USCAAF | New Grants and Summary Dispositions

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Monday, May 20, 2013

ORDERS GRANTING PETITION FOR REVIEW

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

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

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

Briefs will be filed under Rule 25.

Friday, May 17, 2013

APPEALS - SUMMARY DISPOSITIONS

No. 12-0526/AR. U.S. v. Lawrence J. LAVERGNE, Jr. CCA 20090986. 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 of 13 November 2012 be corrected to reflect in the recitation of the action that the United States Army Court of Criminal Appeals set aside the 4 June 2010 action, not this Court.

No. 13-0323/NA. U.S. v. Caitlin L. SMITH. CCA 201100594. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

* It is directed that the promulgating order be corrected to change the date of the offense in the Specification of Charge I from 16 July 2008 to 4 September 2008.

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0397/AF. U.S. v. Jerome A. JONES, Jr. CCA 37528. Review granted on the following issue:

WHETHER A CONTESTED GENERAL ARTICLE 134 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE AN ARTICLE 134 TERMINAL ELEMENT BUT THAT WAS NOT CHALLENGED AT TRIAL STATES AN OFFENSE.

No briefs will be filed under Rule 25.

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

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

No briefs will be filed under Rule 25.

Thursday, May 16, 2013

APPEALS - SUMMARY DISPOSITIONS

No. 13-0447/AF. U.S. v. Scott M. BRUNS. CCA S32030. 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 approved "a reprimand" as part of the sentence adjudged, when a reprimand was not adjudged at trial. Accordingly, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals, except for that portion purporting to affirm a reprimand, is affirmed.

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0617/MC. U.S. v. Hugo I. VALENTIN. CCA 201000683. Review granted on the following issue:

WHETHER THE COURT BELOW ERRED WHEN IT FOUND NO MATERIAL PREJUDICE TO APPELLANT'S CONSTITUTIONAL RIGHT TO NOTICE WHERE THE GOVERNMENT FAILED TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

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

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

Briefs will be filed under Rule 25.

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

No briefs will be filed under Rule 25.

Thursday, May 9, 2013

APPEALS - SUMMARY DISPOSITIONS

No. 13-0423/AR. U.S. v. Nicholas B. WATKINS. CCA 20110040. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that the convening authority's 29 November 2012 action mistakenly reports that the original action "was set aside by the United States Court of Appeals for the Armed Forces on 30 May 2012, pursuant to Article 66, Uniform Code of Military Justice." We never issued this order. Instead, the United States Army Court of Criminal Appeals set aside the original action. Because of this clerical error in the action, the promulgating order contains the same error when reciting the action. Accordingly, it is ordered that said petition is hereby granted, the action and promulgating order be corrected to reflect that the United States Army Court of Criminal Appeals set aside the original action, and the decision of the United States Army Court of Criminal Appeals is affirmed.

Wednesday, May 1, 2013

CERTIFICATES FOR REVIEW FILED

No. 13-5006/AF. Airman First Class LRM, USAF, Appellant v. Lieutenant Colonel Joshua E. KASTENBERG, USAF, Military Judge, Appellee, and Airman First Class Nicholas E. DANIELS, USAF, Real Party In Interest. CCA 2013-05. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT IT LACKED JURISDICTION TO HEAR A1C LRM'S PETITION FOR A WRIT OF MANDAMUS.

II. WHETHER THE MILITARY JUDGE EERRED BY DENYING A1C LRM THE OPPORTUNITY TO BE HEARD THROUGH COUNSEL THEREBY DENYING HER DUE PROCESS UNDER THE MILITARY RULES OF EVIDENCE, THE CRIME VICTIMS' RIGHTS ACT AND THE UNITED STATES CONSTITUTION.

III. WHETHER THIS HONORABLE COURT SHOULD ISSUE A WRIT OF MANDAMUS.

Pursuant to Rule 17, the Judge Advocate General of the Air Force shall appoint counsel for the Appellee and the Real Party In Interest. The Appellee and the Real Party In Interest shall file answers under Rule 22(b) on or before May 13, 2013. Appellant may file a reply within 5 days after the filing of Appellee's answer. Absent extraordinary circumstances, requests for enlargement of time will not be granted.

Tuesday, April 30, 2013

ORDERS GRANTING PETITION FOR REVIEW

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

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

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

Briefs will be filed under Rule 25.

Wednesday, April 24, 2013

APPEALS-SUMMARY DISPOSITIONS

No. 13-0295/AR. U.S. v. Leslie BEASLEY. CCA 20110616. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

* It is directed that the promulgating order be corrected to reflect that Appellant pleaded guilty to and was found guilty of Specification 1 of Charge II.

No. 13-0370/AR. U.S. v. Anthony M. SAWYERS. CCA 20111065. 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 the amended portion of Specification 3 of Charge II to allege: "In that Sergeant (E-5) Anthony M. Sawyers, U.S. Army, then Sergeant (E-5) Anthony M. Sawyers, U.S. Marine Corps, did, at or near Camp Lejeune, North Carolina, between on or about 1 January 2007 and on or about 30 September 2007, on divers occasions, commit an indecent act with S.M.M., a female under 16 years of age, not the wife of the said Anthony M. Sawyers, by placing his hands upon her groin, with intent to arouse the sexual desire of the said S.M.M. and the said Sergeant Anthony M. Sawyers, such conduct being of a nature to bring discredit upon the Armed Forces."

ORDERS GRANTING PETITION FOR REVIEW

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

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

No briefs will be filed under Rule 25.

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

No briefs will be filed under Rule 25.

Tuesday, April 23, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 10-5004/AF. U.S. v. Ryan D. HUMPHRIES. CCA 37491. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT THE MEMBERS ON THE FACTORS IDENTIFIED BY UNITED STATES v. MARCUM THAT ALLOW AN ACT OF CONSENSUAL SODOMY TO BE CRIMINALIZED IN THE MILITARY.

No briefs will be filed under Rule 25.

No. 11-0537/MC. U.S. v. Christopher M. HARRIS. CCA 201000341. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 2 OF CHARGE III RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S CONSTITUTIONAL RIGHT TO NOTICE.

No briefs will be file under Rule 25.

No. 13-0240/AR. U.S. v. Bradley G. HOWARD. CCA 20110109. Review granted on the following issue:

WHETHER APPELLANT'S CONVICTIONS UNDER ARTICLE 120(k), UCMJ, FOR ENGAGING IN SEXUAL RELATIONS IN THE PRESENCE OF OTHERS VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

No briefs will be file under Rule 25.

Wednesday, April 17, 2013

ORDERS GRANTING PETITION FOR REVIEW

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

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

Briefs will be filed under Rule 25.

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

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

Briefs will be filed under Rule 25.

No. 12-0448/MC. U.S. v. Jonathan E. LONSFORD. CCA 201100022. Review granted on the following issue:

WHETHER, UNDER THIS COURT'S DECISIONS IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011), UNITED STATES v. BALLAN, 71 M.J. 28 (C.A.A.F. 2012), AND UNITED STATES v. HUMPHRIES, 71 M.J. 209 (C.A.A.F. 2012), APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT WHEN HE WAS CONVICTED UNDER TWO ADULTERY SPECIFICATIONS THAT FAILED TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

Tuesday, April 16, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0235/AR. U.S. v. Waseem ELHELOU. CCA 20110246. Review granted on the following issues:

I. WHETHER APPELLANT'S CONVICTION UNDER ARTICLE 120(k), FOR ENGAGING IN SEXUAL RELATIONS IN THE PRESENCE OF OTHERS VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

II. WHETHER THE PLEA COLLOQUY BETWEEN THE MILITARY JUDGE AND APPELLANT WAS SUFFICIENT TO SUPPORT PLEAS OF GUILTY TO THE SPECIFICATIONS OF INDECENT ACTS UNDER ARTICLE 120(k).

No briefs will be filed under Rule 25.

CERTIFICATES FOR REVIEW FILED

No. 13-5005/AF. U.S., Appellant v. Patrick CARTER, Appellee. CCA 37715. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

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

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS APPLIED AN ERRONEOUS STANDARD OF LAW WHEN EVALUATING WHETHER THE DEFECTIVE SPECIFICATIONS UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS BY FAILING TO CONSIDER WHETHER THE EVIDENCE ON THE MISSING ELEMENT WAS "OVERWHELMING AND ESSENTIALLY UNCONTROVERTED."

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

Wednesday, April 3, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0273/AF. U.S. v. Christopher D. WALTERS. CCA 37873. Review granted on the following issue:

WHETHER THE FINDING OF GUILTY TO SPECIFICATION 2 OF CHARGE II IN VIOLATION OF ARTICLE 134, UCMJ, WHICH DID NOT CHARGE THE TERMINAL ELEMENT AND TO WHICH APPELLANT PLEADED NOT GUILTY, MUST BE DISMISSED PURSUANT TO UNITED STATES v. HUMPHRIES, 71 M.J. 209 (C.A.A.F. 2012).

No briefs will be filed under Rule 25.

Wednesday, March 27, 2013

APPEALS - SUMMARY DISPOSITIONS

No. 13-0325/AR. U.S. v. Franklin L.C. DUNN. CCA 20110388. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that under Charge II and its sole Specification, Appellant was charged with premeditated murder. He pleaded guilty to the lesser included offense of unpremeditated murder. The military judge accepted his plea, and then conformed the specification to his plea. Having done so, a finding of guilty was entered. The court-martial promulgating order correctly states the charge, the plea, and the finding, but it fails to explain that the specification was modified to conform to the plea. Thus, the order is misleading as to the true finding. Accordingly, it is ordered that the petition is hereby granted; that the court-martial promulgating order be corrected to include that the military judge modified the Specification of Charge II to conform to Appellant's plea of guilty to the lesser included offense of unpremeditated murder; and that the decision of the United States Army Court of Criminal Appeals is affirmed.

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0638/AR. U.S. v. Edgar E. MARTINEZ. CCA 20090582. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 2 OF CHARGE III RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL RIGHT TO NOTICE.

No briefs will be filed under Rule 25.

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

No briefs will be filed under Rule 25.

Friday, March 22, 2013

APPEALS - SUMMARY DISPOSITIONS

No. 12-0070/AF. U.S. v. Erica N. PERRY. CCA 37676. 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 convening authority's action dated 21 March 2012 is ambiguous in that it approves Appellant's conviction for the false-official-statement charge "and its specification" even though there were, in fact, two specifications of that charge of which Appellant was convicted. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AFCCA ERRED BY AFFIRMING APPELLANT'S TWO CONVICTIONS FOR MAKING FALSE OFFICIAL STATEMENTS WHEN THE CONVENING AUTHORITY ONLY APPROVED ONE OF THE SPECIFICATIONS AND DID NOT INDICATE WHICH ONE.

The decision of the United States Air Force Court of Criminal Appeals is set aside. In accordance with Rule for Courts-Martial 1107(g), the record of trial is returned to the Judge Advocate General of the Air Force for submission to the convening authority to withdraw the ambiguous action and substitute a corrected one. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867 (2006), will apply.

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0244/NA. U.S. v. Donald J. BROWN. CCA 201100516. Review granted on the following issue:

GENERALLY, OUTSIDE THE MILITARY JUSTICE SYSTEM, WITNESS ATTENDANTS MAY ACCOMPANY A CHILD ON THE WITNESS STAND IF THE PROSECUTION SHOWS GOOD CAUSE AND THE TRIAL JUDGE MAKES A FINDING OF COMPELLING OR SUBSTANTIAL NEED. HERE, WITHOUT GOOD CAUSE SHOWN AND WITHOUT FINDINGS OF COMPELLING OR SUBSTANTIAL NEED, THE MILITARY JUDGE ALLOWED A VICTIM ADVOCATE TO SERVE AS A WITNESS ATTENDANT FOR A SEVENTEEN-YEAR-OLD; THEN THE MILITARY JUDGE REFERRED TO THE WITNESS ATTENDANT AS THE COMPLAINANT'S "ADVOCATE" BEFORE THE MEMBERS. DID THIS PROCEDURE VIOLATE APPELLANT'S PRESUMPTION OF INNOCENCE AND RIGHT TO A FAIR TRIAL?

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

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

No briefs will be filed under Rule 25.

Thursday, March 14, 2013

APPEALS – SUMMARY DISPOSITIONS

No. 13-0069/AF. U.S. v. Derek S. CONLEY. CCA S32023. 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 there were only two conspiracies to steal and sell copper wire, not four. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United States v. Reliford, 27 M.J. 176 (C.M.A. 1988) (summary disposition). Therefore, to conform the pleadings to the proof, Specification 1 of Charge I should be consolidated with Specification 3 of Charge I and Specification 2 of Charge I should be consolidated with Specification 4 of Charge I. Although the conspiracy offenses are consolidated, we are satisfied that Appellant suffered no prejudice as to his sentence. Accordingly, it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL DEFENSE COUNSEL FAILED TO MOVE TO DISMISS SPECIFICATIONS 1 AND 2 OF CHARGE I ON MULTIPLICITY GROUNDS, OR IN THE ALTERNATIVE, ON UNREASONABLE MULTIPLICATION OF CHARGES GROUNDS.

Specification 1 of Charge I is consolidated with Specification 3 of Charge I as follows:

In that Airman First Class Derek S. Conley, United States Air Force, 11th Civil Engineer Squadron, Joint Base Andrews, Maryland, did, at or near Joint Base Andrews, Maryland, between on or about 5 October 2011 and on or about 6 October 2011, conspire with Airman Cody L. Bornt to commit offenses under the Uniform Code of Military Justice, to wit: larceny and sale, without proper authority, of copper wire, of a value of more than $500.00, the property of the United States, and in order to effect the object of the conspiracy the said Airman First Class Derek S. Conley and Airman Cody L. Bornt did steal copper wire from the 11th Civil Engineer Squadron, strip the insulation from the copper wire, and wrongfully sell the copper wire.

Specification 2 of Charge I is consolidated with Specification 4 of Charge I as follows:

In that Airman First Class Derek S. Conley, United States Air Force, 11th Civil Engineer Squadron, Joint Base Andrews, Maryland, did, at or near Joint Base Andrews, Maryland, between on or about 1 August 2011 and on or about 6 October 2011, conspire with Airman First Class Caleb J. Urban and Airman Steven J. Umstattd to commit offenses under the Uniform Code of Military Justice, to wit: larceny and sale, without proper authority, of copper wire, of a value of more than $500.00, the property of the United States, and in order to effect the object of the conspiracy the said Airman First Class Derek S. Conley and Airman First Class Caleb J. Urban and Airman Steven J. Umstattd did steal copper wire from the 11th Civil Engineer Squadron, strip insulation from the copper wire, and wrongfully sell the copper wire.

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to Charge I and its two consolidated specifications, the remaining findings, and the sentence.

No. 13-0104/MC. U.S. v. Dustin D. KISH. CCA 201100404. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and Appellant's motion to supplement the record, it is ordered that the motion to supplement the record is granted and that said petition is granted on the following issue:

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. HERE, THE MILITARY JUDGE TOOK OVER THE DIRECT EXAMINATION OF A KEY WITNESS, MADE ERRATIC COMMENTS ON THE RECORD, ALLOWED MEMBERS TO CALL OUT QUESTIONS IN OPEN COURT, AND MADE COMMENTS AFTER TRIAL DEMONSTRATING HIS BIAS AGAINST ACCUSED GENERALLY. DID THE MILITARY JUDGE'S ACTIONS PUT INTO DOUBT THE FAIRNESS AND IMPARTIALITY OF STAFF SERGEANT KISH'S COURT-MARTIAL?

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to 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 what, if any, statements the military judge made on or about June 21, 2012, at a Professional Military Education meeting with junior officers regarding the practice of military justice. 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) (2006). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.

ORDERS GRANTING PETITION FOR REVIEW

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

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

No briefs will be filed under Rule 25.

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

No briefs will be filed under Rule 25.

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

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

No briefs will be filed under Rule 25.

Friday, March 8, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0095/AR. U.S. v. Jeffrey W. SWARTZ. CCA 20091041. Review granted on the following issue:

WHETHER THE ARMY COURT ERRED WHEN IT FOUND THAT THE FAILURE TO PLEAD THE TERMINAL ELEMENTS IN APPELLANT'S CASE DID NOT RESULT IN MATERIAL PREJUDICE TO APPELLANT'S RIGHT TO NOTICE WHERE A DEFENSE PRETRIAL MOTION QUOTED THE TERMINAL ELEMENTS.

No briefs will be filed under Rule 25.

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

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

No briefs will be filed under Rule 25.

Tuesday, March 5, 2013

APPEALS - SUMMARY DISPOSITIONS

No. 13-0261/MC. U.S. v. Nicholas M. LEPINSKI. CCA 201200337. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

* It is directed that the promulgating order be corrected to reflect that Charge I is a violation of Article 81, UCMJ, and that Charge III is a violation of Article 112a, UCMJ. Further, it is noted that the decision of the United States Navy-Marine Corps Court of Criminal Appeals erroneously states that Appellant was sentenced on June 22, 2012, when he was actually sentenced on March 27, 2012.

Thursday, February 28, 2013

APPEALS - SUMMARY DISPOSITIONS

No. 13-0143/AR. U.S. v. Tremayne J. JONES. CCA 20100702. On consideration of the petition for grant of review of the decision of the Army Court of Criminal Appeals, we agree with Appellant's personally asserted contention that there was only one conspiracy to distribute marijuana. Appellant was convicted of two conspiracies to distribute some amount of marijuana, but the trial evidence shows that there was only one agreement between Appellant and his co-conspirator, then-SPC Valerie Guajardo, to distribute marijuana. Under these circumstances, the government only proved one conspiracy. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United States v. Reliford, 27 M.J. 176 (C.M.A. 1988) (summary disposition). Therefore, to conform the pleadings to the proof, the conspiracy specification of Additional Charge I should be consolidated with the conspiracy specification of Additional Charge II to become a single specification within Additional Charge I. Although the conspiracy offenses are consolidated, we are satisfied that Appellant suffered no prejudice as to his sentence. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER A SINGLE AGREEMENT TO COMMIT THE SAME CRIME ON MULTIPLE OCCASIONS IS LEGALLY SUFFICIENT TO SUPPORT FINDINGS OF GUILTY ON TWO SEPARATE CONSPIRACY CHARGES.

The conspiracy specification of Additional Charge I is consolidated with the conspiracy specification of Additional Charge II to allege the following specification under Additional Charge I:

ADDITIONAL CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 81.

THE SPECIFICATION: In that Specialist Tremayne J. Jones, U.S. Army, did at or near Fort Huachuca, AZ, between on or about 1 October 2009 and on or about 21 October 2009, conspire with Specialist Valerie C. Guajardo to commit an offense under the Uniform Code of Military Justice, to wit: wrongful distribution of some amount of marijuana, a schedule I controlled substance, and in order to effect the object of the conspiracy, the said Specialist Tremayne J. Jones and Specialist Valerie C. Guajardo, did wrongfully possess marijuana with the intent to distribute the said controlled substance on or about 6 and 21 October 2009.

The decision of the Army Court of Criminal Appeals is affirmed as to Charge I and its specification of possession with the intent to distribute 138 pounds of marijuana, Additional Charge I and its specification (consolidated), and Additional Charge III and its specification of possession with intent to distribute some amount of marijuana on or about 6 October 2009, and the sentence.

No. 13-0198/AR. U.S. v. Jayson L. STEAR. CCA 20100419. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed.*

* It is directed that the promulgating order be corrected to change the plea to Charge IV (redesignated as Charge II) from "None Entered" to "Not Guilty" and the finding from "None Entered" to "Guilty."

Monday, February 25, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0205/AR. U.S. v. Justin C. QUINN. CCA 20110159. Review granted on the following issue:

WHETHER APPELLANT'S CONVICTION UNDER ARTICLE 120(k), UCMJ, FOR ENGAGING IN SEXUAL RELATIONS IN THE PRESENCE OF OTHERS VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

No briefs will be filed under Rule 25.

Thursday, February 21, 2013

APPEALS - SUMMARY DISPOSITIONS

No. 12-0597/AR. U.S. v. Reginald D. HOLSEY. CCA 20100479. On further consideration of the granted issue, 71 M.J. 398 (C.A.A.F. 2012) (order granting review), the briefs of the parties, and oral argument, we note that both parties agree that the military judge abused his discretion by rejecting Appellant's guilty plea to unauthorized absence based on the mere possibility that a necessity defense existed in this case. Assuming, without deciding, that the military judge did abuse his discretion, we conclude that this error did not materially prejudice Appellant's substantial rights. Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a) (2006). Even if the military judge had accepted Appellant's guilty plea to unauthorized absence, the Government charged, was prepared to move forward on, and did in fact prove the greater offense of desertion. Furthermore, Appellant's attempt to plead guilty to unauthorized absence, his cooperation with the Government in returning to his unit, and his acceptance of responsibility were all matters in mitigation before the military judge for sentencing purposes. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.

Wednesday, February 20, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0229/AR. U.S. v. Roger S. DANES. CCA 20091072. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE ANY OF THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ, IN SPECIFICATIONS 2, 4, AND 6 OF CHARGE III REQUIRES THIS COURT TO SET ASIDE THOSE SPECIFICATIONS.

No briefs will be filed under Rule 25.

No. 12-0336/AR. U.S. v. Christopher L. COVINGTON. CCA 20090877. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE ANY OF THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ, IN SPECIFICATIONS 1, 2, AND 3 OF CHARGE IV REQUIRES THIS COURT TO SET ASIDE THOSE SPECIFICATIONS.

No briefs will be filed under Rule 25.

No. 13-0116/AR. U.S. v. Travis L. SMITH. CCA 20101040. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF A CONTESTED ARTICLE 134, UCMJ, OFFENSE AMOUNTED TO PLAIN ERROR THAT RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL CONSTITUTIONAL RIGHT TO NOTICE UNDER THE TOTALITY OF THE CIRCUMSTANCES.

No briefs will be filed under Rule 25.

Friday, February 8, 2013

INTERLOCUTORY ORDERS

No. 13-0129/NA. U.S. v. Marcus R. SMITH. CCA 201100433. GCMCO) 01-10 dated 10 February 2010 and GCMCO 01N-10, dated 1 March 2011. GCMCO 01-10 detailed 12 officer members, none of whom appeared at trial. GCMCO 01N-10 detailed 10 officer and enlisted members, each of whom appeared and were sworn. That order also relieved, for this case only, one officer member and two enlisted members who had been previously detailed by GCMCO 01K-10, dated 30 December 2010. The only orders included in the record are 01-10 and 01N-10. The record does not account for the absence of the members detailed by GCMCO 01-10. Accordingly, it is ordered that Appellee file an answer addressing the following specified issue:

Whether Appellant was materially prejudiced where 12 detailed members were absent.

Appellee's answer shall be filed with the Court within 20 days of the date of this order. Appellant may file a reply within 5 days after the filing of the answer.*

__________________________________

* It is noted that the military judge neglected to order certain portions of the record sealed under MRE 513. Accordingly, the Clerk is directed to seal pages 201-33.

Wednesday, February 6, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 13-5001/AR. U.S. v. Nicholas R. SCHELL. CCA 20110264. Review granted on the following issue:

WHETHER THE MILITARY JUDGE'S FAILURE TO DISCUSS WITH CROSS-APPELLANT THAT THE OFFENSE OF ATTEMPTED ENTICEMENT OF A MINOR REQUIRES A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THE UNDERLYING SUBSTANTIVE OFFENSE PROVIDES A SUBSTANTIAL BASIS IN LAW TO QUESTION CROSS-APPELLANT'S PLEA.

Briefs will be filed under Rule 25.

Tuesday, February 5, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Review granted on the following specified issue:

In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King's wrongful use of Oxymorphone, which is alleged to be an "offense" directly affecting the person of Ms. King. Must Ms. King's use of Oxymorphone be an "offense" to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

Briefs will be filed on the specified issue under Rule 25.

No. 13-0013/AR. U.S. v. Paul R. JASPER. CCA 20100112. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST APPELLANT.

II. WHETHER THE ARMY COURT ERRED WHEN IT CREATED A CONSTITUTIONAL "KNOWING" ELEMENT TO MILITARY RULE OF EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE DISCLOSURE TO BE DEEMED VOLUNTARY.

III. WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL RIGHT TO NOTICE.

IV. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN AS THE UCMJ DEFINES CHILD.

Briefs will be filed under rule 25.

No. 13-0124/MC. U.S. v. William C. DALTON. CCA 201100521. Review granted on the following issue:

IN UNITED STATES v. JONES, THIS COURT RETURNED TO THE STRICT ELEMENTS TEST FOR DETERMINING THE EXISTENCE OF LESSER-INCLUDED OFFENSES. MURDER AND VOLUNTARY MANSLAUGHTER REQUIRE THE INTENT TO KILL OR INFLICT GREAT BODILY HARM, BUT INVOLUNTARY MANSLAUGHTER REQUIRES CULPABLE NEGLIGENCE. UNDER JONES, IS VOLUNTARY MANSLAUGHTER A LESSER-INCLUDED OFFENSE OF EITHER MURDER OR VOLUNTARY MANSLAUGHTER?

Briefs will be filed under Rule 25.

CERTIFICATES FOR REVIEW FILED

No. 13-5004/CG. U.S., Appellant v. Justin R. WHITAKER, Appellee. CCA 1366. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on the following issue:

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF HARTMAN IN A CASE WHERE THE FACTS ELICITED DURING THE PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A SLEEPING VICTIM.

Monday, February 4, 2013

CERTIFICATES FOR REVIEW FILED

No. 10-5004/AF. U.S., Appellant v. Ryan D. HUMPHRIES, Appellee. CCA 37491. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE'S SENTENCE INAPPROPRIATELY SEVERE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE.

INTERLOCUTORY ORDERS

No. 12-0524/AR. U.S. v. Bruce L. KELLY. CCA 20090809. On consideration of the pleadings and record, it is ordered that both parties will file briefs on or before February 14, 2013, on the following specified issue:

WHETHER THE EXAMINATION OF THE CONTENTS OF APPELLANT'S COMPUTER WAS AN UNLAWFUL INSPECTION UNDER M.R.E. 313(b).

Monday, January 28, 2013

CERTIFICATES FOR REVIEW FILED

No. 13-5003/AR. U.S. v. Justin P. SWIFT. CCA 20100196. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

I. WHETHER, IN LIGHT OF UNITED STATES v. COTTON, THE ARMY COURT APPLIED THE INCORRECT TEST IN DETERMINING WHETHER THE FAILURE TO PLEAD THE TERMINAL ELEMENT PREJUDICED APPELLANT BY FAILING TO EVALUATE WHETHER THE EVIDENCE AS TO THE TERMINAL ELEMENT WAS OVERWHELMING.

II. WHETHER THE GOVERNMENT'S FAILURE TO PLEAD THE TERMINAL ELEMENT PREJUDICED APPELLANT.

Thursday, January 17, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0186/MC. U.S. v. Joseph B. SALYER. CCA 201200145. Review granted on the following issue:

UNDER UNITED STATES v. LEWIS, 63 M.J. 405 (C.A.A.F. 2006), A CASE IS DISMISSED WITH PREJUDICE WHEN UNLAWFUL COMMAND INFLUENCE RESULTS IN THE RECUSAL OF A MILITARY JUDGE. HERE, THE MILITARY JUDGE RECUSED HIMSELF BECAUSE HE FOUND THAT THE GOVERNMENT'S ACTIONS MADE IT IMPOSSIBLE FOR HIM TO REMAIN ON THE CASE. THE GOVERNMENT COMPLAINED TO HIS SUPERVISOR ABOUT A RULING, ACCESSED HIS SERVICE RECORD WITHOUT PERMISSION, AND WITH THIS INFORMATION, MOVED FOR HIS RECUSAL. SHOULD THIS CASE BE DISMISSED WITH PREJUDICE?

Briefs will be filed under Rule 25.

Thursday, January 10, 2013

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0061/AR. U.S. v. Ted C. SQUIRE. CCA 20091106. Review granted on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER WHEN THE MILITARY JUDGE PERMITTED TESTIMONIAL HEARSAY IN THE FORM OF SL'S STATEMENT TO A PHYSICIAN.

Briefs will be filed under Rule 25.

Thursday, December 20, 2012

CERTIFICATES FOR REVIEW FILED

No. 13-5002/CG. U.S. v. Wilson MEDINA. CCA 1325. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

I. WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF HARTMAN IN A CASE WHERE THE FACTS ELICITED DURING THE PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A RECENT, PRIOR TRAINER-TRAINEE RELATIONSHIP.

II. ASSUMING A HARTMAN INQUIRY IS REQUIRED, WHAT CONSTITUTES A SUFFICIENT COLLOQUY BETWEEN THE MILITARY JUDGE AND AN ACCUSED TO SUPPORT A PLEA OF GUILTY TO THE SPECIFICATION OF SODOMY UNDER THE STANDARD SET FORTH IN HARTMAN.

Monday, December 17, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0096/AR. U.S. v. Maurice S. WILSON. CCA 20110146. Review granted on the following issue:

WHETHER APPELLANT WAS DENIED HIS RIGHT TO A SPEEDY TRIAL IN VIOLATION OF ARTICLE 10, UCMJ, WHEN THE GOVERNMENT FAILED TO ACT WITH REASONABLE DILIGENCE IN BRINGING HIM TO TRIAL.

Briefs will be filed under Rule 25.

Thursday, November 29, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 13-0089/MC. U.S. v. Jorge L. GONZALEZ. CCA 201200164. 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 portion of the record and exhibits pertinent to an MRE 412 closed hearing. Accordingly, the Clerk is directed to seal Appellate Exhibits V and VI and pages 45-60 of the transcript.

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0025/MC. U.S. v. Allen J. SOLOMON. CCA 201100582. Review granted on the following issues:

I. IN A CASE INVOLVING SEXUAL MISCONDUCT COMMITTED AGAINST A MALE VICTIM, THE MILITARY JUDGE ADMITTED EXTENSIVE EVIDENCE UNDER M.R.E. 404(b) AND M.R.E. 413 THAT RELATED TO APPELLANT'S PREVIOUS ACQUITTAL FOR SEXUAL MISCONDUCT COMMITTED AGAINST TWO FEMALES, DESPITE ALIBI EVIDENCE THAT CONTRADICTED HIS INVOLVEMENT IN THE SEXUAL MISCONDUCT WITH THEM. DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN ADMITTING THE PRIOR SEXUAL MISCONDUCT EVIDENCE?

II. DURING THE TRIAL COUNSEL'S CLOSING AND REBUTTAL ARGUMENT, HE EXPRESSED PERSONAL OPINIONS ON THE EVIDENCE, VOUCHED FOR THE VERACITY OF THE GOVERNMENT WITNESSES, RIDICULED THE DEFENSE'S CASE THEORY, ARGUED FACTS NOT IN EVIDENCE, AND CLAIMED THAT THE DEFENSE CROSS-EXAMINATIONS WERE DISINGENUOUS. DID HIS IMPROPER CONDUCT CONSTITUTE PROSECUTORIAL MISCONDUCT AND DID IT MATERIALLY PREJUDICE APPELLANT'S SUBSTANTIAL RIGHTS?

Briefs will be filed under Rule 25.

Wednesday, November 28, 2012

APPEALS-SUMMARY DISPOSITIONS

No. 12-0693/AR. U.S. v. Bradley O. TEMPLE. CCA 20090883. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that in discussing the sufficiency of the evidence as to the rape conviction, the Army Court of Criminal Appeals commented that "we are hesitant to substitute our judgment for that of the panel members who heard and saw the testimony of the witnesses. We are even less likely to do so where there is other evidence such as the appellant's own incriminating statements, medical testimony, and scientific evidence which corroborates the victim's testimony." One might reasonably read the entire passage on evidentiary sufficiency and conclude that, taken as a whole, the reference to hesitating to substitute judgment for that of the members is nothing more than a recognition "that the trial court saw and heard the witnesses." Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 966(c) (2006). However, one might also reasonably question whether the Army Court of Criminal Appeals clearly understood that it could not defer to the members but was obliged to give a new, fresh look at the testimony, particularly where there were conflicts in the testimony. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT FAILED IN FULFILLING ITS STATUTORY DUTY PURSUANT TO ARTICLE 66, UNIFORM CODE OF MILITARY JUSTICE, WHEN IT FAILED TO INDEPENDENTLY WEIGH THE EVIDENCE AS REQUIRED BY THAT ARTICLE.

The record is returned to the Judge Advocate General of the Army for remand to the Army Court of Criminal Appeals to clarify whether a proper Article 66(c), UCMJ, review was conducted, and if not, to conduct such further review as may be necessary. See United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0166/AF. U.S. v. Harley T. LUSK. CCA S31624. Review granted on the following issues:

I. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE ADMISSION OF THE AFDTL COVER MEMORANDUM WAS HARMLESS AND THE ADMISSION OF THE DD FORM 2624 WAS NOT PLAIN ERROR.

II. WHETHER THE PLAIN ERROR ANALYSIS OF THE CHAIN OF CUSTODY DOCUMENTS IN UNITED STATES v. SWEENEY, 70 M.J. 296 (C.A.A.F. 2011) IS INAPPLICABLE IN THE PRESENT CASE BECAUSE THE JUDGE DIRECTLY INSTRUCTED THE MEMBERS THAT THEY MUST FIND THE SAMPLE TESTED CAME FROM APPELLANT BEFORE THEY COULD CONVICT HIM AND THE ONLY EVIDENCE PROVING THAT FACT WAS THE CERTIFICATIONS OF ANALYSTS WHO DID NOT TESTIFY AT TRIAL BUT KNEW THEY WERE ASSISTING THE GOVERNMENT WITH THE COLLECTION OF EVIDENCE.

III. WHETHER THE AFCCA ERRED WHEN IT HELD THAT THE PROBATIVE VALUE OF THE AFIP TEST SUBSTANTIALLY OUTWEIGHED ITS PREJUDICIAL EFFECT AND THAT ITS ADMISSION WITHOUT LIMITATION WAS HARMLESS ERROR.

No briefs will be filed under Rule 25.

Thursday, November 15, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 09-0441/AF. U.S. v. Joshua C. BLAZIER. CCA 36988. Review granted on the following issue:

WHETHER IT WAS HARMLESS BEYOND A REASONABLE DOUBT FOR THE MILITARY JUDGE TO ERRONEOUSLY ALLOW THE MILITARY PANEL TO CONSIDER HEARSAY FROM THE DRUG TESTING REPORTS AND DR. PAPA'S TESTIMONIAL REPETITION OF THAT HEARSAY.

No briefs will be filed under Rule 25.

Friday, November 9, 2012

CERTIFICATES FOR REVIEW FILED

No. 13-5001/AR. United States, Appellant v. Nicholas R. SCHELL, Appellee. CCA 20110264. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN, CONTRARY TO THE PLAIN LANGUAGE OF 18 U.S.C. § 2422(B), UNITED STATES v. BROOKS, 60 M.J. 495 (C.A.A.F. 2005), AND THE UNITED STATES COURTS OF APPEALS, THE SERVICE COURT HELD THAT "THE INTENT ELEMENT OF ATTEMPTED PERSUASION, INDUCEMENT, OR ENTICEMENT REQUIRES [THAT] THE ACCUSED. . .MUST INTEND THAT THE MINOR, ULTIMATELY, ACTUALLY ENGAGE IN ILLEGAL SEXUAL ACTIVITY AS A RESULT OF HIS PERSUASION, INDUCEMENT, OR ENTICEMENT."

II. WHETHER THE ACCUSED'S UNSWORN STATEMENT DURING THE SENTENCING PHASE OF TRIAL WAS INCONSISTENT WITH HIS GUILTY PLEA.

Monday, November 5, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 10-0685/AF. U.S. v. Kenneth J. BURTON, Jr. CCA S31632. Review granted on the following issue:

WHETHER THE ERRONEOUS ADMISSION OF THE COVER MEMORANDUM AND THE SPECIMEN CUSTODY DOCUMENT'S CERTIFICATION OF APPELLANT'S DRUG TESTING REPORT WAS HARMLESS BEYOND A REASONABLE DOUBT.

No briefs will be filed under Rule 25.

No. 12-0331/AR. U.S. v. Jamil V. WILLIAMS. CCA 20090619. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT THE MEMBERS TO MAKE FINDINGS ON THE FACTORS IDENTIFIED IN UNITED STATES v. MARCUM, 60 M.J. 198 (C.A.A.F. 2004).

Briefs will be filed under Rule 25.

No. 13-0007/AR. U.S. v. Walter S. COLEMAN. CCA 20100417. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO GRANT A DEFENSE MOTION FOR MISTRIAL BASED ON THE TRIAL COUNSEL'S FAILURE TO DISCLOSE THAT APPELLANT'S CO-ACCUSED TESTIFIED AGAINST HIM IN EXCHANGE FOR THE STAFF JUDGE ADVOCATE'S RECOMMENDATION THAT HIS SENTENCE BE REDUCED BY TWELVE MONTHS.

Briefs will be filed under Rule 25.

Wednesday, October 24, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0019/AF. U.S. v. Shannon L. DOLLAR. CCA S31607. Review granted on the following issue:

WHETHER THE ERRONEOUS ADMISSION OF COVER MEMORANDA AND CERTIFICATIONS BY LABORATORY CERTIFYING OFFICIALS ON TWO DD FORM 2624s WAS HARMLESS BEYOND A REASONABLE DOUBT IN A CASE WHERE THE TESTIFYING EXPERT HAD NO INVOLVEMENT IN THE TESTING OF APPELLANT'S SAMPLES AND QUOTED THE COVER MEMORANDA IN HIS TESTIMONY TO THE MEMBERS.

No briefs will be filed under Rule 25.

Tuesday, October 23, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 13-0016/AR. U.S. v. Daniel GASKINS. CCA 20080132. Review granted on the following issues:

I. WHETHER THE GOVERNMENT'S LOSS OF A SENTENCING EXHIBIT RENDERED THE RECORD OF TRIAL INCOMPLETE UNDER ARTICLE 54, UCMJ, RESULTING IN A JURISDICTIONAL LIMITATION ON THE SENTENCE TO ONE NO GREATER THAN THAT WHICH COULD BE APPROVED FOR A NON-VERBATIM RECORD.

II. WHETHER APPELLANT WAIVED THE FAILURE TO PLEAD THE TERMINAL ELEMENT OF THE ARTICLE 134 OFFENSES BY HIS FAILURE TO RAISE THAT ISSUE AT THE SENTENCE REHEARING, AND IF NOT, WHETHER THOSE CHARGES SHOULD BE DISMISSED BECAUSE THE GOVERNMENT FAILED TO PLEAD THE TERMINAL ELEMENT.

Briefs will be filed under Rule 25.

Wednesday, October 17, 2012

APPEALS-SUMMARY DISPOSITIONS

No. 12-0048/AR. U.S. v. Bobby D. JAMES. CCA 20081163. Review granted on the following issue:

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN CHARGE II AND ITS SPECIFICATION.

The decision of the United States Army Court of Criminal Appeals as to the Specification of Charge II and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charge and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries.

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0684/MC. U.S. v. Antonio M. CASTELLANO. CCA 201100248. Review granted on the following issue:

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

Briefs will be filed under Rule 25.

Monday, October 15, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0675/AR. U.S. v. Cassandra M. RILEY. CCA 20100084. Review granted on the following issues:

I. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HER DEFENSE COUNSEL FAILED TO INFORM HER THAT SHE WOULD HAVE TO REGISTER AS A SEX OFFENDER AFTER PLEADING GUILTY.

II. WHETHER, IN LIGHT OF UNITED STATES v. MILLER, 63 M.J. 452 (C.A.A.F. 2006), THERE IS A SUBSTANTIAL BASIS TO QUESTION APPELLANT'S GUILTY PLEA DUE TO THE MILITARY JUDGE'S FAILURE TO INQUIRE IF TRIAL DEFENSE COUNSEL INFORMED APPELLANT THAT THE OFFENSE TO WHICH SHE PLEADED GUILTY WOULD REQUIRE APPELLANT TO REGISTER AS A SEX OFFENDER.

Briefs will be filed under Rule 25.

Friday, October 12, 2012

INTERLOCUTORY ORDERS

No. 12-8027/AR. Center for Constitutional Rights, et al., Appellants v. United States and Colonel Denise Lind, Military Judge, Appellees. CCA 20120514. On consideration of the pleadings of the parties, and oral argument, held on October 10, 2012, it is ordered that the parties file supplemental briefs on the following additional issues:

I. WHETHER, IN LIGHT OF DENEDO v. UNITED STATES, 556 U.S. 904 (2009), CLINTON v. GOLDSMITH, 526 U.S. 529 (1999), UNITED STATES v. LOPEZ de VICTORIA, 66 M.J. 67 (C.A.A.F. 2008), ABC, INC. v. POWELL, 47 M.J. 363 (C.A.A.F. 1997), UNITED STATES v. HERSHEY, 20 M.J. 433 (C.M.A. 1985), ARTICLES 36, 66, AND 67, UCMJ, AND RULE FOR COURTS-MARTIAL 806, THIS COURT AND THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS HAVE SUBJECT-MATTER JURISDICTION OVER APPELLANTS' REQUEST FOR EXTRAORDINARY RELIEF.

II. WHETHER APPELLANTS, NON-PARTIES TO THE COURT-MARTIAL, HAVE STANDING IN THIS COURT OR THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS TO FILE A REQUEST FOR EXTRAORDINARY RELIEF IN THIS MATTER.

III. ASSUMING JURISDICTION, (1) IN THE CONTEXT OF THE RECORDS NOW AT ISSUE, WHICH OFFICIALS ARE LAWFULLY AUTHORIZED TO DIRECT PUBLIC RELEASE OF SUCH RECORDS, AND (2) TO WHAT EXTENT MUST APPELLANTS FIRST DEMONSTRATE THAT THEY HAVE MADE THEIR INITIAL REQUEST TO AN APPROPRIATE RECORDS CUSTODIAN AND HAD SUCH REQUEST DENIED.

Appellants' brief on these issues shall be filed within ten days of the date of this Order. Appellees' brief shall be filed within five days of the filing of Appellants' brief. Counsel for Private Bradley Manning, the accused at the pending court-martial, may also file a brief on the above issues within ten days of the date of this Order.

Thursday, October 11, 2012

INTERLOCUTORY ORDERS

No. 13-8006/AF. Patrick CARTER, Petitioner v. The United States, United States Air Force Court of Criminal Appeals and Commander, United States Naval Consolidated Brig, Miramar, California, Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus or, in the alternative, writ of mandamus, it is ordered that on or before October 22, 2012, Respondents show cause why the requested relief should not be granted on the following issue:

WHETHER PETITIONER IS ENTITLED TO EXTRAORDINARY RELIEF WHERE HIS CASE HAS BEEN PENDING BEFORE THE AIR FORCE COURT OF CRIMINAL APPEALS FOR MORE THAN 24 MONTHS AND THE AIR FORCE COURT HAS DENIED MULTIPLE MOTIONS FOR EXPEDITED DECISION.

Wednesday, September 19, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 12-0501/AF. U.S. v. Jessica E. MCFADDEN. CCA 37438. 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 FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER RIGHT TO REMAIN SILENT.

The decision of the United States Air Force Court of Criminal Appeals is vacated, and the case is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issue in light of United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012), without prejudice to raising other issues in a subsequent appeal.

No. 13-0004/AF. U.S. v. Corey R. LENKNER. CCA S31997. 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 below affirmed a sentence that included hard labor without confinement after the convening authority had not approved that punishment. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING HARD LABOR WITHOUT CONFINEMENT WHEN THE CONVENING AUTHORITY DID NOT APPROVE THAT PUNISHMENT. SEE ARTICLE 66(c), UCMJ.

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for a bad-conduct discharge, confinement for 30 days, and a reduction to the grade of E-1.

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0524/AR. U.S. v. Bruce L. KELLY. CCA 20090809. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO SUPPRESS EVIDENCE OF CHILD PORNOGRAPHY DISCOVERED ON APPELLANT'S PERSONAL COMPUTER IN THE COURSE OF AN UNREASONABLE SEARCH CONDUCTED TO FIND CONTRABAND AFTER APPELLANT WAS WOUNDED IN IRAQ AND MEDICALLY EVACUATED TO THE UNITED STATES.

II. WHETHER THE ARMY COURT ERRED IN CREATING A NEW EXCEPTION TO THE FOURTH AMENDMENT WHEN IT HELD THAT THE GOVERNMENT'S SEARCH OF APPELLANT'S PERSONAL COMPUTER WAS REASONABLE BECAUSE THE GOVERNMENT WAS NOT "CERTAIN" OR "ABSOLUTELY CLEAR" THAT IT WOULD BE RETURNED TO THE WOUNDED-WARRIOR APPELLANT.

Briefs will be filed under Rule 25.

No. 12-0604/NA. U.S. v. Richard R. MOTT. CCA 200900115. Review granted on the following issues:

I. A LACK OF MENTAL RESPONSIBILITY DEFENSE EXISTS WHEN A MENTALLY DISEASED ACCUSED CANNOT APPRECIATE THE WRONGFULNESS OF HIS CONDUCT. HERE, EXPERTS TESTIFIED THAT APPELLANT'S PARANOID SCHIZOPHRENIA AND SEVERE DELUSIONS CREATED HIS SUBJECTIVE BELIEF THAT STABBING THE VICTIM WAS JUSTIFIED. BUT THE MILITARY JUDGE AND NMCCA ADOPTED AN OBJECTIVE STANDARD FOR "WRONGFULNESS." WHAT IS THE APPROPRIATE STANDARD IN DETERMINING WHETHER AN ACCUSED CAN APPRECIATE THE WRONGFULNESS OF HIS CONDUCT?

II. UNDER THE FIFTH AMENDMENT, AN ACCUSED'S STATEMENT TO INVESTIGATORS IS ADMISSIBLE ONLY IF IT WAS OBTAINED WITH A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER WHERE THE ACCUSED UNDERSTANDS HIS RIGHTS AND THE CONSEQUENCES OF WAIVING THEM. HERE, EXPERT WITNESSES TESTIFIED THAT APPELLANT COULD NOT UNDERSTAND HIS RIGHTS OR THE CONSEQUENCES OF WAIVING THEM BECAUSE OF HIS SEVERE MENTAL DISEASE. DID THE MILITARY JUDGE ERR BY ADMITTING THE STATEMENT?

Briefs will be filed under Rule 25.

No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Review granted on the following issue:

WHETHER APPELLANT'S CONVICTION FOR INVOLUNTARY MANSLAUGHTER UNDER ARTICLE 119(b)(2), UCMJ, IS LEGALLY INSUFFICIENT BECAUSE (1) IN ACCORDANCE WITH UNITED STATES v. SARGENT, 18 M.J. 331 (C.M.A. 1982), APPELLANT'S DISTRIBUTION OF OXYMORPHONE WAS NOT A CRIME DIRECTLY AFFECTING THE PERSON UNDER ARTICLE 119(b)(2), AND (2) EVEN IF SO, CONGRESS DID NOT INTEND FOR ARTICLE 119(b)(2) TO COVER APPELLANT'S MISCONDUCT.

Briefs will be filed under Rule 25.

Friday, September 14, 2012

APPEALS-SUMMARY DISPOSITION

No. 12-0557/AR. U.S. v. Mac D. WARNER. CCA 20100398. 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 APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN CHARGE II, SPECIFICATIONS 4 AND 7.

The decision of the United States Army Court of Criminal Appeals as to Specifications 4 and 7 of Charge II and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charge and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries.

BAKER, Chief Judge, (dissenting):

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

No. 12-0596/AR. U.S. v. Michael E. ZELLOUS, Jr. CCA 20110098. 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 APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN SPECIFICATION 2 OF CHARGE VI.

The decision of the United States Army Court of Criminal Appeals as to Specification 2 of Charge VI and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries.

BAKER, Chief Judge, (dissenting):

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

No. 12-0617/MC. U.S. v. Hugo I. VALENTIN. CCA 201000683. 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 APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN CHARGE II, SPECIFICATIONS 1 AND 2.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals as to Specifications 1 and 2 of Charge II and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charge and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further reconsideration in light of Humphries.

BAKER, Chief Judge, (dissenting):

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

No. 12-0618/AF. U.S. v. Rudy A. BERTOLLI. CCA S31875. 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 APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN THE SPECIFICATION OF CHARGE II.

The decision of the United States Air Force Court of Criminal Appeals as to Charge II and its Specification, and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charge and specification is affirmed. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for further reconsideration in light of Humphries.

BAKER, Chief Judge, (dissenting):

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

Thursday, September 13, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0597/AR. U.S. v. Reginald D. HOLSEY. CCA 20100479. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE REJECTED APPELLANT'S PLEA BASED UPON A NECESSITY DEFENSE THAT IS NEITHER RECOGNIZED IN MILITARY COURTS NOR APPLICABLE TO APPELLANT'S CASE.

Briefs will be filed under Rule 25.

Tuesday, September 11, 2012

APPEALS-SUMMARY DISPOSITIONS

No. 12-0578/AR. U.S. v. Randy A. KRYSTYAN. CCA 20110014. Review granted on the following issue:

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN THE SPECIFICATION OF CHARGE III (UNLAWFUL ENTRY).

The portion of the decision of the United States Army Court of Criminal Appeals as to Charge III and its specification and the sentence are reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries.

BAKER, Chief Judge, (dissenting):

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

No. 12-0658/AR. U.S. v. John RON. CCA 20100599. Review granted on the following issue:

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN THE SPECIFICATION OF CHARGE II.

The portion of the decision of the United States Army Court of Criminal Appeals as to Charge II and its specification and the sentence are reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries.

BAKER, Chief Judge, (dissenting):

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

Thursday, September 6, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0555/NA. U.S. v. Heather D. LUBICH. CCA 201100378. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY OVERRULING DEFENSE COUNSEL'S FOUNDATION AND AUTHENTICATION OBJECTIONS AND ADMITTING COMPUTERIZED DATA EVIDENCE GATHERED BY AN UNNAMED NAVY-MARINE CORPS INTRANET (NMCI) ANALYST WHO USED AN UNIDENTIFIED PROCESS WITH UNKNOWN RELIABILITY TO COLLECT DATA RELATED TO APPELLANT'S NETWORK USER ACTIVITY.

Briefs will be filed under Rule 25.

Wednesday, August 8, 2012

ORDERS GRANTING PETITION FOR REVIEW

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

I. WHETHER APPELLANT'S CONVICTION FOR INDECENT ACTS MUST BE SET ASIDE BECAUSE THE MILITARY JUDGE ERRED IN INSTRUCTING THE JURY THAT INDECENT ACTS IS A LESSER INCLUDED OFFENSE OF AGGRAVATED SEXUAL ASSAULT.

II. WHETHER THE FINDING OF GUILTY TO ADULTERY MUST BE DISMISSED IN ACCORDANCE WITH RULE FOR COURTS-MARTIAL 907(b)(1) BECAUSE IT FAILS TO STATE AN OFFENSE.

Briefs will be filed under Rule 25.

Monday, August 6, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0486/AR. U.S. v. Jeremey C. CLIFTON. CCA 20091092. Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THE MILITARY JUDGE COMMITTED ERROR BY DENYING A PANEL MEMBER'S REQUEST TO CALL TWO ADDITIONAL WITNESSES FOR QUESTIONING, BUT FOUND THIS ERROR TO BE HARMLESS.

Briefs will be filed under Rule 25.

Monday, July 30, 2012

CERTIFICATES FOR REVIEW FILED

No. 12-5003/MC. U.S., Appellant v. Leslie D. PORTER, Appellee. CCA 201100188. 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 this date on the following issues:

I. THE ENTRIES ON PAGES 54 AND 154 OF PROSECUTION EXHIBIT 15 THAT NMCCA FOUND TO BE TESTIMONIAL HEARSAY WERE NEITHER MADE WITH THE PRIMARY PURPOSE OF PROVING PAST EVENTS RELEVANT TO LATER CRIMINAL PROSECUTIONS NOR FORMALIZED. DID THE LOWER COURT ERR BY FINDING THAT THESE PAGES WERE TESTIMONIAL STATEMENTS?

II. DID THE LOWER COURT ERR BY FINDING THAT THESE ENTRIES DEEMED TESTIMONIAL HEARSAY CONTRIBUTED TO APPELLANT'S CONVICTION WHERE THESE ENTRIES ONLY PROVIDED TECHNICAL DATA AND THE GOVERNMENT'S CASE WAS OTHERWISE STRONG?

Appellant will file a brief under Rule 24 in support of said certificate on or before the 29th day of August, 2012. Appellee will file an answer no later than 30 days after the filing of Appellant's brief. A reply to Appellee's answer may be filed by Appellant no later than 10 days after the filing of Appellee's answer.

Friday, July 13, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0398/AR. U.S. v. Ryan A. BOWERSOX. CCA 20100580. Review granted on the following issue:

WHETHER APPELLANT'S CONVICTION OF VIOLATING 18 U.S.C. 1466A(b)(1), AS IMPORTED THROUGH CLAUSE 3 OF ARTICLE 134, UCMJ, IS UNCONSTITUTIONAL AS APPLIED TO HIM BECAUSE THE MINORS DEPICTED IN THE MATERIAL AT ISSUE WERE NOT ACTUAL MINORS. SEE ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 234 (2002); UNITED STATES v. WHORLEY, 550 F.3d 326 (4th Cir. 2008).

Briefs will be file under Rule 25.

Thursday, July 12, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0522/AF. U.S. v. Adam G. COTE. CCA 37745. Review granted on the following issue:

WHETHER EVIDENCE FOUND ON APPELLANT'S COMPUTER SHOULD BE SUPPRESSED BECAUSE IT WAS FOUND PURSUANT TO A SEARCH THAT VIOLATED THE TERMS OF THE WARRANT.

Briefs will be filed under Rule 25.

Wednesday, July 11, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0353/MC. U.S. v. Lazzaric T. CALDWELL. CCA 201000557. Review granted on the following issue:

WHETHER AS A MATTER OF LAW A BONA FIDE SUICIDE ATTEMPT IS PUNISHABLE AS SELF-INJURY UNDER ARTICLE 134.

Briefs will be filed under Rule 25.

Tuesday, July 10, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 200800827. Review granted on the following issue:

WHETHER THE ERRONEOUS ADMISSION OF THE SPECIMEN CUSTODY DOCUMENT OF THE DRUG TESTING REPORT WAS HARMLESS BEYOND A REASONABLE DOUBT.

No briefs will be filed under Rule 25.

No. 11-0497/MC. U.S. v. Desmond J. HORTON. CCA 201000481. Review granted on the following issue:

WHETHER THE ERRONEOUS ADMISSION OF THE DRUG TESTING REPORT WAS HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

No. 12-0451/AF. U.S. v. Pablo P. IRIZARRY. CCA 37748. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED BY DENYING A DEFENSE MOTION TO SUPPRESS AN ITEM SEIZED BY APPELLANT'S FIRST SERGEANT DURING A WARRANTLESS ENTRY INTO APPELLANT'S OFF-BASE HOME.

Briefs will be filed under Rule 25.

No. 12-0496/NA. U.S. v. Dominic P. ALTIER. CCA 201000361. Review granted on the following issue:

WHETHER APPELLANT'S SENTENCE VIOLATES ARTICLE 63, UCMJ, AND R.C.M. 810(d) BECAUSE IT IS IN EXCESS OF AND MORE SEVERE THAN HIS ORIGINAL APPROVED COURT-MARTIAL SENTENCE.

A stay in the execution of Appellant's sentence is ordered until the Court rules on the substantive merits of the case.

Briefs will be filed under Rule 25.

Monday, July 2, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0408/MC. U.S. v. Lawrence G. HUTCHINS III. CCA 200800393. Review granted on the following issues:

I. WHETHER THE FINDINGS AND SENTENCE MUST BE DISMISSED WITH PREJUDICE WHERE UNLAWFUL COMMAND INFLUENCE FROM THE SECRETARY OF THE NAVY HAS UNDERMINED SUBSTANTIAL POST-TRIAL RIGHTS OF THE APPELLANT.

II. THE APPELLANT WAS INTERROGATED BY NCIS CONCERNING HIS INVOLVEMENT IN THE ALLEGED CRIMES, AND TERMINATED THE INTERVIEW BY INVOKING HIS RIGHT TO COUNSEL. APPELLANT WAS THEREAFTER HELD INCOMMUNICADO AND PLACED IN SOLITARY CONFINEMENT WHERE HE WAS DENIED THE ABILITY TO COMMUNICATE WITH A LAWYER OR ANY OTHER SOURCE OF ASSISTANCE. APPELLANT WAS HELD UNDER THESE CONDITIONS FOR 7 DAYS, WHEREUPON NCIS RE-APPROACHED APPELLANT AND COMMUNICATED WITH HIM REGARDING THEIR ONGOING INVESTIGATION. IN RESPONSE, APPELLANT WAIVED HIS PREVIOUSLY INVOKED RIGHT TO COUNSEL AND SUBSEQUENTLY PROVIDED NCIS A SWORN STATEMENT CONCERNING THE ALLEGED CRIMES. DID THE MILITARY JUDGE ERR WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS THE APPELLANT'S STATEMENT? SEE EDWARDS v. ARIZONA, 451 U.S. 477 (1981) AND UNITED STATES v. BRABANT, 29 M.J. 259 (C.M.A. 1989).

Briefs will be filed under Rule 25.

Wednesday, June 13, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0547/AR. U.S. v. Ivan D. GOINGS. CCA 20080602. Review granted on the following issues:

I. WHETHER LAWRENCE v. TEXAS EXTENDS A ZONE OF PRIVACY TO THE INDECENT ACT OF WHICH APPELLANT WAS CONVICTED.

II. WHETHER SPECIFICATION 6 OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

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

No. 12-0450/MC. U.S. v. Jonathan M. KILARSKI. CCA 201100329. Review granted on the following issues:

I. IN UNITED STATES v. SWEENEY, THIS COURT FOUND THAT THE DATA REVIEW SHEETS FROM A DRUG SCREENING LABORATORY WERE NOT PLAINLY AND OBVIOUSLY TESTIMONIAL. HERE, THE DEFENSE OBJECTED TO ALL HANDWRITTEN NOTATIONS IN THE LABORATORY DOCUMENTS AND WAS DENIED THE PRODUCTION OF THE FINAL CERTIFYING OFFICIAL WHO ALSO SIGNED THE CONFIRMATION TEST DATA REVIEW SHEET AFTER TWO POSITIVE SCREENINGS. ARE THE DATA REVIEW SHEETS TESTIMONIAL?

II. UNDER UNITED STATES v. SWEENEY, ADMISSION OF THE SPECIMEN CUSTODY DOCUMENT IS ERROR. HERE, THE LOWER COURT FOUND THAT ITS ADMISSION WAS HARMLESS BEYOND A REASONABLE DOUBT AND THAT A SURROGATE EXPERT FROM THE DRUG SCREENING LABORATORY TESTIFIED PROPERLY. DID THE LOWER COURT ERR?

No briefs will be filed under Rule 25.

Tuesday, May 29, 2012

CERTIFICATE FOR REVIEW FILED

No. 12-5002/AF. U.S., Appellant v. Ray A. VAZQUEZ, Appellee. CCA 37563. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLEE WAS NOT AFFORDED A FUNDAMENTALLY FAIR TRIAL, AS GUARANTEED BY MILITARY DUE PROCESS AND THE UCMJ, WHEN TWO REPLACEMENT COURT MEMBERS DETAILED AFTER TRIAL ON THE MERITS HAD BEGUN WERE PRESENTED RECORDED EVIDENCE PREVIOUSLY INTRODUCED BEFORE THE MEMBERS OF THE COURT IN COMPLIANCE WITH ARTICLE 29, UCMJ, AND R.C.M. 805(d)(1).

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO FIND WAIVER OR BY FAILING TO CONDUCT A PLAIN ERROR ANALYSIS; INSTEAD, THE COURT INCONGRUOUSLY FOUND THE ALLEGED VIOLATION OF APPELLEE'S RIGHT TO MILITARY DUE PROCESS WAS PER SE PREJUDICIAL DESPITE DECLARING THAT THE ERROR WAS NOT STRUCTURAL.

Tuesday, May 22, 2012
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0563/MC. U.S. v. Anthony J. SANDERS. CCA 201000522. Review granted on the following issue:

WHETHER THE ADMISSION INTO EVIDENCE OF THE NAVY DRUG SCREENING LABORATORY URINALYSIS DOCUMENTS VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

No briefs will be filed under Rule 25.

No. 12-0418/AF. U.S. v. Andrew P. HALPIN. CCA S31805. Review granted on the following issues:

I. WHETHER TRIAL COUNSEL'S IMPROPER SENTENCING ARGUMENT AMOUNTED TO PROSECUTORIAL MISCONDUCT.

II. WHETHER THE MILITARY JUDGE PREJUDICIALLY ERRED WHEN HE FAILED TO STOP TRIAL COUNSEL'S IMPROPER SENTENCING ARGUMENT OR ISSUE A CURATIVE INSTRUCTION.

III. WHETHER TRIAL DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE FAILED TO OBJECT TO TRIAL COUNSEL'S IMPROPER SENTENCING ARGUMENT.

Briefs will be filed under Rule 25.

Friday, May 18, 2012
ORDERS GRANTING PETITION FOR REVIEW

No. 12-0414/AR. U.S. v. David G. SPICER, Jr. CCA 20090608. Review granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY OF MAKING FALSE OFFICIAL STATEMENTS UNDER CHARGE I.

Briefs will be filed under Rule 25.

Friday, May 4, 2012
ORDERS GRANTING PETITION FOR REVIEW

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

I. WHETHER THE LOWER COURT MISAPPLIED UNITED STATES v. FOSLER AND UNITED STATES v. WATKINS IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATION HERE STATES AN OFFENSE.

And the following issue specified by the Court:

II. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION FOR MAKING A FALSE OFFICIAL STATEMENT, ARTICLE 107, UCMJ, UNDER THIS COURT'S DECISIONS IN UNITED STATES v. TEFFEAU, 58 M.J. 62 (C.A.A.F. 2002), AND UNITED STATES v. DAY, 66 M.J. 172 (C.A.A.F. 2008).

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

No. 12-0396/MC. U.S. v. Jason A. LUNSFORD, Jr. CCA 201100511. Review granted on the following issues:

I. TESTIMONIAL STATEMENTS CANNOT BE INTRODUCED ABSENT CONFRONTATION. HERE, APPELLANT OBJECTED TO THE CONFIRMATION AND SCREEN/RE-SCREEN WORKSHEETS ON CONFRONTATION GROUNDS BECAUSE: (1) NDSL'S MISSION IS TO PRODUCE ADMISSIBLE RESULTS; (2) THESE WORKSHEETS WERE CREATED AFTER APPELLANT'S SAMPLE WAS MARKED PRESUMPTIVELY POSITIVE; AND (3) THE WORKSHEETS ARE CREATED FOR AN EVIDENTIARY PURPOSE. DID THE LOWER COURT ERR BY HOLDING THAT THE WORKSHEETS WERE NON-TESTIMONIAL?

II. THE LOWER COURT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING, OVER APPELLANT'S OBJECTION ON CONFRONTATION GROUNDS, THE CHAIN OF CUSTODY DOCUMENTS. ARE THESE NON-MACHINE-GENERATED DOCUMENTS TESTIMONIAL?

III. THE LOWER COURT HELD THAT THE ERRONEOUS ADMISSION OF TWO PIECES OF TESTIMONIAL HEARSAY FOUND WITHIN THE SPECIMEN CUSTODY DOCUMENT WAS HARMLESS BEYOND A REASONABLE DOUBT. BUT IT MISAPPLIED THE SWEENEY FACTORS AND DID NOT CONSIDER THE BLAZIER II FACTORS IN ASSESSING PREJUDICE. DID THE LOWER COURT ERR IN HOLDING THAT THE TESTIMONIAL HEARSAY DID NOT CONTRIBUTE TO APPELLANT'S CONVICTION?

No briefs will be filed under Rule 25.

Tuesday, April 24, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0474/AR. U.S. v. Antony P. KNOWLAND. CCA 20071405. Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

No. 11-0476/AR. U.S. v. Berttran L. TILLER. CCA 20080438. Review granted on the following issue:

WHETHER THE CHARGE AND ITS SPECIFICATION FAIL TO STATE AN OFFENSE BECAUSE THE SPECIFICATION DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE "TERMINAL ELEMENT" AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No briefs will be filed under Rule 25.

Wednesday, April 18, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0486/NA. U.S. v. Akeem A. WILKINS. CCA 201000289. Review granted on the following issue:

WHETHER APPELLANT'S RIGHT TO DUE PROCESS OF LAW WAS VIOLATED WHEN HE WAS CONVICTED FOR ABUSIVE SEXUAL CONTACT AS A LESSER-INCLUDED OFFENSE OF AGGRAVATED SEXUAL ASSAULT.

Briefs will be filed under Rule 25.

No. 12-0282/AR. U.S. v. Michael A. GARNER. CCA 20080401. Review granted on the following issues:

WHETHER THE MILITARY JUDGE ERRED WHEN SHE FAILED TO GIVE THE NECESSARY INSTRUCTIONS ON SENTENCE RECONSIDERATION.

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT SPECIFICATION 1 OF CHARGE II STATES AN OFFENSE EVEN THOUGH THE GOVERNMENT DID NOT ALLEGE THE TERMINAL ELEMENT, EITHER EXPRESSLY OR BY NECESSARY IMPLICATION, AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

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

No. 12-5001/AF. U.S. v. Daniel J. DATAVS. CCA 37537. Review granted on the following issue:

WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBTAIN AN EXPERT CONSULTANT IN THE FIELD OF SEXUAL ASSAULT EXAMINATIONS, FAILED TO MAKE CHALLENGES FOR CAUSE AGAINST TWO PANEL MEMBERS WHO WERE BASE VICTIM ADVOCATES, AND FAILED TO PROPERLY IMPEACH S.M.R. USING HER PERSONAL TELEPHONE RECORDS.

Briefs will be filed under Rule 25.

Friday, April 6, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0611/AR. U.S. v. Luis F. DIETZ. CCA 20081031. Review granted on the following issue:

WHETHER THE ACCA ERRED IN ITS SUMMARY DISPOSITION ON REMAND, WHEN THERE WAS NO TERMINAL ELEMENT AS REQUIRED BY ARTICLE 134 (EITHER EXPRESSED OR BY NECESSARY IMPLICATION), AND WHEN THE UNITED STATES CONSTITUTION IN THE FIFTH AND SIXTH AMENDMENTS GUARANTEES A CRIMINAL DEFENDANT THE RIGHT TO BE GIVEN SUFFICIENT NOTICE OF THE CRIMINAL CHARGES AGAINST HIM, AND THIS LACK OF TERMINAL ELEMENT CAUSED UNDUE PREJUDICE AND SUBSTANTIAL HARM TO THE APPELLANT.

No briefs will be filed under Rule 25.

No. 12-0264/AR. U.S. v. Robert O. BOZEMAN. CCA 20080711. Review granted on the following issue:

WHEN THE GOVERNMENT FAILS TO ALLEGE AN ARTICLE 134 TERMINAL ELEMENT, THE CHARGE FAILS TO STATE AN OFFENSE UNLESS THE TERMINAL ELEMENT CAN BE "NECESSARILY IMPLIED" FROM THE LANGUAGE OF THE SPECIFICATION. THE MISSING TERMINAL ELEMENT FROM THE SPECIFICATIONS OF CHARGE III CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE SPECIFICATIONS FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

Friday, March 23, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0313/MC. U.S. v. Andrew D. TEARMAN. CCA 201100195. Review granted on the following issues:

I. THE LOWER COURT HELD THAT THE ADMISSION, OVER APPELLANT'S OBJECTION, OF TWO PIECES OF TESTIMONIAL HEARSAY FOUND WITHIN THE DD FORM 2624 WAS HARMLESS ERROR BEYOND A REASONABLE DOUBT. BUT IT MISAPPLIED THE SWEENEY FACTORS AND DID NOT CONSIDER THE BLAZIER II FACTORS IN ASSESSING PREJUDICE. DID THE LOWER COURT ERR IN HOLDING THAT THE TESTIMONIAL HEARSAY DID NOT CONTRIBUTE TO APPELLANT'S CONVICTION?

II. THE LOWER COURT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING, OVER APPELLANT'S OBJECTION, THE CHAIN-OF-CUSTODY DOCUMENTS AND INTERNAL REVIEW WORKSHEETS BECAUSE THEY WERE NON-TESTIMONIAL. ARE THESE NON-MACHINE GENERATED DOCUMENTS AND WORKSHEETS TESTIMONIAL?

Briefs will be filed under Rule 25.

Tuesday, February 21, 2012

INTERLOCUTORY ORDERS

No. 12-0206/AR. U.S. v. Tommie L. OLDS. CCA 20091044. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the pleadings filed in this case, it is ordered that Appellee file a substantive answer on the following issues raised by Appellant:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR WHEN SHE FAILED TO INSTRUCT THE PANEL ON THE LESSER INCLUDED OFFENSE OF ASSAULT CONSUMMATED BY A BATTERY.

WHETHER THE MILITARY JUDGE ERRED WHEN SHE EXCLUDED EVIDENCE OF A WITNESS'S PRIOR SHOPLIFTING CONVICTION.

and on the following specified issue:

WHETHER IT WAS INEFFECTIVE ASSISTANCE OF COUNSEL NOT TO RAISE THE LESSER INCLUDED OFFENSE ISSUE BEFORE THE COURT OF CRIMINAL APPEALS IN LIGHT OF UNITED STATES v. BONNER, 70 M.J. 1 (C.A.A.F. 2011).

The answer of Appellee to the above issues shall be filed on or before March 13, 2012. Appellant shall file a reply within 20 days of the filing of Appellee's answer.

Monday, February 13, 2012

CERTIFICATES FOR REVIEW FILED

No. 12-5001/AF. U.S., Appellant v. Robert C. BRISSETTE, Appellee. CCA 37537. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief were filed under Rule 22 on the following issues:

I. WHETHER THE PRE-AMENDED CHARGE AND SPECIFICATION FOR INDECENT ACTS WITH A CHILD IN VIOLATION OF ARTICLE 134, UCMJ, NECESSARILY IMPLIED THE TERMINAL ELEMENT AND, THEREFORE, THE AMENDMENT TO THE SPECIFICATION CONSTITUTED A MINOR CHANGE.

II. WHETHER APPELLEE PROPERLY CHALLENGED THE LEGAL SUFFICIENCY OF THE CHARGE AND SPECIFICATION FOR INDECENT ACTS WITH A CHILD IN VIOLATION OF ARTICLE 134, UCMJ, WHEN HE DID NOT MOVE TO DISMISS THE SPECIFICATION FOR FAILING TO STATE AN OFFENSE AT TRIAL AND PRESERVE A NARROW INTERPRETATION OF THE TEXT OF THE SPECIFICATION PURSUANT TO UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Appellee will file an answer under Rule 22(b)(1) on or before February 23, 2012.

Friday, February 10, 2012

CERTIFICATES FOR REVIEW FILED

No. 12-5001/AF. U.S., Appellant v. Daniel J. DATAVS, Appellee. CCA 37537. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS INCORRECTLY APPLIED THE STANDARD OF LAW UNDER STRICKLAND v. WASHINGTON, 466 U.S. 668 (1984) AND HARRINGTON v. RICHTER, 131 S.CT. 770 (2011), WHEN EVALUATING WHETHER TRIAL DEFENSE COUNSEL WAS INEFFECTIVE FOR NOT SEEKING EXPERT ASSISTANCE DURING TRIAL AFTER THE GOVERNMENT'S EXPERT WITNESS TESTIFIED.