UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-142
Monday, May 03, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0594/MC. U.S. v. Tari N. DARDEN. CCA 97-1949.

No. 99-0595/AR. U.S. v. Timothy W. SHELTON. CCA 9600456.

No. 99-0596/AF. U.S. v. Eric E. WACHOWIAK. CCA 33397.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 99-8021/AR. James R. CABAN, petitioner, v. United States, respondent. Petition for extraordinary relief in the nature of a writ of habeas corpus filed under Rule 27(a).


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-143
Tuesday, May 04, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0357/NA. U.S. v. Leo O. DYER. CCA 97-0016.

No. 99-0396/AR. U.S. v. Ray C. RICHARDSON. CCA 9801130.

No. 99-0402/AR. U.S. v. Anthony D. WILLIAMS. CCA 9800731.

No. 99-0403/AR. U.S. v. Frederick L. HEATH. CCA 9800539.

No. 99-0416/AR. U.S. v. Rolando PENA. CCA 9701835.

No. 99-0432/AF. U.S. v. Michael J. COOK. CCA 33141.

No. 99-0435/AF. U.S. v. Michael G. PITSKO. CCA 32973.

No. 99-0436/AF. U.S. v. Ryan L. RORVIK. CCA S29595.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

Misc. No. 99-0528/AF. United States, v. Joel A. BRAND. CCA 32866. Appellant’s motion to withdraw from appellate review granted.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0597/AF. U.S. v. Mattson L. SMITH. CCA 33232.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 99-8022/AR. United States, appellee, v. Wayne FELTON, appellant. CCA 9900103. Writ appeal petition for review of the United States Army Court of Criminal Appeals denial of a petition for extraordinary relief filed under Rule 27(b).

INTERLOCUTORY ORDERS

No. 97-0506/AR. U.S. v. John A. ROBINSON. CCA 9301094. Appellant's sixth motion to extend time to file supplement to petition for grant of review denied; appellate defense counsel shall demonstrate good cause for the untimely filing of a supplement to the petition for grant of review on or before June 4, 1999.

No. 98-1001/MC. U.S. v. David W. MAGNAN. CCA 97-2071. Appellee's motion to attach granted.

No. 99-0311/AR. U.S. v. Brant D. PFISTER. CCA 9600589. Appellant's motion to admit defense appellate exhibits A through H granted.

No. 99-0367/MC. U.S. v. Craig J. SPERANZI. CCA 98-1588. Appellant's motion to file supplement to petition for grant of review out of time by one day granted.

No. 99-0369/AF. U.S. v. Jason E. HISE. CCA 32800. Appellant's motion to submit document granted.

No. 99-0377/MC. U.S. v. Nickolas J. WEBB. CCA 97-2153. Appellant's motion to attach and to submit supplemental pleadings denied.

No. 99-0495/AF. U.S. v. David D. BLANEY. CCA 32568. To May 28, 1999.

No. 99-0499/AF. U.S. v. Richard M. LATORRE, Jr. CCA 33262. To May 7, 1999.

No. 99-0507/AF. U.S. v. Walter J. GYNAC, Jr. CCA 33437. To June 1, 1999.

No. 99-0509/AF. U.S. v. Roy H. RUIZ. CCA S29457. To June 3, 1999.

No. 99-0516/NA. U.S. v. Roberto LAUDERBAUGH. CCA 96-2071. To June 4, 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.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-144
Wednesday, May 05, 1999

ORDERS GRANTING PETITION FOR REVIEW

No. 96-1157/AR. U.S. v. Joseph K. AVERY, Jr. CCA 9500062. Review granted on the following issue:

WHETHER APPELLANT WAS PREVENTED A MEANINGFUL OPPORTUNITY TO CROSS-EXAMINE THE CRITICAL WITNESS AGAINST HIM THEREBY DENYING HIS 6TH AMENDMENT RIGHT TO CONFRONT WITNESSES DUE TO THE GOVERNMENT'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE REQUESTED DURING DISCOVERY. No. 98-1131/AF. U.S. v. Donna M. NORFLEET. CCA S29280. Review granted on the following issues: I. WHETHER THE MILITARY JUDGE SHOULD HAVE RECUSED HIMSELF IN LIGHT OF THE INVOLVEMENT OF HIS SUPERIORS IN THE PRETRIAL PROCESSING OF APPELLANT'S CASE.

II. WHETHER, WITHOUT EXPLANATION, THE AIR FORCE PROVIDED LESS DUE PROCESS TO APPELLANT, AN ENLISTED MEMBER, THAN IT PROVIDED TO AN OFFICER IN A PREVIOUS COURT-MARTIAL IN THE SAME COMMAND.

III. WHETHER THE MILITARY JUDGE ERRED BY NOT REQUIRING THE GOVERNMENT TO SHOW THAT A STATED REASON FOR A PEREMPTORY CHALLENGE OF A FEMALE COURT MEMBER WAS NOT MERELY PRETEXTUAL.

No. 98-1140/MC. U.S. v. Curtis A. TAYLOR. CCA 97-0508. Review granted on the following issues: I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY REFUSING TO GRANT A MISTRIAL AFTER THE TRIAL OUNSEL BASED HIS OPENING STATEMENT ON INADMISSIBLE EVIDENCE.

II. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING, OVER DEFENSE OBJECTION, EVIDENCE OF UNCHARGED MISCONDUCT CONTAINED IN APPELLANT'S PRETRIAL STATEMENT TO THE NAVAL CRIMINAL INVESTIGATIVE SERVICE.

III. WHETHER PLAIN ERROR OCCURRED WHEN THE MILITARY JUDGE IMPROPERLY ADMITTED INHERENTLY INCONSISTENT STATEMENTS AS INCULPATORY HEARSAY AGAINST APPELLANT AT TRIAL WITHOUT AFFORDING HIM THE PROPER OPPORTUNITY TO CONFRONT THE WITNESS AS PROVIDED BY THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE.

No. 99-0052/NA. U.S. v. Dudley C. WILLIAMS. CCA 97-0227. Review granted on the following issue: WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR SOLICITATION (ADDITIONAL CHARGE IV) WHERE THE TESTIMONY OF THE GOVERNMENT'S SOLE WITNESS, A CO-CONSPIRATOR, WAS UNCORROBORATED AND INHERENTLY SUSPECT. No. 99-0300/MC. U.S. v. Gehiser A. NAJERA. CCA 98-0155. Review granted on the following issue: WHETHER THE LOWER COURT ERRED WHEN IT CONCLUDED THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE CHARGE OF DISRESPECT TO A COMMISSIONED OFFICER.
PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0598/AF. U.S. v. Aaron D. STORCH. CCA 33463.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 99-8020/AF. United States, appellee, v. Nicholas G. MORGAN, III, appellant. CCA. 99-03. Writ appeal petition denied without prejudice to appellant’s right to raise the issue asserted in the petition during the course of normal appellate review if he is convicted; appellant’s motion for stay of proceedings pending disposition of writ appeal petition denied as moot.

Misc. No. 99-8021/AR. James R. CABAN, petitioner, v. United States, respondent. Petition for extraordinary relief in the nature of writ of habeas corpus denied.

INTERLOCUTORY ORDERS

No. 95-0342/AF. U.S. v. Daniel L. BARTLEY. CCA 30605. To June 2, 1999.

No. 99-0412/MC. U.S. v. Eli P. HESTERLY. CCA 97-1948. Second motion to June 7, 1999.

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

No. 98-0999/AR. U.S. v. Roger D. EVERSOLE. CCA 9600466. Second motion to June 4, 1999.

No. 98-1118/NA. U.S. v. Michael CARDREON. CCA 97-0015. To June 4, 1999.

No. 98-1129/AF. U.S. v. Troy D. HUGHES. CCA 32359. To May 7, 1999.

No. 99-0069/NA. U.S. v. Carlos L. GUZMAN. CCA 97-0293. To May 21, 1999.

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

No. 99-0242/MC. U.S. v. Wayne E. BURTON. CCA 98-0805. Motion filed by LCDR Rebecca L. Gilchrist to withdraw as appellate counsel granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-145
Thursday, May 06, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0226/NA. U.S. v. Christopher T. BERRY. CCA 97-0964.

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

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

No. 99-0422/MC. U.S. v. Dale E. TALLEY, II. CCA 98-1772.

No. 99-0423/AR. U.S. v. Liam D. FERNS. CCA 9801494.

No. 99-0433/AF. U.S. v. Robert C. JONES, Jr. CCA S29544.

No. 99-0467/AF. U.S. v. Richard D. TARRH, Jr. CCA 33036.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 99-0526/MC. United States, v. Nathan E. LEWIS. CCA 96-0355. Appellant’s motion to withdraw petition for grant of review granted.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0599/AR. U.S. v. Dawud SHABAZZ. CCA 9701485.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 99-8023/NA. United States, appellee, v. Samuel A. MOYER, appellant. CCA 96-1421. Writ appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief filed under Rule 27(b).

INTERLOCUTORY ORDERS

No. 98-0658/NA. U.S. v. Darrell J. MUIRHEAD. CCA 96-1211. Appellee’s motion to cite supplemental authority granted.

No. 98-0946/AR. U.S. v. Charles G. KNIGHT. CCA 9700322. Appellee’s motion to file answer to final brief out of time granted.

No. 98-0987/AR. U.S. v. Charlie SCOTT. CCA 9502201. Appellee's motion to file and admit government appellate exhibits I and II granted; appellee’s motion to file and admit government appellate exhibit III granted; appellant's motions to file and to admit defense appellate exhibit C granted; appellant’s motion to file supplemental citations of authority granted; appellee’s motion to vacate granted issues denied.

No. 98-1001/MC. U.S. v. David W. MAGNAN. CCA 97-2071. Appellant's motion to extend time to file reply granted to May 10, 1999.

No. 98-1002/MC. U.S. v. Kevin BIRGE. CCA 97-0430. Appellee's motion to cite supplemental authorities granted.

No. 98-1061/AF. U.S. v. Gregory L. ROBBINS. CCA 32613. Appellee's motion to file supplemental citation of authority granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-146
Friday, May 07, 1999

CERTIFICATES FOR REVIEW FILED

No. 99-5003/NA. United States, appellee, v. Derreck D. BYRD, Jr., appellant. CCA 95-0907. The Judge Advocate General of Navy requests that action be taken with respect to the following issue:

WHETHER PROPER EXECUTION OF APPELLANT’S PUNITIVE DISCHARGE IN ACCORDANCE WITH ARTICLE 71(c), UCMJ MADE APPELLANT’S CASE FINAL UNDER ARTICLE 76, UCMJ AND TERMINATED MILITARY APPELLATE COURT JURISDICTION OVER THE CASE.
PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0600/AR. U.S. v. William J. YOUNG. CCA 9701154.

No. 99-0601/AF. U.S. v. Roland J. BLOOM. CCA 33269.

No. 99-0602/AF. U.S. v. Peter W. JACKSON. CCA 33338.

No. 99-0603/AF. U.S. v. Darryl M. JOHNSON. CCA 33398.

No. 99-0604/AF. U.S. v. Chris D. LITTLEWOOD. CCA 32763.

INTERLOCUTORY ORDERS

No. 97-0047/AR. U.S. v. Andrew G. AULL. CCA 9402074. Appellee's motion to file answer to final brief out of time granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-147
Monday, May 10, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0605/AR. U.S. v. Ovando C. HALL. CCA 9701495.

No. 99-0606/AR. U.S. v. Kevin M. RAIFORD. CCA 9701162.

No. 99-0607/AF. U.S. v. David L. BELL. CCA 33468.

No. 99-0608/AR. U.S. v. Thomas R. BEASLEY. CCA 9801345.

No. 99-0609/AF. U.S. v. Darrell D. KEGERIS. CCA 33307.

No. 99-0610/AF. U.S. v. Jeffrey W. THOMAS. CCA S29637.

INTERLOCUTORY ORDERS

No. 97-0149/AR. U.S. v. Christopher W. CAMPBELL. CCA 9400527. Appellee's motion for additional time to determine whether to petition for reconsidertion granted to May 17, 1999.

No. 98-0679/AR. U.S. v. Carlos V. DIAZ-DUPREY. CCA 9600181. Appellee's motion to extend time to file answer to final brief denied as moot.

No. 98-0795/NA. U.S. v. Craig D. BROWNFIELD. CCA 93-1483.

No. 98-0914/AR. U.S. v. Monty J. HARRIS. CCA 9401997.

    In each of the above two cases, appellant's motion to cite supplemental authority granted.

No. 98-1061/AF. U.S. v. Gregory L. ROBBINS. CCA 32613. Appellee's motion for correction to supplemental citation of authority granted.

No. 98-1109/AR. U.S. v. Jason E. NELSON. CCA 9601144. Appellee's motion to file answer to final brief out of time granted.

No. 99-0410/NA. U.S. v. Jody C. COMER. CCA 98-0730. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 99-0520/NA. U.S. v. Daniel R. KANAGIE. CCA 98-0247. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 7, 1999.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-148
Tuesday, May 11, 1999

HEARINGS

No. 97-0432/AR. U.S. v. Tereasa M. HICKS. CCA 9502205.

No. 98-0658/NA. U.S. v. Darrell J. MUIRHEAD. CCA 96-1211.

No. 98-0873/MC. U.S. v. Bryan R. WRIGHT. CCA 97-0662.

No. 98-0914/AR. U.S. v. Monty J. HARRIS. CCA 9401997.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0611/AR. U.S. v. Stevenson ALEXANDRE. CCA 9800986.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 99-8023/NA. United States, appellee, v. Samuel A. MOYER, appellant. CCA 96-1421. Writ appeal petition for review of a denial of a petition for extraordinary relief denied.

INTERLOCUTORY ORDERS

No. 96-0669/NA. U.S. v. Charles W. JOHNSON. CCA 94-1674. To June 14, 1999.

No. 99-0527/AF. U.S. v. Ann M. KUNDINGER. CCA 32954. To May 14, 1999.

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

No. 98-1109/AR. U.S. v. Jason E. NELSON. CCA 9601144. Appellee's motion to admit government appellate exhibit A granted.

No. 99-0313/NA. U.S. v. Allen B. PHILLIPS. CCA 97-1458. Appellant's motion to extend time to file final brief denied as moot.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-149
Wednesday, May 12, 1999

HEARINGS

No. 98-0795/NA. U.S. v. Craig D. BROWNFIELD. CCA 93-1483.

No. 98-0847/AR. U.S. v. Martez L. HENDERSON. CCA 9501435.

No. 98-0987/AR. U.S. v. Charlie SCOTT. CCA 9502201.

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

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0612/AF. U.S. v. Milton N. BUNCHE. CCA S29600.

No. 99-0613/AF. U.S. v. John E. RAY. CCA 32994.

No. 99-0614/AF. U.S. v. Michael A. SMITH. CCA 32683.

No. 99-0615/NA. U.S. v. David M. CLARK. CCA 98-0604.

No. 99-0616/NA. U.S. v. Thomas E. SALES. CCA 98-0901.

No. 99-0617/MC. U.S. v. Richard L. VIGIL. CCA 98-0831.

INTERLOCUTORY ORDERS

No. 98-0437/AR. U.S. v. David HIRALDO. CCA 9701543. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 98-0656/AR. U.S. v. Patrick B. ROLLE. CCA 9601336. Appellant's motion to extend time to file final brief granted to June 14, 1999.

No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 96-0822. Appellee's motion to extend time file an answer to final brief granted but only up to and including May 17, 1999.

No. 98-1076/NA. U.S. v. Mark E. GRIGGS. CCA 97-0553. Appellant's motion to cite supplemental authority granted.

No. 99-0306/MC. U.S. v. James D. GUTHRIE. CCA 95-1697. Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to June 10, 1999.

No. 99-0515/AR. U.S. v. Bradford M. GOSNEY. CCA 9700653. Appellant's motion to extend time to file supplement to petition for grant of review granted to June 7, 1999.

No. 99-5001/MC. U.S. v. Ronnie A. CURTIS. CCA 87-3856. Appellee's motion to cite supplemental authority granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-150
Thursday, May 13, 1999

HEARINGS

No. 98-0037/MC. U.S. v. Kevin M. HOLT. CCA 94-2003.

No. 98-0497/NA. U.S. v. Charles W. DAVIS. CCA 96-0585.

No. 98-1002/MC. U.S. v. Kevin BIRGE. CCA 97-0430.

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

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0160/NA. U.S. v. Luis R. GALLEGOS. CCA 89-3843.

No. 99-0173/AF. U.S. v. Derrick L. WILLIAMS. CCA 33297.

No. 99-0174/AF. U.S. v. John R. DIPIERNO. CCA 32693.

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

No. 99-0212/AF. U.S. v. Myra A. MAY. CCA S29371.

No. 99-0223/NA. U.S. v. Anthony D. MOISANT. CCA 96-2086.

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

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

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

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

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

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

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

No. 99-0350/AR. U.S. v. Carlos E. MORALES. CCA 9801032.

No. 99-0380/AF. U.S. v. Matthew S. BECK. CCA 33069.

No. 99-0387/AR. U.S. v. Marcella L. ZIMMERMAN. CCA 9601900.

No. 99-0388/AR. U.S. v. Samuel C. MENDENHALL. CCA 9800094.

No. 99-0456/AR. U.S. v. William J. PARKER. CCA 9800701.

No. 99-0462/MC. U.S. v. Patrick S. ODONAHUE. CCA 98-1636.

No. 99-0466/MC. U.S. v. Kevin D. PRIMES. CCA 97-1284.

No. 99-0469/AF. U.S. v. Joshua L. SLYSZ. CCA 33161.

No. 99-0481/MC. U.S. v. Robert J. CASILLAS. CCA 97-0557.

No. 99-0482/AF. U.S. v. Bryan S. GRIFFAW. CCA 32356.

No. 99-0506/AF. U.S. v. Joshua C. FAUQUHER. CCA S29627.

No. 99-0508/AR. U.S. v. Cory F. LYNCH. CCA 9800900.

No. 99-0510/AF. U.S. v. Gary R. DAVIS, II. CCA 33474.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0618/AR. U.S. v. McTyran T. LANIER. CCA 9700598.

No. 99-0619/AR. U.S. v. David M. MELANSON. CCA 9801266.

No. 99-0620/AR. U.S. v. Joel W. URBANEK. CCA 9800421.

No. 99-0621/CG. U.S. v. Todd C. PADGETT. CCA 1060.

INTERLOCUTORY ORDERS

No. 98-0658/NA. U.S. v. Darrell J. MUIRHEAD. CCA 96-1211. Appellant's motion to cite supplemental authority granted.

No. 98-0940/AR. U.S. v. Michael D. SPRIGGS. CCA 9601685. Appellee's motion to extend time to file answer to final brief granted to July 7, 1999.

No. 99-0232/AR. U.S. v. Robert W. MARTIN. CCA 9600413. Appellee's second motion to extend time to file answer to supplement to petition for grant of review granted.

No. 99-0524/MC. U.S. v. Francisco J. LOPEZ. CCA 96-2454. Appellant's motion to extend time to file supplement to petition for grant of review granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-151
Friday, May 14, 1999

APPEALS — SUMMARY DISPOSITIONS

No. 97-0210/AF. U.S. v. Albert ROBLES. CCA 32242. On further consideration of the granted issue, 46 MJ 387(1997), the decision of the United States Air Force Court of Criminal Appeals is set aside; and the record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0228/MC. U.S. v. Izaak C.J. VELEZ. CCA 97-1868.

No. 99-0376/MC. U.S. v. Michael L. WILSON. CCA 98-1571.

No. 99-0397/AR. U.S. v. Ignacio TORRES. CCA 9800429.

No. 99-0414/AR. U.S. v. Rafael R. VALADEZ. CCA 9701570.

No. 99-0447/MC. U.S. v. Kip D. PEPIN. CCA 97-1726.

No. 99-0460/NA. U.S. v. Randy R. SKEBBA. CCA 98-1595.

No. 99-0468/AF. U.S. v. Jesse A. SULLIVAN. CCA 33404.

No. 99-0514/AR. U.S. v. Neil S. MANNING. CCA 9800461.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0622/NA. U.S. v. James D. CATTENHEAD. CCA 97-01523.

No. 99-0623/MC. U.S. v. Jeffrey J. NEVROTSKI. CCA 98-01887.

No. 99-0624/MC. U.S. v. Mathew V. WETTSTEIN. CCA 98-02149.

No. 99-0625/AF. U.S. v. Robert E. CHESTER. CCA 33450.

No. 99-0626/AF. U.S. v. Claude F. WHITE, Jr. CCA 33469.

No. 99-0627/AF. U.S. v. Daniel L. LEWIS. CCA 33489.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-152
Monday, May 17, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0628/MC. U.S. v. Angel L. VALENTIN. CCA 98-02039.

No. 99-0629/NA. U.S. v. John J. RUSHTON. CCA 9801597.

INTERLOCUTORY ORDERS

No. 99-0437/AF. U.S. v. Philip T. SLADEWSKI. CCA 32741. Second motion to May 21, 1999.

No. 99-0527/AF. U.S. v. Ann M. KUNDINGER. CCA 32954. Second motion to May 19, 1999.

No. 99-0536/AF. U.S. v. Robert J. MONROE. CCA 32592. To June 14, 1999.

No. 99-0543/AF. U.S. v. Michael S. PARKER. CCA 33237. To June 14,1999.

No. 99-0547/AR. U.S. v. Paul E. GRIER. CCA 9700651. To June 30, 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.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-153
Tuesday, May 18, 1999

ORDERS GRANTING PETITION FOR REVIEW

No. 99-0271/MC. U.S. v. Jerrimaine C. RAMSEY. CCA 98-0007. Review granted on the following issues:

I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE SPECIFICATIONS UNDER CHARGES I AND III ARE NOT "FACIALLY DUPLICATIVE" BASED ON THE LANGUAGE OF THE SPECIFICATION, RATHER THAN THE FACTUAL CONDUCT ALLEGED IN THE SPECIFICATION AND SUPPORTED BY THE RECORD, IN CONFLICT WITH UNITED STATES V. LLOYD, 46 MJ 19 (1997), AND UNITED STATES V. BRITTON, 47 MJ 195 (1997).

II. WHETHER CHARGE III, SOLICITATION TO DISTRIBUTE LSD, IS A LESSER-INCLUDED OFFENSE OF, AND THEREFORE MULTIPLICIOUS WITH, CHARGE I, CONSPIRACY TO DISTRIBUTE LSD, WHERE BOTH OFFENSES AROSE FROM THE SAME PHONE CONVERSATION WITH THE SAME PERSON, AND PROOF OF THE SOLICTATION WAS NECESSARY TO PROVE THE FORMATION OF A CONSPIRACY.

No. 99-0301/NA. U.S. v. Jerry D. MOOLICK. CCA 97-0521. Review granted on the following issues: I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE WRONG STANDARD FOR FACTUAL SUFFICIENCY OF THE EVIDENCE IN AFFIRMING APPELLANT'S CONVICTION.

II. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING THE MILITARY JUDGE'S RULING EXCLUDING THE INTRODUCTION OF AN EXCITED UTTERANCE BY APPELLANT.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0954/AF. U.S. v. Clayton B. AGNEW. CCA S29401.

    SULLIVAN, Judge (dissenting):

    I would grant the issue as assigned in the Supplement to the Petition for Grant of Review. It states:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY PREVENTING COURT MEMBERS FROM CONSIDERING SENTENCING EVIDENCE OF THE 7 CRITERIA FOR RETENTION IN DRUG ABUSE CASES PURSUANT TO AFI 36-3208, PARAGRAPH 5.55.2
    The record shows that the military judge allowed defense counsel to argue the administrative standards before the members but not evidence them.

    This ruling should be examined at the very least, for purposes of legal consistency.

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

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

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 99-8016/MC. United States, appellee, v. Richard E. JOHNSON, appellant. CCA 98-1076. Writ appeal petition for review of a denial of a petition for extraordinary relief denied.

INTERLOCUTORY ORDERS

No. 98-0043/MC. U.S. v. Jose L. SUAREZ. CCA 970646. On consideration of appellant’s motion for leave to file an additional supplement to his petition for grant of review under United States v. Grostefon, 12 MJ 431 (CMA 1982), the Court notes that appellant has filed documents with the Court indicating that his civilian defense counsel, at the time of trial, was an inactive member of the bars of the States of Iowa, Hawaii, and Texas. The Court notes further, however, that appellant has not filed documents from authoritative sources that reveal the impact of such status on counsel's authority to practice law and his qualifications to serve as civilian defense counsel in general courts-martial. See RCM 502(d)(3), Manual for Courts-Martial, United States (1995 ed.). Accordingly, it is ordered that appellant show cause, within 30 days of the date of this order, why his motion for leave to file additional supplement to the petition for grant of review should not be denied.

No. 98-0940/AR. U.S. v. Michael D. SPRIGGS. CCA 9601685. Appellant's motion to admit defense appellate exhibit A granted.

No. 98-1135/AR. U.S. v. Robin BELLAMY. CCA 9701227. On consideration of appellant's motion for leave to reopen appeal and to file supplemental matters under United States v. Grostefon, 12 MJ 431 (CMA 1982), the Court notes that appellant has filed documents with the Court indicating that his detailed defense counsel, at the time of trial, was an inactive member of the bar of the State of Indiana. The Court notes further, however, that appellant has not filed any document from an authoritative source that reveals the impact of such status on counsel's authority to practice law and his certification by the Judge Advocate General as competent to serve as defense counsel at general courts-martial. See Art. 27(b), Uniform Code of Military Justice, 10 USC § 827(b). Accordingly, it is ordered that appellant show cause, within 30 days of the date of this order, why his motion for leave to reopen appeal should not be denied.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-154
Wednesday, May 19, 1999

APPEALS - SUMMARY DISPOSITIONS

No. 98-0267/AR. U.S. v. Joshua L. COMAN. CCA 9600853. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals on further review, we note that appellant has conceded (Supplement after remand at 2 n.1) that he has been reimbursed for forfeitures wrongfully taken from him. Thus, the issue which was the basis for the remand is moot. Accordingly, the petition is hereby granted; and the decision of the United States Army 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 50 MJ 128 (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 constitutionality under the Ex Post Facto Clause of 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). Accordingly, Judge Effron has participated in the present matter and will participate in any further proceedings on this case.

No. 98-0439/AR. U.S. v. Clevell S. ROSEBORO, II. CCA 9600788. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE APPLICATION OF ARTICLE 57(a), UNIFORM CODE OF MILITARY JUSTICE, 10 USC § 857(a), VIOLATES THE EX POST FACTO CLAUSE OF THE CONSTITUTION WITH RESPECT TO APPELLANT WHERE THE OFFENSES OF WHICH APPELLANT WAS CONVICTED OCCURRED BEFORE APRIL 1, 1996; WHERE APPELLANT WAS SENTENCED ON APRIL 12, 1996; WHERE THE CONVENING AUTHORITY DID NOT TAKE ACTION ON APPELLANT’S CASE UNTIL FEBRUARY 14, 1997; AND WHERE THE ADJUDGED SENTENCE INCLUDED A DISHONORABLE DISCHARGE, THREE YEARS’ CONFINEMENT, TOTAL FORFEITURES, AND REDUCTION TO E-1.
AND

That the decision of the United States Army Court of Criminal Appeals is affirmed as to result only. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    Judge Effron did not participate in this decision. See United States v. Gorski, 48 MJ 317, 324 n. 9 (1997). This is without prejudice to his future participation in this case should it subsequently be presented to the Court in a manner that does not require determination of the application of the Ex Post Facto Clause 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).

    GIERKE, Judge (concurring):

    I agree completely with the majority’s decision. Appellant asked this Court to order the Government to "conduct an accounting of appellant’s pay and forfeitures; determine what, if any, amount is due and owing to appellant; and refund any such amount, if any." Reply Brief at 5 (emphasis omitted). The Government provided documents conclusively showing that appellant’s pay records were reviewed by the Defense Finance and Accounting Service; that appellant is indebted to the United States in the amount of approximately $22,192.60 for reasons unrelated to his conviction by court-martial; and that his indebtedness to the United States exceeds any pay and allowances improperly withheld from him under Article 57(a), based on pay rates in effect at the time. See 61 Fed. Reg. 8467 (effective January 1, 1996). Appellant has not been prejudiced by the improper application of Article 57(a). He has received exactly what he is entitled to. Accordingly, he is not entitled to judicial relief. See Art. 59(a), UCMJ, 10 USC § 859(a).

    SULLIVAN, Judge (dissenting):

    The majority issued a show cause order in this case over my objection and request for oral argument on Issue II (the Gorski judicial-remedy issue). United States v. Roseboro, 50 MJ 207 (1998). After receiving several affidavits from military pay technicians showing that appellant’s Gorski claim still has not been administratively resolved, it now grants Issue I (the Gorski issue) and affirms without explanation. I dissent to this action in a case where the Government earlier conceded in its initial answer that United States v. Gorski, 47 MJ 370 (1997), applied but argued that appellant was not entitled to judicial relief because of his failure to exhaust his administrative remedies as required by United States v. Messner,* 48 MJ 637 (Army Ct. Crim. App. 1998). Appellee’s Answer to Supplement to Petition for Grant of Review at 4.

    Issue II raised in the Supplement asks:

WHETHER IN DETERMINING WHETHER TO AFFORD RELIEF TO APPELLANT FOR SUFFERING AN EX POST FACTO APPLICATION OF ARTICLES 57(a) AND 58b, UCMJ, THE ARMY COURT OF CRIMINAL APPEALS HAS ESTABLISHED AN INAPPROPRIATELY HARSH BURDEN ON APPELLANT TO ASSERT AND DEMONSTRATE THAT ILLEGAL FORFEITURES WERE ACTUALLY TAKEN, THAT

APPELLANT SOUGHT ADMINISTRATIVE RESTORATION OF FORFEITURES, THAT ADMINISTRATIVE RESTORATION WAS WRONGFULLY DENIED, OR THAT APPELLANT WAS ENTITLED TO JUDICIAL RELIEF IN A SPECIFIED DOLLAR AMOUNT.

    This issue is based on Messner, a case decided by the same panel of the Army Court of Criminal Appeals that had decided appellant’s case over 2 months earlier. However, Messner was initially relied on by the Government on appeal before this Court, as the basis for not affording appellant judicial relief. Answer at 3. Messner states: We now establish four requirements that an appellant must satisfy before this court will entertain allegations of unlawful application of Article 57(a)(1), UCMJ, as contemplated by Gorski. An appellant seeking Gorski relief must proffer that (1) an illegal forfeiture of pay was actually executed pursuant to operation of Article 57(a), UCMJ, (2) he or she requested reimbursement through Defense Finance and Accounting Service (DFAS) channels, (3) DFAS denied administrative relief, and, (4) he or she is entitled to judicial relief in a specified dollar amount. As noted by Chief Judge Cox in his concurring opinion, the ex post facto consequence of this legislative amendment "is administrative in nature. It does not pertain to the lawful sentence adjudged at trial; it only applies to what happens administratively following trial. Thus, the remedy is administrative." Gorski, 47 MJ at 375-76.

Conjectural requests for unspecified relief will not suffice. This appellant has not satisfied these four requirements. Accordingly, no judicial relief is warranted at this time. Should the appellant subsequently satisfy these requirements, this opinion does not preclude reconsideration of his request for judicial relief on the Gorski issue.

48 MJ at 638-39 (emphasis added).

    I would grant review on this question framed by Issue II. The clear import of the government submissions is that appellant may be denied administrative relief based on other debts to the Government, raising once again the viability of Messner. Further, I would have full appellate review by five judges before this Court makes a decision in this important area of how to apply the Gorski decision.

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0267/AR. U.S. v. Joshua L. COMAN. CCA 9600853 [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 98-0439/AR. U.S. v. Clevell S. ROSEBORO, II. CCA 9600788. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 99-0260/AF. U.S. v. Timothy D. SAPP. CCA 32641. Review granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLANT GUILTY OF A LESSER INCLUDED OFFENSE UNDER ARTICLE 134, CLAUSE 2, AFTER THE COURT FOUND APPELLANT'S PLEA OF GUILTY IMPROVIDENT TO AN ARTICLE 134, CLAUSE 3, OFFENSE AS APPELLANT DID NOT ADMIT ALL THE ESSENTIAL ELEMENTS TO THE LESSER INCLUDED OFFENSE. No. 99-0346/AR. U.S. v. Andre T. HARGROVE. CCA 9601783. Review granted on the following issue: WHETHER THE MILITARY JUDGE ERRED BY NOT INSTRUCTING THE COURT-MARTIAL PANEL REGARDING FAILURE TO REPORT (ARTICLE 86(1)) AS A LESSER INCLUDED OFFENSE OF SPECIFICATIONS 4 AND 8 OF ADDITIONAL CHARGE I, ALLEGING VIOLATIONS OF ARTICLE 90, WHERE THE ISSUED ORDER MERELY APPOINTED A TIME AND PLACE TO REPORT, AND APPELLANT'S FAILURE TO FOLLOW THAT ORDER AMOUNTED TO NOTHING MORE THAN A FAILURE TO REPORT.
PETITIONS FOR GRANT - OTHER SUMMARY DISPOSITIONS

No. 98-0389/AR. U.S. v. James O. WRIGHT. CCA 9601769. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside; and that the record of trial is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0630/AR. U.S. v. Francis A. WILLIS. CCA 9701676.

No. 99-0631/MC. U.S. v. Edward L. JENKINS. CCA 97-1567.

No. 99-0632/MC. U.S. v. David L. HARDCASTLE. CCA 97-2088.

No. 99-0633/AF. U.S. v. Elizabeth A. ESSENFELD. CCA 33560.

No. 99-0634/AF. U.S. v. Joseph L. MCCOEY, Jr. CCA S29607.

No. 99-0635/AF. U.S. v. Thomas PRIES. CCA 33439.

No. 99-0636/AF. U.S. v. Mark C. MORAN. CCA S29546.

No. 99-0637/AF. U.S. v. Glenn E. SNYDER. CCA S29612.

No. 99-0638/AF. U.S. v. Furman L. JOHNSON. CCA 33436.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 99-8022/AR. United States, appellee, v. Wayne FELTON, appellant. CCA 9900103. Writ appeal petition for review of a denial of a petition for extraordinary relief denied.

INTERLOCUTORY ORDERS

No. 93-7001/AR. U.S. v. Ronald A. GRAY. CCA 8800807. Appellee's motion to file supplemental citations of authority granted; appellee’s motion to file supplemental government appellate exhibit I granted; appellant's motion to admit defense appellate exhibits XX and YY granted; appellee's motion to substitute original of supplemental government appellate exhibit I for copy originally filed granted.

No. 97-0149/AR. U.S. v. Christopher W. CAMPBELL. CCA 9400527. Appellee's second motion for additional time to determine whether to petition for reconsideration granted to June 16, 1999.

No. 99-0554/AF. U.S. v. David L. WATERSTREET. CCA 32656. To June 2, 1999.

No. 99-0555/AR. U.S. v. William G. RABY. CCA 9701858. To June 21, 1999.

No. 99-0575/AR. U.S. v. David G. LIRA, Jr. CCA 9601280. To June 25, 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.

_______________

* This decision was set aside and the case was remanded for compliance with Gorski. See _____ MJ _____ (Daily Journal April 29, 1999).


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-155
Thursday, May 20, 1999

APPEALS — SUMMARY DISPOSITIONS

No. 97-1172/AF. U.S. v. Jeffrey A. FUQUA. CCA 32496. On further consideration of the granted issue (48 MJ 395), the decision of the United States Air Force Court of Criminal Appeals is set aside; and the record of trial is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

    Judge Effron did not participate in the Court’s prior action on this case. See 48 MJ 395 (1997). The case is now before the Court in a manner that does not require determination of the constitutionality under the Ex Post Facto Clause of 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). Accordingly, Judge Effron has participated in the present matter and will participate in any further proceedings on this case.

No. 97-1185/AF. U.S. v. Derek A. LAVALLIE. CCA 32410. On further consideration of the granted issue (48 MJ 415), the decision of the United States Air Force Court of Criminal Appeals is set aside; and the record of trial is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

    Judge Effron did not participate in the Court’s prior action on this case. See 48 MJ 415 (1997). The case is now before the Court in a manner that does not require determination of constitutionality under the Ex Post Facto Clause of 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). Accordingly, Judge Effron has participated in the present matter and will participate in any further proceedings on this case.

No. 98-0017/AF U.S. v. Darryl T. WERTS. CCA 32417. On further consideration of the granted issue (48 MJ 415), the decision of the United States Air Force Court of Criminal Appeals is set aside; and the record of trial is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

    Judge Effron did not participate in the Court’s prior action on this case. See 48 MJ 415 (1997). The case is now before the Court in a manner that does not require determination of the constitutionality under the Ex Post Facto Clause of 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). Accordingly, Judge Effron has participated in the present matter and will participate in any further proceedings on this case.

No. 98-0215/AF. U.S. v. Austin N. MOORE. CCA 32499. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals upon further review, it is ordered that said petition is granted; and that the decision of the United States Air Force Court of Criminal Appeals upon 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 50 MJ 239 (1998). The case is now before the Court in a manner that does not require determination of the constitutionality under the Ex Post Facto Clause of 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). Accordingly, Judge Effron has participated in the present matter and will participate in any further proceedings on this case.

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0215/AF. U.S. v. Austin N. MOORE. CCA 32499.[See also APPEALS - SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0241/MC. U.S. v. Beau PETERSON. CCA 96-1792.

    SULLIVAN, Judge (dissenting):

    I would grant the following issue:

WHETHER THE EVIDENCE IS SUFFICIENT AS A MATTER OF LAW TO SUPPORT A FINDING OF GUILTY TO SPECIFICATION 2 UNDER ADDITIONAL CHARGE II (CONDUCT UNBECOMING AN OFFICER).
PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0639/AR. U.S. v. Dwayne A. AULL. CCA 9801662.

No. 99-0640/AR. U.S. v. Michael G. NEW. CCA 9600263.

No. 99-0641/AR. U.S. v. Calvin L. McNEILL, Jr. CCA 9801498.

No. 99-0642/AR. U.S. v. Oswald B. VANN. CCA 9701196.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-156
Friday, May 21, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0644/AR. U.S. v. Joseph D. BELL. CCA 9800544.

No. 99-0645/AR. U.S. v. Derrick BARNER. CCA 9700693.

No. 99-0646/AR. U.S. v. Steven S. ALLIENANOO. CCA 9801495.

No. 99-0647/AF. U.S. v. Jason Z. AGUIAR. CCA S29654.

No. 99-0648/AF. U.S. v. David W. FULBRIGHT. CCA 33410.

No. 99-0649/AF. U.S. v. John E. WENDLETON. CCA S29465.

INTERLOCUTORY ORDERS

No. 99-0441/AR. U.S. v. Jeffery A. ESTABROOK. CCA 9601988. Appellant's second motion to extend time to file supplement to petition for grant of review granted to June 21, 1999.

MANDATES ISSUED

No. 96-0507/MC. U.S. v. William S. MCLAUGHLIN, III. CCA 94-2095.

No. 97-1164/CG. U.S. v. Orison S. ACEVEDO. CCA 1066.

No. 98-0034/CG. U.S. v. Scott L. GILBERT. CCA 1067.

No. 98-0273/AR. U.S. v. Larry D. SAVAGE. CCA 9500762.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-157
Monday, May 24, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0643/AF. U.S. v. Robert T. STEWART, Jr. CCA 33523.

No. 99-0650/AF. U.S. v. Christopher R. HOLDEN. CCA 33555.

No. 99-0651/AF. U.S. v. Jesse L. KIRKLAND. CCA 33064.

No. 99-0652/MC. U.S. v. James S. BALDWIN. CCA 98-2147.

No. 99-0653/NA. U.S. v. Theodore L. LAMPKIN. CCA 98-1715.

No. 99-0654/AR. U.S. v. Margaret B. LISECKI. CCA 9700511.

INTERLOCUTORY ORDERS

No. 98-0497/NA. U.S. v. Charles W. DAVIS. CCA 96-0585. Appellant's motion to attach granted.

No. 98-0910/MC. U.S. v. Felix G. FOGG. CCA 96-1958. Motion filed by the Appellate Litigation Program, Georgetown University Law Center, seeking permission for Amicus Curiae to file recent supplemental citation without additional argument granted.

No. 99-0474/AF. U.S. v. Michael J. BURNS. CCA 32841. Second motion to June 11, 1999.

No. 99-0476/AF. U.S. v. Thane J. CHRISTENSON. CCA 33058. To June 11, 1999.

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

No. 99-0564/AF. U.S. v. Shannon T. VERBURGT. CCA S29594. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 99-0619/AR. U.S. v. David M.MELANSON. CCA 9801266. On further consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals filed in the above-entitled case and docketed under Docket No. 99-0643/AR on May 20, 1999, it appears that said petition was a duplicate of a petition filed in an earlier case and was inadvertently given a new docket number. Accordingly, it is ordered that Docket No. 99-0643/AR issued on May 20, 1999, be rescinded in this case; that Docket No. 99-0619/AR be substituted and used on all future documents filed in this case; and that Docket No. 99-0643/AR be reassigned in due course to a new case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-158
Tuesday, May 25, 1999

RULE CHANGE ORDER

Upon careful consideration of a proposal to add new Rule 30A to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, which was 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 July 1, 1999, new Rule 30A is promulgated as provided in the Attachment to this order.

ATTACHMENT

RULE 30A. FACT FINDING

(a) General. The Court will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals.

(b) Judicial notice. In an appropriate case, the Court may take judicial notice of an indisputable adjudicative fact.

(c) Remand for fact finding. If an issue concerning an unresolved material fact may affect the Court’s resolution of the case, a party may request, or the Court may sua sponte order, a remand of the case or the record to the Court of Criminal Appeals. If the record is remanded, the Court retains jurisdiction over the case. If the case is remanded, the Court does not retain jurisdiction, and a new petition for grant of review or certificate for review will be necessary if a party seeks review of the proceedings conducted on remand.

(d) Stipulation by the parties. If an issue concerning an unresolved material fact may affect the Court’s resolution of the case, the parties may stipulate to a factual matter, subject to the Court’s approval.

(e) Other means. Where it is impracticable to remand a case to the Court of Criminal Appeals, the Court may order other means to develop relevant facts, including the appointment of a special master to hold hearings, if necessary, and to make such recommendations to the Court as are deemed appropriate.

* * * * * * * * *

RULES ADVISORY COMMITTEE COMMENT ON RULE 30A

Rule 30A codifies the Court’s practice concerning additional fact finding, and provides a counterpart to Federal Rule of Appellate Procedure 48, which concerns appointment of special masters. While requests to establish additional facts are disfavored, the Court has on occasion accepted affidavits, appointed special masters, accepted stipulations of fact, and directed that evidentiary hearings be held. Subsection (b) codifies the Court’s discussion of judicial notice in United States v. Williams, 17 MJ 207 (CMA 1984). Subsection (c) recognizes that the Court may sometimes remand a case for the lower court’s reconsideration in light of a contested issue of fact’s determination, or it may sometimes choose to remand for the limited purpose of determining a contested fact while retaining jurisdiction over the case. Subsection (c) enables the Court to decide on a case-by-case basis whether the lower court will exercise complete jurisdiction upon remand. Cf. D.C. Cir.R. 41(b). The Committee envisions that stipulations made under subsection (d) will be presented to the Court via a motion to attach a stipulation to the record made pursuant to Rule 30. Subsection (e) recognizes that, where necessary, the Court may order alternative means of determining facts, including the appointment of special masters.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0655/AR. U.S. v. Peter A. NOTARO. CCA 9801134.

No. 99-0656/AR. U.S. v. Nicky A. THOMPSON. CCA 9600798.

No. 99-0657/AR. U.S. v. Mark P. BANASZAK. CCA 9700949.

No. 99-0658/AR. U.S. v. Shawn C. OREN. CCA 9800105.

No. 99-0659/AR. U.S. v. Paul B. LEWIS. CCA 9801110.

No. 99-0660/MC. U.S. v. Samuel C. WALKER. CCA 98-0154.

No. 99-0661/NA. U.S. v. Brian A. KOCH. CCA 98-0483.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-159
Wednesday, May 26, 1999

ORDERS GRANTING PETITION FOR REVIEW

No. 99-0177/AR. U.S. v. Andrew K. LEAL. CCA 9701028. Review granted on the following issues:

I. WHETHER THE INCLUSION IN THE POST-TRIAL RECOMMENDATION OF THE STAFF JUDGE ADVOCATE (UNDER SUMMARY OF THE ACCUSED'S SERVICE RECORD) OF TWO FIELD GRADE ARTICLE 15s WITHOUT A CLARIFICATION THAT THE TWO ARTICLE 15s WERE FOR WRONGFUL USE OF MARIJUANA ON DIVERS OCCASIONS INCLUDED IN SPECIFICATION 1 OF ADDITIONAL CHARGE IV FOR WHICH APPELLANT WAS PROSECUTED AND SENTENCED, MATERIALLY PREJUDICED APPELLANT'S PETITION FOR CLEMENCY.   II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED TO THE PREJUDICE OF APPELLANT BY GRANTING CREDIT UNDER UNITED STATES V. PIERCE, 27 MJ 369 (CMA 1989), SOLELY IN THE FORM OF CREDIT TOWARDS APPELLANT'S SENTENCE TO CONFINEMENT, RATHER THAN GRANTING LESS CONFINEMENT CREDIT AND SOME MONETARY CREDIT, WHERE THE CONFINEMENT CREDIT GIVEN BY THE COURT EXCEEDED APPELLANT'S MINIMUM RELEASE DATE BY 96 DAYS AND WAS THUS NOT USABLE BY APPELLANT. No. 99-0202/NA. U.S. v. Robert L. WILSON. CCA 9800379. Review granted on the following issues: I. WHETHER THE COURT OF CRIMINAL APPEALS FAILED TO ANALYZE THE PREJUDICE TO APPELLANT UNDER UNITED STATES V. WHEELUS "SOME COLORABLE SHOWING OF POSSIBLE PREJUDICE" AND INSTEAD ERRONEOUSLY TESTED FOR PREJUDICE UNDER ARTICLE 59(a), UCMJ, "MATERIAL PREJUDICE TO THE SUBSTANTIAL RIGHTS OF THE ACCUSED."

II. WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN FAILING TO REQUIRE THE GOVERNMENT TO SHOW THAT THE FAILURE TO ABIDE BY ARTICLE 60, UCMJ, WAS NOT PREJUDICIAL.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0662/NA. U.S. v. Patrick S. KIELTY. CCA 98-0799.

INTERLOCUTORY ORDERS

No. 99-0367/MC. U.S. v. Craig J. SPERANZI. CCA 98-1588. Appellant’s motion to attach granted; appellee's motion to extend time to file answer to supplement to petition for grant of review granted to June 1, 1999.

No. 99-0590/AR. U.S. v. Addis G. WILEY. CCA 9101188. Appellant's motion to extend time to file supplement to petition for grant of review granted to July 1, 1999.

MANDATES ISSUED

No. 97-0092/AF. U.S. v. Kenth G. STARGELL. CCA S29111.

No. 97-0731/AR. U.S. v. Timothy R. HALL. CCA 9500449.

No. 98-0160/NA. U.S. v. Antonio D. SCHULER. CCA 96-1316.

No. 98-0182/AR. U.S. v. Steven B. THOMPSON. CCA 9402089.

No. 98-0251/MC. U.S. v. Timothy A. BROWN. CCA 96-1443.

No. 98-0275/AF. U.S. v. Paul J. UNDERWOOD, III. CCA 32633


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-160
Thursday, May 27, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0663/AR. U.S. v. Joe E. NORCROSS. CCA 9800910.

No. 99-0664/NA. U.S. v. Theodora G. JONES. CCA 97-1077.

No. 99-0665/NA. U.S. v. Anthony R. SHANNON. CCA 98-2027.

No. 99-0666/NA. U.S. v. Marion H. TANKSLEY. CCA 96-1402.

INTERLOCUTORY ORDERS

No. 98-1113/AF. U.S. v. David S. BRADLEY. CCA 32387. Appellee's motion to substitute corrected page granted.

No. 99-0367/MC. U.S. v. Craig J. SPERANZI. CCA 98-1588. It appearing that appellant has filed documents with the Court in support of an issue raised pursuant to United States v. Grostefon, 12 MJ 431 (CMA 1982), indicating that his civilian defense counsel at the time of trial was an inactive member of the Bars of the states of Iowa, Hawaii and Texas and it further appearing appellant has not filed documents from authoritative sources that reveal the impact of such status on counsel’s authority to practice law and his qualification to serve as civilian counsel in general courts-martial (See RCM 502(d)(3), Manual for Courts-Martial, United States (1995 ed.), it is ordered that appellant show cause, within 30 days of the date of this order why the petition for grant of review should not be denied.

No. 99-0580/AF. U.S. v. Craig J. FANGUY, Jr. CCA S29419. To June 25, 1999.

No. 99-0582/AF. U.S. v. Michael E. KNIGHT. CCA 32754. To June 4, 1999.

No. 99-0583/AF. U.S. v. Anthony B. SLEDGE. CCA 32834. To June 25, 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. 99-161
Friday, May 28, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0211/AF. U.S. v. Marc D. SOREY. CCA 32756.

No. 99-0236/AR. U.S. v. Curtis L. LEFFLER. CCA 9701311.

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

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

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

No. 99-0339/AR. U.S. v. Sean S. SHALLOW. CCA 9601984.

No. 99-0345/AR. U.S. v. Martin W. SMITH. CCA 9701685.

No. 99-0354/MC. U.S. v. Mark A. PAWLIK. CCA 97-1063.

No. 99-0356/AR. U.S. v. Seth C. SOMERVILL. CCA 9701212.

No. 99-0361/MC. U.S. v. Gregory D. REYNOLDS. CCA 97-1366.

No. 99-0363/MC. U.S. v. Michael G. WILLIAMS. CCA 97-2089.

No. 99-0366/NA. U.S. v. Rodney E. MILLER. CCA 97-0005.

No. 99-0392/AF. U.S. v. Russell T. DOUCET. CCA 32799.

No. 99-0426/MC. U.S. v. Brian C. MCCUE. CCA 97-1799.

No. 99-0470/AF. U.S. v. William G. HESTER. CCA S29447.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0264/AR. U.S. v. Jason S. WESLEY. CCA 9700164. */

No. 99-0667/MC. U.S. v. Ricky E. POWELL. CCA 98-0344.

No. 99-0668/NA. U.S. v. Jeremy E. BORACCI. CCA 98-0810.

No. 99-0669/AR. U.S. v. Marlon D. HARRIS. CCA 9801672.

No. 99-0670/AR. U.S. v. Aloysius D. DAVIS. CCA 9701057.

No. 99-0671/AR. U.S. v. Sean E. HOENIKE. CCA 9801263.

No. 99-0672/AF. U.S. v. Richard M. BRYANT. CCA S29613.

No. 99-0673/AF. U.S. v. Paul A. ENGST. CCA 33073.

No. 99-0674/AF. U.S. v. Joseph C. SCHAFER. CCA 33330.

INTERLOCUTORY ORDERS

No. 99-0129/AF. U.S. v. Ross A. MCFADYEN. CCA 32878. Appellee's motion to file supplemental citation of authority out of time granted.
__________________

*/ Second petition filed in same case.


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