UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-059

Wednesday, November 30, 2011

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 12-0012/AF. U.S. v. Natasha S. JUSTICE. CCA 37446. Review granted on the following issue:

 

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

 

The decision of the United States Air Force Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge (dissenting):

 

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

 

No. 12-0044/AF. U.S. v. Varun K NARULA. CCA 37658. Review granted on the following issue:

 

WHETHER THE SPECIFICATION FOR FRATERNIZATION FAILS TO STATE AN OFFENSE BECAUSE IT ALLEGES A VIOLATION OF ARTICLE 134 BUT FAILS TO ALLEGE ANY OF ARTICLE 134'S TERMINAL ELEMENTS.

 

The decision of the United States Air Force Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge (dissenting):

 

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0090/AF. U.S. v. Joseph A. HAYES. CCA 37588. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO DISMISS FOR FAILURE TO STATE AN OFFENSE, WHERE THE SPECIFICATION OMITTED REFERENCE TO A REQUIRED ELEMENT UNDER STATE LAW FOR A FINDING OF GUILTY FOR WRONGFUL CONSUMPTION OF ALCOHOL WHILE UNDER AGE 21.

 

Briefs will be filed under Rule 25.

 

No. 12-0012/AF. U.S. v. Natasha S. JUSTICE. CCA 37446. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

No. 12-0044/AF. U.S. v. Varun K NARULA. CCA 37658. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0022/AR. U.S. v. Warren B. GILBERTSON. CCA 20080428.

No. 12-0024/MC. U.S. v. Steven E. MAUCERI. CCA 201000573.

No. 12-0130/AR. U.S. v. Jason L. SMITH. CCA 20110165.

 

INTERLOCUTORY ORDERS

 

No. 12-0143/MC. U.S. v. Richard A. GARCIA-TOLSON. CCA 2010000610. Appellee's motion to extend time to file an answer to the supplement to the petition for grant of review granted to December 8, 2011.

 

No. 12-0173/NA. U.S. v. David A. STROUD. CCA 201100145. On consideration of the motion filed by Lieutenant Daniel Napier for leave to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned another counsel to represent Appellant and the new attorney has assumed the representation of said Appellant. Accordingly, it is ordered that said motion is hereby granted.

 

No. 12-0182/AR. U.S. v. Nathaniel D. BOZMAN. CCA 20110077. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to December 19, 2011.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-058

Tuesday, November 29, 2011

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0185/AR. U.S. v. Brandon L. MAULDIN. CCA 20100647.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-057

Monday, November 28, 2011

 

PETITIONS FOR GRANT OF REVIEW DENIED


No. 12-0126/AR. U.S. v. Devon W. MARSH. CCA 20100874.

No. 12-0127/AR. U.S. v. John D. CORATHERS, II. CCA 20100993.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0181/AF. U.S. v. Douglas L. PAGE, Jr. CCA 37612.

No. 12-0182/AR. U.S. v. Nathaniel D. BOZMAN. CCA 20110077.

No. 12-0183/AR. U.S. v. Donny W. COWELL. CCA 20110410.

No. 12-0184/AR. U.S. v. Andrew D. ELDER. CCA 20110203.

 

INTERLOCUTORY ORDERS

 

No. 12-0172/NA. U.S. v. Jeremy L. RAUSCHER. CCA 201000684. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to December 12, 2011.

 

No. 12-0177/AR. U.S. v. Eric FIGUEROAMARCIAL. CCA 20090056. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to December 13, 2011.

 

No. 12-0181/AF. U.S. v. Douglas L. PAGE, Jr. CCA 37612. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to December 19, 2011.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-056

Wednesday, November 23, 2011

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 09-0043/AR. U.S. v. Neil S. LUBASKY. CCA 20020924.*

No. 12-0174/AR. U.S. v. Joshua J. LOPEZ. CCA 20100788.

No. 12-0175/AF. U.S. v. Michael J. LIEBEGOTT. CCA S31796.

No. 12-0176/AF. U.S. v. Cameron R. DIAMANT. CCA 37848.

No. 12-0177/AR. U.S. v. Eric FIGUEROAMARCIAL. CCA 20090056.

No. 12-0178/AF. U.S. v. Jonathan G. GRILLI. CCA 37823.

No. 12-0179/AF. U.S. v. Juan C. GUTIERREZ. CCA S31895.

No. 12-0180/MC. U.S. v. Ian T. GLOVER. CCA 201100211.

________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-055

Tuesday, November 22, 2011

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 11-0361/AR. U.S. v. Mark C. CHARTIER. CCA 20100312. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue :

 

WHETHER SPECIFICATION 2 OF CHARGE IV FAILS TO STATE AN OFFENSE AS IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE "TERMINAL ELEMENT" AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

 

The decision of the United States Army Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge (dissenting):

 

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

 

No. 12-0124/NA. U.S. v. Kelvin J.C. RODEO. CCA 201000590. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that the convening authority approved the sentence, which included a dishonorable discharge, and then stated:

 

In accordance with the Uniform Code of Military Justice, the Manual for Courts-Martial, applicable regulations, and this action, the sentence is ordered executed.

 

Under Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until, after the completion of direct appellate review, there is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority's action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again suggest that the model "Forms for Action" in Manual for Courts-Martial, United States app. 16 at A16-1 A16-6 (2008 ed.) be revised. See United States v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, it is ordered that said petition is granted, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0361/AR. U.S. v. Mark C. CHARTIER. CCA 20100312. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 12-0124/NA. U.S. v. Kelvin J.C. RODEO. CCA 201000590. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0102/AF. U.S. v. Joseph M. EMMONS. CCA 37738.

No. 12-0121/AR. U.S. v. Donald M. ARSENAULT. CCA 20100938.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0169/AR. U.S. v. Thomas S. REYNA. CCA 20101051.

No. 12-0170/AR. U.S. v. Larry E. PARKS, Jr. CCA 20110176.

No. 12-0171/AR. U.S. v. Clayton J. DUNCAN. CCA 20090545.

No. 12-0172/NA. U.S. v. Jeremy L. RAUSCHER. CCA 201000684.

No. 12-0173/NA. U.S. v. David A. STROUD. CCA 201100145.





UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-054

Monday, November 21, 2011

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0165/MC. U.S. v. Stephen L. SCARINGELLO. CCA 201100192.

No. 12-0166/AR. U.S. v. Joshua R. STOVALL. CCA 20100876.

No. 12-0167/AR. U.S. v. Dantonio L. LYNCH. CCA 20110086.

No. 12-0168/AR. U.S. v. Cristian A. MARTINEZ. CCA 20100697.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-053

Friday, November 18, 2011

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0008/AR. U.S. v. Alaa M. ALI. CCA 20080559. Review granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED IN RULING THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE CHARGES AND SPECIFICATIONS.

 

II. WHETHER THE COURT-MARTIAL HAD JURISDICTION OVER APPELLANT PURSUANT TO ARTICLE 2(a)(10), UNIFORM CODE OF MILITARY JUSTICE.

 

III. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

 

Briefs will be filed under Rule 25 on Issues I and II only.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0158/AR. U.S. v. Christopher L. PARKER. CCA 20110209.

No. 12-0159/MC. U.S. v. Jaimie R. WALTON. CCA 2010000508.

No. 12-0160/MC. U.S. v. Marvin B. FLETCHER. CCA 201000421.

No. 12-0161/AR. U.S. v. Anthony S. ALMAGRO. CCA 20100872.

No. 12-0162/AR. U.S. v. Justin J. GORDON. CCA 20110164.

No. 12-0163/AR. U.S. v. Gary L. LAMBERT. CCA 20100378.

No. 12-0164/AR. U.S. v. Jason S. CHAMBERLAIN. CCA 20100775.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 12-8006/AR. Terrance A. NORMAN, Appellant v. United States, Appellee. CCA 20110521. Notice is hereby given that a pro se writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief was filed by mail under Rule 27(b) on October 25, 2011, and placed on the docket November 18, 2011. On consideration thereof, it is ordered that said writ-appeal is hereby denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-052

Thursday, November 17, 2011

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0243/AR. U.S. v. John A. MCCARY. CCA 20090601.*

No. 12-0151/AF. U.S. v. Andrew SILVA. CCA 37846.

No. 12-0152/AF. U.S. v. Benjamin C. MCKINNEY. CCA 37801.

No. 12-0153/AF. U.S. v. Matthew A. PINGEL. CCA 37783.

No. 12-0154/AF. U.S. v. Jeffrey S. MANLEY. CCA S31884.

No. 12-0155/AF. U.S. v. Joseph F. RICHARDSON. CCA S31743.

No. 12-0156/AR. U.S. v. Antonie HILLIARD. CCA 20091034.

No. 12-0157/AF. U.S. v. Jonathan D. MORRISON. CCA S31880.

________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-051

Wednesday, November 16, 2011

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0047/AR. U.S. v. Allan J. MARQUARDT. CCA 20100059.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0150/AR. U.S. v. Joshua C. HOWARD. CCA 20110156.

 

INTERLOCUTORY ORDERS

 

No. 12-0009/MC. U.S. v. Brandon M. MAGNAN. CCA 201000414. No. 12-0096/NA. U.S. v. John CUMMINGS, Jr. CCA 201000623. On consideration of the motions filed by Lieutenant Michael Hanzel for leave to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned other counsel to represent Appellants and the new attorneys have assumed the representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 12-6001/AF. U.S. v. Scott M. DEASE, Jr. CCA 2011-04. Appellant's motions to reply to answer and to reply to opposition to motion to stay out of time are hereby denied as moot.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-050

Tuesday, November 15, 2011

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 11-0675/AR. U.S. v. Cassandra M. RILEY. CCA 20100084. Review granted on the following issues:

 

I. WHETHER IN LIGHT OF THIS COURT'S RECENT DECISION IN UNITED STATES v. FOSLER, THE SPECIFICATION OF THE CHARGE FAILED TO STATE AN OFFENSE UNDER ARTICLE 134.

 

II. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HER TRIAL DEFENSE COUNSEL FAILED TO INFORM HER THAT SHE WOULD HAVE TO REGISTER AS A SEX OFFENDER AFTER PLEADING GUILTY.

 

III. WHETHER APPELLANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY BECAUSE APPELLANT DID NOT KNOW THAT AFTER PLEADING GUILTY SHE WOULD HAVE TO REGISTER AS A SEX OFFENDER, AND THE MILITARY JUDGE ABUSED HER DISCRETION WHEN SHE ACCEPTED APPELLANT'S UNKNOWING AND INVOLUNTARY PLEA WITHOUT ASKING THE TRIAL DEFENSE COUNSEL IF SHE HAD INFORMED APPELLANT OF THE APPLICABLE SEX OFFENDER REGISTER REQUIREMENTS.

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further appellate inquiry and consideration of the granted issues. The Court of Criminal Appeals will obtain affidavits from the trial defense counsel that respond to Appellant's allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2006), the Court of Criminal Appeals shall review the ineffective assistance of counsel issue in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 238 (C.A.A.F. 1997). If the court determines 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 complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2006), shall apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge (dissenting):

 

With respect to Issue I, I adhere to my dissent in Fosler, where I specifically addressed the issue of kidnapping. United States v. Fosler, 70 M.J. 225, 244-45 (C.A.A.F. 2011).

 

No. 12-0082/AF. U.S. v. Steven D. HARRIS, Jr. CCA S31822. Review granted on the following issue:

 

WHETHER AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

 

The decision of the United States Air Force Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge (dissenting):

 

I dissent for the reasons stated in my dissenting opinion in United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0258/MC. U.S. v. Travis J. WESTHOVEN. CCA 201000132. Review granted on the following issue:

 

WHETHER, IN LIGHT OF UNITED STATES v. MCMURRIN, 70 M.J. 15 (C.A.A.F. 2011), AND UNITED STATES v. MORTON, 69 M.J. 12 (C.A.A.F. 2010), APPELLANT'S GUILTY PLEA TO AN OFFENSE NOT NECESSARILY INCLUDED IN THE CHARGED OFFENSE CAN BE AFFIRMED UNDER UNITED STATES v. WILKINS, 29 M.J. 421 (C.M.A. 1990).

 

Briefs will be filed under Rule 25.

 

No. 11-0675/AR. U.S. v. Cassandra M. RILEY. CCA 20100084. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 12-0082/AF. U.S. v. Steven D. HARRIS, Jr. CCA S31822. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0674/AF. U.S. v. Scott D. BOIE. CCA 37546.

No. 12-0069/MC. U.S. v. Matthew E. DAVIS. CCA 201100057.

No. 12-0093/AF. U.S. v. Aaron A. LOPEZ. CCA 37724.

No. 12-0094/AF. U.S. v. Michael A. TOWNE. CCA S31897.

No. 12-0095/AR. U.S. v. Jesse R. MORTON. CCA 20110056.

No. 12-0096/NA. U.S. v. John CUMMINGS, Jr. CCA 201000623.

No. 12-0097/AF. U.S. v. Deron D. HOLLOWAY. CCA 37760.

No. 12-0098/AF. U.S. v. Dustin M. CLARK. CCA 37871.

No. 12-0109/AF. U.S. v. Jessica A. WINKLER. CCA 37802.

No. 12-0110/AF. U.S. v. Anthony G. POLOZZOLO, Jr. CCA 31892.

No. 12-0111/AF. U.S. v. Joshua A. DOBBINS. CCA S31839.

No. 12-0112/AF. U.S. v. Nicholas J. SOBCZYK. CCA S31789.

No. 12-0115/AR. U.S. v. Matthew S. HUNTER. CCA 20100954.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0149/AR. U.S. v. Christopher L. STADEL. CCA 20090820.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-049

Monday, November 14, 2011

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-6001/AF. U.S. v. Scott M. DEASE, Jr. CCA 2011-04. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FINDING APPELLANT HAD ABANDONED HIS URINEAND THUS HAD NO REASONABLE EXPECTATION OF PRIVACY WHERE APPELLANT CONSENTED TO THE SEIZURE OF HISURINE AND THEN REVOKED CONSENT PRIOR TO THE SEARCH OF APPELLANT'S URINE.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0646/AR. U.S. v. Hector B. LOPEZ. CCA 20080736.

No. 12-0037/AR. U.S. v. Roger D. JACOBSON. CCA 20100597.

No. 12-0038/AR. U.S. v. Danielle M. DANCE. CCA 20100543.

No. 12-0042/MC. U.S. v. Michael T. JENKINS. CCA 201000663.

No. 12-0059/AR. U.S. v. Aaron J.S. MORRIS. CCA 20090872.

No. 12-0085/MC. U.S. v. Michael D. FRANSON. CCA 201100256.

No. 12-0086/AF. U.S. v. Addison T. MCFARLAND. CCA S31855.

No. 12-0087/AF. U.S. v. Tyler W. MEROLA. CCA 37701.

No. 12-0088/AR. U.S. v. Jessie GOMEZ, Jr. CCA 20100524.

No. 12-0089/AF. U.S. v. Chad R. SCHROEDER. CCA 37475.

No. 12-0091/AF. U.S. v. Christian A. HOLMLUND. CCA 37786.

No. 12-0092/AF. U.S. v. Brian J. HOWES. CCA S31809.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0145/AF. U.S. v. Rebecca A. BURGESS. CCA S31908.

No. 12-0146/NA. U.S. v. Keith C. GARRETT. CCA 201100140.

No. 12-0147/MC. U.S. v. Phillip J. APODACA. CCA 201100008.

No. 12-0148/AR. U.S. v. James O. MORRIS. CCA 20081169.

 

INTERLOCUTORY ORDERS

 

No. 11-0675/AR. U.S. v. Cassandra M. RILEY. CCA 20100084. Appellant's motion to attach affidavit is denied.

 

No. 12-6001/AF. U.S. v. Scott M. DEASE, Jr. CCA 2011-04. Appellant's motion for a stay of proceedings is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-048

Thursday, November 10, 2011

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0144/AR. U.S. v. Brian F. JONES. CCA 20110103.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-047

Wednesday, November 9, 2011

 

INTERLOCUTORY ORDERS

 

No. 11-5005/MC. U.S. v. Jeremy J. NASH. CCA 201000220. On consideration of the motion of the United States to attach page 857 of the record of trial, and following examination of the original record of trial which contains page 857, it is ordered that said motion is hereby denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-046

Tuesday, November 8, 2011

 

APPEALS SUMMARY DISPOSITIONS

 

No. 12-0046/AR. U.S. v. Daniel A. SMELSER. CCA 20110114. Review granted on the following issue:

 

WHETHER THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE AS IT DOES NOT ALLEGE EXPRESSLY OR BY NECESSARY IMPLICATION, THE "TERMINAL ELEMENT" AS REQUIRED BY UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

 

The decision of the United States Army Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge (dissenting):

 

I adhere to my dissent in Fosler, where I specifically addressed the issue of kidnapping. United States v. Fosler, 70 M.J. 225, 244-45 (C.A.A.F. 2011).

 

No. 12-0057/AR. U.S. v. Row E. BUHROW III. CCA 20100911. Review granted on the following issue:

 

WHETHER CHARGE III FAILED TO STATE AN OFFENSE WHERE THE GOVERNMENT DID NOT ALLEGE APPELLANT'S CONDUCT WAS TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES.

 

The decision of the United States Army Court of Criminal Appeals is vacated. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge (dissenting):

 

I dissent for the reasons stated in my dissenting opinion in Fosler. United States v. Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0399/NA. U.S. v. Willie A. BRADLEY. CCA 200501089. Review granted on the following issues:

 

I. IN BRADLEY I, THIS COURT RULED THAT ITS APPLICATION OF WAIVER TO APPELLANT'S DISQUALIFICATION-OF-TRIAL-COUNSEL CLAIM DID NOT RENDER HIS PLEAS IMPROVIDENT WHERE THERE WAS: (1) NO INEFFECTIVE ASSISTANCE OF COUNSEL (IAC) CLAIM; AND (2) ONLY A POSSIBILITY THAT HE BELIEVED THE DISQUALIFICATION CLAIM WAS PRESERVED FOR APPEAL. ON REMAND, APPELLANT CLAIMED IAC AND PRESENTED EVIDENCE THAT HE DID BELIEVE HIS DISQUALIFICATION ISSUE WAS PRESERVED. DID NMCCA ERR IN HOLDING THAT IT WAS BOUND BY THIS COURT'S RULING THAT APPELLANT'S PLEAS WERE PROVIDENT?

 

II. APPELLANT'S CIVILIAN COUNSEL ERRONEOUSLY ADVISED HIM THAT HIS DENIED MOTION TO DISQUALIFY TRIAL COUNSEL FROM FURTHER PARTICIPATION IN THE CASE WAS PRESERVED FOR APPEAL DESPITE UNCONDITIONAL PLEAS. DID NMCCA ERR IN FINDING THAT CIVILIAN COUNSEL'S ERRONEOUS ADVICE WAS REASONABLE, AND THEREFORE NOT DEFICIENT?

 

III. ON REMAND, DID NMCCA VIOLATE THE LAW OF THE CASE DOCTRINE BY FINDING THAT EVEN IF THE TRIAL JUDGE ERRED BY NOT DISQUALIFYING TRIAL COUNSEL - WHICH THE BRADLEY I COURT FOUND HE HAD - APPELLANT WAS NOT PREJUDICED - WHICH THE BRADLEY I COURT FOUND HE WAS?

 

Briefs will be filed under Rule 25.

 

No. 12-0046/AR. U.S. v. Daniel A. SMELSER. CCA 20110114. [See also APPEALS SUMMARY DISPOSITIONS this date.]

 

No. 12-0057/AR. U.S. v. Row E. BUHROW III. CCA 20100911. [See also APPEALS SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0075/AF. U.S. v. Daniel H. HOOPES. CCA S31825.

No. 12-0076/AF. U.S. v. Ernest W. MOORE, II. CCA 37870.

No. 12-0077/AR. U.S. v. David A. HAGINS. CCA 20100373.

No. 12-0078/AF. U.S. v. William R. CHOPE. CCA S31769.

No. 12-0079/AF. U.S. v. Carlos A. LEE. CCA S31870.

No. 12-0080/AF. U.S. v. Bradley R. COOPER. CCA S31896.

No. 12-0081/AF. U.S. v. Joel D. MCNEARNEY. CCA 37778.

No. 12-0084/AF. U.S. v. Amber N. DEJESUS. CCA S31845.

 

INTERLOCUTORY ORDERS

 

No. 09-0079/AR. U.S. v. James T. MURPHY. CCA 19872873. Appellant's motion to exceed the page and word limits for the supplement to the petition for grant of review is denied. Appellant will file a supplement to the petition for grant of review that complies with Rule 21(b) on or before November 15, 2011. Appellant's pro se motion for relief is also denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-045

Monday, November 7, 2011

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0068/AR. U.S. v. Zachary S. CHAVEZ. CCA 20100902.

No. 12-0074/AR. U.S. v. Kyle E. CHATTEN. CCA 20110001.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0143/MC. U.S. v. Richard A. GARCIA-TOLSON. CCA 2010000610.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-044

Friday, November 04, 2011

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0142/NA. U.S. v. Osborn N. MIRANDA. CCA 201100084.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-043

Thursday, November 3, 2011

 

HEARINGS

 

No. 11-0396/MC. U.S. v. Joshua D. FRY. CCA 201000179.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0648/NA. U.S. v. Lloyd G. FISHER. CCA 201000287.

No. 11-0677/AR. U.S. v. David T. BISHOP. CCA 20090746.

No. 12-0045/NA. U.S. v. Eric R. SKINNER. CCA 201000555.

No. 12-0072/AF. U.S. v. Keith D. DYE, Jr. CCA S31887.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-042

Wednesday, November 2, 2011

 

HEARINGS

 

No. 11-5003/NA. U.S. v. Thomas J. Hayes. CCA 201000366.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0063/AR. U.S. v. Ricky J. HOLLOWAY, Jr. CCA 20110055.

No. 12-0065/AR. U.S. v. Edward R. JOHNSON. CCA 20100186.

No. 12-0067/AR. U.S. v. Edward NUNEZ. CCA 20100998.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0138/AR. U.S. v. Erik W. HERMANSEN. CCA 20090628.

No. 12-0139/AF. U.S. v. Ryan D. HAIGH. CCA S31900.

No. 12-0140/AF. U.S. v. Jeremiah C. SLACK. CCA S31906.

No. 12-0141/AF. U.S. v. William L. HIGDON II. CCA S31869.

 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-041

Tuesday, November 1, 2011

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0136/AR. U.S. v. Colin M. JAMESON. CCA 20090908.

No. 12-0137/AR. U.S. v. Bryan D. SANTIZO. CCA 20100146.

 

INTERLOCUTORY ORDERS

 

No. 12-0015/AR. U.S. v. Marvin C. SIMPSON. CCA 20091039. Appellee's motion to extend time to file an answer to the supplement to the petition for grant of review granted to November 18, 2011.

 

No. 12-0134/AR. U.S. v. Jonathon L. TRUSS. CCA 20080988. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to November 21, 2011.

 



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