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NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 1/27/16)

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Thursday, January 21, 2016

Orders Granting Petition for Review

 

No. 16-0238/AR. U.S. v. Christopher L. Goffe. CCA 20120201. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL ON THE SPECIFICATION OF ADDITIONAL CHARGE IV BECAUSE, WHEN SILENT, A STATUTE MUST BE READ TO REQUIRE MORE THAN NEGLIGENCE AS INSTRUCTED. SEE ELONIS v. UNITED STATES, 575 U.S. ___, 135 S. CT. 2001 (2015).

 

Briefs will be filed under Rule 25.




Wednesday, January 20, 2016

Interlocutory Orders

 

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

 

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

 

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




Tuesday, January 19, 2016

Orders Granting Petition for Review

 

No. 15-0767/AR. U.S. v. Kendell Hills. CCA 20130833. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

 

Briefs will be filed under Rule 25.

 

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

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

 

Briefs will be filed under Rule 25.




Wednesday, December 16, 2015

Certificates for Review Filed

 

No. 16-0223/MC. U.S. v. Monifa J. Sterling. CCA 201400150. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on this 16th day of December, 2015, on the following issues:

 

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

 

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

 

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




Thursday, December 10, 2015

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0130/AR. U.S. v. Donaciano Bosquez III. CCA 20140256. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is noted that the decision of the United States Army Court of Criminal Appeals incorrectly stated that Appellant was tried by a general court-martial. In fact, as the record of trial indicates, this was a special court-martial.




Tuesday, December 1, 2015

Orders Granting Petition for Review

 

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

 

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

 

Briefs will be filed under Rule 25.




Tuesday, November 24, 2015

Orders Granting Petition for Review

 

No. 15-0742/AF. U.S. v. Kevin Gay. CCA 38525. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that that said petition is hereby granted on the following issue specified by the Court:

 

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

 

Briefs will be filed under Rule 25.

 

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

 

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

 

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




Friday, November 20, 2015

Certificates for Review Filed

 

No. 15-0749/AF. United States, Appellant v. Daniel H. Chin, Appellee. CCA 38452. Notice is hereby given that an amended certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT'S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F. 2009).

 

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

 

Interlocutory Orders

 

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

 

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

 

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

 

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




Monday, November 9, 2015

Orders Granting Petition for Review

 

No. 16-0091/AR. U.S. v. Djoulou K. Caldwell. CCA 20140425. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by Appellant:

 

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE INSTRUCTED THE PANEL USING A NEGLIGENCE STANDARD FOR MALTREATMENT OF A SUBORDINATE IN VIOLATION OF ARTICLE 93.

 

Briefs will be filed under Rule 25.




Thursday, November 5, 2015

Certificates for Review Filed

 

No. 16-0122/MC. U.S. v. Beau T. Martin. CCA 201400315. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

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

 

Orders Granting Petition for Review

 

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER EVIDENCE OBTAINED FROM A POLICE SEARCH OF APPELLANT'S VEHICLE ON OR ABOUT AUGUST 4, 2010, WAS OBTAINED IN VIOLATION OF THE FOURTH AMENDMENT AND SHOULD HAVE BEEN SUPPRESSED.

 

Briefs will be filed under Rule 25.




Wednesday, November 4, 2015

Petitions for Grant of Review - Summary Dispositions

 

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

 

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

 

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




Wednesday, October 28, 2015

Orders Granting Petition for Review

 

No. 15-0510/MC. U.S. v. Monifa J. Sterling. CCA 201400150. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

 

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

 

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

 

Briefs will be filed under Rule 25.




Monday, October 19, 2015

Certificates for Review Filed

 

No. 16-0068/NA. United States, Appellant v. Dustin M. Clark, Appellee. CCA 201400232. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

 

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

 

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




Wednesday, October 14, 2015

Appeals - Summary Dispositions

 

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




Wednesday, October 7, 2015

Certificates for Review Filed

 

No. 16-0053/AF. U.S. v. Shelby L. Williams. CCA 38454. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

 

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE TRIAL DEFENSE COUNSEL SUFFICIENTLY OBJECTED TO THE ADMISSION OF THE EVIDENCE RELATING TO A PREGNANCY AND MISCARRIAGE.

 

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

 

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

 

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

 

No. 16-0054/AF. U.S. v. Gavin B. Atchak. CCA 38526. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN SETTING ASIDE AND DISMISSING THE SPECIFICATIONS OF AGGRAVATED ASSAULT WITHOUT AUTHORIZING THE CONVENING AUTHORITY TO ORDER A REHEARING FOR THE LESSER INCLUDED OFFENSES OF ASSAULT CONSUMMATED BY A BATTERY.

 

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

 

Orders Granting Petition for Review

 

No. 15-0754/MC. U.S. v. Beau T. Martin. CCA 201400315. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THE HUMAN LIE DETECTOR TESTIMONY OFFERED BY THE ALLEGED VICTIM'S HUSBAND WAS NOT MATERIALLY PREJUDICIAL.

 

Briefs will be filed under Rule 25.




Friday, September 25, 2015

Appeals - Summary Dispositions

 

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




Tuesday, September 22, 2015

Petitions for Grant of Review - Summary Dispositions

 

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

 

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

 

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

 

No. 15-0726/AF. U.S. v. Patrick A. Shea. CCA S32225. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted on the following issue:

 

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

 

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




Thursday, September 17, 2015

Petitions for Grant of Review - Summary Dispositions

 

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

 

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




Monday, September 14, 2015

Certificates for Review Filed

 

No. 16-0014/NA. U.S. v. Jacob L. Pease. CCA 201400165. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

 

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

 

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




Tuesday, August 11, 2015

Certificates for Review Filed

 

No. 15-0749/AF. U.S. v. Daniel H. Chin. CCA 38452. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER THE AIR FOR COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY FINDING THAT UNREASONABLE MULTIPLICATION OF CHARGES WAS NOT WAIVED, IN DIRECT CONTRADICTION OF THIS COURT'S BINDING PRECEDENT IN UNITED STATES V. GLADUE, 67 M.J. 311 (C.A.A.F. 2009)

 

No. 15-0750/AF. U.S. v. Kevin Gay. CCA 38525. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ABUSED ITS DISCRETION AND COMMITTED LEGAL ERROR BY REACHING ITS DECISION THAT ARTICLE 66, UCMJ, GRANTS IT THE AUTHORITY TO GRANT SENTENCE APPROPRIATENESS RELIEF FOR POST-TRIAL CONFINEMENT CONDITIONS EVEN THOUGH THERE WAS NO VIOLATION OF THE EIGHTH AMENDMENT OR ARTICLE 55, UCMJ, IN DIRECT CONTRAVENTION OF THIS COURT'S BINDING PRECEDENT.




Monday, July 13, 2015

Orders Granting Petition for Review

 

No. 15-0664/AF. U.S. v. Sean J. Chero. CCA 38470. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE CONCLUDED APPELLANT'S MAXIMUM PUNISHMENT WAS 30 YEARS CONFINEMENT, TOTAL FORFEITURES AND A DISHONORABLE DISCHARGE.

 

No briefs will be filed under Rule 25.




Wednesday, July 8, 2015

Orders Granting Petition for Review

 

No. 15-0476/AR. U.S. v. Eric L. Rapert. CCA 20130309. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE FINDING OF GUILTY FOR CHARGE I AND ITS SPECIFICATION FOR COMMUNICATING A THREAT IS LEGALLY INSUFFICIENT BECAUSE THE COMMENTS ARE CONSTITUTIONALLY PROTECTED AND DO NOT CONSTITUTE A THREAT UNDER THE TOTALITY OF THE CIRCUMSTANCES AND IN LIGHT OF THE SUPREME COURT'S DECISION IN ELONIS v. UNITED STATES, 575 U.S. __, 135 S. Ct. 2001 (2015).

 

Briefs will be filed under Rule 25.




Tuesday, June 30, 2015

Orders Granting Petition for Review

 

No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER APPELLANT'S CONVICTION FOR PROVOKING SPEECH IS LEGALLY INSUFFICIENT BECAUSE "UNDER THE CIRCUMSTANCES" HIS WORDS WERE NOT REASONABLY LIKELY TO PROVOKE VIOLENCE.

 

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

 

Briefs will be filed under Rule 25.




Wednesday, June 3, 2015

Orders Granting Petition for Review

 

No. 15-0384/CG. U.S. v. Christopher S. Cooley. CCA 1389. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE GOVERNMENT VIOLATED APPELLANT'S RIGHTS UNDER ARTICLE 10, UCMJ, WHEN THE GOVERNMENT POSSESSED KEY EVIDENCE AGAINST APPELLANT ON JULY 20, 2012, AND FEBRUARY 5, 2013, YET MADE NO MOVE TO PROSECUTE APPELLANT FOR THESE OFFENSES UNTIL JUNE OF 2013, DESPITE HIS PRETRIAL CONFINEMENT FROM DECEMBER 20, 2012.

 

Briefs will be filed under Rule 25.

 

No. 15-0477/AF. U.S. v. Nicholas E. Busch. CCA 38530. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

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

 

Briefs will be filed under Rule 25.




Tuesday, May 26, 2015

Orders Granting Petition for Review

 

No. 15-0372/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE ALLOWED THE ADMISSION OF ADDITIONAL EVIDENCE DURING DELIBERATIONS BUT ALSO DENIED APPELLANT THE OPPORTUNITY TO ATTACK THE ACCURACY OF THAT EVIDENCE BEFORE THE FACTFINDER.

 

Briefs will be filed under Rule 25.




Thursday, May 14, 2015

Interlocutory Orders

 

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

 

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

 

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




Thursday, May 7, 2015

Orders Granting Petition for Review

 

No. 15-0426/AR. U.S. v. Richard A. Gifford. CCA 20120545. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT SECOND INFANTRY DIVISION POLICY LETTER NUMBER 8(11 JANUARY 2010), WHICH PROHIBITS SERVICE MEMBERS WHO ARE 21 YEARS OF AGE AND OLDER FROM DISTRIBUTING ALCOHOL TO PERSONS UNDER 21 FOR THE PURPOSES OF CONSUMPTION, DID NOT CONTAIN AN ELEMENT THAT APPELLANT KNEW THAT THE PERSON TO WHOM DISTRIBUTION WAS MADE WAS UNDER 21 YEARS OF AGE, AND THEREFORE IMPOSED STRICT LIABILITY FOR SUCH ACTIONS.

 

Briefs will be filed under Rule 25.




Thursday, April 30, 2015

Orders Granting Petition for Review

 

No. 15-0140/AR. U.S. v. Henry L. Williams III. CCA 20130284. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER APPELLANT COMMITTED LARCENIES OF THE PROPERTY OF TWO SOLDIERS BY USING THEIR DEBIT CARD INFORMATION WITHOUT AUTHORITY. SEE UNITED STATES v. LUBASKY, 68 M.J. 260 (C.A.A.F. 2010).

 

Briefs will be filed under Rule 25.




Tuesday, April 28, 2015

Orders Granting Petition for Review

 

No. 15-0361/MC. U.S. v. Matthew P. Hoffmann. CCA 201400067. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER THE SEARCH AND SEIZURE OF THE PERSONAL ITEMS OF AN INDIVIDUAL WHERE THE SEARCH WAS INITIALLY GRANTED BY CONSENT, BUT LATER REVOKED BEFORE THE SEIZURE OF ITEMS, VIOLATED THE FOURTH AMENDMENT OF THE CONSTITUTION.

 

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

 

Briefs will be filed under Rule 25.




Tuesday, April 7, 2015

Orders Granting Petition for Review

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues specified by the Court:

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

 

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

 

Briefs will be filed under Rule 25.




Wednesday, March 25, 2015

Orders Granting Petition for Review

 

No. 15-0377/NA. U.S. v. Nestor L. Suazo-Lopez. CCA 201300463. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

THE CONVENING AUTHORITY ISSUED AN INSTRUCTION THAT LIMITED COURT-MARTIAL MEMBERS NOMINATIONS TO PERSONNEL IN PAY-GRADES OF E-6 AND ABOVE. THE LOWER COURT ASSUMED THIS SYSTEMATIC EXCLUSION OF PERSONNEL WAS ERROR, BUT HARMLESS. SHOULD THIS COURT SET ASIDE APPELLANT'S CONVICTIONS PURSUANT TO UNITED STATES v. KIRKLAND DUE TO THE UNRESOLVED APPEARANCE OF UNFAIRNESS?

No briefs will be filed under Rule 25.




Thursday, March 19, 2015

Orders Granting Petition for Review

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHETHER THE PROMULGATION OF RCM 707 ABROGATED THE "SUBSTANTIAL INFORMATION" RULE ORIGINATED IN UNITED STATES v. JOHNSON, 23 C.M.A. 91, 48 C.M.R. 599 (1974).

 

Briefs will be filed under Rule 25.

No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE LOWER COURT ERRED IN DECIDING A QUESTION OF LAW WHICH HAS NOT BEEN, BUT SHOULD BE, SETTLED BY THIS COURT WHEN IT HELD THAT ASSAULT CONSUMMATED BY BATTERY WAS A LESSER INCLUDED OFFENSE TO ABUSIVE SEXUAL CONTACT AND SEXUAL ASSAULT.

Briefs will be filed under Rule 25.




Monday, February 23, 2015

Certificates for Review Filed

 

No. 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

 

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

 

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




Wednesday, December 24, 2014

Mandatory Review Case Filed

 

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

 

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

 

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

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