No. 01-0731/MC. U.S. v. Manuel J. CHACON. CCA 01-0151. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 01-0748/MC. U.S. v. Julian M. THIGPIN, III. CCA 20-0100944. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 02-0060/MC. U.S. v. Anthony L. JONES. CCA 01-0066. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 02-0095/MC. U.S. v. Calvin G. HALL III. CCA 01-1147. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 02-0276/MC. U.S. v. Adrian D. WALTON. CCA 0101172. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 02-0378/NA. U.S. v. Timothy R. ROBINSON. CCA 2001000755. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 02-0395/MC. U.S. v. Levi J. FARNER. CCA 200101856. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 02-0455/MC. U.S. v. Kevin D. MYERS. CCA 200000064. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 02-0463/MC. U.S. v. Christopher D. SAUNDERS. CCA 00-1851. On further consideration of the granted issue in light of United States v. Tardif, 57 MJ 219 (2002), we conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 USC § 866(c), to determine whether relief is warranted and, if so, what relief should be granted. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 USC § 867, will apply.

SULLIVAN, Senior Judge (dissenting): I dissent. See United States v. Tardif, 57 MJ 219, 228-230 (2002) (Sullivan, S.J., dissenting).

No. 02-0494/MC. U.S. v. Kevin TOWNES. CCA 9500849. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0449/AF. U.S. v. Matthew J. MILLER. CCA 34031. Review granted on the following issue:

No. 02-0586/AR. U.S. v. William C. HARMS. CCA 9701529. Review granted on the following issue:

No. 02-0632/AF. U.S. v. Shawn P. HOLT. CCA 34145. Review granted on the following issues raised by appellate defense counsel:

No. 98-0679/AR. U.S. v. Carlos V. DIAZ-DUPREY. CCA 9600181. On consideration of appellant’s motion to file petition for reconsideration out of time and the petition for reconsideration, the motion to file out of time is granted; the petition for reconsideration is granted; the petition for grant of review is granted, and the decision of the United States Army Court of Criminal Appeals, dated September 26, 2001, is affirmed.

SULLIVAN, Senior Judge (concurring in part and dissenting in part): I concur with granting the motion, the petition for reconsideration, and the petition for grant of review, but I would order final briefs and oral argument. See United States v. Wean, 45 MJ 461, 464 (1997). [See also INTERLOCUTORY ORDERS this date.]

No. 02-0001/AR. U.S. v. Delmar G. SIMPSON. CCA 9700775. On consideration of appellee’s petition for reconsideration on motion to postpone hearing date for oral argument, it is ordered that the petition is granted; that the motion to postpone hearing for oral argument is granted; and that oral argument is rescheduled for December 11, 2002, at 10:00 a.m. Each side will be allotted 30 minutes to present oral argument. The hearing will be held in the Courtroom of the United States Court of Appeals for the Armed Forces, 450 E Street, Northwest, Washington, D.C. Counsel presenting the argument will report to Room 104 prior to the hearing and sign in.

SULLIVAN, Senior Judge (dissenting): The Government requests reconsideration of a previous order of this Court denying a Government motion for postponement of oral argument in this case from the scheduled date of October 16, 2002, to December 11, 2002(an approximate delay of 60 days). See USCAAF Rule 31 and 32; cf. Rule 30(g) and Fed. R. App. Proc. Rule 27(b) (authorizing requests for reconsideration of motion). In the motion that was denied, the sole assertion for postponement was that one of the four appellate Government counsels assigned to the case, who had been "designated to present oral argument" and who was the only attorney "familiar" with it, would be unable to do so at the scheduled oral argument date because of her expected birthing date and her six weeks of maternity leave. Appellant, who continues to remain in prison, through his counsel, opposed this motion to postpone the scheduled oral argument. Accordingly, this Court denied this unusual motion for postponement on August 29, 2002.

Seven days after this Court’s denial, the Government requested reconsideration of this denial. The sole basis of the motion for reconsideration was the Government’s recitation that appellant has been previously granted three continuances to file his pleadings in this court. I am sure there have been other cases where weaker reasons to grant a motion for reconsideration have been advanced, but I cannot recall one. I would think that the Government must have known that this Court was aware of the entire appellate record (to include the prior grants of continuances for appellant to file his pleadings) when this Court denied the original motion to delay the oral argument of appellant, who is in confinement. Nevertheless, the Government anchors its present motion for reconsideration on the argument that since this Court granted appellate defense counsel’s three requests for continuances, "it would be unfair to deny the Government’s single request for a delay of less than two months". (Government Motion at p 2-3).

It is black letter law that petitions for reconsideration are not generally favored in our Court or in other United States Courts of Appeals. See Fidell, Guide to the Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces at 177 (9^th ed. 2000). See also Wright, Miller, Cooper, 16A Federal Practice and Procedure § 3986 at 728 (1999). Moreover, an argument not raised in an appellate brief or at oral argument generally may not be raised for the first time in a petition for rehearing or reconsideration. See Costo v. U.S. 922 F.2d 302, 302-303 (6^th Cir. 1990). As I stated above, the continuances secured by the defense were a matter of record at the time the Government’s original motion to postpone oral argument was submitted and no mention of these delays or their importance was ever made by government counsel in its original motion. In any event, the past decisions of this Court on continuances clearly indicate that "prosecutors are fungible" and that same approach is appropriate for appellate government counsel. See United States v. Royster, 42 MJ 488, 490 (1995). Finally, the past decisions of this Court on continuances also do not authorize granting a continuance simply because the opposing party was granted one. See United States v. Weisbeck, 50 MJ 461, 465 (1999).

Admittedly, the record of trial in this case is 3,097 pages long. Nevertheless, the first granted issue is a simple instructional issue questioning the propriety of a certain instruction given in this case on constructive force (R 2773, 2778-79) in light of the model instruction on constructive force provided in the Military Judges’ Benchbook, 3-5-41, Note 6, U.S. Dept. of Army PAM 27-9, (30 Sept. 1996). Moreover, the second issue granted review is dependent on the statement of facts provided in the Court of Criminal Appeals decision. (Defense Brief at 15). These issues, on their face, do not appear to require detailed knowledge of the entire record. Moreover, neither in its original motion or the subsequent motion for reconsideration does the Government argue that mastery of the entire record is necessary for adequate representation of the Government’s interest on appeal. In addition, there is no assertion that this particular counsel is the sole attorney available who can competently represent its interest on appeal.

I find it significant that there were four appellate Government attorneys who signed the government’s final brief in this case. Accordingly, I am not persuaded that one of the other three counsel cannot competently represent the Government in this case. In fact, the Government, in the instant motion, does not affirmatively aver that no other attorney of record in this case could adequately prepare to present the Government’s case at the scheduled oral argument next month. For that matter, I find that it may be likely that a reasonably prudent supervisor at the Appellate Government office may have already directed one of the other three attorneys of record in this case to begin preparation for the scheduled oral argument in this case as a precautionary measure. In my view, it is not the number of pages in the record of trial, but the substance of the issues that may be relevant to any request for a postponement of the oral argument of a case. Accordingly, there is no legal argument in the Government’s motion or in the substance of this case that would justify a postponement of oral argument in this case.

In sum, appellant is in confinement and opposes this motion which will delay the resolution of his case and may infringe upon his rights to a speedy appeal. We granted a request by the Government for a postponement in pre-oral argument proceedings in United States v. Baker, 56 MJ 352 (2002). However, Baker clearly should not be controlling in this case. In Baker, unlike the present case, the appellant was not in confinement and his appellate counsel did not oppose the government motion. Accordingly, in the instant case, absent Staff Sergeant Simpson’s consent or the showing of extraordinary circumstances, he should not be required to bear the burden of the Government’s request to move the scheduled oral argument date for the convenience of one of its four assigned counsel. If Simpson should prevail on his appeal, the granting of this motion may result in his serving additional time in prison. As a final point on substantive appellate procedure, the Government’s motion for reconsideration on its face states no point of law or fact that this Court overlooked or misapprehended when the Court first denied the Government’s request for postponement. Rule 32 USCAAF Rules. Accordingly for all of the above reasons, I would deny the Government’s motion for reconsideration and respectfully dissent. [See also PETITIONS FOR GRANT OF REVIEW – OTHER SUMMARY DISPOSITIONS this date.]

No. 02-0453/AF. U.S. v. Jeffery L. WHITEHORN. CCA 34412.

No. 02-0562/AF. U.S. v. Matthew A. ALBRECHT. CCA 34330.

No. 02-0608/AF. U.S. v. Shawn M. PUGH. CCA 34230.

No. 02-0001/AR. U.S. v. Delmar G. SIMPSON. CCA 9700775. [See also ORDERS GRANTING PETITION FOR RECONSIDERATION this date.]

No. 02-0953/AR. U.S. v. Matthew E. RICHARDS. CCA 20010588.

No. 02-0954/AR. U.S. v. Damian V. REINHOLD. CCA 20010777.

No. 02-0955/AR. U.S. v. Raphelito G. WELLINGTON. CCA 9900782.

No. 02-0956/AF. U.S. v. James A. POWERS Jr. CCA S29998.

No. 02-0957/AF. U.S. v. Edward CONTRERAS. CCA 34718.

Misc. No. 02-8024/NA. United States, appellee, v. Joshua D. BAIRD, appellant. CCA 200001844. Writ-appeal petition and motion for a stay of proceedings denied; appellant’s motion to attach granted.

Misc. No. 02-8025/NA. United States, appellee, v. Pedro A. TOLLINCHI, appellant. CCA 98-0246. Writ-appeal petition and motion for a stay of proceedings denied; appellant’s motion to attach granted.

Misc. No. 02-8026/NA. United States, appellee, v. Eric M. DUNN, appellant. CCA 200101168. Writ-appeal petition and motion for a stay of proceedings denied; appellant’s motion to attach granted.

Misc. No. 02-8029/NA. United States, appellee, v. Curtis T. LOBERGER, appellant. CCA 20021770. Writ-appeal petition denied without prejudice to appellant’s right to raise the issue during the course of normal appellate review if he is convicted by a court-martial; appellant’s motions for a stay of proceedings denied and motion to attach granted.

No. 98-0679/AR. U.S. v. Carlos V. DIAZ-DUPREY. CCA 9600181. [See also ORDERS GRANTING PETITION FOR RECONSIDERATION this date.]

No. 02-0662/AR. U.S. v. Devin R. SHACKLEFORD. CCA 20000819. Motion filed by Patrick E. Neighbors, Esquire, to withdraw as civilian defense counsel granted.

No. 02-0813/MC. U.S. v. Ian R. PITKOFF. CCA 9901328. Motion filed by Lieutenant Glenn Gerding to withdraw as appellate counsel granted.

No. 02-0861/AR. U.S. v. Andrew J. NEAL. CCA 20000023. Appellant's motion for leave to file out of time an extension of time to file a supplement to petition for grant of review granted to October 15, 2002.

No. 02-0881/AR. U.S. v. Nathan H. WHEELER. CCA 9801366. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 25, 2002.

No. 02-0884/AF. U.S. v. Phillip C. DORMAN. CCA 34237. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 2, 2002.

No. 02-0885/AF. U.S. v. Stephanie R. TRAUM. CCA 34225. Appellant's motion to file brief in excess of fifty pages granted.

No. 02-0888/MC. U.S. v. Michael P. JAMROG. CCA 20001663. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 30, 2002.

No. 02-8024/NA. U.S. v. Joshua D. BAIRD. CCA 200001844. Motion filed by Lieutenant Glenn Gerding to withdraw as appellate counsel granted.

No. 01-0777/AF. U.S. v. Phines J. DOUGLAS. CCA 33940.

I. CUMULATIVE PENDING OCTOBER 1, 2001

Master Docket .............................. 60

Petition Docket ............................ 190

Miscellaneous Docket ....................... 3

TOTAL ...................................... 253

II. CUMULATIVE FILINGS

Master Docket .............................. 103

Petition Docket ............................ 974

Miscellaneous Docket ....................... 30

TOTAL ......................................1107

III. CUMULATIVE TERMINATIONS

Master Docket .............................. 113

Petition Docket ............................ 863

Miscellaneous Docket ....................... 31

TOTAL ......................................1007

IV. CUMULATIVE PENDING OCTOBER 1, 2002

Master Docket .............................. 50*/

Petition Docket ............................ 301

Miscellaneous Docket ....................... 2

TOTAL ...................................... 353

___

*/ Comparative Master Docket figures for the past 10 years are: 60 (FY01); 70 (FY00); 77 (FY99); 105 (FY98); 289 (FY97); 73 (FY96); 105 (FY95); 119 (FY94); 248 (FY93); 119 (FY92).

V. CASES ON MASTER DOCKET CARRIED OVER TO OCTOBER 2002
TERM OF COURT

98-0146/AF - RILEY
01-0615/AF - LEAVITT
01-0763/AF - BROCKS
01-0859/AF - CARPOFF
01-0887/AF – RODRIGUEZ-LOPEZ
02-0001/AR - SIMPSON
02-0051/AF - WASHINGTON
02-0077/AR - KLINGENSTEIN
02-0094/MC - TEFFEAU
02-0135/CG - REDLINSKI
02-0148/AF - ROBINSON
02-0166/AF - MITCHELL
02-0168/CG - PERRON
02-0180/AF - FROST
02-0186/AF - THOMPKINS
02-0212/AF - JOSEY
02-0217/MC - CROMARTIE
02-0229/AF - EDWARDS
02-0231/AF - HIBBARD
02-0237/AF - SPRINGER
02-0243/AR - HALL
02-0264/AF - GUDMUNDSON
02-0269/AF - DUNN
02-0271/AF - RENDON
02-0272/AF - ZABALA
02-0312/AF - WARDLE
02-0313/AF - VAUGHAN
02-0318/AF - ASPER
02-0386/AF - KING
02-0413/MC – KINZER
02-0443/AR - GIBSON
02-0474/AF - MCCOLLUM
02-0554/AF – MCMILLON
02-0556/AF – LALIBERTE
02-0561/AF - DUGAN
02-0586/AR - HARMS
02-0628/AF - WOOD
02-0672/MC – SOLIS
02-0673/AF - TATMAN
02-6001/NA – COOPER

01-0403/AF - OCONNOR
01-0653/AF - MILES
01-0718/AF - GOGAS
02-0270/AF - MAHONEY
02-0359/NA - GILBERT
02-0449/AF – MILLER
02-0526/AF - DAVIS
02-0609/AR - KAISER
02-0632/AF - HOLT
02-0657/AF - PHILLIPS

No. 02-0782/AR. U.S. v. Fredrick D. DALTON. CCA 20001014.

No. 02-0821/AR. U.S. v. David C. HERROLD. CCA 20010812.

No. 02-0823/AR. U.S. v. Daniel J. LINK. CCA 20010320.

No. 02-0830/AR. U.S. v. Matthew K. SANFORD. CCA 20010171.

No. 02-0854/AR. U.S. v. Ramon W. JOHNSON. CCA 20010640.

No. 02-0949/AR. U.S. v. Gregory G. RORIE. CCA 20000964.

No. 02-0950/AF. U.S. v. David E. BRACEY. CCA 35060.

No. 02-0951/AF. U.S. v. Jeremy C. COLLIER. CCA 35151.

No. 02-0952/AF. U.S. v. Russell L. MACLEAN. CCA 35025.

No. 01-0483/MC. U.S. v. Jason R. JORDAN. CCA 99-1778.

No. 02-0948/MC. U.S. v. Nathan O. JAMES. CCA 200001750.

No. 01-0520/CG. U.S. v. Sean M. TARDIF. CCA 1141.

No. 01-0646/AF. U.S. v. Lavaughn K. KEY. CCA S29751.

No. 01-0656/AF. U.S. v. Russell T. SPAUSTAT. CCA 34036.

No. 02-5001/CG. U.S. v. Marlon D. HUTCHISON. CCA 1090.

No. 02-0631/AF. U.S. v. Andrew C. MCKENZIE. CCA 34801.

No. 02-0795/AF. U.S. v. Charles A. NIELSEN. CCA S30052.

No. 02-0796/AF. U.S. v. Jason A. SMITH. CCA 34905.

No. 02-0807/AF. U.S. v. Winfred A. JOHNSON. CCA 34897.

No. 02-0816/AF. U.S. v. Tobin L. SEXTON. CCA 34701.

No. 02-0829/AR. U.S. v. Jona A. WOBICK. CCA 20010551.

No. 02-0833/AR. U.S. v. Sandra M. SEXTON. CCA 20010114.

No. 02-0836/AF. U.S. v. Jennifer M. MARSHALL. CCA 34971.

No. 02-0838/AF. U.S. v. Dedrick L. WHITAKER. CCA S30034.

No. 02-0840/MC. U.S. v. Evan AMARNI. CCA 200200359.

No. 02-0846/AF. U.S. v. Idelfonso ESPINAL. CCA S29993.

No. 02-0847/AF. U.S. v. Donald M. JEFFERSON. CCA 35039.

No. 02-0848/AF. U.S. v. Killis D. KNIGHT, Jr. CCA 34916.

No. 02-0852/AF. U.S. v. Joshua L. SORG. CCA 34684.

No. 02-0868/AF. U.S. v. Kristofer B. KUEHNE. CCA 34912.

No. 02-0873/AF. U.S. v. Jeremy G. TRIPLETT. CCA 34604.

Appellant's motion to withdraw petition for grant of review granted.

No. 02-0947/AR. U.S. v. David A. TODD. CCA 9800458.

No. 02-0843/AR. U.S. v. Miguel A. RODRIGUEZ. CCA 9900318. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 9, 2002.

No. 01-0503/AF. U.S. v. Christopher R. GILBRIDE. CCA 33724.

No. 01-0534/AF. U.S. v. Tedio ALAMEDA, Jr. CCA 33529.

No. 02-0628/AF. U.S. v. Randall J. WOOD. CCA 34735. Review granted on the following issue:

No. 02-0541/AR. U.S. v. Vyacheslav ZILBERFARB. CCA 9900682.

No. 02-0781/AR. U.S. v. Jeffrey G. BAKER. CCA 20010903.

No. 02-0790/AR. U.S. v. Keith E. JACKSON. CCA 20010679.

No. 02-0804/MC. U.S. v. Jerry L. CANTU. CCA 200200050.

No. 02-0808/AR. U.S. v. Jason D. ISBELL. CCA 9900087.

No. 02-0811/AR. U.S. v. Jamone M. HENDERSON. CCA 20000421.

No. 02-0812/AR. U.S. v. Raymond A. DONATO. CCA 20000466.

No. 02-0819/AR. U.S. v. Michael T. MOBLEY. CCA 20010658.

No. 02-0820/AR. U.S. v. Arnette R. GRIFFIN. CCA 20010024.

No. 02-0822/AR. U.S. v. Eric D. CHADWICK. CCA 20010144.

No. 02-0946/AR. U.S. v. Larry A. FRAKE. CCA 9900915.

Misc. No. 02-8030/NA. United States, appellee, v. Donavon L. TAYLOR, appellant. CCA 200201419. Writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b) on September 23, 2002 and placed on the docket this date.

No. 02-0533/AF. U.S. v. Robert K. WHITE. CCA 34115. Appellant's motion to file additional issue (Issue IV) to appellant’s supplement to petition for grant of review granted.

No. 01-0827/AR. U.S. v. Chad D. BENNER. CCA 9801777.

No. 02-0535/AR. U.S. v. Patrick D. TULLOCH. CCA 9400329. 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.]

No. 02-0535/AR. U.S. v. Patrick D. TULLOCH. CCA 9400329. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0941/AR. U.S. v. Wilson L. McCRIMMON. CCA 20000075.

No. 02-0942/AR. U.S. v. John D. MANDIGO. CCA 9900597.

No. 02-0943/MC. U.S. v. Stan J. STARR. CCA 200001253.

No. 02-0944/AF. U.S. v. Eric P. MARCUM. CCA 34216.

No. 02-0945/AF. U.S. v. Kamali A. SALCEDO. CCA 34651.

No. 02-0842/NA. U.S. v. John J. FERRARA. CCA 9900957. Appellant's motion to withdraw petition for grant of review granted.

No. 02-0937/AR. U.S. v. Wayne E. PARKER. CCA 9600945.

No. 02-0938/AF. U.S. v. Andrew J. BROZZO. CCA 34542.

No. 02-0939/AF. U.S. v. Nicholas P. MAYNARD. CCA 34985.

No. 02-0940/AF. U.S. v. Nicole M. STRECKER. CCA S30101.

No. 02-0644/AR. U.S. v. Lawrence R. MACK. CCA 9900727. Appellant's motion to correct errata granted.

No. 02-0659/NA. U.S. v. Rene A. TRUJILLO. CCA 91-00502. Appellant's third motion to extend time to file supplement to petition for grant of review granted up to and including October 23, 2002.

No. 02-0413/MC. U.S. v. Steven M. KINZER II. CCA 200001092. Review granted on the following issue:

No. 00-0327/NA. U.S. v. Miguel E. INONG. CCA 9801667.*/

No. 02-0936/AR. U.S. v. Thomas E. HODGE, Jr. CCA 20010010.

No. 02-0644/AR. U.S. v. Lawrence R. MACK. CCA 9900727. Appellant's motion to attach defense appellate exhibit E granted.

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

No. 01-0762/AR. U.S. v. Jeffrey D. WALKER. CCA 9801091.

No. 02-0084/MC. U.S. v. Larry A. OLIVER. CCA 200000659.

*/ Second petition filed in this case.

No. 02-0295/AF. U.S. v. John G. SIMS. CCA 34079.

SULLIVAN, Senior Judge (dissenting): I would grant Issue IX which asks:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS FAILED
TO FOLLOW THE CORRECT LEGAL STANDARD IN REASSESSING
APPELLANT’S SENTENCE BY USING AN "APPROPRIATENESS"
STANDARD AND BY CONSIDERING THE DISMISSED CHARGES IN
DETERMINING WHETHER THE APPROVED SENTENCE WAS AFFECTED
BY THE DISMISSED CHARGES.

No. 02-0929/AR. U.S. v. Randall J. POLLARD III. CCA 20010357.

No. 02-0930/AR. U.S. v. Jinnifer L. HART. CCA 20020173.

No. 02-0931/AR. U.S. v. David H. DONALDSON. CCA 9900544.

No. 02-0932/MC. U.S. v. Hector C. MARTINEZ. CCA 200000641.

No. 02-0933/MC. U.S. v. David J. RIMEL. CCA 200200038.

No. 02-0934/NA. U.S. v. Jermaine D. BLACKWELL. CCA 200100076.

No. 02-0935/MC. U.S. v. James R. HEALIS. CCA 200100565.

No. 01-0664/AR. U.S. v. Dennis P. COLLINS. CCA 9900937. Appellant's motions for leave to consolidate appellant's brief supporting petition for new trial and supplement to petition for grant of review, to attach defense appellate exhibits, to file index are granted; and appellee's motion for leave to file opposition out of time denied.

No. 02-0767/AF. U.S. v. John M. VINES, III. CCA 34437. Appellant's motion to submit documents granted.

No. 02-0867/AF. U.S. v. Randy D. EARLS. CCA S29959. Appellant's motion for leave to file omitted pages granted.

No. 02-0639/AF. U.S. v. Shawn E. KITTLE. CCA 34492.

No. 02-0760/AR. U.S. v. Jerry J. HEMPHILL. CCA 20000754.

No. 02-0921/AR. U.S. v. John E. FARRISH. CCA 9601617.

No. 02-0922/AR. U.S. v. Michael RODRIGUEZ. CCA 20010256.

No. 02-0923/AR. U.S. v. Gary J. STERLING. CCA 20000008.

No. 02-0924/AR. U.S. v. Joel A. DIAZ. CCA 20020217.

No. 02-0925/AR. U.S. v. Randy L. GRAHAM. CCA 20000725.

No. 02-0926/MC. U.S. v. Nathannael T. FRIAS. CCA 200100938.

No. 02-0927/NA. U.S. v. Jeremy M. JONES. CCA 200200923.

No. 02-0928/MC. U.S. v. Adam BOESE. CCA 200102161.

Misc. No. 02-8003/AF. United States v, respondent, v. Leslie D. RILEY, petitioner. CCA 32183. Appellant’s motion to withdraw petition for habeas corpus as moot granted.

No. 02-0548/MC. U.S. v. Joseph J. YOUNG. CCA 200101410. Appellant's fourth motion to extend time to file supplement to petition for grant of review out of time granted to September 27, 2002.

No. 02-0855/AR. U.S. v. Sean T. JOHNSON. CCA 9901042. Appellant's motion to extend time to file supplement to petition for grant of review granted to September 20, 2002.

No. 02-0859/MC. U.S. v. Vicente CHAVEZ. CCA 200200342. Appellant's motion to extend time to file supplement to petition for grant of review out of time granted to October 11, 2002.

No. 02-0866/AF. U.S. v. Robert J. CONE. CCA 34576. Appellant's motion to extend time to file supplement to petition for grant of review granted to September 27, 2002.

No. 02-0916/AR. U.S. v. Matt M. POWELL II. CCA 20000741.

No. 02-0917/MC. U.S. v. Edwin D. KINDER. CCA 200102114.

No. 02-0918/MC. U.S. v. Anthony L. BROWN. CCA 200101600.

No. 02-0919/AF. U.S. v. George GUTIERES. CCA 34450.

No. 02-0920/AF. U.S. v. Tyler W. WEST. CCA 34520.

Misc. No. 02-8029/NA. United States, appellee, v. Curtis T. LOBERGER, appellant. CCA 20021770. Writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b) on September 12, 2002 and placed on the docket this date.

No. 02-0911/AR. U.S. v. Michael W. ELVERUM. CCA 20010864.

No. 02-0912/AF. U.S. v. James A. JACKSON III. CCA S30120.

No. 02-0913/AF. U.S. v. Justin W. SLAIMAN. CCA 35074.

No. 02-0914/AF. U.S. v. Alfredo C. WILLIAMS. CCA 35045.

No. 02-0915/AF. U.S. v. Marsahn D. WILSON. CCA 34621.

No. 02-0212/AF. U.S. v. Lawrence E. JOSEY. CCA 33745. On further consideration of the above-entitled case, it appears that certain questions should be addressed by the parties prior to oral argument in this matter scheduled for October 15, 2002. Accordingly, it is ordered that within 10 calendar days of the date of issuance of this order, appellant shall submit a supplemental brief addressing the following matters to the extent that the pertinent matter is set forth in the record or is otherwise subject to judicial notice:

1. During all or any part of the time since his release from confinement, has appellant been in a status in which he was entitled to pay? To what extent, if at all, was appellant serving within a period of enlistment, or was otherwise entitled to pay, during all or part of his confinement?

2.Were automatic forfeitures deducted during appellant’s confinement?

3.To what extent would his status under (1) and (2), supra, affect the issue of whether appellant could be made whole under North Carolina v. Pearce, 395 U.S. 711 (1969), and other applicable law?

4.If automatic forfeitures were deducted during appellant’s confinement: (a) How much was deducted? (b) Were such forfeitures returned to appellant upon the reversal of appellant’s initial sentence? (c) To what extent would return of any forfeitures affect the issue of whether appellant could be made whole under Pearce?

5.What amount would be required to make appellant whole? What is the formula for appellant’s calculation?

6.Did the convening authority have the authority to suspend the effective date of reduction to provide the type of relief contemplated by Pearce? If so, how many days of suspended reduction would have been required to provide such relief?

7.If the convening authority had such authority, does an appellate court have the power to order a convening authority to take such action in order to provide the type of relief contemplated by Pearce?

No. 02-0359/NA. U.S. v. John M. GILBERT. CCA 200000668. Appellant's motion to extend time to file final brief granted to October 9, 2002.

No. 02-0853/AR. U.S. v. Travis L. GRIFFIN. CCA 20010193. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 11, 2022.

No. 02-0876/AR. U.S. v. Dennis MCMAHON. CCA 9901020. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 21, 2002.

No. 02-0910/MC. U.S. v. Esau K. ROPERBROCKMAN. CCA 200100176. Appellant's motion to attach granted.

No. 02-0270/AF. U.S. v. Michael J. MAHONEY. CCA 34209. Review granted on the following issues:

Briefs will be filed under Rule 25. Appellant's brief is due within thirty days after the Government fails to file a showing of good cause, or within thirty days after this Court's decision on any showing of good cause and reply thereto.

No. 02-0802/AR. U.S. v. Lawrence A. FRITZ, Jr. CCA 20000958.

No. 02-0809/AR. U.S. v. Jimmy GARCIA. CCA 9900453.

No. 00-0617/CG. U.S. v. William S. BENEDICT. CCA 1083.

No. 02-0910/MC. U.S. v. Esau K. ROPERBROCKMAN. CCA 200100176.

No. 98-0146/AF. U.S. v. Leslie D. RILEY. CCA 32183. Appellee's motion to extend time to file an answer to final brief granted but only up to and including October 9, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 02-0659/NA. U.S. v. Rene A. TRUJILLO. CCA 91-00502. Appellant's second motion out of time for an extension of time to file supplement to petition for grant of review granted but only up to and including September 25, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case..

No. 02-0825/NA. U.S. v. William H. EPPERSON. CCA 200100687. Appellant's motion out of time to extend time to file supplement to petition for grant of review granted to September 28, 2002.

No. 02-0857/MC. U.S. v. Kirk A. MCDANIEL. CCA 9801694. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 11, 2002.

No. 02-0609/AR. U.S. v. David J. KAISER. CCA 9900485. Review granted on the following issue:

No. 02-0594/AF. U.S. v. Keith V. HALPIN. CCA 34314.

No. 02-0595/AF. U.S. v. Rodney D. FORD. CCA 34601.

No. 02-0602/AR. U.S. v. Jimmy L. WHITE. CCA 9900201.

No. 02-0606/AF. U.S. v. Daryl C. HYDE. CCA 34536.

No. 02-0643/AR. U.S. v. Jamie PERSHAY. CCA 9800729.

No. 02-0645/AR. U.S. v. Michael D. MOSS. CCA 9900475.

No. 02-0778/AF. U.S. v. Alyssa A. PHARES. CCA 34483.

No. 02-0787/NA. U.S. v. Gloryann G. GALMAN. CCA 200100828.

No. 02-0788/MC. U.S. v. Matthew F. WILLIS. CCA 200001919.

No. 02-0793/AF. U.S. v. Jacquin R. KIRKMAN. CCA 34919.

No. 02-0794/AF. U.S. v. Luis R. MCLAUGHLIN. CCA 34992.

No. 02-0805/AF. U.S. v. Lydia M. SIMMONS. CCA S30050.

No. 02-0810/AR. U.S. v. Richard B. WEBSTER. CCA 20010948.

No. 02-0814/AF. U.S. v. Jonah S. VETTER. CCA S30096.

No. 02-0850/AF. U.S. v. Jason R. OTTERBINE. CCA 34818.

No. 02-0908/AR. U.S. v. William B. ANDREWS, Jr. CCA 20000496.

No. 02-0909/AR. U.S. v. Timothy L. ADAMS. CCA 20001094.

No. 02-0818/AF. U.S. v. Daniel J. GREENFIELD. CCA 34929. Appellant's motion to withdraw petition for grant of review granted.

No. 01-0647/AF. U.S. v. Shannon R. BULLMAN. CCA 34403.*/

No. 02-0895/AR. U.S. v. Rochester THOMAS. CCA 9800139.

No. 02-0896/MC. U.S. v. Stephen M. LEACH. CCA 200200467.

No. 02-0897/MC. U.S. v. Brad W. WILKERSON. CCA 200100431.

No. 02-0898/NA. U.S. v. William F. POOLE. CCA 200200492.

No. 02-0899/AF. U.S. v. Casey M. ARDIS. CCA S30084.

No. 02-0900/AF. U.S. v. Rashaad M. BESTER. CCA 35082.

No. 02-0901/AF. U.S. v. Rafael L. ELLISON. CCA S30072.

No. 02-0902/AF. U.S. v. Carl D. HICKS. CCA S30093.

No. 02-0903/AF. U.S. v. Hilton L. MULLIS. CCA 35142.

No. 02-0904/AF. U.S. v. John A. NICHOLS. CCA 34749.

No. 02-0905/AF. U.S. v. Brant W. VOLLENDORF. CCA 35141.

No. 02-0906/AF. U.S. v. Timothy P. WELCH. CCA 35076.

No. 02-0907/AF. U.S. v. David L. WILLIAMS. CCA 35077.

No. 02-0784/AR. U.S. v. Daniel J. SAUNDERS. CCA 9900899. Appellant's second motion to extend time to file supplement to petition for grant of review granted but only up to and including September 23, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case.

________

*/ Second petition filed.

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 will expire on September 30, 2002, are, this 5th day of September, 2002, hereby reappointed to the Rules Advisory Committee for a term expiring on September 30, 2005:

Mark J. Biros, Esq.
Prof. Mary M. Cheh
Paul J. Larkin, Jr., Esq.

Mr. Robert H. Troidl, Esq., is hereby appointed to complete the term of Mr. Joseph A. Neurauter, Esq., who submitted his resignation last year. Mr. Troidl’s term will expire on September 30, 2003.

LTC Margaret B. Baines, JA, U.S. Army, is hereby appointed to replace LTC Denise R. Lind, JA, U.S. Army, who has resigned from the Committee due to military transfer. LTC Baines’ term will expire on September 30, 2004.

The following members, whose terms expire on the dates indicated below, remain on the Rules Advisory Committee:

To expire on September 30, 2003:

Hon. Joseph H. Baum
John F. DePue, Esq.
Captain Carol J. Cooper, JAGC, U.S. Navy

Prof. Steven H. Goldblatt, Chair
Dwight H. Sullivan, Esq.
Thomas F. Granahan, Esq.

The Court expresses its deepest appreciation to Colonel James A. Young and LTC Denise R. Lind for their service as members of the Rules Advisory Committee.

No. 02-0776/AR. U.S. v. Evan P. KILBRIDE. CCA 20010026.

No. 02-0777/AR. U.S. v. Hans B. SOINE. CCA 20001018.

No. 02-0803/AR. U.S. v. Kerry O. MCKINNEY. CCA 20010196.

No. 02-0806/AF. U.S. v. Matthew R. LAFLECHE. CCA 35040.

No. 02-0894/MC. U.S. v. Roland L. MANIBUSAN. CCA 200001512.

Misc. No. 02-8027/AR. United States, appellee, v. Miles F. EDWARDS, appellant. CCA 20020295. Writ-appeal petition denied.

No. 02-0660/AR. U.S. v. Gary C. DICKSON. CCA 9900726. Appellant's motion to attach portions of a transcript from United States v. Degree, granted.

No. 02-0832/AR. U.S. v. Demetrius M. JAMES. CCA 9900568. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 4, 2002.

No. 01-0663/AR. U.S. v. Daniel E. MORGAN. CCA 9601890.

No. 01-0802/AR. U.S. v. Ramon S. GUTIERREZ, Jr. CCA 9900509.

No. 98-0646/AR. U.S. v. John A. WEISBECK. CCA 9502215.*/

No. 02-0048/AF. U.S. v. James A. SILLS. CCA 34323.*/

No. 02-0892/AR. U.S. v. Dameyan J. JACKSON. CCA 20010781.

No. 02-0893/MC. U.S. v. Travis W. FLOOD. CCA 200001478.

________

*/ Second petition filed.

No. 02-0657/AF. U.S. v. Patricia C. PHILLIPS. CCA 34147. Review granted on the following issue:

No. 02-0889/AR. U.S. v. Cesar R. BONILLA-CACERES. CCA 9901195.

No. 02-0890/AR. U.S. v. Clarence A. MOSS. CCA 20010391.

No. 02-0891/AR. U.S. v. Matthew L. ROBINSON. CCA 20010470.

Misc. No. 02-8027/AR. United States, appellee, v. Miles F. EDWARDS, appellant. CCA 20020295. Writ-appeal petition for review of the United States Army Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(a) on August 7, 2002 and placed on the docket this date.

Misc. No. 02-8028/NA. United States, appellee, v. Norbert Basil MacLEAN, III, appellant. CCA 92-2821. Writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b) on August 30, 2002 and placed on the docket this date.