USCAAF | New Grants and Summary Dispositions

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Monday, May 14, 2012
ORDERS GRANTING PETITION FOR REVIEW

No. 12-0385/AR. U.S. v. Robert T. TOUSSANT. CCA 20090839. 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 SPECIFICATION OF CHARGE III CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

Wednesday, May 9, 2012
ORDERS GRANTING PETITION FOR REVIEW

No. 12-0328/AR. U.S. v. Bret A. GLOWTH. CCA 20090925. Review granted on the following issue:

WHETHER THE CHARGE AND ITS SPECIFICATIONS FAIL TO STATE AN OFFENSE BECAUSE THE SPECIFICATIONS DO 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.

Tuesday, May 8, 2012
APPEALS - SUMMARY DISPOSITIONS

No.11-0559/NA. U.S. v. Jordan J. ESCOCHEA-SANCHEZ. CCA 201000093. On further consideration of the granted issue (70 M.J. 347), we note that this issue was not raised before the United States Navy-Marine Corps Court of Criminal Appeals during its Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2006), review. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further appellate inquiry and consideration of the granted issue. Thereafter, Article 67, UCMJ, shall apply.

No. 12-0395/AR. U.S. v. Robert W. MEDEIROS. CCA 20081092. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we conclude that Appellant was denied his Sixth Amendment right to conflict-free counsel in his post-trial representation. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT'S TRIAL DEFENSE COUNSEL'S CONFLICT OF INTEREST, STEMMING FROM A POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL ALLEGATION, ADVERSELY AFFECTED THAT SAME TRIAL DEFENSE COUNSEL'S CONTINUING REPRESENTATION OF APPELLANT.

The decision of the United States Army 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 of the Army for submission to an appropriate convening authority for a new recommendation and action. See United States v. Mendoza, 67 M.J. 53 (C.A.A.F. 2008). Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867 (2006), shall apply.

No. 12-0413/AR. U.S. v. David J. WATSON, Jr. CCA 20100930. 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 ordered that Appellant receive 3 additional days of pretrial confinement credit, for a total credit of 51 days, against the confinement portion of his sentence.

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0377/AR. U.S. v. Randy A. GIDDENS. CCA 20090598. Review granted on the following issue:

WHETHER A CONTESTED UNLAWFUL ENTRY 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.

Friday, May 4, 2012
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0626/AR. U.S. v. Kirby B. MOSES. CCA 20090247. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE IN SPECIFICATION 1 OF CHARGE VI THAT APPELLANT'S INDECENT ACTS WERE PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OR SERVICE DISCREDITING UNDER ARTICLE 134, UCMJ, SUBSTANTIALLY PREJUDICED APPELLANT'S CONSTITUTIONAL RIGHT TO FAIR NOTICE OF THE CHARGE AGAINST HIM.

No briefs will be filed under Rule 25.

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. 12-0331/AR. U.S. v. Jamil V. WILLIAMS. CCA 20090619. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENTS OF ARTICLE 134 OF THE UNIFORM CODE OF MILITARY JUSTICE IN THE SPECIFICATION OF CHARGE IV AND IN SPECIFICATION 1 OF ADDITIONAL CHARGE V REQUIRES THIS COURT TO SET ASIDE THOSE SPECIFICATIONS.

No briefs will be filed under Rule 25.

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, May 1, 2012
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0467/AR. U.S. v. Arthur R. YOUNG, Jr. CCA 20090092. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134 OF THE UNIFORM CODE OF MILITARY JUSTICE IN THE SPECIFICATION OF CHARGE V REQUIRES THIS COURT TO SET ASIDE THAT SPECIFICATION.

No briefs will be filed under Rule 25.

No. 11-0475/AR. U.S. v. Robert L. CONRADY. CCA 20080534. Review granted on the following issue:

WHETHER SPECIFICATIONS 2, 6 AND 7, OF CHARGE III FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

No. 11-0495/AR. U.S. v. Brandon K. PRICE. CCA 20100382. 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 SPECIFICATION TWO OF CHARGE VI CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 12-0286/AF. U.S. v. Paul A. TITCOMBE. CCA 37618. Review granted on the following issue:

WHETHER THE AIR FORCE COURT ERRED BY FINDING THAT ADDITIONAL CHARGE II ALLEGING UNLAWFUL ENTRY UNDER ARTICLE 134 WAS NOT DEFICIENT BECAUSE THE "MILITARY JUDGE IS PRESUMED TO KNOW THE LAW AND APPLY IT CORRECTLY WHEN SITTING AS THE TRIER OF FACT."

No briefs will be filed under Rule 25.

No. 12-0317/AF. U.S. v. Ronnie WILSON. CCA 37486. Review granted on the following issue:

WHETHER SPECIFICATIONS 1 AND 5 OF CHARGE III FAIL TO STATE AN OFFENSE UNDER ARTICLE 134, UCMJ, BECAUSE NEITHER SPECIFICATION ALLEGES THE TERMINAL ELEMENT.

No briefs will be filed under Rule 25.

Thursday, April 26, 2012
APPEALS - SUMMARY DISPOSITIONS

No. 12-6002/AF. U.S. v. Darren N. HATHORNE. CCA 2011-02. On further consideration of the record in the above-captioned case, the Court has concluded that the record does not reflect that Appellant has exhausted available review under Article 69, Uniform Code of Military Justice, 10 U.S.C. § 869 (2006). In that context, Appellant's present appeal is not ripe. Accordingly, it is ordered that said appeal is hereby dismissed without prejudice to consideration upon further review, if any. Appellee's motion to dismiss is denied as moot.

Wednesday, April 25, 2012
APPEALS-SUMMARY DISPOSITIONS

No. 12-0380/MC. U.S. v. Scott D. BAUER, Jr. CCA 201100515. 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 accurately reflect that Specification 4 of Charge III was dismissed by the military judge as multiplicious with Specification 5. Also, to the extent that the convening authority’s action purported to execute the bad-conduct discharge, it was a nullity. See United States v. Bailey, 68 M.J. 409 (C.A.A.F. 2009).

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0272/AF. U.S. v. Timur TIMERHANOV. CCA 37685. Review granted on the following issue:

WHETHER SPECIFICATION 1 OF CHARGE II, A CONTESTED ASSAULT WITH INTENT TO COMMIT ROBBERY 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.

Tuesday, April 24, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0443/AR. U.S. v. Aaron P. HUDSON. CCA 20090506. Review granted on the following issue:

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134 IN THE SPECIFICATIONS OF CHARGE II REQUIRES THIS COURT TO SET ASIDE THOSE SPECIFICATIONS IN APPELLANT'S CONTESTED COURT-MARTIAL.

No briefs will be filed under Rule 25.

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.

Friday, April 20, 2012

ORDERS GRANTING PETITION FOR REVIEW

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

UNDER THIS COURT'S DECISIONS IN FOSLER AND BALLAN, WAS IT PREJUDICIAL ERROR, IN A PARTIALLY CONTESTED CASE, TO CONVICT APPELLANT OF ARTICLE 134 SPECIFICATIONS THAT FAILED TO ALLEGE THE TERMINAL ELEMENT OF THAT OFFENSE?

No briefs will be filed under Rule 25.

Thursday, April 19, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 09-0519/NA. U.S. v. Michael S. HODGE. CCA 200601124.

No. 11-0227/NA. U.S. v. Ros L. DAVIS. CCA 201000302.

No. 11-0303/MC. U.S. v. Thomas R. LIRLEY. CCA 201000502.

No. 11-0383/NA. U.S. v. Gary W. LUMPKINS, Jr. CCA 201000554.

No. 11-0419/AR. U.S. v. Bradley L. GUMP. CCA 20100546.

No. 11-0420/AR. U.S. v. Cody T. SMITH. CCA 20100646.

No. 11-0427/AR. U.S. v. Nicholas A. PATLA. CCA 20100809.

No. 11-0434/AR. U.S. v. David J. ISENHOWER. CCA 20100354.

No. 11-0453/AR. U.S. v. Aaron M. MITCHELL. CCA 20100713.

No. 11-0454/AR. U.S. v. Oren A. REECE. CCA 20100448.

No. 11-0554/AR. U.S. v. Terry D. RORRO. CCA 20100750.

No. 11-0580/AR. U.S. v. Gregory A. ROBINSON. CCA 20100495.

No. 11-0599/AR. U.S. v. Michael D. DARROW. CCA 20100816.

No. 11-0601/AR. U.S. v. Robert A. MOORE. CCA 20100662.

No. 11-0610/AR. U.S. v. Marcus MELCHOR. CCA 20100272.

No. 11-0647/MC. U.S. v. Marchello K. HANCOCK. CCA 201000400.

No. 11-0661/AR. U.S. v. Joshua J. CHASTAIN. CCA 20100994.

No. 12-0034/AR. U.S. v. Joel L. KAIN, II. CCA 20100490.

No. 12-0046/AR. U.S. v. Daniel A. SMELSER. CCA 20110114.

No. 12-0057/AR. U.S. v. Roy E. BUHROW III. CCA 20100911.

No. 12-0071/AR. U.S. v. Robert M. BIGBACK. CCA 20101044.

No. 12-0073/MC. U.S. v. Mark A. LEUBECKER. CCA 201100091.

No. 12-0106/AF. U.S. v. Michael A. CISNEROS. CCA S31871.

No. 12-0131/AR. U.S. v. Robert L. MURCHISON. CCA 20101052.

No. 12-0132/AR. U.S. v. Kristopher M. HILOU. CCA 20100770.

No. 12-0136/AR. U.S. v. Colin M. JAMESON. CCA 20090908.

No. 12-0164/AR. U.S. v. Jason S. CHAMBERLAIN. CCA 20100775.

No. 12-0165/MC. U.S. v. Stephen L. SCARINGELLO. CCA 201100192.

No. 12-0180/MC. U.S. v. Ian T. GLOVER. CCA 201100211.

No. 12-0182/AR. U.S. v. Nathaniel D. BOZMAN. CCA 20110077.

No. 12-0195/AR. U.S. v. Chad E. GIBBS. CCA 20110083.

No. 12-0222/AR. U.S. v. Terrance L. ABERNATHY. CCA 20110229.

No. 12-0224/AF. U.S. v. Jamie D. MARTINEZ. CCA S31779.

No. 12-0230/AR. U.S. v. Jeffery A. HOBART. CCA 20100119.

No. 12-0234/AF. U.S. v. Jason W. TERWILLIGER. CCA S31840.

No. 12-0249/AR. U.S. v. Thomas E. DURHAM. CCA 20100488.

No. 12-0259/AR. U.S. v. Justin C. WIESENHOFER. CCA 20100041.

No. 12-0275/AF. U.S. v. Joshua S. FLEURY. CCA S31944.

No. 12-0278/AR. U.S. v. Richard J. MCINNISH. CCA 20090923.

No. 12-0304/AR. U.S. v. Jeremiah R. HOPKINS. CCA 20100800.

No. 12-0305/AR. U.S. v. Joshua C. AMBROSE. CCA 20100042.

No. 12-0310/AF. U.S. v. David W. SHANTEAU. CCA 37969.

No. 12-0311/AF. U.S. v. William R. MULLEN. CCA 37959.

No. 12-0340/AR. U.S. v. Renaldo R. FEBRES. CCA 20100436.

In each of the above-referenced cases, on further consideration of the granted issue, and in view of United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), it is ordered that the decision of the Court of Criminal Appeals is affirmed.*

* BAKER, Chief Judge (concurring in the result in each of the above-referenced cases):

I adhere to my positions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011)(Baker, J., dissenting), and United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012)(Baker, C.J., concurring in the result), and concur in the results here.

No. 12-0263/AR. U.S. v. Kevin D. GOODMAN. CCA 20110144.

No. 11-0374/AR. U.S. v. Lelan M. SHANKLES. CCA 20100307.

No. 12-0140/AF. U.S. v. Jeremiah C. SLACK. CCA S31906.

No. 12-0199/AF. U.S. v. Erik W. BULLENS. CCA S31737.

In each of the above-referenced cases, on further consideration of the granted issue, and in view of the United States v. Nealy, 71 M.J. _ (C.A.A.F. 2012) and United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), it is ordered that the decision of the Court of Criminal Appeals is affirmed.*

* BAKER, Chief Judge (concurring in the result in each of the above-referenced cases):

No. 11-0258/MC. U.S. v. Travis J. WESTHOVEN. CCA 201000132. On further consideration of the granted issue, 70 M.J. 416 (C.A.A.F. 2011)(Ordering Granting Review), and in view of United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

* BAKER, Chief Judge (concurring in the result):

I adhere to my positions in United States v. Jones, 68 M.J. 465, 473 (C.A.A.F. 2010)(Baker, J., dissenting), and United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012)(Baker, C.J., concurring in the result), and concur in the result here.

No. 12-0280/AR. U.S. v. Brandon A. LOPEZ. CCA 20090564. On further consideration of the granted issue, _ M.J. _ (C.A.A.F. 2012) (Ordering Granting Review, Mar. 12, 2012), and in view of United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012), it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed as to the findings and as to only so much of the sentence as provides for two years confinement and a bad-conduct discharge.*

* BAKER, Chief Judge (concurring in the result):

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0354/NA. U.S. v. Markalle D. REDD. CCA 201000682. Review granted on the following issue:

WHETHER THE TWO ADULTERY SPECIFICATIONS FAIL TO STATE AN OFFENSE BECAUSE THEY NEITHER ALLEGE NOR NECESSARILY IMPLY THAT THE CONDUCT WAS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES.

No briefs will be granted 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.

Wednesday, April 11, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0511/AR. U.S. v. Aaron P. STONE. CCA 20090332. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

No 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.

Thursday, March 29, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 11-0514/NA. U.S. v. Damien J. AUTRY. CCA 201100105. 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 the finding of Specification 4, Charge II, was guilty, and the findings of Specifications 5, 7, and 8 of Charge II were guilty with exceptions and substitutions.

Wednesday, March 28, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0362/AR. U.S. v. Thomas G. GENTRY. CCA 20080985. Review granted on the following issue:

WHETHER IN LIGHT OF UNITED STATES v. FOSLER, THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE UNDER ARTICLE 134.

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:

DOES AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATE AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011)?

No briefs will be filed under Rule 25.

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

WHETHER SPECIFICATION 2 OF CHARGE III 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. 11-0639/AR. U.S. v. Tanner P. FORRY. CCA 20080334. Review granted on the following issue:

WHETHER SPECIFICATIONS 5 AND 7 OF ADDITIONAL CHARGE II FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

Tuesday, March 27, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0640/AR. U.S. v. Robert L. MCCULLOUGH. CCA 20090206. Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE UNDER ARTICLE 134 BECAUSE THE SPECIFICATION FAILS TO ALLEGE ANY OF THE THREE TERMINAL CLAUSES OF ARTICLE 134.

Briefs will be filed under Rule 25.

No. 12-0300/AR. U.S. v. Payson C. AVERILL. CCA 20090491. Review granted on the following issue:

WHETHER SPECIFICATION 1 OF CHARGE II IS FATALLY DEFECTIVE BECAUSE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, 10 U.S.C. SECTION 934, IS NEITHER EXPRESSLY ALLEGED NOR "NECESSARILY IMPLIED."

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:

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 SPECIFICATIONS 1, 2, AND 3 OF CHARGE IV CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE SPECIFICATIONS FATALLY DEFECTIVE?

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.

Thursday, March 22, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 11-0566/MC. U.S. v. Alan D. SOBENES. CCA 201000381. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated "the adjudged sentence is approved and will be executed." Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority's action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in the Manual for Courts-Martial, United States app. 16 at A16-1 – A16-6 (2008 ed.) be revised. See United States v. Karras, 70 M.J. 25 (C.A.A.F. 2011); United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, it is ordered that said petition is hereby granted, and that, subject to the above, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0285/AR. U.S. v. Benjamin M. ACKMAN. CCA 20090615. Review granted on the following issue:

WHETHER SPECIFICATION 1 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.

Tuesday, March 20, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 12-0338/AF. U.S. v. Michael J. SALINAS. CCA S31983. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

* It is directed that the promulgating order be corrected to reflect that the plea and finding to Charge IV (Art. 128) were guilty, vice not guilty.

Monday, March 19, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 12-6005/AF. U.S. v. Robert C. BRISSETTE. CCA 2011-07. On consideration of the certificate of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2006), and Appellee's motion to dismiss, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed, and the motion to dismiss is denied.*

* BAKER, Chief Judge (concurring in part, dissenting in part):

A summary affirmance is consistent with the majority's position in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011), and in light of Fosler, correctly resulted in the granting of Appellee's petition for extraordinary relief on January 3, 2012. However, because I adhere to my position in Fosler, I concur in denying the motion to dismiss, but dissent with regard to the Fosler issues for the reasons stated in my dissenting opinion in Fosler. 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 12-6004/AR. U.S. v. Eric W. COOPER. CCA 20110914. On consideration of the certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2006), and oral argument, we note that because the Army Court of Criminal Appeals has returned the underlying matter to the military judge for clarification, no ripe interlocutory issue exists for this Court to decide. Given the procedural posture of this case, any decision we render on the certified issues would be premature. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.

Thursday, March 15, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 12-0293/NA. U.S. v. Adam G. HALL. CCA 201000671. 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 include the sentencing date.

No. 12-0301/CG. U.S. v. Patrick L. MURPHY. CCA 0274. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated "the adjudged sentence is approved and will be executed." Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority's action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in Manual for Courts-Martial, United States app. 16 at A16-1 - A16-6 (2008) ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, it is ordered that said petition is hereby granted, and that subject to the above, the decision of the United States Coast Guard Court of Criminal Appeals is affirmed.

Wednesday, March 14, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 12-0236/NA. U.S. v. Tyler M. ROSSMAN. CCA 201100186. 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 the adjudged sentence included a bad-conduct discharge.

Monday, March 12, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0303/MC. U.S. v. Thomas R. LIRLEY. CCA 201000502. Review granted on the following issue:

A SPECIFICATION STATES AN OFFENSE ONLY IF IT ALLEGES EITHER EXPRESSLY OR BY IMPLICATION, EVERY ELEMENT OF THE OFFENSE. THE "TERMINAL ELEMENT" OF ARTICLE 134, UCMJ, IS AN ELEMENT OF THE OFFENSE THAT MUST BE PROVED BEYOND A REASONABLE DOUBT. SPECIFICATIONS 1, 2, AND 3 OF THE CHARGE DO NOT ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ. DO THE SPECIFICATIONS FAIL TO STATE AN OFFENSE?

No briefs will be filed under Rule 25.

No. 11-0610/AR. U.S. v. Marcus MELCHOR. CCA 20100272. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 12-0234/AF. U.S. v. Jason W. TERWILLIGER. CCA S31840. Review granted on the following issue:

WHETHER APPELLANT'S PLEA OF GUILTY TO CHARGE II AND ITS SPECIFICATION WAS IMPROVIDENT BECAUSE THE SPECIFICATION OF CHARGE II FAILED TO ALLEGE ANY ONE OF THE THREE DISTINCTIVE ELEMENTS OF ARTICLE 134 AND THEREBY FAILED TO MEET THE CONSTITUTIONAL NOTICE STANDARD SET FORTH IN SCHMUCK v. UNITED STATES, HAMLING v. UNITED STATES, AND RUSSELL v. UNITED STATES.

No briefs will be filed under Rule 25.

No. 12-0280/AR. U.S. v. Brandon A. LOPEZ. CCA 20090564. Review granted on the following issue raised by appellate defense counsel:

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 SPECIFICATION OF CHARGE IV CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

And the following issue specified by the Court:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED BY PURPORTING TO AFFIRM A "REDUCTION TO THE GRADE OF PRIVATE E1" WHERE NO SUCH PUNISHMENT WAS ADJUDGED AT THE COURT-MARTIAL. SEE ARTICLE 66(c), UCMJ.

No briefs will be filed under Rule 25.

No. 12-0340/AR. U.S. v. Renaldo R. FEBRES. CCA 20100436. 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 SPECIFICATION OF CHARGE VI CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

Friday, March 9, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0227/NA. U.S. v. Ros L. DAVIS. CCA 201000302. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 12-0304/AR. U.S. v. Jeremiah R. HOPKINS. CCA 20100800. 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 SPECIFICATIONS 2-12 OF CHARGE IV CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE CHARGES FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 12-0305/AR. U.S. v. Joshua C. AMBROSE. CCA 20100042. Review granted on the following issue:

WHETHER THE SPECIFICATION OF THE ADDITIONAL CHARGE 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. 12-0310/AF. U.S. v. David W. SHANTEAU. CCA 37969. Review granted on the following issue:

WHETHER 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. 12-0311/AF. U.S. v. William R. MULLEN. CCA 37959. Review granted on the following issue:

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

No briefs will be filed under Rule 25.

Thursday, March 8, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0383/NA. U.S. v. Gary W. LUMPKINS, Jr. CCA 201000554. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 12-0148/AR. U.S. v. James O. MORRIS. CCA 20081169. Review granted on the following issue raised by appellate defense counsel:

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 SPECIFICATION OF CHARGE IV CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

And the following issue specified by the Court:

WHETHER APPELLANT'S CONVICTION FOR ASSAULT AS A LESSER-INCLUDED OFFENSE OF INDECENT ASSAULT UNDER ARTICLE 134 MAY BE AFFIRMED WHERE THE ARTICLE 134 SPECIFICATION WAS DEFECTIVE UNDER UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

Briefs will be filed under Rule 25.

No. 12-0245/AR. U.S. v. Thomas A. SCOTT. CCA 20091087. 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 SPECIFICATION 2 OF CHARGE II CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

Briefs will be filed under Rule 25.

No. 12-0252/AR. U.S. v. Jesse J. BRAY. CCA 20100029. Review granted on the following issue:

WHETHER SPECIFICATIONS 2 AND 5 OF CHARGE III FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

Briefs will be filed under Rule 25.

No. 12-0259/AR. U.S. v. Justin C. WIESENHOFER. CCA 20100041. Review granted on the following issue:

WHETHER SPECIFICATIONS 3 THROUGH 5 OF CHARGE I FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

Wednesday, February 29, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0515/MC. U.S. v. Benny NORWOOD, JR. CCA 201000495. Review granted on the following issues:

WHETHER, IN LIGHT OF UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011), THE SPECIFICATIONS ALLEGING ATTEMPTED ADULTERY AND CONSPIRACY TO OBSTRUCT JUSTICE STATE OFFENSES.

WHETHER, IN ORDER TO STATE AN OFFENSE OF ATTEMPT OR CONSPIRACY UNDER ARTICLES 80 AND 81, THE SPECIFICATION IS REQUIRED TO EXPRESSLY ALLEGE EACH ELEMENT OF THE PREDICATE OFFENSE.

Briefs will be filed under Rule 25.*

* Pursuant to Military Rule of Evidence 412(c)(2), the Clerk is directed to seal pages 67 to 85 of the record of trial and Appellate Exhibits VIII and IX.

Monday, February 27, 2012

APPEALS-SUMMARY DISPOSITIONS

No. 12-0269/AR. U.S. v. William P. CALDWELL. CCA 20110538. 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 date of the United States Army Court of Criminal Appeals decision be corrected to 5 January 2012.

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0453/AR. U.S. v. Aaron M. MITCHELL. CCA 20100713. 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 SPECIFICATION OF CHARGE IV CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

Thursday, February 23, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0420/AR. U.S. v. Cody T. SMITH. CCA 20100646. 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 ELEMENTS FROM SPECIFICATIONS 1 AND 2 OF CHARGE II CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE CHARGES FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 11-0427/AR. U.S. v. Nicholas A. PATLA. CCA 20100809. Review granted on the following issue:

WHETHER THE SPECIFICATION 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. 11-0599/AR. U.S. v. Michael D. DARROW. CCA 20100816. 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 SPECIFICATION 1 OF THE CHARGE CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 11-0601/AR. U.S. v. Robert A. MOORE. CCA 20100662. Review granted on the following issue:

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

No briefs will be filed under Rule 25.

Wednesday, February 22, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0419/AR. U.S. v. Bradley L. GUMP. CCA 20100546. 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 ELEMENTS FROM THE SPECIFICATION OF CHARGE V CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 11-0454/AR. U.S. v. Oren A. REECE. CCA 20100448. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0554/AR. U.S. v. Terry D. RORRO. CCA 20100750. Review granted on the following issue:

WHETHER SPECIFICATIONS 2, 3, 5, AND 6 OF CHARGE V FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

No. 11-0661/AR. U.S. v. Joshua J. CHASTAIN. CCA 20100994. 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 SPECIFICATIONS 1 AND 2 OF CHARGE V CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 12-0034/AR. U.S. v. Joel L. KAIN, II. CCA 20100490. 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 ELEMENTS FROM SPECIFICATIONS 1 AND 2 OF CHARGE II CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE CHARGES FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 12-0222/AR. U.S. v. Terrance L. ABERNATHY. CCA 20110229. Review granted on the following issue:

WHETHER SPECIFICATIONS 2 AND 3 OF CHARGE III FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

Tuesday, February 21, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0149/AR. U.S. v. Christopher L. STADEL. CCA 20090820. Review granted on the following issue:

WHETHER APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE MILITARY JUDGE'S FAILURE TO INSTRUCT THE PANEL THAT IT COULD CONSIDER EVIDENCE OF CONSENT IN DECIDING WHETHER THE GOVERNMENT PROVED THAT THE ACT WAS ACCOMPLISHED BY FORCE.

Briefs will be filed under Rule 25.

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.

Thursday, February 16, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0194/AR. U.S. v. Evan VELA. CCA 20080133. Review granted on the following issues:

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE'S MOTION TO DISMISS OR DISQUALIFY UNDER UNITED STATES v. KASTIGAR.

WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY TO CHARGE III.

Briefs will be filed under Rule 25.

Wednesday, February 15, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0172/NA. U.S. v. Jeremy L. RAUSCHER. CCA 201000684. Review granted on the following issue:

APPELLANT WAS CHARGED WITH, INTER ALIA, ASSAULT WITH INTENT TO COMMIT MURDER UNDER ARTICLE 134, UCMJ. BUT THE SPECIFICATION FAILED TO ALLEGE THE TERMINAL ELEMENT. THE MEMBERS FOUND APPELLANT NOT GUILTY OF THE CHARGED OFFENSE, BUT GUILTY OF AGGRAVATED ASSAULT UNDER ARTICLE 128, UCMJ, AS A LESSER-INCLUDED OFFENSE. DID THE LOWER COURT ERR IN HOLDING THAT AGGRAVATED ASSAULT IS A LESSER-INCLUDED OFFENSE OF AN ARTICLE 134 SPECIFICATION THAT FAILS TO ALLEGE THE TERMINAL ELEMENT?

Briefs will be filed under Rule 25.

No. 12-0224/AF. U.S. v. Jamie D. MARTINEZ. CCA S31779. Review granted on the following issue:

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.

No briefs will be filed under Rule 25.

No. 12-0251/AF. U.S. v. Ermen-Rene BARNETT. CCA 37578. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE INFORMED THE MEMBERS OF APPELLANT'S ILLEGAL PRETRIAL PUNISHMENT CREDIT AND THEN FAILED TO INSTRUCT THE MEMBERS BASED ON A SUBMITTED QUESTION THAT THEY WERE NOT ALLOWED TO NULLIFY SOME OR ALL OF THAT CREDIT BY INCREASING THE SENTENCE.

Briefs will be filed under Rule 25.

Tuesday, February 14, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0374/AR. U.S. v. Lelan M. SHANKLES. CCA 20100307. Review granted on the following issue:

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

No briefs will be filed under Rule 25.

No. 12-0057/AR. U.S. v. Roy E. BUHROW III. CCA 20100911. 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 ELEMENTS FROM THE SPECIFICATION OF CHARGE III CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS CHARGE III FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 12-0230/AR. U.S. v. Jeffery A. HOBART. CCA 20100119. Review granted on the following issue:

DID THE LOWER COURT MISAPPLY UNITED STATES v. FOSLER IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATIONS WERE NOT SO DEFECTIVE AS TO WARRANT DISMISSAL?

No briefs will be filed under Rule 25.

No. 12-0263/AR. U.S. v. Kevin D. GOODMAN. CCA 20110144. 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 ELEMENTS FROM SPECIFICATIONS 2 AND 3 OF CHARGE III CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE CHARGES FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 12-0275/AF. U.S. v. Joshua S. FLEURY. CCA S31944. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 12-0278/AR. U.S. v. Richard J. MCINNISH. CCA 20090923. 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 ELEMENTS FROM SPECIFICATIONS 1, 2 AND 3 OF CHARGE IV CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

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.

Thursday, February 9, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 12-0171/AR. U.S. v. Clayton J. DUNCAN. CCA 20090545. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

* It is directed that the promulgating order be corrected to change the sentencing date from 22 Jul 09 to 18 Jun 09.

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0046/AR. U.S. v. Daniel A. SMELSER. CCA 20110114. 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 ELEMENTS FROM THE SPECIFICATION OF CHARGE II CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

Wednesday, February 8, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0434/AR. U.S. v. David J. ISENHOWER. CCA 20100354. Review granted on the following issue:

WHETHER SPECIFICATION 1 OF CHARGE IV FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

No. 11-0580/AR. U.S. v. Gregory A. ROBINSON. CCA 20100495. 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 ELEMENTS FROM THE SPECIFICATION OF CHARGE IV CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE CHARGES FATALLY DEFECTIVE?

No briefs will be filed under Rule 25.

No. 12-0202/NA. U.S. v. Michael IGNACIO. CCA 201100062. Review granted on the following issue:

IN AN ARTICLE 120(h), UCMJ, CASE, THE MILITARY JUDGE FAILED TO INSTRUCT THE MEMBERS TO CONSIDER ALL OF THE EVIDENCE, INCLUDING THE EVIDENCE OF CONSENT, WHEN DETERMINING WHETHER THE GOVERNMENT PROVED GUILT BEYOND A REASONABLE DOUBT. IN LIGHT OF UNITED STATES v. PRATHER, AND UNITED STATES v. CHEESEMAN, DOES THE APPLICATION OF THE AFFIRMATIVE DEFENSE PROVIDED BY ARTICLE 120 WITHOUT THE AFOREMENTIONED INSTRUCTION VIOLATE APPELLANT'S RIGHT TO DUE PROCESS?

Briefs will be filed under Rule 25.

No. 12-0249/AR. U.S. v. Thomas E. DURHAM. CCA 20100488. 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 ELEMENTS FROM SPECIFICATIONS 1 THROUGH 16 OF THE CHARGE CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. ARE THE CHARGES FATALLY DEFECTIVE?

No briefs will be filed under Rule 25

Tuesday, February 7, 2012

CERTIFICATES OF REVIEW FILED

No. 12-6004/AR. U.S., Appellant v. Eric W. COOPER, Appellee. CCA 20110914. 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 with the brief of Appellant and Joint Appendix on the following issues:

I. WHETHER THE MILITARY JUDGE AND THE ARMY COURT OF CRIMINAL APPEALS ERRED IN APPLYING MICHIGAN v. MOSLEY, 423 U.S. 96 (1975) AS OPPOSED TO OREGON v. BRADSHAW, 462 U.S. 1039 (1983) AND EDWARDS v. ARIZONA, 451 U.S. 477 (1981) TO THE FACTS OF THIS CASE.

II. WHETHER THE MILITARY JUDGE ERRED IN FINDING THE ACCUSED'S STATEMENT WAS INVOLUNTARILY MADE.

III. WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING THE ACCUSED'S ENTIRE TYPEWRITTEN STATEMENT BASED ON A SECOND ALLEGED VIOLATION OF HIS RIGHT TO REMAIN SILENT.

Appellee's answer under Rule 22(b)(1) will be filed on or before February 17, 2012.

Thursday, February 2, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0180/MC. U.S. v. Ian T. GLOVER. CCA 201100211. Review granted on the following issue:

No briefs will be filed under Rule 25.

Friday, January 27, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0165/MC. U.S. v. Stephen L. SCARINGELLO. CCA 201100192. Review granted on the following issue:

WHETHER THE NMCCA MISAPPLIED THIS COURT'S HOLDINGS IN 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.

No briefs will be filed under Rule 25.

No. 12-0195/AR. U.S. v. Chad E. GIBBS. CCA 20110083. Review granted on the following issue:

WHETHER SPECIFICATIONS 1-4 OF CHARGE III FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ.

No briefs will be filed under Rule 25.

Thursday, January 26, 2012

APPEALS-SUMMARY DISPOSITIONS

No. 12-0160/MC. U.S. v. Marvin B. FLETCHER. CCA 201000421. 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 United States Navy-Marine Corps Court of Criminal Appeals substitute a corrected CCA opinion to fix the obvious clerical error in the decretal paragraph to change Charge III to Charge IV.

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0199/AF. U.S. v. Erik W. BULLENS. CCA S31737. Review granted on the following issue:

No briefs will be filed under Rule 25.

Monday, January 23, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 09-0079/AR. U.S. v. James T. MURPHY. CCA 19872873. Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II AND THE SPECIFICATION OF ADDITIONAL CHARGE II FAIL TO STATE AN OFFENSE UNDER THE SUPREME COURT'S HOLDING IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2001).

No briefs will be filed under Rule 25.

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Thursday, January 19, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0136/AR. U.S. v. Colin M. JAMESON. CCA 20090908. Review granted on the following issue:

WHERE A SPECIFICATION CHARGED UNDER ARTICLE 134, UCMJ, FAILS TO STATE AN OFFENSE UNDER UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011), BY NOT INCLUDING THE TERMINAL ELEMENTS FOR CLAUSE 1 OR 2, CAN AN ACCUSED PROVIDENTLY PLEAD GUILTY TO SUCH A SPECIFICATION WHERE HE FAILS TO OBJECT TO THE SPECIFICATION AT TRIAL, WHERE THE MILITARY JUDGE ADVISES THE ACCUSED OF THE TERMINAL ELEMENTS DURING THE PROVIDENCE INQUIRY, AND THE ACCUSED ADMITS TO ALL THE ELEMENTS?

No briefs will be filed under Rule 25.

Tuesday, January 17, 2012

APPEALS-SUMMARY DISPOSITIONS

No. 11-0625/AR. U.S. v. Larry E. HENDERSON, Jr. CCA 20090613. Review granted on the following issues:

WHETHER, IN LIGHT OF BULLCOMING v. NEW MEXICO, 131 S.CT. 2705 (2011), APPELLANT WAS DENIED MEANINGFUL CROSS-EXAMINATION OF GOVERNMENT WITNESSES WHO PERFORMED AND OBSERVED THE ERRONEOUSLY ADMITTED LABORATORY TESTS IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION WHEN THE MILITARY JUDGE ALLOWED THE EXPERT TOXICOLOGIST TO TESTIFY TO NON-ADMISSIBLE HEARSAY.

WHETHER APPELLANT WAIVED THE CONFRONTATION CLAUSE ISSUE WITH RESPECT TO THE FORENSIC LABORATORY REPORTS BY ONLY OBJECTING TO THEIR ADMISSION BASED ON AN INADEQUATE CHAIN OF CUSTODY.

The decision of the United States Army Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issues.

No. 12-0142/NA. U.S. v. Osborn N. MIRANDA. CCA 201100084. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a bad-conduct discharge, and then stated, "In accordance with the UCMJ, Rules for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed." Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority's action purported to execute the bad-conduct discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in Manual for Courts-Martial, United States app. 16 at A16-1 - A16-6 (2008 ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, 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.

ORDERS GRANTING PETITION FOR REVIEW

No. 09-5003/AF. U.S. v. Brandon T. ROSE. CCA 36508. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 12-0132/AR. U.S. v. Kristopher M. HILOU. CCA 20100770. Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE AS IT 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.

Friday, January 13, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0030/AR. U.S. v. Michael C. BEHENNA. CCA 20090234. Review granted on the following issues:

WHETHER THE MILITARY JUDGE'S ERRONEOUS INSTRUCTION LIMITING THE RIGHT TO SELF-DEFENSE DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

WHETHER THE GOVERNMENT'S FAILURE TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE DEPRIVED APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

Briefs will be filed under Rule 25.

Wednesday, January 11, 2012

APPEALS-SUMMARY DISPOSITIONS

No. 12-0125/AR. U.S. v. Robert A. LYON. CCA 20090792. Review granted on the following issue:

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0164/AR. U.S. v. Jason S. CHAMBERLAIN. CCA 20100775. Review granted on the following issue:

Briefs will be filed under Rule 25.

No. 12-0182/AR. U.S. v. Nathaniel D. BOZMAN. CCA 20110077. Review granted on the following issue:

Briefs will be filed under Rule 25.

Thursday, January 5, 2012

APPEALS-SUMMARY DISPOSITIONS

No. 10-0649/AF. U.S. v. Dean E. THOMPSON. CCA 37380. Review granted on the following issue:

WHETHER APPELLANT RECEIVED POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL AND APPELLANT HAS MADE A COLORABLE SHOWING OF POSSIBLE PREJUDICE.

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to the granted issue. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.

No. 12-0009/MC. U.S. v. Brandon M. MAGNAN. CCA 201000414. Review granted on the following issue:

The decision of the United States Navy-Marine Corps Court of Criminal Appeals as to Charge V and Specification 3 thereunder, and the sentence is reversed, but is affirmed in all other respects. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).*

* We note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated, "In accordance with the UCMJ, Rules of Courts-Martial, applicable regulations, the pretrial agreement, and this action, the sentence is ordered executed." In fact, there was no pretrial agreement in this case. Moreover, under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority's action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in Manual for Courts-Martial, United States app. 16 at A16-1 - A16-6 (2008 ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006).

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011). However, I join the Court's statement regarding the convening authority's action.

No. 12-0028/AR. U.S. v. Carlos A. RIVERAROSADO. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE FOUND APPELLANT GUILTY OF SPECIFICATION 1 OF CHARGE I BASED ON HIS BELIEF THAT APPELLANT HAD COMMITTED THE SIMILAR OFFENSES ALLEGED IN SPECIFICATIONS 2 AND 3.

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 and consideration on the granted issue. The Court of Criminal Appeals will obtain affidavits related to the assigned issue from the military judge and other appropriate persons who attended the "Bridging the Gap" session after trial. The affidavits should be limited to determining what statements were made by the military judge in the session. See United States v. Matthews, 68 M.J. 29 (C.A.A.F. 2009). If the court, after reviewing the affidavits, determines that a fact-finding hearing is necessary, see United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997), 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 conduct its Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006), review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.

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 before the convening authority took action after remand, Appellant did not have the opportunity to submit matters under Rule for Courts-Martial (R.C.M.) 1105 and no staff judge advocate's recommendation was prepared under R.C.M. 1106. 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 APPELLANT'S SENTENCE DESPITE THE GOVERNMENT'S FAILURE TO COMPLY WITH THE REQUIREMENTS OF RULES FOR COURTS-MARTIAL 1105 AND 1106.

The decision of the United States Air Force Court of Criminal Appeals and the action of the convening authority are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for submission to an appropriate convening authority for a new recommendation and action consistent with United States v. Mendoza, 67 M.J. 53 (C.A.A.F. 2008). Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866 and 867 (2006), shall apply.

Wednesday, January 4, 2012

ORDERS GRANTING PETITION FOR REVIEW

No. 12-6002/AF. U.S. v. Darren N. HATHORNE. CCA 2011-02. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following assigned issue:

WHETHER GOVERNMENT COUNSEL'S STRATEGIC WITHHOLDING OF THE CONVENING AUTHORITY'S GRANT OF IMMUNITY MAKES APPELLANT'S STATEMENT TO GOVERNMENT COUNSEL NON-IMMUNIZED.

and that review is granted on the following additional specified issue:

WHETHER, IN LIGHT OF UNITED STATES v. LOPEZ DE VICTORIA,66 M.J.67 (C.A.A.F. 2008), THIS COURT HAS JURISDICTION OVER AN ARTICLE 62, UCMJ, APPEAL WHEN THE COURT-MARTIAL HAS ADJUDGED A SENTENCE THAT DID NOT INCLUDE A PUNITIVE DISCHARGE OR CONFINEMENT FOR ONE YEAR?

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

Tuesday, January 3, 2012

APPEALS - SUMMARY DISPOSITIONS

No. 12-0128/NA. U.S. v. Jacob D. NEVANDRO. CCA 201000641. 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 that 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 a panel of officer and enlisted members adjudged the sentence and not the military judge; there is no date that the sentence was adjudged; and, Appellant's unit should be USS GEORGE H.W. BUSH (CVN 77).

Wednesday, December 21, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0106/AF. U.S. v. Michael A. CISNEROS. CCA S31871. Review granted on the following issue:

Briefs will be filed under Rule 25.

No. 12-0140/AF. U.S. v. Jeremiah C. SLACK. CCA S31906. Review granted on the following issue:

Briefs will be filed under Rule 25.

Tuesday, December 20, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 09-0519/NA. U.S. v. Michael S. HODGE. CCA 200601124. Review granted on the following issue:

Briefs will be filed under Rule 25.

No. 11-0647/MC. U.S. v. Marchello K. HANCOCK. CCA 201000400. Review granted on the following issue:

AS IN UNITED STATES v. FOSLER, THE ARTICLE 134 SPECIFICATION FAILED TO ALLEGE EITHER POTENTIAL TERMINAL ELEMENT AND THEREFORE FAILED TO STATE AN OFFENSE. COULD APPELLANT PLEAD GUILTY TO A SPECIFICATION THAT FAILED TO STATE AN OFFENSE?

Briefs will be filed under Rule 25.

No. 12-0071/AR. U.S. v. Robert M. BIGBACK. CCA 20101044. Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT 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).

Briefs will be filed under Rule 25.

No. 12-0073/MC. U.S. v. Mark A. LEUBECKER. CCA 201100091. Review granted on the following issue:

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 SPECIFICATIONS STATE AN OFFENSE.

Briefs will be filed under Rule 25.

No. 12-0099/AR. U.S. v. Matthew J. MCCLAIN. CCA 20090446. Review granted on the following issue:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT'S CONVICTION OF POSSESSING CHILD PORNOGRAPHY.

Briefs will be filed under Rule 25.

No. 12-0131/AR. U.S. v. Robert L. MURCHISON. CCA 20101052. Review granted on the following issue:

WHETHER THE SPECIFICATION OF ADDITIONAL CHARGE II FAILS TO STATE AN OFFENSE AS IT 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).

Briefs will be filed under Rule 25.

Thursday, December 15, 2011

APPEALS - SUMMARY DISPOSITIONS

No. 12-0167/AR. U.S. v. Dantonio L. LYNCH. CCA 20110086. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

* It is directed that the promulgating order be corrected to reflect that the finding of the Specification of Charge I was "Guilty, except the words 'locking her bedroom door and'; Of the excepted words: Not guilty."

ORDERS GRANTING PETITION FOR REVIEW

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

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

Briefs will be filed under Rule 25.

No. 12-0053/AR. U.S. v. Richard L. EASTON. CCA 20080640. Review granted on the following issue:

WHETHER THE ARMY COURT ERRED IN HOLDING THE APPELLANT'S TRIAL DID NOT VIOLATE HIS CONSTITUTIONAL RIGHT AGAINST DOUBLE JEOPARDY BECAUSE JEOPARDY DID NOT ATTACH AND EVEN IF IT DID, MANIFEST NECESSITY JUSTIFIED THE CONVENING AUTHORITY'S DECISION TO WITHDRAW CHARGES.

Briefs will be filed under Rule 25.

Wednesday, December 7, 2011

APPEALS - SUMMARY DISPOSITIONS

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

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 12-0064/MC. U.S. v. Andrew L. BIRDWELL. CCA 201100229. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated,

In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed.

Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority's action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in Manual for Courts-Martial, United States app. 16 at A16-1 - A16-6 (2008 ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, 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.

No. 12-0100/AF. U.S. v. Chase C. MONTGOMERY. CCA 37556. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.*

*It is directed that the promulgating order be corrected to reflect that the drug used in Specification 13 of Charge III was 3, 4-methylenedioxyamphetamine, vice 3, 4-methylenedioxymethamphetamine.

Wednesday, November 30, 2011

APPEALS-SUMMARY DISPOSITIONS

No. 12-0012/AF. U.S. v. Natasha S. JUSTICE. CCA 37446. Review granted on the following issue:

The decision of the United States Air Force Court of Criminal Appeals is vacated. The record of trial 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. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 12-0044/AF. U.S. v. Varun K NARULA. CCA 37658. Review granted on the following issue:

WHETHER THE SPECIFICATION FOR FRATERNIZATION FAILS TO STATE AN OFFENSE BECAUSE IT ALLEGES A VIOLATION OF ARTICLE 134 BUT FAILS TO ALLEGE ANY OF ARTICLE 134'S TERMINAL ELEMENTS.

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0090/AF. U.S. v. Joseph A. HAYES. CCA 37588. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO DISMISS FOR FAILURE TO STATE AN OFFENSE, WHERE THE SPECIFICATION OMITTED REFERENCE TO A REQUIRED ELEMENT UNDER STATE LAW FOR A FINDING OF GUILTY FOR WRONGFUL CONSUMPTION OF ALCOHOL WHILE UNDER AGE 21.

Briefs will be filed under Rule 25.

Tuesday, November 22, 2011

APPEALS - SUMMARY DISPOSITIONS

No. 11-0361/AR. U.S. v. Mark C. CHARTIER. CCA 20100312. 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:

WHETHER SPECIFICATION 2 OF CHARGE IV FAILS TO STATE AN OFFENSE AS IT 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).

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 12-0124/NA. U.S. v. Kelvin J.C. RODEO. CCA 201000590. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated:

In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed.

Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority's action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in Manual for Courts-Martial, United States app. 16 at A16-1 – A16-6 (2008 ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, it is ordered that said petition is granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

Friday, November 18, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 12-0008/AR. U.S. v. Alaa M. ALI. CCA 20080559. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

II. WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER APPELLANT PURSUANT TO ARTICLE 2(a)(10), UNIFORM CODE OF MILITARY JUSTICE.

III. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

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

Tuesday, November 15, 2011

APPEALS-SUMMARY DISPOSITIONS

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

I. WHETHER IN LIGHT OF THIS COURT'S RECENT DECISION IN UNITED STATES v. FOSLER, THE SPECIFICATION OF THE CHARGE FAILED TO STATE AN OFFENSE UNDER ARTICLE 134.

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

III. WHETHER APPELLANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY BECAUSE APPELLANT DID NOT KNOW THAT AFTER PLEADING GUILTY SHE WOULD HAVE TO REGISTER AS A SEX OFFENDER, AND THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ACCEPTED APPELLANT'S UNKNOWING AND INVOLUNTARY PLEA WITHOUT ASKING THE TRIAL DEFENSE COUNSEL IF SHE HAD INFORMED APPELLANT OF THE APPLICABLE SEX OFFENDER REGISTER REQUIREMENTS.

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 and consideration of the granted issues. The Court of Criminal Appeals will obtain affidavits from the 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) (2006), 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. 238 (C.A.A.F. 1997). If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.

BAKER, Chief Judge (dissenting):

With respect to Issue I, I adhere to my dissent in Fosler, where I specifically addressed the issue of kidnapping. United States v. Fosler, 70 M.J. 225, 244-45 (C.A.A.F. 2011).

No. 12-0082/AF. U.S. v. Steven D. HARRIS, Jr. CCA S31822. Review granted on the following issue:

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0258/MC. U.S. v. Travis J. WESTHOVEN. CCA 201000132. Review granted on the following issue:

WHETHER, IN LIGHT OF UNITED STATES v. MCMURRIN, 70 M.J. 15 (C.A.A.F. 2011), AND UNITED STATES v. MORTON, 69 M.J. 12 (C.A.A.F. 2010), APPELLANT'S GUILTY PLEA TO AN OFFENSE NOT NECESSARILY INCLUDED IN THE CHARGED OFFENSE CAN BE AFFIRMED UNDER UNITED STATES v. WILKINS, 29 M.J. 421 (C.M.A. 1990).

Briefs will be filed under Rule 25.

Monday, November 14, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 12-6001/AF. U.S. v. Scott M. DEASE, Jr. CCA 2011-04. Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING APPELLANT HAD ABANDONED HIS URINEAND THUS HAD NO REASONABLE EXPECTATION OF PRIVACY WHERE APPELLANT CONSENTED TO THE SEIZURE OF HISURINE AND THEN REVOKED CONSENT PRIOR TO THE SEARCH OF APPELLANT'S URINE.

Tuesday, November 8, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 12-0046/AR. U.S. v. Daniel A. SMELSER. CCA 20110114. Review granted on the following issue:

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE AS IT 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).

BAKER, Chief Judge (dissenting):

I adhere to my dissent in Fosler, where I specifically addressed the issue of kidnapping. United States v. Fosler, 70 M.J. 225, 244-45 (C.A.A.F. 2011).

No. 12-0057/AR. U.S. v. Row E. BUHROW III. CCA 20100911. Review granted on the following issue:

WHETHER CHARGE III FAILED TO STATE AN OFFENSE WHERE THE GOVERNMENT DID NOT ALLEGE APPELLANT'S CONDUCT WAS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES.

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0399/NA. U.S. v. Willie A. BRADLEY. CCA 200501089. Review granted on the following issues:

I. IN BRADLEY I, THIS COURT RULED THAT ITS APPLICATION OF WAIVER TO APPELLANT'S DISQUALIFICATION-OF-TRIAL-COUNSEL CLAIM DID NOT RENDER HIS PLEAS IMPROVIDENT WHERE THERE WAS: (1) NO INEFFECTIVE ASSISTANCE OF COUNSEL (IAC) CLAIM; AND (2) ONLY A POSSIBILITY THAT HE BELIEVED THE DISQUALIFICATION CLAIM WAS PRESERVED FOR APPEAL. ON REMAND, APPELLANT CLAIMED IAC AND PRESENTED EVIDENCE THAT HE DID BELIEVE HIS DISQUALIFICATION ISSUE WAS PRESERVED. DID NMCCA ERR IN HOLDING THAT IT WAS BOUND BY THIS COURT'S RULING THAT APPELLANT'S PLEAS WERE PROVIDENT?

II. APPELLANT'S CIVILIAN COUNSEL ERRONEOUSLY ADVISED HIM THAT HIS DENIED MOTION TO DISQUALIFY TRIAL COUNSEL FROM FURTHER PARTICIPATION IN THE CASE WAS PRESERVED FOR APPEAL DESPITE UNCONDITIONAL PLEAS. DID NMCCA ERR IN FINDING THAT CIVILIAN COUNSEL'S ERRONEOUS ADVICE WAS REASONABLE, AND THEREFORE NOT DEFICIENT?

III. ON REMAND, DID NMCCA VIOLATE THE LAW OF THE CASE DOCTRINE BY FINDING THAT EVEN IF THE TRIAL JUDGE ERRED BY NOT DISQUALIFYING TRIAL COUNSEL - WHICH THE BRADLEY I COURT FOUND HE HAD - APPELLANT WAS NOT PREJUDICED - WHICH THE BRADLEY I COURT FOUND HE WAS?

Briefs will be filed under Rule 25.

Friday, October 28, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 11-0567/AR. U.S. v. Eric L. NORDIN. CCA 20090044. Review granted on the following issue:

WHETHER TRIAL DEFENSE COUNSEL PROVIDED, TO THE SUBSTANTIAL PREJUDICE OF APPELLANT, INEFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE COUNSEL FAILED TO PRESENT A DEFENSE CASE ON FINDINGS OR TO PREPARE A DEFENSE SENTENCING CASE.

and on the following specified issue:

The Court of Criminal Appeals will obtain an additional affidavit from the military trial defense counsel relating to the assigned issue, an issue that is broader in scope than a similar one raised below. That affidavit should address the military trial defense counsel's pretrial investigation, his preparation of a defense on the merits and a sentencing case, and his response to the post-trial affidavits of civilian trial defense counsel and Appellant. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2006), the Court of Criminal Appeals shall review the assigned issue in light of the affidavit and any other relevant matters. See United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997). If the court determines that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2006), shall apply.

Friday, October 21, 2011

APPEALS SUMMARY-DISPOSITIONS

No. 11-0104/AF. U.S. v. Edward T. HUDSON. CCA 37249. Review granted on the following issue:

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Thursday, October 20, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 11-0629/AR. U.S. v. Jesse V. SPIELMAN. CCA 20070883. Review granted on the following issue:

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Wednesday, October 19, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 11-0639/AR. U.S. v. Tanner P. FORRY. CCA 20080334. Review granted on the following issue:

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 12-0034/AR. U.S. v. Joel L. KAIN II. CCA 20100490. Review granted on the following issue:

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Friday, October 14, 2011

APPEALS – SUMMARY DISPOSITIONS

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

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Thursday, October 13, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 12-0026/AF. U.S. v. Charles L. WALTON. CCA 37664. Review granted on the following issue:

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Friday, October 7, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0475/AR. U.S. v. Robert L. CONRADY. CCA 20080534. Review granted on the following specified issues:

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT'S CONVICTION FOR SODOMY WITH A CHILD (SPECIFICATION 3 OF CHARGE II), AND INDECENT ACTS WITH A CHILD (SPECIFICATION 7 OF CHARGE III) "ON DIVERS OCCASIONS."

The guilty findings to the words "on divers occasions" contained in Specification 3 of Charge II and Specification 7 of Charge III are set aside and dismissed, and the decision of the United States Army Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the second specified issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

BAKER, Chief Judge (concurring in part and dissenting in part):

I concur with the disposition of the first specified issue. I dissent on the disposition of the second issue for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F 2011).

EFFRON, Senior Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 233-40 (C.A.A.F 2011).

Thursday, October 6, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 11-0644/AR. U.S. v. Brandon T. TESSIER. CCA 20100161. On consideration of the petition for a grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is 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 reflect that both the plea and finding with respect to Specification 1 of the Charge were "Guilty," and that the specification had been amended prior to arraignment to read as follows: "In that Specialist Brandon T. Tessier, U.S. Army, did, at or near Fort Dix, New Jersey, between on or about 15 November 2008 and 28 November 2008, wrongfully and knowingly possess child pornography, which was to the prejudice of good order and discipline, or was of a nature to bring discredit to the armed forces."

No. 11-0664/NA. U.S. v. Derek L. ALLEN. CCA 201100040. Review granted on the following issue:

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 12-0019/AR. U.S. v. Thomas A. PRESSLEY. CCA 20110106. 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 reflect a plea of not guilty to the Specification of Charge III.

Tuesday, October 4, 2011

APPEALS - SUMMARY DISPOSITIONS

No. 11-0650/AF. U.S. v. Robert A. NICHOLSON. CCA 37642. Review granted on the following issue:

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 11-0661/AR. U.S. v. Joshua J. CHASTAIN. CCA 20100994. Review granted on the following issue:

The decision of the United States Army Court of Criminal Appeals is vacated. The record of trial 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. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

BAKER, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Thursday, September 29, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 11-0640/AR. U.S. v. Robert L. MCCULLOUGH. CCA 20090206. Review granted on the following issue:

EFFRON, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 233-40 (C.A.A.F. 2011).

BAKER, Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Friday, September 23, 2011

APPEALS – SUMMARY DISPOSITIONS

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

EFFRON, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 233-40 (C.A.A.F. 2011).

BAKER, Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

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

EFFRON, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 233-40 (C.A.A.F. 2011).

BAKER, Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 11-0652/AF. U.S. v. Michelle E. COURTNEY. CCA 37694. Review granted on the following issue:

EFFRON, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 233-40 (C.A.A.F. 2011).

BAKER, Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

No. 11-0655/AF. U.S. v. Robert A. AURAND. CCA S31863. Review granted on the following issue:

EFFRON, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 233-40 (C.A.A.F. 2011).

BAKER, Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

Thursday, September 22, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 10-0659/AF. U.S. v. Garland R. STEWART. CCA S31685. On further consideration of the granted issue (69 M.J. 403 (C.A.A.F. 2010)), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issue in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of the cover memorandum and specimen custody document of the drug testing report was harmless beyond a reasonable doubt.¹

¹ Nothing in this order is intended to limit the scope of the Court of Criminal Appeals' review on remand, including, but not limited to, consideration of the issue raised in Judge Stucky's separate opinion.

STUCKY, Judge (concurring in the result):

I affirm my dissenting vote in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined by Stucky, J., concurring in part and dissenting in part). The drug testing report at issue in this case was the third report. It was created pursuant to a follow-up urinalysis test after the accused had previously tested positive. It is not entirely clear whether this fact would change the primary purpose of the third test or the statements made pursuant thereto. Given this difference, and because this Court is not otherwise considering its significance, I agree that setting aside the United States Air Force Court of Criminal Appeals' decision and remanding the case is the most appropriate action.

BAKER, Judge (dissenting):

I would affirm based on the analysis of the Court of Criminal Appeals in this case and based on my separate opinion in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined by Stucky, J., concurring in part and dissenting in part).

No. 10-6002/AF. U.S. v. Matthew D. SKREDE. CCA 2009-09. On further consideration of the granted issues (69 M.J. 176-77 (C.A.A.F. 2010)), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further proceedings consistent with this Court's decisions in United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010).¹

STUCKY, Judge (concurring in the result):

I affirm my dissenting vote in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011), (Baker, J., joined by Stucky, J., concurring in part and dissenting in part). I write separately given a notable factual difference from Sweeney. Although the accused's first test was conducted pursuant to a random urinalysis test, the second test was conducted because the accused's first test was positive. It is not entirely clear whether this fact would change the primary purpose of the second test or the statements made pursuant thereto. Given this difference, and because this Court is not otherwise considering its significance, I agree that setting aside the United States Air Force Court of Criminal Appeals' decision and returning the record to the Judge Advocate General is the most appropriate option.

BAKER, Judge (dissenting):

No. 11-0045/AF. U.S. v. William E.V. DUNN. CCA S31584. On further consideration of the granted issue (69 M.J. 457-58 (C.A.A.F. 2010)), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issue in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of the cover memoranda and specimen custody documents of the drug testing report was harmless beyond a reasonable doubt.¹

STUCKY, Judge (concurring in the result):

I affirm my dissenting vote in United States v. Sweeney, 70 M.J. 296, 306-13 (Baker, J., joined by Stucky, J., concurring in part and dissenting in part). I write separately given a notable factual difference from Sweeney. The accused was subjected to a urinalysis test because of his erratic behavior and because he was an informant. It is not entirely clear whether these facts would change the primary purpose of the test or the statements made pursuant thereto. Given this difference, and because this Court is not otherwise considering its significance, I agree that setting aside the United States Air Force Court of Criminal Appeals' decision and remanding is the most appropriate option.

BAKER, Judge (dissenting):

I would affirm based on the analysis of the Court of Criminal Appeals in this case and based on my separate opinion in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011)(Baker, J., joined by Stucky, J., concurring in part and dissenting in part).

Wednesday, September 21, 2011

APPEALS – SUMMARY DISPOSITIONS

No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044.

No. 11-0227/NA. U.S. v. Ros L. DAVIS. CCA 201000302.

No. 11-0293/CG. U.S. v. Kenya BERNARD. CCA 0262.

No. 11-0303/MC. U.S. v. Thomas R. LIRLEY. CCA 201000502.

No. 11-0362/AR. U.S. v. Thomas G. GENTRY. CCA 20080985.

No. 11-0368/AR. U.S. v. Brantley R. TYSON. CCA 20100093.

No. 11-0374/AR. U.S. v. Lelan M. SHANKLES. CCA 201000307.

No. 11-0380/MC. U.S. v. Napoleon C. HERNANDEZ. CCA 201000427.

No. 11-0383/NA. U.S. v. Gary W. LUMPKINS, Jr. CCA 201000554.

No. 11-0400/AR. U.S. v. Michael T. MCNAUGHTON. CCA 20090596.

No. 11-0401/AF. U.S. v. David M. ATTARDO. CCA S3183.

No. 11-0419/AR. U.S. v. Bradley L. GUMP. CCA 20100546.

No. 11-0420/AR. U.S. v. Cody t. SMITH. CCA 20100646.

No. 11-0422/AR. U.S. v. Byron D. TYSON. CCA 20090072.

No. 11-0427/AR. U.S. v. Nicholas A. PATLA. CCA 20100809.

No. 11-0434/AR. U.S. v. David J. ISENHOWER. CCA 201003554.

No. 11-0437/MC. U.S. v. Royan R. ROSCHE. CCA 201000461.

No. 11-0443/AR. U.S. v. Aaron P. HUDSON. CCA 20090506.

No. 11-0446/MC. U.S. v. Justin GEYER. CCA 201000398.

No. 11-0453/AR. U.S. v. Aaron M. MITCHELL. CCA 20100713.

No. 11-0454/AR. U.S. v. Oren A. REECE. CCA 20100448.

No. 11-0467/AR. U.S. v. Arthur R. YOUNG, JR. CCA 20090092.

No. 11-0474/AR. U.S. v. Anthony P. KNOWLAND. CCA 20071405.

No. 11-0476/AR. U.S. v. Berttran L. TILLER. CCA 20080438.

No. 11-0481/AF. U.S. v. Nathan J. ARNOLD. CCA 37697.

No. 11-0494/AF. U.S. v. Michael T. NERAD. CCA 36994.

No. 11-0495/AR. U.S. v. Brandon K. PRICE. CCA 20100382.

No. 11-0496/AR. U.S. v. Christohper D. RICE. CCA 20090857.

No. 11-0511/AR. U.S. v. Aaron P. STONE. CCA 20090332.

No. 11-0514/NA. U.S. v. Damien J. AUTRY. CCA 201100105.

No. 11-0516/AR. U.S. v. Maurice K. ROBINS. CCA 20090996.

No. 11-0525/AF. U.S. v. Michael P. GRAFMULLER. CCA 37524.

No. 11-0529/AF. U.S. v. Matthew C. ROTH. CCA S31834.

No. 11-0554/AR. U.S. v. Terry D. RORRO. CCA 20100750.

No. 11-0558/AR. U.S. v. Alvaro GARCIA, Jr. CCA 20080839.

No. 11-0564/MC. U.S. v. Bradley A. MORALES. CCA 201000057.

No. 11-0565/NA. U.S. v. Jack C. RUSCITTO. CCA 201100023.

No. 11-0566/MC. U.S. v. Alan D. SOBENES. CCA 201000381.

No. 11-0575/NA. U.S. v. Corry F. OLMOS. CCA 201100133.

No. 11-0580/AR. U.S. v. Gregory A. ROBINSON. CCA 20100495.

No. 11-0595/NA. U.S. v. William C. FAIRLEY. CCA 200900574.

No. 11-0599/AR. U.S. v. Michael D. DARROW. CCA 20100816.

No. 11-0601/AR. U.S. v. Robert A. MOORE. CCA 20100662.

No. 11-0607/AF. U.S. v. Ronald C RENFROE. CCA 37736.

No. 11-0610/AR. U.S. v. Marcus MELCHOR. CCA 20100272.

No. 11-0611/AR. U.S. v. Louis F. DIETZ. CCA 20081031.

No. 11-0614/NA. U.S. v. Abayomi O. KALEJAIYE. CCA 201100007.

No. 11-0617/AF. U.S. v. Donald W. SWENSEN. CCA 37555.

No. 11-0626/AR. U.S. v. Kirby B. MOSES. CCA 20090247.

No. 11-0637/AF. U.S. v. Keitron J. CLARK. CCA S31842.

No. 11-0642/AF. U.S. v. Daniel W. DREWS. CCA S37727.

On further consideration of the granted issue in the above cases, the decision of the Court of Criminal Appeals is hereby vacated. The record of trial is returned to the Judge Advocate General for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).

EFFRON, Chief Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 233-40 (C.A.A.F. 2011) (Effron, C.J., dissenting).

BAKER, Judge (dissenting):

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011) (Baker, J., dissenting).

Tuesday, September 20, 2011

APPEALS - SUMMARY DISPOSITIONS

No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 200800827. On further consideration of the granted issue, 69 M.J. 168 (C.A.A.F. 2010), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for consideration of the granted issue in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of the specimen custody document of the drug testing report was harmless beyond a reasonable doubt.

BAKER, Judge, joined by STUCKY, Judge (dissenting):

No. 10-0668. U.S. v. Jerrod D. NUTT. CCA S31600. On further consideration of the granted issues, 69 M.J. 271-72 (C.A.A.F. 2010), and the briefs of the parties, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issues in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of the cover memorandum and specimen custody document of the drug testing report was harmless beyond a reasonable doubt.

BAKER, Judge, joined by STUCKY, Judge (dissenting):

No. 10-0685/AF. U.S. v. Kenneth J. BURTON, Jr. CCA S31682. On further consideration of the granted issues, 69 M.J. 403 (C.A.A.F. 2010), and the briefs of the parties, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issues in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of the cover memorandum and specimen custody document of the drug testing report was harmless beyond a reasonable doubt.

BAKER, Judge, joined by STUCKY, Judge (dissenting):

No. 11-0034/AF. U.S. v. Jonathan G. WEEKS. CCA S31625. On further consideration of the granted issues, 69 M.J. 436 (C.A.A.F. 2010), and the briefs of the parties, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issues in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of the cover memorandum and specimen custody document of the drug testing report was harmless beyond a reasonable doubt.

BAKER, Judge, joined by STUCKY, Judge (dissenting):

No. 11-0497/MC. U.S. v. Desmond J. HORTON. CCA 201000481. Upon further consideration of the granted issues, 70 M.J. 223 (C.A.A.F. 2011), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record is returned to the Judge Advocate General of the Navy for remand to that court for consideration of the granted issues in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010) and to determine whether error occurred in the admission of the drug testing report, and, if so, whether the error was harmless beyond a reasonable doubt.¹

BAKER, Judge (dissenting):

I would affirm based on the analysis of the Court of Criminal Appeals in this case and based on my separate opinion in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011)(Baker, J., joined by Stucky, J., concurring in part and dissenting in part).

STUCKY, Judge (dissenting):

Appellant went to trial more than a year after the Supreme Court decided Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and more than two months after this Court decided United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010) (Blazier I). When the Government moved to introduce the drug testing laboratory report, the military judge asked Appellant's counsel if he objected to its admission or any part thereof. Counsel said that he had no objection. The military judge reiterated his question but received the same response from Appellant's counsel. Under these circumstances, I conclude that Appellant waived -–intentionally relinquished his right to contest on appeal -- his right to confront the laboratory technicians who performed the tests on his urine specimen. I would affirm the judgment of the United States Navy-Marine Corps Court of Criminal Appeals. Therefore, I respectfully dissent.

No. 11-0563/MC. U.S. v. Anthony J. SANDERS. CCA 201000522. On further consideration of the granted issue, __ M.J. __, (Daily Journal September 15, 2011), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for consideration of the granted issue in light of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous admission of testimonial hearsay in the drug testing report was harmless beyond a reasonable doubt.

BAKER, Judge (dissenting):

I would affirm based on the analysis of the Court of Criminal Appeals in this case and based on my separate opinion in United States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011)(Baker, J., joined by Stucky, J., concurring in part and dissenting in part).

Friday, September 16, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0462/AR. U.S. v. Christopher A. BARBERI. CCA 20080636. Review granted on the following issue:

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

Briefs will be filed under Rule 25.

CERTIFICATES FOR REVIEW FILED

No. 11-5005/MC. U.S. v. Jeremy J. NASH. CCA 201000220. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date, on the following issues:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN REVIEWING THE IMPLIED BIAS ISSUE DE NOVO, RATHER THAN REVIEWING THE IMPLIED BIAS ISSUE UNDER THE STANDARD OF "LESS DEFERENCE THAN ABUSE OF DISCRETION, BUT MORE DEFERENCE THAN DE NOVO" AS SET FORTH IN U.S. v. BAGSTAD, 68 M.J. 460 (C.A.A.F.2010)?

WHETHER THE LOWER COURT FAILED TO APPLY THE IMPLIED BIAS TEST THAT ASKS WHETHER, CONSIDERED OBJECTIVELY, "MOST PEOPLE IN THE SAME POSITION WOULD BE PREJUDICED," REITERATED IN 2010 IN BAGSTAD, AND INSTEAD ERRONEOUSLY APPLIED A TEST ASKING WHETHER THE MEMBER'S CIRCUMSTANCES "DO INJURY TO THE PERCEPTION OR APPEARANCE OF FAIRNESS IN THE MILITARY JUSTICE SYSTEM"?

WHETHER THE LOWER COURT ERRED IN REVERSING THE MILITARY JUDGE AND SETTING ASIDE THE FINDINGS AND SENTENCE FOR IMPLIED BIAS WHERE THE MEMBER SUBMITTED A WRITTEN REQUEST, WHICH WAS DENIED, THAT THE MILITARY JUDGE ASK A WITNESS "DO YOU THINK THAT PEDOPHILES CAN BE REHABILITATED?

Appellant will file a brief in accordance with Rule 24 on the certified issues on or before the 17th day of October, 2011. Appellee will file a brief no later than 30 days after the filing of Appellant's brief. Appellant may file a reply no later than 10 days after the filing of Appellee's brief.

Thursday, September 15, 2011

ORDERS GRANTING PETITION FOR REVIEW

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

IN APPELLANT'S COURT-MARTIAL, THE MILITARY JUDGE ADMITTED A LABORATORY REPORT WHICH INCLUDED NOTATIONS FROM LAB TECHNICIANS AND A CERTIFICATION DOCUMENT STATING IN PLAIN TERMS THAT APPELLANT TESTED POSITIVE FOR AN ILLEGAL SUBSTANCE. THE REPORT WAS DESIGNED TO BE "LEGALLY DEFENSIBLE" AT COURT-MARTIAL. DID THE ADMISSION OF THIS REPORT VIOLATE APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM ABSENT TESTIMONY FROM THE TECHNICIANS OR THE CERTIFYING OFFICIAL WHO CREATED THE DOCUMENTS IN THE REPORT?

No briefs will be filed under Rule 25.

CERTIFICATES FOR REVIEW FILED

No. 10-5004/AF. U.S. v. Ryan D. HUMPHRIES. CCA 37632. The Judge Advocate General of the Air Force has requested that action be taken with respect to 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 AND ERRED IN AN ATTEMPT AT EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPROVE AN ADJUDGED SENTENCE NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE OF E-1.

Briefs will be filed under Rule 25.

Wednesday, September 14, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0614/NA. U.S. v. Abayomi O. KALEJAIYE. CCA 201100007. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0642/AF. U.S. v. Daniel W. DREWS. CCA S37727. Review granted on the following issue:

No briefs will be filed under Rule 25.

CERTIFICATES FOR REVIEW FILED

No. 09-5003/AF. U.S. v. Brandon T. ROSE. CCA 36508. The Judge Advocate General of the Air Force has requested that action be taken with respect to the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING INEFFECTIVE ASSISTANCE OF COUNSEL IN THIS CASE.

Briefs will be filed under Rule 25.

Tuesday, September 13, 2011

APPEALS - SUMMARY DISPOSITIONS

No. 11-0619/AR. U.S. v. Steven E. SPENCER. CCA 20060040. 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 noted that in summarizing the findings, the United States Army Court of Criminal Appeals in its decision dated June 17, 2011, omitted mentioning the conviction under Charge I, Specification 2 (Redesignated Specification 1) for wrongful introduction of lysergic acid diethylamide (LSD) onto a military installation with the intent to distribute. Because it had referenced this offense in both of its previous decisions in this case, we view this solely as a clerical error. Furthermore, we direct that the court-martial promulgating order dated April 21, 2010, be corrected to reflect that Charge I, Specification 2 (Redesignated Specification 1) states that same offense.

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0559/NA. U.S. v. Jordan J. ESCOCHEA-SANCHEZ. CCA 201000093. Review granted on the following issue:

WHETHER ARTICLE 120(c) IS UNCONSTITUTIONAL AS APPLIED WHERE: THE MILITARY JUDGE (1) REQUIRED APPELLANT TO PROVE THE AFFIRMATIVE DEFENSES OF CONSENT AND MISTAKE OF FACT AS TO CONSENT BY A PREPONDERANCE OF THE EVIDENCE; (2) DETERMINED THAT THE DEFENSES HAD BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE; AND THEN (3) FAILED TO DISMISS THE CHARGES SUA SPONTE AS REQUIRED BY RULE FOR COURTS-MARTIAL 917.

No briefs will be filed.

No. 11-0595/NA. U.S. v. William C. FAIRLEY. CCA 200900574. Review granted on the following issue:

No briefs will be filed under Rule 25.

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

No briefs will be filed under Rule 25.

No. 11-0626/AR. U.S. v. Kirby B. MOSES. CCA 20090247. Review granted on the following issue:

No briefs will be filed under Rule 25.

Wednesday, August 31, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0637/AF. U.S. v. Keitron J. CLARK. CCA S31842. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F 2011).

No briefs will be filed under Rule 25.

Friday, August 26, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0558/AR. U.S. v. Alvaro GARCIA, Jr. CCA 20080839. Review granted on the following issue:

No briefs will be filed under Rule 25.

Monday, August 22, 2011

ORDERS GRANTING PETITION FOR REVIEW

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

No briefs will be filed under Rule 25.

No. 11-0617/AF. U.S. v. Donald W. SWENSEN. CCA 37555. Review granted on the following issue:

No briefs will be filed under Rule 25.

Thursday, August 18, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0526/AF. U.S. v. Kody T. WEEKS. CCA 37535. Review granted on the following issue:

WHETHER APPELLANT'S GUILTY PLEA TO CHARGE II AND ITS SPECIFICATION IS IMPROVIDENT BECAUSE APPELLANT DID NOT FALSELY MAKE OR ALTER A SIGNATURE OR WRITING.

Briefs will be filed under Rule 25.

No. 11-0565/NA. U.S. v. Jack C. RUSCITTO. CCA 201100023. Review granted on the following issue:

No briefs will be filed under Rule 25.

Tuesday, August 16, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0610/AR. U.S. v. Marcus MELCHOR. CCA 20100272. Review granted on the following issue:

No briefs will be filed under Rule 25.

Monday, August 15, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0615/AR. U.S. v. Darrian S. NEALY. CCA 20100654. Review granted on the following issues:

I. APPELLANT WAS CHARGED WITH COMMUNICATING A THREAT UNDER ARTICLE 134, BUT WAS CONVICTED PURSUANT TO HIS PLEA OF USING PROVOKING SPEECH IN VIOLATION OF ARTICLE 117. IN LIGHT OF UNITED STATES v. JONES, 68 M.J. 465 (2010) CAN THE CONVICTION BE SUSTAINED?

II. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

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

Thursday, August 11, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0566/MC. U.S. v. Alan D. SOBENES. CCA 201000381. Review granted on the following specified issue:

No briefs will be filed under Rule 25.

No. 11-0601/AR. U.S. v. Robert A. MOORE. CCA 20100662. Review granted on the following issue:

No briefs will be filed under Rule 25.

Wednesday, August 10, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0440/MC. U.S. v. Nicholas S. STEWART. CCA 201000021. Review granted on the following issues:

I. UNDER UNITED STATES v. PRATHER, IS IT LEGALLY POSSIBLE FOR THE PROSECUTION TO DISPROVE AN AFFIRMATIVE DEFENSE BEYOND A REASONABLE DOUBT ONCE THE MILITARY JUDGE HAS DETERMINED THAT THE DEFENSE HAS BEEN PROVED BY A PREPONDERANCE OF THE EVIDENCE AND, IF NOT, IS THE MILITARY JUDGE REQUIRED TO ENTER A FINDING OF NOT GUILTY IN SUCH A CASE UNDER RCM 917?

II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING THE EVIDENCE FACTUALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUSTAIN APPELLANT'S CONVICTION UNDER SPECIFICATION 2 BECAUSE IN DOING SO IT (1) VIOLATED THE PRATHER LEGAL-IMPOSSIBILITY PRINCIPLE AND (2) IMPERMISSIBLY FOUND AS FACTS ALLEGATIONS THAT HE WAS FOUND NOT GUILTY OF IN SPECIFICATION 1.

III. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY REQUIRING THE DEFENSE TO PRESENT EVIDENCE ON THE DEFENSE OF CONSENT AT AN ARTICLE 39(a) SESSION PRIOR TO TRIAL.

Briefs will be filed under Rule 25.

Thursday, July 28, 2011

ORDERS GRANTING PETITION FOR REVIEW

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

No briefs will be filed under Rule 25.

No. 11-0516/AR. U.S. v. Maurice K. ROBINS. CCA 20090996. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0575/NA. U.S. v. Corry F. OLMOS. CCA 201100133. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0607/AF. U.S. v. Ronald C. RENFROE. CCA 37736. Review granted on the following issue:

No briefs will be filed under Rule 25.

Wednesday, July 27, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0400/AR. U.S. v. Michael T. MCNAUGHTON. CCA 20090596. Review granted on the following issue:

No briefs will be filed under Rule 25.

Tuesday, July 26, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0564/MC. U.S. v. Bradley A. MORALES. CCA 201000057. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0580/AR. U.S. v. Gregory A. ROBINSON. CCA 20100495. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0599/AR. U.S. v. Michael D. DARROW. CCA 20100816. Review granted on the following issue:

No briefs will be filed under Rule 25.

Thursday, July 21, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0143/AR. U.S. v. Aaron R. STANLEY. CCA 20050703. On further consideration of the above-captioned case, in which the petition for review of the decision of the United States Army Court of Criminal Appeals was granted on March 31, 2011, it is further ordered that said petition is also hereby granted on the following issue:

No additional briefs will be filed under Rule 25.

No. 11-0257/MC. U.S. v. Thomas J. SCHUMACHER. CCA 201000153. On further consideration of the above-captioned case, in which the petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was granted on March 8, 2011, it is further ordered that said petition is also hereby granted on the following issue:

No additional briefs will be filed under Rule 25.

No. 11-0282/AR. U.S. v. Bobby D. MORRISSETTE. CCA 20090166. On further consideration of the above-captioned case, in which the petition for review of the decision of the United States Army Court of Criminal Appeals was granted April 148, 2011, it is further ordered that said petition is also hereby granted on the following issue:

No additional briefs will be filed under Rule 25.

No. 11-0583/NA. U.S. v. Michael D. KING, Jr. CCA 201000406. Review granted on the following issue:

WHETHER SPECIFICATION 5 OF CHARGE I ALLEGING AN INDECENT ACT UNDER ARTICLE 120(k), UCMJ, FAILED TO STATE AN OFFENSE WHERE THE INDECENT ACT ALLEGED WAS APPELLANT ORALLY REQUESTING DURING A SKYPE INTERNET CONVERSATION THAT A CHILD UNDER THE AGE OF 16 YEARS EXPOSE HER BREASTS SO THAT HE COULD VIEW THEM UTILIZING THE WEB CAMERA.

Briefs will be filed under Rule 25.

Tuesday, July 19, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 10-0265/AF. U.S. v. Douglas E. LONG. CCA 37044. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDING IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

No briefs will be filed under Rule 25.

No. 11-0523/MC. U.S. v. Alexander M. WATSON. CCA 201000263. Review granted on the following issues:

I. WHETHER APPELLANT'S GUILTY PLEA TO FRAUDULENT ENLISTMENT WAS PROVIDENT.

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

Friday, July 15, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0496/AR. U.S. v. Christopher D. RICE. CCA 20090857. Review granted on the following issue:

No briefs will be filed under Rule 25.

Thursday, July 7, 2011

ORDERS GRANTING PETITION FOR REVIEW

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

WHETHER THE LOWER COURT ERRED IN AFFIRMING THE FINDING OF GUILTY AS TO SPECIFICATION 3 OF CHARGE III WHEN IT FOUND THAT AN ONLINE CHAT CONTAINING THE LINE "U FREE TONIGHT" WAS SUFFICIENT TO PROVE ATTEMPTED ENTICEMENT.

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING FORFEITURE OF ALL PAY AND ALLOWANCES WHEN THE CONVENING AUTHORITY DID NOT APPROVE ANY FORFEITURE.

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

Thursday, June 30, 2011

ORDERS GRANTING PETITION FOR REVIEW

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

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN DECLINING TO APPLY MELENDEZ-DIAZ v. MASSACHUSETTS, IN APPLYING THE CONSTITUTIONAL HARMLESSNESS TEST INCORRECTLY, AND IN ASSERTING THAT UNITED STATES v. MAGYARI CONTROLS WHEN IT HELD THAT: (1) DRUG LABORATORY DOCUMENTS ARE NON-TESTIMONIAL IN NATURE; (2) DRUG LAB REPORTS ARE BUSINESS RECORDS THAT FALL UNDER THE HEARSAY EXCEPTION, AND (3) THERE WAS NOTHING TO SUGGEST THAT THE LAB REPORT WAS GENERATED FOR COURT-MARTIAL USE.

II. WHETHER IN LIGHT OF THE UNITED STATES SUPREME COURT'S RULING IN MELENDEZ-DIAZ, THE ADMISSION OF REPORTS GENERATED BY ABSENT, UNTESTED LAB TECHNICIANS IN VIOLATION OF APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AMOUNTED TO EITHER INEFFECTIVE ASSISTANCE ON THE PART OF THE TRIAL DEFENSE COUNSEL OR PLAIN ERROR ON THE PART OF THE JUDGE.

No briefs will be filed under Rule 25.

No. 11-0529/AF. U.S. v. Matthew C. ROTH. CCA S31834. Review granted on the following issue:

No briefs will be filed under Rule 25.

Wednesday, June 29, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0514/NA. U.S. v. Damien J. AUTRY. CCA 201100105. Review granted on the following issue:

No briefs will be filed under Rule 25.

Monday, June 27, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0494/AF. U.S. v. Michael T. NERAD. CCA 36994. Review granted on the following issue:

No briefs will be filed under Rule 25.

Thursday, June 23, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0554/AR. U.S. v. Terry D. RORRO. CCA 20100750. Review granted on the following issue:

Wednesday, June 22, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0467/AR. U.S. v. Arthur R. YOUNG Jr. CCA 20090092. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and Appellant’s motion to file a supplemental supplement to the petition for grant of review, it is ordered that said motion to file a supplemental supplement to the petition for grant of review is hereby granted, and that said petition is hereby granted on the following issue specified by the Court:

No briefs will be filed under Rule 25.

No. 11-0525/AF. U.S. v. Michael P. GRAFMULLER. CCA 37524. Review granted on the following issue:

No briefs will be filed under Rule 25.

Tuesday, June 21, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0495/AR. U.S. v. Brandon K. PRICE. CCA 20100382. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0511/AR. U.S. v. Aaron P. STONE. CCA 20090332. Review granted on the following issue:

No briefs will be filed under Rule 25.

Tuesday, June 14, 2011

CERTIFICATES FOR REVIEW FILED

No. 11-5004/AR. U.S. v. Phillip L. PIERCE. CCA 20080009. Notice is hereby given that a certificate for review of the decision of the Army Court of Criminal Appeals was filed under Rule 22 on this date, on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE’S INSTRUCTION ON 18 U.S.C. § 2422(B), WHICH INSTRUCTION USED THE TERM “INTERNET” INSTEAD OF “ANY FACILITY OR MEANS OF INTERSTATE OR FOREIGN COMMERCE,” WAS ERRONEOUS.

On May 23, 2011, the Court issued an order under Docket No. 11-0239/AR, granting Appellant’s petition for grant of review.Appellant will file a brief and Joint Appendix on the granted issue, the specified issue and the issue certified by the Judge Advocate General on or before July 14, 2011. Appellee’s brief will be filed no later than 30 days after the filing of Appellant’s brief. Appellant may file a reply no later than 10 days after the filing of Appellee’s brief.

Friday, June 3, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0437/MC. U.S. v. Royan R. ROSCHE. CCA 201000461. Review granted on the following issue:

No briefs will be filed under Rule 25.

Thursday, June 2, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0403/AF. U.S. v. Brent A. CAMPBELL. CCA 37460. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED, AFTER FINDING ALL THREE CHARGES AROSE OUT OF THE SAME TRANSACTION AND WERE PART OF THE SAME IMPULSE, BY MERGING THEM FOR SENTENCING RATHER THAN DISMISSING THEM.

Briefs will be filed under Rule 25.

No. 11-0413/NA. U.S. v. Anthony P. BALLAN. CCA 201000242. Review granted on the following issues:

I. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

II. ALTHOUGH THE CRIME OF INDECENT ACTS WITH A CHILD TO WHICH APPELLANT PLEADED GUILTY WAS NOT A LESSER INCLUDED OFFENSE OF THE CHARGED CRIME OF RAPE OF A CHILD AND THUS HAD NOT BEEN FORMALLY REFERRED TO TRIAL BY COURT-MARTIAL BY THE CONVENING AUTHORITY, WHETHER APPELLANT WAIVED SUCH IRREGULARITY BY PLEADING GUILTY UNDER A PRETRIAL AGREEMENT TO INDECENT ACTS WITH A CHILD IN VIOLATION OF ARTICLE 134, WHERE NEITHER THE PRETRIAL AGREEMENT NOR APPELLANT'S PLEA AT ARRAIGNMENT EXPRESSLY SET FORTH EITHER POTENTIAL TERMINAL ELEMENT FOR AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION, BUT BOTH ELEMENTS WERE DISCUSSED AND ADMITTED DURING THE PROVIDENCE INQUIRY.

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

Tuesday, May 31, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0453/AR. U.S. v. Aaron M. MITCHELL. CCA 20100713. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0454/AR. U.S. v. Oren A. REECE. CCA 20100448. Review granted on the following issue:

No briefs will be filed under Rule 25.

Thursday, May 26, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0396/MC. U.S. v. Joshua D. FRY. CCA 201000179. Review granted on the following issue:

APPELLANT PURPORTEDLY ENLISTED IN THE MARINE CORPS AFTER A JUDICIAL DETERMINATION OF HIS INCAPACITY TO CONTRACT, WHICH REMAINS IN EFFECT. WAS HIS ENLISTMENT VOID AB INITIO?

Briefs will be filed under Rule 25.

No. 11-0446/MC. U.S. v. Justin GEYER. CCA 201000398. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0481/AF. U.S. v. Nathan J. ARNOLD. CCA 37697. Review granted on the following issue:

No briefs will be filed under Rule 25.

Monday, May 23, 2011

ORDERS GRANTING PETITION FOR REVIEW

No. 11-0239/AR. U.S. v. Phillip L. PIERCE. CCA 20080009. 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 raised by appellate defense counsel:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS INCORRECTLY FOUND THAT THE MILITARY JUDGE'S FAILURE TO INSTRUCT ON NECESSARY ELEMENTS OF AN OFFENSE WAS HARMLESS BEYOND A REASONABLE DOUBT.

And the following issue specified by the Court:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW WHEN IT HELD THAT THE MILITARY JUDGE'S INSTRUCTION ON 18 U.S.C. 2422(B), WHICH INSTRUCTION USED THE TERM "INTERNET" INSTEAD OF "ANY FACILITY OR MEANS OF INTERSTATE COMMERCE" WAS NOT HARMLESS BEYOND A REASONABLE DOUBT.

Briefs will be filed under Rule 25.

No. 11-0362/AR. U.S. v. Thomas G. GENTRY. CCA 20080985. Review granted on the following issue:

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT’S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT’S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.

No briefs will be filed under Rule 25.

No. 11-0422/AR. U.S. v. Byron D. TYSON. CCA 20090072. Review granted on the following issues:

No briefs will be filed under Rule 25.

No. 11-0427/AR. U.S. v. Nicholas A. PATLA. CCA 20100809. Review granted on the following issue:

No briefs will be filed under Rule 25.

Wednesday, May 11, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0389/AR. U.S. v. Kenneth L. GOODMAN. CCA 20090083. Review granted on the following issues:

WHETHER APPELLANT'S PLEA OF GUILTY TO FAILURE TO OBEY A GENERAL REGULATION (CHARGE I) WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO SECURE A DISCLAIMER OF THE MISTAKE OF FACT DEFENSE WHEN IT WAS RAISED DURING THE PROVIDENCE INQUIRY.

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

No. 11-0420/AR. U.S. v. Cody T. SMITH. CCA 20100646. Review granted on the following issue:

No briefs will be filed under Rule 25.

Tuesday, May 10, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0443/AR. U.S. v. Aaron P. HUDSON. CCA 20090506. Review granted on the following issue:

No briefs will be filed under Rule 25.

Thursday, May 5, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0256/MC. U.S. v. Michael J. CHEESEMAN. CCA 200900567. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011) and United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010), said petition is granted on the following specified issue:

WHETHER APPELLANT’S CONVICTION FOR AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120(c)(2), UCMJ, SHOULD BE SET ASIDE IN LIGHT OF THIS COURT’S DECISIONS IN UNITED STATES v. NEAL, 68 M.J. 289 (C.A.A.F. 2010), AND UNITED STATES v. PRATHER, 69 M.J. 338 (C.A.A.F. 2011).

It is further ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to Charge III and Specification 1 thereunder and as to the sentence, but affirmed in all other respects. The findings as to Charge III and Specification 1 thereunder and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority who may order a rehearing on the affected charge and sentence. Alternatively, a rehearing on sentence only may be ordered with regard to the affirmed findings.

No. 11-0374/AR. U.S. v. Lelan M. SHANKLES. CCA 20100307. Review granted on the following specified issue:

No briefs will be filed under Rule 25.

Wednesday, May 4, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0434/AR. U.S. v. David J. ISENHOWER. CCA 20100354. Review granted on the following issues:

No briefs will be filed under Rule 25.

Thursday, April 28, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0293/CG. U.S. v. Kenya BERNARD. CCA 0262. Review granted on the following issue:

No briefs will be filed under Rule 25.

Wednesday, April 27, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0368/AR. U.S. v. Brantley R. TYSON. CCA 20100093. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0419/AR. U.S. v. Bradley L. GUMP. CCA 20100546. Review granted on the following issue:

No briefs will be filed under Rule 25.

Wednesday, April 20, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0380/MC. U.S. v. Napoleon C. HERNANDEZ. CCA 201000427. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0383/NA. U.S. v. Gary W. LUMPKINS, Jr. CCA 201000554. Review granted on the following issue:

No briefs will be filed under Rule 25.

No. 11-0401/AF. U.S. v. David M. ATTARDO. CCA S31853. Review granted on the following issue:

No briefs will be filed under Rule 25.

Thursday, April 14, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0282/AR. U.S. v. Bobby D. MORRISSETTE. CCA 20090166. Review granted on the following issue:

WHETHER APPELLANT'S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION WAS VIOLATED WHEN HE WAS PROSECUTED FOR OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED STATEMENTS.

Briefs will be filed under Rule 25.

No. 11-0303/MC. U.S. v. Thomas R. LIRLEY. CCA 201000502. Review granted on the following issue:

No briefs will be filed under Rule 25.

Monday, April 4, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0231/AR. U.S. v. William J. KREUTZER, Jr. CCA 19961044. The order granting review of March 31, 2011, is rescinded. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT'S MOTION SEEKING ARTICLE 13 SENTENCE CREDIT FOR THE GOVERNMENT'S 278 DAY DELAY IN TRANSFERRING HIM FROM DEATH ROW AFTER THE COURT OF CRIMINAL APPEALS SET ASIDE THE DEATH SENTENCE AND AFFIRMED ONLY THOSE NON-CAPITAL CHARGES TO WHICH APPELLANT PLEADED GUILTY.

Briefs will be filed under Rule 25.

Thursday, March 31, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0143/AR. U.S. v. Aaron R. STANLEY. CCA 20050703. Review granted on the following issue:

WHETHER THE MILITARY JUDGE'S INSTRUCTIONS ON SELF-DEFENSE WERE INCORRECT AND INCOMPLETE, AND IF SO, WHETHER THE LOWER COURT ERRED IN CONCLUDING THAT THIS CONSTITUTED HARMLESS ERROR.

Briefs will be filed under Rule 25.

No. 11-0231/AR. U.S. v. William J. KREUTZER, Jr. CCA 19961044. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT'S MOTION SEEKING SENTENCE CREDIT BECAUSE OF THE GOVERNMENT'S MULTIPLE VIOLATIONS OF ARTICLE 13,UCMJ, AND THE RULES FOR COURT-MARTIAL RESULTING IN APPELLANT'S ILLEGAL PRETRIAL CONFINEMENT.

Briefs will be filed under Rule 25.

Tuesday, March 15, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0243/AR. U.S. v. John A. MCCARY. CCA 20090601. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we conclude that Appellant was denied his Sixth Amendment right to effective assistance of counsel in post-trial representation, where his trial defense counsel asserted in his clemency submission that Appellant had a prior federal conviction for violating a general order and adultery, when no such conviction was part of the record. Accordingly, it is ordered that said petition is hereby granted on the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL DEFENSE COUNSEL INCLUDED INCORRECT AND DAMAGING INFORMATION ABOUT OTHER CONVICTIONS IN HIS RCM 1105/1106 SUBMISSION, THEREBY FRUSTRATING APPELLANT'S CHANCES OF RECEIVING CLEMENCY.

The decision of the United States Army 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 a new action by the same or a different convening authority.*
___________________

* Appellant was charged with desertion from 19 April 2008 until 19 October 2008. The military judge accepted Appellant’s guilty plea to the lesser included offense of absence without leave from 19 April 2008 until 19 August 2008. After the government undertook to prove the charged offense, the military judge granted a motion for a finding of not guilty as to the termination date and amended the specification to read 19 August 2008 vice 19 October 2008. Appellant was subsequently convicted of desertion from 19 April 2008 until 19 August 2008. However, the court-martial promulgating order’s statement of the finding does not clearly describe the amendment of the specification. The convening authority shall take appropriate corrective action with respect to the findings.

Tuesday, March 8, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0257/MC. U.S. v. Thomas J. SCHUMACHER. CCA 201000153. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN REFUSING TO GIVE A SELF-DEFENSE INSTRUCTION.

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

Wednesday, March 2, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0227/NA. U.S. v. Ros L. DAVIS. CCA 201000302. Review granted on the following issue:

Briefs will be filed under Rule 25.

Monday, February 28, 2011
CERTIFICATES FOR REVIEW FILED

No. 11-5003/NA. U.S. v. Thomas J. HAYES. CCA 201000366. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT APPELLANT’S UNSWORN STATEMENT DURING PRESENTENCING RAISED THE “POSSIBLE DEFENSE” OF DURESS.

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED, AS A MATTER OF LAW, WHEN IT FOUND THAT THE ACCUSED’S UNSWORN STATEMENT RAISED THE POSSIBILITY OF A DEFENSE WHEN THE FACTS ON THE RECORD DID NOT ESTABLISH A PRIMA FACIE CASE FOR DURESS.

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT SET ASIDE THE FINDINGS AND SENTENCE DUE TO THE MILITARY JUDGE’S FAILURE TO INVESTIGATE APPELLANT’S PLEA FOR THE POSSIBILITY OF A DURESS DEFENSE BECAUSE SUICIDE CANNOT, AS A MATTER OF LAW, BE THE THREAT NECESSARY TO ESTABLISH THE DEFENSE OF DURESS.

Thursday, January 6, 2011
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0105/AF. U.S. v. William T. HALEY. CCA 37565. Review granted on the following issue:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY APPLYING DOUBLE THE ACTUAL MAXIMUM SENTENCE.

No briefs will be filed under Rule 25.

Tuesday, December 21, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0045/AF. U.S. v. William E.V. DUNN. CCA S31584. Review granted on the following issue:

WHETHER THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT WAS VIOLATED BY THE ADMISSION OF THE DRUG TESTING REPORTS.

No briefs will be filed under Rule 25.

Wednesday, November 24, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0034/AF. U.S. v. Jonathan G. WEEKS. CCA S31625. Review granted on the following issue:

WHETHER THE AFCCA ERRED, AFTER FINDING TESTIMONIAL EVIDENCE HAD BEEN IMPROPERLY ADMITTED AT TRIAL, BY CONCLUDING THAT THE TRIAL ERROR WAS HARMLESS BEYOND A REASONABLE DOUBT.

No briefs will be filed under Rule 25.

Thursday, November 18, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 11-0046/NA. U.S. v. Kevin T. ROMANOSKY. CCA 201000009. Review granted on the following issue:

IN ORDER TO CONVICT AN ACCUSED FOR AGGRAVATED SEXUAL ASSAULT UNDER ARTICLE 120(c), THE GOVERNMENT MUST PROVE THAT THE VICTIM WAS INCAPACITATED OR SUBSTANTIALLY INCAPABLE OF APPRAISING THE NATURE OF THE SEXUAL ACT. ARTICLE 120 OF THE UCMJ PROVIDES AN AFFIRMATIVE DEFENSE IF THE ACCUSED CAN SHOW, BY A PREPONDERANCE OF THE EVIDENCE, THAT THE VICTIM USED WORDS OR OVERT ACTS INDICATING AGREEMENT TO THE SEXUAL CONDUCT AT ISSUE AND WAS COMPETENT. THIS STATUTORY SCHEME VIOLATES DUE PROCESS OF LAW BY PLACING A BURDEN ON THE ACCUSED TO DISPROVE AN ELEMENT OF THE GOVERNMENT'S CASE.

No briefs will be filed under Rule 25.

Tuesday, October 19, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 10-0651/CG.; U.S. v. Daniel A. GARCIA. CCA 1317. Review granted on the following issue:

WHETHER APPELLANT WAS DEPRIVED OF DUE PROCESS UNDER THE LAW BECAUSE THE STATUTORY SCHEME OF ARTICLE 120, UCMJ, UNCONSTITUTIONALLY SHIFTED THE BURDEN OF PROOF TO APPELLANT BY FORCING HIM TO DISPROVE AN ELEMENT OF THE UNDERLYING CRIME.

No briefs will be filed under Rule 25.

No. 10-0659/AF.; U.S. v. Garland R. STEWART. CCA S31685. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ALLOWED DR. SHIMOMURA TO TESTIFY IN RELIANCE UPON HEARSAY IN VIOLATION OF APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM AND WHETHER THE ADMISSION OF THE 24 APRIL 2009 BROOKS DRUG TESTING REPORT WITHOUT THE IN-COURT APPEARANCE OF THE ANALYSTS WHO TESTED APPELLANT'S SAMPLE ALSO VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

No briefs will be filed under Rule 25.

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

I. WHETHER TRIAL DEFENSE COUNSEL WAIVED OR FORFEITED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST HIM BY NOT OBJECTING TO THE DRUG TESTING REPORT CONTAINING TESTIMONIAL HEARSAY.

II. WHETHER APPELLANT WAS DENIED MEANINGFUL CROSS-EXAMINATION OF GOVERNMENT WITNESSES IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT OF CONFRONTATION WHEN THE MILITARY JUDGE DID NOT COMPEL THE GOVERNMENT TO PRODUCE ESSENTIAL BROOKS LABORATORY PERSONNEL WHO HANDLED APPELLANT'S URINE SAMPLES AND ALLOWED THE EXPERT TOXICOLOGIST TO TESTIFY TO NON-ADMISSIBLE HEARSAY.

No briefs will be filed under Rule 25.

Wednesday, October 06, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 10-0649/AF.; U.S. v. Dean E. THOMPSON. CCA 37380. Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY APPLYING AN INCORRECT STANDARD OF REVIEW FOR PREJUDICE ARISING FROM POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL.

Briefs will be filed under Rule 25.

Monday, September 13, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:

WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT'S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.

WHETHER TRIAL DEFENSE COUNSEL'S FAILURE TO OBJECT TO THE ADMISSION OF THE DRUG LABORATORY REPORT AT TRIAL FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF SO, DID ADMISSION OF THE DRUG TESTING REPORT CONSTITUTE PLAIN ERROR?

WHETHER THE CONFRONTATION CLAUSE WAS SATISFIED BY TESTIMONY FROM DR. TURNER.

IF DR. TURNER'S TESTIMONY DID NOT ITSELF SATISFY THE CONFRONTATION CLAUSE, WAS THE INTRODUCTION OF TESTIMONIAL EVIDENCE NEVERTHELESS HARMLESS BEYOND A REASONABLE DOUBT UNDER THE CIRCUMSTANCES OF THIS CASE IF HE WAS QUALIFIED AS, AND TESTIFIED AS, AN EXPERT UNDER M.R.E. 703?

Briefs will be filed under Rule 25.

Thursday, September 9, 2010
APPEALS - SUMMARY DISPOSITIONS

No. 10-0600/AR. U.S. v. Joshua J. STREIFF. CCA 20090134. 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 specified issue:

WHETHER THE AFFIRMED FORFEITURE OF $1000.00 PAY PER MONTH FOR 12 MONTHS AT A SPECIAL COURT-MARTIAL WAS ILLEGAL UNDER ARTICLE 19, UCMJ, AND RULE FOR COURTS-MARTIAL 1003(b)(2), WHEN APPELLANT WAS REDUCED TO E-1 AS PART OF THE SENTENCE.

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 forfeiture of $933.00 pay per month for 12 months, confinement for six months, reduction to pay grade E-1, and a bad-conduct discharge.

Thursday, August 12, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 10-0178/AF. U.S. v. William J. ST BLANC, Jr. CCA 37206. Review granted on the following issue:

WHETHER APPELLANT'S FORUM SELECTION WAS NOT MADE KNOWINGLY AND VOLUNTARILY BECAUSE HE WAS MISADVISED BY ALL PARTIES REGARDING THE MAXIMUM PUNISHMENT FOR POSSESSION OF WHAT "APPEARS TO BE" CHILD PORNOGRAPHY.

Briefs will be filed under Rule 25.

Tuesday, June 1, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 10-6002/AF. U.S. v. Matthew D. SKREDE. CCA 2009-09. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2006), said petition is granted on the following issues:

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY REFUSING TO ADMIT DRUG TESTING REPORTS INTO EVIDENCE OVER A DEFENSE CONFRONTATION CLAUSE OBJECTION WHERE: (1) THE REPORTS CONTAINED HANDWRITTEN RESULTS REFLECTING DRUG USE AND CERTIFICATIONS THAT “THE LABORATORY RESULTS INDICATED ON THIS FORM WERE CORRECTLY DETERMINED BY PROPER LABORATORY PROCEDURES, AND THEY ARE CORRECTLY ANNOTATED”; (2) THE GOVERNMENT DID NOT PRODUCE IN COURT THE DECLARANTS WHOSE STATEMENTS ARE INCLUDED IN THE DRUG TESTING REPORTS; AND (3) THE DEFENSE HAD HAD NO PREVIOUS OPPORTUNITY TO CONFRONT THE DECLARANTS.

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY REFUSING TO ADMIT A DRUG TESTING REPORT INTO EVIDENCE OVER A DEFENSE CONFRONTATION CLAUSE OBJECTION WHERE: (1) THE SAMPLE THAT WAS THE SUBJECT OF THE REPORT WAS OBTAINED AT LAW ENFORCEMENT BEHEST; (2) THE GOVERNMENT DID NOT PRODUCE IN COURT THE DECLARANTS WHOSE STATEMENTS ARE INCLUDED IN THE DRUG TESTING REPORT; AND (3) THE DEFENSE HAD HAD NO PREVIOUS OPPORTUNITY TO CONFRONT THE DECLARANTS.

Thursday, May 20, 2010
ORDERS GRANTING PETITION FOR REVIEW

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

WHETHER, IN LIGHT OF MELENDEZ-DIAZ v. MASSACHUSETTS, ___ U.S. ___, 129 S.CT. 2527 (2009), THE LOWER COURT ERRED WHEN IT HELD THAT THE ADMISSION OF THE NAVY DRUG SCREENING LABORATORY'S URINALYSIS DOCUMENTS DID NOT VIOLATE APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

No briefs will be filed under Rule 25.

Thursday, February 18, 2010
ORDERS GRANTING PETITION FOR REVIEW

No. 10-0033/AR. U.S. v. Jerry PEARSON, Jr. CCA 20080802. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, the Court notes that the Appellant has assigned a single issue:

WHETHER TANGIBLE EVIDENCE EXISTS IN THE RECORD OF TRIAL INDICATING THE CONVENING AUTHORITY CONSIDERED APPELLANT'S TWO WRITTEN CLEMENCY STATEMENTS PRIOR TO TAKING ACTION.

Although they are summarized in the Rule for Courts-Martial (R.C.M.) 1105 memorandum presented to the convening authority, and listed as attachments to it, the two statements which are the subject of the petition are not in the record as received by this Court. They are also not listed in the convening authority’s enumeration of documents that he considered in the course of his decision on the Appellant’s request for clemency. In this posture, we cannot determine whether the convening authority considered the statements in arriving at his decision, as required. Article 60(c)(2), Uniform Code of Military Justice, 10 U.S.C. § 860(c)(2) (2000); R.C.M. 1107(b)(3)(A)(iii). Accordingly it is ordered that said petition is granted on the assigned issue. The decision of the United States Army Court of Criminal Appeals is set aside, and the record is returned to the Judge Advocate General of the Army for a remand to the Court of Criminal Appeals. The Court of Criminal Appeals shall conduct fact-finding to determine if the statements were considered by the convening authority; if it determines that they were not, the Court of Criminal Appeals may remand the record to the convening authority for a new action.

Tuesday, September 22, 2009
ORDERS GRANTING PETITION FOR REVIEW

No. 09-0519/NA. U.S. v. Michael S. HODGE. CCA 200601124. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that Appellant raises several issues for the first time on appeal. It is appropriate for the court below to consider them initially. Accordingly, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER APPELLANT'S PLEAS ARE PROVIDENT WHERE THE DEFERRED/WAIVED FORFEITURE PROVISIONS OF THE PRETRIAL AGREEMENT ALLEGEDLY WERE NOT FULFILLED.

II. WHETHER TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL FOR ALLEGEDLY FAILING TO SET UP AN ALLOTMENT FOR APPELLANT IN ACCORDANCE WITH THE PRETRIAL AGREEMENT.

The record of trial is returned to the Judge Advocate General of the Navy for remand to the Navy-Marine Corps Court of Criminal Appeals for further appellate inquiry on the granted issues. Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2006), shall apply.

Friday, August 14, 2009
ORDERS GRANTING PETITION FOR REVIEW

No. 08-0215/NA. U.S. v. Tyrice L. HAYES. CCA 200600910. Review granted on the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT APPELLANT WAS NOT DENIED HIS RIGHT TO A FAIR TRIAL DESPITE THE MILITARY JUDGE'S (1)EXHIBITION OF BIAS, AFTER TRIAL, IN ANNOUNCING HIS PERSONAL DISTASTE FOR BOTH HOMOSEXUALITY AND APPELLANT; AND (2) HIS EXHIBITION OF PARTIALITY, DURING TRIAL, BY ADVISING THE GOVERNMENT ON TRIAL TACTICS.

The decision of the Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for a new review under Article 66(c), UCMJ. The court below will obtain affidavits from the military judge and other appropriate persons, if any, relating to what, if any, statements the military judge made concerning the accused in a “Bridging the Gap” session with counsel after the trial. It may order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), if appropriate. The affidavit(s) should be limited to determining whether statements were made by the military judge in the session referenced above, and if so, what was said. See United States v. Matthews68 M.J. 29 (C.A.A.F. 2009).

Wednesday, July 22, 2009
ORDERS GRANTING PETITION FOR REVIEW

No. 09-0445/AF. U.S. v. Christopher D. DREW. CCA 37067. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT APPELLANT'S RECUSAL MOTION UNDER R.C.M. 902(a).

Briefs will be filed under Rule 25.