UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-076
Thursday, January 31, 2002

PETITIONS FOR GRANT OF REVIEW DENIED

No. 01-0871/AR. U.S. v. Walter HUDSON III. CCA 9801086.

No. 02-0043/AF. U.S. v. David E. MOORE. CCA 33729.

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0254/NA. U.S. v. Kirby P. POREE. CCA 200100633.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 02-8012/AF. United States, respondent, v. Michael C. BROWN, petitioner. CCA 32906. Petition for extraordinary relief in the nature of a writ of prohibition and mandamus was filed under Rule 27(a) on January 10, 2002, and placed on the docket this date.

Misc. No. 02-8013/AF. United States, respondent, v. Janice M. WASHINGTON, petitioner. CCA S29570. Petition for extraordinary relief in the nature of a writ of prohibition and mandamus was filed under Rule 27(a) on January 10, 2002, and placed on the docket this date.

INTERLOCUTORY ORDERS

No. 01-0214/AF. U.S. v. Michael W. HAWKINS. CCA 33087. Appellant's motion to extend time to respond to Court's order of 02 January 2002, granted to March 6, 2002.

No. 02-0251/MC. U.S. v. Jose E. MAGANA. CCA 200100607. Appellant's motion to attach granted.

No. 02-0252/NA. U.S. v. Levi D. WHITE. CCA 200001646. Appellant's motion to attach granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-075
Wednesday, January 30, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0241/AR. U.S. v. Jon P. CICCIARELLI. CCA 20000146.

No. 02-0242/AR. U.S. v. Shawn E. PICKERING. CCA 20000537.

No. 02-0243/AR. U.S. v. Judy A. HALL. CCA 9901124.

No. 02-0244/AR. U.S. v. Andre D. HARRELL. CCA 20010220.

No. 02-0245/AR. U.S. v. Dulani B. RICHARDSON. CCA 20010080.

No. 02-0246/AR. U.S. v. Joseph W. STEPHENS. CCA 9801353.

No. 02-0247/AR. U.S. v. Matthew S. MALONE. CCA 20000855.

No. 02-0248/AR. U.S. v. Justin GUNN. CCA 9901062.

No. 02-0249/AR. U.S. v. Nathaniel DRAKE. CCA 9801109.

No. 02-0250/AR. U.S. v. Steve B. TUALAULELEI. CCA 9900795.

No. 02-0251/MC. U.S. v. Jose E. MAGANA. CCA 200100607.

No. 02-0252/NA. U.S. v. Levi D. WHITE. CCA 200001646.

No. 02-0253/NA. U.S. v. George H. ELMORE, Jr. CCA 9901013.

INTERLOCUTORY ORDERS

No. 01-0749/AR. U.S. v. Kurtis E. ARMANN. CCA 9900316. Appellee's motion to attach denied.

No. 02-8010/AR. U. S. v. David A. BECK. CCA 20020001. Appellee's motion to amend certificate of service granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-074
Tuesday, January 29, 2002

PETITIONS FOR GRANT OF REVIEW DENIED

No. 01-0769/AR. U.S. v. Yvette T. GLASS. CCA 9900965.

INTERLOCUTORY ORDERS

No. 02-0112/AR. U.S. v. William C. TURNER. CCA 9901026. Appellant's motion to file index to supplemental brief for grant of review granted.

No. 02-0222/MC. U.S. v. Aaron M. LEKOFF. CCA 200100905. Appellant's motion to attach granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-073
Monday, January 28, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0223/AR. U.S. v. Brian W. NAPRSTEK. CCA 9701997.

No. 02-0224/AF. U.S. v. Robert S. BREWER. CCA 33741.

No. 02-0225/AF. U.S. v. Cecil A. COOK. CCA 34463.

No. 02-0226/AF. U.S. v. Anthony R. CORDER. CCA 34355.

No. 02-0227/AF. U.S. v. Stephen C. CROWDER. CCA S29961.

No. 02-0228/AF. U.S. v. Erin R. DROLLINGER-SCARBROUGH. CCA 34577.

No. 02-0229/AF. U.S. v. Jeremy K. EDWARDS. CCA S29885.

No. 02-0230/AF. U.S. v. Daniel N. HENRY-COOPER. CCA 34538.

No. 02-0231/AF. U.S. v. Bobby HIBBARD. CCA 34371.

No. 02-0232/AF. U.S. v. Erik R. IRWIN. CCA S29995.

No. 02-0233/AF. U.S. v. Dale P. KEYSER. CCA 34252.

No. 02-0234/AF. U.S. v. Ruby W. KYLE II. CCA 34464.

No. 02-0235/AF. U.S. v. Charles D. PLUNKETT. CCA S29980.

No. 02-0236/AF. U.S. v. Luis A. SILVA. CCA S29906.

No. 02-0237/AF. U.S. v. James E. SPRINGER. CCA S29803.

No. 02-0238/AF. U.S. v. Francisco TORRES. CCA 33659.

No. 02-0239/AF. U.S. v. Toby S. WHELCHEL. CCA 33887.

No. 02-0240/AF. U.S. v. Jerry L. WILLIAMS II. CCA 34668.

INTERLOCUTORY ORDERS

No. 02-0111/AR. U.S. v. Peter M. HOLMES. CCA 20010417. Appellant's motion to file petition for grant of review out of time, which the Court construes as a motion to resubmit supplement to petition for grant of review, granted.

No. 02-0112/AR. U.S. v. William C. TURNER. CCA 9901026. Appellant's motion to file supplement to petition for grant of review out of time, which the Court construes as a motion to resubmit supplement to petition for grant of review, granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-072
Friday, January 25, 2002

PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0039/NA. U.S. v. Wendall S. BEA. CCA 9901237.

No. 02-0079/MC. U.S. v. Michael BARLOW. CCA 200000258.

No. 02-0082/AR. U.S. v. Matthew D. HENNINGER. CCA 9900874.

No. 02-0106/AF. U.S. v. Kyle W. STINCHCOMB. CCA 34383.

No. 02-0115/MC. U.S. v. Christopher G. BUSCH. CCA 20001847.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0829/NA. U.S. v. Eric L. JOHNSTON. CCA 94-1274.*/

No. 02-0217/AR. U.S. v. Antuana D. CROMARTIE. CCA 9900426.

No. 02-0218/AR. U.S. v. James C. MORRIS. CCA 20000468.

No. 02-0219/AR. U.S. v. Robert D. WILLIAMS. CCA 20000052.

No. 02-0220/MC. U.S. v. Neil C. PUGLIA. CCA 99-1270.

No. 02-0221/NA. U.S. v. Javon C. JAMES. CCA 200100280.

No. 02-0222/MC. U.S. v. Aaron M. LEKOFF. CCA 200100905.

INTERLOCUTORY ORDERS

No. 00-0633/AR. U.S. v. Richard A. KINNEY. CCA 9800451. Appellant's motion to attach appellate exhibits A and B granted.

No. 01-0664/AR. U.S. v. Dennis P. COLLINS. CCA 9900937. On consideration of appellant's motion to unseal documents for the purpose of allowing a sanity board convened pursuant to R.C.M. 706, Manual for Courts-Martial (2000 ed.), to examine said document in its evaluation of appellant, it is ordered that said motion is granted; that said documents be unsealed for the limited purpose set forth in the foregoing motion; that said documents shall thereafter be resealed; and that said action is without prejudice to any subsequent motion filed under the provisions of Mil.R.Evid. 302 or other applicable law.

_______

*/ Second petition filed in this case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-071
Thursday, January 24, 2002

PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0002/MC. U.S. v. Fernando SAUCEDO. CCA 99-00362.

No. 02-0023/AR. U.S. v. Keyvin S. GLOVER. CCA 20000489.

No. 02-0028/NA. U.S. v. Micheal E. CALLAN. CCA 200000379.

No. 02-0072/AF. U.S. v. Shawn P. KELLY. CCA 34328.

No. 02-0073/AR. U.S. v. Robert A. BOWLER. CCA 20000339.

No. 02-0080/AF. U.S. v. Brandon J. LANCASTER. CCA 34439.

No. 02-0081/AF. U.S. v. Luis A. CRUZ. CCA 34325.

No. 02-0085/AF. U.S. v. Douglas C. SMITH, II. CCA S29955.

No. 02-0086/MC. U.S. v. Thomas W. SOLARI. CCA 200000933.

No. 02-0089/AF. U.S. v. Linda M. SPIRIDONOFF. CCA 34663.

No. 02-0090/AF. U.S. v. Isaac MARTIN. CCA S29997.

No. 02-0091/AF. U.S. v. Marc A. FECTEAU. CCA 34628.

No. 02-0092/AR. U.S. v. Shane A. FRANKEL. CCA 20010359.

No. 02-0099/AF. U.S. v. Lee M. BLANKENSHIP. CCA S29950.

No. 02-0101/AF. U.S. v. Yousuf A. KHAN. CCA 34624.

No. 02-0103/AF. U.S. v. Mario A. RILLON Jr. CCA 34153.

No. 02-0104/AF. U.S. v. Shaun L. ROSNER. CCA 34599.

No. 02-0107/AF. U.S. v. Daniel J. HURT. CCA 34573.

No. 02-0108/AF. U.S. v. Douglas G. SAREM. CCA 34662.

No. 02-0114/AF. U.S. v. Alexander MONROY. CCA 34563.

No. 02-0118/AR. U.S. v. Samual P. MCBRIDE. CCA 9801013.

INTERLOCUTORY ORDERS

No. 02-0126/AR. U.S. v. Armand A. ANDREOZZI. CCA 98-01612.
Appellant's motion to extend time to file supplement to petition for grant of review granted to January 24, 2002.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-070
Wednesday, January 23, 2002

HEARINGS

No. 01-0760/AR. U.S. v. Claude B. CARSON, Jr. CCA 9801402.

No. 01-0467/AF. U.S. v. Jonathan A. CAMPBELL. CCA 33647.

No. 01-0686/NA. U.S. v. Allen O. DOSS. CCA 99-1380.

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0212/AF. U.S. v. Lawrence E. JOSEY. CCA 33745.

No. 02-0213/AF. U.S. v. Adrian B. LEE. CCA 34666.

No. 02-0214/AF. U.S. v. Michelle L. MARTIN. CCA S29940.

No. 02-0215/AF. U.S. v. Wajeeh R. QUTOB. CCA 34675.

No. 02-0216/AF. U.S. v. Michael P. SAVAGE. CCA S29824.

INTERLOCUTORY ORDERS

No. 01-0588/AR. U.S. v. Ian J. POMARLEAU. CCA 9800836. Appellee's motion to resubmit answer to final brief granted.

No. 01-0762/AR. U.S. v. Jeffrey D. WALKER. CCA 9801091. Appellant's motion to extend time to file final brief granted up to and including January 28, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 02-0116/AF. U.S. v. Richard F. PERICAS. CCA 33825. Appellant's motion to submit missing page granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-069
Tuesday, January 22, 2002

HEARINGS

No. 00-0286/AR. U.S. v. Steven D. JEFFERS. CCA 9701201.

No. 01-0295/AR. U.S. v. John S. STONEMAN. CCA 9800137.

No. 01-0452/AF. U.S. v. Randy J. THOMPSON. CCA 33332.

No. 01-0739/AF. U.S. v. Larry R. HOPKINS. CCA 33937.

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0209/AR. U.S. v. Tommie ALLEN. CCA 20010118.

No. 02-0210/NA. U.S. v. Irvin W. STRAUCH. CCA 200000406.

No. 02-0211/AF. U.S. v. William C. SIMMONS. CCA 34631.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-068
Friday, January 18, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0205/AR. U.S. v. William WORLEY. CCA 20010239.

No. 02-0206/MC. U.S. v. Charles R. EVANS. CCA 9801827.

No. 02-0207/AF. U.S. v. James P. MUZIO. CCA 34702.

No. 02-0208/AF. U.S. v. Stephen L. RONGITSCH. CCA 34595.

MANDATES ISSUED

No. 00-0113/MC. U.S. v. Bud W. TYNDALE. CCA 97-1741.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-067
Thursday, January 17, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0203/AR. U.S. v. Michael R. SUTTON. CCA 9900484.

No. 02-0204/AR. U.S. v. Joshua D. GARRIS. CCA 20000805.

INTERLOCUTORY ORDERS

No. 98-0679/AR. U.S. v. Carlos V. DIAZ-DUPREY. CCA 9600181.
Appellant's motion to extend time to file supplement to petition for grant of review granted to February 14, 2002.

No. 00-0633/AR. U.S. v. Richard A. KINNEY. CCA 9800451.
Appellant's second motion for extension of time to file reply to government's submission granted up to and including January 22, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-066
Wednesday, January 16, 2002

PETITIONS FOR GRANT OF REVIEW DENIED

No. 01-0763/AF. U.S. v. Torian L. BROCKS. CCA 33891.

No. 01-0764/CG. U.S. v. Thomas E. PRIMEAU. CCA 1101.

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0191/AR. U.S. v. Lance D. MORRISON. CCA 20010339.

No. 02-0192/AR. U.S. v. Walter A. VEAZEY. CCA 20010247.

No. 02-0193/AR. U.S. v. Christopher J. PIZZO. CCA 20000656.

No. 02-0194/AR. U.S. v. Gerald R. RICHARDSON. CCA 20001076.

No. 02-0195/AR. U.S. v. Johnathan L. VENTURA. CCA 20000856.

No. 02-0196/AR. U.S. v. Robert C. ROCHA. CCA 20000870.

No. 02-0197/AR. U.S. v. James E. BRYANT. CCA 9901057.

No. 02-0198/AR. U.S. v. Virgilio SALOMON Jr. CCA 20001045.

No. 02-0199/NA. U.S. v. Max AMBROISE. CCA 9900167.

No. 02-0200/AF. U.S. v. Robert E. SHEARER Jr. CCA 34553.

No. 02-0201/AF. U.S. v. Michael P. FIELDS. CCA 34659.

No. 02-0202/AF. U.S. v. Derek J. COUTURIER. CCA S30002.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 02-8011/AR. United States, respondent, v. Malcolm G. SCHAEFER, petitioner. Petition for extraordinary relief in the nature of a writ of habeas corpus denied and petitionerís motion to file attached documents granted.

INTERLOCUTORY ORDERS

No. 01-0777/AF. U.S. v. Phines J. DOUGLAS. CCA 33940. Appellant's motion for leave to file opinion of the Air Force Court of Criminal Appeals and motion to substitute amended index granted.

No. 02-0001/AR. U.S. v. Delmar G. SIMPSON. CCA 9700775. Appellant's motion to file brief in excess of fifty pages granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-065
Tuesday, January 15, 2002

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0048/AF. U.S. v. James A. SILLS. CCA 34323. Review granted on the following issues, without prejudice to appellantís right to again raise Issues III, IV, V, and VI in the normal course of appellate review:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT REFUSED TO FOLLOW THIS COURTíS PRECEDENTS REGARDING SENTENCE REHEARINGS AND SENTENCE REASSESSMENTS.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS APPLIED AN IMPROPER STANDARD WHEN EVALUATING THE FACTUAL SUFFICIENCY OF THE EVIDENCE.

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0188/AR. U.S. v. Andy OCCEAN. CCA 9900854.

No. 02-0189/AR. U.S. v. John B. TAYLOR IV. CCA 20000486.

No. 02-0190/NA. U.S. v. Lauren ANNUNZIATA. CCA 200001316.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 02-8010/AR. United States, appellee, v. David A. BECK, appellant. CCA 20020001. Writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b), and placed on the docket this date.

Misc. No. 02-8011/AR. United States, respondent, v. Malcolm G. SCHAEFER, petitioner. Petition for extraordinary relief in the nature of a writ of habeas corpus was filed under Rule 27(a) on December 10, 2001, and placed on the docket this date.

INTERLOCUTORY ORDERS

No. 01-0675/NA. U.S. v. Sean M. WILLIAMS. CCA 200000895. Appellant's motion to attach granted.

No. 01-0827/AR. U.S. v. Chad D. BENNER. CCA 9801777. Appellant's motion to extend time to file final brief granted up to and including February 1, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 02-0136/MC. U.S. v. James J. TINGLE. CCA 00-01201. Appellant's motion to extend time to file supplement to petition for grant of review granted to February 21, 2002.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-064
Monday, January 14, 2002

CERTIFICATES FOR REVIEW FILED

No. 02-5001/CG. U.S. v. Marlon D. HUTCHISON. CCA 1090. The General Counsel, Department of Transportation, United States Coast Guard, requests that action be taken with request to the following issues:

I. DID THE COAST GUARD COURT OF CRIMINAL APPEALS ERR
WHEN IT CONSIDERED MATTERS CONCERNING A STATE COURTíS CONVICTION AND SENTENCEóIMPOSED AFTER A COURT-MARTIAL FOR THE SAME OFFENSESóAS PART OF THE "RECORD " DURING ITS ARTICLE 66(C), UCMJ, SENTENCE APPROPRIATENESS DETERMINATION?

II. DID THE CGCCA ERR WHEN IT DISAPPROVED APPELLANTíS BAD
CONDUCT DISCHARGE AND REDUCTION IN PAYGRADE IN AN EFFORT TO "LESSEN" THE "EFFECT" OF A STATE COURTíS CONVICTION AND SENTENCE THAT WAS IMPOSED AFTER A COURT-MARTIAL FOR THE SAME OFFENSES?

III. DID THE CGCCA ERR WHEN, DURING ITS SENTENCE APPROPRIATENESS DETERMINATION, IT CONSIDERED ALTERNATIVE ADMINISTRATIVE ACTIONS IN LIEU OF TRIAL BY COURT-MARTIAL THAT WERE AVAILABLE TO THE CONVENING AUTHORITY?

IV. DID THE CGCCA ERR WHEN IT REASSESSED A SENTENCE BECAUSE IT QUESTIONED THE COAST GUARDíS DECISION TO COURT-MARTIAL A SERVICE MEMBER WHILE A STATE TRIAL WAS PENDING FOR THE SAME ACTS, DESPITE FINDING THAT THE COAST GUARD FOLLOWED SERVICE REGULATIONS?

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0176/AR. U.S. v. Malcolm A. BARTLEY. CCA 20010043.

No. 02-0177/AR. U.S. v. Sean M. HELTON. CCA 9901139.

No. 02-0178/AR. U.S. v. Jesus M. REYES. CCA 9900213.

No. 02-0179/AF. U.S. v. Jason M. DIACUMSKI. CCA 34672.

No. 02-0180/AF. U.S. v. Philip E. FROST. CCA 33817.

No. 02-0181/AF. U.S. v. Ernest L. GRIGGS, II. CCA S30010.

No. 02-0182/AF. U.S. v. Rebecca A. IRELAND. CCA S29823.

No. 02-0183/AF. U.S. v. Bradley C. KIRCHER. CCA 34664.

No. 02-0184/AF. U.S. v. Triston B. MASON. CCA 34316.

No. 02-0185/AF. U.S. v. Fernando T. TELLO. CCA 34120.

No. 02-0186/AF. U.S. v. Tomal R. THOMPKINS. CCA 33630.

No. 02-0187/MC. U.S. v. Wallace J. MOORE. CCA 9900266.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 02-8009/NA. United States, respondent, v. David A. GAINES, petitioner. Petition for extraordinary relief in the nature of a writ of prohibition is denied without prejudice.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-063
Friday, January 11, 2002

PETITIONS FOR GRANT OF REVIEW DENIED

No. 01-0880/AR. U.S. v. Tutuila AVA. CCA 20010055.

No. 02-0013/NA. U.S. v. Gregory G. GARCIA. CCA 200001451.

No. 02-0074/AR. U.S. v. Kovoki D. LOTT. CCA 20000947.

No. 02-0098/AF. U.S. v. Thomas T. ANDREW. CCA 34535.

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0172/AR. U.S. v. Bobby R. FEGGINS. CCA 9901182.

No. 02-0173/AR. U.S. v. Willie N. STARKS, Jr. CCA 20000845.

No. 02-0174/AR. U.S. v. Amanda M. BURGER. CCA 20010388.

No. 02-0175/AR. U.S. v. Gregory TURNER. CCA 19990632.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 02-8009/NA. United States, respondent, v. David A. GAINES, petitioner. Petition for extraordinary relief in the nature of a writ of prohibition was filed under Rule 27(a) on December 19, 2001, and placed on the docket this date.

INTERLOCUTORY ORDERS

No. 01-0658/AF. U.S. v. Christopher B. WASHINGTON. CCA S29797. Appellant's motion to request specific date for oral argument denied.

No. 01-0760/AR. U.S. v. Claude B. CARSON, Jr. CCA 9801402. Appellee's motion to file out of time and motion to take judicial notice of Army regulation and motion to attach index and table of authorities granted.

No. 02-0075/AF. U.S. v. Latonya D. SHATTEEN. CCA S29721.
Appellee's motion to file brief in excess of fifty pages granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-062
Thursday, January 10, 2002

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 02-8008/NA. United States, appellee, v. Robert L. LOEH, appellant. CCA 200101675. Writ-appeal petition denied.

INTERLOCUTORY ORDERS

No. 01-0134/AR. U.S. v. Robert J. WIESEN. CCA 9801770. Appellee's motion to correct errata granted.

No. 02-0065/AF. U.S. v. Ryan W. DAVIS. CCA 33877. Appellant's motion to file brief in excess of fifty pages granted.

No. 02-0155/MC. U.S. v. Brian A. ARCHIBALD. CCA 200000323.
Appellant's motion to attach granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-061
Wednesday, January 09, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0170/AR. U.S. v. Scott M. GOMEZ. CCA 9901236.

No. 02-0171/AR. U.S. v. Edwin N. MILLAYES. CCA 9901080.

MANDATES ISSUED

No. 01-0242/MC. U.S. v. Guillermo A. DOUGLAS. CCA 200000569.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-060
Tuesday, January 08, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0169/NA. U.S. v. Charles R. HOWSARE. CCA 200000196.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-059
Monday, January 07, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0156/AR. U.S. v. Ishor L. WILLIAMS. CCA 20000232.

No. 02-0157/AR. U.S. v. Christopher WHITE. CCA 20001105.

No. 02-0158/AR. U.S. v. Damon D. SMITH. CCA 20000945.

No. 02-0159/MC. U.S. v. Christopher J. AREVALOS. CCA 200100408.

No. 02-0160/AF. U.S. v. Amy L. BLOOD. CCA 34097.

No. 02-0161/AF. U.S. v. Harold T. CLARK. CCA 33978.

No. 02-0162/AF. U.S. v. William A.C. WELLS. CCA 34247.

No. 02-0163/AF. U.S. v. Brandon M. VANDREY. CCA 34638.

No. 02-0164/AF. U.S. v. Kasey L. TROMBLY. CCA S29996.

No. 02-0165/AF. U.S. v. Christopher E. HUESMAN. CCA S29852.

No. 02-0166/AF. U.S. v. Christopher B. MITCHELL. CCA 33601.

No. 02-0167/AF. U.S. v. Gary L. SHAW. CCA S30005.

No. 02-0168/CG. U.S. v. Daniel R. PERRON. CCA 1115.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 02-8007/AF. United States, appellee, v. Prince S.J. WEBBER, appellant. CCA 2001-04. Writ-appeal petition denied.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 02-8008/NA. United States, appellee, v. Robert L. LOEH, appellant. CCA 200101675. Writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on December 12, 2001, and placed on the docket this date.

INTERLOCUTORY ORDERS

No. 01-0675/NA. U.S. v. Sean M. WILLIAMS. CCA 200000895. Appellee's motion to file answer to final brief out of time granted.

No. 01-0749/AR. U.S. v. Kurtis E. ARMANN. CCA 9900316. Appellant's first motion to attach is hereby granted as it pertains to exhibit 1 but denied as to all other exhibits.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-058
Friday, January 04, 2002

APPEALS - SUMMARY DISPOSITIONS

No. 01-0584/AR. U.S. v. Angela M. ROBBINS. CCA 9701524. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Army Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 01-0584/AR. U.S. v. Angela M. ROBBINS. CCA 9701524. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 01-0802/AR. U.S. v. Ramon S. GUTIERREZ, Jr. CCA 9900509. Review granted on the following issues:

I. WHETHER APPELLANT IS ENTITLED TO A NEW REVIEW AND
ACTION BECAUSE THE STAFF JUDGE ADVOCATE WHO PREPARED
THE RECOMMENDATION AND ADDENDUM WAS DISQUALIFIED AFTER
SHE TESTIFIED AS A WITNESS REGARDING A CONTESTED MATTER
AND AFTER SHE SERVED AS A TRIAL COUNSEL IN APPELLANT'S
COURT-MARTIAL.

II. WHETHER THE STAFF JUDGE ADVOCATE IMPROPERLY SUBMITTED
NEW MATTERS TO THE CONVENING AUTHORITY IN THE ADDENDUM
TO HER POST-TRIAL RECOMMENDATION.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 01-0870/AR. U.S. v. Terry J. KINDRICK. CCA 9601784.

No. 01-0877/AR. U.S. v. Dujuan M. SMITH. CCA 20010218.

No. 01-0882/AR. U.S. v. David L. WILLIAMS. CCA 9900143.

No. 01-0892/AF. U.S. v. Shannon L. POWELL. CCA 33670.

No. 01-0894/MC. U.S. v. Virgil GRIFFIN. CCA 98-00332.

No. 02-0004/AR. U.S. v. Arnold E. WILLIAMS. CCA 9800741.

No. 02-0006/AR. U.S. v. Michael R. SPRANG. CCA 9900513.

No. 02-0053/AF. U.S. v. George STARKS, IV. CCA 34527.

No. 02-0055/AF. U.S. v. Eric V. PONDER. CCA 34370.

No. 02-0057/AF. U.S. v. Amber R. KINCAID. CCA 34420.

No. 02-0058/AF. U.S. v. Gordon L. LYONS. CCA S29951.

No. 02-0063/AF. U.S. v. Jeriqus M. WINSTON. CCA S30001.

No. 02-0064/AF. U.S. v. Gary M. DELOSO. CCA 34208.

No. 02-0066/AR. U.S. v. Donald E. CAMERON. CCA 20010250.

No. 02-0067/MC. U.S. v. Luis M. MARTINEZRAMIREZ. CCA 200100957.

No. 02-0070/AF. U.S. v. Randell O. ALDERSON. CCA 34571.

No. 02-0076/AF. U.S. v. Frank E. JACKSON Jr. CCA 34622.

No. 02-0078/AR. U.S. v. Brandon J. LATHAM. CCA 20010111.

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0154/AR. U.S. v. Steven C. GAGE. CCA 20000950.

No. 02-0155/MC. U.S. v. Brian A. ARCHIBALD. CCA 200000323.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-057
Thursday, January 03, 2002

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 02-0061/MC. U.S. v. Jerad L. DAYISH. CCA 200100811. Appellant's motion to withdraw petition for grant of review granted without prejudice to appellantís right to submit the petition on a subsequent date.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 02-8007/AF. United States, appellee, v. Prince S.J. WEBBER, appellant. CCA 2001-04. Writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on December 7, 2001, and placed on the docket this date.

PETITIONS FOR RECONSIDERATION DENIED

No. 02-8005/NA. U.S. v. David E. CRAWFORD. CCA 200100806. Appellant's motion for reconsideration, which is construed as a petition for reconsideration, denied.

INTERLOCUTORY ORDERS

No. 00-0594/AR. U.S. v. Joel Z. MOMENT. CCA 9900604. Appellant's motion to file petition for grant of review denied.

No. 01-0686/NA. U.S. v. Allen O. DOSS. CCA 99-1380. Appellant's motion to attach sworn declaration granted.

No. 01-0751/MC. U.S. v. Michael D. SHEPPERD. CCA 01-0080. Appellant's motion to extend time to final brief granted, but only up to and including January 18, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 01-0859/AF. U.S. v. Branden P. CARPOFF. CCA S29860. Appellant's motion to request specific date for oral argument denied.

No. 02-0062/NA. U.S. v. Roland L. FRENCH. CCA 200000263. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 02-0069/MC. U.S. v. Alexander S. HALL. CCA 200001801. Appellant's motion to attach granted.

No. 02-0137/NA. U.S. v. Ryan K. HILLS. CCA 200100074. Appellant's motion to attach granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 02-056
Wednesday, January 02, 2002

PETITIONS FOR GRANT OF REVIEW DENIED

No. 01-0869/AR. U.S. v. Michael L. SMITH. CCA 9900952.

PETITIONS FOR GRANT OF REVIEW FILED

No. 02-0153/AR. U.S. v. Shawn C. McCAFFERTY. CCA 9900921.

INTERLOCUTORY ORDERS

No. 01-0214/AF. U.S. v. Michael W. HAWKINS. CCA 33087. On consideration of the granted issue, and in light of the pleadings and oral arguments of both parties, it is, ordered that, if the parties are able to agree, they shall jointly file a stipulation of fact within thirty days of this order answering the following questions:

1. What was the status of the United Kingdom civil suit at
the time Major General Hinton took action on appellantís
case? Was Major General Hinton a party? Was he being
sued in his personal or official capacity?

2. What is the current status of the civil suit? If still
pending, is Major General Hinton a party? If so, is he
being sued in his personal or official capacity? Did
the United States Government move for Major General
Hintonís dismissal?

3. If the civil case is not still pending, what was the
result? Was Major General Hinton found liable in either
a personal or official capacity? Was he found not
liable?

And that, if the parties are unable to agree, the Government shall obtain and file with this Court official records of the civil suit needed to answer the above questions or show cause why it cannot, or show cause why this court should not take notice of the above facts, but rather remand the matter to the CCA for consideration; and

That, if after the joint filing of any stipulation of fact or the Governmentís filing of the official records of the civil suit, it is clear the civil suit is still pending and Major General Hinton remains a party in either his personal or official capacity, appellant shall within thirty days of the filing of the stipulation or the official records file a supplemental brief answering the following questions:

1. UNDER UNITED KINGDOM LAW, CAN A SUCCESSOR IN COMMAND BE HELD LIABLE FOR THE ACTIONS OF HIS PREDECESSOR?

2. UNDER WHAT THEORY OF UNITED KINGDOM AND UNITED STATES LAW CAN A CONVENING AUTHORITY BE HELD PERSONALLY LIABLE FOR ACTIONS TAKEN IN AN OFFICIAL CAPACITY?

And that the Government shall within thirty days of the filing of appellantís supplemental brief file an answer thereto; and

That appellant may within thirty days of the filing of the Governmentís answer file a reply thereto.

CRAWFORD, Chief Judge (dissenting):

I would affirm the decision without ordering additional information from the parties. The Courtís order, in essence, requires the Government to carry appellantís burden.

A brief recitation of the facts is necessary. In October 1996, appellant was stationed at RAF Lakenheath, United Kingdom. He and his wife, a citizen of Greece, lived in Norfolk County, England, on property that was neither leased nor controlled by the United States. On or about October 3, the Air Force Office of Special Investigations (AFOSI) and the Norfolk County Constabulary searched appellantís home pursuant to a search authorization which the AFOSI obtained from RAF Lakenheathís military magistrate. Evidence was seized from appellantís home that belonged to Eagle Alarm & Electronics, a business operated by appellantís wife and her brother, Mr. Theo Vrettos (also a citizen of Greece).

On July 9, 1997, Major General (MG) Oelstrom, Commander, Third Air Force, referred the charges and specifications against appellant to a general court-martial. By August 5, 1997, MG Hinton had assumed command of the Third Air Force, and in his role as the general court-martial convening authority, amended the convening order in appellantís case. On October 9, Ioanna Hawkins and Theo Vrettos filed a civil suit in the High Court of England and Wales against several named defendants, including MG Hinton, based on a purported illegal search of appellantís home and improper seizure of items on or about October 3, 1996. At trial, appellant moved to disqualify MG Hinton as the convening authority based on his status as a defendant in the aforementioned lawsuit. The motion was denied.

Appellantís argument is that because his wife sued a successor-in-command, who was not involved with the search of their home (the subject of the civilian lawsuit), this successor-in-command could not be the convening authority in appellantís court-martial. This argument defies logic.

The military judge made the following findings of fact:

[T]he accused is not a party to the suit, even though his wife and brother-in-law are.... I fail to see any manner in which -- and the defense has not presented any evidence as to how the resolution of this court-martial will in any manner impact the civil suit or vice versa. So, the motion is denied. The Air Force Court of Criminal Appeals found the following facts: Major General Hinton cannot be characterized as an accuser since he was neither a victim of the appellantís offenses nor connected with the prosecution in any manner when the charges were referred....

We find it unnecessary to analyze British law or the Status of Forces Agreement with the United Kingdom on the question of whether Major General Hinton could be held personally liable for the actions of his subordinates in conducting the search of appellantís off-base residence on 6 October 1996. The reason for this approach is simple. First, Major General Hinton was not the commander and, therefore, not the general court-martial convening authority for Third Air Force when the search was conducted. Second, even under some expansive theory of respondeat superior in English law, if a judgment for monetary damages were returned against Major General Hinton, he would suffer no monetary loss because he was acting within the scope of his employment. Air Force Instruction (AFI) 51-301, Civil Litigation, ¶ 3.15 (25 Jul 94); 10 U.S.C. § 8013.

However, we do not resolve this issue on that basis alone. Instead, we will examine Major General Hintonís conduct as the convening authority to see if we can glean any animosity or unfairness towards the appellant. Major General Hinton entered into a pretrial agreement with the appellant. Under its terms, he agreed to withdraw over half of the charges against the appellant. Additionally, although the maximum authorized confinement for the offenses to which the appellant pled guilty was 20 years, Major General Hinton agreed he would not approve confinement in excess of 15 months. He also deferred the imposition of the adjudged forfeitures until he took action. Finally, he approved confinement for only 10 months if the appellant paid the fine. These are hardly the actions of someone who was angry about being named as a defendant in a civil lawsuit or concerned about personal liability. We find that any reasonable person looking at all the facts in the appellantís case would conclude the convening authority had no personal interest or feeling in the outcome of the court-martial. Rather than being inflexible in the case sub judice, Major General Hinton acted fairly and reasonably.

Unpub. op. at 6-7.

Unless there is a jurisdictional issue, "the burden of persuasion on any factual issue ... necessary to decide a motion shall be on the moving party." RCM 905(c)(2)(A)&(B), Manual for Courts-Martial, United States (2000 ed.).* We have held that the question of who is an "accuser" within the meaning of the Code is nonjurisdictional and may be waived. See, e.g., United States v. Jeter, 35 MJ 442, 447 (CMA 1992); see alsoUnited States v. Reist, 50 MJ 108, 110 (1999)(director of law center who personally preferred charges was disqualified, but issue waived); United States v. Tittel, 53 MJ 313, 314-15 (2000)(potential disqualification of convening authority was waived); but see United States v. Dinges, 49 MJ 232 (1998)(waiver not applied where disqualifying information obtained post-trial; however, after a DuBay hearing, findings and sentence affirmed. 55 MJ 308 (2001)).

Appellant seeks to disqualify the convening authority who was not in command at the time of the search. This convening authority gave no actual authority to the individuals conducting the search, and because he was not in command at the time, there can be no reasonable apparent authority derived from his later assumption of command and convening authority roles. The defense has cited no authority that makes a convening authority personally liable for the torts of a predecessor or his agents. Additionally, paragraph 5(g), Article VIII, of the NATO Status of Forces Agreement provides:

A member of a force or civilian component shall not be subject to any proceedings for the enforcement of any judgment given against him in the receiving State in a matter arising from the performance of his official duties. This provision exempts MG Hinton from personal liability.

When one removes all the trappings, it appears the majority has shifted appellantís burden to the Government by asking for facts and legal argument under a "potential liability" theory. Since appellant has failed to present a theory under which MG Hinton could be held personally liable and have to pay damages out of his own pocket, or otherwise be disqualified as the successor convening authority, I respectfully dissent.

_______

* These Manual provisions are identical to the ones in effect at the time of appellantís court-martial.


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