UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-247

Friday, September 29, 2006

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0954/AF.  U.S. v. Aaron G. POLINARD.  CCA 35806.

No. 06-0955/AF.  U.S. v. Ryan L. PERRY.  CCA S31028.

No. 06-0956/AF.  U.S. v. Bradford D. SCOTT.  CCA 36392.

No. 06-0957/AF.  U.S. v. Matthew T. ST ONGE.  CCA 36525.

 

 

ANNOUNCEMENT

 

BY THE

 

CLERK OF THE COURT

 

OF THE

 

CUMULATIVE SUMMARY OF

 

COURT WORKLOAD STATISTICS

 

FOR THE OCTOBER 2006 TERM OF COURT

 

 

I.   CUMULATIVE PENDING OCTOBER 1, 2005

 

Master Docket . . . . . . . . . . . . . . . . .   87

Petition Docket . . . . . . . . . . . . . . . .  252

Miscellaneous Docket. . . . . . . . . . . . . .    6

TOTAL . . . . . . . . . . . . . . . . . . . . .  345

 

II.  CUMULATIVE FILINGS

 

Master Docket . . . . . . . . . . . . . . . . .  116

Petition Docket . . . . . . . . . . . . . . . .1,006

Miscellaneous Docket. . . . . . . . . . . . . .   23

TOTAL . . . . . . . . . . . . . . . . . . . . .1,145

 

III. CUMULATIVE TERMINATIONS

 

Master Docket . . . . . . . . . . . . . . . . .  165

Petition Docket . . . . . . . . . . . . . . . .1,018

Miscellaneous Docket. . . . . . . . . . . . . .   29

TOTAL . . . . . . . . . . . . . . . . . . . . .1,212

 

IV.  CUMULATIVE PENDING OCTOBER 1, 2006

 

Master Docket . . . . . . . . . . . . . . . . .  38*

Petition Docket . . . . . . . . . . . . . . . . 240

Miscellaneous Docket. . . . . . . . . . . . . .   0

TOTAL . . . . . . . . . . . . . . . . . . . . . 278

 

 

* Comparative Master Docket figures for the past 10 years are: 87 (FY05); 51 (FY04); 49 (FY03); 50 (FY02); 60 (FY01); 70 (FY00); 77 (FY99); 105 (FY98); 289 (FY97); 73 (FY96).

 

 

V.  CASES ON MASTER DOCKET CARRIED OVER TO OCTOBER 2007 TERM OF COURT

 

AWAITING ORAL ARGUMENT OR FINAL DISPOSITION (20)

 

                   00-0252/AR – McALLISTER

                   03-0071/AF – LEE

                   05-0503/AF – IRVIN

                   05-0563/MC – SIMON

                   05-0565/AR – PEREZ

                   05-0779/MC – CLAY

                   06-0064/NA – HARDISON

                   06-0091/AF – PENA

                   06-0116/AF – CRAFTER

                   06-0119/NA – RANKIN

                   06-0178/AF – BRIGGS

                   06-0238/NA – FOSTER

                   06-0291/NA – TATE

                   06-0314/AF – TERRY

                   06-0319/MC – TAYLOR

                   06-0350/NA – THOMAS

                   06-0427/AR – LAWRENCE

                   06-0503/NA – WILSON

                   06-5005/AR – GUTIERREZ

                   06-6005/AF – COSSIO

 

                   AWAITING BRIEFS (18)

 

                   05-0157/NA – LUKE

                   06-0001/AR – ECKARD

                   06-0050/AR – CARRUTHERS

                   06-0060/AF – BROOKS

                   06-0207/AF – MORAN

                   06-0403/MC – SHAW

                   06-0439/AF – DAVIS

                   06-0474/AF – HARROW

                   06-0520/AR – GREEN

                   06-0571/AF – BARRETT

                   06-0567/AF – LEEDY

                   06-0591/AR – GARDINIER

                   06-0610/AR – WISE

                   06-0615/AF – LEONARD

                   06-0617/AR – SANCHEZ

                   06-0675/MC – FLORES

                   06-0695/AF – PAXTON

                   06-0714/AR - ADCOCK

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-246

Thursday, September 28, 2006

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0103/MC.  U.S. v. Daniel W. STEPHENS.  CCA 200100754.  On further consideration of the granted issues, 61 M.J. 207 (C.A.A.F. 2005),1 the briefs and oral argument submitted by the parties, and the decision of the Court of Criminal Appeals, we conclude that neither granted issue has merit.  Issue I invites this Court to review a decision of the Court of Criminal Appeals on a military judge’s ruling.  In this situation, “we typically have pierced through that intermediate level” and have examined the military judge’s ruling, and then decided whether the Court of Criminal Appeals was right or wrong in its examination of the military judge’s ruling.  See United States v. Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996).  Approaching Issue I in this manner, we hold that the military judge did not err in declining to give Appellant sentencing credit for a previous nonjudicial punishment.  Appellant disobeyed an order to receive the anthrax vaccination on or around December 9, 1998.  For this offense, he was nonjudicially punished in accordance with Article 15, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 815 (2000).  In October of 1999, Appellant was again given an order to receive the anthrax vaccination and told that further refusal would result in a court-martial.  The first order was by Appellant’s squadron commander while on temporary assignment on board ship.  Appellant was in a different command for the second order ten months later, which was given by a different commander, where all members of the command were being vaccinated.

 

We therefore conclude that there were separate orders by two different commanding officers and that Appellant was not entitled to a sentencing credit under this Court’s holding in United States v. Pierce, 27 M.J. 367 (C.M.A. 1989).  As to Issue II, in light of this Court’s opinion in United States v. Kisala, __ M.J. __ (C.A.A.F. September 27, 2006), we hold that the order directing Appellant to receive the anthrax vaccine was a lawful order which he disobeyed in violation of Article 90, UCMJ, 10 U.S.C. § 890 (2000).  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.        

______

 

1  I. WHETHER THE MILITARY JUDGE ERRED WHEN HE DECLINED TO GIVE APPELLANT SENTENCING CREDIT FOR A PREVIOUS NONJUDICIAL PUNISHMENT FOR REFUSING TO RECEIVE ANTHRAX VACCINE ABSORBED IN ACCORDANCE WITH UNITED STATES v. PIERCE, 27 M.J. 367 (C.M.A. 1989).

 

II. WHETHER THE ORDER DIRECTING APPELLANT TO RECEIVE ANTHRAX VACCINE ABSORBED ON OCTOBER 5, 1999, WAS UNLAWFUL.

 

 

No. 05-0505/MC.  U.S. v. Jared G. SCHWARTZ.  CCA 200101043.

 

No. 05-0506/NA.  U.S. v. Zachary A. JOHNSON.  CCA 200201024.

 

No. 05-0508/MC.  U.S. v. Jared E. JOHNSTON.  CCA 200301051.

 

In each of the above cases, on consideration of granted issue I, in light of United States v. Kisala, __ M.J. __ (C.A.A.F. September 27, 2006), the order for Appellant to receive the anthrax vaccination was lawful.  On consideration of granted issue II, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

I concur in the result in these cases but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).  See Moreno at 144-52 (Crawford, J., concurring in part and dissenting in part) and Allison at 371 (Crawford, J., concurring in part and in the result). 

 

No. 05-0628/MC.  U.S. v. Eric W. MYERS.  CCA 200100141.  On consideration of granted issues I and II, in light of United States v. Kisala, __ M.J. ___ (C.A.A.F. September 27, 2006), the orders for Appellant to receive the anthrax vaccination were lawful.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

    

No. 05-0680/MC.  U.S. v. Erick M. ENZ.  CCA 200400036.  On consideration of the granted issue, in light of United States v. Kisala, __ M.J. ___ (C.A.A.F. September 27, 2006), the order for Appellant to receive the anthrax vaccination was lawful.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 05-0681/MC.  U.S. v. Matthew D. PERRY.  CCA 200200144.  On consideration of granted issues I and II, in light of United States v. Kisala, __ M.J. ___ (C.A.A.F. September 27, 2006), the order for Appellant to receive the anthrax vaccination was lawful.  On consideration of granted issue III, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

I concur in the result in this case but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).  See Moreno at 144-52 (Crawford, J., concurring in part and dissenting in part) and Allison at 371 (Crawford, J., concurring in part and in the result). 

 

No. 05-0682/MC.  U.S. v. Jason B. AUSTIN.  CCA 200101070.  On consideration of granted issues I and II, in light of United States v. Kisala, __ M.J. ___ (C.A.A.F. September 27, 2006), the order for Appellant to receive the anthrax vaccination was lawful.  On consideration of granted issue III, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

I concur in the result in this case but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).  See Moreno at 144-52 (Crawford, J., concurring in part and dissenting in part) and Allison at 371 (Crawford, J., concurring in part and in the result). 

 

No. 05-0683/MC.  U.S. v. Michael R. MCINTYRE.  CCA 200101068.  On consideration of granted issues I and II, in light of United States v. Kisala, __ M.J. ___ (C.A.A.F. September 27, 2006), the order for Appellant to receive the anthrax vaccination was lawful.  On consideration of granted issue III, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

I concur in the result in this case but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).  See Moreno at 144-52 (Crawford, J., concurring in part and dissenting in part) and Allison at 371 (Crawford, J., concurring in part and in the result). 

 

No. 05-0684/MC.  U.S. v. Michael J. METZIG.  CCA 200101398. On consideration of granted issues I and II, in light of United States v. Kisala, __ M.J. ___ (C.A.A.F. September 27, 2006), the order for Appellant to receive the anthrax vaccination was lawful.  On consideration of granted issue III, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

I concur in the result in this case but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).  See Moreno at 144-52 (Crawford, J., concurring in part and dissenting in part) and Allison at 371 (Crawford, J., concurring in part and in the result). 

 

No. 06-0466/AR.  U.S. v. Robert L. CONRADY.  CCA 20050036.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that the petition for grant of review is granted on the following issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT’S CONVICTION UNDER 18 U.S.C. § 2252A(a)(2)(B) OF THE CHILD PORNOGRAPHY PREVENTION ACT WHERE THAT ACT LACKS EXTRATERRITORIAL JURISDICTION.

 

The Specification of Charge II is amended to read as

follows: 

 

In that Sergeant Robert L. Conrady, U.S. Army, did, at or near Abu Ghraib, Iraq, between on or about 1 October 2004 and on or about 24 October 2004, knowingly and wrongfully receive materials that contains images of child pornography that were transported in interstate or foreign commerce by a computer connected to the internet, in violation of 18 U.S.C. § 2252A(a)(2)(B). 

 

The decision of the United States Army Court of Criminal Appeals is affirmed as to Charge II and its specification as amended, as well as to Charge I and its specification and the sentence. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

CRAWFORD, Judge (dissenting):


     I dissent for the reasons set forth in my dissenting opinion in United States v. Martinelli, 62 M.J. 52, 77 (C.A.A.F. 2006)(Crawford, J., dissenting).

 

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0466/AR.  U.S. v. Robert L. CONRADY.  CCA 20050036.   [See also APPEALS – SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0525/AF.  U.S. v. Christopher M. SEARS.  CCA 35922.

No. 06-0777/AF.  U.S. v. Brian E. JUVERS.  CCA S30943.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0952/AR.  U.S. v. Kerron D. CHARLES.  CCA 20050773.

No. 06-0953/AR.  U.S. v. Anthony M. MCINTOSH.  CCA 20050829.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 06-8023/NA.  Russell B. MULLINS, Petitioner v. Commandant, U.S. Disciplinary Barracks, Respondent, CCA 200200988.  Petition for extraordinary relief in the nature of a writ of habeas corpus denied without prejudice to Petitioner’s right to raise similar issues during the course of normal appellate review following exhaustion of remedies at the U.S. Navy-Marine Corps Court of Criminal Appeals.

 

INTERLOCUTORY ORDERS

 

No. 06-0886/AR.  U.S. v. Joseph M. MEEKS.  CCA 20040512.

Appellant's motion to extend time to file the supplement to the petition granted to October 27, 2006.

 

No. 06-0888/AR.  U.S. v. Douglas H. BISSELL.  CCA 20031027.

Appellant's motion to extend time to file the supplement to the petition granted to October 27, 2006.

 

MANDATES ISSUED

 

No. 05-0270/NA.  U.S. v. Roberto RODRIGUEZ-RIVERA.  CCA 9900859.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-245

Wednesday, September 27, 2006

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0591/AR.  U.S. v. Harvey A. GARDINIER II.  CCA 20020427.  Review granted on the following issues:

 

I.   WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT EVIDENCE OF APPELLANT'S GUILT WAS SO GREAT AS TO MAKE ADMISSION OF K.G.'S VIDEOTAPED TESTIMONY HARMLESS BEYOND A REASONABLE DOUBT.

 

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT THE TESTIMONY OF V.S. [SEXUAL ASSAULT NURSE EXAMINER] WAS NOT TESTIMONIAL HEARSAY REQUIRING THAT THE DECLARANT BE SUBJECT TO CROSS-EXAMINATION AS REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

 

III. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE CID AGENT'S FAILURE TO ADVISE APPELLANT OF HIS ARTICLE 31(b) RIGHTS ON 3 JANUARY 2002 DID NOT CONSTITUTE LEGAL ERROR.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0653/AF.  U.S. v. Troy O. KENNEDY.  CCA 35929.

No. 06-0654/AF.  U.S. v. Voniqua B. MASSEY.  CCA S30651.

No. 06-0682/NA.  U.S. v. Fernando CEPEDA.  CCA 200400992.

No. 06-0696/AF.  U.S. v. Codi R. COWARD.  CCA 35925.

No. 06-0733/MC.  U.S. v. James G. ROBINSON.  CCA 200600174.

No. 06-0738/AF.  U.S. v. Larry A. HILL.  CCA S30831.

No. 06-0762/AR.  U.S. v. Rodney VILLETTE.  CCA 20041198.

No. 06-0763/AR.  U.S. v. Robert W. CARPENTER.  CCA 20050017.

No. 06-0772/AR.  U.S. v. Michael D. LUTZ.  CCA 20030792.

No. 06-0783/AF.  U.S. v. Joshua S. WARD.  CCA 36049.

No. 06-0803/AF.  U.S. v. Ivory M. ALEXANDER.  CCA S30871.

No. 06-0808/AR.  U.S. v. Carl BRADFORD II.  CCA 20050847.

No. 06-0820/AR.  U.S. v. Leroy R. EAST.  CCA 20051181.

No. 06-0846/AF.  U.S. v. Martin J. NED.  CCA S30960.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-244

Tuesday, September 26, 2006

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 02-0513/AR.  U.S. v. Juan F. DIAZ Jr.  CCA 9900768.  On consideration of the granted issue, 62 M.J. 443 (C.A.A.F. 2006), in light of this Court’s decision in United States v. Lovett, 63 M.J. 211 (C.A.A.F. 2006), Appellant has failed to demonstrate that there existed a culpable state of mind on the part of prison officials amounting to deliberate indifference to his health and safety.  Appellant has also failed to demonstrate that he exhausted his remedies in the prisoner-grievance system or filed a complaint under Article 138, Uniform Code of Military Justice, 10 U.S.C. § 938 (2000).  Accordingly, the decision of the United States Army Court of Criminal Appeals is affirmed.

 

No. 05-0311/AF.  U.S. v. Matthew R. STONE.  CCA 35183.  On consideration of granted issue II in light of United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), Appellant has failed to demonstrate that there existed a culpable state of mind on the part of prison officials amounting to deliberate indifference to his health and safety.  Appellant has also failed to demonstrate that he exhausted his remedies in the prisoner-grievance system or filed a complaint under Article 138, Uniform Code of Military Justice, 10 U.S.C. § 938 (2000).  In addition, on consideration of granted issue I in light of United States v. Christian, 63 M.J. 205 (C.A.A.F. 2006), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 99-0911/MC.  U.S. v. Douglas A. ANDERSON.  CCA 9700058.  On consideration of the granted issue, 61 M.J. 467, (C.A.A.F. 2005), in light of this Court’s decision in United States v. Lovett, 63 M.J. 211 (C.A.A.F. 2006), we assume without deciding that the conditions of Appellant’s confinement were as he claimed them to be and that he exhausted his grievance system remedies.  We further conclude that Appellant has failed to demonstrate that there existed a culpable state of mind on the part of prison officials amounting to deliberate indifference to his health and safety.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0714/AF.  U.S. v. Heidi F. ADCOCK.  CCA 36018.  Review granted on the following issue:

 

I.   WHETHER, HAVING FOUND THAT THE TERMS OF APPELLANT'S PRETRIAL CONFINEMENT VIOLATED AIR FORCE INSTRUCTION (AFI) 31-205, AND THE AIR FORCE CORRECTIONS SYSTEM PARAS. 5.8.1.2 AND 7.1.1 (7 APRIL 2004), THE MILITARY JUDGE ERRED IN NOT DETERMINING THAT THE VIOLATION “INVOLVE[D] AN ABUSE OF DISCRETION" PERMITTING CREDIT UNDER R.C.M. 305(k).

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0670/AR.  U.S. v. Vercie S. JOHNSON, II.  CCA 20030839.

No. 06-0805/AF.  U.S. v. Jason A. SCOTT.  CCA 36288.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0950/AR.  U.S. v. Daniel R. REINELT.  CCA 20050396.

No. 06-0951/AR.  U.S. v. Henry C. HALL, Jr.  CCA 20051076.

 

INTERLOCUTORY ORDERS

 

No. 06-0742/NA.  U.S. v. Kermit CAVES.  CCA 200100171.  Appellant's motion to attach granted.

 

No. 06-0880/AR.  U.S. v. Derrick M. ROBINSON.  CCA 20040479.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 25, 2006.

 

No. 05-0157/NA.  U.S. v. Ivor G. LUKE. CCA 200000481.  On further consideration of the supplemental issue, the prior decision of the Court ordering a Dubay hearing, 63 M.J. 60 (C.A.A.F. 2006), and the Findings of Fact of the Dubay hearing, dated August 11, 2006, the Court has determined that the parties should be afforded an opportunity to submit briefs on the supplemental issue in light of the Dubay hearing.  A copy of the Findings of Fact of said hearing is attached to this order as Appendix A. It is ordered that counsel for the Appellant file a brief on the supplemental issue in light of the Findings of Fact of the Dubay hearing within 30 days; that counsel for the Appellee file a brief within 30 days of the filing of Appellant’s brief; and that Appellant may file a brief within 10 days of the filing of Appellee’s brief.

 

APPENDIX A

 

NORTHERN JUDICIAL CIRCUlT

Navy-Marine Corps Trial Judiciary

 

UNITED STATES                                                       )           GENERAL COURT-MARTIAL

            v.                                                                     )

                                                                                    )            DUBAY HEARING

IVOR G. LUKE                                                           )

HM2 (E-5)                                                                   )             FINDINGS OF FACT

U.S. Navy                                                                    )             DATE: AUG 11, 2006

 

             On 24 April 2006, the Court of Appeals for the Armed Forces (CAAF) issued a ruling in the subject case mandating that a  post-trial fact-finding hearing be held, pursuant to United States v. DuBay, 17 C.M.A. 147 (1967). CAAF ordered the hearing to receive and examine evidence relating to "Appellant's claim of contamination of his DNA sample and falsification of his [DNA] test results." The hearing was held at the Washington Navy Yard on 2 June and 8 June 2006. This court makes the following findings of fact:

 

PREDICATE FACTS FROM ORIGINAL TRIAL

 

1. During Appellant's original trial, the prosecution introduced evidence which tended to show that Appellant's DNA was found on the bra worn by the alleged victim at the time of the alleged indecent assault, and that Appellant's DNA was found on a bed sheet seized from the place of the alleged indecent assault.

 

2. Specifically, the prosecution introduced evidence of forensic testing of the bra, which showed that saliva was found on the inside portion of the right-hand side cup of the bra, and further that Appellant's DNA was present in the saliva found on the inside cup of the bra.  

 

3. This evidence tended to corroborate the testimony of the alleged victim that Appellant had placed his mouth on her right-hand side breast.

 

4. The forensic testing was conducted by employees of the U.S. Army Criminal Investigative Laboratory (USACIL) located in Fort Gillem, Georgia.

 

5. Relevant to this evidence, the forensic testing consisted of serology analysis, which identified the presence of saliva on the bra and the bed sheet, and DNA analysis, which identified the presence of Appellant's DNA in the saliva on the bra and the bed sheet.

 

6. The serology analysis was conducted by Mr. [M], followed by the DNA analysis conducted by Ms. [C].

 

APPENDIX A

 

7. As part of his serology analysis, Mr. [M] identified saliva stains on the bra and the bed sheet, cut sample fragments from them, placed the fragments in test tubes, and forwarded them to Ms. [C], along with other test tubes containing samples, for DNA analysis.

 

8. Ms. [C] performed DNA analysis on the samples, using the "PCR" process, and identified the presence of Appellant's DNA on the bra fragment and the bed sheet fragment.

 

9. At trial, both Mr. [M] and Ms. [C] testified regarding the testing procedures and the results.

 

10. At trial, Appellant was convicted and the sentence was adjudged on 22 February 1999.

 

 POST-TRIAL FACTS

 

11. On 17 October 2005, USACIL issued a memorandum describing disciplinary actions that had been taken against Mr. [M] starting in January of 2004. The memorandum described the disciplinary actions and the reasons for them as follows:

 

a. From January 2004 until September 2004, Mr. [M] had been suspended from performing DNA casework because, in December 2003, he had "cross-contaminated and/or switched samples within and betweeJ1 [several] cases."

 

b. On 3 May 2005, Mr. [M] was suspended again from performing DNA casework because in April 2005, he made a false data entry and altered documentary evidence with respect to one of his cases.

 

c. On 13 April 2005, with respect to a different case, Mr. [M]  falsely stated that he had examined certain evidence and found negative results when, in fact, he had not examined the evidence at all.

 

d. On 9 June 2005, Mr. [M] submitted a memorandum in which he again misrepresented work he had performed in yet another case, stating he had examined certain evidence when in fact he had not.

 

12. On 7 April 2006, CAAF ordered this DuBay hearing to inquire into whether Mr. [M] contaminated or altered the results of the forensic testing in Appellant's case.

 

FACTS FROM DuBAY HEARING

 

13. Mr. [M] was suspended from performing DNA casework from January 2004 until September 2004 for a contamination incident that he caused in December 2003 while conducting forensic DNA analysis.

 

14. When performing DNA analysis, the testing equipment allows the operator to test multiple samples simultaneously. This is referred to as "batch" testing.

 

15. On one occasion in December of 2003, Mr. [M] conducted DNA analysis on several samples from five different cases. He prepared the samples and tested them as one batch.

 

16. A "known" sample is one with a confirmed origin, such as when blood is drawn or hair is collected from a person. An "unknown" sample is one for which the origin has not yet been determined.

 

17. A sample whether known or unknown, can become contaminated during forensic analysis if it comes into contact with another sample that contains DNA.        

 

18. During the testing process for this batch, Mr. [M] allowed the samples to contaminate one another.

 

19. Consequently, the profile of a known DNA sample associated with one case also appeared as the profile of an unknown DNA sample in an unrelated case.                       

 

20. The exact cause of this error could not be determined. However, it is clear that the samples within the batch were contaminated during Mr. [M]’s testing.

 

21. Although the results of the DNA analysis for this batch were erroneous and unreliable, Mr. [M] did not falsify the results, and he did not intentionally contaminate the samples.

 

22. Mr. [M] was suspended a second time from performing DNA casework on 3 May 2005, and remained suspended until he resigned in December 2005.                                                       

 

23. The second suspension was imposed because, in April 2005; Mr. [M] did not follow proper testing procedures during DNA analysis, and then subsequently documented his results as though he had. 

 

24. Proper testing procedures called for Mr. [M] to use two control samples, known as reagent blanks, in the particular test he was conducting. Mr. [M], however, only used one reagent blank. Several days later, Mr. [M] altered his test report so it would appear that he had used two reagent blanks. 

 

25. Mr. [M] did falsify the report, in that he documented a part of the procedure he did not in fact perform.   

 

26. Mr. [M] did not falsify the results, meaning he did not falsely report the presence or absence of DNA in a particular sample. Also, he did not contaminate the samples.

 

27. Mr. [M]’s failure to follow proper procedures and use two reagent blanks on this occasion did not affect the results of the test.

28. Subsequent to Mr. [M]’s second suspension, several of his prior cases were reviewed, and several errors were detected. All of the errors were in connection with DNA testing.

 

29. Mr. [M] demonstrated a pattern of mistakes in conducting DNA analysis and on at least one occasion, he attempted to cover up his mistake by making a false data entry.

 

30. No evidence was presented that Mr. [M] ever altered any results to falsely show the presence or absence of DNA in a sample, or that his failure to follow proper procedures was an attempt to in properly influence or alter the outcome of the DNA analysis any of the cases.

 

31. It is evident, however, that Mr. [M] had significant problems with the DNA analysis process, which calls into question the forensic reliability of the results of his DNA casework.

 

32. Mr. [M]’s disciplinary and proficiency problems were all related to his performance of DNA analysis. Mr. [M] had never demonstrated a lack of proficiency in any of his other duties.

 

33. Mr. [M]’s was proficient in performing serology analysis. He had a full understanding of the standard procedures for conducting serology casework.

 

34. In Appellant's case, Mr. [M] performed the serology portion, but did not conduct any of the DNA analysis.    

 

35. Mr. [M] understood the standard procedure for conducting serology analysis, and followed it in Appellant's case.           

 

36. It is still possible for contamination to occur, even when standard procedure is followed.

 

37. In Appellant's case, Mr. [M] received a box which contained evidence collected for the case. Within the box each item of evidence was in a separate container.

 

38. Mr. [M] removed and visually inspected the items in the order in which they are listed on page 3 of appellate exhibit LXXV. However, he did not do a serological analysis on each item.

 

39. The first three items he removed from the box, in order, were the panties, the bra, and the bed sheet. Mr. [M] did perform a serological analysis on each of these.  On each item, he observed what appeared to be stains from bodily fluids, cut a fragment from each item an placed the fragment in a test tube.  

 

40. The fourth item Mr. [M] removed from the box was the saliva swab taken from the Appellant. Mr. [M] did not do a serological examination of the swab, but only visually inspected it to ensure that it was in the container.                                     

 

41. After Mr. [M] did the serological analysis, Ms. [C] did the DNA analysis on the samples that Mr. [M] prepared.

 

42. Appellant's DNA was found on the bra and the bed sheet, but it was not found on the panties.

43. The presence of Appellant's DNA on the bra can be explained in one of three ways: a) Appellant came into contact with the bra sometime prior to it being collected as evidence; b) the bra became contaminated after it was collected as evidence by coming into contact with Appellant's DNA from another sample; or c) the results were falsified.

 

44. With respect to Mr. [M], he did not conduct the DNA analysis, so he did not have the opportunity to falsify the results. Also, he had no motive to falsify the results, such as the desire to cover up a mistake, as in the documented case. Also, no evidence was presented that Ms. [C] or anyone else ever sought to falsify the results.

 

45. The panties could not have contaminated the bra with Appellant's DNA, because the Appellant's DNA was not present on, the panties.    

 

46.  Neither the bed sheet nor any other item could have contaminated the bra during the serology portion, because the sample of the bra was cut and sealed in a test tube before the other items were opened.

 

47. The bra was not contaminated with Appellant's DNA during the serology portion of the forensic analysis, and the results of the DNA analysis were not falsified.

 

48. The physical evidence in Appellant's case has been destroyed and is thus not available for re-testing.

 

Military Judge JD Bauer Signature           

 

 

No. 06-0001/AR.    U.S. v. David L. ECKARD. CCA 20010870.  On further consideration of the granted issue, 63 M.J. 260 (C.A.A.F. 2006), and the Findings of Fact of the Dubay hearing in the case of United States v. Luke, 63 M.J. 60 (C.A.A.F. 2006), the Court has determined that the parties should be afforded the opportunity to submit briefs on the granted issue in light of the Findings of Fact of the Dubay hearing in Luke.  A copy of the said Findings of Fact is attached to the order issued in Luke this date.  It is ordered that counsel for the Appellant file a brief on the granted issue in light of the Findings of Fact of the Dubay hearing held in Luke within 30 days; that Appellee file a brief within 30 days of the filing of Appellant’s brief; and that Appellant may file a reply brief within 10 days of the filing of Appellee’s brief.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-243

Monday, September 25, 2006

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0788/AR.  U.S. v. Christopher M. REYES.  CCA 20030038.  On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is 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. 06-0788/AR.  U.S. v. Christopher M. REYES.  CCA 20030038. [See also APPEALS – SUMMARY DISPOSITIONS this date]

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 05-0471/AR.  U.S. v. Patrick A. MONETTE.  CCA 20020088.*

No. 06-0947/AR.  U.S. v. Evgueni SOSA.  CCA 20050882.

No. 06-0948/AR.  U.S. v. Kevin M. NIXON.  CCA 20040701.

No. 06-0949/AR.  U.S. v. Felecia A. JOHNSON.  CCA 20040993.

 

MANDATES ISSUED

 

No. 05-0220/AF.  U.S. v. Steven L. CONKLIN.  CCA 35217.

______________

 

*Second petition filed in this case.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-242

Friday, September 22, 2006

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0942/NA.  U.S. v. Christopher J. CHAMBERS.  CCA 200500329.

No. 06-0943/NA.  U.S. v. Malcolm M. MACK.  CCA 200400133.

No. 06-0944/NA.  U.S. v. Olwane B. DUNKLEY.  CCA 200500167.

No. 06-0945/NA.  U.S. v. Scotty R. TRIPLETT.  CCA 200400789.

No. 06-0946/MC.  U.S. v. Lance H. SMITH.  CCA 200401464.

 

INTERLOCUTORY ORDERS

 

No. 06-0869/MC.  U.S. v. Herman L. BROWN.  CCA 200200095.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 20, 2006.

 

No. 06-0870/AR.  U.S. v. Alexander N. WILSON.  CCA 20040227.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 23, 2006.

 

No. 06-0871/MC.  U.S. v. Ricardo CONCHA.  CCA 200600109.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 23, 2006.

 

No. 06-0872/AR.  U.S. v. Perry B. MONROE, II.  CCA 20040058.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 23, 2006.

 

No. 06-0875/AR.  U.S. v. Lillie MORGAN.  CCA 20020360.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 29, 2006.

 

No. 06-0883/AR.  U.S. v. Gregory C. CHURCH, Jr.  CCA 20010509.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 23, 2006.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-241

Thursday, September 21, 2006

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0447/AF. U.S. v. Bryan P. WALSWORTH. CCA S30592.  On consideration of the granted issue, 61 M.J. 464 (C.A.A.F. 2005), in light of United States v. Lane, _ M.J. _ (C.A.A.F. September 20, 2006), the decision of the United States Air Force Court of Criminal Appeals is set aside.  The record is returned to the Judge Advocate General of the Air Force for remand to that court for a new review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000).

 

CRAWFORD, Judge (dissenting):

 

  I dissent for the reasons set forth in my dissenting opinion in United States v. Lane, _ M.J._, _ (C.A.A.F. September 20, 2006) (Crawford, J., dissenting).

 

No. 06-0232/AF. U.S. v. Terrell M. ADAMS. CCA 36104.  On consideration of the granted issue, 63 M.J. 254 (C.A.A.F. 2006), in light of United States v. Lane, _ M.J. _ (C.A.A.F. September 20, 2006), the decision of the United States Air Force Court of Criminal Appeals is set aside.  The record is returned to the Judge Advocate General of the Air Force for remand to that court for a new review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000).

 

CRAWFORD, Judge (dissenting):

 

  I dissent for the reasons set forth in my dissenting opinion in United States v. Lane, _ M.J. _, _ (C.A.A.F September 20, 2006) (Crawford, J., dissenting).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0503/NA.  U.S. v. Sean A. WILSON.  CCA 200102056.  Review granted on the following issue:

 

WHETHER THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE CONVENING AUTHORITY'S ACTION DID NOT APPROVE ONE.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0230/NA.  U.S. v. Calvin K. DAVIS.  CCA 200301256.

No. 06-0677/AR.  U.S. v. Steven M. DIXON.  CCA 20051182.

No. 06-0766/AR.  U.S. v. Joseph D. WOOLEVER.  CCA 20050464.

No. 06-0817/AF.  U.S. v. Robert W. FIELDS.  CCA 36243.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 05-0427/AR.  U.S. v. Anthony T. BRYANT.  CCA 20030283.*

No. 06-0941/NA.  U.S. v. Terrill L. ANDREWS.  CCA 200400697.

_________________

*Second petition filed in this case.



 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-240

Wednesday, September 20, 2006

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0567/AF.  U.S. v. David A. LEEDY.  CCA 35939.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED FROM APPELLANT'S COMPUTER WHERE THE AFFIDAVIT IN SUPPORT OF THE SEARCH DID NOT CONTAIN ANY DESCRIPTION OF THE SUBSTANCE OF THE IMAGES SUSPECTED TO DEPICT "SEXUALLY EXPLICIT CONDUCT."

 

Briefs will be filed under Rule 25.

 

No. 06-0675/MC.  U.S. v. Rodolfo FLORES.  CCA 200400701.  Review granted on the following issues:

 

I.   WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT APPELLANT DID NOT HAVE STANDING IN ORDER TO CHALLENGE THE GOVERNMENT'S SEARCH.

 

II. WHETHER THE MILITARY JUDGE ERRED WHEN HE CONCLUDED THAT THE GOVERNMENT WOULD HAVE "INEVITABLY DISCOVERED" APPELLANT'S CONFESSION.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0554/AF.  U.S. v. James R. SHANNON.  CCA 35042.

No. 06-0626/AR.  U.S. v. Ryan J. UNGER.  CCA 20051522.

No. 06-0756/AF.  U.S. v. Bernard J. HOWARD.  CCA 36265.

No. 06-0784/AF.  U.S. v. Joshua B. YEEND.  CCA S30819.

No. 06-0806/AF.  U.S. v. Mitchell T. MIXON.  CCA 36478.

No. 06-0825/AR.  U.S. v. Brandon D. PARKS.  CCA 20050353.

No. 06-0836/AF.  U.S. v. Daniel H. SOLOMON.  CCA S30868.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0940/AR.  U.S. v. Bruce A. MATTHEWS, Jr.  CCA 20040762.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-239

Tuesday, September 19, 2006

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 05-0523/NA.  U.S. v. Rocky R. VOGT.  CCA 200401217.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006), said petition is granted.  We conclude that Appellant was denied his due process right to speedy post-trial review and appeal, and that the error was not harmless beyond a reasonable doubt, but that “to fashion relief that would be actual and meaningful in this case would be disproportionate to the possible harm generated from the delay.” Id. 386.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.  [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the result but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Rodriguez-Rivera, 63 M.J. 372, 386-87 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result).   

 

No. 06-0275/MC.  U.S. v. Cameron D. BOLES.  CCA 200102155. 

No. 06-0374/NA.  U.S. v. George THOMAS.  CCA 200201613.

 

In each of the above cases, on consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), said petition is granted. Assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.  [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the result but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Allison, 63 M.J.365, 371 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result).   

 

No. 06-0753/MC.  U.S. v. Anthony J. WILLIS.  CCA 200501261.  On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006)and United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), said petition is granted.  The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for a bad-conduct discharge, confinement for 80 days, and reduction to pay grade E-1.  The remainder of the sentence is set aside and dismissed.  [See also ORDERS GRANTING PETITION FOR REVIEW this date.]  

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 05-0523/NA.  U.S. v. Rocky R. VOGT.  CCA 200401217.  [See also APPEALS – SUMMARY DISPOSITIONS this date.]

 

No. 06-0275/MC.  U.S. v. Cameron D. BOLES.  CCA 200102155.  [See also APPEALS – SUMMARY DISPOSITIONS this date.]

 

No. 06-0374/NA.  U.S. v. George THOMAS.  CCA 200201613.  [See also APPEALS – SUMMARY DISPOSITIONS this date.]

 

No. 06-0753/MC.  U.S. v. Anthony J. WILLIS.  CCA 200501261.  [See also APPEALS – SUMMARY DISPOSITIONS this date.]

 

No. 06-6005/AF.  U.S. v. Jose A. COSSIO.  CCA 2006-02.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. 862 (2000), said petition is granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN GRANTING APPELLANT’S MOTION TO DISMISS BASED ON DENIAL OF HIS RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10, UCMJ.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0191/NA.  U.S. v. Timothy L. JONES.  CCA 200501193.

No. 06-0363/NA.  U.S. v. Jeffrey C. PTASZKOWSKI.  CCA 200201497.

No. 06-0389/MC.  U.S. v. Christopher J. LINGERFELDT.  CCA 200400123.

No. 06-0459/AF.  U.S. v. Antonio J. GREEN.  CCA 35944.

No. 06-0494/AR.  U.S. v. John M. WYATT.  CCA 20040342.

No. 06-0605/AF.  U.S. v. Patrick D. BOOKER.  CCA S30276.

No. 06-0632/AR.  U.S. v. Brian D. PALMARIN.  CCA 20050418.

No. 06-0710/AR.  U.S. v. Robbie D. INFINGER.  CCA 20040621.

No. 06-0728/AR.  U.S. v. Andrew P. BROSSEIT.  CCA 20051094.

No. 06-0773/AF.  U.S. v. Anthony S. CUNNINGHAM.  CCA 36213.

No. 06-0812/AR.  U.S. v. John ODOM, Jr.  CCA 20030400.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 05-0270/NA.   U.S. v. Roberto RODRIGUEZ-RIVERA. CCA 9900859.

Appellant’s petition for reconsideration is denied. 

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0939/AR.  U.S. v. Radamus F. CROWELL.  CCA 20040749.

 

INTERLOCUTORY ORDERS

 

No. 06-0854/AR.  U.S. v. Ruben ESCAMILLA, Jr.  CCA 20040803.  Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 18, 2006.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-238

Monday, September 18, 2006

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0617/AR.  U.S. v. Luis D. SANCHEZ.  CCA 20010943.  Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ADMITTING EXPERT TESTIMONY REGARDING THE ALLEGED VICTIM'S MEDICAL EXAMINATION OVER DEFENSE OBJECTION.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0927/AR.  U.S. v. Alejandro REYES.  CCA 20060017.

No. 06-0928/AR.  U.S. v. David S. KONG.  CCA 20050256.

No. 06-0929/AR.  U.S. v. James REYES.  CCA 20040336.

No. 06-0930/AR.  U.S. v. Mark A. KIMBLE.  CCA 20051190.

No. 06-0931/AR.  U.S. v. Kelvin G. I. MELENDEZ.  CCA 20051110.

No. 06-0932/NA.  U.S. v. Javan R. GAINOUS.  CCA 200300953.

No. 06-0933/MC.  U.S. v. Doyle L. JARNAGIN.  CCA 200500635.

No. 06-0934/NA.  U.S. v. Walter S. STEVENSON.  CCA 200301272.

No. 06-0935/AF.  U.S. v. Mario V. GONZALEZ.  CCA S30841.

No. 06-0936/AF.  U.S. v. Darrell JOHNSON.  CCA 36532.

No. 06-0937/AF.  U.S. v. Deontay T. ROAF.  CCA 36305.

No. 06-0938/AF.  U.S. v. Stephen L. SMITH.  CCA S30806.

 

INTERLOCUTORY ORDERS

 

No. 06-0494/AR.  U.S. v. John M. WYATT.  CCA 20040342.

Appellant's motion to file additional matters pursuant to United States v. Grostefon, 12 M.J. 431 (CMA 1982), granted.



 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-237

Friday, September 15, 2006

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0676/NA.  U.S. v. Paul G. WUNSCH.  CCA 200501420.

No. 06-0722/NA.  U.S. v. Andre D. BROOKS.  CCA 200501378.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0921/AR.  U.S. v. Stevie REED, Jr.  CCA 20021225.

No. 06-0922/AF.  U.S. v. Earl J. MINOR, Jr.  CCA S30801.

No. 06-0923/AF.  U.S. v. Perry D. MORRISON.  CCA 36367.

No. 06-0924/AF.  U.S. v. Darrell E. MURRAY.  CCA 36419.

No. 06-0925/AR.  U.S. v. Stephen R. PARSONS.  CCA 20060021.

No. 06-0926/AR.  U.S. v. Emily M. HAMILTON.  CCA 20050738.

 

INTERLOCUTORY ORDERS

 

No. 06-0850/AR.  U.S.v. Franklin W. PERKINS, Jr.  CCA 20041005.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 16, 2006.

 

No. 06-0851/AR.  U.S. v. Omar E. SHIRLEY.  CCA 20050580.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 16, 2006.

 

No. 06-8020/AF.  Mark HUSCHAK, Petitioner v. United States; the Secretary of the Air Force; and the Commandant, USDB, Respondents.  Petitioner’s motion for reconsideration of a petition for extraordinary relief in the nature of a writ of habeas corpus granted; and said petition for extraordinary relief in the nature of a writ of habeas corpus is hereby denied without prejudice to Petitioner’s right to again file at this Court after first seeking relief at the United States Air Force Court of Criminal Appeals.



 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-236

Thursday, September 14, 2006

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0439/AF.  U.S. v. Jess M. DAVIS.  CCA 35932.  Review granted on the following issue: 

 

I.  WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT REQUIRED APPELLANT TO DEMONSTRATE PREJUDICE FROM THE DENIAL OF HIS SUBSTANTIAL PRETRIAL RIGHT TO AN OPEN ARTICLE 32 HEARING, CONTRARY TO THE COURT'S OPINION IN UNITED STATES v. CHUCULATE, 5 M.J. 143 (C.M.A. 1978), THAT STATES THE COURT WILL NOT TEST FOR PREJUDICE.

 

Briefs will be filed under Rule 25.

 

No. 06-0474/AF.  U.S. v. Ashontia K. HARROW. CCA 35257.  Review granted on the following issues:

 

I.   WHETHER THE MILITARY JUDGE ERRED BY PREVENTING THE DEFENSE FROM IMPEACHING THE TESTIMONY OF THE DECEASED BABY'S FATHER - THE ONLY OTHER PERSON PRESENT AT THE TIME OF THE ALLEGED SHAKING INCIDENT - WITH PRIOR INCONSISTENT STATEMENTS REGARDING THE BABY'S INTERACTIONS WITH APPELLANT AND THE BABY'S CRYING AFTER APPELLANT LEFT THE HOUSE.

 

II.  WHETHER APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN IT TOOK OVER FOUR YEARS FOR THE ARTICLE 66 REVIEW BY THE COURT BELOW TO BE COMPLETED.

 

III. WHETHER THE MILITARY JUDGE ERRED BY DENYING A DEFENSE MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF VARIOUS WITNESSES REGARDING APPELLANT'S PATTERN OF MINOR PARENTAL ABUSE WHERE THE TESTIMONY CONSTITUTED INAPPROPRIATE CHARACTER EVIDENCE THAT WAS UNFAIRLY PREJUDICIAL.

 

IV.  WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE PROSECUTION'S EXPERT WITNESS TO PRESENT INADMISSIBLE PROFILE EVIDENCE THAT PLACED APPELLANT IN THE PROFILED CATEGORY AND EXCLUDED THE DECEASED BABY'S FATHER - THE ONLY OTHER SUSPECT - FROM THE PROFILED CATEGORY.

 

V.   WHETHER APPELLANT'S GUILTY PLEAS TO CHARGE II AND ITS SPECIFICATION [LARCENY] WERE PROVIDENT.

 

VI.  WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS PROPERLY REASSESSED THE SENTENCE WHEN IT INCLUDED A REDUCTION IN PAY GRADE THAT WAS NOT ADJUDGED (OR AUTHORIZED).

 

Brief will be filed under Rule 25.

 

No. 06-0615/AF.  U.S. v. Patrick M. LEONARD, Jr. CCA 35740.  Review granted on the following issues:

 

I.   WHETHER THE MILITARY JUDGE ERRED IN CALCULATING THE MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT'S PLEA WAS IMPROVIDENT BECAUSE IT WAS BASED UPON A SUBSTANTIAL MISUNDERSTANDING OF THE MAXIMUM PUNISHMENT.

 

II.  WHETHER APPELLANT'S TRIAL DEFENSE COUNSEL MISAPPREHENDED THE MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE DEFENSE COUNSEL'S ADVICE WAS BASED UPON AN ERRONEOUS CALCULATION OF THE MAXIMUM PUNISHMENT.

 

Brief will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

 

No. 06-0802/AF.  U.S. v. Michael D. WARREN.  CCA 36398.

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0918/MC.  U.S. v. Raymon F. THOMAS.  CCA 200401149.

No. 06-0919/AR.  U.S. v. Rondell L. TODD.  CCA 20050522.

No. 06-0920/AR.  U.S. v. Calvindier L. WEAVER.  CCA 20040506.

 

INTERLOCUTORY ORDERS

 

No. 05-0503/AF.  U.S. v. Cornelius T. IRVIN.  CCA 35167.  Appellant's motion to submit additional assignment of error out of time granted.

 

No. 06-0676/NA.  U.S. v. Paul G. WUNSCH.  CCA 200501420.  Appellant's motion to attach granted.

 

No. 06-0828/MC.  U.S. v. Sean D. JACKSON.  CCA 200500338.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 10, 2006.

 

No. 06-0843/NA.  U.S. v. Carlos R. HESTER.  CCA 200400178.  Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 12, 2006.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-235

Wednesday, September 13, 2006

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0197/AF.  U.S. v. Michael R. KOHLER II.  CCA 35643.

No. 06-0353/AF.  U.S. v. Terry L. BOWMAN.  CCA 35597.

No. 06-0672/AR.  U.S. v. Brendan G. TOMPKINS.  CCA 20051144.

No. 06-0690/AR.  U.S. v. Jeremy LAGERMANN.  CCA 20050542.

No. 06-0720/AF.  U.S. v. Alexander L. YOUNG.  CCA S30652.

No. 06-0721/AR.  U.S. v. Brian D. KELLY.  CCA 20040422.

No. 06-0744/AR.  U.S. v. John C. NEUGENT.  CCA 20051126.

No. 06-0765/NA.  U.S. v. Eluit LOPEZ-ENRIQUEZ.  CCA 200600058.

No. 06-0767/AR.  U.S. v. Eric R. THILMAN.  CCA 20050858.

No. 06-0809/AR.  U.S. v. John H. DOHERTY.  CCA 20051116.

No. 06-0810/AR.  U.S. v. Carlos J. SINCLAIR.  CCA 20050697.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 05-0220/AF.  U.S. v. Steven L. CONKLIN.  CCA 35217.

Appellant’s petition for reconsideration is denied.

 

CRAWFORD, Judge (dissenting):

    In the opinion of the Court,1 the majority misapprehended  and overlooked the basis of the exclusionary rule to conclude that Appellant’s consent was “obtained through exploitation of the illegal [search]” because it was not “sufficiently attenuated from the taint of that [illegal search]”.2   In reaching this conclusion the majority misapplied Brown v.

Illinois,3 a majority of federal cases,4 and United States v. Khamsouk5.  This misapplication of the law requires that the case be reargued.

______________

1 United States v. Conklin, 63 M.J. 333 (C.A.A.F. 2006).
2 Id. at 340 (quoting United States v. Khamsouk, 57 M.J. 282, 290 (C.A.A.F. 2002)).
3 422 U.S. 590 (1975).
4 See, e.g., United States v. Boone, 245 F.3d 352, 363 (4th Cir. 2001); United States v. Oguns, 921 F.2d 442, 447-48 (2d Cir. 1990); United States v. Snype, 441 F.3d 119, 134-35 (2d Cir. 2006) (holding consent to search given a half-hour after an illegal entry severed any taint, court noted no flagrant misconduct).
5 57 M.J. 282 (C.A.A.F. 2002).

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 03-0651/MC.  U.S. v. Wesley B. NEGRON.  CCA 200100844.*

No. 06-0917/AR.  U.S. v. Andrae L. BRIGHT.  CCA 20000341.

 

 

INTERLOCUTORY ORDERS

 

No. 06-0856/AR.  U.S. v. Jesse H. DAVIS.  CCA 20050734.

Appellant's motion to extend time to file supplement to the petition for grant of review granted to October 13, 2006.

 

No. 06-0863/AR.  U.S. v. Brandon M. RESCH.  CCA 20030587.

Appellant's motion to extend time to file supplement to the petition for grant of review granted to October 13, 2006.

_______________

 

*Second petition filed in this case.



 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-234

Tuesday, September 12, 2006

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0242/CG.  U.S. v. Felix J. RIVERA.  CCA 1216.

No. 06-0665/AR.  U.S. v. Terrance R. DOGAN.  CCA 20020453.

No. 06-0718/AF.  U.S. v. James B. THOMAS.  CCA 35804.

No. 06-0746/AR.  U.S. v. Cory B. IRWIN.  CCA 20051028.

No. 06-0816/AF.  U.S. v. Chad R. GRACIE.  CCA 36269.

 

INTERLOCUTORY ORDERS

 

No. 06-0520/AR.  U.S. v. Danyel D. GREEN.  CCA 20021126.  Appellant's motion to extend time to file brief granted, but only up to and including September 28, 2006; and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 06-0610/AR.  U.S. v. James A. WISE.  CCA 20031310.  Appellant's motion to extend time to file brief granted, but only up to and including September 29, 2006; and absent extraordinary circumstances, no further extension of time will be granted in this case. 

 

No. 06-0831/AR.  U.S. v. Alton K. TOM.  CCA 20020419.  Appellant's motion to extend time to file supplement to the petition for grant of review granted to October 11, 2006.

 

MANDATES ISSUED

 

No. 05-0165/NA.  U.S. v. Frank J. OSHESKIE.  CCA 200001296.

No. 05-0710/NA.  U.S. v. William C. TANNER.  CCA 200301120.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-233

Monday, September 11, 2006

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 03-0473/NA.  U.S. v. Troy B. JENKINS.  CCA 200101151.

 

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

 

No. 04-0219/MC.  U.S. v. Scipio J. WILLIAMS.  CCA 200101854.

 

No. 04-0372/MC.  U.S. v. Jeremy D. THOMPSON.  CCA 200101956.

 

No. 04-0604/NA.  U.S. v. Tyrone J. FORNEY.  CCA 200001573.

 

No. 05-0058/NA.  U.S. v. Peter T. COSBY.  CCA 9901704.

 

No. 05-0236/MC.  U.S. v. Bruce A. BOYD.  CCA 200200733.

 

No. 05-0278/MC.  U.S. v. Michael F. CRAIG. CCA 200301772.

 

No. 05-0287/MC.  U.S. v. Matthew J. TENNEY.  CCA 200200727.

 

No. 05-0353/NA.  U.S. v. Michael G. TILMAN.  CCA 200100193.

 

No. 05-0421/NA.  U.S. v. Aaron T. RUGGS.  CCA 200301267.

 

No. 05-0500/NA.  U.S. v. Salvador DIAZ.  CCA 200200374.

 

No. 05-0535/MC.  U.S. v. Michael C. W. MROZINSKI.  CCA 200301050.

 

No. 05-0548/NA.  U.S. v. Richard E. STANTON.  CCA 200000040.

 

No. 05-0552/MC.  U.S. v. William R. HUMPHREY.  CCA 200200787.

 

No. 05-0566/NA.  U.S. v. Juse C. BARROS.  CCA 200201603.

 

No. 05-0592/NA.  U.S. v. Michael A. WHITE.  CCA 200101242.

 

No. 05-0634/MC.  U.S. v. Damon G. JOHNSON II.  CCA 200200401.

 

No. 05-0693/NA.  U.S. v. Bradley D. WYNN.  CCA 200301603.

 

No. 05-0694/NA.  U.S. v. Franklin OWENS.  CCA 200100297.

 

No. 05-0709/NA.  U.S. v. Charles M. BRICKER.  CCA 200001970.

 

No. 06-0052/NA.  U.S. v. Lori L. SPENCER.  CCA 200401948.

 

No. 06-0068/MC.  U.S. v. Morgan D. WADE.  CCA 200300820.

 

No. 06-0120/MC.  U.S. v. Jason J. BETTS.  CCA 200300629.

 

No. 06-0127/NA.  U.S. v. David A. GAINES.  CCA 200300828.

 

No. 06-0128/MC.  U.S. v. Robert J. SANKEY, Jr.  CCA 200401526.

 

No. 06-0212/MC.  U.S. v. Kykaiya A. WILLIAMS.  CCA 200202264.

 

No. 06-0235/NA.  U.S. v. Marcus U. WHITLOCK.  CCA 200102054.

 

No. 06-0297/NA.  U.S. v. Samuel E. TOOTLE II.  CCA 9801945.

 

No. 06-0306/MC.  U.S. v. Jason A. PHILLIPS.  CCA 200300969.

 

No. 06-0321/MC.  U.S. v. Timothy G. GILMORE.  CCA 200401106.

 

No. 06-0366/MC.  U.S. v. Thomas WOLF.  CCA 200400753.

 

No. 06-0417/NA.  U.S. v. Joseph R. KAMELY.  CCA 200201248.

 

No. 06-0440/NA.  U.S. v. Scott R. MCCLELLAND.  CCA 200101300.

 

In each of the above cases, on consideration of the granted issue, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that the Appellant was denied the due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the results in these cases but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result).

 

No. 05-0478/NA.  U.S. v. Vincent D. FRANCOIS. CCA 200101967.  On consideration of the granted issue, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006), we conclude that Appellant was denied his due process right to speedy post-trial review and appeal, that the error was not harmless beyond a reasonable doubt, but that “to fashion relief that would be actual and meaningful in this case would be disproportionate to the possible harm generated from the delay.” Id. at 386.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the result but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Rodriguez-Rivera, 63 M.J. 372, 386-87 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result).

 

No. 05-0647/NA.   U.S. v. Brendan C. FORNEY. CCA 200200462.  On consideration of the granted issue, we conclude that further review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. 866(c)(2000), by the United States Navy-Marine Corps Court of Criminal Appeals is appropriate in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Cendejas, 62 M.J. 334 (C.A.A.F. 2006).  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record is returned to the Judge Advocate General of the Navy for remand to that court.

 

CRAWFORD, Judge (dissenting):

 

  I dissent in this case based on United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Cendejas, 62 M.J. 334, 341 (C.A.A.F. 2006) (Crawford, J., dissenting).

 

No. 05-0741/NA.    U.S. v. Trent T. PRITCHETT.  CCA 9601212.  On consideration of the granted issue, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006), we conclude that Appellant was denied his due process right to speedy post-trial review and appeal, that the error was not harmless beyond a reasonable doubt, but that “to fashion relief that would be actual and meaningful in this case would be disproportionate to the possible harm generated from the delay.” Id. at 386.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the result but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006)(Crawford, J., concurring in part and dissenting in part), and United States v. Rodgriguez-Rivera, 63 M.J. 372, 386-87 (C.A.A.F 2006) (Crawford, J., concurring in part and in the result).

 

No. 06-0034/NA.    U.S. v. Columbia R. SHILOH.  CCA 200101238.  On consideration of granted issues I and II in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  In addition, on consideration of granted issue III in light of United States v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006), Appellant has failed to demonstrate that he exhausted his remedies in the prisoner-grievance system or filed a complaint under Article 138, Uniform Code of Military Justice, 10 U.S.C. 938 (2000). Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the result in this case but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result).  

 

No. 06-0109/NA.    U.S. v. Christopher B. DURFEE. CCA 9901453.  On consideration of granted issue, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  On consideration of the specified issue, the United States Navy-Marine Corps Court of Criminal Appeals erred in affirming “two-thirds pay per month for any period of remaining active service after the date of trial.”  See Rule for Courts-Martial 1003(b)(2).  However, because Appellant did not receive any adjudged confinement and was on appellate leave in a no-pay status after trial, that error is harmless.  We will remedy that error in our decretal paragraph.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as includes a bad-conduct discharge and reduction to E-1.  The remainder of the sentence is set aside and dismissed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the result in this case but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result).

 

No. 06-0130/NA.    U.S. v. Joshua W. SHAFFER.   CCA 200401462.  On consideration of the granted issue, we note that there may be some ambiguity in whether the United States Navy-Marine Corps Court of Criminal Appeals granted relief for a due process violation of Appellant’s right to speedy review and appeal on the basis of Article 59(a) or Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 859(a) and 866(c) (2000).  Assuming that the Court of Criminal Appeals erroneously granted relief for legal error under Article 66(c), UCMJ, the circumstances of this case, particularly the reduction in the nature of Appellant’s punitive discharge from a dishonorable discharge to a bad-conduct discharge, convince us that any error was harmless.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. 

 

No. 05-0627/MC.    U.S. v. Mikki E. ASHLEY. CCA 9901546.  On consideration of the granted issue, in light of the United States v. Moreno, 63 M.J. 129 (C.A.A.F 2006), we conclude that Appellant was denied her due process right to speedy post-trial review and appeal. On consideration of the specified issue, we conclude that the United States Navy-Marine Corps Court of Criminal Appeals applied an incorrect standard in reviewing Appellant’s case for sentence appropriateness under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2000).  See United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005).  Under these circumstances, we deem it proper to remand this case to the court below for further review and to afford the parties an opportunity to address the question of what relief, if any, is warranted in light of the denial of due process. See United States v. Toohey, 63 M.J. 353 (C.A.A.F. 2006).  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside.  The record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals for action not inconsistent with this order.  After which, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2000), shall apply.

 

CRAWFORD, Judge (dissenting):

 

  Setting aside the United States v. Baier, 60 M.J. 382 (C.A.A.F. 2005) issue, I dissent from the holding of a denial of due process. See United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part).  

 

No. 05-0697/MC.    U.S. v. Wayne D. SZYMCZYK.   CCA 200000718.  On consideration of the granted issue, in light of the United States v. Moreno, 63 M.J. 129 (C.A.A.F 2006), we conclude that Appellant was denied his due process right to speedy post-trial review and appeal. Further, having considered the surrounding facts and circumstances, including the fact that Appellant ultimately hired civilian appellate defense counsel to represent him before the United States Navy-Marine Corps Court of Criminal Appeals as well as the fact that the delay subjected Appellant to sex offender registration requirements longer than otherwise would have been necessary, we conclude that the denial of due process is not harmless beyond a reasonable doubt.  Relief is warranted.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for a dismissal.  The remainder of the sentence is set aside and dismissed.

 

CRAWFORD, Judge (dissenting):

 

  I dissent for the reasons set for in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford J., concurring in part and dissenting in part).  

 

No. 05-0538/AR.    U.S. v. Donyale T. MACK. CCA 20020316.

 

No. 05-0721/AR. U.S. v. Jose F. SIERRA. Jr. CCA 20020438.

 

No. 05-745/AR. U.S. v. Richard L. Turner. CCA 20011100.

 

In each of the above cases, on consideration of the granted issue, assuming that Appellant was denied his due process right to speedy post-trial review and action, we conclude that any error in that regard was harmless beyond a reasonable doubt. See United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).  Additionally, we conclude that the United States Army Court of Criminal Appeals did not abuse its discretion in reviewing this case for sentence appropriateness.  See United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).  Accordingly, the decision of the United States Army Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the results in these cases but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006( (Crawford, J., concurring in part and in the result).  

 

No. 05-0015/AR.    U.S. v. Michael A. SHIFFLETT. CCA 200000881.

 

No. 05-0320/AR. U.S. v. Jason L. STAPP. CCA 20010433.  

 

No. 05-0594/AR. U.S. v. Jeremiah D. HARDING. CCA 20020454.

 

No. 06-0170/AR. U.S. v. Christopher L. ARGUELLEZ. CCA 20030850.

 

In each of the above cases, on consideration of the granted issue, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Army Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the results in these cases but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result).

 

No. 06-0382/AR. U.S. v. Jeremy D. RILEY. CCA 20020176.  On consideration of the granted issue, in light of the United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was denied his due process right to speedy post-trial review and appeal, and considering the relief previously afforded Appellant, that error was harmless beyond a reasonable doubt.  Accordingly, the decision of the United States Army Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the result in this case but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Allison, 63 M.J. 365, 371 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result).

 

No. 06-0004/MC.    U.S. v. Christopher M. LUCAS. CCA 200300760.

 

No. 06-0471/MC.    U.S. v. Jill R. SMITH. CCA 200300497.

 

In each of the above cases, on consideration of the granted issue, in light of United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v. Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006), we conclude that Appellant was denied the due process right to speedy post-trial review and appeal, that the error was not harmless beyond a reasonable doubt, but that “to fashion relief that would be actual and meaningful in this case would be disproportionate to the possible harm generated from the delay.”  Id. at 386.  Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

CRAWFORD, Judge (concurring in the result):

 

  I concur in the result but disassociate myself from the reasoning in United States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in part), and United States v. Rodriguez-Rivera, 63 M.J. 372, 386-87 (C.A.A.F. 2006) (Crawford, J., concurring in part and in the result). 

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 04-0216/AF.  U.S. v. Carl L. KEY.  CCA 34965.*

No. 06-0909/AR.  U.S. v. Nicole M. MOSER.  CCA 20051460.

No. 06-0910/AR.  U.S. v. Roberto ADAMS.  CCA 20020004.

No. 06-0911/AF.  U.S. v. James E. BARE Jr.  CCA 35863.

No. 06-0912/AF.  U.S. v. Daniel R. KAPUSCENSKI.  CCA 35861.

No. 06-0913/AF.  U.S. v. Kevin L. MEAD.  CCA 36075.

No. 06-0914/AF.  U.S. v. Robert D. TIPPIT.  CCA 35624.

No. 06-0915/NA.  U.S. v. Cory L. SANFORD.  CCA 200301583.

No. 06-0916/MC.  U.S. v. John G. INGRAM.  CCA 200501201.

 

MANDATES ISSUED

 

No. 06-5001/AR.  U.S. v. Samuel D. ZACHARY.  CCA 20020984.

________________________

 

*Second petition filed in this case.



 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-232

Friday, September 08, 2006

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0674/AF.  U.S. v. Richard J. KOLB.  CCA 36230.

No. 06-0708/AF.  U.S. v. Matthew J. DEAN.  CCA 36200.

No. 06-0792/AR.  U.S. v. John A. BOONE, Jr.  CCA 20051236.

No. 06-0798/AF.  U.S. v. Shawn B. WILKINS.  CCA 36353.

No. 06-0807/AR.  U.S. v. James M. CONLEY.  CCA 20051011.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0903/AR.  U.S. v. James M. DEAN.  CCA 20060098.

No. 06-0904/AF.  U.S. v. Howard D. CHATMAN.  CCA 36037.

No. 06-0905/AF.  U.S. v. Albert T. HILL.  CCA 35700.

No. 06-0906/AF.  U.S. v. Samir S. CHRISTIAN.  CCA 35905.

No. 06-0907/AF.  U.S. v. Steven M. CHAPMAN.  CCA 35564.

No. 06-0908/NA.  U.S. v. Gilbert T. ALLENDE.  CCA 200001872.

 

INTERLOCUTORY ORDERS

 

No. 06-0050/AR.  U.S. v. Kim A. CARRUTHERS.  CCA 20010700.

Appellant's motion to extend time to file brief granted to September 26, 2006, and absent extraordinary circumstances, no further extension of time will be granted in this case. 

 

No. 06-0830/ar.  U.S. v. Pepito SOTO, Jr.  CCA 20040761.

Appellant's motion to extend time to file supplement to the petition for grant of review granted to October 10, 2006.

 

No. 06-0837/AF.  U.S. v. Joseph E. WILSON, Jr.  CCA 35602.

Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 11, 2006.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-231

Thursday, September 07, 2006

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 06-0155/AF.  U.S. v. Ian M. BYINGTON.  CCA 35917.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, review granted on the following issue:

 

WHETHER TRIAL DEFENSE COUNSEL'S FAILURE TO REQUEST DEFERMENT OF ADJUDGED FORFEITURES AND WAIVER OF AUTOMATIC FORFEITURES IN FAVOR OF APPELLANT'S DEPENDENTS ON BEHALF OF APPELLANT WAS INEFFECTIVE ASSISTANCE OF COUNSEL.

 

     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 that court for further appellate inquiry on the granted issue. The Court of Criminal Appeals may obtain additional affidavits from the trial defense counsel or others relating to the granted issue if it determines that such affidavits may assist it in resolving whether a fact-finding hearing is necessary. See United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997). However, if it can determine on the basis of the existing affidavits that a fact-finding hearing is necessary, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will conduct its Article 66(c), UCMJ review. Thereafter, Article 67, UCMJ, shall apply.   

 

No. 06-0299/AF.  U.S. v. Andrew J. VALLEJO.  CCA 35842.  On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, review granted on the following issue:

 

WHETHER TRIAL DEFENSE COUNSEL'S FAILURE TO REQUEST WAIVER OF AUTOMATIC FORFEITURES IN FAVOR OR APPELLANT'S DEPENDENT DAUGHTER ON BEHALF OF APPELLANT WAS INEFFECTIVE ASSISTANCE OF COUNSEL.

 

     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 that court for further appellate inquiry on the granted issue. The Court of Criminal Appeals will obtain affidavits from trial defense counsel relating to the granted issue. If the court, after reviewing the additional affidavits, determines that a fact-finding hearing is necessary, See United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997), that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).  Once the necessary information is obtained, the court will conduct its Article 66 (c), UCMJ review. Thereafter, Article 67, UCMJ, shall apply.  

 

No. 06-0587/AR.  U.S. v. Donyale R. DAVIS.  CCA 20010891. On consideration of the petition for grant of review of the decision of the United States Army court of Criminal Appeals, we note that the Court of Criminal Appeals described Appellant’s conviction under Charge III, Specification 1, as renumbered, as the offense of assault with a dangerous weapon. In fact, as the court-martial promulgating order accurately reflects, the offense was attempted assault with a dangerous weapon.

 

     Further, on consideration of Appellant’s personal assertion and the record of trial, we note that the convening authority’s action was taken 363 days after trial and that this case was docketed at the Court of Criminal Appeals for 1,239 days before a decision was issued.

 

     The said petition for grant of review is hereby granted on the following issues specified by the Court:

 

I.   WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS   ABUSED ITS DISCRETION IN AFFIRMING A CONVICTION OF ASSAULT WITH A DANGEROUS WEAPON UNDER CHARGE III, SPECIFICATION 1 WHERE THE APPROVED FINDING OF GUILTY WAS TO THE OFFENSE OF ATTEMPTED ASSAULT WITH A DANGEROUS WEAPON.

 

II.  WHETHER APPELLANT WAS DENIED DUE PROCESS BECAUSE OF UNREASONABLE POST-TRIAL AND APPELLATE DELAY.   

 

The decision of the United States Army Court of Criminal Appeals is set aside.  The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for further consideration in light of the granted issues.*  Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. 867 (2000) shall apply.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0287/AF.  U.S. v. James W. LOCKWOOD.  CCA 35935.

No. 06-0645/AF.  U.S. v. Sean E. ALARCON.  CCA 36159.

No. 06-0705/AF.  U.S. v. Edward L. WALLACE III.  CCA 36318.

No. 06-0748/AF.  U.S. v. Muhammad S. ABDULLAH.  CCA 36014.

No. 06-0775/AF.  U.S. v. Terrence Q. GIVENS.  CCA S30881.

No. 06-0776/AF.  U.S. v. Rachel L. JACOLA.  CCA S30937.

No. 06-0824/AR.  U.S. v. Jesse L. HOWE.  CCA 20051416.

 

INTERLOCUTORY ORDERS

 

No. 03-0256/AR.  U.S. v. Jacob M. BOWLEY.  CCA 20000093.

Appellant's motion for reconsideration of Appellant's brief denied.

 

No. 06-0821/NA.  U.S. v. Raymond OLAFSON.  CCA 200001034.

Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 6, 2006.

_______________________

*It is directed that the promulgating order be corrected to reflect that the finding of Charge III, Specification 1, as renumbered, was not guilty, but guilty of assault with a dangerous weapon.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-230

Wednesday, September 06, 2006

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 06-0695/AF.  U.S. v. Kevin E. PAXTON.  CCA 36092.  Review granted on the following issues:

 

I.   WHETHER APPELLANT WAS MATERIALLY PREJUDICED WHEN TRIAL COUNSEL IMPROPERLY COMMENTED IN SENTENCING ARGUMENT ABOUT APPELLANT NOT TESTIFYING IN SENTENCING.

 

II.  WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL DEFENSE COUNSEL (A) FAILED TO OBJECT OR ASK FOR A CURATIVE INSTRUCTION WHEN TRIAL COUNSEL MADE IMPROPER ARGUMENT IN REBUTTAL; (B) FAILED TO OBJECT TO TRIAL COUNSEL'S SENTENCING ARGUMENT WHEN HE REFERRED TO APPELLANT'S RIGHT TO REMAIN SILENT; (C) ADVISED APPELLANT TO REMAIN SILENT DURING SENTENCING; AND (D) FAILED TO CALL APPELLANT'S SPOUSE AND FORMER SPOUSE AS WITNESSES DURING FINDINGS.

 

III. WHETHER THE SPECIFICATIONS OF RENUMBERED CHARGE III (INDECENT ACTS WITH BCP) WERE MULTIPLICIOUS FOR SENTENCING WITH THE SPECIFICATION OF RENUMBERED CHARGE I (RAPE OF BCP), OR AN UNREASONABLE MULTIPLICATION OF CHARGES.

 

     Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 06-0438/AR.  U.S. v. Steven M. BAILEY.  CCA 20021218.

No. 06-0546/AF.  U.S. v. Ginny L. KLEINHANS.  CCA 36157.

No. 06-0636/AF.  U.S. v. David W. VANDENHECKE.  CCA 35850.

No. 06-0666/AR.  U.S. v. Wagner P. DACOSTA.  CCA 20021327.

No. 06-0697/AR.  U.S. v. Christopher J. ROSSI.  CCA 20040929.

No. 06-0749/AR.  U.S. v. Bradley J. HEDGE.  CCA 20050534.

No. 06-0760/AR.  U.S. v. Randy J. WILDER.  CCA 20031255.

No. 06-0770/MC.  U.S. v. Jack KENNEDY III.  CCA 200501355.

No. 06-0826/AR.  U.S. v. Ahyan T. TYLER.  CCA 20040180.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0902/MC.  U.S. v. George A. CANCHOLA, Jr.  CCA 200500538.


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 06-229

Tuesday, September 05, 2006

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 06-0896/AR.  U.S. v. Joseph E. POSTMA.  CCA 20020514.

No. 06-0897/AR.  U.S. v. Renee M. REYES.  CCA 20051365.

No. 06-0898/AR.  U.S. v. Lloyd C. DANIELS III.  CCA 20010088.

No. 06-0899/AR.  U.S. v. Keith C. REEDER.  CCA 20020161.

No. 06-0900/AR.  U.S. v. Marc G. BARDEN.  CCA 20051050.

No. 06-0901/AR.  U.S. v. Paul C. YONGO.  CCA 20030639.

 

INTERLOCUTORY ORDERS

 

No. 06-0694/AR.  U.S. v. Angela M. RUIZ.  CCA 20020475.  Appellant's motion for leave to file brief in excess of thirty pages denied.  Appellant will file a supplement to the petition for grant of review that complies with the limitations in Rule 24 on or before September 15, 2006.

 

No. 06-0729/AR.  U.S. v. Harold R. SPICER.  CCA 20030359.  Appellant's second motion to extend time to file supplement to petition for grant of review granted, but only up to and including September 19, 2006; and that absent extraordinary circumstances, no further extension of time will be granted in this case.

 

06-0819/AR.  U.S. v. Isaac E. BELANGER.  CCA 20031116.  Appellant's motion to extend time to file supplement to petition for grant of review granted to October 4, 2006.



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