UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-60
JANUARY 4, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0945/AR. U.S. v. Paul J. BRADEN. CCA 9701059.

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

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

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

No. 98-1051/AR. U.S. v. Jacob P. SWEENEY. CCA 9600447.

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

No. 98-1145/AR. U.S. v. Orci L. RAMOS. CCA 9701476.

No. 99-0016/AF. U.S. v. James A. SHAW. CCA 32623.

No. 99-0017/AF. U.S. v. Alonzo A. SWANN. CCA S29524.

No. 99-0031/MC. U.S. v. Daniel P. O'ROURKE. CCA 97-2070.

No. 99-0034/MC. U.S. v. Timothy R. MOBLEY. CCA 97-1059.

No. 99-0066/MC. U.S. v. Randy J. HOLLIBAUGH. CCA 97-1360.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0256/AR. U.S. v. Michael R. ARMSTRONG. CCA 9601966.

No. 99-0257/MC. U.S. v. Charles M. HECKMAN. CCA 98-1342.

No. 99-0258/NA. U.S. v. Brian A. WALSH. CCA 97-2144.

No. 99-0259/AF. U.S. v. Christopher N. WHEATLEY. CCA 33263.

No. 99-0260/AF. U.S. v. Timothy D. SAPP. CCA 32641.

No. 99-0261/AF. U.S. v. Michael J. HARTIG. CCA 32460.

No. 99-0262/AF. U.S. v. Floretta EDWARDS. CCA 33192.

No. 99-0263/AF. U.S. v. Keith A. DONALDSON. CCA S29446.

No. 99-0264/AF. U.S. v. Jayson L. CARTER. CCA 33182.

No. 99-0265/AF. U.S. v. Mary K. FOUSHEE. CCA 32858.

INTERLOCUTORY ORDERS

No. 97-0286/AR. U.S. v. Stuart W. SMITH. CCA 9500065. Appellant’s motion to correct errata granted.

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

No. 98-0389/AR. U.S. v. James O. WRIGHT. CCA 9601769.

No. 98-0440/AR. U.S. v. John H.I. WARNER. CCA 9601510.

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

No. 98-0752/AR. U.S. v. John M. McCLAIN, Jr.. CCA 9501831. Appellant’s third motion to extend time to file final brief granted to January 30, 1999.

No. 99-0103/AR. U.S. v. Eduardo V. BUTLER. CCA 9501566. To Feb. 4, 1999.

No. 99-0120/AF. U.S. v. Shonnon D. WILSON. CCA 32849. To Feb. 5, 1999.

    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 date indicated.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-61
JANUARY 5, 1999

APPEALS - SUMMARY DISPOSITIONS

No. 98-5025/AF. U.S. v. Bruce A. BELFLOWER. CCA 32612. 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, where appellee committed at least one offense after the effective date of the statute, we note that one of the five offenses of which appellee was convicted – attempted sodomy on a female under age 16 – occurred sometime between on or about 1 March 1996 and on or about 1 July 1996. Based on the plea of guilty, we conclude that the offense was committed after the effective date of the addition of Article 58b. */ 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 this offense would support application of Article 58b on its own, see para. 51e(2), 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, it is ordered that the certified issue is answered in the negative; that page 2 (beginning with the 5th sentence ("In its . . .")) of the opinion below upon reconsideration and the last full paragraph (pages 8-9) ("The second. . . ") of the opinion dated 20 January 1998, are stricken therefrom; and that this Court retains jurisdiction over the case to dispose of the granted issue in light of the decisions of the court below as amended.

    SULLIVAN, Judge (dissenting):

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

    Judge Effron did not participate in this decision of the certified issue. See United States v. Gorski, 48 MJ 317 (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. On consideration of the certified issue which asks whether Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), operates in violation of the Ex Post Facto Clause of the Constitution, where appellee committed at least one offense after the effective date of the statute, we note that one of the three offenses of which appellee was convicted – taking indecent liberties with a female under age 16 – was 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 this offense would support application of Article 57(a)(l) on its own, see para. 87e, 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, it is ordered that the certified issue is answered in the negative; that the penultimate paragraph ("Appellant’s ex post facto. . ."), unpub. op.at 3, is stricken from the opinion below; and that this Court retains jurisdiction over the case to dispose of the granted issue in light of the decision of the court below as amended.

    SULLIVAN, Judge (dissenting):

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

    Judge Effron did not participate in this decision of the certified issue. See United States v. Gorski, 48 MJ 317 (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. 99-0266/AR. U.S. v. Keith J. SIMS. CCA 9701712.

No. 99-0267/AR. U.S. v. Corry M. RODRIGUEZ. CCA 9800751.

No. 99-0268/AR. U.S. v. James A. LENESKI. CCA 9601341.

No. 99-0269/MC. U.S. v. Bradley L. MASON. CCA 97-1324.

No. 99-0270/MC. U.S. v. Barry W. EASON. CCA 98-0082.

No. 99-0271/MC. U.S. v. Jerrimaine C. RAMSEY. CCA 98-0007.

No. 99-0272/NA. U.S. v. Russell M.C. LOZADA. CCA 98-0838.

No. 99-0273/MC. U.S. v. Daniel J. JUNGBLUTH. CCA 97-0951.

INTERLOCUTORY ORDERS

No. 96-0507/MC. U.S. v. William S. MCLAUGHLIN, III. CCA 94-2095. Appellee’s motion to file out of time brief on behalf of appellee granted.

No. 98-0037/MC. U.S. v. Kevin M. HOLT. CCA 94-2003. Appellant’s motion to extend time to file final brief granted to February 3, 1999.

No. 98-0646/AR. U.S. v. John A. WEISBECK. CCA 9502215. Appellant’s motion to attach documents denied.

No. 98-0769/MC. U.S. v. Terrance L. SPANN. CCA 96-1420. Appellant’s third motion to extend time to file final brief granted to January 18, 1999.

No. 98-5012/AF. U.S. v. John B. SWIFT. CCA 32447. Cross-appellant’s motion to extend time to file final brief granted to January 11, 1999.

No. 99-0130/NA. U.S. v. Ralph E. AQUINO. CCA 98-0392. Appellee’s motion to extend time to file answer to supplement to petition for grant of review granted to January 29, 1999.

No. 99-0193/AF. U.S. v. Thomas M. CULLUM. CCA S29508.

No. 99-0196/AF. U.S. v. Eric J. WOLANIN. CCA 32845.

    In each of above two cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to February 3, 1999.

_____________

*/ Application of Article 57(a) was deferred until the date of the convening authority’s action. See Action dated 7 March 1997. Thus, Article 57(a) is not in issue.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-62
JANUARY 6, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-1012/AR. U.S. v. Marcius J. JONES. CCA 9601952.

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

No. 98-1144/AR. U.S. v. Fidel AYALA, Jr. CCA 9701268.

No. 99-0015/AF. U.S. v. Charles H. LEWIS, Jr. CCA 32728.

No. 99-0018/AR. U.S. v. Timothy R. HARPER. CCA 9700237.

No. 99-0019/AR. U.S. v. David M. WAITE. CCA 9701017.

No. 99-0046/AR. U.S. v. James M. FRIELDS. CCA 9701999.

No. 99-0050/AF. U.S. v. John J. TOOMEY, Jr. CCA 33009.

No. 99-0056/AR. U.S. v. John J. DUNNE. CCA 9701860.

No. 99-0058/AR. U.S. v. Jose CEPEDA, Jr. CCA 9701759.

No. 99-0064/MC. U.S. v. Marcus C. MCNAMARA. CCA 97-2171.

No. 99-0070/AR. U.S. v. Kevin J. LARSON. CCA 9800244.

No. 99-0076/NA. U.S. v. Shaun M. MALLEY. CCA 98-0028.

No. 99-0078/AF. U.S. v. Kristian N. NIEVA. CCA 33113.

No. 99-0081/AF. U.S. v. Christian A. WRENN. CCA 33066.

No. 99-0082/AF. U.S. v. Garry J. WINS. CCA 33189.

No. 99-0088/NA. U.S. v. Billy J. STEELE. CCA 98-0798.

No. 99-0089/NA. U.S. v. Jermane WALTER. CCA 97-0596.

No. 99-0093/AF. U.S. v. Samuel E. CULL, II. CCA 32835.

No. 99-0095/AF. U.S. v. Alvatar D. JOHNSON. CCA 33092.

No. 99-0096/MC. U.S. v. Carlos GONZALEZ. CCA 98-0827.

No. 99-0097/MC. U.S. v. Albert E. FRANCIS, Jr. CCA 98-0840.

No. 99-0110/MC. U.S. v. Kenneth J. LUEDICKE. CCA 98-0995.

No. 99-0116/AF. U.S. v. Roderick T. GRIFFIN. CCA S29553.

No. 99-0117/AF. U.S. v. David F. STRUNK. CCA 33216.

No. 99-0140/AF. U.S. v. Harold C. ALVIS. CCA 33319.

RETURN OF RECORD FROM COURT OF CRIMINAL APPEALS

No. 97-0363/AR. U.S. v. Eunice PIPKIN. CCA 9600192. Notice is hereby given that the record was returned to the Clerk’s Office in accordance with the earlier decision of this Court, 48 MJ 42 (l997), and has been referred to the Court on the Petition Docket for further consideration.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0274/AR. U.S. v. Christopher L. CAIN. CCA 9601810.

No. 99-0275/AF. U.S. v. Juan P. BARRIOS. CCA 33382.

No. 99-0276/AF. U.S. v. Kirk M. WALTERS. CCA 33254.

PETITION FOR RECONSIDERATION DENIED

No. 97-0939/AF. U.S. v. Michael S. DAHLEN. CCA 32441. Request for Reconsideration in Part of Order dated September 29, 1998 denied.

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, 48 MJ 317 (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. 96-1157/AR. U.S. v. Joseph K. AVERY, Jr. CCA 9500062. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to February 4, 1999.

No. 98-0822/AR. U.S. v. Grady D. GLOVER. CCA 9600736. Appellant’s second motion to extend time to file final brief granted to February 4, 1999.

No. 98-5030/AR. U.S. v. Timothy B. GIBSON. CCA 9600274. Appellant’s motion to reschedule oral argument granted.

No. 99-0048/AF. U.S. v. Jack D. FAUS. CCA 32873. Appellant’s motion to withdraw issue presented in supplement to petition for grant of review and file a supplement without issues granted.

MANDATES ISSUED

No. 97-0413/AR. U.S. v. Mark P. ARIAIL. CCA 9501908.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-63
JANUARY 7, 1999

APPEALS - SUMMARY DISPOSITIONS

No. 98-0514/AR. U.S. v. Calvin MCCRARY. CCA 9601483. 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, we note that the specification of Charge I alleged a conspiracy to commit "larceny of approximately $3,472.00, U.S. currency, military property, the property of the United States, . . ." When the military judge instructed the members on the elements of this offense, he failed to instruct the members that a necessary element of the offense encompassed by the conspiracy was that "the property was military property." (R. at 378-379). This was error. Presuming that the members followed the instructions as given, their finding of guilty can reflect no more than a finding that appellant conspired to steal "approximately $3,472.00, U.S. currency, the property of the United States, . . ."

Further, the maximum punishment for conspiracy to commit larceny and larceny of military*/ property based on the military judge’s instructions and the resultant findings would include 15 years’ confinement, rather than the 20 years’ confinement as instructed by the military judge. Paras. 5e and 46e(1)(c) & (d), Part IV, Manual for Courts-Martial, United States (1995 ed.). However, we are convinced that had the members been instructed on the correct maximum sentence based upon the findings as rendered pursuant to the military judge’s instructions, the sentence would not have been affected. "[W]e are highly confident" that the military nature of the property in the conspiracy charge "played no appreciable role in the adjudication of the accused’s punishment." United States v. Thompson, 22 USCMA 88, 91, 46 CMR 88, 91 (1972).

On additional 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 appears that appellant falls into the category of persons affected by that decision. Accordingly, it is ordered that the Petition for Grant of Review is granted; that the specification of Charge I is amended by striking the words "military property"; that the decision of the United States Army Court of Criminal Appeals as to Charge I and its specification as amended, and Charge II and its specification is affirmed; and that the decision below as to sentence 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 amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made 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. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    Sullivan, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Judge Effron did not participate in this decision. See United States v. Gorski, 48 MJ 317 (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).

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0514/AF. U.S. v. Calvin MCCRARY. CCA 9601483. [ See also APPEALS – SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0277/AR. U.S. v. William GREEN. CCA 9800407.

No. 99-0278/NA. U.S. v. Mario R. BERNAL. CCA 98-0384.

No. 99-0279/MC. U.S. v. Brian A. MINCH. CCA 98-0664.

INTERLOCUTORY ORDERS

No. 98-0200/NA. U.S. v. Joey VILLAREAL. CCA 96-1234. Appellee’s motion to cite supplemental authority granted.

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

No. 98-0595/AR. U.S. v. Jonathan E. SIDWELL. CCA 9601596.

    In each of above two cases, appellee’s motion to correct errata granted.

No. 98-0581/MC. U.S. v. Mary Julia E. HAAGENSON. CCA 96-1296. Appellant’s motion to cite supplemental authority granted.

No. 98-0829/NA. U.S. v. Eric L. JOHNSTON. CCA 94-1274. Appellee’s motion to extend time to file final answer granted, but only up to and including February 1, 1999.

No. 99-0199/AF. U.S. v. Johnathan W. DOKES. CCA S29396. Appellant’s motion to extend time to file supplement to petition for grant of review granted to February 3, 1999.

No. 99-0203/MC. U.S. v. Rodney A. CLARK. CCA 98-1132. Appellant’s motion to file supplement to petition for grant of review out of time granted.

No. 99-0204/MC. U.S. v. Daniel R. BATES. CCA 98-0674. Appellant’s motion to file supplement to petition for grant of review out of time granted.

No. 99-0205/AR. U.S. v. Tyrell L. PLAIR. CCA 9800671. Appellant’s motion to extend time to file supplement to petition for grant of review granted to February 8, 1999.

No. 99-0232/AR. U.S. v. Robert W. MARTIN. CCA 9600413. Appellant’s motion to extend time to file supplement to petition for grant of review granted to February 19, 1999.

______________________

*/ The instructions on this larceny offense were complete.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-64
JANUARY 8, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0280/AR. U.S. v. Christopher AYO. CCA 9701981.

INTERLOCUTORY ORDERS

No. 98-0704/AF. U.S. v. Jon A. COOPER. CCA 32388. Appellant’s motion to file supplement citationof authority granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-65
JANUARY 11, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0281/AR. U.S. v. Kadix E. FRANCO. CCA 9602043.

No. 99-0282/AR. U.S. v. Eric S. WALKER. CCA 9701758.

No. 99-0283/AF. U.S. v. George K. KOLBINSKI. CCA S29361.

INTERLOCUTORY ORDERS

No. 97-0506/AR. U.S. v. John A. ROBINSON. CCA 9301094. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to February 5, 1999.

No. 98-0388/AR. U.S. v. Derek C. ARMON. CCA 9601892. Appellee’s motion to file supplemental citation of authority granted.

No. 98-0758/NA. U.S. v. Sarah F. THOMASSON. CCA 96-0938. Appellant’s motion to file final brief out of time granted.

No. 98-0975/MC. U.S. v. Wesley S. GRIMM. CCA 97-1691. Appellant’s motion to extend time to file final brief granted to February 19, 1999.

No. 98-1089/AR. U.S. v. Sean G. GRIGORUK. CCA 9600949. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to February 8, 1999.

No. 98-5032/NA. U.S. v. Robert L. FINSTER. CCA 97-1882. Motion filed by United States Air Force Appellate Government Division to present oral argument as amicus curiae granted for 10 minutes.

No. 99-0202/NA. U.S. v. Robert L. WILSON. CCA 9800379. To Feb. 8, 1999.

No. 99-0213/MC. U.S. v. Randolph R. MARTINEZ. CCA 97-2037. To Jan. 19, 1999.

No. 99-0223/NA. U.S. v. Anthony D. MOISANT. CCA 96-2086. To Feb. 16, 1999.

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


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-66
JANUARY 12, 1999

RULES ADVISORY COMMITTEE ORDER

Pursuant to Rule 45 of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, the following persons whose terms were to expire on September 30, 1998 are hereby reappointed to the Rules Advisory Committee for a term expiring on September 30, 2001:

Colonel William S. Fulton, Jr., JAGC, USA (Ret.)

Prof. Steven H. Goldblatt, Chairman

Kenneth S. Geller, Esq.

Dwight H. Sullivan, Esq.

The following members, whose terms expire on the dates indicated below, remain on the Rules Advisory Committee:
To expire September 30, 1999:
Mark J. Biros, Esq.

Prof. Mary M. Cheh

Paul J. Larkin, Jr., Esq.

To expire September 30, 2000:
Hon. Joseph H. Baum

John F. DePue, Esq.

Captain Carol J. Cooper, JAGC, USN

Colonel James A. Young, USAF, is hereby appointed to replace Colonel C. Charles Pearson, USAF, who has retired and is no longer able to serve on this Committee; his term will expire on September 30, 1999. Joseph A. Neurauter, Esquire, Clerk of the United States Army Court of Criminal Appeals, is hereby appointed to the Rules Advisory Committee for a term expiring on September 30, 2000.

Thomas F. Granahan, Clerk of the Court, is ex officio a member of the Committee and serves as its Reporter.

The Court expresses its deep appreciation to Colonel Pearson for his outstanding service as a member of the Rules Advisory Committee.

HEARINGS

No. 98-0200/NA. U.S. v. Joey VILLAREAL. CCA 96-1234.

No. 98-0210/AR. U.S. v. Thomas G. BARRON. CCA 9501189.

No. 98-0388/AR. U.S. v. Derek C. ARMON. CCA 9601892.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0284/MC. U.S. v. Richard N. KAUFMAN. CCA 98-1142.

No. 99-0285/MC. U.S. v. Andy N. MCCOY. CCA 98-1144.

No. 99-0286/AR. U.S. v. Marcus T. GOLSTON. CCA 9600326.

INTERLOCUTORY ORDERS

No. 98-0498/MC. U.S. v. Rae J. FOX. CCA 96-0361. Motion filed by Captain Curtis M. Allen to appear pro hac vice granted.

No. 98-1075/AR. U.S. v. Anthony G. GRIFFIN. CCA 9601913. Appellant’s motion to extend time to file final brief granted to February 22, 1999.

No. 99-0094/AF. U.S. v. David R. HENLEY, Sr. CCA 32551. Third motion granted.

No. 99-0128/AF. U.S. v. Anthony L. MATHIS. CCA 32657. Second motion granted.

No. 99-0211/AF. U.S. v. Marc D. SOREY. CCA 32756. To Feb. 8, 1999.

No. 99-0212/AF. U.S. v. Myra A. MAY. CCA S29371. To Feb. 8, 1999.

No. 99-0216/AR. U.S. v. Kenneth J. JONES. CCA 9800829. To Feb. 11, 1999.

No. 99-0217/AR. U.S. v. Hugh A.C. ANDERSON. CCA 9601102. To Feb. 11, 1999.

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

MANDATES ISSUES

No. 96-1268/AF. U.S. v. Christian N. DAVIS. CCA 9300176.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-67
JANUARY 13, 1999

HEARINGS

No. 98-0335/NA. U.S. v. Julian W. LEWIS, Jr.. CCA 96-0807.

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

No. 98-0595/AR. U.S. v. Jonathan E. SIDWELL. CCA 9601596.

PETITION FOR GRANT OF REVIEW DENIED

No. 99-0014/AF. U.S. v. Antwan L. GARRETT. CCA S29439.

No. 99-0037/AF. U.S. v. Tracy L. REYNOLDS. CCA 33287.

No. 99-0038/AF. U.S. v. Stirling C. OWENS. CCA S29540.

No. 99-0077/AF. U.S. v. Daniel J. HOGAN. CCA 32442.

No. 99-0084/AR. U.S. v. Christopher D. ELIE. CCA 9702036.

No. 99-0086/AF. U.S. v. Wayne M. MESHELL. CCA 33137.

No. 99-0104/AR. U.S. v. Robert J. REILLY. CCA 9701756.

No. 99-0108/NA. U.S. v. Rick A. FISH. CCA 98-0169.

No. 99-0112/MC. U.S. v. Jason C. HOYT. CCA 98-0908.

No. 99-0122/AF. U.S. v. Brandon N. ASHCRAFT. CCA S29460.

No. 99-0127/AF. U.S. v. David W. COUSINS. CCA S29493.

No. 99-0137/AF. U.S. v. Christopher M. MASON. CCA S29566.

No. 99-0138/AF. U.S. v. Marcus T. LANIER. CCA S29573.

No. 99-0145/NA. U.S. v. Christoper D. MITCHELL. CCA 98-0646.

No. 99-0146/MC. U.S. v. Harrison L. BURTON. CCA 98-0826.

No. 99-0147/MC. U.S. v. Michael A. GONZALES. CCA 97-1285.

No. 99-0148/AF. U.S. v. Larry R. GRIFFIN, II. CCA S29583.

No. 99-0149/AF. U.S. v. Rosemary K. TUCKER. CCA S29578.

No. 99-0182/AR. U.S. v. Copelen P. BRADLEY, III. CCA 9800527.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0287/AR. U.S. v. Benjamin I. BALL. CCA 9701401.

No. 99-0288/AF. U.S. v. Ryan A. SMITH. CCA S29464.

No. 99-0289/AF. U.S. v. Glenn A. ABLES, II. CCA 32842.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-68
JANUARY 14, 1999

HEARINGS

No. 98-0581/MC. U.S. v. Mary Julia E. HAAGENSON. CCA 96-1296.

No. 98-0617/AR. U.S. v. Thomas D. MORRISON. CCA 9600461.

No. 98-0704/AF. U.S. v. Jon A. COOPER. CCA 32388.

No. 98-0888/MC. U.S. v. Michael E. REIST. CCA 97-1294.

APPEALS - SUMMARY DISPOSITIONS

No. 97-1163/MC. U.S. v. Harold D. YOST, Jr. CCA 96-1068. On further consideration of the granted issue (48 MJ 453), in light of United States v. Arriaga, 49 MJ 9 (1998), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

No. 98-0174/AF. U.S. v. Albert M. BROUILLETTE. CCA 32527. On consideration of the petition for grant of review of the decision of the United States Air Force 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, the petition is granted and the decision of the United States Air Force Court of Criminal Appeals on further review is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    Judge Effron did not participate in the Court’s prior action on this decision. See 49 MJ 153 (1998). 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 of this petition and will participate in any further proceedings on this case.

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0174/AF. U.S. v. Albert M. BROUILLETTE. CCA 32527. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0530/AR. U.S. v. Steven C. TURNER. CCA 9600603.

No. 98-0846/AR. U.S. v. Juan W. BUCK. CCA 9600177.

No. 98-0939/AR. U.S. v. Scott A. SPANGLER. CCA 9700489.

No. 98-1017/NA. U.S. v. Anthony L. HOWARD. CCA 97-0392.

No. 98-1030/AF. U.S. v. David G. BRADFORD. CCA 32511.

No. 98-1056/AR. U.S. v. Keegan J. KELLY. CCA 9600832.

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

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

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

No. 99-0051/AR. U.S. v. Wayne B. SCHEURER. CCA 9701559.

No. 99-0085/AF. U.S. v. Fredrick W. KNAAK, III. CCA 33159.

No. 99-0102/AF. U.S. v. Frank E. LAPCHESKE. CCA 33229.

No. 99-0105/AR. U.S. v. Brian D. MCCOY. CCA 9800297.

No. 99-0113/AF. U.S. v. David C. CROMER, Jr. CCA 33253.

No. 99-0114/AF. U.S. v. Brian D. CRAWLEY. CCA S29420.

No. 99-0118/MC. U.S. v. Randy A. ALFORD. CCA 98-0792.

No. 99-0121/AF. U.S. v. Scott M. TURNICK. CCA 33123.

No. 99-0123/AF. U.S. v. Eddie M. ALEX. CCA 33108.

No. 99-0132/NA. U.S. v. Jose A. CASES LORENTE. CCA 98-0362.

No. 99-0135/MC. U.S. v. Chad L. YERKEY. CCA 97-1065.

No. 99-0141/AF. U.S. v. Jamal K. BRANTLEY. CCA 32984.

No. 99-0150/AF. U.S. v. Antonio H. JAMES. CCA S29515.

No. 99-0151/AF. U.S. v. Stephanie J. WILLIAMS. CCA 33305.

No. 99-0157/AF. U.S. v. Maureen A. WILLIFORD. CCA 33344.

No. 99-0167/AR. U.S. v. Willie J. MCCLUE, Jr. CCA 9800666.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0290/AR. U.S. v. Markeith D. CARROLL. CCA 9800554.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 99-8011/AR. Billy W. BRANSFORD, appellant, v. United States, appellee. CCA 9402076. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, which this Court construes as a writ appeal petition from a denial of a petition for extraordinary relief in the nature of a writ of habeas corpus, it is ordered that said writ appeal petition is denied. [See also MISCELLANEOUS DOCKET – FILINGS this date.]

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 99-8011/AR. Billy W. BRANSFORD, appellant, v. United States, appellee. CCA 9402076. [See also MISCELLANEOUS DOCKET – SUMMARY DISPOSITIONS this date.]

No. 99-8012/AF. Keno K. ARMSTRONG, appellant, v. United States, appellee. CCA 99-01. Writ appeal petition for review of the United States Air Force Court of Criminal Appeals denial of a petition for extraordinary relief filed under Rule 27(b).

PETITIONS FOR RECONSIDERATION DENIED

No. 99-8005/AR. U.S. v. David M. MELANSON. CCA 9801349.

Appellant’s motion to file petition for reconsideration out of time granted; said petition for reconsideration denied.

No. 99-8010/AR. U.S. v. Robert L. PAYNE. Documents and correspondence received from petitioner construed by the Court as a petition for reconsideration and denied.

INTERLOCUTORY ORDERS

No. 98-0702/NA. U.S. v. Allan L. TURNER. CCA 95-0904. Appellant’s motion to file petition for reconsideration out of time denied.

No. 98-0133/AF. U.S. v. Jerry W. OWENS. CCA 32468. Appellant’s motion to file supplemental citation of authority granted.

No. 98-0783/NA. U.S. v. Michael W. FRICKE. CCA 96-1293. Appellant’s motion to admit appellate exhibits 1 through 12 is denied as to exhibits 1, 2, 3, 11 and 12 and granted as to the remaining exhibits.

No. 98-0971/AR. U.S. v. Moses LOVER, Jr. CCA 9500726. Fifth motion to Jan. 29, 1999.

No. 99-0224/AR. U.S. v. Hector RODRIGUEZ. CCA 9700189. To Feb. 16, 1999.

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


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-69
JANUARY 15, 1999

APPEALS - SUMMARY DISPOSITIONS

No. 97-0755/NA. U.S. v. Benito D. GONZALES. CCA 95-0066. On further consideration of the granted issue, ___ MJ ___ (Daily Journal July 22, 1997), in light of Willengbring v. Neurauter, 48 MJ 152, 180 (1998), we hold that appellant’s prosecution was not barred by the statute of limitations. See Arts. 43 and 120, Uniform Code of Military Justice, 10 USC §§ 843 and 920. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0681/NA. U.S. v. Tyrone L. WELLS. CCA 96-1349. Review granted on the following issues:

I. WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE MILITARY JUDGE'S ERROR IN FAILING TO INSTRUCT THE MEMBERS ON THE LESSER-INCLUDED OFFENSE OF MANSLAUGHTER WAS HARMLESS, EVEN THOUGH IT FOUND THAT THE FACTS REASONABLY RAISED THE POSSIBILITY THAT APPELLANT ACTED IN THE HEAT OF PASSION.

II. WHETHER THE LOWER COURT ABUSED ITS DISCRETION AND DENIED APPELLANT THE FAIR AND IMPARTIAL REVIEW OF THE RECORD GUARANTEED BY ARTICLE 66(c), UCMJ, WHEN IT RELIED UPON CLEARLY ERRONEOUS FINDINGS OF FACT IN MAKING ITS DETERMINATION THAT THE EVIDENCE WAS LEGALLY AND FACTUALLY SUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION OF PREMEDITATED MURDER.

No. 98-0952/AF. U.S. v. Billy LEE, Jr. CCA 32794. Review granted on the following issue:
WHETHER APPELLANT WAS DENIED EFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT WHEN HIS DEFENSE COUNSEL ESSENTIALLY CONCEDED DURING CLEMENCY THAT HIS CLIENT SHOULD RECEIVE A BAD-CONDUCT DISCHARGE.
No. 98-1001/MC. U.S. v. David W. MAGNAN. CCA 97-2071. Review granted on the following issue raised by appellate defense counsel: WHETHER THE STAFF JUDGE ADVOCATE ERRED BY FAILING TO NOTE IN HIS RECOMMENDATION TO THE CONVENING AUTHORITY THAT THE MILITARY JUDGE STRONGLY RECOMMENDED THAT THE CONVENING AUTHORITY SUSPEND APPELLANT'S BAD-CONDUCT DISCHARGE, WHICH IN TURN CAUSED THE CONVENING AUTHORITY TO ERRONEOUSLY APPROVE THE SENTENCE WITHOUT BEING FULLY INFORMED OF ALL CLEMENCY MATTERS. And the following issue specified by the Court: WHETHER DEFENSE COUNSEL RENDERED INEFFECTIVE POST-TRIAL REPRESENTATION OF APPELLANT WHEN HE 1) STATED IN HIS RCM 1106(f)(4) RESPONSE THAT HE HAD NO "COMMENTS OR CORRECTIONS TO SUBMIT" TO THE STAFF JUDGE ADVOCATE'S RECOMMENDATION RATHER THAN CORRECTING THE STAFF JUDGE ADVOCATE'S INCORRECT STATEMENT THEREIN THAT THERE WAS NO CLEMENCY RECOMMENDATION FROM THE MILITARY JUDGE; AND 2) FAILED TO SUBMIT ANY CLEMENCY MATTERS FOR THE CONVENING AUTHORITY'S CONSIDERATION UNDER RCM 1105. No. 99-0129/AF. U.S. v. Ross A. MCFADYEN. CCA 32878. Review granted on the following issue specified by the Court:
 
WHETHER THE PRETRIAL AGREEMENT PURPORTING TO REQUIRE APPELLANT TO WAIVE HIS RIGHT TO CHALLENGE HIS PRETRIAL TREATMENT IN VIOLATION OF ARTICLE 13 AS A CONDITION TO A PRETRIAL AGREEMENT VIOLATES PUBLIC POLICY. See United States v. Forester, 48 MJ 1 (1998); United States v. Rivera, 46 MJ 52 (1997). See also United States v. Combs, 47 MJ 330 (1997).
PETITIONS FOR GRANT OF REVIEW DENIED

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

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

No. 99-0006/AR. U.S. v. Paul L. HICKMAN. CCA 9701158.

No. 99-0010/MC. U.S. v. Stephen L. WADDLE. CCA 97-1561.

No. 99-0013/AF. U.S. v. Paul G. EBNER. CCA 32721.

No. 99-0054/NA. U.S. v. Terry J. JACKSON. CCA 98-0129.

No. 99-0074/MC. U.S. v. Thomas E. DUNCAN. CCA 98-0331.

No. 99-0090/AR. U.S. v. Charles M. FLORES. CCA 9700363.

No. 99-0098/MC. U.S. v. Adin H. GODOYQUINONEZ. CCA 97-1029.

No. 99-0099/NA. U.S. v. Shawn L. RULE. CCA 97-0774.

No. 99-0100/NA. U.S. v. Jason D. BRADSHAW. CCA 98-0165.

No. 99-0126/AF. U.S. v. Beau T. BUGALA. CCA 33122.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0291/AR. U.S. v. Jermaine O. GOODE. CCA 9800525.

No. 99-0292/MC. U.S. v. Michael S. STOFFER. CCA 97-1326.

No. 99-0293/NA. U.S. v. Freddie L. CALVIN. CCA 97-0401.

No. 99-0294/MC. U.S. v. Enrique MARTINEZ. CCA 98-0203.

INTERLOCUTORY ORDERS

No. 99-0136/AR. U.S. v. Robert L. WILLIAMS, III. CCA 9800549. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to February 1, 1999.

No. 99-0139/AF. U.S. v. Paul E. KILLMAN. CCA 32703. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to February 12, 1999.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-70
JANUARY 19, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0295/AR. U.S. v. Eugene A. WARD. CCA 9700341.

No. 99-0296/AR. U.S. v. Robert M. MINA. CCA 9800294.

No. 99-0297/MC. U.S. v. Michael T. WISE. CCA 97-2175.

No. 99-0298/MC. U.S. v. William H. SPRINGSTEEN, IV. CCA 97-1879.

No. 99-0299/NA. U.S. v. Terrence A. SCHAFFER. CCA 98-0304.

No. 99-0300/MC. U.S. v. Gehiser A. NAJERA. CCA 98-0155.

INTERLOCUTORY ORDERS

No. 99-0255/AR. U.S. v. Jason L. RODRIGUEZ. CCA 9602022. Appellant’s motion to file petition for grant of review out of time granted.

No. 96-1268/AR. U.S. v. Christian N. DAVIS. CCA 9300176. On further consideration it is ordered that the mandate issued on January 12, 1999 is vacated.

No. 99-0295/AR. U.S. v. Eugene A. Ward. CCA 9700341. On further consideration of the petition for grant of review, it is noted that appellant did not sign his petition for grant of review. This circumstance raises a question as to the intention of appellant in this matter. Accordingly, it is ordered that appellate defense counsel be appointed to represent appellant and that appellant either advise the Court in writing, on or before the 5th day of February, 1999, that he wishes to petition for grant of review, or if he does not wish to pursue his appeal, that he wishes to withdraw said petition. In the latter event, appellate defense counsel shall file a motion in accordance with Rule 30 of this Court’s Rules.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-71
JANUARY 20, 1999

RULES CHANGE ORDER

Upon careful consideration of certain proposed changes to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, which were presented to and reviewed by the Rules Advisory Committee of the United States Court of Appeals for the Armed Forces and thereafter published in the Federal Register for comment, it is ordered that effective February 1, 1999, Rules 9(c), 12(b), 21(b), 24(a),(c), and (d), 31(d), and 37 are amended and new Rule 35A is promulgated as provided in the Attachment to this order.

ATTACHMENT TO COURT ORDER OF 20 JANUARY 1999

PROMULGATION OF NEW RULE 35A AND CHANGES TO RULES 9(c), 12(b),

21(b), 24(a), (c) and (d), 31(d), and 37

RULES OF PRACTICE AND PROCEDURE

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

EFFECTIVE FEBRUARY 1, 1999

RULE 9. CLERK

* * * * * * * *

(c) Custodian of records.

[Change "Rule 24(d)" to "Rule 35A"]

RULE 12. CASES INVOLVING CLASSIFIED INFORMATION

* * * * * * * *

(b) Classified documents.

[Change "Rule 24(d)" to "Rule 35A"]

RULE 21. SUPPLEMENT TO PETITION FOR GRANT OF REVIEW

* * * * * * * *

(b) The supplement to the petition shall be filed in accordance with the applicable time limit set forth in Rule 19(a)(5)(A) or (B), shall include an Appendix required by Rule 24(a), shall conform to the provisions of Rules 24(b), 35A, and 37, and shall contain:

* * * * * * * *

RULE 24. FORM, CONTENT AND PAGE LIMITATIONS

(a) Form and content. All briefs shall conform to the printing, copying, and style requirements of Rule 37, shall be legible, and shall be substantially as follows:

* * * * * * * *

[Delete subsection "(c) Style"]

[Delete subsection "(d) Classified Information"]

RULE 31. PETITION FOR RECONSIDERATION

* * * * * * * *

(d) A petition for reconsideration shall be granted with the concurrence of a majority of the judges who participated in the original decision.

* * * * * * * *

RULE 35A. USE OF CLASSIFIED INFORMATION

Classified information shall be included in documents filed with the Court only when necessary to a proper consideration of the issues involved. The original or one complete copy of a document containing the classified information shall be filed with the Court. The party filing such document shall give written notice to the Clerk and to all other parties prior to the time of such filing that such document contains classified information. In addition, there shall be filed in accordance with Rule 37(b)(2) an original and seven copies of each such document from which the classified information has been deleted or omitted in such manner that the pages which contain the deleted or omitted classified information are clearly identified.

RULE 37. PRINTING, COPYING AND STYLE REQUIREMENTS

(a) Printing. Except for records of trial and as otherwise provided by Rule 27(a)(4), all pleadings or other papers relative to a case shall be typewritten and double-spaced, printed on one side only on white unglazed paper, 8.5 by 11 inches in size, securely fastened in the top left corner. With the exception of footnotes which may appear in 11 point type, all printed matter must appear in non-proportional typeface using 12 point type and with no more than ten characters per inch. Margins shall not exceed 6.5 by 9.5 inches, with double-spacing between each line of text. Headings, footnotes and block quotations may be

single-spaced, but should not be used excessively to avoid page limit requirements.

(b) Copying.

(1) Copies of typewritten pleadings and papers may include those produced by any process capable of producing a clearly legible black image on white paper, but shall not include ordinary carbon copies. If papers are filed in any other form, the Clerk shall require the substitution of new copies, but such substitution will not affect the filing date of the papers or pleadings involved. See Rule 36.

(2) An original and seven legible copies of all

pleadings or other papers relative to a case shall be filed. See Rule 35A concerning documents which contain classified information.

(c) Style. (1) All pleadings presented to the Court shall, unless they are less than 5 pages in length, be preceded by a subject index of the matter contained therein, with page references, and a table of cases (alphabetically arranged with citations), textbooks and statutes cited, with references to the pages where cited.

(2) Citations shall conform with the Uniform System of Citation.

(3) All references to the record of trial shall include page numbers or exhibit designations, as appropriate.

(4) No pleading or other paper filed with the Court shall incorporate by reference any material from any other source.

RULES ADVISORY COMMITTEE COMMENT ON NEW RULE 35A AND REVISIONS TO RULES 9(c), 12(b), 21(b), 24(a), (c) and (d), 31(d), and 37

1. Printing, Copying and Style Requirements. The purpose of the change in title and restructured text of Rule 37 is to consolidate in one rule the related requirements of printing, copying, and style which apply to all pleadings and other papers filed with the Court. The new requirements for print size parallel similar provisions used by other courts of appeals. These provisions standardize the type and print options which must be used when filing pleadings and other papers with the Court. Minor conforming amendments have been made to change existing titles of Rules 24 and 37 and to provide a reference in Rule 21(b) to revised Rule 37. A new reference has been added to Rule 24(a) to alert a practitioner to the consolidated provisions of Rule 37.

2. Use of Classified Information. The purpose of moving subsection (d) ("Classified Information") from Rule 24 to new Rule 35A ("Use of Classified Information") is to place this unique rule provision in a separate rule and locate it in a section of the Court’s Rules of Practice and Procedure to which it more logically relates, namely, "PRACTICE BEFORE THE COURT." The substance of this rule remains unchanged. Minor conforming amendments have been made to change the title of Rule 24 and to change the references to the former Rule 24(d) in Rules 9(c), 12(b), and 21(b).

3. Petition for Reconsideration. The purpose of this amendment to Rule 31(d) is to make it clear that reconsideration may only be granted if a majority of those judges who participated in the original decision vote to grant reconsideration. For this purpose, all judges who voted, including those who dissented or concurred, shall be deemed to have participated in the original decision.

APPEALS - SUMMARY DISPOSITIONS

No. 98-0043/MC. U.S. v. Jose L. SUAREZ. CCA 97-0646. 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, the petition for grant of review is granted and 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.]

No. 98-0098/AF. U.S. v. Martha A. LAWSON. CCA 32303. On consideration of the petition for grant of review of the decision of the United States Air Force 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, the petition for grant of review is granted and the decision of the United States Air Force Court of Criminal Appeals on further review is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0043/MC. U.S. v. Jose L. SUAREZ. CCA 97-0646. [See also APPEALS – SUMMARY DISPOSITION this date.]

No. 98-0098/AF. U.S. v. Martha A. LAWSON. CCA 32303. [See also APPEALS – SUMMARY DISPOSITION this date.]

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0119/AF. U.S. v. Ryan J. WOOD. CCA S29462.

No. 99-0142/AF. U.S. v. Robert P. CHAMBERS. CCA 33245.

No. 99-0164/AF. U.S. v. Christopher L. BELLECY. CCA 33221.

No. 99-0221/AR. U.S. v. Mark A. WARD. CCA 9800214.

No. 99-0225/AR. U.S. v. Michael STALLWORTH. CCA 9800713.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0301/NA. U.S. v. Jerry D. MOOLICK. CCA 97-0521.

No. 99-0302/MC. U.S. v. Elijah S. BROOKS. CCA 98-1249.

No. 99-0303/AF. U.S. v. Paul H. MURRAY. CCA 32670.

No. 99-0304/AF. U.S. v. Kenneth L. JONES. CCA 33405.

PETITIONS FOR RECONSIDERATION DENIED

No. 96-1268/AR. U.S. v. Christian N. DAVIS. CCA 9300176. Petition filed both by appellate defense counsel and by appellant personally denied.

INTERLOCUTORY ORDERS

No. 64926/AR. U.S. v. James T. MURPHY. CCA 8702873. Appellant’s motion to extend time to file answer to motion to withdraw as appellate defense counsel granted to January 25, 1999.

No. 98-0855/AR. U.S. v. David R. FORD. CCA 9601467. Appellant’s motion to extend time to file final brief granted to February 16, 1999.

No. 98-0947/AR. U.S. v. Jason L. ROCK. CCA 9700192. Appellee’s motion to extend time to file answer to final brief granted to March 8, 1999.

No. 98-1076/NA. U.S. v. Mark E. GRIGGS. CCA 97-0553. Appellant’s motion to extend time to file final brief granted but only up to and including February 8, 1999.

No. 99-0228/MC. U.S. v. Izaak C.J. VELEZ. CCA 97-1868. Appellant’s motion to extend time to file supplement to petition for grant of review granted to February 16, 1999.

No. 99-0247/AR. U.S. v. Dennis L. BOYD. CCA 9600953. Appellant’s motion to extend time to file supplement to petition for grant of review granted to February 26, 1999.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-72
JANUARY 21, 1999

APPEALS – SUMMARY DISPOSITIONS

No. 96-0875/AF. U.S. v. Victoria A. CATALANI. CCA S29021. On consideration of the petition for grant of review of the decision of the United States Air Force 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, the petition for grant of review is granted and the decision of the United States Air Force Court of Criminal Appeals on further review is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 97-0680/AF. U.S. v. Pedro DE LA CRUZ. CCA 32203. On further consideration of the issue specified by the Court (48 MJ 20), we are satisfied that the instruction given by the military judge on the operation of Articles 57(a) and 58b, Uniform Code of Military Justice, 10 USC §§ 857(a) and 858b, respectively, did not cause appellant to suffer substantial harm. See Art. 59(a), UCMJ, 10 USC § 859(a). On further consideration of the granted issue in light of United States v. Gorski, 47 MJ 370 (1997), 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 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).

    Judge Effron did not participate in this decision. See United States v. Gorski, 48 MJ 317 (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. 98-0005/NA. U.S. v. Robert L. BROWN. CCA 97-0183. 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, the petition for grant of review is granted and 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.]

No. 98-0035/AF. U.S. v. Trevoi L. CRUMP, Sr. CCA S29315. On consideration of the petition for grant of review of the decision of the United States Air Force 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, the petition for grant of review is granted and the decision of the United States Air Force Court of Criminal Appeals on further review is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    Judge Effron did not participate in the Court’s prior action on this case. See ____ MJ ____. 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 of this petition and will participate in any further proceedings of this case.

No. 98-5015/AF. U.S. v. Darrell J. EVANS. CCA 32626. 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 four offenses of which appellee was convicted was larceny in excess of $100 between 9 July 1994 and 30 April 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) and the addition of Article 58b. "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). 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 larceny in excess of $100 would support application of Articles 57(a)(1) and 58b on its own, see para. 46e(1)(d), 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). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply, so the certified issue is answered in the negative.

On consideration of the cross-petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we find no basis for further review. Accordingly, said cross-petition is denied; the opinion below dated 9 December 1997 is amended by striking (a) all references to the ex post facto claim in the second paragraph on page 1, and (b) the entirety of the two paragraphs under the heading "Ex Post Facto" on page 3; and in all other respects 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, 48 MJ 317 (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 the case to the United States Air Force Court of Criminal Appeals. See my separate opinions in United States v. Roseboro, No. 98-0439,     MJ     (Daily Journal July 27, 1998) [See Court Home Page under Interlocutory Orders]; United States v. Kenney, No. 97-0596,     MJ     (Daily Journal April 15, 1998); and United States v. Gorski, 47 MJ 370, 376 (1997)(concurring in the result.)

No. 98-5019/AF. U.S. v. Brian T. MUDERY. CCA 32704. 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 six offenses of which appellee was convicted -- solicitation to commit an indecent act -- was committed after the effective date of the amendment to Article 57(a) and the addition of Article 58b. 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 solicitation to commit an indecent act would support application of Articles 57(a)(1) and 58b on its own, see paras. 105e and 90e, Part IV, Manual for Courts-Martial, United States (1995 ed.), enforcement of those 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), so the certified issue is answered in the negative. Accordingly, it is ordered that the opinion below dated 28 January 1998 is amended by striking (a) all references to the ex post facto claim in the first paragraph, and (b) the entirety of the last paragraph on page 2 ("Appellant . . . required."); and that in all other respects 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, 48 MJ 317 (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 the case to the United States Air Force Court of Criminal Appeals. See my separate opinions in United States v. Roseboro, No. 98-0439,     MJ     (Daily Journal July 27, 1998) [See Court Home Page under Interlocutory Orders]; United States v. Kenney, No. 97-0596,     MJ     (Daily Journal April 15, 1998); and United States v. Gorski, 47 MJ 370, 376 (1997)(concurring in the result.)

No. 98-5024/AF. U.S. v. Jason F. NELSON. CCA 32593. 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 five offenses of which appellee was convicted was dishonorable failure to pay a just debt from on or about 20 January to on or about 10 July 1996. The sentence included total forfeitures, so Article 58b did not apply. 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). "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). 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 Statesv. Garfinkel, 29 F. 3d 1253, 1259 (8th Cir. 1994). Therefore, United States v. Gorski, 47 MJ 370 (1997), does not apply, so the certified issue is answered in the negative.

On consideration of the cross-petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we find no basis for further review. Accordingly, it is ordered that said cross-petition is denied; that the opinion below dated 5 February 1998 is amended by striking (a) all references to the ex post facto claim in the first paragraph, and (b) the entirety of the fifth paragraph ("Finally . . . required."); and that in all other respects 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, 48 MJ 317 (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 the case to the United States Air Force Court of Criminal Appeals. See my separate opinions in United States v. Roseboro, No. 98-0439,     MJ     (Daily Journal July 27, 1998) [See Court Home Page under Interlocutory Orders]; United States v. Kenney, No. 97-0596,     MJ     (Daily Journal April 15, 1998); and United States v. Gorski, 47 MJ 370, 376 (1997)(concurring in the result.)

ORDERS GRANTING PETITION FOR REVIEW

No. 96-0875/AF. U.S. v. Victoria A. CATALANI. CCA S29021. */

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

No. 98-0035/AF. U.S. v. Trevoi L. CRUMP, Sr. CCA S29315. */

No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 96-0822. Review granted on the following issue raised by appellate defense counsel:

WHETHER THE OFFICER EXERCISING GENERAL COURT-MARTIAL JURISDICTION OVER APPELLANT ERRED IN VACATING THE SUSPENDED PORTIONS OF APPELLANT'S SENTENCE. And the following issue specified by the Court: WHETHER THE USE OF POLYGRAPH EVIDENCE DURING AN ARTICLE 72 VACATION OF SUSPENSION PROCEEDING IS PROHIBITED BY MIL.R.EVID. 707 AND UNITED STATES V. SCHEFFER, 118 S.Ct. 1261 (1998). No. 98-0795/NA. U.S. v. Craig D. BROWNFIELD.CCA 93-1483. Review granted on the following issues: I. WHETHER THE LOWER COURT ERRED IN FINDING THAT APPELLANT WAS NOT DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL DEFENSE COUNSEL WAS DEFICIENT IN FAILING TO TAKE ALL NECESSARY STEPS TO OBTAIN AN INTERVIEW WITH A KEY ALIBI WITNESS AND TO ENSURE HIS PRESENCE AT TRIAL.

II. WHETHER THE LOWER COURT ERRED IN FINDING THAT APPELLANT WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN THE POST-TRIAL REVIEW OF HIS CASE WHERE TRIAL DEFNESE COUNSEL FAILED TO ASSIST APPELLANT IN PREPARING AND SUBMITTING CLEMENCY MATTERS.

III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING APPELLANT'S MOTION FOR A CONTINUANCE IN ORDER TO SECURE THE PRESENCE OF A KEY ALIBI WITNESS.

No. 98-0914/AR. U.S. v. Monty J. HARRIS. CCA 9401997. Review granted on the following issues: I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO DECLARE A MISTRIAL AFTER THE GOVERNMENT IMPROPERLY ELICITED INADMISSIBLE CREDIBILITY TESTIMONY AND UNCHARGED MISCONDUCT EVIDENCE FROM A CRITICAL PROSECUTION WITNESS.

II. WHETHER THE CUMULATIVE EFFECT OF ERRORS DURING APPELLANT'S COURT-MARTIAL DENIED APPELLANT A FAIR TRIAL.

No. 98-1002/MC. U.S. v. Kevin BIRGE. CCA 97-0430. Review granted on the following issue: WHETHER THE LOWER COURT ERRED WHEN IT FOUND THAT APPELLANT HAD WAIVED AN ARTICLE 10, UNIFORM CODE OF MILITARY JUSTICE, VIOLATION WHERE HE FAILED TO RAISE THE ISSUE AT TRIAL AND PLEADED GUILTY.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-5015/AF. U.S. v. Darrell J. EVANS. CCA 32626. **/

No. 98-5024/AF. U.S. v. Jason F. NELSON. CCA 32593. **/

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0305/MC. U.S. v. Michael H. EDWARDS. CCA 98-0514.

No. 99-0306/MC. U.S. v. James D. GUTHRIE. CCA 95-1697.

INTERLOCUTORY ORDERS

No. 99-0227/NA. U.S. v. Eric K. THORNTON. CCA 98-1210. Appellant’s motion to extend time to file supplement to petition for grant of review out of time granted.

No. 99-0241/MC. U.S. v. Beau PETERSON. CCA 96-1792. To Feb. 20, 1999.

No. 99-0242/MC. U.S. v. Wayne E. BURTON. CCA 98-0805. To Feb.1, 1999.

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

MANDATES ISSUED

No. 96-1268/AR. U.S. v. Christian N. DAVIS. CCA 9300176.

_________________

*/ See also APPEALS – SUMMARY DISPOSITIONS this date.

**/ See also APPEALS – SUMMARY DISPOSITIONS this date.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-73
JANUARY 22, 1999

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0658/NA. U.S. v. Darrell J. MUIRHEAD. CCA 96-1211. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ADMITTED HEARSAY AS SUBSTANTIVE EVIDENCE.

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT'S MOTION TO SUPPRESS STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31, UNIFORM CODE OF MILITARY JUSTICE.

III. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE DID NOT EXCLUDE AN EXPERT'S TESTIMONY THAT THE INJURY TO THE CHILD WAS THE RESULT OF CHILD ABUSE.

No. 98-0873/MC. U.S. v. Bryan R. WRIGHT. CCA 97-0662. Review granted on the following issues: I. DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY NOT RECUSING HIMSELF WHERE HE HAD PREVIOUSLY DEVELOPED A CLOSE WORKING RELATIONSHIP WITH A KEY GOVERNMENT WITNESS AND ALREADY FORMED AN OPINION AS TO THAT WITNESS'S HONESTY AND TRUTHFULNESS.

II. DID THE MILITARY JUDGE ERR IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE SEIZED DURING AN IMPROPER SEARCH OF APPELLANT'S ROOM.

III. DID THE MILITARY JUDGE ERR IN DENYING APPELLANT'S MOTION TO SUPPRESS HIS STATEMENT TO NCIS UNDER THE "FRUIT OF THE POISONOUS TREE" DOCTRINE, WHERE THE STATEMENT WAS THE DIRECT RESULT OF AN IMPROPER SEARCH OF APPELLANT'S ROOM.

No. 98-1039/NA. U.S. v. Kevin M. ROBERTS. CCA 97-0767. Review granted on the following issue:
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING EVIDENCE OF A PRIOR POSITIVE URINALYSIS.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0840/AF. U.S. v. William C. MILLER, Jr. CCA 32720.

No. 98-0874/AF. U.S. v. Gary D. CUNDIFF. CCA 32817.

No. 98-0918/AF. U.S. v. John T. BAUER. CCA 32561.

No. 98-0927/AF. U.S. v. Richard A. NIGHTINGALE. CCA 32658.

No. 98-0965/AF. U.S. v. Brian H. GRONDIN. CCA 32902.

No. 98-0982/AF. U.S. v. Shawn C. ZUK. CCA 32872.

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

    SULLIVAN, Judge (dissenting):

    I would remand this case to the United States Air Force Court of Criminal Appeals. See United States v. Keeney, No. 97-0596/AF,     MJ     (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998); and United States v. Roseboro, No. 98-0439,     MJ     (Daily Journal July 27, 1998)(Sullivan, J., dissenting) [See Court Home Page Under Interlocutory Orders].

    Judge Effron did not participate in any of these six decisions. See United States v. Gorski, 48 MJ 317 (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).

MISCELLANEOUS DOCKET – FILINGS

No. 99-8014/AF. Matthew M. OLSON, appellant v. United States, appellee. CCA 98-09. Writ appeal petition for review of the United States Air Force Court of Criminal Appeals denial of a petition for extraordinary relief filed under Rule 27(b).

No. 99-8015/AF. Donald BELL, petitioner, v. United States, respondent. Petition for extraordinary relief in the nature of a writ of error coram nobis filed under Rule 27(a).

INTERLOCUTORY ORDERS

No. 98-1013/AR. U.S. v. Stephen F. MESSNER. CCA 9600694. Appellee’s motion to admit government appellate exhibits A and B granted.

No. 98-1023/AR. U.S. v. Keith HENRY. CCA 9402015. Fifth motion granted but only up to and including to February 5, 1999.

No. 99-0101/AF. U.S. v. James S. COKER. CCA 32047. Second motion to February 3, 1999.

No. 99-0153/AR. U.S. v. Alfonzo W. MURRAY. CCA 9601163. Second motion to January 22, 1999.

No. 99-0161/AR. U.S. v. Peter J. QUICK. CCA 9500749. Second motion to February 10, 1999.

No. 99-0226/NA. U.S. v. Christopher T. BERRY. CCA 97-0964. To February 16, 1999.

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

No. 98-1050/NA. U.S. v. Daniel H. CARPENTER. CCA 97-2146. Appellee’s motion to extend time to file answer to final brief granted but only up to and including February 16, 1999; this case to be set for hearing on March 1999 calendar.

No. 98-1121/AF. U.S. v. Raul R. SALGADO, Jr. CCA 32549. Appellant’s motion to submit supplemental submission to petition for grant of review granted to the extent that it pertains to a brief prepared by appellant but denied to the extent it pertains to the attachments thereto.

No. 99-0052/NA. U.S. v. Dudley C. WILLIAMS. CCA 97-0227. Appellee’s motion to extend time to file answer to supplement to petition for grant of review granted to February 18, 1999.

No. 99-6001/AF. U.S. v. James J. EWING. CCA 98-06. Appellant’s motion to stay a court-martial denied.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-74
JANUARY 25, 1999

APPEALS - SUMMARY DISPOSITIONS

No. 98-0157/AF. U.S. v. Ronald J. RIDDICK. CCA 32652. On consideration of the petition for grant of review of the decision of the United States Air Force 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, the petition for grant of review is granted and the decision of the United States Air Force Court of Criminal Appeals on further review is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 98-0271/AF. U.S. v. Tony D. WHITTY. CCA 32665. On consideration of the petition for grant of review of the decision of the United States Air Force 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, the petition for grant of review is granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    Judge Effron did not participate in the Court’s prior action in either of the above two cases. See United States v. Gorski, 48 MJ 317 (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 proceedings, these cases are 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 disposition of each of these petitions and will participate in any further proceedings in these cases.

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0157/AF. U.S. v. Ronald J. RIDDICK. CCA 32652. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 98-0271/AF. U.S. v. Tony D. WHITTY. CCA 32665. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0951/AF. U.S. v. David J. LEWIS. CCA 32871.

    SULLIVAN, Judge (dissenting):

    I would remand this case to the United States Air Force Court of Criminal Appeals. See United States v. Keeney, No. 97-0596/AF,     MJ     (Daily Journal April 15, 1998)(Sullivan, J., concurring in part and dissenting in part) as amended (2 Sept. 1998); and United States v. Roseboro, No. 98-0439,     MJ     (Daily Journal July 27, 1998)(Sullivan, J., dissenting) [See Court Home Page Under Interlocutory Orders].

    Judge Effron did not participate in this decision. See United States v. Gorski, 48 MJ 317 (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. 99-0001/AF. U.S. v. Marshall T. LANE. CCA 32473.

No. 99-0107/AR. U.S. v. Ramona M. HOLLOWAY. CCA 9701720.

No. 99-0134/AR. U.S. v. Lawrence E. BATTLE, Jr. CCA 9701959.

No. 99-0155/AR. U.S. v. William R. ATKINSON, III. CCA 9701768.

No. 99-0162/AF. U.S. v. Robert W. LOUGHER. CCA 33347.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0307/AR. U.S. v. Robert L. MITCHELL. CCA 9601800.

No. 99-0308/AR. U.S. v. Allen W. SAUNDERS. CCA 9800744.

No. 99-0309/AR. U.S. v. Sherdell HOOD. CCA 9501547.

No. 99-0310/AR. U.S. v. Douglas K. OLIVER. CCA 9601776.

No. 99-0311/AR. U.S. v. Brant D. PFISTER. CCA 9600589.

No. 99-0312/NA. U.S. v. Theodore J. RUTHERFORD. CCA 97-2064.

No. 99-0313/NA. U.S. v. Allen B. PHILLIPS. CCA 97-1458.

No. 99-0314/MC. U.S. v. Milton D. STEELE. CCA 97-1236.

No. 99-0315/NA. U.S. v. Luis G. DIAZCOSME. CCA 97-1078.

No. 99-0316/MC. U.S. v. Joseph C. MITCHELL. CCA 97-1494.

No. 99-0317/MC. U.S. v. Brande L. WHITE. CCA 98-1438.

INTERLOCUTORY ORDERS

No. 98-0783/NA. U.S. v. Michael W. FRICKE. CCA 96-1293. Appellee’s motion to extend to file answer to supplement to petition for grant of review granted to February 11, 1999.

No. 99-0173/AF. U.S. v. Derrick L. WILLIAMS. CCA 33297. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to February 22, 1999.

No. 99-8012/AF. U.S. v. Keno K. ARMSTRONG. CCA 99-01. Appellant’s motions to submit document, to submit table of authorities and to submit corrected pages granted; appellee’s motion to submit document granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-75
JANUARY 26, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0008/NA. U.S. v. Herman D. CAMPBELL, Jr.. CCA 97-1675.

No. 99-0036/AF. U.S. v. James H. BOYETT, II. CCA S29526.

No. 99-0152/NA. U.S. v. Paul D. JONES. CCA 97-1979.

No. 99-0159/AF. U.S. v. Jason A. JAMES. CCA 33126.

No. 99-0189/NA. U.S. v. Robert D. NEAL. CCA 98-0991.

No. 99-0194/AF. U.S. v. Richard K. HOODMAN. CCA 33314.

No. 99-0195/AR. U.S. v. Kelly P. PENSEL. CCA 9800548.

No. 99-0198/AF. U.S. v. Brian T. BUTLER. CCA S29555.

No. 99-0204/MC. U.S. v. Daniel R. BATES. CCA 98-0674.

No. 99-0206/AR. U.S. v. Leonard J. MCCLARY. CCA 9702033.

No. 99-0209/MC. U.S. v. George A. ABELL. CCA 98-0942.

No. 99-0218/AF. U.S. v. Rayshawn A. JAMES. CCA S29580.

MISCELLANEOUS DOCKET - FILINGS

No. 99-8013/AF. Al W. YONSON, appellant, v. United States, appellee. CCA 99-02. Writ appeal petition for review of the United States Air Force Court of Criminal Appeals denial of a petition for extraordinary relief in the nature of a writ of prohibition and habeas corpus filed under Rule 27(a).


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-76
JANUARY 27, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0318/AF. U.S. v. David WRIGHT, III. CCA 32731.

INTERLOCUTORY ORDERS

No. 98-0489/NA. U.S. v. Anthony R. SHERMAN. CCA 96-0840. Appellee’s motion to insert page 14 into its brief granted.

No. 98-1111/AR. U.S. v. James W. HUFF, Jr. CCA 9600772. Fourth motion to January 29, 1999.

No. 99-0062/AR. U.S. v. Mark D. RUNYON. CCA 9700648. Third motion to February 4, 1999.

No. 99-0069/NA. U.S. v. Carlos L. GUZMAN. CCA 97-0293. Third motion to February 1, 1999.

No. 99-0170/NA. U.S. v. Vernon T. WILSON. CCA 96-2503. Second motion to February 22, 1999.

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

No. 98-1140/MC. U.S. v. Curtis A. TAYLOR. CCA 97-0508. Appellee’s motion to extend time to file answer to supplement to petition for grant of review granted to February 26, 1999.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-77
JANUARY 28, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0319/MC. U.S. v. Michael S. GUERRA. CCA 98-1254.

No. 99-0320/NA. U.S. v. Erich S. P. HARDY. CCA 97-2105.

No. 99-0321/NA. U.S. v. Scottie O. MURDAUGH. CCA 97-2082.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

No. 99-8013/AF. Al W. YONSON, appellant, v. United States, appellee. CCA 99-02. Appellant’s motion for stay of proceedings denied; appellant’s writ appeal petition denied without prejudice to appellant’s right to raise the issue during the court-martial if charges are referred to a court-martial and during normal appellate review if he is convicted.

INTERLOCUTORY ORDERS

No. 98-0811/AR. U.S. v. Ezell MCCALPINE, Jr. CCA 9701508. Appellant’s motion to admit appellate defense exhibits A through F granted, appellee's motion to file out of time granted; appellee’s motion to extend time to file answer to motion to admit defense appellate exhibits granted; appellant’s motion to extend time to file supplement to petition for new trial granted to February 10, 1999.

No. 99-0177/AR. U.S. v. Andrew K. LEAL. CCA 9701028. Appellant’s motion to admit defense appellate exhibit A granted.

No. 99-0248/MC. U.S. v. Shawn M. RILEY. CCA 97-0942.

No. 99-0249/NA. U.S. v. Ronald S. LEMISTER, Jr. CCA 98-0658.

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


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 99-78
JANUARY 29, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0308/AR. U.S. v. Paul D. PIERCE. CCA 9601171. */

No. 99-0322/AR. U.S. v. Jameel S. SHABAZZ. CCA 9801024.

No. 99-0323/AR. U.S. v. Isakai B. LAWSON. CCA 9700673.

No. 99-0324/AR. U.S. v. Shawn A. EVANS. CCA 9701727.

No. 99-0325/AR. U.S. v. Joshua R. SCHAFER. CCA 9800272.

No. 99-0326/NA. U.S. v. Scott R. GRAHAM. CCA 97-1993.

No. 99-0327/MC. U.S. v. Harold E. HENDERSON. CCA 98-0690.

No. 99-0328/MC. U.S. v. Malcolm O. JOHNSON. CCA 98-1259.

No. 99-0329/MC. U.S. v. Jamille R. STEPHENS. CCA 96-2243.

No. 99-0330/NA. U.S. v. Joseph S. DELASSO. CCA 98-0701.

No. 99-0331/MC. U.S. v. Michael D. WAITS. CCA 98-1427.

No. 99-0332/AF. U.S. v. Robert U. AGUILAR. CCA 32809.

No. 99-0333/AF. U.S. v. Marcus D. BLAIR. CCA 33115.

No. 99-0334/AF. U.S. v. Katrus GARNER. CCA 33155.

No. 99-0335/AF. U.S. v. Keith J. MANNING. CCA S29387.

No. 99-0336/AF. U.S. v. Askia M. MCFADDEN. CCA S29579.

No. 99-0337/AF. U.S. v. Eric R. MORROW. CCA 33142.

No. 99-0338/AF. U.S. v. Jose L. SOTO, III. CCA 33187.

__________________

*/ Second petition filed in same case.

Home Page