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NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 9/22/16)

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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.




Tuesday, September 20, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0704/AR. U.S. v. Dwight Harris, Jr. 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 on the following issue:

 

WHETHER, IN LIGHT OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016), THE MILITARY JUDGE ERRED IN APPLYING MRE 414 TO CHARGED CONDUCT TO SHOW APPELLANT'S PROPENSITY TO COMMIT THE CHARGED CONDUCT.

 

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 consideration of the granted issue.




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.




Monday, August 8, 2016

Appeals - Summary Dispositions

 

No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. On further consideration of the granted issue, 75 M.J. 236 (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 that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

 

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. May 6, 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 that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

 

No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. June 22, 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 that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).




Tuesday, July 26, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0615/AF. U.S. v. Zavian M.T. Addison. CCA S32287. 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 IS ENTITLED TO NEW POST-TRIAL PROCESSING BECAUSE THE ADDENDUM TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION FAILED TO CORRECT AN ERROR IN APPELLANT'S CLEMENCY SUBMISSION.

 

The decision of the United States Air Force Court of Criminal Appeals and the action of the Convening Authority are set aside. The record is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority for a new Staff Judge Advocate's Recommendation and Convening Authority's action. Appellant will be represented by a new and conflict-free trial defense counsel.




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 20, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0605/AR. U.S. v. Mark V. Odie. CCA 20130122. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is noted that in summarizing Appellant's convictions in its opinion, the United States Army Court of Criminal Appeals incorrectly stated that Appellant was convicted of obstruction of justice and two specifications of communicating a threat. In fact, Appellant was not convicted of obstruction of justice, and inter alia, he was convicted of three specifications of communicating a threat.




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

Appeals - Summary Dispositions

 

No. 16-0464/AR. U.S. v. Jonathan D. Perez. CCA 20140117. 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 Court of Criminal Appeals stated that Appellant had been sentenced to a bad-conduct discharge, confinement for four months, and reduction to the grade of E-1. It then affirmed that sentence after reassessment. In fact, the sentence adjudged by the military judge at trial and approved by the convening authority did not include a reduction. Accordingly, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for confinement for four months and a bad-conduct discharge.

 

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.




Wednesday, June 22, 2016

Orders Granting Petition for Review

 

No. 16-0416/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 MILITARY JUDGE ABUSED HIS DISCRETION BY GIVING A MILITARY RULE OF EVIDENCE 413 INSTRUCTION TO THE PANEL BECAUSE NO EVIDENCE HAD BEEN ADMITTED BY THE MILITARY JUDGE FOR 413 PURPOSES.

 

No briefs will be filed under Rule 25.




Wednesday, June 15, 2016

Miscellaneous Docket - Summary Dispositions

 

No. 16-0597/AR. In re John L. Cockerham, Petitioner. Notice is hereby given that a petition for extraordinary relief under Rule 27(a) was mailed to the Court on May 23, 2016, and placed on the docket this date. On consideration thereof, it is ordered that said petition is hereby dismissed for lack of jurisdiction.




Friday, June 10, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0362/AR. U.S. v. Randy L. Simpson, Jr. CCA 20140126. 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 ACCEPTING THE GUILTY PLEA TO THE SPECIFICATION OF ADDITIONAL CHARGE I BY FAILING TO ESTABLISH A SUFFICIENT FACTUAL BASIS THAT CFNA WAS THE LARCENY VICTIM.

 

The decision of the United States Army Court of Criminal Appeals is vacated and the record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals to consider the granted issue in light of United States v. Williams, 75 M.J. 129 (C.A.A.F. 2016). Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. 867 (2012) will apply.

 

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.




Thursday, June 9, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0485/AR. U.S. v. Samuel J. Chance. CCA 20140072. 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 order a portion of the record sealed under MRE 412. Accordingly, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* The Clerk of Court is ordered to seal pages 11-13 of the record of trial.

 

Appeals - Summary Dispositions

 

No. 16-0184/AR. U.S. v. Bradley T. Fontenelle. CCA 20140424. On further consideration of the granted issue, __ M.J .__ (Daily Journal March 17, 2016), and the briefs of the parties, we note that the offense of which Appellant was convicted did not include the word "indecent" and thus was a simple disorder punishable by a maximum sentence of four months of confinement and forfeiture of two-thirds pay per month for four months. See United States v. Beaty, 70 M.J. 39 (C.A.A.F. 2011). Therefore, the sentence of a bad-conduct discharge awarded by the military judge was unauthorized. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed as to the findings but reversed as to the sentence. The record of trial is returned to the Judge Advocate General of the Army for remand to an appropriate convening authority who may reassess the sentence using the factors provided in United States v. Winkelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) or order a rehearing on the sentence.




Wednesday, June 8, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0436/AR. U.S. v. Brian N. Schwisow. CCA 20150720. Appellee's motion for leave to file an answer in excess of the limits of Rule 21, and Appellant's motion to withdraw the petition for grant of review without prejudice, it is ordered that said motion to withdraw the petition for grant of review without prejudice is hereby granted, and said motion for leave to file an answer in excess of the limits of Rule 21 is hereby denied as moot.

 

No. 16-0549/AF. Patrick Carter, Petitioner v. United States Air Force Court of Criminal Appeals, Respondent. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that the United States Air Force Court of Criminal Appeals either decide the case within 45 days of the date of this order or provide the Court with an explanation of the need for further consideration.

 

Miscellaneous Docket - Summary Dispositions

 

No. 16-0581/AR. Ronald Gray, Appellant v. Erica Nelson, Colonel, U.S. Army, Commandant, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, and United States, Appellees. CCA 20160086. Notice is hereby given that a pleading styled as "Mandatory Review Case," which this Court construes as a writ-appeal petition of the decision of the United States Army Court of Criminal Appeals on a petition for extraordinary relief in the nature of a writ of error coram nobis, was filed on May 23, 2016, and placed on the docket this date. On consideration thereof, it is ordered that said writ-appeal petition is hereby denied without prejudice to re-filing after the United States District Court for the District of Kansas rules on the pending petition for writ of habeas corpus.




Wednesday, June 1, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0411/AR. U.S. v. Edward J. Mitchell II. CCA 20150776. On consideration of Appellee's motion for leave to file an answer in excess of the limits of Rule 21 and Appellant's motion to withdraw the petition for grant of review without prejudice, it is ordered that said motion to withdraw petition for grant of review without prejudice is hereby granted, and said motion to file an answer in excess of the limits of Rule 21 is hereby denied as moot.




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.




Wednesday, May 25, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0408/CG. U.S. v. Christopher C. Bush. CCA 1397. 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, and the decision of the United States Coast Guard Court of Criminal Appeals is affirmed.*

 

* It is noted that the CCA decision erroneously stated that Appellant was convicted of "one specification of rape" in violation of Article 120, UCMJ. Appellant was charged with and convicted of sexual assault under Article 120, not rape.

 

No. 16-0468/AR. U.S. v. James H. Lee. CCA 20140309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant's allegations that his trial defense counsel was ineffective in failing to identify and investigate potential mitigation evidence for the presentencing hearing. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO IDENTIFY AND INVESTIGATE POTENTIAL MITIGATION EVIDENCE.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals shall order a hearing pursuant to DuBay. Once the necessary information is obtained, the court will complete its Article 66(c),Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2012), review. Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2012), shall apply.




Friday, May 20, 2016

Appeals - Summary Dispositions

 

No. 16-0357/AR. U.S. v. Derick D. Granderson. CCA 20140178. On consideration of the granted issue, __M.J.__ (Daily Journal March 29, 2016), and in view of United States v. Caldwell, __ M.J.__ (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




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?

 

Briefs will be filed under Rule 25.




Friday, May 13, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0309/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, and in light of the conflicting affidavits between Appellant and his trial defense counsel, we conclude that the Court of Criminal Appeals erred when it failed to order a factfinding hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to determine the facts surrounding Appellant's allegations that his trial defense counsel were ineffective in failing to investigate alleged unlawful command influence in the preferral process. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL BY HIS COUNSEL FAILING TO INVESTIGATE ALLEGED UNLAWFUL COMMAND INFLUENCE IN THE PREFERRAL PROCESS.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals shall order a hearing pursuant to DuBay. Once the necessary information is obtained, the court will complete its Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2012), review. Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2012), shall apply.




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.




Thursday, May 5, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0433/AR. U.S. v. James E. Hopkins. CCA 20140913. 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 personally asserted issue:

 

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. The Court of Criminal Appeals will obtain affidavits from civilian and military trial defense counsel that respond to Appellant's allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2012), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a 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.




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.

 

No. 16-0369/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 on the following issue personally asserted by appellant:

 

WHETHER THE MILITARY JUDGE UNCONSTITUTIONALLY APPLIED MRE 413 BY DETERMINING THAT A FACTFINDER COULD FIND BY A PREPONDERANCE OF THE EVIDENCE THAT APPELLANT COMMITTED EACH OF THE PRIOR ACTS ALLEGED IN THE THREE SPECIFICATIONS.

 

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

Appeals - Summary Dispositions

 

No. 15-0664/AF. U.S. v. Sean J. Chero. CCA 38470. On further consideration of the granted issue, 75 M.J. 20 (C.A.A.F. 2016), and in light of United States v. Busch, 75 M.J. 87 (C.A.A.F. 2016), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed as to the findings but reversed as to the sentence. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for further consideration in light of Busch.

 

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 19, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0334/AR. U.S. v. Hunter J. Israel. CCA 20131054. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is noted that the court below acted on the findings and reassessed the sentence, but did not expressly act to affirm or set aside the sentence. This has resulted in having a case before us for review that does not have a complete decision on the findings and the 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 sentence is ambiguous, the appropriate remedy is a remand for clarification. Accordingly, it is ordered that the record of trial is returned to the Judge Advocate General of the Army for remand to the United States Army Court of Criminal Appeals for clarification of the affirmed sentence.




Monday, April 18, 2016

Appeals - Summary Dispositions

 

No. 16-0238/AR. U.S. v. Christopher L. Goffe. CCA 20120201. On consideration of the granted issue, __M.J.__ (Daily Journal January 21, 2016), the briefs of the parties, and in view of United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.




Wednesday, April 13, 2016

Miscellaneous Docket Orders

 

No. 16-0398/MC. EV, Appellant v. E.H Robinson, Military Judge, Appellee, and David A. Martinez, Real Party in Interest. CCA 201600057. Upon consideration of the writ-appeal petition of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae, and the motion for a stay of trial proceedings, it is ordered:

 

That the motion of Protect Our Defenders to file a brief in support of the writ-appeal petition as amicus curiae is granted;

 

That oral argument will be held on May 11, 2016, following the hearing in Howell v. United States, on the following three assigned issues:

 

I. WHETHER THE NMCCA ERRED BY ERRONEOUSLY DENYING EV'S PETITION FOR A WRIT OF MANDAMUS DESPITE EV'S CLEAR AND INDISPUTABLE RIGHT TO THE ISSUANCE OF A WRIT.

 

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ERRONEOUSLY RULING THE DEFENSE SATISFIED EACH PRONG OF MIL. R. EVID. 513(e)(3) AND BY RULING THAT MIL. R. EVID. 513(d)(5) APPLIED.

 

III. WHETHER THE MILITARY JUDGE VIOLATED EV'S ARTICLE 6b RIGHTS BY ERRONEOUSLY APPLYING IMPERMISSIBLE EXCEPTIONS AND DENYING EV A RIGHT TO RECEIVE NOTICE AND TO BE HEARD.

 

That oral argument will also be held on the following specified issue:

 

IV. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO EXERCISE JURISDICTION OVER DECISIONS OF THE COURTS OF CRIMINAL APPEALS RENDERED PURSUANT TO ARTICLE 6b, UCMJ.

 

That Appellant will file a brief on the specified issue within 5 days of the date of this Order. Appellee and the Real Party in Interest will file answers within 5 days of the filing of Appellant's brief. Appellant may file a reply within 2 days of the filing of the said answers;

 

That the motion for a stay of trial proceedings, incorporated in the writ-appeal petition, is denied because Rule 30(d), Rules of Practice and Procedure, prohibits a motion from being incorporated in any other pleading.




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.




Monday, April 11, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0381/AR. U.S. v. Tequan R. Bowman. CCA 20130707. The petition for grant of review of the decision of the United States Army Court of Criminal Appeals is granted and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be changed to reflect that Appellant was sentenced to confinement for 9 months.




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.




Tuesday, March 29, 2016

Orders Granting Petition for Review

 

No. 16-0357/AR. U.S. v. Derick D. Granderson. CCA 20140178. 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 ERRONEOUSLY USED A NEGLIGENCE STANDARD TO FIND APPELLANT GUILTY OF MALTREATMENT UNDER ARTICLE 93, UCMJ.

 

No 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.




Thursday, March 17, 2016

Orders Granting Petition for Review

 

No. 16-0184/AR. U.S. v. Bradley T. Fontenelle. CCA 20140424. 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 INSUFFICIENT TO SUSTAIN A CONVICTION FOR THE SPECIFICATION OF THE ADDITIONAL CHARGE IN THAT APPELLANT'S COMMUNICATIONS DO NOT CONSTITUTE "INDECENT LANGUAGE."

 

Briefs will be filed under Rule 25.




Monday, February 29, 2016

Certificates for Review Filed

 

No. 16-0367/MC. United States, Appellant/Cross-Appellee v. Stephen P. Howell, Appellee/Cross-Appellant. Notice is hereby given that a certificate of 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:

 

WHETHER THE GOVERNMENT MAY INVOKE ARTICLE 66, UCMJ, AS THE JURISDICTIONAL BASIS FOR AN EXTRAORDINARY WRIT PURSUANT TO THE ALL WRITS ACT WHEN THE ISSUE IS NOT INCLUDED AS A BASIS FOR GOVERNMENT APPEAL UNDER ARTICLE 62, UCMJ?

 

WHETHER THE MILITARY JUDGE, IN FINDING AN ARTICLE 13, UCMJ, VIOLATION, EXCEEDED HIS AUTHORITY BY REJECTING APPLICABLE HOLDINGS OF THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT AND THE COURT OF FEDERAL CLAIMS, IN ORDER TO CONCLUDE THAT APPELLEE WAS ENTITLED TO PAY AT THE E-6 RATE PENDING HIS REHEARING?

 

WHETHER THE LOWER COURT ERRED BY CONCLUDING THAT THE SETTING ASIDE OF APPELLEE'S FINDINGS AND SENTENCE RENDERED HIS REDUCTION TO PAY GRADE E-1 PROSPECTIVELY UNEXECUTED PENDING REHEARING?

 

IF A MEMBER'S ORIGINAL SENTENCE INCLUDES AN EXECUTED REDUCTION TO PAY GRADE E-1 AND THE SENTENCE IS SUBSEQUENTLY SET ASIDE, DOES THE ACTION OF PAYING THAT MEMBER AT THE E-1 RATE PENDING REHEARING CONSTITUTE ILLEGAL PRETRIAL PUNISHMENT IN THE ABSENCE OF ANY PUNITIVE INTENT?




Tuesday, February 16, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0233/AR. U.S. v. Michael J. Moody. CCA 20121083. 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 record reflects that the court-martial was called to order pursuant to the following orders:

 

Court-Martial Convening Order Number 1 dated 7 February 2012, superseded by Order Number 3, dated 4 April 2012, as amended by Order Number 11, dated 21 June 2012, as superseded by Order Number 14, dated 12 July 2012, as amended by Order Number 18, dated 20 September 2012, and as amended by Order Number 25, dated 26 November 2012.

 

Major Krystal G. Sessoms was detailed to the court-martial by Order Number 14 but was removed from the court-martial by Order Number 18. With that set of orders in the record, the members appeared and were sworn. Major Sessoms did not appear. After numerous challenges were granted, the court fell below quorum.

 

When the case was called again two months later, the trial counsel announced that Order Number 25 had been signed detailing more members to the court-martial. The newly detailed members each appeared and were sworn. However, without having been detailed anew, Major Sessoms also appeared, was sworn, and heard the case.

 

Accordingly, it is ordered that said petition is hereby granted on the following specified issue:

 

WHETHER JURISDICTIONAL ERROR OCCURRED WHEN MAJOR SESSOMS WAS DETAILED, LATER REMOVED BY VICING ORDER, BUT ULTIMATELY WAS SWORN AND HEARD THE CASE.

 

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 a new review and consideration of the specified issue under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c) (2012).

 

Orders Granting Petition for Review

 

No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. 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 ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION "TO USE THE CHARGED SEXUAL OFFENSES AS PROPENSITY EVIDENCE FOR EACH OTHER UNDER MRE 413 AND MRE 414."

 

Briefs will be filed under Rule 25.




Thursday, January 21, 2016

Orders Granting Petition for Review

 

No. 16-0238/AR. U.S. v. Christopher L. Goffe. CCA 20120201. 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 IN INSTRUCTING THE PANEL ON THE SPECIFICATION OF ADDITIONAL CHARGE IV BECAUSE, WHEN SILENT, A STATUTE MUST BE READ TO REQUIRE MORE THAN NEGLIGENCE AS INSTRUCTED. SEE ELONIS v. UNITED STATES, 575 U.S. ___, 135 S. CT. 2001 (2015).

 

Briefs will be filed under Rule 25.




Wednesday, January 20, 2016

Interlocutory Orders

 

No. 16-0053/AF. U.S. v. Shelby L. Williams. CCA 38454. On consideration of Appellee's motion to dismiss the case because the certificate of review was not timely filed, and the government's opposition thereto, it is ordered that the parties shall present oral argument on the following issue:

 

WHETHER THE UNITED STATES MAY FILE SUCCESSIVE MOTIONS FOR RECONSIDERATION OF A DECISION OF THE COURT OF CRIMINAL APPEALS, AND THEREBY EFFECTIVELY EXTEND THE 60-DAY FILING DEADLINE FOR A CERTIFICATE OF REVIEW OF SUCH DECISION. SEE CAAF RULES OF PRACTICE AND PROCEDURE 19(b)(3); 22(b)(3); AND 34(a).

 

The date and time of oral argument will be provided to counsel in a separate order.




Tuesday, January 19, 2016

Orders Granting Petition for Review

 

No. 15-0767/AR. U.S. v. Kendell Hills. CCA 20130833. 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 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.

 

Briefs will be filed under Rule 25.

 

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647. 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:

 

WHERE THE ARMY COURT OF CRIMINAL APPEALS FOUND EVIDENCE WAS ADMITTED IN VIOLATION OF APPELLANT'S ARTICLE 31(b), UCMJ, RIGHTS, DID THE COURT ERR IN APPLYING THE KERR PREJUDICE TEST AS OPPOSED TO THE BRISBANE HARMLESS BEYOND A REASONABLE DOUBT TEST?

 

Briefs will be filed under Rule 25.




Wednesday, December 16, 2015

Certificates for Review Filed

 

No. 16-0223/MC. U.S. v. Monifa J. Sterling. CCA 201400150. 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 16th day of December, 2015, on the following issues:

 

I. DID APPELLANT'S FAILURE TO FOLLOW AN INSTRUCTION ON THE ACCOMMODATION OF RELIGIOUS PRACTICES IMPACT HER CLAIM FOR RELIEF UNDER THE RELIGIOUS FREEDOM RESTORATION ACT?

 

II. DID APPELLANT WAIVE OR FORFEIT HER RELIGIOUS FREEDOM RESTORATION ACT CLAIM OF ERROR BY FAILING TO RAISE IT AT TRIAL?

 

Briefing will follow the scheduled specified in the order of the Court in United States v. Sterling, __ M.J. __ (C.A.A.F. 2015) (Daily Journal December 10, 2015).




Thursday, December 10, 2015

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0130/AR. U.S. v. Donaciano Bosquez III. CCA 20140256. 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 stated that Appellant was tried by a general court-martial. In fact, as the record of trial indicates, this was a special court-martial.




Tuesday, December 1, 2015

Orders Granting Petition for Review

 

No. 16-0006/CG. U.S. v. Matthew A. Rogers. CCA 1391. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, said petition is granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE IMPLIED BIAS CHALLENGE AGAINST CDR K IN LIGHT OF HER VARIOUS PROFESSIONAL AND PERSONAL EXPERIENCE WITH SEXUAL ASSAULT.

 

Briefs will be filed under Rule 25.




Tuesday, November 24, 2015

Orders Granting Petition for Review

 

No. 15-0742/AF. U.S. v. Kevin Gay. CCA 38525. 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 that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO REMAND APPELLANT'S CASE FOR A HEARING PURSUANT TO UNITED STATES v. DUBAY, 17 C.M.A. 147, 37 C.M.R. 411 (1967), TO DETERMINE THE FACTS SURROUNDING APPELLANT'S POST-TRIAL SOLITARY CONFINEMENT. SEE UNITED STATES v. GINN, 47 M.J. 236 (1997).

 

Briefs will be filed under Rule 25.

 

No. 16-0026/AR. U.S. v. Antiwan M. Henning. CCA 20150410. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, on appeal under Article 62, Uniform Code of Military Justice, 10 U.S.C. 862 (2012), Appellant's motion to stay the trial proceedings, and Appellee's motion for leave to exceed the word limit, it is ordered that Appellant's motion to stay the trial proceedings is hereby granted, pending further order of the Court, that Appellee's motion to exceed the word limit is hereby granted, and that said petition is hereby granted on the following issue:

 

WHETHER THE ARMY COURT APPLIED THE WRONG STANDARD OF REVIEW TO THIS ARTICLE 62, UCMJ, APPEAL WHEN IT FOUND THE MILITARY JUDGE MADE ERRONEOUS FINDINGS OF FACT AND ERRONEOUS CONCLUSIONS OF LAW.

 

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




Friday, November 20, 2015

Certificates for Review Filed

 

No. 15-0749/AF. United States, Appellant v. Daniel H. Chin, Appellee. CCA 38452. Notice is hereby given that an amended 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) COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT'S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F. 2009).

 

The parties may file additional briefs on the amended certified issue under Rule 22(b) within 10 days of the date of this notice.

 

Interlocutory Orders

 

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785. On further consideration of the record, it is ordered that the parties brief the following specified issues:

 

WHETHER A COURT OF CRIMINAL APPEALS SITTING EN BANC CAN RECONSIDER A PREVIOUS EN BANC DECISION OF THAT COURT PURSUANT TO STATUTORY AUTHORITY, APPLICABLE PRECEDENT, OR INHERENT AUTHORITY?

 

WHETHER A DECISION OF A COURT OF CRIMINAL APPEALS SITTING EN BANC CAN BE RECONSIDERED EN BANC WHEN THE COMPOSITION OF THE EN BANC COURT HAS CHANGED?

 

The parties will brief these issues contemporaneously, and file their briefs on or before January 5, 2016. Reply briefs on these issues may be filed on or before January 15, 2016.




Monday, November 9, 2015

Orders Granting Petition for Review

 

No. 16-0091/AR. U.S. v. Djoulou K. Caldwell. CCA 20140425. 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 COMMITTED PLAIN ERROR WHEN HE INSTRUCTED THE PANEL USING A NEGLIGENCE STANDARD FOR MALTREATMENT OF A SUBORDINATE IN VIOLATION OF ARTICLE 93.

 

Briefs will be filed under Rule 25.




Thursday, November 5, 2015

Certificates for Review Filed

 

No. 16-0122/MC. U.S. v. Beau T. Martin. CCA 201400315. Notice is hereby given that a certificate of 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 issue:

 

DID TRIAL DEFENSE COUNSEL INVITE ERROR WHEN HE OPENED THE DOOR TO HUMAN LIE DETECTOR TESTIMONY DURING THE CROSS-EXAMINATION OF THE VICTIM'S HUSBAND?

 

Orders Granting Petition for Review

 

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538. 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 EVIDENCE OBTAINED FROM A POLICE SEARCH OF APPELLANT'S VEHICLE ON OR ABOUT AUGUST 4, 2010, WAS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND SHOULD HAVE BEEN SUPPRESSED.

 

Briefs will be filed under Rule 25.




Wednesday, November 4, 2015

Petitions for Grant of Review - Summary Dispositions

 

No. 15-0747/AR. U.S. v. Kenneth A.R. Pinkela. CCA 20120649. On consideration of Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Gutierrez, 74 M.J. 61 (C.A.A.F. 2015), we conclude that the evidence was legally insufficient to find beyond a reasonable doubt that Appellant committed the offenses of aggravated assault and reckless endangerment. We further conclude that the evidence was sufficient to affirm assault consummated by a battery as a lesser included offense of aggravated assault. Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO FIND BEYOND A REASONABLE DOUBT THAT APPELLANT COMMITTED AGGRAVATED ASSAULT AND RECKLESS ENDANGERMENT IN VIOLATION OF ARTICLES 128 AND 134, UCMJ, BY ENGAGING IN UNPROTECTED SEX WHILE HIV-POSITIVE IN LIGHT OF UNITED STATES v. GUTIERREZ, 74 M.J. 61 (C.A.A.F. 2015).

 

The decision of the United States Army Court of Criminal Appeals as to Charges I and IV and their specifications and the sentence is reversed. The findings of guilty as to Charge IV and its specification are set aside and dismissed. The findings of guilty as to Charge I and its specification are affirmed only as to the lesser included offense of assault consummated by a battery. 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 to either reassess the sentence based on the affirmed findings or order a sentence rehearing.




Wednesday, October 28, 2015

Orders Granting Petition for Review

 

No. 15-0510/MC. U.S. v. Monifa J. Sterling. CCA 201400150. 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 specified by the Court:

 

I. DID APPELLANT ESTABLISH THAT HER CONDUCT IN DISPLAYING SIGNS REFERENCING BIBLICAL PASSAGES IN HER SHARED WORKPLACE CONSTITUTED AN EXERCISE OF RELIGION WITHIN THE MEANING OF THE RELIGIOUS FREEDOM RESTORATION ACT, 42 U.S.C. 2000bb-1 (2012), AS AMENDED? IF SO, DID THE ACTIONS OF HER SUPERIOR NONCOMMISSIONED OFFICER IN ORDERING HER TO TAKE THE SIGNS DOWN, AND IN REMOVING THEM WHEN SHE DID NOT, CONSTITUTE A SUBSTANTIAL BURDEN ON APPELLANT'S EXERCISE OF RELIGION WITHIN THE MEANING OF THE ACT? IF SO, WERE THESE ACTIONS IN FURTHERANCE OF A COMPELLING GOVERNMENT INTEREST AND THE LEAST RESTRICTIVE MEANS OF FURTHERING THAT INTEREST?

 

II. DID APPELLANT'S SUPERIOR NONCOMMISSIONED OFFICER HAVE A VALID MILITARY PURPOSE IN ORDERING APPELLANT TO REMOVE SIGNS REFERENCING BIBLICAL PASSAGES FROM HER SHARED WORKPLACE?

 

Briefs will be filed under Rule 25.




Monday, October 19, 2015

Certificates for Review Filed

 

No. 16-0068/NA. United States, Appellant v. Dustin M. Clark, Appellee. CCA 201400232. Notice is hereby given that a certificate of 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:

 

ARTICLE 66(c), UCMJ, REQUIRES THAT COURTS OF CRIMINAL APPEALS CONDUCT A PLENARY REVIEW OF THE ENTIRE RECORD AND "RECOGNIZ [E] THAT THE TRIAL COURT SAW AND HEARD THE WITNESSES." IN REVERSING APPELLEE'S CONVICTIONS FOR FACTUAL INSUFFICIENCY WITHOUT ACKNOWLEDGING THE MILITARY JUDGE'S NON-GUILT SPECIAL FINDINGS DID THE LOWER COURT FAIL TO CONDUCT A COMPLETE ARTICLE 66(c) REVIEW?

 

IN CONDUCTING ITS FACTUAL SUFFICIENCY REVIEW, THE LOWER COURT USED A DIFFERENT STANDARD OF REVIEW FOR THE NON-GUILT SPECIAL FINDINGS MADE BY THE MILITARY JUDGE UNDER RULE FOR COURTS-MARTIAL 918(b) THAN THAT ADOPTED BY THE ARMY AND AIR FORCE COURTS OF CRIMINAL APPEALS. SHOULD THE LOWER COURT HAVE REVIEWED THE MILITARY JUDGE'S NON-GUILT SPECIAL FINDINGS UNDER THE CLEAR ERROR STANDARD ADOPTED BY THE ARMY AND AIR FORCE COURTS OF CRIMINAL APPEALS?




Wednesday, October 14, 2015

Appeals - Summary Dispositions

 

No. 15-0377/NA. U.S. v. Nestor L. Suazo-Lopez. CCA 201300463. On further consideration of the granted issue, 74 M.J. 327 (C.A.A.F. 2015), and the briefs of the parties, and in view of United States v. Ward, 74 M.J. 225 (C.A.A.F. 2015), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.




Wednesday, October 7, 2015

Certificates for Review Filed

 

No. 16-0053/AF. U.S. v. Shelby L. Williams. CCA 38454. 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 BY FINDING THAT THE TRIAL DEFENSE COUNSEL SUFFICIENTLY OBJECTED TO THE ADMISSION OF THE EVIDENCE RELATING TO A PREGNANCY AND MISCARRIAGE.

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ADMITTED TESTIMONY PURSUANT TO MIL. R. EVID. 413, AND ERRED IN FINDING PREJUDICE.

 

III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED A LEGAL ERROR BY DENYING THE UNITED STATES' MOTION TO SUBMIT A DECLARATION FROM AN EXPERT WHO ADDRESSED THE MEDICAL CONCLUSIONS RAISED FOR THE FIRST TIME IN THE MAJORITY OPINION.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before November 6, 2015.

 

No. 16-0054/AF. U.S. v. Gavin B. Atchak. CCA 38526. 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 ERRED IN SETTING ASIDE AND DISMISSING THE SPECIFICATIONS OF AGGRAVATED ASSAULT WITHOUT AUTHORIZING THE CONVENING AUTHORITY TO ORDER A REHEARING FOR THE LESSER INCLUDED OFFENSES OF ASSAULT CONSUMMATED BY A BATTERY.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before November 6, 2015.

 

Orders Granting Petition for Review

 

No. 15-0754/MC. U.S. v. Beau T. Martin. CCA 201400315. 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 COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE HUMAN LIE DETECTOR TESTIMONY OFFERED BY THE ALLEGED VICTIM'S HUSBAND WAS NOT MATERIALLY PREJUDICIAL.

 

Briefs will be filed under Rule 25.




Friday, September 25, 2015

Appeals - Summary Dispositions

 

No. 15-0462/MC. U.S. v. Michael A. Arnold. CCA 201200382. On consideration of the certified issue, __ M.J. __, (Daily Journal Apr. 3, 2015), the briefs of the parties, and in view of United States v. Quick, 74 M.J. 332 (C.A.A.F. 2015), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




Tuesday, September 22, 2015

Petitions for Grant of Review - Summary Dispositions

 

No. 15-0669/AF. U.S. v. Reyna R. Lopeztegui. CCA S32209. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals said petition is hereby granted on the following issue:

 

WHETHER THE STAFF JUDGE ADVOCATE'S RECOMMENDATION (SJAR) AND ADDENDUM TO THE SJAR WERE ERRONEOUS BECAUSE THEY DID NOT PROVIDE ACCURATE INFORMATION TO THE CONVENING AUTHORITY.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed, and the convening authority's action is set aside. The record of trial is returned to the Judge Advocate General for remand to the same or a different convening authority for a new post-trial recommendation and action.

 

No. 15-0726/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, said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT ERRED IN REASSESSING THE SENTENCE TO MATCH THE SENTENCE ADJUDGED BY THE COURT-MARTIAL (WHICH INCLUDED FORFEITURES OF PAY) RATHER THAN THE SENTENCE APPROVED BY THE CONVENING AUTHORITY (WHICH DID NOT INCLUDE FORFEITURES OF PAY).

 

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to the findings but reversed as to the sentence. The record is returned to the Judge Advocate General of the Air Force for remand to that court to reassess the sentence based on the affirmed findings of guilty.




Thursday, September 17, 2015

Petitions for Grant of Review - Summary Dispositions

 

No. 15-0770/AR. U.S. v. Demarcus L. Lilly. CCA 20130349. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is noted that the military judge neglected to seal the pleadings and transcript associated with two motions to exclude evidence under MRE 412. Accordingly, the Clerk is ordered to seal pages 22-29 of the record and Appellate Exhibits III and IV and all attachments thereto.




Monday, September 14, 2015

Certificates for Review Filed

 

No. 16-0014/NA. U.S. v. Jacob L. Pease. CCA 201400165. Notice is hereby given that a certificate of 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:

 

THE LOWER COURT JUDICIALLY DEFINED "INCAPABLE OF CONSENTING" CONTRARY TO THE INSTRUCTIONS GIVEN TO THE MEMBERS AND USED THIS DEFINITION TO FIND THREE CHARGES OF SEXUAL ASSAULT AND ONE CHARGE OF ABUSIVE SEXUAL CONTACT FACTUALLY INSUFFICIENT. IN CREATING THIS NEW LEGAL DEFINITION NOT CONSIDERED BY THE FACTFINDER AND NOWHERE PRESENT IN THE RECORD, DID THE LOWER COURT CONSIDER MATTERS OUTSIDE THE RECORD AND OUTSIDE ITS STATUTORY AUTHORITY IN CONDUCTING ITS FACTUAL SUFFICIENCY REVIEW?

 

THE LOWER COURT JUDICIALLY DEFINED "INCAPABLE OF CONSENTING" IN A MANNER THAT LIMITS PROSECUTIONS TO ONLY TWO SITUATIONS - -"INABILITY TO APPRECIATE" AND "INABILITY TO MAKE AND COMMUNICATE" AN AGREEMENT. TO PROVE THE LATTER, THE COURT FURTHER REQUIRED PROOF THAT A VICTIM BE UNABLE BOTH TO MAKE AND TO COMMUNICATE A DECISION TO ENGAGE IN THE CONDUCT AT ISSUE. NOTHING IN THE STATUTE REFLECTS CONGRESSIONAL INTENT TO LIMIT ARTICLE 120, UCMJ, PROSECUTIONS IN THIS MANNER. DID THE LOWER COURT ERR?




Tuesday, August 11, 2015

Certificates for Review Filed

 

No. 15-0749/AF. U.S. v. Daniel H. Chin. CCA 38452. 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 FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT'S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F. 2009)

 

No. 15-0750/AF. U.S. v. Kevin Gay. CCA 38525. 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 (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY REACHING ITS DECISION THAT ARTICLE 66, UCMJ, GRANTS IT THE AUTHORITY TO GRANT SENTENCE APPROPRIATENESS RELIEF FOR POST-TRIAL CONFINEMENT CONDITIONS EVEN THOUGH THERE WAS NO VIOLATION OF THE EIGHTH AMENDMENT OR ARTICLE 55, UCMJ, IN DIRECT CONTRAVENTION OF THIS COURT'S BINDING PRECEDENT.




Monday, July 13, 2015

Orders Granting Petition for Review

 

No. 15-0664/AF. U.S. v. Sean J. Chero. CCA 38470. 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 WHEN HE CONCLUDED APPELLANT'S MAXIMUM PUNISHMENT WAS 30 YEARS CONFINEMENT, TOTAL FORFEITURES AND A DISHONORABLE DISCHARGE.

 

No briefs will be filed under Rule 25.




Wednesday, July 8, 2015

Orders Granting Petition for Review

 

No. 15-0476/AR. U.S. v. Eric L. Rapert. CCA 20130309. 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 FINDING OF GUILTY FOR CHARGE I AND ITS SPECIFICATION FOR COMMUNICATING A THREAT IS LEGALLY INSUFFICIENT BECAUSE THE COMMENTS ARE CONSTITUTIONALLY PROTECTED AND DO NOT CONSTITUTE A THREAT UNDER THE TOTALITY OF THE CIRCUMSTANCES AND IN LIGHT OF THE SUPREME COURT'S DECISION IN ELONIS v. UNITED STATES, 575 U.S. __, 135 S. Ct. 2001 (2015).

 

Briefs will be filed under Rule 25.




Tuesday, June 30, 2015

Orders Granting Petition for Review

 

No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193. 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 APPELLANT'S CONVICTION FOR PROVOKING SPEECH IS LEGALLY INSUFFICIENT BECAUSE "UNDER THE CIRCUMSTANCES" HIS WORDS WERE NOT REASONABLY LIKELY TO PROVOKE VIOLENCE.

 

II. WHETHER THE MILITARY JUDGE'S INSTRUCTIONS REGARDING PROVOKING SPEECH WERE DEFICIENT UNDER THE FACTS AND CIRCUMSTANCES OF APPELLANT'S CASE.

 

Briefs will be filed under Rule 25.




Wednesday, June 3, 2015

Orders Granting Petition for Review

 

No. 15-0384/CG. U.S. v. Christopher S. Cooley. CCA 1389. 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 GOVERNMENT VIOLATED APPELLANT'S RIGHTS UNDER ARTICLE 10, UCMJ, WHEN THE GOVERNMENT POSSESSED KEY EVIDENCE AGAINST APPELLANT ON JULY 20, 2012, AND FEBRUARY 5, 2013, YET MADE NO MOVE TO PROSECUTE APPELLANT FOR THESE OFFENSES UNTIL JUNE OF 2013, DESPITE HIS PRETRIAL CONFINEMENT FROM DECEMBER 20, 2012.

 

Briefs will be filed under Rule 25.

 

No. 15-0477/AF. U.S. v. Nicholas E. Busch. CCA 38530. 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:

 

AT THE TIME OF APPELLANT'S ALLEGED SEXUAL ABUSE OF A CHILD OFFENSE, THE PRESIDENT HAD NOT SET THE MAXIMUM PUNISHMENT FOR THE OFFENSE. THE MILITARY JUDGE USED A LATER-ENACTED EXECUTIVE ORDER TO SET THE MAXIMUM PUNISHMENT, EVEN THOUGH IT INCREASED THE CONFINEMENT RANGE FROM ONE YEAR TO FIFTEEN YEARS. WAS THE EX POST FACTO CLAUSE VIOLATED?

 

Briefs will be filed under Rule 25.




Tuesday, May 26, 2015

Orders Granting Petition for Review

 

No. 15-0372/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. 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 ABUSED HIS DISCRETION WHEN HE ALLOWED THE ADMISSION OF ADDITIONAL EVIDENCE DURING DELIBERATIONS BUT ALSO DENIED APPELLANT THE OPPORTUNITY TO ATTACK THE ACCURACY OF THAT EVIDENCE BEFORE THE FACTFINDER.

 

Briefs will be filed under Rule 25.




Thursday, May 14, 2015

Interlocutory Orders

 

No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679. On consideration of Appellee's motion to dismiss the petition for grant of review for lack of jurisdiction, it is ordered that the parties submit briefs on the following issue:

 

WHETHER APPELLANT'S PETITION FOR GRANT OF REVIEW SHOULD BE DISMISSED FOR LACK OF JURISDICTION WHEN THE COURT OF CRIMINAL APPEALS ENTERTAINED AN UNTIMELY FILED MOTION FOR RECONSIDERATION FOR "GOOD CAUSE," BUT DENIED THE MOTION ON OTHER GROUNDS, AND APPELLANT FILED A PETITION FOR GRANT OF REVIEW WITH THIS COURT UNDER ARTICLE 67, UCMJ, MORE THAN 60 DAYS AFTER THE ORIGINAL DECISION OF THE COURT OF CRIMINAL APPEALS, BUT WITHIN 60 DAYS OF THE FINAL DECISION ON THE MOTION FOR RECONSIDERATION. SEE, UNITED STATES v. RODRIGUEZ, 67 M.J. 110 (C.A.A.F. 2009); UNITED STATES v. SMITH, 68 M.J. 445 (C.A.A.F. 2010).

 

Appellant will file a brief under Rule 24 within 30 days of the date of this Order. Appellee will file a brief within 30 days of the filing of Appellant's brief. Appellant may file a reply within 10 days of the filing of Appellee's brief.




Thursday, May 7, 2015

Orders Granting Petition for Review

 

No. 15-0426/AR. U.S. v. Richard A. Gifford. CCA 20120545. 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 ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT SECOND INFANTRY DIVISION POLICY LETTER NUMBER 8(11 JANUARY 2010), WHICH PROHIBITS SERVICE MEMBERS WHO ARE 21 YEARS OF AGE AND OLDER FROM DISTRIBUTING ALCOHOL TO PERSONS UNDER 21 FOR THE PURPOSES OF CONSUMPTION, DID NOT CONTAIN AN ELEMENT THAT APPELLANT KNEW THAT THE PERSON TO WHOM DISTRIBUTION WAS MADE WAS UNDER 21 YEARS OF AGE, AND THEREFORE IMPOSED STRICT LIABILITY FOR SUCH ACTIONS.

 

Briefs will be filed under Rule 25.




Thursday, April 30, 2015

Orders Granting Petition for Review

 

No. 15-0140/AR. U.S. v. Henry L. Williams III. CCA 20130284. 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 COMMITTED LARCENIES OF THE PROPERTY OF TWO SOLDIERS BY USING THEIR DEBIT CARD INFORMATION WITHOUT AUTHORITY. SEE UNITED STATES v. LUBASKY, 68 M.J. 260 (C.A.A.F. 2010).

 

Briefs will be filed under Rule 25.




Tuesday, April 28, 2015

Orders Granting Petition for Review

 

No. 15-0361/MC. U.S. v. Matthew P. Hoffmann. CCA 201400067. 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. WHETHER THE SEARCH AND SEIZURE OF THE PERSONAL ITEMS OF AN INDIVIDUAL WHERE THE SEARCH WAS INITIALLY GRANTED BY CONSENT, BUT LATER REVOKED BEFORE THE SEIZURE OF ITEMS, VIOLATED THE FOURTH AMENDMENT OF THE CONSTITUTION.

 

II. THE APPELLANT WAS CHARGED WITH CRIMES INVOLVING CHILD ENTICEMENT. THE NMCCA FOUND A SEARCH FOR A SEPARATE CRIME, CHILD PORNOGRAPHY, WAS SUPPORTED BY PROBABLE CAUSE BASED SOLELY ON THE CHILD ENTICEMENT ALLEGATIONS. IN DOING SO, THE NMCCA RELIED ON A MINORITY OPINION IN FEDERAL CASE LAW AND APPLIED IT INCORRECTLY. SHOULD THIS COURT REVERSE?

 

Briefs will be filed under Rule 25.




Tuesday, April 7, 2015

Orders Granting Petition for Review

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. 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 specified by the Court:

I. WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OFFER EVIDENCE, OTHER THAN AN UNSWORN STATEMENT, IN EXTENUATION OR MITIGATION AND BY CONCEDING THE APPROPRIATENESS OF A DISHONORABLE DISCHARGE.

 

II. WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY'S ACTION DID NOT APPROVE ONE.

 

Briefs will be filed under Rule 25.




Wednesday, March 25, 2015

Orders Granting Petition for Review

 

No. 15-0377/NA. U.S. v. Nestor L. Suazo-Lopez. CCA 201300463. 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 CONVENING AUTHORITY ISSUED AN INSTRUCTION THAT LIMITED COURT-MARTIAL MEMBERS NOMINATIONS TO PERSONNEL IN PAY-GRADES OF E-6 AND ABOVE. THE LOWER COURT ASSUMED THIS SYSTEMATIC EXCLUSION OF PERSONNEL WAS ERROR, BUT HARMLESS. SHOULD THIS COURT SET ASIDE APPELLANT'S CONVICTIONS PURSUANT TO UNITED STATES v. KIRKLAND DUE TO THE UNRESOLVED APPEARANCE OF UNFAIRNESS?

No briefs will be filed under Rule 25.




Thursday, March 19, 2015

Orders Granting Petition for Review

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118. 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 PROMULGATION OF RCM 707 ABROGATED THE "SUBSTANTIAL INFORMATION" RULE ORIGINATED IN UNITED STATES v. JOHNSON, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

 

Briefs will be filed under Rule 25.

No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046. 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 DECIDING A QUESTION OF LAW WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT WHEN IT HELD THAT ASSAULT CONSUMMATED BY BATTERY WAS A LESSER INCLUDED OFFENSE TO ABUSIVE SEXUAL CONTACT AND SEXUAL ASSAULT.

Briefs will be filed under Rule 25.




Monday, February 23, 2015

Certificates for Review Filed

 

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389. 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 this date on the following issues:

 

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT PRE-TRIAL CONFINEMENT CAN SERVE AS PER SE PREJUDICE FOR PURPOSES OF DETERMINING A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.

 

WHETHER THE FACTS AND CIRCUMSTANCES OF APPELLEE'S CASE, CONSIDERING THE FACTORS SET OUT IN BARKER V. WINGO, 407 U.S. 514, 530 (1972) AND APPLIED TO REVIEW OF ARTICLE 10 BY UNITED STATES V. BIRGE, 52 M.J. 209, 212 (C.A.A.F. 1999), AMOUNT TO A VIOLATION OF ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE.




Wednesday, December 24, 2014

Mandatory Review Case Filed

 

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785. Notice is hereby given that a case requiring mandatory review of the decision of the United States Air Force Court of Criminal Appeals in which the affirmed sentence extends to death was filed under Rule 23 on this 24th day of December, 2014.*

 

Appellant will file a brief under Rule 23(b), not to exceed 250 pages, no later than sixty days after the date of this notice. Appellee will file a brief, not to exceed 250 pages, within sixty days of the filing of Appellant's brief. Appellant may file a reply brief, not to exceed 50 pages, within twenty days of the filing of Appellee's brief. The briefs may be filed electronically, but should counsel file said pleadings in a paper format, such pleadings shall conform in all respects to the requirements of Rule 37(a), with the additional requirement that they be printed on 3-hole pre-punched paper and otherwise comply in all respects with Rule 24(f)(2). The briefs and the reply, if any, shall be divided into the following parts: Part A shall set forth systemic issues and case-specific issues raised before the Court of Criminal Appeals but not previously decided by this Court; Part B shall set forth all issues not raised before the court below; Part C shall set forth systemic issues previously decided by this Court but raised to avoid waiver; these issues may be listed without argument as an exception to Rule 24(a), but must cite pertinent authority to support the position taken. All exhibits cited in the pleadings filed before this Court shall be included in the Joint Appendix. After all pleadings have been submitted, Appellant and Appellee are directed to seek agreement on the issues to be heard at oral argument, and to inform the Court of those issues. If no agreement can be reached, the parties will so advise the Court within 10 days of the date of the filing of the last pleading, and the Court will resolve any differences.

 

* The caption on the document filed by the Judge Advocate General states that it is a "Certificate for Review" rather than a "Mandatory Review Case" as required by Rule 23. However, upon review of the document, this appears to be a scrivener's error.

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