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NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 12/2/16)

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Wednesday, November 30, 2016

Orders Granting Petition for Review

 

No. 16-0641/AR. U.S. v. Ian T. Miller. CCA 20150170. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the pleadings, it is ordered that said petition is hereby granted on the following issues:

 

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

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE CELTNIEKS 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.

 

No. 17-0010/MC. U.S. v. Alfredo Solis. CCA 201500249. 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 MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

No. 17-0040/AR. U.S. v. Keith D. Land. CCA 20160220. 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 COURT OF MILITARY COMMISSION JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE HERRING.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE COURT OF MILITARY COMMISSION REVIEW, 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.

 

No. 17-0065/AR. U.S. v. Cassandra M. Riley. CCA 20150687. 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 JUDGES BURTON AND CELTNIEKS.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGES BURTON AND CELTNIEKS 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, November 29, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0696/AR. U.S. v. William G. Inman. CCA 20150042. 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 assigned issue:

 

WHETHER THE MILITARY JUDGE SHOULD HAVE DISQUALIFIED HIMSELF BECAUSE HE HAD PREVIOUSLY ACTED AS COUNSEL IN APPELLANT'S CASE, AND BECAUSE HE EXPRESSED AN OPINION CONCERNING THE GUILT OR INNOCENCE OF APPELLANT WHEN SERVING AS CHIEF OF MILITARY JUSTICE.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry of the granted issue. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2012), the Court of Criminal Appeals shall review the issue in light of Appellant's exhibits submitted to and admitted by this Court and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a factfinding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2012), shall apply.

 

Miscellaneous Docket - Summary Dispositions

 

No. 17-0053/AR. Jeffrey R. Kuntz, Appellant v. United States, Appellee. CCA 20160577. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby dismissed for lack of jurisdiction.

 

Orders Granting Petition for Review

 

No. 16-0616/AF. U.S. v. Kelvin L. O'Shaughnessy. CCA 38732. 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. CMCR JUDGE MITCHELL WAS NOT STATUTORILY AUTHORIZED TO SIT ON THE AIR FORCE COURT OF CRIMINAL APPEALS.

 

II. EVEN IF CMCR JUDGE MITCHELL WAS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE AIR FORCE COURT OF CRIMINAL APPEALS, HIS SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.

 

No. 16-0675/AF. U.S. v. Brandi D. Medeiros. CCA S32289. 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 UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, WAS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 16-0716/AR. U.S. v. Manuel Ortiz III. CCA 20150267. 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 MILITARY JUDGE WRONGLY APPLIED MILITARY RULE OF EVIDENCE 414 TO CHARGED MISCONDUCT, THEREBY LOWERING THE GOVERNMENT'S BURDEN OF PROOF AND VIOLATING APPELLANT'S CONSTITUTIONAL RIGHTS.

 

II. WHETHER ACCEPTANCE OF APPOINTMENT AS A CMCR JUDGE TERMINATED THE MILITARY COMMISSION OF JUDGE CELTNIEKS.

 

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

 

IV. 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.

 

No. 16-0749/AR. U.S. v. Richard S. Carroll. CCA 20150049. 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 COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

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

 

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.




Wednesday, November 23, 2016

Orders Granting Petition for Review

 

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. On further consideration of the record and the pleadings, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25, and oral argument will not be heard on this issue at the December 6, 2016, hearing.

 

No. 16-0748/NA. U.S. v. David W. Neiman. CCA 201500119. 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 MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY."

 

No briefs will be filed under Rule 25.

 

No. 17-0003/AR. U.S. v. Christopher B. Hukill. CCA 20140939. 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, IN A COURT-MARTIAL TRIED BY MILITARY JUDGE ALONE, 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.

 

II. WHETHER JUDGE PAULETTE V. BURTON AND JUDGE LARSS G. CELTNIEKS, JUDGES ON THE COURT OF MILITARY COMMISSION REVIEW WERE STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS, AND EVEN IF THEY WERE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

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




Monday, November 21, 2016

Orders Granting Petition for Review

 

No. 16-0719/AR. U.S. v. John G. Birdsong. CCA 20140887. 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 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.

 

No. 16-0735/AR. U.S. v. Rhandall S. Lavasseur, Jr. CCA 20150475. 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 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.

 

No. 17-0047/AR. U.S. v. Adrian T. Douglas. CCA 20140449. 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 CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES BURTON AND CELTNIEKS.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND CELTNIEKS DID NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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.

 

Interlocutory Orders

 

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On further consideration of the record of trial, as supplemented following the order of the Court dated October 28, 2016, it is ordered that the parties brief the following specified issue:

 

WHETHER THE ISSUES GRANTED FOR REVIEW ARE MOOT WHERE THE RECORD REFLECTS THAT: MARTIN T. MITCHELL TOOK AN OATH PURPORTING TO INSTALL HIM AS A JUDGE OF THE U.S. COURT OF MILITARY COMMISSION REVIEW (CMCR) ON MAY 2, 2016; THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA) ISSUED AN OPINION IN THE UNDERLYING CASE WITH JUDGE MITCHELL PARTICIPATING IN HIS CAPACITY AS AN AFCCA JUDGE ON MAY 12, 2016; AND THE PRESIDENT DID NOT APPOINT MITCHELL TO THE CMCR UNTIL MAY 25, 2016.

 

The parties will brief this issue contemporaneously, and file their briefs on or before December 1, 2016. It is further ordered that the Court will hear oral argument only on the specified issue at the hearing scheduled for December 7, 2016, and that the order allotting amicus curiae 10 minutes to present oral argument is hereby rescinded.




Thursday, November 17, 2016

Orders Granting Petition for Review

 

No. 17-0032/AR. U.S. v. Sean M. Ahern. CCA 20130822. 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 LOWER COURT ERRED WHEN IT HELD THAT THE PROHIBITION AGAINST USING AN ADMISSION BY SILENCE PROVIDED BY MIL. R. EVID. 304(a)(2) IS TRIGGERED ONLY "WHEN THE ACCUSED IS AWARE OF" AN INVESTIGATION CONTRARY TO THE PLAIN LANGUAGE OF THE RULE.

 

Briefs will be filed under Rule 25.




Wednesday, November 16, 2016

Certificates for Review Filed

 

No. 17-0079/AF. United States, Appellant v. Patrick Carter, Appellee. CCA 38708. 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 (AFCCA) ERRED BY FINDING THAT THE CONVENING AUTHORITY EXCEEDED THE SCOPE OF AFCCA'S REMAND WHEN HE REFERRED APPELLANT'S CASE TO AN "OTHER" TRIAL UNDER R.C.M. 1107(e)(2) FOLLOWING AFCCA'S ORIGINAL REMAND DECISION.

 

Orders Granting Petition for Review

 

No. 16-0753/AR. U.S. v. Taylor A. Layton. CCA 20150260. 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 COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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.

 

No. 17-0014/AR. U.S. v. Stephen C. Warren. CCA 20140510. 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 COMMISSIONS OF JUDGE CELTNIEKS AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE CELTNIEKS AND JUDGE BURTON DO 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.

 

No. 17-0016/AR. U.S. v. Christopher L. Cottner. CCA 20150733. 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 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.

 

No. 17-0017/AR. U.S. v. Jasmine S. Hercules. CCA 20150197. 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 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.

 

No. 17-0021/AR. U.S. v. Alvin S. Banks. CCA 20130948. 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 UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, JAMES W. HERRING, JR., IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE ARMY COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE JAMES W. HERRING, JR.'S SERVICE ON BOTH THE ARMY COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 17-0038/AR. U.S. v. Christopher B. Smith. CCA 20140353. 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.




Thursday, November 10, 2016

Petitions for Reconsideration Granted

 

No. 16-0724/AF. U.S. v. Donald R.B. Simmons. CCA 38788. On consideration of Appellant's petition for reconsideration of this Court's Order issued October 20, 2016, it is ordered that said petition for reconsideration is hereby granted, that the Order of October 20, 2016, denying the petition for grant of review is hereby vacated, and the petition for grant of review is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Wednesday, November 9, 2016

Orders Granting Petition for Review

 

No. 17-0027/AR. U.S. v. Nicholas E. White. CCA 20140945. 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 COMMISISON 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.




Monday, November 7, 2016

Orders Granting Petition for Review

 

No. 17-0026/AR. U.S. v. Joshua R. Luna. CCA 20150365. 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 APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES HERRING AND BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES HERRING AND BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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.




Thursday, November 3, 2016

Orders Granting Petition for Review

 

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. On further consideration of the petition for grant of review and the pleadings, it is ordered that said petition is hereby granted on the following additional issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Wednesday, November 2, 2016

Orders Granting Petition for Review

 

No. 16-0669/NA. U.S. v. Mark A. Berger. CCA 201500024. 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:

 

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT'S MOTION TO USE EVIDENCE OF CHARGED SEXUAL MISCONDUCT UNDER MRE 413 TO SHOW PROPENSITY TO COMMIT OTHER CHARGED SEXUAL MISCONDUCT. SEE UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016).

 

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Tuesday, November 1, 2016

Orders Granting Petition for Review

 

No. 16-0754/AR. U.S. v. Arthur Martin, Jr. CCA 20130207. 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 APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES HERRING AND CELTNIEKS.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES HERRING AND CELTNIEKS DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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.

 

No. 16-0758/AR. U.S. v. Jesse M. Taylor. CCA 20150158. 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 CMCR JUDGE HERRING IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

 

II. WHETHER, EVEN IF CMCR JUDGE HERRING IS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, HIS SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

 

No briefs will be filed under Rule 25.

 

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.




Friday, October 28, 2016

Orders Granting Petition for Review

 

No. 16-0712/AR. U.S. v. James G. Donohue. CCA 20140124. 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 UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGES JAMES WILSON HERRING, JR. AND PAULETTE VANCE BURTON ARE STATUTORILY AUTHORIZED TO SIT AS TWO OF THE ARMY COURT OR CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER THE SERVICE OF JUDGES JAMES WILSON HERRING, JR., AND JUDGE PAULETTE VANCE BURTON ON BOTH THE ARMY COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATED THE APPOINTMENTS CLAUSE GIVEN THEIR STATUS AS SUPERIOR OFFICERS ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 16-0757/AR. U.S. v. Trevor L. Sands. CCA 20130946. 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 CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES BURTON AND HERRING.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND HERRING DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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.




Thursday, October 27, 2016

Orders Granting Petition for Review

 

No. 16-0671/AF. U.S. v. Keanu D.W. Ortiz. CCA 38839. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 16-0739/AR. U.S. v. Collins Nyangau. CCA 20150495. 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.

 

No. 16-0751/AR. U.S. v. D'Andre R. Fletcher. CCA 20140949. 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 APPOINTMENTS AS COURT OF MILITARY COMMISSION JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES CELTNIEKS AND BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE COURT OF MILITARY COMMISSION REVIEW, JUDGES BURTON AND CELTNIEKS DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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.

 

No. 16-0761/AR. U.S. v. Jacob I. McGowan. CCA 20150807. 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.

 

No. 17-0002/AR. U.S. v. Alvin J. Fogle. CCA 20140534. 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 AN APPELLATE MILITARY JUDGE.

 

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

 

No briefs will be filed under Rule 25.




Monday, October 24, 2016

Miscellaneous Docket - Filings

 

No. 17-0039/NA. In Re Joshua G. Anderson. Notice is hereby given that correspondence from Mr. Joshua G. Anderson, which this Court construes as a petition for extraordinary relief in the nature of a writ of habeas corpus, was filed under Rule 27(a) on October 18, 2016, and placed on the docket this 24th day of October, 2016. On consideration thereof, it is ordered that said petition is hereby dismissed for lack of jurisdiction.




Thursday, October 20, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0501/AF. U.S. v. Richard A. Rivera. CCA 38649. 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 dismissed for lack of jurisdiction.

 

Orders Granting Petition for Review

 

No. 16-0490/MC. U.S. v. Jonathan A. Lopez. CCA 201400289. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

No. 16-0599/AR. U.S. v. Jared D. Herrmann. CCA 20131064. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO FIND APPELLANT COMMITTED RECKLESS ENDANGERMENT, WHICH REQUIRES PROOF THE CONDUCT WAS LIKELY TO PRODUCE DEATH OR GRIEVOUS BODILY HARM.

 

Briefs will be filed under Rule 25.

 

No. 16-0658/AR. U.S. v. Tyler F. Ho. CCA 20140068. 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 APPELLANT WAS PUNISHED FOR 28 DAYS BY BEING FORCED TO QUARTER A JUNIOR OFFICER IN HIS HOME AND NOT AWARDED CREDIT.

 

II. WHETHER ACCEPTANCE OF APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES CELTNIEKS, BURTON AND HERRING.

 

III. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND HERRING DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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

 

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

 

No. 16-0670/AR. U.S. v. Matthew N. Watkins. CCA 20140275. 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 specified by the Court:

 

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

 

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

 

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

 

No briefs will be filed under Rule 25.

No. 16-0680/AR. U.S. v. Shquon T. Hodge. CCA 20160056. 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 specified by the Court:

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

 

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

 

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

 

No briefs will be filed under Rule 25.

 

No. 16-0725/AR. U.S. v. Jacob D. Blakesley. CCA 20150012. 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 specified by the Court:

 

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 AN APPELLATE MILITARY JUDGE.

 

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

 

No briefs will be filed under Rule 25.

 

No. 16-0756/AF. U.S. v. Timothy J. Morgan. CCA 38825. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND THE ACCUSED GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

Petitions for Reconsideration Granted

 

No. 16-0650/AR. U.S. v. Courtney A. Craig. CCA 20150272. On consideration of Appellant's petition for reconsideration of this Court's Order issued 12 August 2016, it is ordered that said petition for reconsideration is hereby granted, that the Order of 12 August 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 APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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.




Wednesday, October 19, 2016

Orders Granting Petition for Review

 

No. 16-0663/MC. U.S. v. Travis V. Nauta. CCA 201500244. 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 MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO, 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTION RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

No. 16-0705/AR. U.S. v. Sean R. Erikson. CCA 20150130. 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 MILITARY JUDGE ERRED IN EXCLUDING EVIDENCE THAT THE VICTIM PREVIOUSLY MADE A FALSE ACCUSATION OF SEXUAL CONTACT AGAINST ANOTHER SOLDIER.

 

II. CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE NOT STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

 

III. EVEN IF CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, THEIR SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.

 

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

 

No. 16-0711/AF. U.S. v. Michael J.D. Briggs. CCA 38730. 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 AFCCA PANEL THAT HEARD APPELLANT'S CASE WAS IMPROPERLY CONSTITUTED.

 

No briefs will be filed under Rule 25.




Tuesday, October 18, 2016

Orders Granting Petition for Review

 

No. 16-0617/AF. U.S. v. Joseph D. Morchinek. CCA S32291. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE MARTIN T. MITCHELL IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

No briefs will be filed under Rule 25.

 

No. 16-0715/AR. U.S. v. Zachary A. Bennett. CCA 20121072. 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 APPOINTMENTS AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGES BURTON AND HERRING.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGES BURTON AND HERRING DO NOT MEET THE UCMJ DEFINITION OF APPELLATE MILITARY JUDGES.

 

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.

 

No. 16-0723/AR. U.S. v. Kyle D. Rich. CCA 20130805. 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 BURTON.

 

II. WHETHER, AS AN APPOINTED JUDGE OF THE CMCR, JUDGE BURTON 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.

 

No. 16-0733/AR. U.S. v. Christopher B. Melvin. CCA 20140761. 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 CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE NOT STATUTORILY AUTHORIZED TO SIT ON THE ARMY COURT OF CRIMINAL APPEALS.

 

II. EVEN IF CMCR JUDGES LARSS G. CELTNIEKS AND PAULETTE V. BURTON ARE STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY COURT OF CRIMINAL APPEALS, WHETHER THEIR SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN THEIR NEWLY ATTAINED STATUS AS SUPERIOR OFFICERS.

 

No briefs will be filed under Rule 25.

 

No. 16-0746/AR. U.S. v. Ryan W. Rochford. CCA 20140565. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

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

 

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

 

Petitions for Reconsideration Granted

 

No. 16-0713/AR. U.S. v. Samuel E. Nealy III. CCA 20140029. On consideration of Appellant's petition for reconsideration of this Court's Order issued September 27, 2016, it is ordered that said petition for reconsideration is hereby granted, that the Order of September 27, 2016, denying the petition for grant of review is hereby vacated, and the petition for grant of review is hereby granted on the following issues:

 

I. WHETHER ACCEPTANCE OF APPOINTMENT AS CMCR JUDGES TERMINATED THE MILITARY COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON 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.




Thursday, October 13, 2016

Orders Granting Petition for Review

 

No. 16-0722/AR. U.S. v. Max S. Maydoney. CCA 20150324. 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 JUDGE PAULETTE V. BURTON, CMCR JUDGE, IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY CCA, AND EVEN IF SHE IS STATUTORILY AUTHORIZED TO BE ASSIGNED TO THE ARMY CCA, WHETHER HER SERVICE ON BOTH COURTS VIOLATES THE APPOINTMENTS CLAUSE GIVEN HER NEWLY ATTAINED STATUS AS A SUPERIOR OFFICER.

 

No briefs will be filed under Rule 25.




Wednesday, October 12, 2016

Orders Granting Petition for Review

 

No. 16-0588/NA. U.S. v. Adam S. Nelms. CCA 201400369. Appellant's petition for grant of review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF A CHARGED OFFENSE, YOU MUST FIND HIM GUILTY OF THAT OFFENSE," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Tuesday, October 11, 2016

Petitions for Reconsideration Granted

 

No. 16-0677/AR. U.S. v. Jovanni Pimentel. CCA 20150361. Appellant's petition for reconsideration of this Court's Order issued September 15, 2016, is hereby granted. The Order denying the petition for grant of review issued September 15, 2016, is hereby vacated, and 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 COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II.WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON DO 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.




Thursday, October 6, 2016

Petitions for Grant of Review - Summary Dispositions

 

No. 16-0730/AR. U.S. v. David L. Benitez III. CCA 20150509. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is noted Appellant's pleas of guilty with respect to Specifications 1, 5, and 9 of Charge II are provident only with respect to one location, vice the two locations charged. Accordingly, in light of this error, it is ordered that said petition is hereby granted, and that the decision of the United States Army Court of Criminal Appeals is affirmed, except for the words "and at or near Bolivia, North Carolina" in Specifications 1 and 9 of Charge II, and "at or near Oak Island, North Carolina and" in Specification 5 of Charge II. The finding of guilty as to those excepted words is set aside and the words are dismissed.

 

Orders Granting Petition for Review

 

No. 16-0732/AR. U.S. v. Kameron M. Coleman. CCA 20140709. 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 AN APPELLATE MILITARY JUDGE.

 

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

 

No briefs will be filed under Rule 25.




Monday, October 3, 2016

Miscellaneous Docket - Summary Dispositions

 

No. 16-0728/AF. Sebastian P. LaBella, Appellant v. United States, and United States Air Force Court of Appeals, Appellees.CCA 37679. On consideration of Appellee's motion to dismiss writ-appeal petition as untimely filed under Rule 19(e), and Appellant's motion for leave to withdraw the writ-appeal petition, it is ordered that Appellee's motion to dismiss the writ-appeal petition is hereby granted, and Appellant's motion for leave to withdraw the writ-appeal petition is hereby denied as moot.

 

Petitions for Reconsideration Granted

 

No. 16-0635/AR. U.S. v. Laith G. Cox. CCA 20130923. On consideration of Appellant's petition for reconsideration of this Court's Order issued September 7, 2016, it is ordered that said petition for reconsideration is hereby granted, and 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 COMMISSIONS OF JUDGE HERRING AND JUDGE BURTON.

 

II. WHETHER, AS APPOINTED JUDGES OF THE CMCR, JUDGE HERRING AND JUDGE BURTON 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.




Friday, September 30, 2016

Orders Granting Petition for Review

 

No. 16-0579/AF. U.S. v. William P. Smith, Jr. CCA 38728. 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, BY INSTRUCTING THE MEMBERS THAT THEY LACK THE POWER OF JURY NULLIFICATION, THE MILITARY JUDGE ERRED AND MATERIALLY PREJUDICED APPELLANT'S RIGHT TO BE TRIED BY A PANEL VESTED WITH ITS FULL PREROGATIVE.

 

No briefs will be filed under Rule 25.

 

No. 16-0674/AF. U.S. v. James M. Kmet. CCA 38755. 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 AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.

 

No. 16-0693/AR. U.S. v. Marcos A. Bustamante. CCA 20150486. 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 JUDGE HERRING AND JUDGE BURTON, WHO CURRENTLY SIT ON THE CMCR, ARE STATUTORILY AUTHORIZED TO ALSO SIT ON THE ACCA.

 

II. WHETHER JUDGE HERRING AND JUDGE BURTON'S SIMULTANEOUS SERVICE ON BOTH THE CMCR AND ACCA VIOLATES THE APPOINTMENTS CLAUSE OF THE CONSTITUTION.

 

No briefs will be filed under Rule 25.

 

No. 16-0720/AR. U.S. v. Robert S. Echols. CCA 20160126. 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 CMCR JUDGE JAMES HERRING IS STATUTORILY AUTHORIZED TO SIT ON THE ARMY CCA.

 

II. WHETHER JUDGE JAMES HERRING'S SERVICE ON BOTH THE CMCR AND ARMY CCA VIOLATES THE APPOINTMENTS CLAUSE.

 

No briefs will be filed under Rule 25.




Wednesday, September 21, 2016

Orders Granting Petition for Review

 

No. 16-0487/AR. U.S. v. Mario I. Lopez. CCA 20140943. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED BY ADMITTING THE TESTIMONY OF APPELLANT'S WIFE, MRS. CL, WHO TESTIFIED THAT APPELLANT'S APOLOGY TO HIS STEPSON MEANT THAT APPELLANT WAS "LOOSELY ADMITTING GUILT" TO CRIMINAL CONDUCT, AND BY ALSO ADMITTING THE TESTIMONY OF MS. NM, WHO TESTIFIED THAT APPELLANT "HAD PROBABLY RAPED" HIS WIFE BECAUSE MRS. CL HAD RECENTLY RESEARCHED "SPOUSAL RAPE" ON THE INTERNET.

 

Briefs will be filed under Rule 25.




Friday, September 16, 2016

Orders Granting Petition for Review

 

No. 16-0484/AF. U.S. v. Christopher L. Oliver. CCA 38481. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following re-drafted issue:

WHETHER WRONGFUL SEXUAL CONTACT WAS A LESSER-INCLUDED OFFENSE OF ABUSIVE SEXUAL CONTACT.

Briefs will be filed under Rule 25.

No. 16-0530/AF. U.S. v. Patrick A. Shea. CCA S32225. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

I. WHETHER THE COURT OF CRIMINAL APPEALS ERRED ON REMAND WHEN, OVER APPELLANT'S TIMELY OBJECTION, THIS CASE WAS ASSIGNED TO A PANEL THAT DID NOT INCLUDE ALL THREE OF THE JUDGES FROM THE ORIGINAL DECISION.

II. WHETHER A REASONABLE OBSERVER WOULD QUESTION THE IMPARTIALITY OR INDEPENDENCE OF THE COURT OF CRIMINAL APPEALS AFTER WITNESSING THE REMOVAL OF JUDGE HECKER FROM THIS CASE ON REMAND FOLLOWING THE GOVERNMENT'S ALLEGATIONS THAT HER IMPARTIALITY HAS BEEN IMPAIRED BY THE DECISION OF THE JUDGE ADVOCATE GENERAL, WHO IS HIMSELF PART OF THE GOVERNMENT, TO ASSIGN HER TO PERFORM NON-JUDICIAL ADDITIONAL DUTIES WITHIN THE GOVERNMENT.

Briefs will be filed under Rule 25.

No. 16-0611/AF. U.S. v. Richard K. Price, Jr. CCA S32330. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FORCING APPELLANT TO ADMIT TO MISCONDUCT GREATER THAN WAS NECESSARY FOR A PROVIDENT PLEA.

Briefs will be filed under Rule 25.
 

Interlocutory Orders

 

No. 16-0678/CG. Thomas J. Randolph, Appellant v. HV., Appellee and United States, Respondent. CCA 001-16. On further consideration of the writ-appeal petition from the decision of the United States Coast Guard Court of Criminal Appeals rendered pursuant to Article 6b, Uniform Code of Military Justice, it is ordered that the Appellant and Appellee submit briefs on the following specified issue:

WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION OVER A WRIT-APPEAL PETITION FILED BY AN ACCUSED WHO IS SEEKING REVIEW OF A COURT OF CRIMINAL APPEALS' DECISION RENDERED PURSUANT TO ARTICLE 6b(e), UCMJ.

It is further ordered that the United States be substituted for the military judge as a party respondent, that the United States submit a brief on Issue II in the writ-appeal petition and on the issue specified in this Order, that the Appellate Government and Appellate Defense Divisions of the Army, Navy-Marine Corps and Air Force are invited to submit amicus curiae briefs on the issue specified in this Order, that all briefs mentioned in this Order be filed on or before September 30, 2016, and that oral argument will be heard on October 11, 2016, as previously scheduled. Appellant, Appellee, and the United States will each be allotted 20 minutes to present oral argument.  




Thursday, September 15, 2016

Orders Granting Petition for Review

 

No. 16-0714/AR. U.S. v. Mattie L. Brown. CCA 20140346. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:  

 

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

 

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

 

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

 

No briefs will be filed under Rule 25.




Monday, August 29, 2016

Orders Granting Petition for Review

 

No. 16-0565/MC. U.S. v. Dalton C. Nickens. CCA 201500142. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED WHEN HE INSTRUCTED THE MEMBERS, "IF, BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF A CHARGED OFFENSE, YOU MUST FIND HIM GUILTY OF THAT OFFENSE," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO, 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Thursday, August 18, 2016

Orders Granting Petition for Review

 

No. 16-0497/MC. U.S. v. Reece N. Tso. CCA 201400379. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following re-drafted issue:

 

WHETHER, AFTER DISMISSING AN INITIAL COURT-MARTIAL PANEL BECAUSE THE CONVENING AUTHORITY IMPROPERLY EXCLUDED CERTAIN RANKS FROM CONSIDERATION AS COURT MEMBERS, THE MILITARY JUDGE ERRED BY ACCEPTING A PANEL COMPRISED OF THE SAME DETAILED MEMBERS.

 

No briefs will be filed under Rule 25.

 

No. 16-0651/AF. U.S. v. Nicole A. Dalmazzi. CCA 38808. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER UNITED STATES COURT OF MILITARY COMMISSION REVIEW JUDGE, MARTIN T. MITCHELL, IS STATUTORILY AUTHORIZED TO SIT AS ONE OF THE AIR FORCE COURT OF CRIMINAL APPEALS JUDGES ON THE PANEL THAT DECIDED APPELLANT'S CASE.

 

II. WHETHER JUDGE MARTIN T. MITCHELL'S SERVICE ON BOTH THE AIR FORCE COURT OF CRIMINAL APPEALS AND THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW VIOLATES THE APPOINTMENTS CLAUSE GIVEN HIS STATUS AS A SUPERIOR OFFICER ON THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW.

 

Briefs will be filed under Rule 25.

 

The Chiefs of the Appellate Defense and Appellate Government Divisions of the United States Army, the United States Coast Guard, and the United States Navy-Marine Corps are invited to file amicus curiae briefs on these issues. These briefs will be filed under Rule 26.




Thursday, July 21, 2016

Orders Granting Petition for Review

 

No. 16-0482/AF. U.S. v. Blake E. Taylor. CCA 38700. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977), AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

No briefs will be filed under Rule 25.




Tuesday, July 19, 2016

Orders Granting Petition for Review

 

No. 16-0546/AF. U.S. v. Rodney B. Boyce. CCA 38673. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

THE CHIEF OF STAFF OF THE AIR FORCE ADVISED THE CONVENING AUTHORITY THAT, UNLESS HE RETIRED, THE SECRETARY OF THE AIR FORCE WOULD FIRE HIM. WAS THE CONVENING AUTHORITY'S SUBSEQUENT REFERRAL OF CHARGES UNLAWFULLY INFLUENCED BY THE THREAT TO HIS POSITION AND CAREER?

 

Briefs will be filed under Rule 25.




Wednesday, June 29, 2016

Orders Granting Petition for Review

 

No. 16-0555/AR. U.S. v. Jason M. Commisso. CCA 20140205. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENSE'S POST-TRIAL MOTION FOR A MISTRIAL, THEREBY VIOLATING APPELLANT'S RIGHT TO HAVE HIS CASE DECIDED BY A PANEL OF FAIR AND IMPARTIAL MEMBERS, BECAUSE THREE PANEL MEMBERS FAILED TO DISCLOSE THAT THEY HAD PRIOR KNOWLEDGE OF THE CASE.

 

Briefs will be filed under Rule 25.




Thursday, June 23, 2016

Orders Granting Petition for Review

 

No. 16-0455/AF. U.S. v. Trentlee D. McClour. CCA 38704. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER AFCCA ERRED WHEN IT FAILED TO GRANT RELIEF WHERE THE MILITARY JUDGE INSTRUCTED THE MEMBERS, "IF BASED ON YOUR CONSIDERATION OF THE EVIDENCE, YOU ARE FIRMLY CONVINCED THAT THE ACCUSED IS GUILTY OF ANY OFFENSE CHARGED, YOU MUST FIND HIM GUILTY," WHERE SUCH AN INSTRUCTION IS IN VIOLATION OF UNITED STATES v. MARTIN LINEN SUPPLY CO., 430 U.S. 564, 572-73 (1977) AND THERE IS INCONSISTENT APPLICATION BETWEEN THE SERVICES OF THE INSTRUCTIONS RELATING TO WHEN MEMBERS MUST OR SHOULD CONVICT AN ACCUSED.

 

Briefs will be filed under Rule 25.




Friday, June 10, 2016

Orders Granting Petition for Review

 

No. 16-0423/AR. U.S. v. Joseph R. Haverty. CCA 20130559. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO INSTRUCT THE PANEL ON THE MENS REA REQUIRED FOR AN ARTICLE 92, UCMJ, VIOLATION OF ARMY REGULATION 600-20, WHICH PROHIBITS REQUIRING THE CONSUMPTION OF EXCESSIVE AMOUNTS OF ALCOHOL AS AN INITIATION RITE OF PASSAGE.

 

Briefs will be filed under Rule 25.

 

No. 16-0424/MC. U.S. v. Mark J. Rosario. CCA 201500251. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE LOWER COURT ERRED IN CONDUCTING ITS ARTICLE 66(c), UCMJ, REVIEW BY FINDING AS FACT ALLEGATIONS THAT SUPPORTED CHARGES OF WHICH APPELLANT WAS ACQUITTED TO AFFIRM THE FINDINGS AND SENTENCE.

 

Briefs will be filed under Rule 25.




Tuesday, May 31, 2016

Orders Granting Petition for Review

 

No. 16-0418/NA. U.S. v. Jeffrey D. Sager. CCA 201400356. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. IN AFFIRMING THE ABUSIVE SEXUAL CONTACT CONVICTION, THE LOWER COURT RELIED ON FACTS OF WHICH THE MEMBERS ACQUITTED APPELLANT. WAS THIS ERROR?

 

II. ARTICLE 120(d), UCMJ, PROHIBITS SEXUAL CONTACT ON ANOTHER PERSON WHEN THAT PERSON IS "ASLEEP, UNCONSCIOUS, OR OTHERWISE UNAWARE." DESPITE THESE SPECIFIC STATUTORY TERMS, THE LOWER COURT HELD THAT "ASLEEP" AND "UNCONSCIOUS" DO NOT ESTABLISH THEORIES OF CRIMINAL LIABILITY, BUT ONLY THE PHRASE "OTHERWISE UNAWARE" ESTABLISHES CRIMINAL LIABILITY. DID THE LOWER COURT ERR IN ITS INTERPRETATION OF ARTICLE 120(d), UCMJ?

 

Briefs will be filed under Rule 25.




Monday, May 16, 2016

Orders Granting Petition for Review

 

No. 16-0391/MC. U.S. v. Emmanuel Q. Bartee. CCA 201500037. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

THE SYSTEMATIC EXCLUSION OF INDIVIDUALS BY RANK FROM THE MEMBER-SELECTION PROCESS IS PROHIBITED. HERE, THE MILITARY JUDGE DISMISSED THE PANEL FOR VIOLATING ARTICLE 25, UCMJ, BUT THE CONVENING AUTHORITY RECONVENED THE EXACT SAME PANEL THE SAME DAY. IS THIS SYSTEMATIC EXCLUSION BASED ON RANK REVERSIBLE ERROR?

 




Monday, May 9, 2016

Orders Granting Petition for Review

 

No. 16-0229/AF. U.S. v. Ellwood T. Bowen. CCA 38616. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

 

WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE "EXCITED UTTERANCE" EXCEPTION TO THE HEARSAY RULE TO PERMIT THE GOVERNMENT TO INTRODUCE THROUGH THE TESTIMONY OF LAW ENFORCEMENT PERSONNEL THAT APPELLANT'S WIFE NODDED HER HEAD IN RESPONSE TO A QUESTION WHETHER HER HUSBAND "DID THIS," AND IN CONCLUDING THAT THE PREJUDICIAL EFFECT OF THIS TESTIMONY WAS OUTWEIGHED BY ITS PROBATIVE VALUE. SEE M.R.E. 802 AND 803(2); M.R.E. 403; UNITED STATES v. DONALDSON, 58 M.J. 477 (2003); UNITED STATES v. JONES, 30 M.J. 127 (C.M.A. 1990); UNITED STATES v. ARNOLD, 25 M.J. 129 (C.M.A. 1987); UNITED STATES v. IRON SHELL, 633 F.2D 77 (8TH CIR. 1980), CERT. DENIED, 450 U.S. 1001 (1981).

 

Briefs will be filed under Rule 25.

 

No. 16-0407/AR. U.S. v. Justin P. Swift. CCA 20100196. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues raised by Appellant:

 

I. WHETHER THE ARMY COURT DENIED APPELLANT HIS SUBSTANTIAL RIGHT TO AN ARTICLE 66(c) REVIEW BY AFFIRMING THE FINDINGS AND SENTENCE ON UNCHARGED MISCONDUCT PRESENTED AT TRIAL RATHER THAN THE CHARGED OFFENSES.

 

II. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING APPELLANT'S PRETRIAL STATEMENT WHERE THERE WAS NO INDEPENDENT EVIDENCE TO CORROBORATE THE ESSENTIAL FACTS ADMITTED.

 

And the following issue specified by the Court:

 

III. WHETHER THE EVIDENCE OF THE TWO CONVICTIONS OF INDECENT ACTS WITH A CHILD IS LEGALLY SUFFICIENT.

 

Briefs will be filed under Rule 25.




Wednesday, May 3, 2016

Orders Granting Petition for Review

 

No. 16-0267/AR. U.S. v. Nathan C. Wilson. CCA 20140135. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue personally asserted by appellant:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE MOTION FOR APPROPRIATE RELIEF UNDER RULE FOR COURT-MARTIAL 917 WHERE THE MILITARY JUDGE IMPROPERLY APPLIED ARTICLE 130, UCMJ, HOUSEBREAKING, TO A MOTOR POOL.

 

Briefs will be filed under Rule 25.

 

No. 16-0296/AF. U.S. v. Joseph R. Dockery III. CCA 38624. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED BY GRANTING, OVER DEFENSE OBJECTION, THE GOVERNMENT'S CHALLENGE FOR CAUSE AGAINST MSGT LW.

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING THAT THE MILITARY JUDGE DID NOT ERR, AND BY CONCLUDING THAT EVEN IF THE MILITARY JUDGE DID ERR THERE WAS NO PREJUDICE, CONTRARY TO THIS COURT'S PRECEDENT IN UNITED STATES v. PETERS, 74 M.J. 31 (C.A.A.F. 2015), UNITED STATES v. WOODS, 74 M.J. 238 (C.A.A.F. 2015), UNITED STATES V. NASH, 71 M.J. 83 (C.A.A.F. 2012), UNITED STATES v. CLAY, 64 M.J. 274 (C.A.A.F. 2007), AND UNITED STATES v. DALE, 42 M.J. 384 (C.A.A.F. 1995).

 

Briefs will be filed under Rule 25.




Friday, April 29, 2016

Certificates for Review

 

No. 16-0500/AF. U.S. v. Justin L. Fetrow. CCA 38631. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

 

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT IN ORDER FOR CONDUCT TO CONSTITUTE CHILD MOLESTATION UNDER MIL. R. EVID. 414, THE CONDUCT MUST HAVE BEEN AN OFFENSE UNDER THE UCMJ, OR FEDERAL OR STATE LAW, AT THE TIME IT WAS COMMITTED AND, IF OFFERED UNDER MIL. R. EVID. 414(d)(2)(A)-(C), THAT THE CONDUCT MUST MEET THE DEFINITION OF AN OFFENSE LISTED UNDER THE VERSION OF THE APPLICABLE ENUMERATED STATUTE IN EFFECT ON THE DAY OF TRIAL.

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS COMMITTED LEGAL ERROR WHEN IT FOUND THAT THE ERRONEOUS ADMISSION OF TWO ACTS OF INDECENT LIBERTIES COMMITTED BY APPELLEE ON HIS CHILD AGE DAUGHTER HAD A SUBSTANTIAL INFLUENCE ON THE MEMBERS' VERDICT REQUIRING SET ASIDE OF THE FINDINGS AND SENTENCE.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 31st day of May, 2016.




Thursday, April 21, 2016

Orders Granting Petition for Review

 

No. 16-0214/NA. U.S. v. Michael Z. Pabelona. CCA 201400244. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

PROSECUTORS MUST ACT WITHIN THE BOUNDS OF PROPRIETY. HERE, IN FRONT OF MEMBERS, THE PROSECUTOR EXPRESSED HIS OPINION OF APPELLANT INCLUDING, "I THINK HE'S AN IDIOT," OPINED ON DEFENSE-FRIENDLY EVIDENCE, CHARACTERIZED APPELLANT'S STATEMENTS AS "RIDICULOUS," VOUCHED FOR GOVERNMENT-FRIENDLY EVIDENCE, DIAGNOSED APPELLANT AS SCHIZOPHRENIC, ASKED MEMBERS TO DISREGARD DEFENSE ARGUMENTS, AND TOLD MEMBERS THAT APPELLANT "SLEEPS IN A BED OF LIES." WAS THIS PLAIN ERROR?

 

Briefs will be filed under Rule 25.



Tuesday, April 12, 2016

Orders Granting Petition for Review

 

No. 16-0360/AR. U.S. v. Todd D. Sewell. CCA 20130460. Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals is granted on the following issue personally asserted by the Appellant:

 

WHETHER THE TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT BY MAKING IMPROPER ARGUMENT ON THE FINDINGS.

 

Briefs will be filed under Rule 25.




Friday, April 1, 2016

Orders Granting Petition for Review

 

No. 16-0336/CG. U.S. v. Omar M. Gomez. CCA 1394. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY PERMITTING TWO COMPLAINING WITNESSES TO TESTIFY ON SENTENCING THAT APPELLANT WAS RESPONSIBLE FOR THEIR PREGNANCY COMPLICATIONS WITH NO EVIDENCE CONNECTING HIS MISCONDUCT TO THE COMPLICATIONS.

 

Briefs will be filed under Rule 25.




Wednesday, March 30, 2016

Orders Granting Petition for Review

 

No. 16-0306/AR. U.S. v. Joshua C. Davis. CCA 20130996. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN REFUSING TO APPLY DE NOVO REVIEW FOR FAILURE TO INSTRUCT ON AN AFFIRMATIVE DEFENSE RAISED BY THE EVIDENCE, AND INSTEAD FOUND FORFEITURE AND APPLIED A PLAIN ERROR ANALYSIS, CONTRARY TO THIS COURT'S PRECEDENTS IN UNITED STATES v. TAYLOR, 26 M.J. 127 (C.M.A. 1988); UNITED STATES v. DAVIS, 53 M.J. 202 (C.A.A.F. 2000); AND UNITED STATES v. STANLEY, 71 M.J. 60 (C.A.A.F. 2012).

 

Briefs will be filed under Rule 25.




Monday, March 21, 2016

Orders Granting Petition for Review

 

No. 16-0301/AR. U.S. v. Luis G. Nieto. CCA 20150386. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue personally asserted by Appellant:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT'S LAPTOP COMPUTER.

 

Briefs will be filed under Rule 25.


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