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UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-229
SEPTEMBER 1, 1998

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 98-0994/AR. U.S. v. Merrill R. CORMIER. CCA 9800135. Appellant’s motion to withdraw petition for grant of review granted.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1059/MC. U.S. v. Christopher S. MCNEELY. CCA 97-1964.

No. 98-1060/AR. U.S. v. Donald L. MILLS. CCA 9602038.

INTERLOCUTORY ORDERS

No. 96-1241/AF. U.S. v. Johnnie M. TAYLOR. CCA 31574. To September 8, 1998.

No. 98-0248/NA. U.S. v. Claudius L. MITCHELL. CCA 96-0587. To September 7, 1998.

No. 98-0266/AF. U.S. v. Rickie J. BELLANGER. CCA 32373. To September 30, 1998.

No. 98-0595/AR. U.S. v. Jonathan E. SIDWELL. CCA 9601596. To September 28, 1998.

    In each of the above four cases, appellant’s motion to extend time to file final brief granted to the date indicated.

No. 98-0947/AR. U.S. v. Jason L. ROCK. CCA 9700192. To September 28, 1998.

No. 98-0949/NA. U.S. v. Timothy R. DOTY. CCA 97-0745. To October 1, 1998.

No. 98-0952/AF. U.S. v. Billy LEE, Jr. CCA 32794. To September 30, 1998.

No. 98-0957/AR. U.S. v. Gregory S. WILLIS. CCA 9500730. To October 2, 1998.

No. 98-0964/NA. U.S. v. Robert M. BECKER. CCA 97-1623. To October 5, 1998.

No. 98-0993/MC. U.S. v. David RANGEL, Jr. CCA 98-0560. To October 9, 1998.

    In each of the above six cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to the date indicated.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-230
SEPTEMBER 2, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 97-0611/AF. U.S. v. Glen C. ENGLAND, Jr. CCA 32223. On consideration of the granted issue (47 MJ 76), we note that appellant’s sentence included confinement for 2 months and reduction, but no forfeitures. Thus, Article 58b, Uniform Code of Military Justice, 10 USC § 858b, would apply in this case. However, the convening authority waived the automatic forfeitures. This action meant that Article 58b no longer applied. On the other hand, Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), which requires that the reduction adjudged in the sentence take effect the earlier of 14 days after sentence (June 11, 1996), or the date of the convening authority’s action (June 26, 1996), does apply in this case. Our decision in United States v. Gorski, 47 MJ 370 (1997), precludes execution of the reduction during the period June 11 through 25, 1996. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Collection of any forfeitures, and execution of the reduction in grade prior to the date of the convening authority’s action, are hereby declared to be without legal effect. Any forfeitures already collected from appellant, and any pay and allowances withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Air Force Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 97-0816/AF. U.S. v. Anthony B. BEASLEY. S29281. On consideration of the granted issue (48 MJ 14), we note that appellant’s sentence included confinement for 3 months and reduction, but no forfeitures. Thus, Article 58b, Uniform Code of Military Justice, 10 USC § 858b, would apply in this case. However, the convening authority waived the automatic forfeitures. This action meant that Article 58b no longer applied. On the other hand, Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), which requires that the reduction adjudged in the sentence take effect the earlier of 14 days after sentence (August 19, 1996), or the date of the convening authority’s action (September 23, 1996), does apply in this case. Our decision in United States v. Gorski, 47 MJ 370 (1997), precludes execution of the reduction during the period August 19 through September 22, 1996. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Collection of any forfeitures, and execution of the reduction in grade prior to the date of the convening authority’s action, are hereby declared to be without legal effect. Any forfeitures already collected from appellant, and any pay withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Air Force Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 97-0838/AF. U.S. v. Natalie R. JACKSON. CCA 32483. On consideration of the granted issue (48 MJ 24), we note that appellant’s approved sentence did not include confinement. Therefore, Article 58b, Uniform Code of Military Justice, 10 USC § 858b, did not apply in this case. The sentence also included forfeitures of $580 pay per month for 2 months. Appellant was an E-1 at the time of trial. Thus, Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), which requires that the forfeitures adjudged in the sentence take effect the earlier of 14 days after sentence (November 11, 1996), or the date of the convening authority’s action (December 19, 1996), does apply in this case. Our decision in United States v. Gorski, 47 MJ 370 (1997), precludes execution of the forfeitures during the period November 11 through December 18, 1996. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Execution of the forfeitures in excess of those adjudged, and of the adjudged forfeitures prior to the date of the convening authority’s action, is hereby declared to be without legal effect. Any forfeitures collected in excess of those adjudged, or collected prior to the date of the convening authority’s action, will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Air Force Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 97-0877/AF. U.S. v. Jason A. PLATO. CCA 32322. On consideration of the granted issue (48 MJ 33), we note that appellant’s sentence included total forfeitures and reduction. Thus, Article 58b, Uniform Code of Military Justice, 10 USC § 858b, does not apply in this case. The convening authority waived application of $874.80 pay per month for 6 months. However, Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), which requires that the forfeitures and the reduction adjudged in the sentence take effect the earlier of 14 days after sentence (June 18, 1996), or the date of the convening authority’s action (August 19, 1996), does apply. The convening authority deferred the automatic forfeitures until the date of his action. Our decision in United States v. Gorski, 47 MJ 370 (1997), precludes execution of the reduction in this case during the period June 18 through August 18, 1996. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Execution of the reduction prior to the date of the convening authority’s action (if such execution occurred) is hereby declared to be without legal effect. Any pay and allowances withheld because of any premature reduction in grade will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Air Force Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 97-0914/AF. U.S. v. Curtis C. WALTON. CCA 32443. On consideration of the granted issue (48 MJ 36), we note that the approved sentence included confinement and forfeiture of $600.00 pay per month for 24 months, and reduction. The maximum monthly forfeiture was at least $874. Thus, Article 58b, Uniform Code of Military Justice, 10 USC § 858b, applies to those excess forfeitures. The convening authority waived application of the automatic forfeitures for a period of 6 months from the date of his action or until completion of confinement, whichever is sooner. Moreover, Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), which requires that the forfeitures and the reduction adjudged in the sentence take effect the earlier of 14 days after sentence (October 16, 1996), or the date of the convening authority’s action (November 21, 1996), also applies in this case. Our decision in United States v. Gorski, 47 MJ 370 (1997), precludes collection of the excess forfeitures, and execution of the adjudged forfeitures or the reduction during the period October 16 through November 20, 1996. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Execution of the forfeitures in excess of those adjudged, and of the adjudged forfeitures and reduction prior to the date of the convening authority’s action, is hereby declared to be without legal effect. Any forfeitures collected in excess of those adjudged, or collected prior to the date of the convening authority’s action, and any pay and allowances withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Air Force Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 97-0945/AF. U.S. v. Hollee N. ROBINSON. CCA S29303. On further consideration of the granted issue (Daily Journal November 19, 1997), we note that the sentence included confinement and forfeiture of two-thirds pay per month for 2 months */ and reduction. Thus, Article 58b, Uniform Code of Military Justice, 10 USC § 858b, did not apply in this case. However, almost 5 months after trial, the convening authority disapproved the adjudged forfeitures. This action meant that Article 58b did apply. Moreover, Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), which requires that the forfeitures and the reduction adjudged in the sentence take effect the earlier of 14 days after sentence (July 22, 1996), or the date of the convening authority’s action (December 3, 1996), also applied to the sentence. The effect of the convening authority’s action was to make the statutory forfeitures effective on the date of the action. Our decision in United States v. Gorski, 47 MJ 370 (1997), precludes collection of any forfeitures, and execution of the reduction in grade during the period July 22 through December 2, 1996. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Collection of any forfeitures, and execution of the reduction in grade prior to the date of the convening authority’s action, are hereby declared to be without legal effect. Any forfeitures already collected from appellant, and any pay withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Air Force Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 97-1002/AR. U.S. v. Curtis R. SWANK, Jr. CCA 32206. On further consideration of the granted issue (Daily Journal October 3, 1997), we note that appellant’s sentence is subject to Article 58b, Uniform Code of Military Justice, 10 USC § 858b. In a memorandum dated May 17, 1996, the convening authority waived application of the automatic forfeitures for 6 months, and directed that the pay and allowances be based on the pay grade of E-4. The action did not so direct. See Art. 58a, UCMJ, 10 USC § 858a. Thus, Article 58b applies only to those forfeitures which would have begun after November 15, 1996. Moreover, Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), which requires that the adjudged reduction take effect the earlier of 14 days after sentence (May 15, 1996) or the date of the convening authority’s action (June 24, 1996) also applies to this case. Our decision in United States v. Gorski, 47 MJ 370 (1997), precludes collection of the unwaived forfeitures, and execution of the reduction during the period May 14 through June 23, 1996. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Collection of any unwaived forfeitures, and execution of the reduction in grade prior to the date of the convening authority’s action, are hereby
declared to be without legal effect. Any forfeitures collected prior to that date, and any pay and allowances withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Air Force Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 97-1013/AF. U.S. v. Derrick L. MARTIN. CCA 32235. On further consideration of the granted issue (Daily Journal October 10, 1997), we note that appellant’s sentence included total forfeitures, except for $300.00 pay per month for 6 months, the collection of which was waived by the convening authority, and reduction. Thus, Article 58b, Uniform Code of Military Justice, 10 USC § 858b, does not apply in this case. However, Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), which requires that the forfeitures and the adjudged reduction take effect the earlier of 14 days after sentence (May 23, 1996), or the date of the convening authority’s action (July 11, 1996), does apply in this case. Our decision in United States v. Gorski, 47 MJ 370 (1997), precludes execution of the total forfeitures or the reduction during the period May 23 through July 10, 1996. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only. Execution of the forfeitures and reduction in grade prior to the date of the convening authority’s action is hereby declared to be without legal effect. Any forfeitures collected prior to that date, or any pay and allowances withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Air Force for appropriate action.

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Air Force Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0217/AF. U.S. v. Matthew S. KOONS. CCA 32495.

No. 98-0259/AF. U.S. v. Jamee E. DAVIS. CCA 32515.

No. 98-0410/NA. U.S. v. Gerhard K. MENDOZA. CCA 97-0320.

    In each of the above three cases, Judge Sullivan filed the following dissent:

    SULLIVAN, Judge (dissenting):

    I dissent. See my separate opinion in United States v. Roseboro, No. 98-0439/AR, ___ MJ __ (Daily Journal July 27, 1998).

    Judge Effron did not participate in any of these three cases. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in these cases should they subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0867/AF. U.S. v. Montrell N. JACKSON. CCA 32888.

No. 98-0905/AR. U.S. v. Andre O. CHISM. CCA 9700395.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 98-0386/AR. U.S. v. David T. MOYE. CCA 9600723. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in the above entitled case in light of United States v. Gorski, 47 MJ 370 (1997), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of whether the addition of Article 58b, Uniform Code of Military Justice, 10 USC § 858b, enacted by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996), affects the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.**/

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1996).

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1061/AF. U.S. v. Gregory L. ROBBINS. CCA 32613.

INTERLOCUTORY ORDERS

No. 97-0559/AF. U.S. v. Teri L. COX. CCA S29279.

No. 97-0580/AF. U.S. v. Matthew J. SLAYMAKER. CCA S29250.

No. 97-0639/AF. U.S. v. Eric C. MARTIN. CCA S29241.

NO. 97-0684/AF. U.S. v. Jason C. JONES. CCA S29290.

No. 97-0744/AF. U.S. v. Patrick J. FANNING. CCA S29278.

No. 97-0815/AF. U.S. v. Robert C. LIVESAY. CCA 32424.

No. 97-0851/AF. U.S. v. Alfred B. HESTER, Jr. CCA 32364.

No. 97-0853/AF. U.S. v. Charles W. THOMPSON. CCA 32431.

No. 97-0880/AF. U.S. v. Rodolfo T. YGNACIO, Jr. CCA S29272.

No. 97-0884/AF. U.S. v. Rodney D. WILLIAMS. CCA S29300.

No. 97-0979/AF. U.S. v. Chad W. FERCHO. CCA 32514.

No. 97-0990/AF. U.S. v. Bradley J. SCOTT. CCA 32475.

    Upon further consideration of the above twelve cases, it is ordered that, effective May 6, 1998, the separate opinion of Judge Sullivan filed in each of these cases on April 20, 1998, is hereby amended in the first line by changing the words "concurring in the result" to "concurring in part and dissenting in part"; changing the word "were" to the words "may have been" in the fourth sentence of the second paragraph; and deleting the last sentence and substituting the following therefor:

"Accordingly, I vote to remand this case to the court below pursuant to my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997) (concurring in part and in the result)." No. 97-0596/AF. U.S. v. David J. KEENEY. CCA S29288. Upon further consideration of the above-entitled case, it is ordered that, effective May 6, 1998, the separate opinion of Judge Sullivan filed in the above-entitled case on April 15, 1998, is hereby amended in the first line by changing the words "concurring in the result" to "concurring in part and dissenting in part"; changing the word "were" to the words "may have been" in the fourth sentence of the second paragraph; and deleting the last sentence and substituting the following therefor: "Accordingly, I vote to remand this case to the court below pursuant to my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997) (concurring in part and in the result)." No. 97-1071/AF. U.S. v. Matthew S. CHRISTOPHERSON. CCA 32398.

No. 97-1083/AF. U.S. v. Cynthia Y. WILLIAMS. CCA S29325.

No. 97-1096/AF. U.S. v. Ray T. BISHOP, III. CCA 32472.

No. 97-1104/AF. U.S. v. Devin L. LONG. CCA 32476.

No. 97-1123/AF. U.S. v. Stacey M. LINN. CCA 32474.

No. 97-1140/AF. U.S. v. Robert J. OVERSTREET. CCA 32353.

No. 97-1147/AF. U.S. v. Todd A. DARRELL. CCA 32723.

No. 97-1152/AF. U.S. v. Thomas J. CORDA. CCA 32712.

No. 97-1178/AF. U.S. v. Charles E. KING. CCA S29338.

No. 97-1186/AF. U.S. v. Eric L. PARSONS. CCA S29340.

NO. 98-0019/AF. U.S. v. Michael R. HAMLETT. CCA 32528.

    Upon further consideration of the above eleven cases, it is ordered that, effective May 6, 1998, the separate opinion of Judge Sullivan filed in each of these cases on April 21, 1998, is hereby amended in the first line by changing the words "concurring in the result" to "concurring in part and dissenting in part"; changing the word "were" to the words "may have been" in the fourth sentence of the second paragraph; and deleting the last sentence and substituting the following therefor:

"Accordingly, I vote to remand this case to the court below pursuant to my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997) (concurring in part and in the result)." No. 98-0768/MC. U.S. v. Jesse P. DOEINCK. CCA 98-0268. Appellant’s motion to extend time to comply with Court's order granted to September 28, 1998.

_____________

*/ The forfeitures as thus announced violated RCM 1003(b)(2), Manual for Courts-Martial, United States (1995 ed.).

**/ It is noted that Specification 2 of Charge II incorrectly shows the date as "1996."



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-231
SEPTEMBER 3, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 97-0286/AR. U.S. v. Stuart W. SMITH. CCA 9500065.*/

No. 98-0005/NA. U.S. v. Robert L. BROWN. CCA 97-0183.*/

No. 98-1062/AR. U.S. v. Matthew J. MONTANEZ. CCA 9800240.

___________

*/ Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-232
SEPTEMBER 4, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 97-0710/NA. U.S. v. Ray C. WILLIS. CCA 96-0192. On further consideration of the granted issue in light of United States v. Jackson, No. 96-1402, ___ MJ ___ (Sept. 2, 1998), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

    GIERKE, Judge (concurring):

    I concur for the reasons set out in United States v. Taylor, 41 MJ 168 (CMA 1994) (Urinalysis was valid inspection under Mil.R.Evid. 313(b) where authorizing commander was unaware that there had been "a report of a specific offense in the unit.").

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1063/AF. U.S. v. Venita P. GREENE. CCA S29557.

No. 98-1064/AF. U.S. v. Christian J. ROGERS. CCA S29568.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-233
SEPTEMBER 8, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 98-0014/AF. U.S. v. James R. NEELEY. CCA S29342. Petition for grant of review of decision of the United States Air Force Court of Criminal Appeals, on further review, granted. The decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0014/AF. U.S. v. James R. NEELEY. CCA S29342. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 98-0744/AF. U.S. v. Kenneth J. KUSOWSKI. CCA 32635. Review granted on the following issue:

WHETHER THE AIR FORCE COURT ERRED WHEN IT FOUND THE STAFF JUDGE ADVOCATE’S ERROR IN THE ADDENDUM TO HIS RECOMMENDATION TO THE CONVENING AUTHORITY TO BE SO TRIVIAL THAT IT CAN BE DISREGARDED AS NONPREJUDICIAL TO THE APPELLANT.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0645/AR. U.S. v. Arthur A. JENKINS, III. CCA 9502038.

No. 98-0845/AR. U.S. v. Curt F. WARD. CCA 9600700.

No. 98-0899/MC. U.S. v. Michael D. FORD. CCA 97-1915.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1065/MC. U.S. v. Kenneth L. HANEY. CCA 97-0912.

No. 98-1066/NA. U.S. v. Kevin A. WADE. CCA 98-0226.

No. 98-1067/AR. U.S. v. Kelly R. MILLS. CCA 9701989.

No. 98-1068/AR. U.S. v. Morris C. BROWN. CCA 9601505.

No. 98-1069/AR. U.S. v. Michael R. LOTT. CCA 9601367.

No. 98-1070/AR. U.S. v. Archie L. HARGETT. CCA 9800380.

No. 98-1071/AR. U.S. v. Willie L. VERTISON. CCA 9600303.

No. 98-1072/AR. U.S. v. Johnny C. MILLER. CCA 9701295.

No. 98-1073/AR. U.S. v. Bruce L. WILLIS, Jr. CCA 9700959.

No. 98-1074/AR. U.S. v. Patricia D. NAGEEULLAH. CCA 9800257.

No. 98-1075/AR. U.S. v. Anthony G. GRIFFIN. CCA 9601913.

PETITIONS FOR RECONSIDERATION DENIED

No. 98-0070/AF. U.S. v. Charles A. JONES. CCA 32539. Request for Reconsideration of the Order dated April 27, 1998, denied.

Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

INTERLOCUTORY ORDERS

No. 98-0963/NA. U.S. v. Benjamin H. HOGG. CCA 9700493. To October 5, 1998.

No. 98-0971/AR. U.S. v. Moses LOVER, Jr. CCA 9500726.

No. 98-0979/AF. U.S. v. Terry R. JOUETT. CCA 32618.

No. 98-0999/AR. U.S. v. Roger D. EVERSOLE. CCA 9600466. To October 13, 1998.

No. 98-1023/AR. U.S. v. Keith HENRY. CCA 9402015. To October 19, 1998.

    In each of the above five cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to October 8, 1998, unless otherwise indicated.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-234
SEPTEMBER 9, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 97-0846/AF. U.S. v. Michael L. DAILY. CCA S29276. On further consideration of the granted issue (48 MJ 33), we note that one of the two offenses of which appellant was convicted, attempted possession of LSD, was committed after the effective date of the amendment to Article 57(a) and the addition of Article 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial, and the maximum sentence for attempted possession of LSD would support application of Article 58b on its own, see paras. 4e and 37e(1)(a), Part IV, Manual for Courts-Martial, United States (1995 ed.), enforcement of these Code provisions did not violate the Ex Post Facto Clause. See generally United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994), and United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (concurring in part and dissenting in part):

    The question in this case is whether the automatic-forfeiture provision of Article 58b, Uniform Code of Military Justice, 10 USC § 858b, was applied to appellant in violation of the Ex Post Facto Clause of the Constitution. Article 58b, which was added in 1996 and became effective for courts-martial held beginning April 1, 1996, provides for automatic forfeitures of pay in a special court-martial during periods of confinement if a punitive discharge was also adjudged. See Art. 58b(a)(2). Appellant was sentenced on Aug. 14, 1996, and one of his offenses (attempted possession of LSD) was found to have occurred on 27 April 1996.

The decision of this Court United States v. Gorski, 47 MJ 370 (1997), found an ex post facto violation in the application of Article 58b to cases where the offenses were committed prior to April 1, 1996. However, RCM 307(c)(4), Manual for Courts-Martial, United States, 1984, states that "[c]harges and specifications alleging all known offenses by an accused may be preferred at the same time." Here, the record shows that one of appellant’s offenses occurred after April 1, 1996. Therefore, automatic forfeitures may have been authorized on this basis alone. United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994); United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994); Wright v. Superior Court, 936 P.2d 101, 107-8 (Cal. 1997). Accordingly, I vote to remand this case to the court below pursuant to my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997)(concurring in part and in the result).

No. 97-1018/AR. U.S. v. Charles D. CARPENTER. CCA 96-1129. On consideration of the petition for reconsideration and motion for leave to file said petition out of time, */we note that appellant’s sentence included total forfeitures and reduction. Thus, Article 58b, Uniform Code of Military Justice, 10 USC § 858b, does not apply in this case. Since July 8, 1996, appellant received no pay as required by Article 57(a)(1), UCMJ, 10 USC § 857(a), which provides that the forfeitures and the reduction adjudged in the sentence take effect the earlier of 14 days after sentence (July 8, 1996), or the date of the convening authority’s action (December 10, 1996). However, our decision in United States v. Gorski, 47 MJ 370 (1997), precludes execution of the total forfeitures or the reduction during the period July 8 through December 9, 1996. Accordingly, it is ordered that said motion is granted; that the petition for reconsideration is granted; that this Court’s order dated September 23, 1997, denying the petition for grant of review, is vacated; that the petition for grant of review is granted; and that the decision of the United States Army Court of Criminal Appeals is affirmed. Execution of the forfeitures and reduction prior to the date of the convening authority’s action is hereby declared to be without legal effect. Any forfeitures collected prior to that date, and any pay and allowances withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Army for appropriate action. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (concurring in part and dissenting in part):

    I would remand this case to the Army Court of Criminal Appeals for further consideration in light of the views expressed in my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

No. 97-1157/AF. U.S. v. Jamillah C. LINKINS. CCA S29322. On consideration of the Request for Reconsideration filed in the above-entitled case, we note that one of the four offenses of which appellant was convicted, dishonorable failure to pay a just debt, occurred from on or about 20 Feb to on or about 14 Aug 1996. Based on the plea of guilty, we conclude that the offense was committed, at least in part, after the effective date of the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a).**/ Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for dishonorable failure to pay a just debt would support application of Article 57(a)(1) on its own, see para. 71e, Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States (1995 ed.), enforcement of this Code provision did not violate the Ex Post Facto Clause. See generally United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994), and United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, it is ordered that the Request for Reconsideration is granted; that the order dated April 28, 1998, is vacated; and that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (concurring in part and dissenting in part):

    The question in this case is whether the 14-day rule of Article 57(a)(1), Uniform Code of Military Justice, 10 USC § 857(a)(1), was applied to appellant in violation of the Ex Post Facto Clause of the Constitution. Article 57(a)(1), which was added in 1996 and became effective for courts-martial held beginning April 1, 1996, provides that the adjudged reduction would take effect the earlier of 14 days after sentence is announced or on the date of the convening authority’s action. Appellant was sentenced on October 28, 1996, and one of his offenses (dishonorable failure to pay a just debt) was found to have occurred "from on or about 20 Feb 96 to on or about 14 Aug 1996."

The decision of this Court in United States v. Gorski, 47 MJ 370 (1997), found an ex post facto violation in the application of Article 57(a)(1) to cases where the offenses were committed prior to April 1, 1996. However, RCM 307(c)(4), Manual for Courts-Marital, United States, 1984, states that "[c]harges and specifications alleging all known offenses by an accused may be preferred at the same time." Here, the record shows that appellant’s offenses, at least in part, occurred after April 1, 1996. Therefore, application of the 14-day rule may have been authorized on this basis alone. United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994); United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994); Wright v. Superior Court, 936 P.2d 101, 107-8 (Cal. 1997). Accordingly, I vote to remand this case to the court below pursuant to my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997)(concurring in part and in the result).

ORDERS GRANTING PETITION FOR REVIEW

No. 97-1018/AR. U.S. v. Charles D. CARPENTER. CCA 96-1129. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0043/MC. U.S. v. Jose L. SUAREZ. CCA 97-0646.***/

No. 98-1076/NA. U.S. v. Mark E. GRIGGS. CCA 97-0553.

No. 98-1077/AR. U.S. v. Jason S. ATKINSON. CCA 9601328.

No. 98-1078/AF. U.S. v. Brett A. ZERNICK. CCA 33223.

INTERLOCUTORY ORDERS

No. 98-0157/AF. U.S. v. Ronald J. RIDDICK. CCA 32652. To October 5, 1998.

No. 98-0981/AF. U.S. v. Shan L. WILLIAMS. CCA S29360. To October 8, 1998.

No. 98-0987/AR. U.S. v. Charlie SCOTT. CCA 9502201. To October 9, 1998.

    In each of the above three cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to the date indicated.

No. 98-0200/NA. U.S. v. Joey VILLAREAL. CCA 96-1234. Appellant’s second motion to extend time to file final brief granted to September 23, 1998.

No. 98-0237/AR. U.S. v. Brian T. WARDEN. CCA 9502034. Appellee’s motion to file answer to final brief out of time granted.

No. 98-0847/AR. U.S. v. Martez L. HENDERSON. CCA 9501435. To October 8, 1998.

No. 98-0861/AF. U.S. v. Damon R. HICKS. CCA S29354. To October 5, 1998.

    In each of the above two cases, appellant’s second motion to extend time to file supplement to petition for grant of review granted to the date indicated.

MANDATES ISSUED

No. 96-1234/AF. U.S. v. Michael S. MCKINLEY. CCA S29103.

No. 97-0243/AR. U.S. v. Windell K. LOFTON. CCA 9402086.

No. 97-0543/AF. U.S. v. Herman RIOS, Jr. CCA 31877.

No. 97-0656/AF. U.S. v. Wayman T. WHITE. CCA S29207.

No. 97-0769/AF. U.S. v. Wilson FRASIER, Jr. CCA 32105.

No. 97-5004/CG. U.S. v. Todd C. PADGETT. CCA 1060.

________

*/ This pleading violates Rule 30(d) of this Court’s Rules of Practice and Procedure.

**/ Because the sentence did not include confinement or forfeitures, Article 58b, UCMJ, 10 USC § 858b, did not apply.

***/ Second petition filed in same case.



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-235
SEPTEMBER 10, 1998

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0591/AF. U.S. v. Gregg D. KOONTZ. CCA 32459.

    SULLIVAN, Judge (dissenting):

    I would grant review in this case on Issue VIII involving the impact of this Court’s Gorski opinion. In appellant’s "Brief in Supplement to Petition for Grant of Review," appellant alleges "it is unclear whether this [convening authority’s waiver of forfeitures] had any effect on the adjudged forfeitures." Brief at 37. In my opinion, our Court should face and resolve all these issues which will clarify the application of Gorski to the armed services. Once our Court has ruled a law unconstitutional, it appears to me that we have a duty to resolve any application of the unconstitutional law to cases affected by that law. See United States v. Gorski, 47 MJ 370, 376-77 (Sullivan, J., concurring in part and in the result); United States v. Roseboro, No. 98-0439, __ MJ ___ (Daily Journal July 27, 1998).

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0757/NA. U.S. v. Donnell J. PALMORE. CCA 97-1529.

No. 98-0834/AR. U.S. v. Tony A. SOFTLEY. CCA 9700967.

No. 98-0836/NA. U.S. v. Robert C. CHIVERS. CCA 97-0849.

No. 98-0850/NA. U.S. v. Titus D. THOMAS. CCA 97-0963.

No. 98-0853/AF. U.S. v. Brett P. SANCHEZ. CCA 33143.

No. 98-0857/AF. U.S. v. Brad ARNOLD. CCA S29491.

No. 98-0868/MC. U.S. v. Douglas R. BEARDEN. CCA 97-2134.

No. 98-0897/NA. U.S. v. Lashawn D. BEASLEY. CCA 97-2227.

No. 98-0904/AR. U.S. v. Folaina JEFFERSON. CCA 9701195.

No. 98-0907/AR. U.S. v. Clifton L. EDWARDS. CCA 9800543.

No. 98-0919/AF. U.S. v. James A. WEBSTER. CCA S29509.

No. 98-0921/MC. U.S. v. Shawn E. NELTNER. CCA 98-0004.

No. 98-0924/NA. U.S. v. Osben CLARK, Jr. CCA 97-1710.

No. 98-0925/MC. U.S. v. Richard DUDLEY. CCA 97-1941.

No. 98-0926/AF. U.S. v. Leon A. BROWN, Jr. CCA S29541.

No. 98-0935/NA. U.S. v. Michael W. HANCOCK. CCA 98-0297.

No. 98-0936/MC. U.S. v. Michael L. COX. CCA 97-2185.

No. 98-0937/MC. U.S. v. Raymond B. WILLIAMS, Jr. CCA 97-1442.

No. 98-0950/AF. U.S. v. Noel Y. SEGURA. CCA S29534.

No. 98-0953/AF. U.S. v. Jason C. BRADLEY. CCA 33049.

No. 98-0967/AF. U.S. v. Brian K. WALTON. CCA 33072.

No. 98-0980/AF. U.S. v. Eric L. TRAVIESO. CCA S29511.

No. 98-0989/AF. U.S. v. Adam C. BURR. CCA S29556.

No. 98-1007/AF. U.S. v. Grahm B. CLEGG. CCA S29548.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1079/NA. U.S. v. Michael J. BOMBONATI. CCA 98-0253.

INTERLOCUTORY ORDERS

No. 98-0431/NA. U.S. v. Stephanie K. FEE. CCA 97-0382. Appellee’s motion to extend time to file answer to final brief granted to October 9, 1998.

No. 98-0617/AR. U.S. v. Thomas D. MORRISON. CCA 9600461. Appellant’s motion to correct errata granted.

No. 98-0882/AR. U.S. v. Jeremy J. WILLIAMS. CCA 9601126. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to October 13, 1998.

No. 98-0974/AR. U.S. v. Michael L. RODGERS. CCA 9800292. To September 28, 1998.

No. 98-0990/AF. U.S. v. Seth D. LEWIS. CCA 32965. To October 9, 1998.

No. 98-0991/AF. U.S. v. Tony A. ROBERTS. CCA S29499. To October 8, 1998.

No. 98-0996/MC. U.S. v. Woodrow K. BROWN. CCA 97-1596.

No. 98-1001/MC. U.S. v. David W. MAGNAN. CCA 97-2071.

    In each of the above five cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to October 13, 1998, unless otherwise indicated.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-236
SEPTEMBER 11, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1080/AF. U.S. v. Christopher M. LAWRENCE. CCA 33093.

No. 98-1081/AF. U.S. v. Mario MONGE, Jr. CCA 33199.

No. 98-1082/AF. U.S. v. Stephen W. MOORE. CCA 32974.

No. 98-1083/AF. U.S. v. Norman J. TRAIL. CCA S29547.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-237
SEPTEMBER 14, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1084/MC. U.S. v. Steven R. JOCELYN. CCA 97-1686.

No. 98-1085/AF. U.S. v. Colleen E. MOREY. CCA S29564.

No. 98-1086/AF. U.S. v. James M. TINER. CCA 33164.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-238
SEPTEMBER 15, 1998

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 98-0220/AF. U.S. v. Eric A. RENAUD. CCA 32811. Appellant’s motion to withdraw petition for grant of review granted.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1087/MC. U.S. v. Charles L. DAVIS. CCA 98-0759.

No. 98-1088/MC. U.S. v. Jeremie J. SOLTERMANN. CCA 98-0507.

No. 98-1089/AR. U.S. v. Sean G. GRIGORUK. CCA 9600949.

PETITIONS FOR RECONSIDERATION DENIED

No. 98-0662/MC. U.S. v. Jose G. VERDEJO. CCA 96-2162. Appellant’s petition for reconsideration and motion to attach documents denied.

INTERLOCUTORY ORDERS

No. 98-0078/AR. U.S. v. Ervin M. GRAVES. CCA 9401271. On consideration of appellant’s motion for determination of appellant's mental capacity, appointment of independent consultant to perform this determination and stay of proceedings until appellant’s mental capacity to participate in his defense on appellate review is determined; appellant’s sixth motion to extend time to file supplement to petition for grant of review out of time; appellee’s motion to admit government appellate exhibits A and B; and appellee’s motion to correct errata, it is ordered that said motion for determination of appellant’s mental capacity, appointment of independent consultant to perform this determination and stay of proceedings until appellant’s mental capacity to participate in his defense on appellate review is determined is hereby denied; that said motion to extend time to file supplement to petition for grant of review is granted to October 1, 1998; that the motion to file exhibits is granted; and that the motion to correct errata is granted.

No. 98-0891/MC. U.S. v. Luis F. EGUIA. CCA 96-2501. Appellant’s motion to attach record excerpts denied.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-239
SEPTEMBER 16, 1998

HEARINGS

No. 98-0152/MC. U.S. v. Keith J. BIAGASE. CCA 96-1459.*/

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1090/NA. U.S. v. Alpheaus T. MILLER. CCA 98-0467.

No. 98-1091/MC. U.S. v. Dalwin T. FLEMING. CCA 98-0993.

No. 98-1092/NA. U.S. v. Ollon F. CARTER. CCA 97-1076.

No. 98-1093/AF. U.S. v. Clois J. WEBB. CCA 32521.

No. 98-1094/AF. U.S. v. Mylene JOHNSON. CCA S29552.

INTERLOCUTORY ORDERS

No. 98-0306/MC. U.S. v. Kenneth R. WATT. CCA 96-1587. Motion filed by Lieutenant Commander Patricia M. Sulzbach to withdraw as appellate counsel granted.

No. 98-0504/AF. U.S. v. Daniel M. SCHATTE. CCA 32699. Appellee’s motion to withdraw request for enlargement of time to file certificate for review granted.

No. 98-1000/NA. U.S. v. Tony T. BABINSKI. CCA 97-1998.

No. 98-1003/MC. U.S. v. Lawrence A. SMITH. CCA 97-0309.

No. 98-1005/MC. U.S. v. Phillip D. HINTON. CCA 95-1115.

No. 98-1006/AF. U.S. v. Stefan M. ANDRASI. CCA 32654.

No. 98-1012/AR. U.S. v. Marcius J. JONES. CCA 9601952. To September 21, 1998.

    In each of the above five cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to October 13, 1998, unless otherwise indicated.

No. 98-5019/AF. U.S. v. Brian T. MUDERY. CCA 32704.

Appellee’s motion to file corrected page granted.

___________

*/ This case was heard in Pringle Hall, Naval War College, Newport, Rhode Island.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-240
SEPTEMBER 17, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1095/AR. U.S. v. Caesar F. DELAFUENTE. CCA 9701160.

No. 98-1096/AR. U.S. v. Mark W. TRIMBLE. CCA 9800370.

No. 98-1097/AR. U.S. v. Ray R. RAWLINS. CCA 9700921.

No. 98-1098/AR. U.S. v. Terry KELLEY. CCA 9600727.

No. 98-1099/AR. U.S. v. Michael C. LAURAIN. CCA 9800080.

No. 98-1100/AR. U.S. v. Milton MENDEZ. CCA 9701545.

No. 98-1101/AF. U.S. v. Gregory H. JONES. CCA 9700220.

No. 98-1102/AR. U.S. v. John K. HIBBERT. CCA 9601637.

No. 98-1103/AR. U.S. v. Johnny GUTIERREZ. CCA 9700131.

No. 98-1104/AR. U.S. v. Jeffery R. FLEMING. CCA 9700665.

No. 98-1105/AR. U.S. v. Spencer B. EDWARDS. CCA 9800113.

No. 98-1106/AR. U.S. v. Paul R. BUTCHER. CCA 9800068.

No. 98-1107/AR. U.S. v. Kevin W. BERRY. CCA 9701167.

No. 98-1108/AR. U.S. v. Matthew H. LEE. CCA 9701833.

No. 98-1109/AR. U.S. v. Jason E. NELSON. CCA 9601144.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-241
SEPTEMBER 18, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1110/AR. U.S. v. Michael V. BLEZNYK. CCA 9701958.

No. 98-1111/AR. U.S. v. James W. HUFF, Jr. CCA 9600772.

No. 98-1112/AF. U.S. v. Joseph W. BOSTON, Jr. CCA 33016.

No. 98-1113/AF. U.S. v. David S. BRADLEY. CCA 32387.

No. 98-1114/AF. U.S. v. Michael M. KEPLEY. CCA 32768.

No. 98-1115/AF. U.S. v. Diego MARISCAL. CCA S29424.

No. 98-1116/NA. U.S. v. John J. FERRARA. CCA 98-0608.

MANDATES ISSUED

No. 96-1402/AR. U.S. v. Antonio JACKSON. CCA 9401052.

No. 97-0381/AR. U.S. v. Gregory J. BLANCHARD. CCA 9500914.

No. 97-0660/AF. U.S. v. Kimberly DUNBAR. CCA 32069.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-242
SEPTEMBER 21, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1117/MC. U.S. v. Jamie T. COOPER. CCA 98-0631.

No. 98-1118/NA. U.S. v. Michael CARDREON. CCA 97-0015.

No. 98-1119/NA. U.S. v. Patrick D. MCCORMICK. CCA 98-0768.

No. 98-1120/MC. U.S. v. Jason A. LEE. CCA 98-0907.

No. 98-1121/AF. U.S. v. Raul R. SALGADO, Jr. CCA 32549.

No. 98-1122/AF. U.S. v. Matthew G. VALOSEN. CCA 33212.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-243
SEPTEMBER 22, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1123/NA. U.S. v. Joseph A. KOLLY. CCA 97-0768.

MANDATES ISSUED

No. 97-0191/NA. U.S. v. Niguel R. OVANDO-MORAN. CCA 94-2075.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-244
SEPTEMBER 23, 1998

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0150/AR. U.S. v. Keith C. MCCLENDON. CCA 9601152.

No. 98-0614/MC. U.S. v. Demetrius S. HANNAH. CCA 96-1589.

No. 98-0639/AF. U.S. v. Michael A. REED. CCA 32500.

No. 98-0671/MC. U.S. v. Avery C. BATTS. CCA 96-2536.

No. 98-0698/AR. U.S. v. Stephen E. TIDD. CCA 9601595.

No. 98-0702/NA. U.S. v. Allan L. TURNER. CCA 95-0904.

No. 98-0712/AF. U.S. v. Sharon W. WRIGHT. CCA 32089.

No. 98-0755/MC. U.S. v. Robert NEGRIN. CCA 97-0100.

No. 98-0772/AR. U.S. v. Jeffrey C. GREEN. CCA 9700933.

No. 98-0787/MC. U.S. v. Corey T. BALLARD. CCA 96-2572.

No. 98-0793/AF. U.S. v. Erin L. KINSELLA. CCA 32680.

No. 98-0799/AR. U.S. v. Curtis MITCHELL. CCA 9700813.

No. 98-0820/MC. U.S. v. Samuel M. JONES. CCA 97-2140.

No. 98-0826/MC. U.S. v. Jermaine T. STREET. CCA 96-1610.

No. 98-0844/AR. U.S. v. Patrick G. GALL. CCA 9701497.

No. 98-0851/NA. U.S. v. Eric E. HARRISON. CCA 97-2204.

No. 98-0869/NA. U.S. v. Kenneth J. BURTON. CCA 97-0578.

No. 98-0886/AR. U.S. v. Morris W. ROBERTS, Jr. CCA 9800591.

No. 98-0911/NA. U.S. v. Michael R. HARVILLE. CCA 97-1666.

No. 98-0922/MC. U.S. v. Karen D. WATKINS. CCA 97-1428.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1124/AF. U.S. v. Thomas R. DAVILA. CCA S29407.

No. 98-1125/AF. U.S. v. Stephen D. TAMULAVAGE. CCA 33099.

INTERLOCUTORY ORDERS

No. 98-0069/AF. U.S. v. Kevin M. FOX. CCA S29308. Appellant’s motion to extend time to file petition for reconsideration granted but only to October 23, 1998.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0232/AR. U.S. v. Kurt M. BERTIE. CCA 9600846. Appellant’s motion to extend time to file final brief granted.

No. 98-0461/MC. U.S. v. John P. BEASLEY. CCA 96-1904. Appellant’s motions to attach documents and for leave of court to file supplemental assignments of error denied.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0476/AR. U.S. v. Arthur P. CRETER, III. CCA 9700450. Appellant’s motion to file out of time petition for reconsideration denied.

No. 98-0489/NA. U.S. v. Anthony R. SHERMAN. CCA 96-0840

No. 98-0498/MC. U.S. v. Rae J. FOX. CCA 96-0361.

    In each of the above two cases, appellant’s motion to extend time to file final brief granted to October 19, 1998.

No. 98-0681/NA. U.S. v. Tyrone L. WELLS. CCA 96-1349. Appellee’s second motion to extend time to file answer to supplement to petition for grant of review denied.

No. 98-0745/AF. U.S. v. Steven G. OSTBERG. CCA S29463.
Appellant’s motion to extend time to file petition for reconsideration granted but only to October 23, 1998.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0930/AF. U.S. v. Sean S. BAILEY. CCA 33177. Appellant’s motion to submit document denied.

No. 98-1013/AR. U.S. v. Stephen F. MESSNER. CCA 9600694. Appellant’s motion to admit defense appellate exhibit A-I granted.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-1125/AF. U.S. v. Stephen D. TAMULAVAGE. CCA 33099. Petition for grant of review was offered for filing under Rule 20, together with appellant’s motion to file the same out of time. Appellee shall file answer to appellant’s motion on or before the 30th day of September, 1998. Further action on the petition shall be held in abeyance pending the Court’s final action on the motion.

No. 98-8021/CG. U.S. v. DeMauri M. FRAZIER. CCA 001-98. Motion of National Institute of Military Justice to file brief as amicus curiae granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-245
SEPTEMBER 24, 1998

ORDERS GRANTING PETITION FOR RECONSIDERATION

No. 97-0680/AF. U.S. v. Pedro M. DELACRUZ. CCA 32203.
Appellant’s motion to file petition for reconsideration out of time granted; appellant’s petition for reconsideration granted; appellant’s motions to submit documents granted; the order of the Court dated August 5, 1998, is hereby vacated.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0650/AF. U.S. v. Glen R. THORPE. CCA 32589.

No. 98-0801/NA. U.S. v. Kristi C. HURDA. CCA 97-0648.

No. 98-0812/MC. U.S. v. Mario GARCIAMENDEZ. CCA 97-0051.

No. 98-0849/MC. U.S. v. John G. JOHANNESEN, III. CCA 97-1847.

No. 98-0859/AF. U.S. v. Guillermo GARZA. CCA 33028.

No. 98-0871/NA. U.S. v. Mark A. JONES. CCA 96-2339.

No. 98-0883/MC. U.S. v. Grant K. FUKUDA. CCA 97-1924.

No. 98-0890/NA. U.S. v. Danny R. ALLEN. CCA 97-1121.

No. 98-0902/NA. U.S. v. Clifford L. STRAWDER. CCA 98-0108.

No. 98-0948/AR. U.S. v. David G. GARCIA. CCA 9501367.

No. 98-0955/AR. U.S. v. Larry F. BRIDGES. CCA 9701973.

No. 98-0961/AR. U.S. v. Wesley J. VINSON. CCA 9601956.

No. 98-0966/AF. U.S. v. TJ V. PEARSON, Jr. CCA 33118.

No. 98-0977/AF. U.S. v. David T. HARRIS. CCA 32958.

No. 98-1011/AR. U.S. v. James A. WEATHERALL. CCA 9601170.

No. 98-1014/AR. U.S. v. James A. WEATHERALL. CCA 9601983.

No. 98-1044/MC. U.S. v. Christopher GREENE. CCA 98-0090.

INTERLOCUTORY ORDERS

No. 97-0047/AR. U.S. v. Andrew G. AULL. CCA 9402074. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to October 23, 1998.

No. 98-0811/AR. U.S. v. Ezell MCCALPINE, Jr. CCA 9701508.
Appellant’s third motion to extend time to file supplement to petition for grant of review granted to October 21, 1998.

No. 97-0286/AR. U.S. v. Stuart W. SMITH. CCA 9500065. To November 4, 1998.

No. 98-1030/AF. U.S. v. David G. BRADFORD. CCA 32511. To October 21, 1998.

No. 98-1031/AF. U.S. v. James J. CAFERELLI. CCA 32972. To October 5, 1998.

No. 98-1036/AR. U.S. v. Courtland WALLER. CCA 9700807. To October 23, 1998.

No. 98-1045/AF. U.S. v. Michael A. BILBEY, Jr. CCA 32616. To October 26, 1998.

    In each of the above five cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to the date indicated.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-246
SEPTEMBER 25, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 98-5014/AF. U.S. v. Paul R. CHAMBERS. CCA 32912. On consideration of the cross-petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and the issue certified by the Judge Advocate General of the Air Force we note that the offense to which the accused pleaded and was found guilty occurred from 1 February 1995 to 10 January 1997. We conclude that said offense was committed, at least in part, after the effective date of the amendment to Article 57(a) and the addition of Article 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively. Thus, the application of these provisions did not violate the Ex Post Facto Clause and United States v. Gorski, 47 MJ 370 (1997), does not apply. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals granting relief to the appellee based upon United States v. Gorski, supra, is erroneous and is set aside. The certified question is answered in the negative; the cross-petition is denied; and in all other respects the decision of the United States Air Force Court of Criminal Appeals is affirmed. The case is returned to the Judge Advocate General of the Air Force for further action.

    SULLIVAN, Judge (dissenting):

    I would remand this case to the Air Force Court of Criminal Appeals. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998), and United States v. Roseboro, __ MJ __, Dkt. No. 98-0439/AR (July 27, 1998) (Sullivan, J., dissenting).

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-5016/AF. U.S. v. Lawrence M. HANLON, II. CCA 32650. On consideration of the cross-petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and the issue certified by the Judge Advocate General of the Air Force we note that several of the offenses to which the accused pleaded and was found guilty occurred after 1 April 1996 which was after the effective date of the amendment to Article 57(a) and the addition of Article 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively. Thus, the application of these provisions did not violate the Ex Post Facto Clause and United States v. Gorski, 47 MJ 370 (1997), does not apply. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals granting relief to the appellee based upon United States v. Gorski, supra, is erroneous and is set aside. The certified question is answered in the negative; the cross-petition is denied; and in all other respects the decision of the United States Air Force Court of Criminal Appeals is affirmed. The case is returned to the Judge Advocate General of the Air Force for further action.

    SULLIVAN, Judge (dissenting):

    I would remand this case to the Air Force Court of Criminal Appeals. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998), and United States v. Roseboro, __ MJ __, Dkt. No. 98-0439/AR (July 27, 1998) (Sullivan, J., dissenting).

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No.98-5020/AF. U.S. v. Elmo L. TILLAR. CCA 32562. On consideration of the cross-petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and the issue certified by the Judge Advocate General of the Air Force we note that the offense to which the accused pleaded and was found guilty extended in duration from 1 December 1992 to 3 July 1996. We conclude that said offense was committed, at least in part, after the effective date of the amendment to Article 57(a) and the addition of Article 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively. Thus, the application of these provisions did not violate the Ex Post Facto Clause and United States v. Gorski, 47 MJ 370 (1997), does not apply. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998). Accordingly, it is ordered that the portion of the decision of the United States Air Force Court of Criminal Appeals granting relief to the appellee based upon United States v. Gorski, supra, is erroneous and is set aside. The certified question is answered in the negative; the cross-petition is denied; and in all other respects the decision of the United States Air Force Court of Criminal Appeals is affirmed. The case is returned to the Judge Advocate General of the Air Force for further action.

    SULLIVAN, Judge (dissenting):

    I would remand the case to the Air Force Court of Criminal Appeals. See my separate opinion in United States v. Roseboro, __ MJ ___, Dkt. No. 98-0439/AF (July 27, 1998), United States v. Keeney, __ MJ __, Dkt. No. 97-0596/AF (April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998), and United States v. Gorski, 47 MJ 370, 376 (1997)(Sullivan, J., concurring in the result).

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-5028/AF. U.S. v. Roy L. CLARK. CCA S29444. On consideration of the cross-petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and the issue certified by the Judge Advocate General of the Air Force we note that one of the offenses to which the accused pleaded and was found guilty occurred between 1 March 1997 to 14 March 1997, which was after the effective date of the amendment to Article 57(a) and the addition of Article 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively. Thus, the application of these provisions did not violate the Ex Post Facto Clause and United States v. Gorski, 47 MJ 370 (1997), does not apply. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998). Accordingly, it is ordered that the portion of the decision of the United States Air Force Court of Criminal Appeals granting relief to the appellee based upon United States v. Gorski, supra, is erroneous and is set aside. The certified question is answered in the negative; the cross-petition is denied; and in all other respects the decision of the United States Air Force Court of Criminal Appeals is affirmed. The case is returned to the Judge Advocate General of the Air Force for further action.

    SULLIVAN, Judge (dissenting):

    I would remand this case to the Air Force Court of Criminal Appeals. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998), and United States v. Roseboro, __ MJ __, Dkt. No. 98-0439/AR (July 27, 1998) (Sullivan, J., dissenting).

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0764/AR. U.S. v. Trevor D. GORDON. CCA 9700390.

Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0860/AF. U.S. v. Carl W. GONZALEZ. CCA 32832.

    SULLIVAN, Judge (dissenting):

    I would remand this case to the Air Force Court of Criminal Appeals. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998), and United States v. Roseboro, __ MJ __, Dkt. No. 98-0439/AR (July 27, 1998) (Sullivan, J., dissenting).

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0877/AF. U.S. v. Shane P. MILLER. CCA 32833.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0895/AF. U.S. v. Joseph E. ROGERS, Jr. CCA S29471.

No. 98-0917/AF. U.S. v. Terry L. ODHAM. CCA 32931.

    SULLIVAN, Judge (dissenting):

    I would remand this case to the Air Force Court of Criminal Appeals. See United States v. Keeney, ___ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998), and United States v. Roseboro, __ MJ __, Dkt. No. 98-0439/AR (July 27, 1998) (Sullivan, J., dissenting).

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-5014/AF. U.S. v. Paul R. CHAMBERS. CCA 32912.1/

No. 98-5016/AF. U.S. v. Lawrence M. HANLON, II. CCA 32650.1/

No. 98-5020/AF. U.S. v. Elmo L. TILLAR, Jr. CCA 32562.1/

No. 98-5028/AF. U.S. v. Roy L. CLARK, Jr. CCA S29444.1/

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0271/AF. U.S. v. Tony D. WHITTY. CCA 32665.2/

No. 98-1126/AR. U.S. v. James M. WHALEN. CCA 9601975.

No. 98-1127/AR. U.S. v. Gregory A. POPE, Jr. CCA 9700352.

No. 98-1128/AR. U.S. v. Jayson K. WALLAR. CCA 9701574.

No. 98-1129/AF. U.S. v. Troy D. HUGHES. CCA 32359.

No. 98-1130/MC. U.S. v. Frederick W. STAGER. CCA 98-0410.

INTERLOCUTORY ORDERS

No. 97-1137/AF. U.S. v. Dudley S. ANDERSON. CCA 31996. Appellee’s motion to substitute corrected pages granted.

No. 97-1203/NA. U.S. v. Samuel J. SOUTHWORTH. CCA 96-0690. Appellant’s motion to attach documents granted.

No. 98-0200/NA. U.S. v. Joey VILLAREAL. CCA 96-1234. Appellant’s third motion to extend time to file final brief granted to September 28, 1998.

No. 98-0901/MC. U.S. v. Eric A. RAMIREZ. CCA 96-2400. Appellant’s second motion to extend time to file supplement to petition for grant of review granted.

No. 98-1039/NA. U.S. v. Kevin M. ROBERTS. CCA 97-0767. Appellant’s motion to extend time to file supplement to petition for grant of review granted to October 23, 1998.

____________

1/ Judge Effron did not participate. See APPEALS - SUMMARY DISPOSITIONS this date.

2/ Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-247
SEPTEMBER 28, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 96-0126/NA. U.S. v. Glen P. EDWARDS. CCA 94-0085. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on further review, we conclude that the action taken by the court below was correct as a matter of law. Accordingly, it is ordered that the petition for grant of review is granted; and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals on further review is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 96-0126/NA. U.S. v. Glen P. EDWARDS. CCA 94-0085. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 98-0488/AR. U.S. v. Lawrence P. ROCKWOOD, II. CCA 9500872. Review granted on the following issues raised by appellate defense counsel:

I. WHETHER CAPTAIN ROCKWOOD WAS DENIED A FAIR AND IMPARTIAL TRIAL AS A RESULT OF INTERRELATED UNLAWLFUL COMMAND INFLUENCE AND CONFLICTS OF INTEREST AFFECTING VIRTUALLY THE ENTIRE COMMAND, INCLUDING THE COURT AND PANEL MEMBERS AND PROSECUTION WITNESSES.

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING PRODUCTION OF MAJOR GENERAL MEADE, BRIGADIER GENERAL HILL, OTHER WITNESS TESTIMONY AND EVIDENCE RELEVANT AND NECESSARY TO ESTABLISH CAPTAIN ROCKWOOD'S DEFENSES.

III. WHETHER INDIVIDUAL MEMBERS OF THE MILITARY COURT WHO WERE DISQUALIFIED FROM SERVICE ON THE COURT WERE ERRONEOUSLY PERMITTED TO SERVE DESPITE BEING CHALLENGED FOR CAUSE.

IV. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO ESTABLISH BEYOND A REASONABLE DOUBT THAT CAPTAIN ROCKWOOD WAS GUILTY OF CHARGES I, II, AND III.

V.  WHETHER THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT THE PANEL ON THE DEFENSES OF JUSTIFICATION AND NECESSITY AND BY GIVING A DURESS INSTRUCTION THAT WAS INCORRECT AND CONFUSING.

No. 98-0752/AR. U.S. v. John M. McCLAIN, Jr. CCA 9501831. Review granted on the following assigned issue raised by appellate defense counsel: WHETHER THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY STATED THAT "SPECIALIST McCLAIN HAS TOLD LIES HERE TODAY IN COURT" AFTER THE APPELLANT HAD SOUGHT THE RELEASE OF COUNSEL, AND THEREAFTER APPELLANT'S LAWYERS NEVER EXPLAINED AN AVAILABLE INSANITY DEFENSE TO THE APPELLANT BEFORE HE ENTERED HIS PLEAS. and the following issue personally asserted by appellant:  
WHETHER THE MILITARY JUDGE COMMITTED ERROR BY DELAYING, UNTIL AFTER THE PROVIDENCE INQUIRY, A RULING ON THE RELEASE OF COUNSEL WHERE THE APPELLANT CHANGED HIS PLEA AND PLED GUILTY WITHOUT THE BENEFIT OF A PRETRIAL AGREEMENT, WHERE ASSIGNED COUNSEL REPEATEDLY SOUGHT HIS RELEASE FROM THE CASE, WHERE THE INDIVIDUALLY REQUESTED MILITARY COUNSEL WAS ADMITTEDLY UNPREPARED TO PROCEED DESPITE NEARLY 10 MONTHS PREPARATION TIME, AND WHERE THE APPELLANT WAS A DIAGNOSED PARANOID SCHIZOPHRENIC TAKING MEDICATION AT THE TIME OF TRIAL.
No. 98-0758/NA. U.S. v. Sarah F. THOMASSON. CCA 96-0938. Review granted on the following issue raised by appellate defense counsel: WHETHER APPELLANT'S PLEA OF GUILTY TO RESISTING APPREHENSION WAS NOT PROVIDENT. No. 98-0784/MC. U.S. v. Jason M. ABRAMS. CCA 96-1714. Review granted on the following issue raised by appellate defense counsel: WHETHER APPELLANT HAS BEEN DENIED HIS FIFTH AMENDMENT RIGHT TO DUE PROCESS AND HIS SIXTH AMENDMENT RIGHT TO PRESENT A DEFENSE BECAUSE THE MILITARY JUDGE FAILED TO SEAL AND ATTACH TO THE RECORD OF TRIAL, THE PERSONAL RECORDS OF SEAMAN KONNIE P., USN, THE GOVERNMENT'S PRIMARY WITNESS AGAINST APPELLANT FOR CHARGE III AND THE ADDITIONAL CHARGE. No. 98-0829/NA. U.S. v. Eric L. JOHNSTON. CCA 94-1274. Review granted on the following issues raised by appellate defense counsel: I. WHETHER DETAILED DEFENSE COUNSEL'S FAILURE TO CONTACT APPELLANT PRIOR TO REVIEW OF, AND RESPONSE TO, THE STAFF ORDERS JUDGE ADVOCATE'S POST-TRIAL RECOMMENDATION WAS AN ERROR WHICH PREVENTED THE SUBMISSION OF CLEMENCY MATTERS FROM APPELLANT TO THE CONVENING AUTHORITY, PREJUDICING APPELLANT BY DENYING HIM HIS BEST HOPE OF SENTENCE RELIEF.

II. WHETHER SUBSTITUTE MILITARY COUNSEL SHOULD HAVE BEEN DETAILED TO ACCEPT SERVICE AND RESPOND TO THE NEW RECOMMENDATION OF THE STAFF JUDGE ADVOCATE SINCE APPELLANT'S DETAILED DEFENSE COUNSEL WAS NO LONGER ON ACTIVE DUTY.

No. 98-0837/AR. U.S. v. Paul E. WHITNER. CCA 9501034. Review granted on the following issue raised by appellate defense counsel: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ALLOWING INTO EVIDENCE PROSECUTION EXHIBITS 1, 2, AND 3b BECAUSE THESE MATERIALS WERE IRRELEVANT TO THE CHARGED OFFENSES AND BECAUSE THEIR PROBATIVE VALUE WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE. No. 98-0888/MC. U.S. v. Michael E. REIST. CCA 97-1294. Review granted on the following issue raised by appellate defense counsel: WHETHER LIEUTENANT COLONEL WARRINER, THE DIRECTOR OF THE LAW CENTER AT MARINE CORPS AIR STATION YUMA, WAS DISQUALIFIED FROM BEING THE ASSISTANT TRIAL COUNSEL BECAUSE HE WAS THE ACCUSER BASED UPON HIS PREFERRAL OF CHARGES AGAINST THE APPELLANT AND HIS PERSONAL INTEREST IN THE CASE. No. 98-5025/AF. U.S. v. Bruce A. BELFLOWER. CCA 32612. Review granted on the following issue raised by appellate defense counsel in the cross-petition: WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN REFUSING INDIVIDUAL VOIR DIRE OF CERTAIN COURT MEMBERS.     Judge Effron did not participate in this decision. See United States v. Gorski, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L. No. 104-106, 110 Stat. 462-63 (1996).

No. 98-5026/AF. U.S. v. Heath E. AUGUSTINE. CCA 32792. Review granted on the following issue raised by appellate defense counsel in the cross-petition:

WHETHER THE APPELLANT'S PLEA TO SPECIFICATION 4 OF THE CHARGE WAS IMPROVIDENT SINCE HIS CONDUCT WAS NOT IN VIOLATION OF 18 U.S.C. § 2252a AS THE APPELLANT DID NOT POSSESS THREE OR MORE BOOKS, MAGAZINES, PERIODICALS, FILMS, VIDEO TAPES, OR OTHER MATTER WHICH CONTAINED ILLEGAL IMAGES.     Judge Effron did not participate in this decision. See United States v. Gorski, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996 , Pub.L. No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0114/AF. U.S. v. Michael A. PERKINS. CCA 32547.

No. 98-0377/AR. U.S. v. Timothy J. MCCOY. CCA 9601331.

No. 98-0661/NA. U.S. v. Jimmy HIERSCHE. CCA 98-0020.

    In each of the above three cases, the petition is denied. See United States v. Keeney, __ MJ ___, Dkt. No. 97-0596/AF (April 15, 1998).

    In each of the above three cases, Judge Sullivan filed the following dissent:

    SULLIVAN, Judge (dissenting):

    I would remand this case to the Court of Criminal Appeals.

See United States v. Keeney, No. 97-0596/AF, __ MJ ___, (April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998), and United States v. Roseboro, _ MJ __, Dkt. No. 98-0439/AR (July 27, 1998)(Sullivan, J., dissenting).

    Judge Effron did not participate in any of these decisions. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in these cases should they subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1131/AF. U.S. v. Donna M. NORFLEET. CCA S29280.

No. 98-1132/AF. U.S. v. Robert E. ROBERTS. CCA 33211.

No. 98-1133/AF. U.S. v. Katrina D. WILLIAMS. CCA S29554.

No. 98-1134/AR. U.S. v. Dennis E. RIDEOUT, Jr. CCA 9500781.

No. 98-1135/AR. U.S. v. Robin BELLAMY. CCA 9701227.

No. 98-1136/AR. U.S. v. Swarez K. GARLINGTON. CCA 9602046.

No. 98-1137/AR. U.S. v. Keith A. KNIGHT. CCA 9700901.

INTERLOCUTORY ORDERS

No. 96-0507/MC. U.S. v. William S. MCLAUGHLIN, III. CCA 94-2095. Appellant’s motion to extend time to file final brief granted to October 28, 1998

No. 98-0015/AF. U.S. v. Jason S. ROLAND. CCA 32485. Appellant’s motion to file supplemental citation of authority granted.

No. 98-0617/AR. U.S. v. Thomas D. MORRISON. CCA 9600461. Appellee’s motion to extend time to file answer to final brief granted to October 9, 1998.

No. 98-0385/AR. U.S. v. Daniel J. DE SANTI. CCA 9601323.

No. 98-1043/AR. U.S. v. Alan S. YERICH. CCA 9500978.

In each of the above two cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to October 26, 1998.

No. 98-1125/AF. U.S. v. Stephen D. TAMULAVAGE. CCA 33099. Appellant’s motion to file petition for grant of review out of time granted. Appellant shall file supplement to petition for grant of review on or before October 28, 1998.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-248
SEPTEMBER 29, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 93-0208/AF. U.S. v. Frank S. HALL. CCA 29863. On further consideration of the granted issue in light of United States v. Scheffer, ____ U.S. ___, 118 S.Ct. 1261 (1998), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 98-0568/MC. U.S. v. Miguel A. MARTINEZ. CCA 961323. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals in the above-entitled case, we note that the court stated: "In ascertaining factual sufficiency, ‘the trial court determinations are worthy of due deference on review,’ since the members saw and heard the witnesses and were in the best position to judge their credibility. United States v. Bright, 20 MJ 661, 664 (NMCMR 1985)." Unpub. op. at 6. In United States v. Turner, 25 MJ 324, 325 (1987), this Court noted that reference to Bright by the court below may create an ambiguity as to whether the lower court has made an independent determination of factual sufficiency, "recognizing that the trial court saw and heard the witnesses." Art. 66(c), Uniform Code of Military Justice, 10 USC § 866(c)(1994); see United States v. Irvinspence, 39 MJ 893, 896 (ACMR 1994), pet. denied, 42 MJ 99 (CMA 1995). From the opinion below, it is unclear whether that court independently evaluated the sufficiency of the evidence as well as made that evaluation based upon an independent determination of credibility and the weight to be accorded the evidence of record. Because of this uncertainty, it is appropriate that we remand the case for further review. Accordingly, it is ordered that the petition for grant of review is granted; and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further review under Article 66(c), UCMJ, 10 USC § 866(c)(1994). Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0502/AF. U.S. v. Kerry S. EGGEN. CCA 32541. Review granted on the following issues:

I. WHETHER APPELLANT’S SUBSTANTIAL RIGHTS WERE PREJUDICED WHEN A GOVERNMENT EXPERT COMMENTED ON THE ALLEGED VICTIM’S CREDIBILITY.

II. WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY ALLOWING A GOVERNMENT EXPERT TO TESTIFY WITHOUT MEETING THE FOUR PART TEST OF ADMISSIBILITY OF EXPERT TESTIMONY.

No. 98-0568/MC. U.S. v. Miguel A. MARTINEZ. CCA 961323. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

PETITIONS FOR RECONSIDERATION DENIED

No. 97-0939/AF. U.S. v. Michael S. DAHLEN. CCA 32441. On consideration of the Request for Reconsideration of the order of this Court in the above-entitled case, dated March 4, 1998, we note that the sole offense (Art. 86(2), Uniform Code of Military Justice, 10 USC § 886(2)) committed after the effective date of Articles 57(a) and 58b, UCMJ, 10 USC §§ 857(a) and 858b, respectively, is not subject to a sufficient maximum punishment to warrant application of those Articles on its own. Accordingly, it is ordered that said Request is denied.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I would remand this case to the Court of Criminal Appeals. See United States v. Keeney, No. 97-0596, __MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part), as amended (Sept. 2, 1998), and United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-249
SEPTEMBER 30, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 98-0641/AR. U.S. v. Alvin W. CARR. CCA 9600939. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in light of the Government’s concession before the court below, the petition is hereby granted; the decision of the United States Army Court of Criminal Appeals is reversed as to Charge I and its specification; the findings of guilty to Charge I and its specification are hereby set aside and Charge I and its specification are hereby dismissed; and in all other respects the decision of the United States Army Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 98-0923/AR. U.S. v. Casey V. SINGLETON. CCA 9601353. The petition is granted and the decision of the United States Army Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 98-5004/AF. U.S. v. Lance G. CROW. CCA 32622. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that at least one of the five offenses of which appellee was convicted -- making a false official statement -- was committed after the effective date of the amendment to Article 57(a) and the addition of Article 58b, UCMJ, 10 USC §§ 857(a) and 858b, respectively. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for making a false official statement would support application of Article 58b on its own, see para. 31e, Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States (1995 ed.), enforcement of these Code provisions did not violate the Ex Post Facto Clause. See generally United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994); United States v. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5005/AF. U.S. v. Douglas M. CYR. CCA S29363. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that one of the three offenses of which appellee was convicted –- wrongful possession of marijuana –- was committed after the effective date of the amendment to Article 57(a) and the addition of Article 58b, UCMJ, 10 USC §§ 857(a) and 858b, respectively. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for wrongful possession of marijuana would support application of Article 58b on its own, see para. 37e(1)(b), Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States (1995 ed.), enforcement of these Code provisions did not violate the Ex Post Facto Clause. See generally United States v. Brady, 26 F. 3d 282, 291 (2d Cir. 1994); United States v. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. See United States v. Davis, No. 98-5006, __MJ__ (Daily Journal Sept. 30, 1998). Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5006/AF. U.S. v. John H. DAVIS. CCA 32765. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that appellee was only convicted of wrongful use and wrongful distribution of marijuana on divers occasions from on or about 1 Sept. 1994 to on or about 30 Nov. 1996. Based on the pleas of guilty, we conclude that these offenses were committed, at least in part, after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence included total forfeitures, so Article 58b did not apply. "A statute does not violate ex post facto principles where it applies to a crime that ‘began prior to, but continued after’ the statute’s effective date." United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994); see generally United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994). Thus, application of these Code provisions did not violate the Ex Post Facto Clause. Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5007/AF. U.S. v. Mary K. FOUSHEE. CCA 32858. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that appellee was convicted of wrongful use of cocaine on divers occasions between on or about 3 August 1995 and on or about 3 April 1997. Based on the plea of guilty, we conclude that this offense was committed, at least in part, after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence included total forfeitures, so Article 58b did not apply. "A statute does not violate ex post facto principles where it applies to a crime that ‘began prior to, but continued after’ the statute’s effective date." United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994); see generally United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994). Thus, application of this Code provision did not violate the Ex Post Facto Clause. Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. The other offense (a 4-day AWOL), standing alone, would not support application of Article 57(a)(1) in this case. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5008/AF. U.S. v. Joshua J. HULT. CCA S29369. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that one of the three offenses of which appellee was convicted –- making a false official statement –- was committed after the effective date of the amendment to Article 57(a) and the addition of Article 58b, UCMJ, 10 USC §§ 857(a) and 858b, respectively. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for making a false official statement would support application of Article 58b on its own, see para. 49e(1)(b), Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States (1995 ed.), enforcement of these Code provisions did not violate the Ex Post Facto Clause. See generally United States v. Brady, 26 F. 3d 282, 291 (2d Cir. 1994); United States v. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5010/AF. U.S. v. Stephen C. PARISEAU. CCA 32677. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that appellee was convicted of housebreaking on divers occasions from about 1 June 1995 until about 30 Sept. 1996. Based on the plea of guilty, we conclude that the offense was committed, at least in part, after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence included total forfeitures, so Article 58b does not apply. "A statute does not violate ex post facto principles where it applies to a crime that ‘began prior to, but continued after’ the statute’s effective date." United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994); see generally United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994). Thus, application of this Code provision did not violate the Ex Post Facto Clause. Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Neither of the other two offenses in this case would support application of Article 57(a)(1). Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5011/AF. U.S. v. Willie D. SCRUGGS. CCA S29373. On further consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that the accused was sentenced to a bad-conduct discharge, confinement for 45 days, and reduction to E-3. Under the provisions of Article 58b, UCMJ, 10 USC § 858b, the accused would be subject to automatic forfeitures. However, the convening authority waived the automatic forfeitures. Thus, the accused was not deprived of any pay pursuant to Article 58b. Under the provisions of Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), the reduction to E-3 would be executed the earlier of 14 days after sentence or the date of the convening authority’s action. Both of these dates were March 26, 1997. Thus, the reduction was executed in accordance with prior law. Because neither of the Code provisions in question were operative in this case, our decision in United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the certified issue is answered in the negative; and the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5012/AF. U.S. v. John B. SWIFT. CCA 32447. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that one of the seven offenses of which appellee was convicted –- dishonorable failure to maintain sufficient funds –- was committed after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence did not include confinement, so Article 58b did not apply. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for dishonorable failure to maintain sufficient funds would support application of Article 57(a)(1) on its own, see para. 68e, Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States (1995 ed.), enforcement of this Code provision did not violate the Ex Post Facto Clause. See generally United States v. Brady, 26 F. 3d 282, 291 (2d Cir. 1994); United States v. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the certified issue is answered in the negative; paragraph 16 entitled, "Ex Post Facto Nature of Article 57(a)," unpub. op. at 6, is stricken from the opinion below; and this Court retains jurisdiction over the case to dispose of the petition for grant of review in light of the decision of the court below as amended.

[See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    Judge Effron did not participate in this decision of the certified issue. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I would hear this case. See my separate opinion in United States v.Roseboro, No. 98-0439, __MJ__ (Daily Journal July 27, 1998); and United Statesv. Keeney, No. 97-0596, __MJ__ (Daily Journal April 15, 1998).

No. 98-5013/AF. U.S. v. Joel A. BRAND. CCA 32866. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that four of the seven offenses of which appellee was convicted –- including conspiracy to wrongfully distribute marijuana –- were committed after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence included total forfeitures, so Article 58b did not apply. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for conspiracy to wrongfully distribute marijuana would support application of Article 57(a)(1) on its own, see paras. 5e and 37e(2)(a), Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States (1995 ed.), enforcement of this Code provision did not violate the Ex Post Facto Clause. See generally United States v. Brady, 26 F. 3d 282, 291 (2d Cir. 1994); United States v. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. See United States v. Davis, No. 98-5006, __MJ__ (Daily Journal Sept. 30, 1998). Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5017/AF. U.S. v. Daniel N. HARMON. CCA 32876. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that two of the three offenses of which appellee was convicted –- wrongful use and wrongful possession of marijuana –- were committed after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence included total forfeitures, so Article 58b did not apply. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for wrongful possession of marijuana would support application of Article 57(a)(1) on its own, see para. 37e(1)(b), Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States (1995 ed.), enforcement of this Code provision did not violate the Ex Post Facto Clause. See generally United States v. Brady, 26 F. 3d 282, 291 (2d Cir. 1994); United States v. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5018/AF. U.S. v. Daryl W. LUCAS. CCA 32915. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that four of the eight offenses of which appellee was convicted –- including conspiracy to wrongfully distribute marijuana –- were committed after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence included total forfeitures, so Article 58b did not apply. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for conspiracy to wrongfully distribute marijuana would support application of Article 57(a)(1) on its own, see paras. 5e and 37e(2)(a), Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States(1995 ed.), enforcement of this Code provision did not violate the Ex Post Facto Clause. See generally United States v. Brady, 26 F. 3d 282, 291 (2d Cir. 1994); United States v. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. See United States v. Davis, No. 98-5006, __MJ__ (Daily Journal Sept. 30, 1998). Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5022/AF. U.S. v. Stephen G. HENDERSON. CCA 32789. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that appellee was convicted of four offenses, including wrongful distribution of LSD, all committed on divers occasions between on or about 2 May 1994 and on or about 2 Oct. 1996; a fifth offense was committed between on or about 1 May 1993 and on or about 2 Oct. 1996. Based on the pleas of guilty, we conclude that these offenses were committed, at least in part, after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence included total forfeitures, so Article 58b did not apply. "A statute does not violate ex post facto principles where it applies to a crime that ‘began prior to, but continued after’ the statute’s effective date." United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994); see generally United States v. Garfinkel, 29 F.3d 1253, 1259 (8th Cir. 1994). Thus, application of this Code provision did not violate the Ex Post Facto Clause. Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5023/AF. U.S. v. Cecil B. KEENEY. CCA S29294. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that five of the ten offenses of which appellee was convicted –- violations of Article 123a(1), UCMJ, 10 USC § 923a(1) –- were committed after the effective date of the amendment to Article 57(a) and the addition of Article 58b, UCMJ, 10 USC §§ 857(a) and 858b, respectively. Because the military justice system employs unitary sentencing where one sentence is imposed for all offenses before the court-martial and the maximum sentence for writing a bad check would support application of Article 58b on its own, see para. 49e(1)(b), Part IV, and RCM 1003(b)(5), Manual for Courts-Martial, United States (1995 ed.), enforcement of these Code provisions did not violate the Ex Post Facto Clause. See generally United States v. Brady, 26 F. 3d 282, 291 (2d Cir. 1994); United States v. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

No. 98-5027/AF. U.S. v. Greg H. MAXWELL. CCA 32747. On consideration of the certified issue which asks whether Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, operate in violation of the Ex Post Facto Clause of the Constitution with respect to appellee, where appellee committed at least one offense after the effective date of those statutes, we note that six of the eight offenses of which appellee was convicted –- including wrongful distribution of LSD –- were committed after the effective date of the amendment to Article 57(a), UCMJ, 10 USC § 857(a). The sentence included total forfeitures, so Article 58b did not apply. As to the remaining offenses, see United States v. Davis, No 98-5006, __MJ__ (Daily Journal Sept. 30, 1998), and United States v. Dahlen, No. 97-0939, __MJ__ (Daily Journal Sept. 29, 1998). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for issuance of an opinion in compliance with this order.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

    SULLIVAN, Judge (dissenting):

    I dissent. See United States v. Keeney, No. 97-0596, __ MJ __ (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part). I think this is a very important issue and it should not be decided without at least having oral argument. Moreover, I consider the majority’s adoption of the "unitary sentencing" answer to the complex question of a wide variety of Ex Post Facto applications is overly simplistic and flawed. Let’s have oral argument on these types of cases where one offense occurs after and one offense occurs before the date of the statute that we found unconstitutional in United States v. Gorski, 47 MJ 370 (1997).

There is also a problem in this case because this Court decides such important constitutional issues with only 4 judges. I commented on this problem in United States v. Roseboro, No. 98-0439, __ MJ __ (Daily Journal July 27, 1998)(Sullivan, J., dissenting).

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0356/AR. U.S. v. Juana L. SMITH. CCA 9601110. Review granted on the following supplemental issue:

WHETHER THE APPLICATION OF ARTICLE 57(a)(1), UCMJ, 10 USC § 867(a)(1), VIOLATES THE EX POST FACTO CLAUSE OF THE UNITED STATES CONSTITUTION WITH RESPECT TO APPELLANT.     Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0641/AR. U.S. v. Alvin W. CARR. CCA 9600939. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 98-0923/AR. U.S. v. Casey V. SINGLETON. CCA 9601353. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 98-5012/AF. U.S. v. John B. SWIFT. CCA 32447. Cross-petition granted on the following issue [see also APPEALS – SUMMARY DISPOSITION this date]:

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS STATEMENTS THE APPELLANT MADE TO HIS FIRST SERGEANT AFTER HAVING BEEN SUBJECTED TO REPEATED AND PERSISTENT QUESTIONING BY HIS FIRST SERGEANT WITHOUT HAVING BEEN FIRST ADVISED OF HIS RIGHTS UNDER ARTICLE 31, UCMJ.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 97-0242/AR. U.S. v. Thomas HAVERS, II. CCA 9500015.

No. 98-0242/NA. U.S. v. Jeffrey A. BAKER. CCA 94-1066.

    SULLIVAN, Judge (dissenting):

    I would grant the following issue:

WHETHER APPELLANT’S CONVICTION FOR CONSENSUAL SODOMY WITH HIS WIFE VIOLATES HIS CONSTITUTIONAL RIGHT TO PRIVACY. No. 98-0382/MC. U.S. v. Damien D. SAMPLE. CCA 97-1219.

No. 98-0694/AF. U.S. v. Alicia F. ROBINSON. CCA S29476.

No. 98-0727/AF. U.S. v. Jessica BRONSON-SANDS. CCA S29398.

No. 98-0878/MC. U.S. v. Derek A. ACKLEY. CCA 97-0239.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-1138/AR. U.S. v. Jacob T. MALONE. CCA 9700981.

No. 98-1139/NA. U.S. v. Robert S. HARDIN. CCA 9700313.

No. 98-1140/MC. U.S. v. Curtis A. TAYLOR. CCA 97-0508.

No. 98-1141/MC. U.S. v. Randale B. WILLIAMS. CCA 97-1276.

No. 98-1142/AF. U.S. v. Tammy L. KENNEDY-AXSOM. CCA 32821.

No. 98-1143/AF. U.S. v. Dennis P. WORSHAM. CCA 32615.

INTERLOCUTORY ORDERS

No. 97-0963/AF. U.S. v. Charles E. HANLEY, III. CCA 32370. On further consideration of appellant’s petition for review, particularly Issue II, as set forth in the supplement to the
petition, */ it is ordered that defense counsel file with this Court within 30 days of the date of this Order an affidavit in which he explains why the pretrial confinement question now raised by appellant in Issue II was not raised at trial in the form of a request for sentence credit.

    Judge Effron did not participate in the Court’s prior action on this case. SeeUnited States v. Gorski, No. 97-0034, __ MJ __ (Daily Journal Sept. 8, 1997). In view of the disposition upon remand by the Court of Criminal Appeals and in view of the issues raised by the parties in the present proceeding, the case is now before the Court in a manner that does not require determination of the ex post facto issue that led to Judge Effron’s decision not to participate in the earlier proceedings. Accordingly, Judge Effron has participated in the decision on this petition and will participate in any further proceedings on this case.

No. 98-0015/AF. U.S. v. Jason S. ROLAND. CCA 32485. Appellee’s motion to file supplemental citation of authority granted.

No. 98-0266/AF. U.S. v. Rickie J. BELLANGER. CCA 32373. Appellant’s third motion to extend time to file final brief granted to October 30, 1998.

No. 98-0356/AR. U.S. v. Juana L. SMITH. CCA 9601110. Motion for leave to file notice of appearance filed by Lieutenant Colonel Odegard granted.

No. 98-0679/AR. U.S. v. Carlos V. DIAZ-DUPREY. CCA 9600181. Appellant’s motions to admit defense appellate exhibits J, K, and L and to substitute original of defense appellate exhibit L granted.

No. 98-0783/NA. U.S. v. Michael W. FRICKE. CCA 96-1293. Appellant’s motion to file out of time granted; appellant’s motion to extend time to file supplement to petition for grant of review granted to October 14, 1998.

No. 98-0901/MC. U.S. v. Eric A. RAMIREZ. CCA 96-2400. Appellant’s motion to file supplement to petition for grant of review out of time granted.

No. 98-0938/AR. U.S. v. Benjamin T. FIELD. CCA 9700785. Appellant’s motions to admit defense appellate exhibit A and to take judicial notice granted.

No. 98-0942/MC. U.S. v. Rafael A. RUIZ-GARCIA. CCA 97-0630. Appellant’s motion to attach documents granted; appellee’s motion to extend time to file answer to supplement to petition for grant of review granted to October 28, 1998.

No. 98-0979/AF. U.S. v. Terry R. JOUETT. CCA 32618. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to November 9, 1998.

No. 98-1013/AR. U.S. v. Stephen F. MESSNER. CCA 9600694. Appellee’s motion to file index granted.

    Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, __MJ__ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-1051/AR. U.S. v. Jacob P. SWEENEY. CCA 9600447. To October 28, 1998.

No. 98-1061/AF. U.S. v. Gregory L. ROBBINS. CCA 32613. To November 2, 1998.

    In each of the above two cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to the date indicated.

____________

*/ "Whether appellant’s trial defense counsel was ineffective for failing to request administrative credit for the 24 days appellant was subject to restriction to his dormitory room because such restriction was tantamount to confinement."

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