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NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 7/10/18)

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Monday, July 9, 2018

Orders Granting Petition for Review

 

No. 18-0201/AR. U.S. v. Anthony M. Bodoh. CCA 20150218. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE PLAINLY ERRED BY ALLOWING THE TRIAL COUNSEL TO MISSTATE THE LAW AND ARGUE THAT THE PANEL SHOULD BASE ITS VERDICT ON SHARP TRAINING.

 

Briefs will be filed under Rule 25.




Thursday, July 5, 2018

Miscellaneous Docket - Summary Dispositions

 

No. 18-0248/CG. Shane E. Reese, Appellant v. United States, Appellee. CCA 0324. On consideration of the writ-appeal petition, it is ordered that the writ-appeal is denied.




Thursday, June 28, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0218/AR. U.S. v. Leonidas M. Brossette. CCA 20170095. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

*  It is noted that the court-martial promulgating order states that Appellant was convicted of the sole specification of Additional Charge I. However, the record reflects that Appellant was acquitted of that specification. Accordingly, it is directed that the promulgating order be corrected by changing the finding of the sole specification of Additional Charge I from guilty to not guilty.




Monday, June 25, 2018

Appeals - Summary Dispositions

 

No. 17-0491/AR. U.S. v. Nicholas S. Marcum. CCA 20150500. On further consideration of the granted issue, 77 M.J. 67 (C.A.A.F. 2017), and the briefs of the parties, we conclude that unobjected to challenges to improper argument are forfeited, not waived, and reviewed for plain error. United States v. Kelly, 77 M.J. __, __ n.1(2 n.1) (C.A.A.F. 2018); United States v. Andrews, 77 M.J. __ (C.A.A.F. 2018); United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017). Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012).




Monday, June 18, 2018

Certificates for Review Filed

 

No. 18-0282/NA. United States, Appellee/Cross-Appellant v. Paul E. Cooper, Appellant/Cross-Appellee. CCA 201500039. 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:

 

DID THE LOWER COURT ERR NOT FINDING WAIVER OF THE RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL WHERE CROSS-APPELLEE WAS ADVISED OF HIS RIGHT TO REQUEST AN INDIVIDUAL MILITARY COUNSEL, AGREED HE UNDERSTOOD THE RIGHT BUT WANTED INSTEAD TO BE REPRESENTED BY TRIAL DEFENSE COUNSEL, AND MADE NO MOTION FOR INDIVIDUAL MILITARY COUNSEL?

 

DID THE LOWER COURT ERR IN NOT APPLYING THE STRICKLAND INEFFECTIVE ASSISTANCE TEST WHERE THE GOVERNMENT AND TRIAL JUDGE PLAYED NO PART IN THE DEFENSE'S FAILURE TO REQUEST INDIVIDUAL MILITARY COUNSEL, AND IF SO, DID CROSS-APPELLEE SUFFER INEFFECTIVE ASSISTANCE OF COUNSEL?

 

IF STRICKLAND DOES NOT APPLY, DID THE LOWER COURT CORRECTLY FIND CROSS-APPELLEE WAS DEPRIVED OF HIS STATUTORY RIGHT TO REQUEST INDIVIDUAL MILITARY COUNSEL?

 

DID THE LOWER COURT ERR IN IT'S PREJUDICE ANALYSIS FOR CROSS-APPELLEE'S ASSERTED DEPRIVATION OF HIS STATUTORY RIGHT TO INDIVIDUAL MILITARY COUNSEL WHEN CROSS-APPELLEE DID NOT PRESERVE THE ISSUE AT TRIAL, RAISED THE ISSUE FOR THE FIRST TIME ON APPEAL, AND HAS ALLEGED NO SPECIFIC PREJUDICE?

 

Cross-Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 18th of July, 2018.

 

Orders Granting Petition for Review

 

No. 18-0209/AR. U.S. v. Jeffrey G. Eugene. CCA 20160438. 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 the petition is granted on the following issues:

 

I.   WHETHER APPELLANT'S REQUEST TO CRIMINAL INVESTIGATION COMMAND [CID] THAT HIS CELL PHONE BE RETURNED WAS A WITHDRAWAL OF THE THIRD PARTY CONSENT TO SEARCH GIVEN BY APPELLANT'S WIFE IN APPELLANT'S ABSENCE.

 

II.  WHETHER THE ARMY COURT ERRED IN DETERMINING THE APPLICABILITY OF THE INEVITABLE DISCOVERY DOCTRINE WHERE (1) THE CID AGENTS FAILED TO TAKE ANY STEPS TO OBTAIN A WARRANT AND (2) THE CASE TOOK A "DEAD-END" UNTIL THE WARRANTLESS SEARCH.

 

Briefs will be filed under Rule 25.




Wednesday, June 6, 2018

Miscellaneous Docket - Summary Dispositions

 

No. 18-0240/AF. Damario A. Coleman, Appellant v. United States, Appellee. CCA 2018-02. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

 

No. 18-0243/NA. Joshua G. Anderson, Appellant v. United States, Appellee. CCA 201200499. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is dismissed for lack of jurisdiction.

 

Appeals - Summary Dispositions

 

No. 18-0107/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the granted issue, 77 M.J. 273 (C.A.A.F. 2018), the judgment of the United States Army Court of Criminal Appeals, United States v. Hazelbower, No. 20150335 (A. Ct. Crim. App. Nov. 22, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that the military judge's erroneous use of charged misconduct for propensity purposes was harmless beyond a reasonable doubt, for "there [i]s no reasonable possibility that the error contributed to [Appellant]'s verdict." United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. 2017) (citation omitted). In the instant case, the victims' accounts were corroborated by a wealth of independent supporting evidence, including (but not limited to) admissions of rape, incriminating text and Skype messages, and the exchange of nude photographs. Given the overwhelming evidence of Appellant's guilt, we are convinced beyond a reasonable doubt that Appellant was convicted on the strength of the evidence alone. Guardado, 77 M.J. at 94. Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.




Tuesday, May 22, 2018

Miscellaneous Docket - Summary Dispositions

 

No. 18-0223/AF. Rodney B. Boyce, Appellant v. United States, Appellee. CCA 2018-03. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.




Thursday, May 17, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0183/NA. U.S. v. William A. Shields III. CCA 201600133. 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 noted that the Court of Criminal Appeals affirmed two findings of guilty, set aside two findings of guilty and the sentence, and remanded the record with a rehearing authorized. Under Article 67(c), UCMJ, this Court has jurisdiction to consider the petition. However, given the possibility of a rehearing, the petition is not ripe for review at this time. Accordingly, it is ordered that the petition for grant of review is dismissed without prejudice to Appellant's right to raise the matters asserted during the normal course of appellate review.




Wednesday, May 9, 2018

Orders Granting Petition for Review

 

No. 18-0162/AF. U.S. v. James M. Hale. CCA 39101. 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 granted on the following issues raised by appellate defense counsel:

 

I.   THE LOWER COURT FOUND AS A MATTER OF LAW THAT PERSONAL JURISDICTION DOES NOT EXIST OUTSIDE OF THE HOURS OF INACTIVE-DUTY TRAINING. THE LOWER COURT PROCEEDED TO FIND PERSONAL JURISDICTION EXISTED OVER APPELLANT BECAUSE HE WAS "STAYING" WITH HIS IN-LAWS. WAS THIS ERROR?

 

II.  WHETHER THE LOWER COURT ERRED WHEN IT CONCLUDED THE MILITARY JUDGE CORRECTLY INSTRUCTED THE MEMBERS THEY COULD CONVICT APPELLANT FOR CONDUCT "ON OR ABOUT" THE DATES ALLEGED IN EACH SPECIFICATION.

 

And the following issue specified by the Court:

 

III. WHETHER THE LOWER COURT ERRED IN CONCLUDING THE COURT-MARTIAL HAD JURISDICTION OVER SPECIFICATION 2 OF ADDITIONAL CHARGE I, AS MODIFIED TO AFFIRM THE LESSER INCLUDED OFFENSE OF ATTEMPTED LARCENY.

 

Briefs will be filed under Rule 25.




Monday, May 7, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0002/AR. U.S. v. Elmer F. Hoffmann III. CCA 20140172. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), we conclude that (1) Appellant did not waive the error resulting from the improper propensity instructions as we do not construe the failure to object to what was the settled law at the time as an intentional relinquishment of a known right, and (2) the error was not harmless beyond a reasonable doubt. Accordingly, it is ordered that said petition is hereby granted on the following issues:

 

I.  WHETHER APPELLANT WAIVED ANY ERROR RESULTING FROM THE MILITARY JUDGE'S IMPROPER PROPENSITY INSTRUCTION AT A TRIAL PRIOR TO THIS COURT'S OPINION IN UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

 

II.   WHETHER THE ARMY COURT INCORRECTLY PLACED THE BURDEN OF PERSUASION ON APPELLANT FOR THE THIRD PRONG OF THE PLAIN ERROR TEST IN VIOLATION OF THE CONSTITUTIONAL STANDARD THAT THIS COURT

HAD ARTICULATED IN PLAIN ERROR CASES SINCE UNITED STATES v. POWELL, 49 M.J. 460 (C.A.A.F. 1998).  

The decision of the United States Army Court of Criminal Appeals is reversed. The findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A rehearing is authorized to the extent that the charges and specifications are not barred by the statute of limitations. See United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018). See also United States v. Grimes, 142 F.3d 1342, 1351 (11th Cir. 1998) (stating that the circuits are in agreement "that extending a limitations period before the prosecution is barred does not violate the Ex Post Facto Clause").*

 

* It is directed that the decision of the United States Army Court of Criminal Appeals and the court-martial promulgating order be corrected to reflect that Appellant's last name has two n's. The charge sheet, Appellant's DD214, and Appellant's ORB list his name as Hoffmann (with two n's).

 

Miscellaneous Docket - Summary Dispositions

 

No. 18-0177/AR. Rob W. Roberts, Appellant v. United States, Appellee. CCA 20180005. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby dismissed for lack of jurisdiction.*

 

* Although styled as a petition for extraordinary relief in the nature of a writ of error coram nobis, this is a request for a new trial in which the statutory period for filing such claims has expired.




Friday, May 4, 2018

Miscellaneous Docket - Summary Dispositions

 

No. 18-0167/NA. Charles M. Burleson, Appellant v. United States, Appellee. CCA 200700143. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is hereby denied.

 

No. 18-0180/MC. Luiji R. Pierre, Appellant v. United States, Appellee. CCA 201300257. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.




Monday, April 23, 2018

Orders Granting Petition for Review

 

No. 18-0135/AF. U.S. v. Darion A. Hamilton. CCA 39085. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I.   ARE VICTIM IMPACT STATEMENTS ADMITTED PURSUANT TO R.C.M. 1001A EVIDENCE SUBJECT TO THE MILITARY RULES OF EVIDENCE?

 

II.  WHETHER THE MILITARY JUDGE ERRED IN ADMITTING PROSECUTION EXHIBITS 4, 5, AND 6.

 

Briefs will be filed under Rule 25.




Thursday, April 19, 2018

Miscellaneous Docket - Summary Dispositions

 

No. 18-0171/AR. U.S. v. Thomas M. Adams. CCA 20170581. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is hereby denied without prejudice to Appellant's right to raise the issue asserted during the course of normal appellate review.




Wednesday, April 18, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0087/AF. U.S. v. Jonathan P. Robertson. CCA 39061. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE UNCONSTITUTIONAL PROPENSITY INSTRUCTION IN THIS CASE WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed as to the Charge and Specification 3 thereunder and the sentence. The findings of guilty as to the Charge and Specification 3 thereunder and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing is authorized.

 

No. 18-0101/AF. U.S. v. Xavier L. Rice. CCA 39071. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN DECIDING THAT A PROPENSITY INSTRUCTION IN VIOLATION OF UNITED STATES v. HILLS WAS HARMLESS BEYOND A REASONABLE DOUBT BECAUSE IT DID NOT CONTRIBUTE TO THE VERDICT.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Specifications 3, 4, and 5 of the Charge and the sentence. The findings of guilty as to Specifications 3, 4, and 5 of the Charge and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Specifications 3, 4, and 5 of the Charge and the sentence.

 

No. 18-0122/AF. U.S. v. Corey J. Campbell. CCA 388075. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT INCORRECTLY FOUND THAT A MILITARY JUDGE'S IMPERMISSIBLE USE OF PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence. The findings of guilty as to Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may order a rehearing on Charge I and Specification 4 thereunder, Additional Charge I and Specifications 1 and 2 thereunder, and the sentence.




Tuesday, March 27, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0140/NA. U.S. v. D'Urville A. Christopher. CCA 201600249. 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.*

 

*  The Clerk of Court is ordered to seal pages 1479-82 of the transcript.




Tuesday, March 20, 2018

Orders Granting Petition for Review

 

No. 18-0114/MC. U.S. v. Steven M. Larrabee. CCA 201700075. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

10 U.S.C. § 6332 STATES THAT THE TRANSFER OF A SERVICEMEMBER TO RETIRED STATUS IS "CONCLUSIVE FOR ALL PURPOSES." CAN A COURT-MARTIAL SENTENCE A RETIREE TO A PUNITIVE DISCHARGE?

 

No briefs will be filed under Rule 25.




Tuesday, March 13, 2018

Miscellaneous Docket - Summary Dispositions

 

No. 18-0147/AR. In re Gregory J. Murray. CCA 20180025. On consideration of the brief in support of petition for extraordinary relief in the nature of writ of error coram nobis, or, in the alternative, writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the petition is hereby dismissed for lack of jurisdiction.




Monday, March 12, 2018

Orders Granting Petition for Review

 

No. 18-0133/AR. U.S. v. James B. Hendrix. CCA 20170439. On consideration of the petition for grant of 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, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DISMISSING THE CHARGE AND SPECIFICATIONS WITH PREJUDICE FOR A VIOLATION OF R.C.M. 707.

 

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




Tuesday, March 6, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0085/AF. U.S. v. Bryant H. Preston. CCA 38996. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

DID THE COURT OF CRIMINAL APPEALS ERR WHEN IT DENIED APPELLANT'S MOTION FOR RECONSIDERATION BEFORE ACTING ON APPELLANT'S PETITION FOR A NEW TRIAL WHICH WAS PROPERLY REFERRED TO IT UNDER ARTICLE 73, UCMJ?

 

The ruling of the United States Air Force Court of Criminal Appeals on the motion for reconsideration of its opinion dated August 31, 2017, is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for submission of the petition for new trial to that court. This remand action is taken without prejudice to Appellant's right to raise the other matters asserted in his petition during the normal course of appellate review.

 

No. 18-0118/AR. U.S. v. William P. Moynihan. CCA 20130855. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE ERRONEOUS ADMISSION OF CHARGED MISCONDUCT AS PROPENSITY EVIDENCE TO PROVE OTHER CHARGED MISCONDUCT UNDER MILITARY RULES OF EVIDENCE 413 AND 414 WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration in light of United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017).




Monday, February 26, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0110/AR. U.S. v. Robert S. Avery. CCA 20140202. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition be, and the same is dismissed without prejudice to Appellant's right to raise the matter asserted during the normal course of appellate review.




Thursday, February 22, 2018

Orders Granting Petition for Review

 

No. 18-0107/AR. U.S. v. Jameson T. Hazelbower. CCA 20150335. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE'S CONSIDERATION OF CHARGED SEXUAL MISCONDUCT TO PROVE PROPENSITY TO COMMIT THE SAME CHARGED SEXUAL MISCONDUCT WAS HARMLESS BEYOND A REASONABLE DOUBT WHEN THE MILITARY JUDGE FOUND THE "PROBATIVE WEIGHT" OF SUCH EVIDENCE WAS "HIGH."

 

No briefs will be filed under Rule 25.




Thursday, February 15, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0055/AR. U.S. v. Robert Bales. CCA 20130743. 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 court-martial order be corrected to reflect that Appellant pleaded guilty to Charge III, Specification 7, and Charge VI.




Monday, February 12, 2018

Orders Granting Petition for Review

 

No. 18-0091/AR. U.S. v. Andrew J. Criswell. CCA 20150530. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS THE ACCUSING WITNESS'S IN-COURT IDENTIFICATION OF APPELLANT.

 

Briefs will be filed under Rule 25.




Tuesday, January 16, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0603/AR. U.S. v. John-Brian Hughes. CCA 20130783. 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 specified issue:

 

WHETHER THE EVIDENCE OF SPECIFICATION 7 OF CHARGE IV IS LEGALLY SUFFICIENT.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 7 of Charge IV. The finding of guilty as to that specification is set aside, and the specification is dismissed. The remaining findings and the sentence are affirmed.

 

Orders Granting Petition for Review

 

No. 17-0604/AR. U.S. v. Christopher E. Christensen. CCA 20140372. 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 APPELLANT WAS SUBJECT TO COURT-MARTIAL JURISDICTION.

 

Briefs will be filed under Rule 25.




Wednesday, January 10, 2018

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0254/AR. U.S. v. Michael D. Thompson. CCA 20140974. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Guardado, ___ M.J. ___ (C.A.A.F. Dec. 12, 2017), it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT THE ERRONEOUS ADMISSION OF CHARGED OFFENSES TO PROVE OTHER CHARGED OFFENSES UNDER MIL.R.EVID. 413 WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to Charge I and the specifications thereunder and the sentence. The findings of guilty as to Charge I and its specifications and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may order a rehearing on Charge I and its specifications and the sentence.

 

No. 17-0609/AF. U.S. v. Leon A. Brown IV. CCA 38864. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED APPELLANT'S MOTION FOR RECONSIDERATION BEFORE ACTING ON APPELLANT'S PETITION FOR A NEW TRIAL WHICH WAS PROPERLY REFERRED TO IT UNDER ARTICLE 73, UCMJ.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for submission of the petition for new trial to that court.

 

Appeals - Summary Dispositions

 

No. 17-0323/AR. U.S. v. Antonio T. Moore. CCA 20140875. On consideration of the granted issue, 76 M.J. 409 (C.A.A.F. 2017), the judgment of the United States Army Court of Criminal Appeals, United States v. Moore, No. 20140875 (A. Ct. Crim. App. Mar. 23, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017), we conclude that Appellant is not entitled to have the finding as to Specification 1 of Additional Charge I set aside. Given the strength of the Government's case, which included compelling victim and eyewitness testimony, the evidence of Appellant's guilt was overwhelming, allowing us to "rest assured that an erroneous propensity instruction did not contribute to the verdict by 'tipp[ing] the balance in the members' ultimate determination.'" Guardado, __ M.J. at __ (7) (quoting United States v. Hills, 75 M.J. 350, 358 (C.A.A.F. 2016)). Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 17-0495/MC. U.S. v. Benjamin D. Luna. CCA 201500423. On consideration of the granted issue, 76 M.J. 477 (C.A.A.F. 2017), the judgment of the United States Navy-Marine Corps Court of Criminal Appeals, United States v. Luna, No. 201500423 (N-M. Ct. Crim. App. May 9, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017), we conclude that the military judge's erroneous propensity instruction was harmless beyond a reasonable doubt—"it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Mitchell v. Esparza, 540 U.S. 12, 17–18 (2003). The victim's testimony was corroborated by witness testimony and incriminating text messages written by Appellant that implied he was at fault and could be jailed for his actions. In light of such overwhelming evidence, we are convinced that Appellant was convicted on the strength of the evidence alone. See Guardado, __ M.J. at __ (7).Therefore, it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.




Wednesday, December 20, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0537/MC. United States, Appellant v. James A. Hale III, Appellee. CCA 201600015. On further consideration of Appellant's certificate for review and the briefs of the parties, it is ordered that no answer is provided to the certified issue because to do so would require issuing an advisory opinion, that the hearing notice issued by the Court on October 20, 2017, setting argument in this case for January 9, 2018, is hereby vacated, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

Orders Granting Petition for Review

 

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. On further consideration of the record, it is ordered that the petition for grant of review is granted on the following additional issue specified by the Court:

 

IN LIGHT OF THIS COURT'S DECISIONS IN UNITED STATES V. SEWELL, 76 M.J. 14 (C.A.A.F. 2017) AND UNITED STATES V. PABELONA, 76 M.J. 9 (C.A.A.F. 2017) DID THE LOWER COURT ERR WHEN IT DETERMINED THE STANDARD OF REVIEW WAS WAIVED WHEN THERE WAS NO OBJECTION TO IMPROPER ARGUMENT?

 

No briefs will be filed under Rule 25.

 

No. 17-0605/AR. U.S. v. Erik J. Burris. CCA 20150047. 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:

 

CITING RULES FOR COURTS-MARTIAL 905(e) AND 919(c), THE ARMY COURT HELD THAT THE FAILURE OF APPELLANT'S TRIAL DEFENSE COUNSEL TO OBJECT TO IMPROPER CHARACTER EVIDENCE AND IMPROPER ARGUMENT WAIVED ANY ERROR. THIS COURT, HOWEVER, TREATS SUCH FAILURES AS FORFEITURE AND TESTS FOR PLAIN ERROR. WHICH COURT IS RIGHT?

 

Briefs will be filed under Rule 25.

 




Tuesday, December 12, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0042/AR. U.S. v. Michael A. Knopik. CCA 20160811. 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 decision of the United States Army Court of Criminal Appeals be corrected to reflect Appellant's middle initial as "A" vice "E."




Wednesday, November 29, 2017

Orders Granting Petition for Review

 

No. 17-0162/NA. U.S. v. Keith E. Barry. CCA 201500064. Upon reconsideration of Appellant's petition for grant of review, we granted review of the following issue: WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY. We also ordered a hearing in accordance with United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). See United States v. Barry, 76 M.J. 407 (C.A.A.F. 2017)(sum. disp.). The record of that proceeding and the findings of fact and conclusions of law of the DuBay judge have been returned to this Court. After consideration of the record of the hearing and the findings and conclusions of the DuBay judge, it is ordered that said petition is hereby granted on the following specified issue:

 

WHETHER A DEPUTY JUDGE ADVOCATE GENERAL CAN COMMIT UNLAWFUL COMMAND INFLUENCE UNDER ARTICLE 37, UCMJ, 10 U.S.C. §837 (2012).

 

The original granted issue is also modified as follows:

 

WHETHER MILITARY OFFICIALS EXERTED ACTUAL UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY OR CREATED THE APPEARANCE OF DOING SO.

 

Appellant shall file a brief on the two granted issues on or before December 29, 2017, Appellee shall file a brief within 30 days of the date of the filing of Appellant's brief, and Appellant may file a reply within 10 days of the date of the filing of Appellee's brief. The parties are ordered to file a joint appendix in accordance with C.A.A.F. R. 24(f).*

 

* Judge Sparks is recused and did not participate.




Wednesday, November 15, 2017

Orders Granting Petition for Review

 

No. 17-0608/AR. U.S. v. Randy E. Jones. CCA 20150370. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I.   WHETHER ADMISSION OF AN ALLEGED CO-CONSPIRATOR'S CONFESSION TO LAW ENFORCEMENT VIOLATED M.R.E. 801(d)(2)(E).

 

II.   WHETHER ADMISSION OF THE SAME CONFESSION VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

 

III.   WHETHER USE OF THE CONFESSION TO CORROBORATE OTHERWISE UNSUPPORTED ESSENTIAL ELEMENTS IN APPELLANT'S OWN CONFESSION VIOLATED M.R.E. 304(g) AND UNITED STATES v. ADAMS, 74 M.J. 137 (C.A.A.F. 2015).

 

Briefs will be filed under Rule 25.




Monday, November 13, 2017

Miscellaneous Docket - Summary Dispositions

 

No. 18-0004/AF. James R. Lewis, Appellant v. United States, Appellee. CCA 2017-05. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

 

No. 18-0006/AF. Joseph M. Ward III, Appellant v. United States, Appellee. CCA 2017-06. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

 

No. 18-0012/AF. Floyd M. Jeter, Appellant v. United States, Appellee. CCA 2017-07. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is denied.




Thursday, November 2, 2017

Appeals - Summary Dispositions

 

No. 17-0200/AR. U.S. v. Carlos A. Gonzalez-Gomez. CCA 20121100. On further consideration of the granted issue, 76 M.J. 174 (C.A.A.F. 2017), the briefs of the parties, and oral argument, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012). In this review, the Court of Criminals Appeals will specifically address the following issue:

 

IN LIGHT OF THE FACT THAT THE COURT OF CRIMINAL APPEALS ISSUED ITS INITIAL OPINION OUTSIDE OF THE TIMEFRAME ESTABLISHED IN UNITED STATES v. MORENO, 63 M.J. 129 (C.A.A.F. 2006), AND ONE DAY AFTER APPELLANT WAS RELEASED FROM CONFINEMENT ON PAROLE, DID THE 180-DAY REDUCTION IN THE ADJUDGED SENTENCE OF CONFINEMENT AFFORD APPELLANT MEANINGFUL RELIEF FOR THE DILATORY POST-TRIAL PROCESSING?

 

No. 17-0507/AR. U.S. v. Orval W. Gould, Jr. CCA 20120727. On further consideration of Appellant's certificate for review and the briefs of the parties, it is ordered that the first and second certified issues are answered in the negative, and therefore, no answer is provided to the third certified issue because to do so would require issuing an advisory opinion. The decision of the United States Army Court of Criminal Appeals is affirmed.




Wednesday, November 1, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0579/MC. U.S. v. Michael R. Tinsley. CCA 201600083. 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. Walters, 58 M.J. 391 (C.A.A.F. 2003), 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, except for the words, "one kennel," in Specification 1 of the Charge. The finding of guilty as to the excepted words is set aside and those excepted words are dismissed.

 

Miscellaneous Docket - Summary Dispositions

 

No. 18-0016/MC. Kevin J. Delaney, Petitioner v. In their official capacities as appellate judges of the United States Navy-Marine Corps Court of Criminal Appeals, Colonel Kevin S. Woodard, USMC, Lead Judge; Commander Anne Marks, USN, Senior Judge; Commander Marcus Fulton, USN; et al. United States Navy-Marine Corps Court of Criminal Appeals, Respondents. On consideration of the petition for extraordinary relief in the nature of an immediate release from confinement and writ of mandamus to expedite appellate review of Petitioner's case, it is ordered that the petition for extraordinary relief is hereby denied.




Thursday, October 26, 2017

Appeals - Summary Dispositions

 

No. 17-0482/AF. U.S. v. Kenneth W. Frank, Jr. CCA 38854. On further consideration of the granted issues 76 M.J. __ (C.A.A.F. August 31, 2017), and Appellant's brief, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012), to evaluate the case in light of United States v. Commisso, 76 M.J. 315 (C.A.A.F. 2017).




Wednesday, October 25, 2017

Interlocutory Orders

 

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On further consideration of the record, it is ordered that the parties shall brief the following issue specified by the Court:

 

IN LIGHT OF COKER V. GEORGIA, 433 U.S. 584, 598 (1977), AND UNITED STATES V. HICKSON, 22 M.J. 146, 154 n.10 (C.M.A. 1986), WAS THE OFFENSE OF RAPE OF AN ADULT WOMAN, A VIOLATION OF ARTICLE 120, UCMJ, 10 U.S.C. § 920 (SUPP. II 1997), A CRIME PUNISHABLE BY DEATH WITHIN THE MEANING OF ARTICLE 43, UCMJ, 10 U.S.C. § 843 (1994)?

 

The parties will brief this issue contemporaneously, and file their briefs on or before November 14, 2017. Reply briefs on this issue may be filed on or before November 27, 2017.




Monday, October 16, 2017

Petitions for Grant of Review - Summary Dispositions

 

No. 17-0308/AR. U.S. v. Dwayne M. Williams. CCA 20140924. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.

 

Orders Granting Petition for Review

 

No. 17-0491/AR. U.S. v. Nicholas S. Marcum. CCA 20150500. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.

 

No. 17-0510/MC. U.S. v. Derrick L. Dinger. CCA 201600108. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.




Thursday, October 12, 2017

Orders Granting Petition for Review

 

No. 17-0551/AF. U.S. v. Thomas E. Barker. CCA 39086. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

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

 

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

 

Briefs will be filed under Rule 25.

 

No. 17-0553/AF. U.S. v. Ryan A. Hardy. CCA 38937. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLANT WAIVED, RATHER THAN FORFEITED, HIS CLAIM OF UNREASONABLE MULTIPLICATION OF CHARGES.

 

Briefs will be filed under Rule 25.

 

No. 17-0556/AR. U.S. v. Joseph R. Armstrong. CCA 20150424. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.

 

No. 17-0559/AR. U.S. v. Eric F. Kelly. CCA 20150725. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.




Wednesday, October 11, 2017

Petitions for Grant of Review - Summary Dispositions

 

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

 

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




Thursday, August 31, 2017

Orders Granting Petition for Review

 

No. 17-0495/MC. U.S. v. Benjamin D. Luna. CCA 201500423. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

No briefs will be filed under Rule 25.




Tuesday, August 29, 2017

Orders Granting Petition for Review

 

No. 17-0404/AF. U.S. v. Vashaun M. Blanks. CCA 38891. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.




Friday, August 18, 2017

Orders Granting Petition for Review

 

No. 17-0480/NA. U.S. v. Raiden J. Andrews. CCA 201600208. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.

 

No. 17-0504/AF. U.S. v. Hank W. Robinson. CCA 38942. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

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

 

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

 

Briefs will be filed under Rule 25.




Wednesday, August 16, 2017

Orders Granting Petition for Review

 

No. 17-0456/AF. U.S. v. Alexander S. Wheeler. CCA 38908. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE LOWER COURT ERRONEOUSLY CONCLUDED CHARGE II WAS NOT PREEMPTED BY ARTICLE 120b, UCMJ, 10 U.S.C. § 920.

 

Briefs will be filed under Rule 25.




Thursday, August 10, 2017

Orders Granting Petition for Review

 

No. 17-0458/AF. U.S. v. Chad A. Blatney. CCA 2016-16. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY SUPPRESSING EVIDENCE OBTAINED FROM APPELLANT'S CELLULAR PHONE, WHERE LAW ENFORCEMENT REQUESTED THAT APPELLANT ENTER HIS PASSWORD TWICE TO DECRYPT THE PHONE AND DISABLE SECURITY AFTER HE INVOKED HIS RIGHT TO COUNSEL.

 


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




Monday, July 31, 2017

Certificates for Review Filed

 

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

 

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

 

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

 

Orders Granting Petition for Review

 

No. 17-0434/AF. U.S. v. Edzel D. Mangahas. CCA 2016-10. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE LOWER COURT ERRED IN FINDING NO DUE PROCESS VIOLATION WHEN THE GOVERNMENT WAS INACTIVE FOR OVER 17 YEARS BEFORE INVESTIGATING A CLAIM OF RAPE, VIOLATING LTCOL MANGAHAS' FIFTH AMENDMENT RIGHT TO A SPEEDY TRIAL.

 

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




Tuesday, July 25, 2017

Orders Granting Petition for Review

 

No. 17-0405/AF. U.S. v. Sean C. Mooney. CCA 38929. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE CONVENING AUTHORITY'S ACTION IS VOID AB INITIO WHERE IT PURPORTS TO ORDER APPELLANT'S ADJUDGED COURT-MARTIAL SENTENCE TO RUN CONSECUTIVE TO HIS PREVIOUSLY ADJUDGED FEDERAL SENTENCE INSTEAD OF CONCURRENTLY AS REQUIRED BY ARTICLE 57, UCMJ.

 

Briefs will be filed under Rule 25.




Wednesday, July 19, 2017

Orders Granting Petition for Review

 

No. 17-0306/AF. U.S. v. Joseph A. Pugh. CCA 2016-11. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that the petition is hereby granted on the following issue:

 

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

 

Although ordinarily an appeal pursuant to Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), does not require additional pleadings, because the granted issue differs from the assigned issue, additional briefing is necessary. See CAAF Rules 19(a)(7)(A) and 25. Accordingly, Appellant's brief on this issue shall be filed within 20 days of the date of this order. Appellee's brief shall be filed within 20 days of the filing of Appellant's brief. A reply may be filed by Appellant within 5 days of Appellee's brief. Absence extraordinary circumstances, extensions of time to file the briefs will not be granted.

 

No. 17-0392/AF. U.S. v. Robert A. Condon. CCA 38765. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue raised by appellate defense counsel:

 

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

 

And the following issue specified by the Court:

 

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

 

Briefs will be filed under Rule 25.




Thursday, July 13, 2017

Orders Granting Petition for Review

 

No. 17-0476/AF. U.S. v. David C. Carpenter II. CCA 38995. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF APPEALS ERRED IN LIMITING THE CROSS-EXAMINATION OF THE COMPLAINING WITNESS UNDER MILITARY RULE OF EVIDENCE 412 ON AN ISSUE SHOWING THAT APPELLANT'S SUBJECTIVE MISTAKE OF FACT AS TO THE COMPLAINING WITNESS'S AGE WAS OBJECTIVELY REASONABLE.

 

Briefs will be filed under Rule 25.




Thursday, June 22, 2017

Orders Granting Petition for Review

 

No. 17-0323/AR. U.S. v. Antonio T. Moore. CCA 20140875. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

No briefs will be filed under Rule 25.




Monday, June 12, 2017

Orders Granting Petition for Review

 

No. 17-0285/AR. U.S. v. Gene N. Williams. CCA 20130582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.

 

No. 17-0364/AF. U.S. v. Tyler G. Eppes. CCA 38881. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

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

 

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

 

Briefs will be filed under Rule 25.




Friday, May 26, 2017

Orders Granting Petition for Review

 

No. 17-0347/AF. U.S. v. Robert L. Honea III. CCA 38905. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

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

 

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

 

Briefs will be filed under Rule 25.




Monday, May 15, 2017

Certificates for Review Filed

 

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

 

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

 

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




Monday, May 1, 2017

Orders Granting Petition for Review

 

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

 

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

 

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

 

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

 

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




Friday, April 28, 2017

Orders Granting Petition for Review

 

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

 

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

 

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

 

Briefs will be filed under Rule 25.




Thursday, April 20, 2017

Orders Granting Petition for Review

 

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

 

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

 

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

 

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




Friday, April 14, 2017

Orders Granting Petition for Review

 

No. 17-0199/AF. U.S. v. Ricky D. Chisum, Jr. CCA S32311. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE'S FAILURE TO CONDUCT AN IN CAMERA REVIEW OF AND FAILURE TO DISCLOSE THE MENTAL HEALTH RECORDS OF AB AK AND AB CR DEPRIVED APPELLANT OF HIS RIGHT TO CONFRONT THE SOLE WITNESSES AGAINST HIM IN VIOLATION OF THE SIXTH AMENDMENT TO THE CONSTITUTION.

 

Briefs will be filed under Rule 25.

 

No. 17-0224/AR. U.S. v. Jorge F. Acevedo. CCA 20150076. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

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

 

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

 

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

 

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

 

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




Monday, April 3, 2017

Certificates for Review Filed

 

No. 17-0329/AR. U.S. v. Randy L. Simpson Jr. CCA 20140126. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

 

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

 

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




Friday, March 31, 2017

Certificates for Review Filed

 

No. 17-0326/AF. U.S. v. Joshua Katso. CCA 38005. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

 

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

 

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

 

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

 

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




Tuesday, March 28, 2017

Orders Granting Petition for Review

 

No. 17-0231/AR. U.S. v. Torrence A. Robinson. CCA 20140785. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues raised by Appellant:

 

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

 

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

 

And the following issue specified by the Court:

 

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

 

Briefs will be filed under Rule 25.




Tuesday, March 21, 2017

Orders Granting Petition for Review

 

No. 17-0187/AR. U.S. v. Brian G. Short. CCA 20150320. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.

 

No. 17-0203/AR. U.S. v. David L. Jerkins. CCA 20140071. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.




Friday, March 3, 2017

Orders Granting Petition for Review

 

No. 17-0183/AR. U.S. v. Alan S. Guardado. CCA 20140014. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

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

 

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

 

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




Monday, December 19, 2016

Orders Granting Petition for Review

 

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

 

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

 

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

 

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

 

No briefs will be filed under Rule 25.




Tuesday, December 13, 2016

Interlocutory Orders

 

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

 

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

 

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




Tuesday, November 1, 2016

Orders Granting Petition for Review

 

No. 17-0004/AR. U.S. v. Jason A. Maestre. CCA 20140549. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

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

 

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

 

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

 

No briefs will be filed under Rule 25.


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