITS INTENT TO ARGUE PROPENSITY.

 

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 that court for reconsideration of the granted issue in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

 

No. 16-0669/NA. U.S. v. Mark A. Berger. CCA 201500024. On further consideration of the granted issues, 75 M.J. 479 (C.A.A.F. 2016), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for reconsideration of the granted issue in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).




Monday, February 13, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0482/AF. U.S. v. Blake E. Taylor. CCA 38700. On further consideration of the granted issue, 75 M.J. 404 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 16-0490/MC. U.S. v. Jonathan A. Lopez. CCA 201400289. On further consideration of the granted issue, 75 M.J. 467 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 16-0565/MC. U.S. v. Dalton C. Nickens. CCA 201500142. On further consideration of the granted issue, 75 M.J. 437 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 16-0579/AF. U.S. v. William P. Smith, Jr. CCA 38728. On further consideration of the granted issue, 75 M.J. 452 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 16-0588/NA. U.S. v. Adam S. Nelms. CCA 201400369. On further consideration of the granted issue, 75 M.J. 460 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 16-0663/MC. U.S. v. Travis V. Nauta. CCA 201500244. On further consideration of the granted issue, 75 M.J. 466 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is, ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 16-0674/AF. U.S. v. James M. Kmet. CCA 38755. On further consideration of the granted issue, 75 M.J. 452 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it ordered that the judgment of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 16-0689/AF. U.S. v. Charles D. Buford. CCA 2016-04. On further 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, and the granted specified issue, it is noted that the court below has neither affirmed nor reversed the ruling of the military judge and instead has vacated the ruling at the court-martial and remanded the case to the military judge. There is, at present, no extant ruling which excludes evidence, and if the ruling below is effectuated, the judgment of the Court of Criminal Appeals would resume, not terminate, the proceedings. Additionally, the granted assigned issues are without merit in view of our holding in United States v. Ortiz, __ M.J. __ (C.A.A.F. 2017). Accordingly, it is ordered that the order granting the petition for grant of review is hereby vacated and the case is returned to the Judge Advocate General of the Air Force for execution of the remand and further consideration ordered by the Court of Criminal Appeals in accordance with United States v. Kosek, 41 M.J. 60, 64-65 (C.M.A. 1994).

 

No. 16-0724/AF. U.S. v. Donald R.B. Simmons. CCA 38788. On further consideration of the granted issue, 75 M.J. 482 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 16-0748/NA. U.S. v. David W. Neiman. CCA 201500119. On further consideration of the granted issue, 75 M.J. 491 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 16-0756/AF. U.S. v. Timothy J. Morgan. CCA 38825. On further consideration of the granted issue, 75 M.J. 469 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 17-0010/MC. U.S. v. Alfredo Solis. CCA 201500249. On further consideration of the granted issue, 75 M.J. 495 (C.A.A.F. 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 17-0063/AF. U.S. v. Jerry C. Harrison. CCA 38745. On further consideration of the granted issue, 76 M.J. __ (Daily Journal Dec. 5, 2016), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 17-0115/MC. U.S. v. Mark A. Tamburello. CCA 201600109. On further consideration of the granted issue, 76 M.J. __ (Daily Journal Jan. 11, 2017), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 17-0123/AF. U.S. v. Courtney R. Canada. CCA S32298. On further consideration of the granted issue, 76 M.J. __ (Daily Journal Jan. 5, 2017), and in light of United States v. McClour, 76 M.J. __ (C.A.A.F. Jan. 24, 2017), it is ordered that the judgment of the United States Air Force Court of Criminal Appeals is hereby affirmed.




Thursday, February 9, 2017

Summary Dispositions

 

No. 16-0671/AF. U.S. v. Keanu D.W. Ortiz. CCA 38839. On consideration of the briefs of the parties, the briefs of amici curiae, and oral argument, it is ordered that the decision for the United States Air Force Court of Criminal Appeals is hereby affirmed. The opinion of the Court will be issued on a future date. C.A.A.F.R. 43(b). A petition for reconsideration may be filed no later than 10 days after the date of the issuance of said opinion.




Wednesday, February 8, 2017

Orders Granting Petition for Review

 

No. 17-0170/AR. U.S. v. Nicholas Doherty. CCA 20160390. 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 on the following issue:

 

WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 17-0176/AR. U.S. v. Reginald E. Charles. CCA 20160414. 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 on the following issue:

 

WHETHER JUDGE JAMES W. HERRING, A JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.




Tuesday, February 7, 2017

Orders Granting Petition for Review

 

No. 17-0145/AR. U.S. v. Michael C. Morrill. CCA 20140197. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0164/AR. U.S. v. Corey J. Brookshire. CCA 20160332. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Monday, February 6, 2017

Orders Granting Petition for Review

 

No. 17-0111/AR. U.S. v. Francisco Galvan. CCA 20150574. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0173/AR. U.S. v. Patrick Podobnik. CCA 20150692. 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 on the following issue:

 

WHETHER JUDGE HERRING, A JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A PRINCIPAL OFFICER.

 

No briefs will be filed under Rule 25.




Friday, February 3, 2017

Orders Granting Petition for Review

 

No. 17-0148/AF. U.S. v. Stephan H. Claxton. CCA 38188. 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 issues:

 

I. WHETHER THE FINDINGS AND SENTENCE MUST BE SET ASIDE IN LIGHT OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

 

II. WHETHER THE GOVERNMENT'S FAILURE TO DISCLOSE THAT AIR FORCE ACADEMY CADET E.T. WAS A CONFIDENTIAL INFORMANT FOR THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS (AFOSI) PURSUANT TO BRADY v. MARYLAND, 373 U.S. 83 (1963), WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

Briefs will be filed under Rule 25.

 

No. 17-0159/AR. U.S. v. Jeffrey Soria. CCA 20150537. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGES BURTON AND CELTNIEKS.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF AN APPELLATE JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Thursday, February 2, 2017

Orders Granting Petition for Review

 

No. 17-0133/AR. U.S. v. Paul E. Thomas. CCA 20150269. 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 on the following issue:

 

WHETHER JUDGES CELTNIEKS AND BURTON, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS PRINCIPAL OFFICERS.

 

No briefs will be filed under Rule 25.

 

No. 17-0160/AR. U.S. v. Steven M. Tucker. CCA 20150634. 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 on the following issue:

 

WHETHER THE ARMY COURT ERRED IN HOLDING THAT THE TERM "DISORDERS AND NEGLECTS" STATES A NEGLIGENCE STANDARD FOR MENTAL CULPABILITY UNDER ARTICLE 134, UCMJ, WHICH PRECLUDES APPLICATION OF UNITED STATES v. ELONIS.

 

Briefs will be filed under Rule 25.




Wednesday, February 1, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0186/AF. U.S. v. Christopher N. Allore. CCA 38912. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is noted that the court below failed to expressly act to affirm or set aside the findings and sentence. This has resulted in having a case before us for review that does not have a complete decision on the findings and sentence by the Court of Criminal Appeals. Under Article 67(c), Uniform Code of Military Justice, 10 U.S.C. 867(c) (2012), this Court can only act with respect to the findings and sentence as affirmed or set aside by a court of criminal appeals. If the action on the findings and sentence is ambiguous, the appropriate remedy is a remand for clarification. Accordingly, it is ordered that the petition for grant of review is granted, and the record of trial is returned to the Judge Advocate General of the Air Force for remand to the United States Air Force Court of Criminal Appeals for clarification of its action on the findings and sentence.

 

Orders Granting Petition for Review

 

No. 17-0151/AR. U.S. v. Dayshawn M. Guice. CCA 20150774. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Tuesday, January 31, 2017

Orders Granting Petition for Review

 

No. 17-0142/AR. U.S. v. Antione D. Williams. CCA 20130446. 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 on the following issue:

 

WHETHER JUDGE JAMES W. HERRING, JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 17-0166/AR. U.S. v. Dustyn R. Kidd. CCA 20150280. 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 on the following issue:

 

WHETHER JUDGE JAMES W. HERRING, JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.




Monday, January 30, 2017

Orders Granting Petition for Review

 

No. 17-0105/AR. U.S. v. Anthony v. Santucci. CCA 20140216. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0116/AR. U.S. v. Aarron D. Buckner. CCA 20150323. 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 on the following issue:

 

WHETHER JUDGES CELTNIEKS AND BURTON, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.




Thursday, January 26, 2017

Orders Summary Dispositions

 

No. 17-0125/AR. U.S. v. Joshua G. Thomas. CCA 20150393. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the record of trial, it is noted that the military judge neglected to seal the transcript of an MRE 412 hearing at pages 49-70 of the record. Accordingly, it is ordered that the petition is hereby granted and that the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* The Clerk of the Court is ordered to seal pages 49-70 of the record of trial.




Wednesday, January 25, 2017

Orders Granting Petition for Review

 

No. 17-0091/AR. U.S. v. Stefan D. Hughes. CCA 20150022. 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 on the following issue:

 

WHETHER JUDGES CELTNIEKS AND BURTON, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.

 

No briefs will be filed under Rule 25.

 

No. 17-0112/AR. U.S. v. Jason R. Crews. CCA 20130766. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0128/AR. U.S. v. Anthony E. Perez. CCA 20160256. 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 on the following issue:

 

WHETHER JUDGE JAMES W. HERRING, JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.




Monday, January 23, 2017

Orders Granting Petition for Review

 

No. 17-0095/AR. U.S. v. Marcus V. Davis. CCA 20150100. 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 on the following issue:

 

WHETHER JUDGE JAMES W. HERRING AND JUDGE PAULETTE V. BURTON, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 17-0118/AR. U.S. v. Tyrone E. Stanley. CCA 20150772. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE CELTNIEKS AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE CELTNIEKS AND JUDGE BURTON DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Wednesday, January 18, 2017

Orders Granting Petition for Review

 

No. 17-0110/AR. U.S. v. Manuel Rios. CCA 20140971. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0124/AR. U.S. v. Phillip S. Lewis, Jr. CCA 20160329. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0129/AR. U.S. v. Khristophor M. Villar. CCA 20160117. 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 on the following issue:

 

WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 17-0130/AR. U.S. v. Seddrick M. Rhodes. CCA 20160265. 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 on the following issue:

 

WHETHER JUDGE JAMES W. HERRING, JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.




Tuesday, January 17, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0635/AR. U.S. v. Laith G. Cox. CCA 20130923. On further consideration of the granted issues, 75 M.J.457 (C.A.A.F. 2016), the facts that the United States Army Court of Criminal Appeals issued its judgment in Appellant's case on April 29, 2016, and Appellate Military Judges Paulette V. Burton and James W. Herring were appointed by the President to the United States Court of Military Commission Review on May 25, 2016, and in light of United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016), it is ordered that the order issued October 3, 2016, granting review is hereby vacated, and that Appellant's petition for grant of review is hereby denied.

 

No. 16-0641/AR. U.S. v. Ian T. Miller. CCA 20150170. On further consideration of the granted issues, __ M.J. __ (Daily Journal Nov. 30, 2016), the facts that the United States Army Court of Criminal Appeals issued its judgment in Appellant's case on May 6, 2016, and Appellate Military Judge Larss G. Celtnieks was appointed by the President to the United States Court of Military Commission Review on May 25, 2016, and in light of United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016), it is,  ordered that the order issued November 30, 2016, granting review is hereby vacated, and that Appellant's petition for grant of review is denied.

 

No. 16-0650/AR. U.S. v. Courtney A. Craig. CCA 20150272. On further consideration of the granted issues, 75 M.J. 470 (C.A.A.F. 2016), the facts that the United States Army Court of Criminal Appeals issued its judgment in Appellant's case on May 10, 2016, and Appellate Military Judges Paulette V. Burton and James W. Herring were appointed by the President to the United States Court of Military Commission Review on May 25, 2016, and in light of United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016), it is ordered that the order issued October 20, 2016, granting review is hereby vacated, and that Appellant's petition for grant of review is denied.

 

Orders Granting Petition for Review

 

No. 16-0741/AR. U.S. v. Nicholas A. Piszcz. CCA 20140842. On further consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the Order of January 13, 2017, denying the petition for grant of review is hereby vacated, and that said petition is hereby granted on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0084/AR. U.S. v. James N. Costigan. CCA 20150052. 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 on the following issues:

 

I. WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

 

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

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

 

No. 17-0121/AR. U.S. v. Elvis R. Garcia. CCA 20150715. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES CELTNIEKS AND BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Thursday, January 12, 2017

Orders Granting Petition for Review

 

No. 17-0049/MC. U.S. v. Tanner J. Forrester. CCA 201500295. 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 on the following issue:

 

WHETHER PUNISHING THE SAME TRANSACTION OF OBTAINING CHILD PORNOGRAPHY WITH FOUR CONVICTIONS UNREASONABLY EXAGGERATES APPELLANT'S CRIMINALITY AND TRIPLES HIS PUNITIVE EXPOSURE, CONSTITUTING AN UNREASONABLE MULTIPLICATION OF CHARGES.

 

Briefs will be filed under Rule 25.

 

No. 17-0055/AR. U.S. v. Mitchell L. Brantley. CCA 20150199. 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 on the following issue:

 

WHETHER THE GOVERNMENT PROVED BEYOND A REASONABLE DOUBT THAT APPELLANT KNEW OR REASONABLY SHOULD HAVE KNOWN THAT SR WAS "OTHERWISE UNAWARE" OF SEXUAL CONTACT.

 

Briefs will be filed under Rule 25.

 

No. 17-0087/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. 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 on the following issues:

 

I. WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 AND 414 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

 

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

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




Wednesday, January 11, 2017

Orders Granting Petition for Review

 

No. 17-0115/MC. U.S. v. Mark A. Tamburello. CCA 201600109. 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 on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY."

 

No briefs will be filed under Rule 25.




Monday, January 9, 2017

Orders Granting Petition for Review

 

No. 16-0475/AF. U.S. v. Nathan G. Wilson-Crow. CCA 38706. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and the pleadings, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE COMMITTED LEGAL ERROR WHEN HE FOUND THAT SPECIFICATION 2 OF CHARGE I - APPELLANT'S CHILD SEXUAL ABUSE OF A.L. IN VIOLATION OF ARTICLE 120b - CONSTITUTED CHILD MOLESTATION UNDER MIL. R. EVID. 414(d)(2)(a) BECAUSE HE FOUND THAT "CONDUCT PROHIBITED BY ARTICLE 120" INCLUDES ARTICLE 120b OFFENSES.

 

II. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT, PURSUANT TO MRE 413, IT COULD USE OFFENSES IN ADDITIONAL CHARGE I, TO WHICH APPELLANT PLEADED NOT GUILTY, AS PROPENSITY EVIDENCE IN SUPPORT OF THE REMAINING SPECIFICATIONS OF THAT CHARGE WHICH HE ALSO CONTESTED.

 

III. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY OF THAT OFFENSE," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

Briefs will be filed under Rule 25 on Issues I and II only.

 

No. 17-0042/AR. U.S. v. Ali A. Alirad, Jr. CCA 20150404. 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 on the following issue:

 

WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 17-0081/AR. U.S. v. Eric A. LeRoy. CCA 20160294. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0090/AR. U.S. v. Ronnie T. Williams. CCA 20150302. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Thursday, January 5, 2017

Orders Granting Petition for Review

 

No. 16-0497/MC. U.S. v. Reece N. Tso. CCA 201400379. On further consideration of the record and the pleadings, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

No briefs will be filed under Rule 25.

 

No. 17-0123/AF. U.S. v. Courtney R. Canada. CCA S32298. 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 MILITARY JUDGE ERRED WHEN HE TWICE INSTRUCTED THE MEMBERS, "IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Tuesday, January 3, 2017

Orders Granting Petition for Review

 

No. 17-0037/AF. U.S. v. Cory D. Phillips. CCA S38771. 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 issues:

 

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY GRANTING THE GOVERNMENT MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER MIL. R. EVID. 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. See UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

 

II. WHETHER THE LOWER COURT ERRED WHEN IT FAILED TO REMAND APPELLANT'S CASE FOR NEW POST-TRIAL PROCESSING AFTER THE STAFF JUDGE ADVOCATE'S RECOMMENDATION (SJAR) FAILED TO CORRECT AN ERROR IN APPELLANT'S CLEMENCY SUBMISSION. See UNITED STATES v. ADDISON, NO. 16-0615/AF (C.A.A.F. 26 July 2016) (rem.).

 

III. WHETHER APPELLANT'S CONVICTION ON SPECIFICATION 1 OF THE CHARGE IS LEGALLY INSUFFICIENT WHERE THE GOVERNMENT FAILED TO PROVE THAT APPELLANT AND SrA LS ENGAGED IN A SEXUAL ACT.

 

Briefs will be filed under Rule 25.




Tuesday, December 27, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0616/AF. U.S. v. Kelvin L. O'Shaughnessy. CCA 38732. On further consideration of the granted issue (Daily Journal Nov. 29, 2016), the facts that the United States Air Force Court of Criminal Appeals issued its judgment in Appellant's case on May 5, 2016, and Colonel Martin T. Mitchell was appointed by the President to the United States Court of Military Commission Review on May 25, 2016, and in light of United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016), it is ordered that the order of November 29, 2016, granting review is hereby vacated, and Appellant's petition for grant of review is denied.

 

No. 16-0617/AF. U.S. v. Joseph D. Morchinek. CCA S32291. On further consideration of the granted issue (Daily Journal Oct. 18, 2016), the facts that the United States Air Force Court of Criminal Appeals issued its judgment in Appellant's case on May 9, 2016, and Colonel Martin T. Mitchell was appointed by the President to the United States Court of Military Commission Review on May 25, 2016, and in light of United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016), it is ordered that the order of October 18, 2016, granting review is hereby vacated, and Appellant's petition for grant of review is denied.

 

No. 16-0660/AF. U.S. v. Andre K. Lewis. CCA 38671. On further consideration of the granted issue (Daily Journal Dec. 19, 2016), the facts that the United States Air Force Court of Criminal Appeals issued its judgment in Appellant's case on May 17, 2016, and Colonel Martin T. Mitchell was appointed by the President to the United States Court of Military Commission Review on May 25, 2016, and in light of United States v. Dalmazzi, __ M.J. __ (C.A.A.F. Dec. 15, 2016), it is ordered that the order of December 19, 2016, granting review is hereby vacated, and Appellant's petition for grant of review is denied.




Thursday, December 22, 2016

Certificates for Review Filed

 

No. 17-0153/AR. United States, Appellant v. Edward J. Mitchell, II, Appellee. CCA 20150776. Notice is hereby given that a certificate for review of the decision of the United States Army 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 under Rule 22, together with a motion to stay trial proceedings were filed on this date on the following issues:

 

I. WHETHER THE FIFTH AMENDMENT'S SELF-INCRIMINATION CLAUSE IS VIOLATED WHEN A SUSPECT VOLUNTARILY UNLOCKS HIS PHONE WITHOUT GIVING HIS PERSONAL IDENTIFICATION NUMBER TO INVESTIGATORS.

 

II. WHETHER THE EDWARDS RULE IS VIOLATED WHEN INVESTIGATORS ASK A SUSPECT, WHO HAS REQUESTED COUNSEL AND RETURNED TO HIS PLACE OF DUTY, TO UNLOCK HIS PHONE INCIDENT TO A VALID SEARCH AUTHORIZATION.

 

III. WHETHER, ASSUMING INVESTIGATORS VIOLATED APPELLANT'S FIFTH AMENDMENT PRIVILEGE OR THE EDWARDS RULE, THE MILITARY JUDGE ERRED BY SUPPRESSING THE EVIDENCE.

 

Orders Granting Petition for Review

 

No. 16-0745/AR. U.S. v. Andrew D. Griffith. CCA 20150195. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE CELTNIEKS AND JUDGE BURTON DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0028/CG. U.S. v. Shane E. Reese. CCA 1422. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION AFTER THE COMPLAINING WITNESS'S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED.

 

II. WHETHER THE SPECIFICATION OF THE ADDITIONAL CHARGE FAILS TO STATE AN OFFENSE WHERE THE TERMINAL ELEMENT FAILED TO ALLEGE WORDS OF CRIMINALITY AND WHERE THE ALLEGED CONDUCT FELL WITHIN A LISTED OFFENSE OF ARTICLE 134, UCMJ.

 

Briefs will be filed under Rule 25.

 

No. 17-0048/AR. U.S. v. David J. Dorris. CCA 20140185. 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 on the following issue specified by the Court:

 

WHETHER JUDGE HERRING, A JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 17-0093/AR. U.S. v. Michael B. O'Connor. CCA 20130853. 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 on the following issues:

 

I. WHETHER THE APPOINTMENT OF JUDGES PAULETTE V. BURTON AND JAMES W. HERRING AS CMCR JUDGES MEANT THAT THEY NO LONGER MET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

II. WHETHER THE ASSIGNMENT OF INFERIOR AND PRINCIPAL OFFICERS TO A SINGLE TRIBUNAL VIOLATED THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

 

No briefs will be filed under Rule 25.




Wednesday, December 21, 2016

Certificates for Review Filed

 

No. 17-0139/AR. United States, Appellant v. Justin M. Gurczyski, Appellee. CCA 20160402. 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 on this date on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING EVIDENCE OF CHILD PORNOGRAPHY A DIGITAL FORENSIC EXAMINER DISCOVERED DURING A SEARCH FOR APPELLEE'S COMMUNICATIONS WITH A CHILD VICTIM.




Monday, December 19, 2016

Orders Granting Petition for Review

 

No. 16-0660/AF. U.S. v. Andre K. Lewis. CCA 38671. 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 JUDGE MARTIN T. MITCHELL, A JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE AIR FORCE COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE AIR FORCE COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 17-0008/AR. U.S. v. Matthew R. Strempler. CCA 20150527. On consideration of the Appellant's petition for reconsideration of this Court's Order issued November 8, 2016, it is ordered that said petition for reconsideration is hereby granted, that the Order of November 8, 2016, denying the petition for grant of review is hereby vacated, and that the petition for grant of review is hereby granted on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0067/AR. U.S. v. Anthony K. Bickerstaff. CCA 20160065. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0074/AR. U.S. v. Jose L. Nataren. CCA 20130413. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0083/AR. U.S. v. Thomas L. Humburd, Jr. CCA 20150214. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0094/AR. U.S. v. Jeffrey W. Thompson, Jr. CCA 20160169. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSION OF JUDGES BURTON AND CELTNIEKS.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Friday, December 16, 2016

Orders Granting Petition for Review

 

No. 16-0671/AF. U.S. v. Keanu D.W. Ortiz. CCA 38839. On further consideration of the granted issues in the above-entitled case (Daily Journal, October 27, 2016), it is ordered that Issue II is hereby amended as follows:

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A PRINCIPAL OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

The petition for grant of review is also granted on the following specified issue:

 

III. WHETHER JUDGE MARTIN T. MITCHELL WAS IN FACT A PRINCIPAL OFFICER FOLLOWING HIS APPOINTMENT BY THE PRESIDENT TO THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW IN LIGHT OF THE PROVISIONS OF 10 U.S.C. 949b(4)(C) AND (D), AUTHORIZING REASSIGNMENT OR WITHDRAWAL OF APPELLATE MILITARY JUDGES SO APPOINTED BY THE SECRETARY OF DEFENSE OR HIS DESIGNEE.

 

The parties will file contemporaneous briefs and a joint appendix on the granted issues as amended and the specified issue on or before January 24, 2017. Reply briefs will not be filed. Amicus curiae briefs under Rule 26(a)(1) will be filed on or before January 24, 2017, and motions for leave to file amicus curiae briefs under Rule 26(a)(3) will be filed on or before January 17, 2017. Should said motions be granted, amicus curiae briefs under Rule 26(a)(3) will also be filed on or before January 24, 2017.




Thursday, December 15, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0082/AR. U.S. v. Walter L. Graham, Jr. CCA 20150364. 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 decision of the United States Army Court of Criminal Appeals incorrectly summarized the findings. The lower court stated that Appellant pleaded guilty to four specifications of forcibly sodomizing his stepdaughter. Actually, Appellant pleaded guilty to, and was convicted of, three specifications of forcible sodomy.

 

Miscellaneous Docket - Summary Dispositions

 

No. 17-0099/AR. In Re Timothy B. Hennis. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus or other appropriate writ, and Petitioner's motion to stay proceedings of the United States Army Court of Criminal Appeals pending petition for extraordinary writ, it is ordered that said motion is hereby denied, and said petition is hereby denied without prejudice to raising the issues asserted during the course of normal appellate review.

 

Orders Granting Petition for Review

 

No. 16-0727/AF. U.S. v. James W. Richards IV. CCA 38346. 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 issues:

 

I. WHETHER THE PANEL OF AFCCA THAT HEARD APPELLANT'S CASE WAS IMPROPERLY CONSTITUTED.

 

II. WHETHER THE 9 NOVEMBER 2011 SEARCH AUTHORIZATION WAS OVERBROAD IN FAILING TO LIMIT THE DATES OF THE COMMUNICATIONS BEING SEARCHED, AND IF SO, WHETHER THE ERROR WAS HARMLESS.

 

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

 

No. 17-0063/AF. U.S. v. Jerry C. Harrison. CCA 38745. 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 MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Wednesday, December 14, 2016

Orders Granting Petition for Review

 

No. 17-0041/AR. U.S. v. Justin M. Gurczynski. CCA 20140518. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0044/AR. U.S. v. Andy Delvalle. CCA 20160157. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGE CELTNIEKS AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE CELTNIEKS AND JUDGE BURTON DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0059/AR. U.S. v. Ethan J. Markley. CCA 20140956. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0070/AR. U.S. v. Kyle W. Miner. CCA 20160268. 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 on the following issue:

 

WHETHER JUDGE LARSS G. CELTNIEKS, JUDGE ON THE COURT OF MILITARY COMMISSION REVIEW, WAS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF HE WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 17-0073/AR. U.S. v. William C. Millay. CCA 20130341. . 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0077/AR. U.S. v. Salvador Jimenez-Victoria. CCA 20140733. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Tuesday, December 13, 2016

Interlocutory Orders

 

No. 16-0759/AR. U.S. v. Karina Flores-Santos. CCA 20140066. On consideration of Appellant's motion to attach exhibits and petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is denied, and that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE WAS DISQUALIFIED FROM PRESIDING IN APPELLANT'S CASE WHERE HE PREVIOUSLY SERVED AS CHIEF OF JUSTICE AND SUPERVISED ALL PROSECUTIONS FOR APPELLANT'S UNIT, AND HE FAILED TO DISCLOSE THE FULL EXTENT OF HIS RESPONSIBILITIES AND ACTIONS FROM HIS PRIOR POSITION, INCLUDING CONSULTING ON CASES AT THE PRE-PREFERRAL AND INVESTIGATION STAGE.

 

The decision of the United States Army Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Army for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the matter underlying the granted issue. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2012), shall apply.




Monday, December 12, 2016

Orders Granting Petition for Review

 

No. 16-0586/MC. U.S. v. Nhubu C. Chikaka. CCA 201400251. 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 on the following issues:

 

I. WHERE THE MILITARY JUDGE ADMITTED ON THE MERITS A CAMPAIGN PLAN TO "FULLY OPERATIONALIZE THE COMMANDANT'S GUIDANCE" FROM THE HERITAGE TOUR, AND THEN DURING SENTENCING ADMITTED A PICTURE OF THE COMMANDANT AND ALLOWED APPELLANT'S COMMANDING OFFICER TO TESTIFY THAT IT WAS IMPORTANT FOR THE MEMBERS TO ADJUDGE A HARSH SENTENCE, DID THE LOWER COURT ERR IN FAILING TO FIND EVIDENCE OF UNLAWFUL COMMAND INFLUENCE SUFFICIENT TO SHIFT THE BURDEN TO THE GOVERNMENT TO DISPROVE UNLAWFUL COMMAND INFLUENCE IN THIS CASE?

 

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

Briefs will be filed under Rule 25 on Issue I only.*

 

* Judge Ryan has recused herself in this case and did not participate.

 

No. 16-0731/AR. U.S. v. Austin L. Hendrix. CCA 20140476. 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 on the following issues:

 

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED A DEFENSE MOTION TO SUPPRESS RELATED TO THE IDENTIFICATION OF THE APPELLANT DURING A VOICE LINEUP.

 

II. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

III. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

IV. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

V. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING APPELLANT'S MOTION TO COMPEL AN EXPERT CONSULTANT, EP, IN THE FIELD OF AUDIO FORENSIC SCIENCE AND VOICE IDENTIFICATION.

 

Briefs will be filed under Rule 25 on Issue I and Issue V only.




Thursday, December 8, 2016

Orders Granting Petition for Review

 

No. 17-0050/AR. U.S. v. Donnell M. Spriggs. CCA 20150077. 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 on the following issue:

 

WHETHER JUDGE JAMES W. HERRING AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW, WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICERS.

 

No briefs will be filed under Rule 25.

 

No. 17-0056/AR. U.S. v. Jodi R. Coker. CCA 20160202. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGE CELTNIEKS AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE CELTNIEKS AND JUDGE BURTON DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0064/AR. U.S. v. Nathan A. Kelley. CCA 20140701. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0066/AR. U.S. v. Marcelino Trejo. CCA 20160479. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGES CELTNIEKS AND BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES CELTNIEKS AND BURTON DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Wednesday, December 7, 2016

Miscellaneous Docket - Summary Dispositions

 

No. 17-0069/AR. In re Robert B. Bergdahl, Petitioner. On consideration of the petition for extraordinary relief in the nature of writ of mandamus and Petitioner's motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal and motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc, it is ordered that said motion to file an order from the United States Army Court of Criminal Appeals, add an issue and to construe the petition as a writ-appeal is hereby denied, that said petition for extraordinary relief is hereby denied, and that said motion to file an order from the United States Army Court of Criminal Appeals on suggestion for consideration en banc is hereby denied as moot.




Monday, December 5, 2016

Orders Granting Petition for Review

 

No. 17-0035/AR. U.S. v. Jeffry A. Feliciano, Jr. CCA 20140766. 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 on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED WHEN HE FAILED TO INSTRUCT THE PANEL ON THE DEFENSE OF VOLUNTARY ABANDONMENT, AND IF SO, WHETHER THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE PANEL THAT APPELLANT'S MISTAKE OF FACT AS TO CONSENT MUST BE BOTH HONEST AND REASONABLE, AND IF SO, WHETHER THE ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

Briefs will be filed under Rule 25.




Wednesday, November 30, 2016

Orders Granting Petition for Review

 

No. 16-0641/AR. U.S. v. Ian T. Miller. CCA 20150170. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the pleadings, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0010/MC. U.S. v. Alfredo Solis. CCA 201500249. 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 on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

No. 17-0040/AR. U.S. v. Keith D. Land. CCA 20160220. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A COURT OF MILITARY COMMISSION JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE COURT OF MILITARY COMMISSION REVIEW, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0065/AR. U.S. v. Cassandra M. Riley. CCA 20150687. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGES BURTON AND CELTNIEKS.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGES BURTON AND CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Tuesday, November 29, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0696/AR. U.S. v. William G. Inman. CCA 20150042. 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 on the following assigned issue:

 

WHETHER THE MILITARY JUDGE SHOULD HAVE DISQUALIFIED HIMSELF BECAUSE HE HAD PREVIOUSLY ACTED AS COUNSEL IN APPELLANT'S CASE, AND BECAUSE HE EXPRESSED AN OPINION CONCERNING THE GUILT OR INNOCENCE OF APPELLANT WHEN SERVING AS CHIEF OF MILITARY JUSTICE.

 

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. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2012), the Court of Criminal Appeals shall review the issue in light of Appellant's exhibits submitted to and admitted by this Court 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 factfinding 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.

 

Miscellaneous Docket - Summary Dispositions

 

No. 17-0053/AR. Jeffrey R. Kuntz, Appellant v. United States, Appellee. CCA 20160577. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby dismissed for lack of jurisdiction.

 

Orders Granting Petition for Review

 

No. 16-0616/AF. U.S. v. Kelvin L. O'Shaughnessy. CCA 38732. 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 issues:

 

I. CMCR JUDGE MITCHELL WAS NOT STATUTORILY AUTHORIZED TO SIT ON THE AIR FORCE COURT OF CRIMINAL APPEALS.

 

II. EVEN IF CMCR JUDGE MITCHELL WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE AIR FORCE COURT OF CRIMINAL APPEALS, HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 16-0675/AF. U.S. v. Brandi D. Medeiros. CCA S32289. 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 issues:

 

I. WHETHER THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, WAS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 16-0716/AR. U.S. v. Manuel Ortiz III. CCA 20150267. 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 on the following issues:

 

I. WHETHER THE MILITARY JUDGE WRONGLY APPLIED MILITARY RULE OF EVIDENCE 414 TO CHARGED MISCONDUCT, THEREBY LOWERING THE GOVERNMENT'S BURDEN OF PROOF AND VIOLATING APPELLANT'S CONSTITUTIONAL RIGHTS.

 

II. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

 

III. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

IV. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0749/AR. U.S. v. Richard S. Carroll. CCA 20150049. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Wednesday, November 23, 2016

Orders Granting Petition for Review

 

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. On further consideration of the record and the pleadings, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25, and oral argument will not be heard on this issue at the December 6, 2016, hearing.

 

No. 16-0748/NA. U.S. v. David W. Neiman. CCA 201500119. 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 on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY."

 

No briefs will be filed under Rule 25.

 

No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. 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 on the following issues:

 

I. WHETHER, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

 

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

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




Monday, November 21, 2016

Orders Granting Petition for Review

 

No. 16-0719/AR. U.S. v. John G. Birdsong. CCA 20140887. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0735/AR. U.S. v. Rhandall S. Lavasseur, Jr. CCA 20150475. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0047/AR. U.S. v. Adrian T. Douglas. CCA 20140449. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES BURTON AND CELTNIEKS.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

Interlocutory Orders

 

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On further consideration of the record of trial, as supplemented following the order of the Court dated October 28, 2016, it is ordered that the parties brief the following specified issue:

 

WHETHER THE ISSUES GRANTED FOR REVIEW ARE MOOT WHERE THE RECORD REFLECTS THAT: MARTIN T. MITCHELL TOOK AN OATH PURPORTING TO INSTALL HIM AS A JUDGE OF THE U.S. COURT OF MILITARY COMMISSION REVIEW (CMCR) ON MAY 2, 2016; THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ISSUED AN OPINION IN THE UNDERLYING CASE WITH JUDGE MITCHELL PARTICIPATING IN HIS CAPACITY AS AN AFCCA JUDGE ON MAY 12, 2016; AND THE PRESIDENT DID NOT APPOINT MITCHELL TO THE CMCR UNTIL MAY 25, 2016.

 

The parties will brief this issue contemporaneously, and file their briefs on or before December 1, 2016. It is further ordered that the Court will hear oral argument only on the specified issue at the hearing scheduled for December 7, 2016, and that the order allotting amicus curiae 10 minutes to present oral argument is hereby rescinded.




Thursday, November 17, 2016

Orders Granting Petition for Review

 

No. 17-0032/AR. U.S. v. Sean M. Ahern. CCA 20130822. 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 on the following issue:

 

WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE PROHIBITION AGAINST USING AN ADMISSION BY SILENCE PROVIDED BY MIL. R. EVID. 304(a)(2) IS TRIGGERED ONLY "WHEN THE ACCUSED IS AWARE OF" AN INVESTIGATION CONTRARY TO THE PLAIN LANGUAGE OF THE RULE.

 

Briefs will be filed under Rule 25.




Wednesday, November 16, 2016

Certificates for Review Filed

 

No. 17-0079/AF. United States, Appellant v. Patrick Carter, Appellee. CCA 38708. 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) ERRED BY FINDING THAT THE CONVENING AUTHORITY EXCEEDED THE SCOPE OF AFCCA'S REMAND WHEN HE REFERRED APPELLANT'S CASE TO AN "OTHER" TRIAL UNDER R.C.M. 1107(e)(2) FOLLOWING AFCCA'S ORIGINAL REMAND DECISION.

 

Orders Granting Petition for Review

 

No. 16-0753/AR. U.S. v. Taylor A. Layton. CCA 20150260. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0014/AR. U.S. v. Stephen C. Warren. CCA 20140510. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE CELTNIEKS AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE CELTNIEKS AND JUDGE BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0016/AR. U.S. v. Christopher L. Cottner. CCA 20150733. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0017/AR. U.S. v. Jasmine S. Hercules. CCA 20150197. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATED THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0021/AR. U.S. v. Alvin S. Banks. CCA 20130948. 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 on the following issues:

 

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, JAMES W. HERRING, JR., IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE ARMY COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE JAMES W. HERRING, JR.'S SERVICE ON BOTH THE ARMY COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 17-0038/AR. U.S. v. Christopher B. Smith. CCA 20140353. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Thursday, November 10, 2016

Petitions for Reconsideration Granted

 

No. 16-0724/AF. U.S. v. Donald R.B. Simmons. CCA 38788. On consideration of Appellant's petition for reconsideration of this Court's Order issued October 20, 2016, it is ordered that said petition for reconsideration is hereby granted, that the Order of October 20, 2016, denying the petition for grant of review is hereby vacated, and the petition for grant of review is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Wednesday, November 9, 2016

Orders Granting Petition for Review

 

No. 17-0027/AR. U.S. v. Nicholas E. White. CCA 20140945. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISISON OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Monday, November 7, 2016

Orders Granting Petition for Review

 

No. 17-0026/AR. U.S. v. Joshua R. Luna. CCA 20150365. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES HERRING AND BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES HERRING AND BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Thursday, November 3, 2016

Orders Granting Petition for Review

 

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. On further consideration of the petition for grant of review and the pleadings, it is ordered that said petition is hereby granted on the following additional issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Wednesday, November 2, 2016

Orders Granting Petition for Review

 

No. 16-0669/NA. U.S. v. Mark A. Berger. CCA 201500024. 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 on the following issue:

 

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER MRE 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. SEE UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

 

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Tuesday, November 1, 2016

Orders Granting Petition for Review

 

No. 16-0754/AR. U.S. v. Arthur Martin, Jr. CCA 20130207. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES HERRING AND CELTNIEKS.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES HERRING AND CELTNIEKS DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0758/AR. U.S. v. Jesse M. Taylor. CCA 20150158. 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 on the following issues:

 

I. WHETHER CMCR JUDGE HERRING IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

 

II. WHETHER, EVEN IF CMCR JUDGE HERRING IS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, HIS SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

 

No briefs will be filed under Rule 25.

 

No. 17-0004/AR. U.S. v. Jason A. Maestre. CCA 20140549. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Friday, October 28, 2016

Orders Granting Petition for Review

 

No. 16-0712/AR. U.S. v. James G. Donohue. CCA 20140124. 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 on the following issues:

 

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGES JAMES WILSON HERRING, JR. AND PAULETTE VANCE BURTON ARE STATUTORILY AUTHORIZED TO SIT AS TWO OF THE ARMY COURT OR CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER THE SERVICE OF JUDGES JAMES WILSON HERRING, JR., AND JUDGE PAULETTE VANCE BURTON ON BOTH THE ARMY COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR STATUS AS SUPERIOR OFFICERS ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 16-0757/AR. U.S. v. Trevor L. Sands. CCA 20130946. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES BURTON AND HERRING.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND HERRING DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Thursday, October 27, 2016

Orders Granting Petition for Review

 

No. 16-0671/AF. U.S. v. Keanu D.W. Ortiz. CCA 38839. 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 issues:

 

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 16-0739/AR. U.S. v. Collins Nyangau. CCA 20150495. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0751/AR. U.S. v. D'Andre R. Fletcher. CCA 20140949. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENTS AS COURT OF MILITARY COMMISSION JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES CELTNIEKS AND BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE COURT OF MILITARY COMMISSION REVIEW, JUDGES BURTON AND CELTNIEKS DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0761/AR. U.S. v. Jacob I. McGowan. CCA 20150807. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 17-0002/AR. U.S. v. Alvin J. Fogle. CCA 20140534. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Monday, October 24, 2016

Miscellaneous Docket - Filings

 

No. 17-0039/NA. In Re Joshua G. Anderson. Notice is hereby given that correspondence from Mr. Joshua G. Anderson, which this Court construes as a petition for extraordinary relief in the nature of a writ of habeas corpus, was filed under Rule 27(a) on October 18, 2016, and placed on the docket this 24th day of October, 2016. On consideration thereof, it is ordered that said petition is hereby dismissed for lack of jurisdiction.




Thursday, October 20, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0501/AF. U.S. v. Richard A. Rivera. CCA 38649. 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 dismissed for lack of jurisdiction.

 

Orders Granting Petition for Review

 

No. 16-0490/MC. U.S. v. Jonathan A. Lopez. CCA 201400289. 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 on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

No. 16-0599/AR. U.S. v. Jared D. Herrmann. CCA 20131064. 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 on the following issue:

 

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO FIND APPELLANT COMMITTED RECKLESS ENDANGERMENT, WHICH REQUIRES PROOF THE CONDUCT WAS LIKELY TO PRODUCE DEATH OR GRIEVOUS BODILY HARM.

 

Briefs will be filed under Rule 25.

 

No. 16-0658/AR. U.S. v. Tyler F. Ho. CCA 20140068. 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 on the following issues:

 

I. WHETHER APPELLANT WAS PUNISHED FOR 28 DAYS BY BEING FORCED TO QUARTER A JUNIOR OFFICER IN HIS HOME AND NOT AWARDED CREDIT.

 

II. WHETHER ACCEPTANCE OF APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES CELTNIEKS, BURTON AND HERRING.

 

III. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND HERRING DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

IV. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

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

 

No. 16-0670/AR. U.S. v. Matthew N. Watkins. CCA 20140275. 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 on the following issues specified by the Court:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

No. 16-0680/AR. U.S. v. Shquon T. Hodge. CCA 20160056. 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 on the following issues specified by the Court:

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0725/AR. U.S. v. Jacob D. Blakesley. CCA 20150012. 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 on the following issues specified by the Court:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0756/AF. U.S. v. Timothy J. Morgan. CCA 38825. 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 specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND THE ACCUSED GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

Petitions for Reconsideration Granted

 

No. 16-0650/AR. U.S. v. Courtney A. Craig. CCA 20150272. On consideration of Appellant's petition for reconsideration of this Court's Order issued 12 August 2016, it is ordered that said petition for reconsideration is hereby granted, that the Order of 12 August 2016, denying the petition for grant of review is hereby vacated, and that the petition for grant of review is hereby granted on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Wednesday, October 19, 2016

Orders Granting Petition for Review

 

No. 16-0663/MC. U.S. v. Travis V. Nauta. CCA 201500244. 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 on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO, 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTION RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

No. 16-0705/AR. U.S. v. Sean R. Erikson. CCA 20150130. 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 on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED IN EXCLUDING EVIDENCE THAT THE VICTIM PREVIOUSLY MADE A FALSE ACCUSATION OF SEXUAL CONTACT AGAINST ANOTHER SOLDIER.

 

II. CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE NOT STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

 

III. EVEN IF CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, THEIR SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.

 

Briefs will be filed under Rule 25 on issue I only.

 

No. 16-0711/AF. U.S. v. Michael J.D. Briggs. CCA 38730. 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 AFCCA PANEL THAT HEARD APPELLANT'S CASE WAS IMPROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.




Tuesday, October 18, 2016

Orders Granting Petition for Review

 

No. 16-0617/AF. U.S. v. Joseph D. Morchinek. CCA S32291. 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 issues:

 

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE MARTIN T. MITCHELL IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 16-0715/AR. U.S. v. Zachary A. Bennett. CCA 20121072. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES BURTON AND HERRING.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND HERRING DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0723/AR. U.S. v. Kyle D. Rich. CCA 20130805. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE BURTON.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE BURTON DOES NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

No. 16-0733/AR. U.S. v. Christopher B. Melvin. CCA 20140761. 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 on the following issues:

 

I. WHETHER CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE NOT STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

 

II. EVEN IF CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.

 

No briefs will be filed under Rule 25.

 

No. 16-0746/AR. U.S. v. Ryan W. Rochford. CCA 20140565. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DOES NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.

 

Petitions for Reconsideration Granted

 

No. 16-0713/AR. U.S. v. Samuel E. Nealy III. CCA 20140029. On consideration of Appellant's petition for reconsideration of this Court's Order issued September 27, 2016, it is ordered that said petition for reconsideration is hereby granted, that the Order of September 27, 2016, denying the petition for grant of review is hereby vacated, and the petition for grant of review is hereby granted on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Thursday, October 13, 2016

Orders Granting Petition for Review

 

No. 16-0722/AR. U.S. v. Max S. Maydoney. CCA 20150324. 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 on the following issue:

 

WHETHER JUDGE PAULETTE V. BURTON, CMCR JUDGE, IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY CCA, AND EVEN IF SHE IS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY CCA, WHETHER HER SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN HER NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.




Wednesday, October 12, 2016

Orders Granting Petition for Review

 

No. 16-0588/NA. U.S. v. Adam S. Nelms. CCA 201400369. Appellant's petition for grant of review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF A CHARGED OFFENSE, YOU MUST FIND HIM GUILTY OF THAT OFFENSE," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Tuesday, October 11, 2016

Petitions for Reconsideration Granted

 

No. 16-0677/AR. U.S. v. Jovanni Pimentel. CCA 20150361. Appellant's petition for reconsideration of this Court's Order issued September 15, 2016, is hereby granted. The Order denying the petition for grant of review issued September 15, 2016, is hereby vacated, and the petition for grant of review is hereby granted on the following issues:

 

I.WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II.WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III.WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Thursday, October 6, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0730/AR. U.S. v. David L. Benitez III. CCA 20150509. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is noted Appellant's pleas of guilty with respect to Specifications 1, 5, and 9 of Charge II are provident only with respect to one location, vice the two locations charged. Accordingly, in light of this error, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed, except for the words "and at or near Bolivia, North Carolina" in Specifications 1 and 9 of Charge II, and "at or near Oak Island, North Carolina and" in Specification 5 of Charge II. The finding of guilty as to those excepted words is set aside and the words are dismissed.

 

Orders Granting Petition for Review

 

No. 16-0732/AR. U.S. v. Kameron M. Coleman. CCA 20140709. 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 on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE HERRING DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Monday, October 3, 2016

Miscellaneous Docket - Summary Dispositions

 

No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Appeals, Appellees.CCA 37679. On consideration of Appellee's motion to dismiss writ-appeal petition as untimely filed under Rule 19(e), and Appellant's motion for leave to withdraw the writ-appeal petition, it is ordered that Appellee's motion to dismiss the writ-appeal petition is hereby granted, and Appellant's motion for leave to withdraw the writ-appeal petition is hereby denied as moot.

 

Petitions for Reconsideration Granted

 

No. 16-0635/AR. U.S. v. Laith G. Cox. CCA 20130923. On consideration of Appellant's petition for reconsideration of this Court's Order issued September 7, 2016, it is ordered that said petition for reconsideration is hereby granted, and the petition for grant of review is hereby granted on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGE.

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Friday, September 30, 2016

Orders Granting Petition for Review

 

No. 16-0579/AF. U.S. v. William P. Smith, Jr. CCA 38728. 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, BY INSTRUCTING THE MEMBERS THAT THEY LACK THE POWER OF JURY NULLIFICATION, THE MILITARY JUDGE ERRED AND MATERIALLY PREJUDICED APPELLANT'S RIGHT TO BE TRIED BY A PANEL VESTED WITH ITS FULL PREROGATIVE.

 

No briefs will be filed under Rule 25.

 

No. 16-0674/AF. U.S. v. James M. Kmet. CCA 38755. 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 AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

No. 16-0693/AR. U.S. v. Marcos A. Bustamante. CCA 20150486. 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 on the following issues:

 

I. WHETHER JUDGE HERRING AND JUDGE BURTON, WHO CURRENTLY SIT ON THE CMCR, ARE STATUTORILY AUTHORIZED TO ALSO SIT ON THE ACCA.

 

II. WHETHER JUDGE HERRING AND JUDGE BURTON'S SIMULTANEOUS SERVICE ON BOTH THE CMCR AND ACCA VIOLATES THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

 

No briefs will be filed under Rule 25.

 

No. 16-0720/AR. U.S. v. Robert S. Echols. CCA 20160126. 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 on the following issues:

 

I. WHETHER CMCR JUDGE JAMES HERRING IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY CCA.

 

II. WHETHER JUDGE JAMES HERRING'S SERVICE ON BOTH THE CMCR AND ARMY CCA VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Wednesday, September 21, 2016

Orders Granting Petition for Review

 

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943. 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 on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING THE TESTIMONY OF APPELLANT'S WIFE, MRS. CL, WHO TESTIFIED THAT APPELLANT'S APOLOGY TO HIS STEPSON MEANT THAT APPELLANT WAS "LOOSELY ADMITTING GUILT" TO CRIMINAL CONDUCT, AND BY ALSO ADMITTING THE TESTIMONY OF MS. NM, WHO TESTIFIED THAT APPELLANT "HAD PROBABLY RAPED" HIS WIFE BECAUSE MRS. CL HAD RECENTLY RESEARCHED "SPOUSAL RAPE" ON THE INTERNET.

 

Briefs will be filed under Rule 25.




Friday, September 16, 2016

Orders Granting Petition for Review

 

No. 16-0484/AF. U.S. v. Christopher L. Oliver. CCA 38481. 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 re-drafted issue:

WHETHER WRONGFUL SEXUAL CONTACT WAS A LESSER-INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT.

Briefs will be filed under Rule 25.

No. 16-0530/AF. U.S. v. Patrick A. Shea. CCA S32225. 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 issues:

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN, OVER APPELLANT'S TIMELY OBJECTION, THIS CASE WAS ASSIGNED TO A PANEL THAT DID NOT INCLUDE ALL THREE OF THE JUDGES FROM THE ORIGINAL DECISION.

II. WHETHER A REASONABLE OBSERVER WOULD QUESTION THE IMPARTIALITY OR INDEPENDENCE OF THE COURT OF CRIMINAL APPEALS AFTER WITNESSING THE REMOVAL OF JUDGE HECKER FROM THIS CASE ON REMAND FOLLOWING THE GOVERNMENT'S ALLEGATIONS THAT HER IMPARTIALITY HAS BEEN IMPAIRED BY THE DECISION OF THE JUDGE ADVOCATE GENERAL, WHO IS HIMSELF PART OF THE GOVERNMENT, TO ASSIGN HER TO PERFORM NON-JUDICIAL ADDITIONAL DUTIES WITHIN THE GOVERNMENT.

Briefs will be filed under Rule 25.

No. 16-0611/AF. U.S. v. Richard K. Price, Jr. CCA S32330. 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 said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FORCING APPELLANT TO ADMIT TO MISCONDUCT GREATER THAN WAS NECESSARY FOR A PROVIDENT PLEA.

Briefs will be filed under Rule 25.
 

Interlocutory Orders

 

No. 16-0678/CG. Thomas J. Randolph, Appellant v. HV., Appellee and United States, Respondent. CCA 001-16. On further consideration of the writ-appeal petition from the decision of the United States Coast Guard Court of Criminal Appeals rendered pursuant to Article 6b, Uniform Code of Military Justice, it is ordered that the Appellant and Appellee submit briefs on the following specified issue:

WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION OVER A WRIT-APPEAL PETITION FILED BY AN ACCUSED WHO IS SEEKING REVIEW OF A COURT OF CRIMINAL APPEALS' DECISION RENDERED PURSUANT TO ARTICLE 6b(e), UCMJ.

It is further ordered that the United States be substituted for the military judge as a party respondent, that the United States submit a brief on Issue II in the writ-appeal petition and on the issue specified in this Order, that the Appellate Government and Appellate Defense Divisions of the Army, Navy-Marine Corps and Air Force are invited to submit amicus curiae briefs on the issue specified in this Order, that all briefs mentioned in this Order be filed on or before September 30, 2016, and that oral argument will be heard on October 11, 2016, as previously scheduled. Appellant, Appellee, and the United States will each be allotted 20 minutes to present oral argument.  




Thursday, September 15, 2016

Orders Granting Petition for Review

 

No. 16-0714/AR. U.S. v. Mattie L. Brown. CCA 20140346. 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 on the following issues:  

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.  

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS DOES NOT MEET THE UCMJ DEFINITION OF AN APPELLATE MILITARY JUDGE.  

 

III. WHETHER THE ASSIGNMENT OF INFERIOR OFFICERS AND PRINCIPAL OFFICERS TO A SINGLE JUDICIAL TRIBUNAL ITSELF VIOLATES THE APPOINTMENTS CLAUSE.  

 

No briefs will be filed under Rule 25.




Monday, August 29, 2016

Orders Granting Petition for Review

 

No. 16-0565/MC. U.S. v. Dalton C. Nickens. CCA 201500142. 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 on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF A CHARGED OFFENSE, YOU MUST FIND HIM GUILTY OF THAT OFFENSE," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO, 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Thursday, August 18, 2016

Orders Granting Petition for Review

 

No. 16-0497/MC. U.S. v. Reece N. Tso. CCA 201400379. 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 on the following re-drafted issue:

 

WHETHER, AFTER DISMISSING AN INITIAL COURT-MARTIAL PANEL BECAUSE THE CONVENING AUTHORITY IMPROPERLY EXCLUDED CERTAIN RANKS FROM CONSIDERATION AS COURT MEMBERS, THE MILITARY JUDGE ERRED BY ACCEPTING A PANEL COMPRISED OF THE SAME DETAILED MEMBERS.

 

No briefs will be filed under Rule 25.

 

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. 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 issues:

 

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

Briefs will be filed under Rule 25.

 

The Chiefs of the Appellate Defense and Appellate Government Divisions of the United States Army, the United States Coast Guard, and the United States Navy-Marine Corps are invited to file amicus curiae briefs on these issues. These briefs will be filed under Rule 26.




Thursday, July 21, 2016

Orders Granting Petition for Review

 

No. 16-0482/AF. U.S. v. Blake E. Taylor. CCA 38700. 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 specified by the Court:

 

WHETHER THE AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Tuesday, July 19, 2016

Orders Granting Petition for Review

 

No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. 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 specified by the Court:

 

THE CHIEF OF STAFF OF THE AIR FORCE ADVISED THE CONVENING AUTHORITY THAT, UNLESS HE RETIRED, THE SECRETARY OF THE AIR FORCE WOULD FIRE HIM. WAS THE CONVENING AUTHORITY'S SUBSEQUENT REFERRAL OF CHARGES UNLAWFULLY INFLUENCED BY THE THREAT TO HIS POSITION AND CAREER?

 

Briefs will be filed under Rule 25.




Wednesday, June 29, 2016

Orders Granting Petition for Review

 

No. 16-0555/AR. U.S. v. Jason M. Commisso. CCA 20140205. 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 on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENSE'S POST-TRIAL MOTION FOR A MISTRIAL, THEREBY VIOLATING APPELLANT'S RIGHT TO HAVE HIS CASE DECIDED BY A PANEL OF FAIR AND IMPARTIAL MEMBERS, BECAUSE THREE PANEL MEMBERS FAILED TO DISCLOSE THAT THEY HAD PRIOR KNOWLEDGE OF THE CASE.

 

Briefs will be filed under Rule 25.




Thursday, June 23, 2016

Orders Granting Petition for Review

 

No. 16-0455/AF. U.S. v. Trentlee D. McClour. CCA 38704. 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 AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

Briefs will be filed under Rule 25.




Friday, June 10, 2016

Orders Granting Petition for Review

 

No. 16-0423/AR. U.S. v. Joseph R. Haverty. CCA 20130559. 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 on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20, WHICH PROHIBITS REQUIRING THE CONSUMPTION OF EXCESSIVE AMOUNTS OF ALCOHOL AS AN INITIATION RITE OF PASSAGE.

 

Briefs will be filed under Rule 25.

 

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. 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 on the following issue:

 

WHETHER THE LOWER COURT ERRED IN CONDUCTING ITS ARTICLE 66(c), UCMJ, REVIEW BY FINDING AS FACT ALLEGATIONS THAT SUPPORTED CHARGES OF WHICH APPELLANT WAS ACQUITTED TO AFFIRM THE FINDINGS AND SENTENCE.

 

Briefs will be filed under Rule 25.




Tuesday, May 31, 2016

Orders Granting Petition for Review

 

No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356. 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 on the following issues:

 

I. IN AFFIRMING THE ABUSIVE SEXUAL CONTACT CONVICTION, THE LOWER COURT RELIED ON FACTS OF WHICH THE MEMBERS ACQUITTED APPELLANT. WAS THIS ERROR?

 

II. ARTICLE 120(d), UCMJ, PROHIBITS SEXUAL CONTACT ON ANOTHER PERSON WHEN THAT PERSON IS "ASLEEP, UNCONSCIOUS, OR OTHERWISE UNAWARE." DESPITE THESE SPECIFIC STATUTORY TERMS, THE LOWER COURT HELD THAT "ASLEEP" AND "UNCONSCIOUS" DO NOT ESTABLISH THEORIES OF CRIMINAL LIABILITY, BUT ONLY THE PHRASE "OTHERWISE UNAWARE" ESTABLISHES CRIMINAL LIABILITY. DID THE LOWER COURT ERR IN ITS INTERPRETATION OF ARTICLE 120(d), UCMJ?

 

Briefs will be filed under Rule 25.




Monday, May 16, 2016

Orders Granting Petition for Review

 

No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. 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 on the following issue:

 

THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?

 




Monday, May 9, 2016

Orders Granting Petition for Review

 

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. 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 specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE "EXCITED UTTERANCE" EXCEPTION TO THE HEARSAY RULE TO PERMIT THE GOVERNMENT TO INTRODUCE THROUGH THE TESTIMONY OF LAW ENFORCEMENT PERSONNEL THAT APPELLANT'S WIFE NODDED HER HEAD IN RESPONSE TO A QUESTION WHETHER HER HUSBAND "DID THIS," AND IN CONCLUDING THAT THE PREJUDICIAL EFFECT OF THIS TESTIMONY WAS OUTWEIGHED BY ITS PROBATIVE VALUE. SEE M.R.E. 802 AND 803(2); M.R.E. 403; UNITED STATES v. DONALDSON, 58 M.J. 477 (2003); UNITED STATES v. JONES, 30 M.J. 127 (C.M.A. 1990); UNITED STATES v. ARNOLD, 25 M.J. 129 (C.M.A. 1987); UNITED STATES v. IRON SHELL, 633 F.2D 77 (8TH CIR. 1980), CERT. DENIED, 450 U.S. 1001 (1981).

 

Briefs will be filed under Rule 25.

 

No. 16-0407/AR. U.S. v. Justin P. Swift. CCA 20100196. 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 on the following issues raised by Appellant:

 

I. WHETHER THE ARMY COURT DENIED APPELLANT HIS SUBSTANTIAL RIGHT TO AN ARTICLE 66(c) REVIEW BY AFFIRMING THE FINDINGS AND SENTENCE ON UNCHARGED MISCONDUCT PRESENTED AT TRIAL RATHER THAN THE CHARGED OFFENSES.

 

II. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING APPELLANT'S PRETRIAL STATEMENT WHERE THERE WAS NO INDEPENDENT EVIDENCE TO CORROBORATE THE ESSENTIAL FACTS ADMITTED.

 

And the following issue specified by the Court:

 

III. WHETHER THE EVIDENCE OF THE TWO CONVICTIONS OF INDECENT ACTS WITH A CHILD IS LEGALLY SUFFICIENT.

 

Briefs will be filed under Rule 25.




Wednesday, May 3, 2016

Orders Granting Petition for Review

 

No. 16-0267/AR. U.S. v. Nathan C. Wilson. CCA 20140135. 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 on the following issue personally asserted by appellant:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR APPROPRIATE RELIEF UNDER RULE FOR COURT-MARTIAL 917 WHERE THE MILITARY JUDGE IMPROPERLY APPLIED ARTICLE 130, UCMJ, HOUSEBREAKING, TO A MOTOR POOL.

 

Briefs will be filed under Rule 25.

 

No. 16-0296/AF. U.S. v. Joseph R. Dockery III. CCA 38624. 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 issues:

 

I. WHETHER THE MILITARY JUDGE ERRED BY GRANTING, OVER DEFENSE OBJECTION, THE GOVERNMENT'S CHALLENGE FOR CAUSE AGAINST MSGT LW.

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE DID NOT ERR, AND BY CONCLUDING THAT EVEN IF THE MILITARY JUDGE DID ERR THERE WAS NO PREJUDICE, CONTRARY TO THIS COURT'S PRECEDENT IN UNITED STATES v. PETERS, 74 M.J. 31 (C.A.A.F. 2015), UNITED STATES v. WOODS, 74 M.J. 238 (C.A.A.F. 2015), UNITED STATES V. NASH, 71 M.J. 83 (C.A.A.F. 2012), UNITED STATES v. CLAY, 64 M.J. 274 (C.A.A.F. 2007), AND UNITED STATES v. DALE, 42 M.J. 384 (C.A.A.F. 1995).

 

Briefs will be filed under Rule 25.




Friday, April 29, 2016

Certificates for Review

 

No. 16-0500/AF. U.S. v. Justin L. Fetrow. CCA 38631. 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 issues:

 

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT IN ORDER FOR CONDUCT TO CONSTITUTE CHILD MOLESTATION UNDER MIL. R. EVID. 414, THE CONDUCT MUST HAVE BEEN AN OFFENSE UNDER THE UCMJ, OR FEDERAL OR STATE LAW, AT THE TIME IT WAS COMMITTED AND, IF OFFERED UNDER MIL. R. EVID. 414(d)(2)(A)-(C), THAT THE CONDUCT MUST MEET THE DEFINITION OF AN OFFENSE LISTED UNDER THE VERSION OF THE APPLICABLE ENUMERATED STATUTE IN EFFECT ON THE DAY OF TRIAL.

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT THE ERRONEOUS ADMISSION OF TWO ACTS OF INDECENT LIBERTIES COMMITTED BY APPELLEE ON HIS CHILD AGE DAUGHTER HAD A SUBSTANTIAL INFLUENCE ON THE MEMBERS' VERDICT REQUIRING SET ASIDE OF THE FINDINGS AND SENTENCE.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 31st day of May, 2016.




Thursday, April 21, 2016

Orders Granting Petition for Review

 

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. 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 on the following issue:

 

PROSECUTORS MUST ACT WITHIN THE BOUNDS OF PROPRIETY. HERE, IN FRONT OF MEMBERS, THE PROSECUTOR EXPRESSED HIS OPINION OF APPELLANT INCLUDING, "I THINK HE'S AN IDIOT," OPINED ON DEFENSE-FRIENDLY EVIDENCE, CHARACTERIZED APPELLANT'S STATEMENTS AS "RIDICULOUS," VOUCHED FOR GOVERNMENT-FRIENDLY EVIDENCE, DIAGNOSED APPELLANT AS SCHIZOPHRENIC, ASKED MEMBERS TO DISREGARD DEFENSE ARGUMENTS, AND TOLD MEMBERS THAT APPELLANT "SLEEPS IN A BED OF LIES." WAS THIS PLAIN ERROR?

 

Briefs will be filed under Rule 25.



Tuesday, April 12, 2016

Orders Granting Petition for Review

 

No. 16-0360/AR. U.S. v. Todd D. Sewell. CCA 20130460. Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals is granted on the following issue personally asserted by the Appellant:

 

WHETHER THE TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER ARGUMENT ON THE FINDINGS.

 

Briefs will be filed under Rule 25.




Friday, April 1, 2016

Orders Granting Petition for Review

 

No. 16-0336/CG. U.S. v. Omar M. Gomez. CCA 1394. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING TWO COMPLAINING WITNESSES TO TESTIFY ON SENTENCING THAT APPELLANT WAS RESPONSIBLE FOR THEIR PREGNANCY COMPLICATIONS WITH NO EVIDENCE CONNECTING HIS MISCONDUCT TO THE COMPLICATIONS.

 

Briefs will be filed under Rule 25.




Wednesday, March 30, 2016

Orders Granting Petition for Review

 

No. 16-0306/AR. U.S. v. Joshua C. Davis. CCA 20130996. 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 THE ARMY COURT OF CRIMINAL APPEALS ERRED IN REFUSING TO APPLY DE NOVO REVIEW FOR FAILURE TO INSTRUCT ON AN AFFIRMATIVE DEFENSE RAISED BY THE EVIDENCE, AND INSTEAD FOUND FORFEITURE AND APPLIED A PLAIN ERROR ANALYSIS, CONTRARY TO THIS COURT'S PRECEDENTS IN UNITED STATES v. TAYLOR, 26 M.J. 127 (C.M.A. 1988); UNITED STATES v. DAVIS, 53 M.J. 202 (C.A.A.F. 2000); AND UNITED STATES v. STANLEY, 71 M.J. 60 (C.A.A.F. 2012).

 

Briefs will be filed under Rule 25.




Monday, March 21, 2016

Orders Granting Petition for Review

 

No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386. 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 granted on the following issue personally asserted by Appellant:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT'S LAPTOP COMPUTER.

 

Briefs will be filed under Rule 25.


United States Court of Appeals for the Armed Forces • 450 E Street, NW Washington, DC 20442-0001
(202) 761-1448 / DSN 763-1448 • (202) 761-4672 fax