UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-022
Friday, October 31, 2003

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0473/NA. U.S. v. Troy B. JENKINS. CCA 200101151. Review granted on the following issues:

I. WHETHER THE LOWER COURT'S VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT'S ANSWER BRIEF AS THAT COURT'S OPINION CONSTITUTES AN ABUSE OF DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.

II. WHETHER THE LOWER COURT ERRED WHEN IT CONSIDERED EVIDENCE OUTSIDE OF APPELLANT'S STATEMENTS DURING THE PROVIDENCE INQUIRY IN EVALUATING THE FACTUAL BASIS FOR APPELLANT'S PLEAS.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0560/AR. U.S. v. John L. PETERSON. CCA 20000759.

No. 03-0640/AF. U.S. v. Christian K. AMIAN. CCA S30290.

No. 03-0644/AR. U.S. v. William D. MOORE. CCA 20021087.

No. 03-0649/AF. U.S. v. Lydell A. DEGUZMAN. CCA S30283.

No. 03-0650/AF. U.S. v. Steven D. BOZEMAN. CCA S30243.

No. 03-0652/CG. U.S. v. Robert V. MAHONEY. CCA 1183.

No. 03-0672/AF. U.S. v. Robert GONZALEZ. CCA 35331.

No. 03-0681/AR. U.S. v. Jinglebob H. DAVIS. CCA 20021140.

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0090/MC. U.S. v. Eric W. SELL. CCA 200200458.

No. 04-0091/NA. U.S. v. Antonio M. SMITH. CCA 200300718.

No. 04-0092/MC. U.S. v. Brent D. MORGAN. CCA 200300837.

No. 04-0093/NA. U.S. v. Randy T. MIZZELL. CCA 200201847.

No. 04-0094/NA. U.S. v. John M. LENHART. CCA 200300175.

No. 04-0095/MC. U.S. v. Brian M. WYLIE. CCA 200301229.

No. 04-0096/NA. U.S. v. Carlos A. HERRERA-PACHEO. CCA 200300775.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-021
Thursday, October 30, 2003

CERTIFICATES FOR REVIEW FILED

No. 04-5001/AR. U.S. v. Ray T. LEAK. CCA 20000356. The Judge Advocate General, United States Army, requests that action be taken with respect to the following issue:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT EMPLOYED A "REASONABLE FEAR OF DEATH OR GRIEVOUS BODILY INJURY" STANDARD ON THE ISSUE OF CONSTRUCTIVE FORCE IN CONTRAVENTION OF THE CAAF’S HOLDING IN UNITED STATES v. SIMPSON.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 03-0688/NA. U.S. v. Stacie M. SOWELL. CCA 9901777. On consideration of Appellee’s motion to dismiss petition or in the alternative motion for extension of time and Appellant’s motion for leave to file a response to government’s reply and motion for extension of time to file supplement to petition for grant of review, it is ordered that said motion to dismiss the petition for grant of review is granted without prejudice to Appellant’s right to file a petition for grant of review on a subsequent date; that Appellant’s motion to file a response is denied; and that said motions for extension of time are denied as moot.

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0089/NA. U.S. v. Mark S. SARASUA. CCA 200100723.

INTERLOCUTORY ORDERS

No. 03-0361/AR. U.S. v. David R. THOMPSON. CCA 2000342. Appellant's motion to attach granted.

No. 03-0655/MC. U.S. v. Keith W. STROTHER. CCA 200000050. Appellant's second motion for extension of time to file supplement to petition for grant of review granted up to and including November 24, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-8014/NA. Salvador DIAZ, Petitioner, v. The Judge Advocate General of the Navy, Respondent. CCA 200200374. Motion filed by the National Institute of Military Justice for leave to file memorandum as amicus curiae and Petitioner’s motions to attach are granted.

No. 03-8014/NA. Salvador DIAZ, Petitioner, v. The Judge Advocate General of the Navy, Respondent. CCA 200200374. In reply to this Court’s order in the above-entitled case, 59 M.J. 34 (C.A.A.F. 2003), the United States Navy-Marine Corps Court of Criminal Appeals has submitted a "Response to Court Order." This response indicates that the lower court has reviewed the processing and status of the Petitioner’s case and issued orders for a fixed briefing scheduled before the lower court in this case. Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2000).

Additionally, the Clerk of Court of the Navy-Marine Corps Court of Criminal Appeals has submitted a letter to the Clerk of this Court indicating steps the Court of Criminal Appeals has taken to ensure timely appellate review of Navy-Marine Corps cases. Attached to this letter is a memorandum signed by the Assistant Judge Advocate General of the Navy outlining steps that the Judge Advocate General of the Navy has taken or will take with respect to appellate processing of courts-martial pursuant to Article 66.

The aforementioned responses are attached to this order as Appendix "A" (Response to Court Order with attachments) and Appendix "B" (Clerk of Court’s letter with attachments).


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-020
Wednesday, October 29, 2003

APPEALS - SUMMARY DISPOSITIONS

No. 02-0056/AF. U.S. v. Kerry J. NAZARIO. CCA 34221. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0056/AF. U.S. v. Kerry J. NAZARIO. CCA 34221. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0239/MC. U.S. v. Bryan P. BROWN. CCA 200200187.

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0087/NA. U.S. v. Albert G.H. KESKE. CCA 200201680.

No. 04-0088/AR. U.S. v. Gerran K. Harris. CCA 20030047.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-019
Tuesday, October 28, 2003

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0357/MC. U.S. v. Michael L. CUNNINGHAM. CCA 200101486.1/

No. 03-0611/MC. U.S. v. Chaussee A. GIBSON. CCA 200201007.2/

No. 03-0631/AR. U.S. v. John C. DODSON. CCA 20011018.3/

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0085/AR. U.S. v. Daniel R. WOODRUFF. CCA 20030464.

No. 04-0086/AR. U.S. v. James J. FRAZEE II. CCA 20030480.

__________

1/ It is directed that the promulgating order be corrected as it erroneously reflects that Appellant was charged with, pleaded guilty to, and was found guilty of a violation of Article 81, UCMJ.

2/ It is directed that the promulgating order be corrected to include a summary of the specifications on which Appellant was arraigned as required by R.C.M. 1114(c)(1).

3/ It is directed that the promulgating order be corrected to reflect that Charge III was a violation of Article 121, UCMJ, to which Appellant pleaded guilty.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-018
Monday, October 27, 2003

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0625/AF. U.S. v. Naomi C. HAMLETT. CCA S30171.

No. 03-0636/AF. U.S. v. Raymond S. HANNING. CCA 35343.

No. 03-0642/AR. U.S. v. Edward L. WIGGINS. CCA 20020572.

No. 03-0643/AR. U.S. v. Jesse G. HIMPHILL. CCA 20021352.

No. 03-0648/AF. U.S. v. Ryan W. WALDEN. CCA 35348.

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0083/AR. U.S. v. Samuel A. STERNER. CCA 20010358.

No. 04-0084/AR. U.S. v. Cory R. MOORE. CCA 20030680.

INTERLOCUTORY ORDERS

No. 03-0259/AR. U.S. v. Arthur MASON Jr. CCA 9601811. Appellant's motion to extend time to file final brief granted, but only up to and including November 17, 2003; 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. 04-017
Friday, October 24, 2003

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0520/AR. U.S. v. Frank J. RONGHI. CCA 20000635. Review granted on the following issue:

WHETHER CONFINEMENT FOR LIFE WITHOUT ELIGIBILITY FOR PAROLE WAS AN AUTHORIZED SENTENCE AT THE APPELLANT'S SENTENCING BECAUSE AT THAT TIME THE PRESIDENT HAD NOT ORDERED ITS IMPLEMENTATION.
PETITIONS FOR GRANT OF REVIEW FILED

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

No. 04-0056/MC. U.S. v. Brian S. MUNOZ. CCA 200300632.

No. 04-0057/MC. U.S. v. Robert J. MEAD. CCA 200300696.

No. 04-0058/MC. U.S. v. Marshall W. TALLEY. CCA 200301000.

No. 04-0059/MC. U.S. v. Jacob A. GARCIA. CCA 200101606.

No. 04-0060/NA. U.S. v. Shannon W. BENNETT. CCA 01-1473.

No. 04-0061/NA. U.S. v. Dejuan R. ALLOWAY. CCA 200300485.

No. 04-0062/MC. U.S. v. Charles W. NEWMAN. CCA 200201731.

No. 04-0063/MC. U.S. v. Jeremy A. DEMARCE. CCA 200300648.

No. 04-0064/MC. U.S. v. Andrew G. MORTENSON. CCA 200201635.

No. 04-0065/MC. U.S. v. Jose R. AGUILAR. CCA 200300958.

No. 04-0066/MC. U.S. v. Wesley R. RUNIONS. CCA 200102075.

No. 04-0067/MC. U.S. v. Timothy T. RYAN. CCA 9900374.

No. 04-0068/MC. U.S. v. Richie S. MARQUEZ. CCA 200100916.

No. 04-0069/MC. U.S. v. David Y. OWENS. CCA 200200427.

No. 04-0070/MC. U.S. v. Dax H. O. NESS. CCA 200301107.

No. 04-0071/NA. U.S. v. Odells W. SIMS. CCA 200201986.

No. 04-0072/AR. U.S. v. Paul R. BENSON. CCA 20030273.

No. 04-0073/AF. U.S. v. Matthew D. BRIDGES. CCA 35088.

No. 04-0074/AF. U.S. v. Hubert C. COLEMAN. CCA S30213.

No. 04-0075/AF. U.S. v. Antonio C. FOWLKES. CCA 35393.

No. 04-0076/AF. U.S. v. Alan E. GORHAM. CCA S30211.

No. 04-0077/AF. U.S. v. Steven J. HERGOTT, Jr. CCA S30228.

No. 04-0078/AF. U.S. v. Randi L. HESS. CCA 34810.

No. 04-0079/AF. U.S. v. Jacob D. MCAFEE. CCA S30097.

No. 04-0080/AF. U.S. v. Jason RODRIGUEZ. CCA 35210.

No. 04-0081/AF. U.S. v. Mathew P. SCHEURER. CCA 34866.

No. 04-0082/AF. U.S. v. Shane T. SEIDER. CCA 35154.

__________

*/ Second petition filed in this case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-016
Thursday, October 23, 2003

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0566/MC. U.S. v. Spencer W. QUICK. CCA 200001657. Review granted on the following issue:

WHETHER THE LOWER COURT ERRED IN CONCLUDING THAT APPELLANT WAS NOT PREJUDICED BY HIS TRIAL DEFENSE COUNSEL'S CONCESSION DURING HIS SENTENCING ARGUMENT THAT APPELLANT DESERVED A DISHONORABLE DISCHARGE, AND THAT CONFINEMENT FOR 40 YEARS OR LESS WAS NOT EXCESSIVE, BECAUSE "THE REASONABLE LIKELIHOOD THAT THE APPELLANT WOULD HAVE RECEIVE[D] AT LEAST A DISHONORABLE DISCHARGE AND CONFINEMENT WELL IN EXCESS OF 40 YEARS CANNOT BE DOUBTED."
PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0053/AR. U.S. v. Joseph L. REID. CCA 20011077.

No. 04-0054/AR. U.S. v. James M. THOMPSON. CCA 20021054.

No. 04-0055/NA. U.S. v. Martin MONITA III. CCA 200201674.



 
 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-015
Wednesday, October 22, 2003

HEARINGS

No. 03-0208/AF. U.S. v. Stanley L. HARDEMAN Jr. CCA S30117.

No. 03-0212/AR. U.S. v. Billy E. CAIN. CCA 9800797.

No. 03-0271/AF. U.S. v. Douglas L. SAFERITE Jr. CCA 34378.

No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 9600822.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0342/AF. U.S. v. Marcus A.R. COLLADO. CCA S30032.

No. 03-0519/MC. U.S. v. Jason N. BARLOW. CCA 9901699.

No. 03-0576/NA. U.S. v. Christopher J. MELBOURNE. CCA 200100560.

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0052/AR. U.S. v. Terry D. McDONALD. CCA 20000942.

INTERLOCUTORY ORDERS

No. 98-0497/NA. U.S. v. Charles W. DAVIS. CCA 9600585. Appellant's motion to extend time to file supplement to petition for grant of review granted to November 21, 2003.

No. 03-0678/AR. U.S. v. John H. STEBBINS. CCA 20000497. Appellant's motion to file brief in excess of fifty pages granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-014
Tuesday, October 21, 2003

HEARINGS

No. 02-0603/AR. U.S. v. Michael A. PAULING. CCA 9700685.

No. 02-0885/AF. U.S. v. Stephanie R. TRAUM. CCA 34225.

No. 03-0072/AF. U.S. v. Joshua P. LOVETT. CCA 33947.

No. 03-0093/AR. U.S. v. Javier SANTOS. CCA 9900559.

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0050/NA. U.S. v. Jacob E. ZAMORA. CCA 200101149.

No. 04-0051/NA. U.S. v. Charles C. CLAPPERTON. CCA 200200188.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-013
Monday, October 20, 2003

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0612/NA. U.S. v. Tyrone MCLAURIN. CCA 200300128.

No. 03-0621/AR. U.S. v. Joseph T. GORDON. CCA 20010892.

No. 03-0657/MC. U.S. v. Issac HERNANDEZ. CCA 200202161.

INTERLOCUTORY ORDERS

No. 97-0051/NA. U.S. v. Joie L. GILES. CCA 95-0903. Appellant's motion to attach granted.

MANDATES ISSUED

No. 02-0874/AF. U.S. v. Ricky L. WALTERS II. CCA 34575.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-012
Friday, October 17, 2003

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0522/MC.  U.S. v. Matthew S. KAHMANN.  CCA 200200355.  Review granted on the following issue:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY ADMITTING EVIDENCE OF A PRIOR SUMMARY COURT-MARTIAL CONVICTION DURING PRESENTENCING WHEN THERE WAS NO SHOWING THAT THE ACCUSED HAD AN OPPORTUNITY TO SPEAK WITH COUNSEL BEFORE THE SUMMARY COURT-MARTIAL AND NO EVIDENCE SHOWING COMPLIANCE WITH THE REVIEW REQUIREMENTS UNDER ARTICLE 64, UCMJ.
PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0047/AR.  U.S. v. Jeffrey K. CHALUTO.  CCA 20030144.
No. 04-0048/MC.  U.S. v. Daniel A. DEERY.  CCA 200300676.
No. 04-0049/MC.  U.S. v. Marcus K. LACY.  CCA 200100309.

PETITIONS FOR RECONSIDERATION DENIED

No. 02-0874/AF.  U.S. v. Ricky L. WALTERS.  CCA 34575.  Appellee’s petition for reconsideration of the Court’s opinion issued on July 1, 2003, is denied.*/

INTERLOCUTORY ORDERS

No. 03-0583/NA.  U.S. v. Ramoncito FABRA.  CCA 200201696.  In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted.

No. 03-0630/AR.  U.S. v. Shamaine N. JENKINS.  CCA 20021340.  Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 03-8007/AR.  U.S. v. Dwight J. LOVING.  CCA 8901123.  Motion filed by the United States Navy-Marine Corps Appellate Defense Division for oral argument as amicus curiae, is granted; and amicus curiae will be allotted 10 minutes to present oral argument.

__________

*/  CRAWFORD, Chief Judge (dissenting):

In my view, the Government’s petition for reconsideration should be granted.  On only one other occasion, in more than 11 years, have I dissented in this Court’s denial of a petition for reconsideration.  I do so again today to reiterate the Supreme
Court’s important and explicitly delineated exception to the one-trial rule -- an exception that applies without question to this case.  Indeed, Appellant waived his double jeopardy claim by appealing his case, and cannot now avoid a rehearing on double jeopardy grounds.  See Sattazahn v. Pennsylvania, 537 U.S. 101 (2003); United States v. Wilson, 420 U.S. 332, 344 n.11 (1975); Green v. United States, 355 U.S. 184, 189 (1957); United States v. Ball, 163 U.S. 662, 672 (1896).

There is no question that Appellant used drugs unlawfully on one occasion.  The members, in their great fact-finding capacity, determined this beyond a reasonable doubt.  See Article 51, Uniform Code of Military Justice, 10 U.S.C. § 851 (2000).  Nevertheless, it is unclear from the members’ findings on which occasion Appellant did use drugs.  Therefore, the proper action for this Court to take is to remand Appellant’s case for a rehearing to determine the specific occasion on which Appellant used drugs.

As I noted in my prior dissent, this course of action is certainly the most just.

It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.  From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution.  Inreality, therefore, the practice of retrial serves defendants’ rights as well as society's interest.
United States v. Tateo, 377 U.S. 463, 466 (1964) (emphasis added).


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-011
Thursday, October 16, 2003

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0040/AR. U.S. v. William C. BROWNING. CCA 20021007.

No. 04-0041/AR. U.S. v. Jesse R. CRISOSTO. CCA 20020974.

No. 04-0042/AR. U.S. v. Shapour MEGHDADI. CCA 20000029.

No. 04-0043/AR. U.S. v. Anthony M. GRUBBA. CCA 20030063.

No. 04-0044/AR. U.S. v. Terrick C. FINKLEA. CCA 20020927.

No. 04-0045/AR. U.S. v. Benjamin A. MULLIN. CCA 20021381.

No. 04-0046/AR. U.S. v. Travis D. WRIGHT. CCA 20000916.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-010
Wednesday, October 15, 2003

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0481/AR. U.S. v. Jerome W. FORD. CCA 20010841.*/

No. 03-0528/MC. U.S. v. Daniel J. OCONNOR. CCA 200202226.

No. 03-0548/MC. U.S. v. Donte T. LEWIS. CCA 200201517.

No. 03-0593/AF. U.S. v. Brett P. COLVIN. CCA S30176.

No. 03-0599/AF. U.S. v. Russell B. WOODLEY. CCA 35372.

No. 03-0602/AR. U.S. v. Michael D. SQUIRES. CCA 20020643.

No. 03-0619/AR. U.S. v. Charles E. CURRY Jr. CCA 20020567.

No. 03-0634/AF. U.S. v. Jennifer N. MACK. CCA S30172.

No. 03-0637/AR. U.S. v. Dalyn L. MORRIS. CCA 20010767.

No. 03-0641/AF. U.S. v. Daniel J. MAGEE. CCA S30294.

__________

*/ In the response to Appellant’s petition supplement, Government Appellate Counsel requested that this Court review the conclusion by the Court of Criminal Appeals that the plea was improvident. The request is denied. If the Government desires to obtain review of a decision by the Court of Criminal Appeals, the appropriate avenue is through a request that the Judge Advocate General concerned certify an issue under Article 67(a)(2), 10 U.S.C. § 867(a)(2) (2000).


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-009
Tuesday, October 14, 2003

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 03-0659/NA. U.S. v. James C. BISHOP. CCA 200202383. On consideration of Appellant’s motion to file the petition for grant of review out of time, we note the absence of record evidence indicating attempted service of the United States Navy-Marine Corps Court of Criminal Appeals decision on Appellant and the absence of a special power of attorney. Under these particular circumstances, we are not prepared to presume that appellate defense counsel has been authorized by appellant to file the petition in this case. Cf. United States v. Daly, 4 M.J. 145 (C.M.A. 1977)(memorandum opinion). We also note that under the circumstances, the 60-day period under Article 67(b) has neither been triggered nor expired. Accordingly, the motion is hereby dismissed without prejudice.

No. 03-0662/NA. U.S. v. Ronald E. SISTRUNK. CCA 200200314. On consideration of Appellant’s motion to file the petition for grant of review out of time, we note the absence of record evidence indicating attempted service of the United States Navy-Marine Corps Court of Criminal Appeals decision on Appellant and the absence of a special power of attorney. Under these particular circumstances, we are not prepared to presume that appellate defense counsel has been authorized by appellant to file the petition in this case. Cf. United States v. Daly, 4 M.J. 145 (C.M.A. 1977)(memorandum opinion). We also note that under the circumstances, the 60-day period under Article 67(b) has neither been triggered nor expired. Accordingly, the motion is hereby dismissed without prejudice.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 04-8001/AF. Doncosta E. SEAWELL, Petitioner, v. United States, Respondent. Petition for extraordinary relief in the nature of a writ of prohibition denied.

INTERLOCUTORY ORDERS

No. 02-0457/AR. U.S. v. Brian P. ADAMS. CCA 20000431. Appellant's motion to attach defense appellate exhibits granted.

No. 03-0557/MC. U.S. v. Michael D. STRAND. CCA 200000275. Appellant's motion to extend time to file final brief granted up to and including November 14, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-0660/MC. U.S. v. Eric J. SUBJECT. CCA 200100426. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant will file a supplement to the petition under Rule 21 on or before November 13, 2003. Appellee may file an answer within thirty days thereafter.

No. 03-0661/MC. U.S. v. Villamor B. HABON. CCA 200200750. It appearing that there is no evidence in the record reflecting service of the United States Navy-Marine Corps Court of Criminal Appeals Division on Appellant or his defense counsel, Appellant's motion to file petition for grant of review out of time is dismissed as moot. Appellant will file a supplement to the petition under Rule 21 on or before November 13, 2003. Appellee may file an answer within thirty days thereafter.

No. 03-0663/NA. U.S. v. Nicholas L. HALE. CCA 200202311. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant will file a supplement to the petition under Rule 21 on or before November 13, 2003. Appellee may file an answer within thirty days thereafter.

No. 03-0664/NA. U.S. v. Wade J. BRADFORD. CCA 200300221. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant’s supplement, previously submitted to the Court, will be deemed filed this date; Appellee may file an answer within thirty days thereafter.

No. 03-0665/MC. U.S. v. Matthew W. MCCLELLAN. CCA 200202320. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant’s supplement, previously submitted to the Court, will be deemed filed this date; Appellee may file an answer within thirty days thereafter.

No. 03-0666/MC. U.S. v. James H. SEO. CCA 200200228. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant’s supplement, previously submitted to the Court, will be deemed filed this date; Appellee may file an answer within thirty days thereafter.

No. 03-0667/NA. U.S. v. Marion W. MOSLEY. CCA 200202023. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant’s supplement, previously submitted to the Court, will be deemed filed this date; Appellee may file an answer within thirty days thereafter.

No. 03-0668/MC. U.S. v. Jackson J. KING. CCA 200300036. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant’s supplement, previously submitted to the Court, will be deemed filed this date; Appellee may file an answer within thirty days thereafter.

No. 03-0669/NA. U.S. v. Jorge PEREZ. CCA 200300023. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant’s supplement, previously submitted to the Court, will be deemed filed this date; Appellee may file an answer within thirty days thereafter.

No. 03-0670/MC. U.S. v. Jason L. GAGNON. CCA 200201929. In light of United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion to file petition for grant of review out of time is granted. Appellant’s supplement, previously submitted to the Court, will be deemed filed this date; Appellee may file an answer within thirty days thereafter.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-008
Friday, October 10, 2003

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0028/AF. U.S. v. Malachi WILLIAMS. CCA S30375.

No. 04-0029/AF. U.S. v. Kenneth C. SUTTON. CCA S30153.

No. 04-0030/AF. U.S. v. Daniel A. SHARP. CCA S30366.

No. 04-0031/AF. U.S. v. Robert G. REEDS. CCA S30237.

No. 04-0032/AF. U.S. v. Aaron J. NEWSOME. CCA S30295.

No. 04-0033/AF. U.S. v. Christopher L. GRAFFT. CCA 35423.

No. 04-0034/AF. U.S. v. Kahari D. LARRY. CCA S30347.

No. 04-0035/AF. U.S. v. Nathen C. FISHER. CCA S30260.

No. 04-0036/AF. U.S. v. Adam M. DISIERE. CCA S30270.

No. 04-0037/AF. U.S. v. Isaac E. DAVIS, Jr. CCA S30292.

No. 04-0038/AF. U.S. v. Marc D. CONSTANTINO. CCA 35562.

No. 04-0039/AF. U.S. v. Jeremy C. WOODIE. CCA S30387.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 04-8001/AF. Doncosta E. SEAWELL, Petitioner, v. United States, Respondent. Petition for extraordinary relief in the nature of a writ of prohibition was filed under Rule 27(a) on September 23, 2003 and placed on the docket this date.

INTERLOCUTORY ORDERS

No. 03-0433/CG. U.S. v. Darrell R. STIREWALT. CCA 1089. Appellant's motion to attach granted.

No. 03-0652/CG. U.S. v. Robert V. MAHONEY. CCA 1183. Appellant's motion to attach granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-007
Thursday, October 09, 2003

APPEALS - SUMMARY DISPOSITIONS

No. 03-0394/AF. U.S. v. Hector R. GONZALEZ Jr. CCA 34691. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is granted on the following issue specified by the Court:

IN VIEW OF THE CONCLUSION OF THE AIR FORCE COURT OF CRIMINAL APPEALS THAT TRIAL DEFENSE COUNSEL DID NOT EXERCISE REASONABLE DILIGENCE IN DISCOVERING THE ERRONEOUS TEST REPORT, WHETHER APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL. That the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the United States Air Force Court of Criminal Appeals for consideration of this issue. Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2000), shall apply. This is without prejudice to appellant’s right to resubmit any assignments of error in a subsequent petition for grant of review to this Court. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0394/AF. U.S. v. Hector R. GONZALEZ Jr. CCA 34691. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0026/CG. U.S. v. Jordan D. ISAAC. CCA 1179.

No. 04-0027/AR. U.S. v. Cameron T. FELDER. CCA 20021011.

INTERLOCUTORY ORDERS

No. 03-0616/MC. U.S. v. James S. STEUDL. CCA 200201625. Appellant's motion to attach documents to the record granted.

MANDATES ISSUED

No. 02-0513/AR. U.S. v. Juan F. DIAZ Jr. CCA 9900768.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-006
Wednesday, October 08, 2003

HEARINGS

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

No. 03-0152/NA. U.S. v. Thomas W. DOWTY. CCA 9901701.

No. 03-0279/NA. U.S. v. Jaime J. PINERO. CCA 20011373.

No. 03-5003/AR. U.S. v. Dathan O. CHISHOLM. CCA 9900240.

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0011/AR. U.S. v. Christopher D. HAMMONDS. CCA 20000736.

No. 04-0012/AR. U.S. v. Antoine W. ENSLEY. CCA 20010555.

No. 04-0013/AF. U.S. v. Blake A. BRITNER. CCA 35464.

No. 04-0014/NA. U.S. v. James A. HENSON. CCA 200100964.

No. 04-0015/MC. U.S. v. Joseph W. RUSSELL. CCA 200300651.

No. 04-0016/MC. U.S. v. Soladad R. STEARNS. CCA 200300565.

No. 04-0017/MC. U.S. v. Trevor M. BESS. CCA 200300356.

No. 04-0018/MC. U.S. v. Edgar ANDRADE-GONZALES. CCA 200300597.

No. 04-0019/MC. U.S. v. Shaun PEOPLES. CCA 200202094.

No. 04-0020/MC. U.S. v. Jason D. CLARK. CCA 200300574.

No. 04-0021/MC. U.S. v. Ryan P. NOHALTY. CCA 200300501.

No. 04-0022/MC. U.S. v. Zachary L. HENDRICKSON. CCA 200300563.

No. 04-0023/MC. U.S. v. Nathaniel J. LOFTIS. CCA 200300006.

No. 04-0024/MC. U.S. v. Michael D. OLSON. CCA 200102063.

No. 04-0025/NA. U.S. v. Geoffrey M. STEPHENS. CCA 200202244.

INTERLOCUTORY ORDERS

No. 03-0151/MC. U.S. v. Fernando GARCIA. CCA 9901513. Appellee's motion to extend time to file answer to final brief granted up to and including October 17, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-0321/AR. U.S. v. Rodney CRAIG. CCA 99-00815. Appellant's motion to extend time to file final brief granted, but only up to and including October 23, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-0369/AR. U.S. v. Patrick L. SIMMONS. CCA 20000153. Appellant's motion to extend time to file final brief granted, but only up to and including October 27, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 04-0013/AF. U.S. v. Blake A. Britner. CCA 35464. Notice is hereby given that a petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals and a supplement to said petition were offered for filing under Rules 20 and 21, together with appellant’s motion to file the same out of time on this date. Appellee shall file an answer to Appellant’s motion on or before the 16th day of October, 2003. Further action on the petition shall be held in abeyance pending the Court’s final action on the motion.

No. 04-0024/MC. U.S. v. Michael D. Olson. CCA 2001020263. Notice is hereby given that a petition for grant of review was offered for filing under Rules 20, together with appellant’s motion to file the same out of time and to attach on this date. Appellee shall file an answer to Appellant’s motion on or before the 16th day of October, 2003. Further action on the petition shall be held in abeyance pending the Court’s final action on the motion.

No. 04-0025/NA. U.S. v. Geoffrey M. Stephens. CCA 200202244. Notice is hereby given that a petition for grant of review was offered for filing under Rules 20, together with appellant’s motion to file the same out of time and to attach on this date. Appellee shall file an answer to Appellant’s motion on or before the 16th day of October, 2003. Further action on the petition shall be held in abeyance pending the Court’s final action on the motion.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-005
Tuesday, October 07, 2003

HEARINGS

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

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

No. 03-0109/AF. U.S. v. Ronald C. ROBERTS. CCA 34236.

No. 03-5002/AR. U.S. v. Joshua M. FAGAN. CCA 20000891.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0302/NA. U.S. v. Roscoe M. NICHOLAS. CCA 200102036.

No. 03-0388/MC. U.S. v. David C. SMITH. CCA 200200580.

No. 03-0468/AR. U.S. v. Katrina D. MIDDLETON. CCA 20020406.

No. 03-0604/AR. U.S. v. Christopher J. BROWN. CCA 20020264.

No. 03-0606/AR. U.S. v. Kenneth B. BURKES. CCA 20010618.

No. 03-0609/AR. U.S. v. Umar R. ABDUR-RAHIM. CCA 20020592.

No. 03-0610/AR. U.S. v. Billy G. STOVER Jr. CCA 20010524.

No. 03-0623/AR. U.S. v. Donald E. TAYLOR. CCA 20020645.

No. 03-0627/AF. U.S. v. Richard J. MCGEE. CCA S30202.

INTERLOCUTORY ORDERS

No. 03-0646/AR. U.S. v. Michael S. FARLEY. CCA 20001079. Appellant's motion to extend time to file supplement to petition for grant of review granted to November 5, 2003.

No. 03-0671/MC. U.S. v. Santiago F. SOLORIO. CCA 200300603. Appellant's motion to attach granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-004
Monday, October 06, 2003

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0009/AR. U.S. v. Mavis C. TRIGGS. CCA 20020209.

No. 04-0010/NA. U.S. v. James A. ROBINSON. CCA 200000681.

INTERLOCUTORY ORDERS

No. 02-0944/AF. U.S. v. Eric P. MARCUM. CCA 34216. Motion for leave to file brief as amici curiae and motion of retired members of the military for leave to join brief of amici curiae of ACLU, ACLU-NCA, LAMBDA LEGAL, and SLDN in support of appellant, are granted.

No. 03-0645/AR. U.S. v. Joshua O. BYNUM. CCA 20001020. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 17, 2003.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-003
Friday, October 03, 2003

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0003/AR. U.S. v. Jason T. DOERFLINGER. CCA 20020824.

No. 04-0004/AF. U.S. v. David Z. ARIAS. CCA 35528.

No. 04-0005/AF. U.S. v. Joshua T. ELMORE. CCA 35421.

No. 04-0006/AF. U.S. v. Erick R. FABIAN. CCA 34903.

No. 04-0007/AF. U.S. v. Vincent P. JONIAK. CCA 35469.

No. 04-0008/AF. U.S. v. David B. MOYER. CCA 35103.

INTERLOCUTORY ORDERS

No. 03-5002/AR. U.S. v. Joshua M. FAGAN. CCA 20000891. Motion filed by Lieutenant Lars C. Johnson to withdraw from presenting oral argument as amicus curiae granted.

No. 03-8007/AR. United States, Respondent, v. Dwight J. LOVING, Petitioner. CCA 8901123. Petitioner's motion for oral argument is granted; and the above-entitled action will be called for hearing at 1:00 p.m. on the 14th day of January, 2004.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-002
Thursday, October 02, 2003

HEARINGS

No. 03-0128/AF. U.S. v. Gregory P. BANKER. CCA 34531.*/

PETITIONS FOR GRANT OF REVIEW FILED

No. 04-0002/NA. U.S. v. Ryan J. WILSON. CCA 200200954.

INTERLOCUTORY ORDERS

No. 02-0060/MC. U.S. v. Anthony L. JONES. CCA 200100066. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 30, 2003.

No. 03-0643/AR. U.S. v. Jesse G. HIMPHILL. CCA 20021352. Appellant's motion to attach certificate of filing and service granted.

__________

*/ Hearing held at the Creighton University School of Law, Omaha, Nebraska, as part of the Court’s "Project Outreach" Program.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-001
Wednesday, October 01, 2003

HEARINGS

No. 03-0106/AF. U.S. v. Christopher D. WIEST. CCA 33964.*/

PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0386/NA. U.S. v. Keith E. STACKHOUSE. CCA 200100994.

No. 03-0392/AF. U.S. v. Daniel R. CAMINITI. CCA 34562.

No. 03-0494/AF. U.S. v. Paul J. BELLESEN. CCA S30045.

No. 03-0513/MC. U.S. v. Jonathan P. THOMPSON. CCA 20011624.

No. 03-0546/AR. U.S. v. Lucas A. MCDOWELL. CCA 20020495.

No. 03-0597/AF. U.S. v. John R. MONTALVO II. CCA 35239.

No. 03-0603/AR. U.S. v. Daniel W. RICHARDSON. CCA 20021024.

No. 03-0615/MC. U.S. v. April E. BIELLER. CCA 200200617.

No. 03-0624/AF. U.S. v. Jason E. BROWN. CCA 35370.

No. 03-0628/AF. U.S. v. Mario B. VALDIVIA. CCA 35425.

PETITIONS FOR GRANT OF REVIEW FILED

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

No. 04-0001/MC. U.S. v. Erik A. MISCHLICH. CCA 200200692.

INTERLOCUTORY ORDERS

No. 03-0093/AR. U.S. v. Javier SANTOS. CCA 9900559. Appellant's motion for leave to file out of time pro se brief on the granted issues granted.

No. 03-0136/AR. U.S. v. Calvin N. GLOVER. CCA 9901132. Appellant's motion for leave to file additional matters pursuant to U.S. v. Grostefon, 12 M.J. 431 (C.M.A. 1982), granted.

Judge BAKER did not participate.

No. 03-0152/NA. U.S. v. Thomas W. DOWTY. CCA 9901701. Motion filed by the National Institute of Military Justice to present oral argument as amicus curiae granted; and the amicuscuriae will be allotted 15 minutes to present oral argumemt.

No. 03-0403/NA. U.S. v. Robert F. BRINTON. CCA 200001971. Appellant's motion to attach documents granted.

__________

*/ Hearing held at the Offutt AFB, Nebraska, as part of the Court’s "Project Outreach" Program.

**/ Second petition filed in this case.


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