UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-181

Thursday, May 31, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0534/MC. U.S. v. Stephen A. GONZALEZ. CCA 201100436.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 11-0525/AF. Michael P. GRAFMULLER, Appellant v. United States, Appellee. CCA 37524. On consideration of Appellant's petition for reconsideration of this Court's order issued on April 25, 2012, it is ordered that said petition for reconsideration is hereby denied.

 

MANDATES ISSUED

 

No. 12-0202/NA. U.S. v. Michael IGNACIO. CCA 201100062.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-180

Wednesday, May 30, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0461/AR. U.S. v. Jonathan DEL CID. CCA 20110290.

No. 12-0462/AR. U.S. v. Matthew P. STEED. CCA 20110834.

No. 12-0463/AR. U.S. v. Travis M. ZIMPRICH. CCA 20110699.

 

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0531/AR. U.S. v. Jordan M. ELLSWORTH. CCA 20110839.

No. 12-0532/AR. U.S. v. Chad D. COLCLASURE. CCA 20110213.

No. 12-0533/AR. U.S. v. Tommy C. COLLINS. CCA 20110809.

 

INTERLOCUTORY ORDERS

 

No. 12-0028/AR. U.S. v. Carlos A. RIVERAROSADO. CCA 20090924. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 1, 2012.

 

No. 12-0486/AR. U.S. v. Jeremey C. CLIFTON. CCA 20091092. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted, up to and including June 18, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-179

Tuesday, May 29, 2012

 

CERTIFICATE FOR REVIEW FILED

 

No. 12-5002/AF. U.S., Appellant v. Ray A. VAZQUEZ, Appellee. CCA 37563. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

 

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT APPELLEE WAS NOT AFFORDED A FUNDAMENTALLY FAIR TRIAL, AS GUARANTEED BY MILITARY DUE PROCESS AND THE UCMJ, WHEN TWO REPLACEMENT COURT MEMBERS DETAILED AFTER TRIAL ON THE MERITS HAD BEGUN WERE PRESENTED RECORDED EVIDENCE PREVIOUSLY INTRODUCED BEFORE THE MEMBERS OF THE COURT IN COMPLIANCE WITH ARTICLE 29, UCMJ, AND R.C.M. 805(d)(1).

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY FAILING TO FIND WAIVER OR BY FAILING TO CONDUCT A PLAIN ERROR ANALYSIS; INSTEAD, THE COURT INCONGRUOUSLY FOUND THE ALLEGED VIOLATION OF APPELLEE'S RIGHT TO MILITARY DUE PROCESS WAS PER SE PREJUDICIAL DESPITE DECLARING THAT THE ERROR WAS NOT STRUCTURAL.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0028/AR. U.S. v. Carlos A. RIVERAROSADO. CCA 20090924.*

No. 12-0526/AR. U.S. v. Lawrence J. LAVERGNE, Jr. CCA 20090986.

No. 12-0527/AR. U.S. v. Tonya M. JONES-MARSHALL. CCA 20100649.

No. 12-0528/AR. U.S. v. Gabriel R. GOMEZ. CCA 20110069.

No. 12-0529/AR. U.S. v. Demetrius L. AGGELIS. CCA 20100858.

No. 12-0530/AR. U.S. v. John M. GUENZEL. CCA 20110082.

_______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-178

Friday, May 25, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0595/NA. U.S. v. William C. FAIRLEY. CCA 200900574.

No. 11-0642/AF. U.S. v. Daniel W. DREWS. CCA 37727.

No. 12-0454/AR. U.S. v. Matthew D. HOWARD. CCA 20090079.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0522/AF. U.S. v. Adam G. COTE. CCA 37745.

No. 12-0523/AR. U.S. v. Brandon T. WEAVER. CCA 20090397.

No. 12-0524/AR. U.S. v. Bruce L. KELLY. CCA 20090809.

No. 12-0525/AR. U.S. v. Michael A. SOUSA. CCA 20100952.

 

INTERLOCUTORY ORDERS

 

No. 12-0300/AR. U.S. v. Payson C. AVERILL. CCA 20090491. Appellee's motion to file a supplemental joint appendix is granted.

 

No. 12-0467/AF. U.S. v. Alexander L. KITSON. CCA 37825. Appellant's motion to amend the supplement to the petition for grant of review is granted.

 

No. 12-0522/AF. U.S. v. Adam G. COTE. CCA 37745. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 14, 2012.

 

No. 12-0524/AR. U.S. v. Bruce L. KELLY. CCA 20090809. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 13, 2012.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-177

Thursday, May 24, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0441/NA. U.S. v. George W. WARREN. CCA 201100048.

No. 12-0453/AR. U.S. v. Jason A. CLEDGETT. CCA 20100780.

No. 12-0456/AR. U.S. v. Brandyn L. HASNAS. CCA 20110598.

No. 12-0457/AR. U.S. v. Virgil R. MITCHELL. CCA 20110155.

No. 12-0458/AR. U.S. v. Samuel J. THOMAS. CCA 20091110.

No. 12-0459/AR. U.S. v. Colby H. FEAGIN. CCA 20110734.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0515/AR. U.S. v. Vincent L. BEARD. CCA 20110298.

No. 12-0516/AF. U.S. v. Michael S. TUNSTALL. CCA 37592.

No. 12-0517/AR. U.S. v. Jerrid D. COOK. CCA 20110255.

No. 12-0518/AF. U.S. v. Frank S. SALAS. CCA S31951.

No. 12-0519/AR. U.S. v. Tracy E. LAWSON. CCA 20110445.

No. 12-0520/AR. U.S. v. Michael S. JOSEY. CCA 20110469.

No. 12-0521/AR. U.S. v. Travis J. LEE. CCA 20110845.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-176

Wednesday, May 23, 2012

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 12-0149/AR. U.S. v. Christopher L. STADEL. CCA 20090820. On further consideration of the granted issue, __ M.J. __ (C.A.A.F. 2012) (order granting review), and in light of United States v. Ignacio, 71 M.J. 125 (C.A.A.F. 2012), and United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0400/AR. U.S. v. Michael T. MCNAUGHTON. CCA 20090596. Review granted on the following issue:

 

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN SPECIFICATION 3 OF CHARGE II REQUIRES THIS COURT TO SET ASIDE THAT CHARGE.

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 208800827.*

No. 11-0497/MC. U.S. v. Desmond J. HORTON. CCA 201000481.*

No. 12-0512/AR. U.S. v. William R. WEIGOLD III. CCA 20110412.

No. 12-0513/AF. U.S. v. Guillermo MELENDEZ, Jr. CCA 37954.

No. 12-0514/AF. U.S. v. Guillermo MELENDEZ, Jr. CCA 38015.

 

INTERLOCUTORY ORDERS

 

No. 11-0640/AR. U.S. v. Robert L. MCCULLOUGH. CCA 20090206. Appellee's motion for leave to file a supplemental joint appendix is granted.

 

No. 12-0313/MC. U.S. v. Andrew D. TEARMAN. CCA 201100195. Appellee's motion to extend time to file a brief is granted, up to and including June 6, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 12-0510/AR. U.S. v. Anthony R. BRAGG. CCA 20110132. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 11, 2012.

_____________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-175

Tuesday, May 22, 2012

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 10-0572/AF. U.S. v. Alejandro ARRIAGA. CCA 37439. Review granted on the following issue:

 

WHETHER THE FINDING OF GUILTY TO INDECENT ASSAULT IN VIOLATION OF ARTICLE 134, UCMJ, FAILS TO STATE AN OFFENSE IN LIGHT OF UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).

 

No briefs will be filed under Rule 25.

 

No. 11-0563/MC. U.S. v. Anthony J. SANDERS. CCA 201000522. Review granted on the following issue:

 

WHETHER THE ADMISSION INTO EVIDENCE OF THE NAVY DRUG SCREENING LABORATORY URINALYSIS DOCUMENTS VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

 

No briefs will be filed under Rule 25.

 

No. 12-0009/MC. U.S. v. Brandon M. MAGNAN. CCA 201000414. Review granted on the following issue:

 

WHETHER A CONTESTED ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE AN ARTICLE 134 TERMINAL ELEMENT BUT THAT WAS NOT CHALLENGED AT TRIAL STATES AN OFFENSE.

 

No briefs will be filed under Rule 25.

 

No. 12-0373/AF. U.S. v. Jose S. MONSERRATE. CCA S31649. Review granted on the following issue:

 

WHETHER, IN LIGHT OF UNITED STATES v. FOSLER AND UNITED STATES v. BALLAN, SPECIFICATION 2 OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT ALLEGE ANY OF THE THREE TERMINAL CLAUSES UNDER ARTICLE 134.

 

No briefs will be filed under Rule 25.

 

No. 12-0418/AF. U.S. v. Andrew P. HALPIN. CCA S31805. Review granted on the following issues:

 

II. WHETHER TRIAL COUNSEL'S IMPROPER SENTENCING ARGUMENT AMOUNTED TO PROSECUTORIAL MISCONDUCT.

 

II. WHETHER THE MILITARY JUDGE PREJUDICIALLY ERRED WHEN HE FAILED TO STOP TRIAL COUNSEL'S IMPROPER SENTENCING ARGUMENT OR ISSUE A CURATIVE INSTRUCTION.

 

III. WHETHER TRIAL DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN HE FAILED TO OBJECT TO TRIAL COUNSEL'S IMPROPER SENTENCING ARGUMENT.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0509/AR. U.S. v. Hezeriah D. HANDY. CCA 20110564.

No. 12-0510/AR. U.S. v. Anthony R. BRAGG. CCA 20110132.

No. 12-0511/AR. U.S. v. Michael R. FARNEY. CCA 20110193.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-174

Monday, May 21, 2012

 

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 hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*[See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* The decision of the United States Army Court of Criminal Appeals states that Appellant was convicted of only two specifications of larceny rather than four.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0104/AF. U.S. v. Edward T. HUDSON. CCA 37249. Review granted on the following issue:

 

WHETHER THE SPECIFICATION OF THE CHARGE FAILS TO STATE AN OFFENSE UNDER ARTICLE 134 AS IT FAILS TO ALLEGE THE THIRD DISTINCTIVE ELEMENT OF ARTICLE 134.

 

No briefs will be filed under Rule 25.

 

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

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0481/AF. U.S. v. Nathan J. ARNOLD. CCA 37697.

No. 11-0529/AF. U.S. v. Matthew C. ROTH. CCA S31834.

No. 11-0607/AF. U.S. v. Ronald C. RENFROE. CCA 37736.

No. 11-0617/AF. U.S. v. Donald W. SWENSEN. CCA 37555.

No. 12-0360/MC. U.S. v. Palanka R. ROUMER. CCA 201100081.

No. 12-0427/AR. U.S. v. Brandon T. BUSBY. CCA 20100831.

No. 12-0442/AF. U.S. v. Stephanie N. DE LEON. CCA S31989.

No. 12-0445/AF. U.S. v. Jonathan W. WRIGHT. CCA 38013.

No. 12-0446/AF. U.S. v. Brandon J. WRIGHT. CCA S31988.

No. 12-0471/AR. U.S. v. Daniel A. DELLIGATTI. CCA 20110295.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0504/AR. U.S. v. Roderick C. HILLIAN. CCA 20091104.

No. 12-0505/AR. U.S. v. Garrett T. GRELLNER. CCA 20110580.

No. 12-0506/AR. U.S. v. Fernando SUSTAITA. CCA 20100966.

No. 12-0507/AR. U.S. v. Andre R. DASHIELL. CCA 20110408.

No. 12-0508/NA. U.S. v. Jason D. JONES. CCA 201100592.

 

PETITION FOR RECONSIDERATION DENIED

 

No. 12-8015/NA. James Melvin LEWIS, Petitioner v. United States, Respondent. On consideration of Petitioner's pro se petition for reconsideration of this Court's order issued February 7, 2012, it is ordered that said petition for reconsideration is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 12-0477/AR. U.S. v. Jason H. BEAN. CCA 20100362. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including June 8, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 12-0478/AR. U.S. v. Donald R. PARRISH. CCA 20091098. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including June 8, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 12-0501/AF. U.S. v. Jessica E. MCFADDEN. CCA 37438. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 7, 2012.

 

No. 12-0503/AF. U.S. v. Michael J. BLUME. CCA 37385. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 7, 2012.

 

No. 12-0504/AR. U.S. v. Roderick C. HILLIAN. CCA 20091104. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 11, 2012.

 

No. 12-0505/AR. U.S. v. Garrett T. GRELLNER. CCA 20110580. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 11, 2012.

 

MANDATES ISSUED

 

No. 12-6001/AF. U.S. v. Scott M. DEASE, Jr. CCA 2011-04.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-173

Friday, May 18, 2012

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0414/AR. U.S. v. David G. SPICER, Jr. CCA 20090608. Review granted on the following issue:

 

WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE FINDINGS OF GUILTY OF MAKING FALSE OFFICIAL STATEMENTS UNDER CHARGE I.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0494/AF. U.S. v. Michael T. NERAD. CCA 36994.

No. 12-0443/AF. U.S. v. Andrea J. THORNTON. CCA S31964.

No. 12-0444/AF. U.S. v. Michael J. GOMEZ. CCA 37834.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0497/AR. U.S. v. Douglas L. GREATHOUSE. CCA 20110557.

No. 12-0498/AR. U.S. v. Francisco J. AMAYA. CCA .

No. 12-0499/AF. U.S. v. Matthew D. JIMERSON. CCA 37979.

No. 12-0500/AR. U.S. v. Emmitt R. QUINTAL. CCA 20110062.

No. 12-0501/AF. U.S. v. Jessica E. MCFADDEN. CCA 37438.

No. 12-0502/AF. U.S. v. Christopher R. CAPOBIANCO. CCA S31859.

No. 12-0503/AF. U.S. v. Michael J. BLUME. CCA 37385.

 

MANDATES ISSUED

 

No. 12-0090/AF. U.S. v. Joseph A. HAYES. CCA 37588.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-172

Thursday, May 17, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0495/AR. U.S. v. Jeffery B.I. LANCASTER. CCA 20100929.

No. 12-0496/NA. U.S. v. Dominic P. ALTIER. CCA 201000361.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 12-6002/AF. U.S. v. Darren N. HATHORNE. CCA 2011-02. On consideration of the Appellant's petition for reconsideration, motion to submit completed Article 69 appeal,* and motion to substitute amended Article 69 appeal action, we conclude that Appellant has failed to meet the standard for reconsideration. Accordingly, it is ordered that the petition for reconsideration, motion to submit, and motion to substitute are denied.

 

* Erroneously captioned as "Article 62 appeal."

 

INTERLOCUTORY ORDERS

 

No. 12-0149/AR. U.S. v. Christopher L. STADEL. CCA 20090820. Appellee's motion to file a supplemental joint appendix is granted.

 

No. 12-0245/AR. U.S. v. Thomas A. SCOTT. CCA 20091087. Appellee's motion to file a supplemental joint appendix is granted.

 

No. 12-0354/NA. U.S. v. Markalle D. REDD. CCA 201000682. On consideration of the motion filed by LCDR Michael R. Torrisi to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned another counsel to represent appellant and that the new attorney has assumed the representation of said appellant. Accordingly, it is ordered that said motion is hereby granted.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-171

Wednesday, May 16, 2012

 

HEARINGS

 

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

No. 11-0515/MC. U.S. v. Benny NORWOOD, Jr. CCA 201000495.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0494/AR. U.S. v. Andrea R. LEWIS. CCA 20110139.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-170

Tuesday, May 15, 2012

 

HEARINGS

 

No. 12-0194/AR. U.S. v. Evan VELA. CCA 20080133.

No. 12-0251/AF. U.S. v. Ermen-Rene BARNETT. CCA 37578.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0257/MC. U.S. v. Thomas J. SCHUMACHER. CCA 201000153. Review granted on the following issue:

 

WHETHER THE FAILURE TO STATE THE TERMINAL ELEMENT IN THE ARTICLE 134 SPECIFICATION HERE MATERIALLY PREJUDICED APPELLANT'S RIGHT TO FAIR NOTICE IN THIS CONTESTED CASE.

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0432/AR. U.S. v. Timothy G. LAPLANTE. CCA 20100206.

No. 12-0435/AR. U.S. v. Sean K. HILL. CCA 20110379.

No. 12-0436/AR. U.S. v. Thomas J. LOVE. CCA 20100854.

No. 12-0437/AR. U.S. v. Jamie A. LINEN. CCA 20110371.

No. 12-0438/AR. U.S. v. Arleon R. JOHNSON. CCA 20110282.

No. 12-0440/AR. U.S. v. Zachary T. AMANN. CCA 20110854.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0492/AR. U.S. v. Jeremy D. LOWE. CCA 20110853.

No. 12-0493/AR. U.S. v. Stephen A. TYBOR. CCA 20111004.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-169

Monday, May 14, 2012

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0385/AR. U.S. v. Robert T. TOUSSANT. CCA 20090839. Review granted on the following issue:

 

WHEN THE GOVERNMENT FAILS TO ALLEGE AN ARTICLE 134 TERMINAL ELEMENT, THE CHARGE FAILS TO STATE AN OFFENSE UNLESS THE TERMINAL ELEMENT CAN BE "NECESSARILY IMPLIED" FROM THE LANGUAGE OF THE SPECIFICATION. THE MISSING TERMINAL ELEMENT FROM THE SPECIFICATION OF CHARGE III CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0371/AR. U.S. v. Charlie W. PRESLEY, Jr. CCA 20090673.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0490/AF. U.S. v. Lewis E. HANFT. CCA S31925.

No. 12-0491/AR. U.S. v. Rodney J. GLOVER. CCA 20100922.

 

INTERLOCUTORY ORDERS

 

No. 12-0282/AR. U.S. v. Michael A. GARNER. CCA 20080401. Appellant's motion to extend time to file a brief granted, up to and including June 4, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-168

Friday, May 11, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0165/AF. U.S. v. Daniel A. ZARBATANY, Jr. CCA 37448.

No. 11-0565/NA. U.S. v. Jack C. RUSCITTO. CCA 201100023.

No. 11-0637/AF. U.S. v. Keitron J. CLARK. CCA S31842.

No. 12-0365/AR. U.S. v. Joshua J. WRIGHT. CCA 20101001.

No. 12-0420/AR. U.S. v. Timothy C. MARTUCCI. CCA 20090572.

No. 12-0422/AR. U.S. v. Joshua T. STUTTE. CCA 20100860.

No. 12-0431/AF. U.S. v. Kenneth W. DEFREITAS. CCA 37829.

 

INTERLOCUTORY ORDERS

 

No. 12-0371/AR. U.S. v. Charlie W. PRESLEY, Jr. CCA 20090673. On consideration of Appellant's motion to consider matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and suspend Rule 21A(c), it is ordered that said motion is hereby granted.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-167

Thursday, May 10, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0488/AR. U.S. v. Ryan A. RODRIQUEZ. CCA 20110801.

No. 12-0489/AR. U.S. v. Jaob J. GALL. CCA 20110992.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-166

Wednesday, May 9, 2012

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0328/AR. U.S. v. Bret A. GLOWTH. CCA 20090925. Review granted on the following issue:

 

WHETHER THE CHARGE AND ITS SPECIFICATIONS FAIL TO STATE AN OFFENSE BECAUSE THE SPECIFICATIONS DO 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).

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0329/MC. U.S. v. Ryan T. SPENCER. CCA 201100136.

 

INTERLOCUTORY ORDERS

 

No. 11-0558/AR. U.S. v. Alvaro GARCIA, Jr. CCA 20080839. Appellant's second motion to extend time to file the supplement granted, up to and including May 15, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 11-0565/NA. U.S. v. Jack C. RUSCITTO. CCA 201100023. Appellant's motion to attach document and Appellee's motion for leave to file a 10-day letter out of time are hereby denied.

 

No. 12-0206/AR. U.S. v. Tommie L. OLDS. CCA 20091044. On consideration of Appellant's motion to compel production of attorney case file, it is ordered that said motion is hereby denied without prejudice to re-filing if Appellant authorizes release of the attorney case file. See United States v. Dorman, 58 M.J. 295, 298 (C.A.A.F 2003).

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-165

Tuesday, May 8, 2012

 

APPEALS - SUMMARY DISPOSITIONS

 

No.11-0559/NA. U.S. v. Jordan J. ESCOCHEA-SANCHEZ. CCA 201000093. On further consideration of the granted issue (70 M.J. 347), we note that this issue was not raised before the United States Navy-Marine Corps Court of Criminal Appeals during its Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2006), review. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further appellate inquiry and consideration of the granted issue. Thereafter, Article 67, UCMJ, shall apply.

 

No. 12-0395/AR. U.S. v. Robert W. MEDEIROS. CCA 20081092. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we conclude that Appellant was denied his Sixth Amendment right to conflict-free counsel in his post-trial representation. Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER APPELLANT'S TRIAL DEFENSE COUNSEL'S CONFLICT OF INTEREST, STEMMING FROM A POST-TRIAL INEFFECTIVE ASSISTANCE OF COUNSEL ALLEGATION, ADVERSELY AFFECTED THAT SAME TRIAL DEFENSE COUNSEL'S CONTINUING REPRESENTATION OF APPELLANT.

 

The decision of the United States Army Court of Criminal Appeals is reversed, and the convening authority's action is set aside. The record of trial is returned to the Judge Advocate General of the Army for submission to an appropriate convening authority for a new recommendation and action. See United States v. Mendoza, 67 M.J. 53 (C.A.A.F. 2008). Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. 866 and 867 (2006), shall apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

No. 12-0413/AR. U.S. v. David J. WATSON, Jr. CCA 20100930. 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 hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.*[ See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* It is ordered that Appellant receive 3 additional days of pretrial confinement credit, for a total credit of 51 days, against the confinement portion of his sentence.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0377/AR. U.S. v. Randy A. GIDDENS. CCA 20090598. Review granted on the following issue:

 

WHETHER A CONTESTED UNLAWFUL ENTRY SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE AN ARTICLE 134 TERMINAL ELEMENT BUT THAT WAS NOT CHALLENGED AT TRIAL STATES AN OFFENSE.

 

No briefs will be filed under Rule 25.

 

No. 12-0395/AR. U.S. v. Robert W. MEDEIROS. CCA 20081092. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 12-0413/AR. U.S. v. David J. WATSON, Jr. CCA 20100930. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0375/MC. U.S. v. Michael S. HARIDAT. CCA 201100275.

No. 12-0429/AF. U.S. v. Christopher C. KALB. CCA 37941.

No. 12-0430/AF. U.S. v. Michael P. STEWART. CCA S31948.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0485/AR. U.S. v. Peter C. BALANDIAK. CCA 20110457.

No. 12-0486/AR. U.S. v. Jeremey C. CLIFTON. CCA 20091092.

No. 12-0487/NA. U.S. v. Jennifer A. ADAMS. CCA 201100324.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-164

Monday, May 7, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0483/AF. U.S. v. Jeffery D. BOHANNON II. CCA 37639.

No. 12-0484/NA. U.S. v. Rayvohn D. WALLACE. CCA 201100300.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-163

Friday, May 4, 2012

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0626/AR. U.S. v. Kirby B. MOSES. CCA 20090247. Review granted on the following issue:

 

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE IN SPECIFICATION 1 OF CHARGE VI THAT APPELLANT'S INDECENT ACTS WERE PREJUDICIAL TO GOOD ORDER AND DISCIPLINE OR SERVICE DISCREDITING UNDER ARTICLE 134, UCMJ, SUBSTANTIALLY PREJUDICED APPELLANT'S CONSTITUTIONAL RIGHT TO FAIR NOTICE OF THE CHARGE AGAINST HIM.

 

No briefs will be filed under Rule 25.

 

No. 12-0320/AF. U.S. v. Chadrick L. CAPEL. CCA S31819. Review granted on the following issue raised by appellate defense counsel:

 

I. WHETHER THE LOWER COURT MISAPPLIED UNITED STATES v. FOSLER AND UNITED STATES v. WATKINS IN FINDING THAT, DESPITE FAILING TO EXPRESSLY ALLEGE THE TERMINAL ELEMENT, THE ARTICLE 134 SPECIFICATION HERE STATES AN OFFENSE.

 

And the following issue specified by the Court:

 

II. WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION FOR MAKING A FALSE OFFICIAL STATEMENT, ARTICLE 107, UCMJ, UNDER THIS COURT'S DECISIONS IN UNITED STATES v. TEFFEAU, 58 M.J. 62 (C.A.A.F. 2002), AND UNITED STATES v. DAY, 66 M.J. 172 (C.A.A.F. 2008).

 

Briefs will be filed under Rule 25 on Issue II only.

 

No. 12-0331/AR. U.S. v. Jamil V. WILLIAMS. CCA 20090619. Review granted on the following issue:

 

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENTS OF ARTICLE 134 OF THE UNIFORM CODE OF MILITARY JUSTICE IN THE SPECIFICATION OF CHARGE IV AND IN SPECIFICATION 1 OF ADDITIONAL CHARGE V REQUIRES THIS COURT TO SET ASIDE THOSE SPECIFICATIONS.

 

No briefs will be filed under Rule 25.

 

No. 12-0396/MC. U.S. v. Jason A. LUNSFORD, Jr. CCA 201100511. Review granted on the following issues:

 

I. TESTIMONIAL STATEMENTS CANNOT BE INTRODUCED ABSENT CONFRONTATION. HERE, APPELLANT OBJECTED TO THE CONFIRMATION AND SCREEN/RE-SCREEN WORKSHEETS ON CONFRONTATION GROUNDS BECAUSE: (1) NDSL'S MISSION IS TO PRODUCE ADMISSIBLE RESULTS; (2) THESE WORKSHEETS WERE CREATED AFTER APPELLANT'S SAMPLE WAS MARKED PRESUMPTIVELY POSITIVE; AND (3) THE WORKSHEETS ARE CREATED FOR AN EVIDENTIARY PURPOSE. DID THE LOWER COURT ERR BY HOLDING THAT THE WORKSHEETS WERE NON-TESTIMONIAL?

 

II. THE LOWER COURT HELD THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING, OVER APPELLANT'S OBJECTION ON CONFRONTATION GROUNDS, THE CHAIN OF CUSTODY DOCUMENTS. ARE THESE NON-MACHINE-GENERATED DOCUMENTS TESTIMONIAL?

 

III. THE LOWER COURT HELD THAT THE ERRONEOUS ADMISSION OF TWO PIECES OF TESTIMONIAL HEARSAY FOUND WITHIN THE SPECIMEN CUSTODY DOCUMENT WAS HARMLESS BEYOND A REASONABLE DOUBT. BUT IT MISAPPLIED THE SWEENEY FACTORS AND DID NOT CONSIDER THE BLAZIER II FACTORS IN ASSESSING PREJUDICE. DID THE LOWER COURT ERR IN HOLDING THAT THE TESTIMONIAL HEARSAY DID NOT CONTRIBUTE TO APPELLANT'S CONVICTION?

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0475/AF. U.S. v. Ryan J. LOTSBAICH. CCA 38011.

No. 12-0476/AF. U.S. v. Kenneth T. JONES. CCA 37756.

No. 12-0477/AR. U.S. v. Jason H. BEAN. CCA 20100362.

No. 12-0478/AR. U.S. v. Donald R. PARRISH. CCA 20091098.

No. 12-0479/AF. U.S. v. Jeremy R.L. VAN NESS. CCA 37683.

No. 12-0480/AR. U.S. v. Vincent DOTSON. CCA 20110850.

No. 12-0481/NA. U.S. v. Richard A. MERREY. CCA 201100667.

No. 12-0482/MC. U.S. v. Marcus S. BELL. CCA 201100416.

 

INTERLOCUTORY ORDERS

 

No. 12-0477/AR. U.S. v. Jason H. BEAN. CCA 20100362. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 24, 2012.

 

No. 12-0478/AR. U.S. v. Donald R. PARRISH. CCA 20091098. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 24, 2012.

 

No. 12-0481/NA. U.S. v. Richard A. MERREY. CCA 201100667. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 24, 2012.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-162

Thursday, May 3, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0401/AF. U.S. v. David M. ATTARDO. CCA S31853.

No. 12-0423/AF. U.S. v. Michelle ADDISON. CCA 37948.

No. 12-0424/AF. U.S. v. Steven A. LEMMER. CCA S31846.

No. 12-0425/AF. U.S. v. David E. OLIVER, III. CCA S31980.

No. 12-0426/AR. U.S. v. Jesse J. DUNN. CCA 20100458.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-161

Wednesday, May 2, 2012

 

PETITION FOR GRANT OF REVIEW FILED

 

No. 12-0474/NA. U.S. v. Brandon W. BARRETT. CCA 201000330.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 12-160

Tuesday, May 1, 2012

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0467/AR. U.S. v. Arthur R. YOUNG, Jr. CCA 20090092. Review granted on the following issue:

 

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134 OF THE UNIFORM CODE OF MILITARY JUSTICE IN THE SPECIFICATION OF CHARGE V REQUIRES THIS COURT TO SET ASIDE THAT SPECIFICATION.

 

No briefs will be filed under Rule 25.

 

No. 11-0475/AR. U.S. v. Robert L. CONRADY. CCA 20080534. Review granted on the following issue:

 

WHETHER SPECIFICATIONS 2, 6 AND 7, OF CHARGE III FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.

 

No briefs will be filed under Rule 25.

 

No. 11-0495/AR. U.S. v. Brandon K. PRICE. CCA 20100382. Review granted on the following issue:

 

WHEN THE GOVERNMENT FAILS TO ALLEGE AN ARTICLE 134 TERMINAL ELEMENT, THE CHARGE FAILS TO STATE AN OFFENSE UNLESS THE TERMINAL ELEMENT CAN BE "NECESSARILY IMPLIED" FROM THE LANGUAGE OF THE SPECIFICATION. THE MISSING TERMINAL ELEMENT FROM SPECIFICATION TWO OF CHARGE VI CANNOT BE NECESSARILY IMPLIED FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?

 

No briefs will be filed under Rule 25.

 

No. 12-0286/AF. U.S. v. Paul A. TITCOMBE. CCA 37618. Review granted on the following issue:

 

WHETHER THE AIR FORCE COURT ERRED BY FINDING THAT ADDITIONAL CHARGE II ALLEGING UNLAWFUL ENTRY UNDER ARTICLE 134 WAS NOT DEFICIENT BECAUSE THE "MILITARY JUDGE IS PRESUMED TO KNOW THE LAW AND APPLY IT CORRECTLY WHEN SITTING AS THE TRIER OF FACT."

 

No briefs will be filed under Rule 25.

 

No. 12-0317/AF. U.S. v. Ronnie WILSON. CCA 37486. Review granted on the following issue:

 

WHETHER SPECIFICATIONS 1 AND 5 OF CHARGE III FAIL TO STATE AN OFFENSE UNDER ARTICLE 134, UCMJ, BECAUSE NEITHER SPECIFICATION ALLEGES THE TERMINAL ELEMENT.

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0411/AR. U.S. v. Dewey B. MEADOR. CCA 20100130.

No. 12-0412/AR. U.S. v. Anthony R. ELLINGTON. CCA 20100667.

No. 12-0415/AF. U.S. v. Cameron K. GRAVES. CCA S31954.

No. 12-0416/AR. U.S. v. Khristopher R. WILLIS. CCA 20110217.

No. 12-0417/AF. U.S. v. Eric S. PUTNAM. CCA 37910.

No. 12-0421/AR. U.S. v. Joshua P. CARROLL. CCA 20110444.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0472/AR. U.S. v. John-Louis N. HUSTON. CCA 20100999.

No. 12-0473/AR. U.S. v. Kevin D. SHARP. CCA 20110582.

 


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