UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-019

Friday, September 28, 2012

 

NOTICES

 

No. 11-0486/NA. U.S. v. Akeem A. WILKINS. CCA 201000289.

No. 12-0320/AF. U.S. v. Chadrick L. CAPEL. CCA S31819.

No. 12-0414/AR. U.S. v. David G. SPICER. CCA 20090608.

No. 12-5001/AF. U.S. v. Daniel J. DATAVS. CCA 37537.

No. 12-8027/AR. Center for Constitutional Rights, et al.,v. U.S. and Colonel Denise Lind, Military Judge. CCA 20120514.

 

In each of the above cases, in view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Walter T. Cox III to perform judicial duties, and that Senior Judge Cox has consented to perform judicial duties in said cases under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2006).

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0689/AR. U.S. v. Brandon M. WHITE. CCA 20100325.

No. 12-0699/AF. U.S. v. Stanley A. TITANSKI. CCA S31888.

No. 12-0701/AF. U.S. v. Jose R. SALDANA, IV. CCA 37598.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0331/AR. U.S. v. Jamil V. WILLIAMS. CCA 20090619.

No. 13-0040/AR. U.S. v. James A. BACKES. CCA 20110870.

 

INTERLOCUTORY ORDERS

 

No. 12-0300/AR. U.S. v. Payson C. AVERILL. CCA 20090491. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 16, 2012.

 

No. 12-0331/AR. U.S. v. Jamil V. WILLIAMS. CCA 20090619. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 18, 2012.

 

No. 12-0678/AR. U.S. v. David N. GILLUM. CCA 20111156. Appellant's motion to file the supplement to the petition for grant of review out of time granted.

 

No. 13-0003/AR. U.S. v. Megan B. MCCLELLAN. CCA 20110484. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including October 11, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0009/AR. U.S. v. Roger CRUZ. CCA 20100132. 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 October 11, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0038/NA. U.S. v. Kenneth J. PERRY. CCA 201100273. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 17, 2012.

 

No. 13-0040/AR. U.S. v. James A. BACKES. CCA 20110870. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 18, 2012.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 12-8031/MC. James M. Lewis v. U.S. On consideration of the petition for reconsideration of the Court's Order of August 24, 2012, it is ordered that said petition for reconsideration is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-018

Thursday, September 27, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0166/AF. U.S. v. Harley T. LUSK. CCA S31624.*

No. 13-0038/NA. U.S. v. Kenneth J. PERRY. CCA 201100273.

No. 13-0039/AR. U.S. v. Michael S. JORGENSEN. CCA 20111094.

_______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-017

Wednesday, September 26, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0300/AR. U.S. v. Payson C. AVERILL. CCA 20090491.*

No. 13-0036/MC. U.S. v. Shawn T. LUCAS. CCA 201100372.

No. 13-0037/AR. U.S. v. Eloy GONZALEZ. CCA 20100485.

 

INTERLOCUTORY ORDERS

 

No. 13-0001/AR. U.S. v. Jarvis J. PILAGO. CCA 20100414. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including September 28, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0008/AR. U.S. v. Godfrey J. HURLEY. CCA 20080262. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including October 11, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-016

Tuesday, September 25, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0082/AF. U.S. v. Steven D. HARRIS, Jr. CCA S31822.

No. 12-0690/AF. U.S. v. Raymond M. SAVOIE, Jr. CCA S31933.

No. 12-0691/AF. U.S. v. William B. LAFRENIERE. CCA 38054.

No. 12-0694/AF. U.S. v. Levi D. SKINNER. CCA S31956.

No. 12-0696/AF. U.S. v. James P. CONNORS. CCA S32001.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0476/AR. U.S. v. Berttran L. TILLER. CCA 20080438.*

No. 13-0034/AR. U.S. v. Dwight D. METZ. CCA 20110918.

No. 13-0035/AR. U.S. v. Eric S. CRAWFORD. CCA 20110695.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8008/AR. Shawn M.E. PELLETIER, v. Colonel Thomas D. Cook, Colonel Theresa A. Gallagher, Lieutenant Colonel Steven P. Haight, United States Army, Respondents. CCA 20100711. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of prohibition was filed under Rule 27(a), together with a motion for a stay of proceedings on this date. Respondents shall file an answer to Petitioner's motion on or before October 2, 2012.

_______________________________

 

* Third petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-015

Monday, September 24, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0019/AF. U.S. v. Shannon L. DOLLAR. CCA S31607.*

No. 11-0495/AR. U.S. v. Brandon K. PRICE. CCA 20100382.**

No. 13-0030/AR. U.S. v. Matthew J. STOCKWELL. CCA 20120280.

No. 13-0031/AR. U.S. v. Wayne C. KING, II. CCA 20120155.

No. 13-0032/AR. U.S. v. Jeremy A. KEECH. CCA 20101015.

No. 13-0033/AR. U.S. v. Zachary C. HIGGINS. CCA 20101009.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 12-8030/NA. John H. MAZE, Appellant v. United States, Appellee. CCA 200900027. On consideration of Appellant's writ-appeal petition, Appellee's motion to seal Appellant's pleading, Appellee's motion to substitute, and Appellee's motion for summary judgment, it isordered that Appellant's motion for summary judgment is hereby denied, that Appellee's motion to substitute is hereby granted, that Appellee's motion to seal Appellant's pleading is hereby granted as it pertains to Appendices A, B, and D, and Appellant's writ-appeal petition is hereby denied.

______________________________

 

* Second petition filed in this case.

** Third petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-014

Friday, September 21, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0638/AR. U.S. v. Jeffrey D. SMITH. CCA 20110569.

No. 12-0671/AF. U.S. v. Jeremy K. ARSENAULT. CCA 38030.

No. 12-0685/AR. U.S. v. Michael J. FIERLEY, Jr. CCA 20110529.

No. 12-0686/AR. U.S. v. Johncharles A. SHORES. CCA 20110901.

No. 12-0688/AR. U.S. v. Beyshee O. VELEZ. CCA 20110317.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0028/AR. U.S. v. Cristian J. PAYAN. CCA 20110665.

No. 13-0029/AR. U.S. v. Ivette DAVILA. CCA 20100693.

 

INTERLOCUTORY ORDERS

 

No. 12-0408/MC. U.S. v. Lawrence G. HUTCHINS III. CCA 200800393. Appellant's motion to extend time to file a reply brief granted, up to and including October 4, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0020/NA. U.S. v. Dmenico D. HUDSON. CCA 201100560. On consideration of the motion filed by Lieutenant Toren Mushovic for leave to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned another counsel to represent Appellant and that the new counsel has assumed 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. 13-013

Thursday, September 20, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0026/AR. U.S. v. Phillip P. WILSON. CCA 20110033.

No. 13-0027/AR. U.S. v. Robert C. CASTILLO. CCA 20110513.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8007/NA. United States, Appellant v. Saheed A. LAWANSON, Appellee. CCA 201200187. Notice is hereby given that a writ appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-012

Wednesday, September 19, 2012

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 12-0501/AF. U.S. v. Jessica E. MCFADDEN. CCA 37438. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO EXCUSE FOR CAUSE A COURT MEMBER WHO ACCUSED APPELLANT OF LYING BY OMISSION BY EXERCISING HER RIGHT TO REMAIN SILENT.

 

The decision of the United States Air Force Court of Criminal Appeals is vacated, and the case 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. Nash, 71 M.J. 83 (C.A.A.F. 2012), without prejudice to raising other issues in a subsequent appeal.

 

No. 13-0004/AF. U.S. v. Corey R. LENKNER. CCA S31997. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the court below affirmed a sentence that included hard labor without confinement after the convening authority had not approved that punishment. Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY AFFIRMING HARD LABOR WITHOUT CONFINEMENT WHEN THE CONVENING AUTHORITY DID NOT APPROVE THAT PUNISHMENT. SEE ARTICLE 66(c), UCMJ.

 

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for a bad-conduct discharge, confinement for 30 days, and a reduction to the grade of E-1.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0501/AF. U.S. v. Jessica E. MCFADDEN. CCA 37438. [See also APPEALS-SUMMARY DISPOSITIONS this date]

 

No. 12-0524/AR. U.S. v. Bruce L. KELLY. CCA 20090809. Review granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FAILED TO SUPPRESS EVIDENCE OF CHILD PORNOGRAPHY DISCOVERED ON APPELLANT'S PERSONAL COMPUTER IN THE COURSE OF AN UNREASONABLE SEARCH CONDUCTED TO FIND CONTRABAND AFTER APPELLANT WAS WOUNDED IN IRAQ AND MEDICALLY EVACUATED TO THE UNITED STATES.

 

II. WHETHER THE ARMY COURT ERRED IN CREATING A NEW EXCEPTION TO THE FOURTH AMENDMENT WHEN IT HELD THAT THE GOVERNMENT'S SEARCH OF APPELLANT'S PERSONAL COMPUTER WAS REASONABLE BECAUSE THE GOVERNMENT WAS NOT "CERTAIN" OR "ABSOLUTELY CLEAR" THAT IT WOULD BE RETURNED TO THE WOUNDED-WARRIOR APPELLANT.

 

Briefs will be filed under Rule 25.

 

No. 12-0604/NA. U.S. v. Richard R. MOTT. CCA 200900115. Review granted on the following issues:

 

I. A LACK OF MENTAL RESPONSIBILITY DEFENSE EXISTS WHEN A MENTALLY DISEASED ACCUSED CANNOT APPRECIATE THE WRONGFULNESS OF HIS CONDUCT. HERE, EXPERTS TESTIFIED THAT APPELLANT'S PARANOID SCHIZOPHRENIA AND SEVERE DELUSIONS CREATED HIS SUBJECTIVE BELIEF THAT STABBING THE VICTIM WAS JUSTIFIED. BUT THE MILITARY JUDGE AND NMCCA ADOPTED AN OBJECTIVE STANDARD FOR "WRONGFULNESS." WHAT IS THE APPROPRIATE STANDARD IN DETERMINING WHETHER AN ACCUSED CAN APPRECIATE THE WRONGFULNESS OF HIS CONDUCT?

 

II. UNDER THE FIFTH AMENDMENT, AN ACCUSED'S STATEMENT TO INVESTIGATORS IS ADMISSIBLE ONLY IF IT WAS OBTAINED WITH A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER WHERE THE ACCUSED UNDERSTANDS HIS RIGHTS AND THE CONSEQUENCES OF WAIVING THEM. HERE, EXPERT WITNESSES TESTIFIED THAT APPELLANT COULD NOT UNDERSTAND HIS RIGHTS OR THE CONSEQUENCES OF WAIVING THEM BECAUSE OF HIS SEVERE MENTAL DISEASE. DID THE MILITARY JUDGE ERR BY ADMITTING THE STATEMENT?

 

Briefs will be filed under Rule 25.

 

No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Review granted on the following issue:

 

WHETHER APPELLANT'S CONVICTION FOR INVOLUNTARY MANSLAUGHTER UNDER ARTICLE 119(b)(2), UCMJ, IS LEGALLY INSUFFICIENT BECAUSE (1) IN ACCORDANCE WITH UNITED STATES v. SARGENT, 18 M.J. 331 (C.M.A. 1982), APPELLANT'S DISTRIBUTION OF OXYMORPHONE WAS NOT A CRIME DIRECTLY AFFECTING THE PERSON UNDER ARTICLE 119(b)(2), AND (2) EVEN IF SO, CONGRESS DID NOT INTEND FOR ARTICLE 119(b)(2) TO COVER APPELLANT'S MISCONDUCT.

 

Briefs will be filed under Rule 25.

 

No. 13-0004/AF. U.S. v. Corey R. LENKNER. CCA S31997. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0206/AR. U.S. v. Tommie L. OLDS. CCA 20091044.

No. 12-0591/NA. U.S. v. Timothy D. PIEPER. CCA 201100487.

No. 12-0661/AF. U.S. v. Michael B. GRANT. CCA S31768.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0025/MC. U.S. v. Allen J. SOLOMON. CCA 201100582.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8006/AF. Patrick CARTER, Petitioner v. The United States, United States Air Force Court of Criminal Appeals, and Commander, United States Naval Consolidated Brig, Miramar, California, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus, or in the alternative, a writ of mandamus, was filed under Rule 27(a) on this date.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-011

Tuesday, September 18, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0653/AF. U.S. v. Jacob L. EDWARDS. CCA S31812.

No. 12-0680/AF. U.S. v. Gary D. SIMMONS, Jr. CCA 37967.

No. 12-0681/AF. U.S. v. Anglia G. SAGELY. CCA 38064.

No. 12-0682/AR. U.S. v. Bobbybare B. BAYRAN. CCA 20110451.

No. 12-0683/AR. U.S. v. Daniel J. GOODSON. CCA 20110960.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0022/AR. U.S. v. Kelly A. STEWART. CCA 20090751.

No. 13-0023/AF. U.S. v. Louis S. POLKA. CCA S32013.

No. 13-0024/NA. U.S. v. Spencer T. SOWERS. CCA 201100659.

 

INTERLOCUTORY ORDERS

 

No. 13-8002/AF. Timothy L. MERRITT, Petitioner v. United States, and United States Air Force Court of Criminal Appeals, Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that Respondents show cause on or before September 28, 2012, why the requested relief should not be granted.

 

No. 12-8027/AR. Center for Constitutional Rights, et al, Appellants v. United States, and Colonel Denise Lind, Military Judge, Appellees. CCA 20120514. On consideration of the motion for leave to file a brief for Amici Curiae in support of the Appellants by the Reporters Committee for Freedom of the Press and 31 news media organizations, and the motion of Gregg P. Leslie, Esq., to appear pro hac vice on behalf of the Amici Curiae, it is ordered that said motions are hereby granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-010

Monday, September 17, 2012

 

INTERLOCUTORY ORDERS

 

No. 12-0414/AR. U.S. v. David G. SPICER, Jr. CCA 20090608. Appellant's motion to postpone oral argument is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-009

Friday, September 14, 2012

 

APPEALS-SUMMARY DISPOSITION

 

No. 12-0557/AR. U.S. v. Mac D. WARNER. CCA 20100398. 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 on the following issue:

 

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN CHARGE II, SPECIFICATIONS 4 AND 7.

 

The decision of the United States Army Court of Criminal Appeals as to Specifications 4 and 7 of Charge II and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charge and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge, (dissenting):

 

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

 

No. 12-0596/AR. U.S. v. Michael E. ZELLOUS, Jr. CCA 20110098. 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 on the following issue:

 

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN SPECIFICATION 2 OF CHARGE VI.

 

The decision of the United States Army Court of Criminal Appeals as to Specification 2 of Charge VI and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge, (dissenting):

 

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

 

No. 12-0617/MC. U.S. v. Hugo I. VALENTIN. CCA 201000683. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN CHARGE II, SPECIFICATIONS 1 AND 2.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals as to Specifications 1 and 2 of Charge II and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charge and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further reconsideration in light of Humphries. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge, (dissenting):

 

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

 

No. 12-0618/AF. U.S. v. Rudy A. BERTOLLI. CCA S31875. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN THE SPECIFICATION OF CHARGE II.

 

The decision of the United States Air Force Court of Criminal Appeals as to Charge II and its Specification, and the sentence is reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charge and specification is affirmed. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for further reconsideration in light of Humphries. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge, (dissenting):

 

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0557/AR. U.S. v. Mac D. WARNER. CCA 20100398. [See also APPEALS-SUMMARY DISPOSITION this date.]

No. 12-0596/AR. U.S. v. Michael E. ZELLOUS, Jr. CCA 20110098. [See also APPEALS-SUMMARY DISPOSITION this date.]

No. 12-0617/MC. U.S. v. Hugo I. VALENTIN. CCA 201000683. [See also APPEALS-SUMMARY DISPOSITION this date.]

No. 12-0618/AF. U.S. v. Rudy A. BERTOLLI. CCA S31875. [See also APPEALS-SUMMARY DISPOSITION this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

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

No. 12-0674/AF. U.S. v. Joanna BROWN. CCA 38073.

No. 12-0677/AF. U.S. v. Joseph J. STONE. CCA 37999.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 10-0685/AF. U.S. v. Kenneth J. BURTON, Jr. CCA S31632.*

No. 13-0021/AF. U.S. v. Justin A. HAWKINS. CCA 38065.

_______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-008

Thursday, September 13, 2012

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0597/AR. U.S. v. Reginald D. HOLSEY. CCA 20100479. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE REJECTED APPELLANT'S PLEA BASED UPON A NECESSITY DEFENSE THAT IS NEITHER RECOGNIZED IN MILITARY COURTS NOR APPLICABLE TO APPELLANT'S CASE.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0670/AF. U.S. v. Tory T. CURTIS. CCA 38051.

No. 12-0672/AF. U.S. v. Stephanie S. GUTSHE. CCA S31992.

No. 12-0673/AF. U.S. v. Gilbert J. JIO. CCA S32014.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0020/NA. U.S. v. Dmenico D. HUDSON. CCA 201100560.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8003/NA. Joshua D. WILLIAMS, Appellant v. United States, Appellee. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of error coram nobis, which the Court construes as a writ-appeal petition in view of the denial of a petition for extraordinary relief by the Navy-Marine Corps Court of Criminal Appeals, together with Appellant's motion to file the petition for extraordinary relief out of time, and motion to waive copy and service requirement, were filed under Rule 27(b) on August 23, 2012, and a motion to lodge table of contents was filed on August 31, 2012, and placed on the docket this 13th day of September, 2012. On consideration thereof, it is ordered that said motion to file the writ-appeal petition out of time is hereby denied, that said writ-appeal petition is hereby dismissed as untimely, and said motion to waive copy and service requirement and motion to lodge table of contents are hereby denied as moot.

 

Misc. No. 13-8004/AR. Daniel ROSAS, Appellant v. United States, Appellee. CCA 20120718. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of habeas corpus was filed under Rule 27(b) on this date.

 

Misc. No. 13-8005/AF. John C. CALHOUN, Appellant v. United States, Appellee. CCA 37274. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief in the nature of a writ of habeas corpus was filed under Rule 27(b) on this date.

 

INTERLOCUTORY ORDERS

 

No. 12-0398/AR. U.S. v. Ryan A. BOWERSOX. CCA 20100580. Appellee's motion to extend time to file a brief granted, up to and including October 9, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 12-0484/NA. U.S. v. Rayvohn D. WALLACE. CCA 201100300. Appellee's motion to attach is granted.

 

No. 12-0693/AR. U.S. v. Bradley O. TEMPLE. CCA 20090883. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, up to and including October 2, 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. 13-007

Wednesday, September 12, 2012

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0017/AR. U.S. v. Zeke R. MOORE. CCA 20110135.

No. 13-0018/NA. U.S. v. Francis S. KEY. CCA 201100417.

No. 13-0019/AR. U.S. v. John M. DODSON. CCA 20090378.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

No. 13-8001/NA. United States, Appellant v. Saheed A. LAWANSON, Appellee. CCA 201200187. On consideration of the Government's Motion to Stay Proceedings, the Government's Motion to Correct Errata, and the Appellee's Motion to Dismiss the Government's Motion to Stay Proceedings, it is ordered that the Motion to Correct Errata is granted, the Motion to Stay Proceedings is denied, and the Motion to Dismiss the Government's Motion to Stay Proceedings is denied as moot.

 

INTERLOCUTORY ORDERS

 

No. 11-0462/AR. U.S. v. Christopher A. BARBERI. CCA 20080636. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 1, 2012.

 

No. 13-0013/AR. U.S. v. Paul R. JASPER. CCA 20100112. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 1, 2012.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-006

Tuesday, September 11, 2012

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 12-0578/AR. U.S. v. Randy A. KRYSTYAN. CCA 20110014. Review granted on the following issue:

 

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN THE SPECIFICATION OF CHARGE III (UNLAWFUL ENTRY).

 

The portion of the decision of the United States Army Court of Criminal Appeals as to Charge III and its specification and the sentence are reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge, (dissenting):

 

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

 

No. 12-0658/AR. U.S. v. John RON. CCA 20100599. Review granted on the following issue:

 

WHETHER APPELLANT SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT AS A RESULT OF THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, IN THE SPECIFICATION OF CHARGE II.

 

The portion of the decision of the United States Army Court of Criminal Appeals as to Charge II and its specification and the sentence are reversed. United States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012). The decision of that court as to the remaining charges and specifications is affirmed. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for further reconsideration in light of Humphries. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

BAKER, Chief Judge, (dissenting):

 

Consistent with my views in United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting), I respectfully dissent from the order to grant.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0578/AR. U.S. v. Randy A. KRYSTYAN. CCA 20110014. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 12-0658/AR. U.S. v. John RON. CCA 20100599. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0607/AF. U.S. v. Melissa A. MASUCCI. CCA S31874.

No. 12-0652/NA. U.S. v. Jacob E. CASTILLO. CCA 201200020.

No. 12-0655/NA. U.S. v. Kyle I. JESPERSEN. CCA 201100623.

No. 12-0667/AR. U.S. v. Anthony P. CORRALEJO. CCA 20120004.

No. 12-0668/AR. U.S. v. Chadwick M. HURST. CCA 20110500.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0462/AR. U.S. v. Christopher A. BARBERI. CCA 20080636.*

No. 13-0012/AF. U.S. v. Christopher R. MORGAN. CCA 37763.

No. 13-0013/AR. U.S. v. Paul R. JASPER. CCA 20100112.

No. 13-0014/AF. U.S. v. Matthew E. TAKARA. CCA S31832.

No. 13-0015/AF. U.S. v. Rachel R. SALAZAR. CCA S32007.

No. 13-0016/AR. U.S. v. Daniel GASKINS. CCA 20080132.

_______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-005

Monday, September 10, 2012

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 12-8025/AR. Michael G. NEW, Appellant v. United States, Appellee. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 12-0600/AF. U.S. v. Mark W. CANANT. CCA S26397. On consideration of Appellant's motion to attach a document and Appellee's motion to dismiss the petition for lack of jurisdiction, it is ordered that Appellee's motion to dismiss the petition for lack of jurisdiction is hereby granted, and Appellant's motion to attach a document is hereby denied as moot.

 

No. 13-0006/NA. U.S. v. Brian L. BRIMEYER. CCA 201100141. Appellant's motion to extend time to file a supplement to the petition for grant of review granted to September 27, 2012.

 

No. 13-0007/AR. U.S. v. Walter S. COLEMAN. CCA 20100417. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 26, 2012.

 

No. 13-0008/AR. U.S. v. Godfrey J. HURLEY. CCA 20080262. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 26, 2012.

 

No. 13-0009/AR. U.S. v. Roger CRUZ. CCA 20100132. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 27, 2012.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-004

Friday, September 7, 2012

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0593/AF. U.S. v. Alexander SCHODOLSKI-CAREY. CCA 37605.

No. 12-0654/AF. U.S. v. Seth A. COOPER. CCA S31918.

No. 12-0665/AR. U.S. v. Anthony C. DENOFRIO. CCA 20110305.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0004/AF. U.S. v. Corey R. LENKNER. CCA S31997.

No. 13-0005/AF. U.S. v. Jamar T. SIMON. CCA S31936.

No. 13-0006/NA. U.S. v. Brian L. BRIMEYER. CCA 201100141.

No. 13-0007/AR. U.S. v. Walter S. COLEMAN. CCA 20100417.

No. 13-0008/AR. U.S. v. Godfrey J. HURLEY. CCA 20080262.

No. 13-0009/AR. U.S. v. Roger CRUZ. CCA 20100132.

No. 13-0010/AR. U.S. v. Timothy M. AMAVISCA. CCA 20110622.

No. 13-0011/AR. U.S. v. Gemayel A. JONES. CCA 20090900.

 

MANDATES ISSUED

 

No. 12-0008/AR. U.S. v. Alaa M. ALI. CCA 20080559.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-003

Thursday, September 6, 2012

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0555/NA. U.S. v. Heather D. LUBICH. CCA 201100378. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY OVERRULING DEFENSE COUNSEL'S FOUNDATION AND AUTHENTICATION OBJECTIONS AND ADMITTING COMPUTERIZED DATA EVIDENCE GATHERED BY AN UNNAMED NAVY-MARINE CORPS INTRANET (NMCI) ANALYST WHO USED AN UNIDENTIFIED PROCESS WITH UNKNOWN RELIABILITY TO COLLECT DATA RELATED TO APPELLANT'S NETWORK USER ACTIVITY.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0002/AR. U.S. v. Dwight H. RILEY. CCA 20110136.

No. 13-0003/AR. U.S. v. Megan B. MCCLELLAN. CCA 20110484.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-002

Wednesday, September 5, 2012

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 12-8033/AR. Maurice K. ROBINS, Appellant v. United States, Appellee. CCA 20990996. On consideration of the writ-appeal petition and Appellee's motion to file government's designation of portions of the record to be included in the joint appendix pursuant to Rule 24(f), it is ordered that said motion is hereby granted, and said writ-appeal petition is hereby denied.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8002/AF. Timothy L. MERRITT, Petitioner v. United States, and United States Air Force Court of Criminal Appeals, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of mandamus was filed under Rule 27(a) on this date.

INTERLOCUTORY ORDERS

 

No. 12-0496/NA. U.S. v. Dominic P. ALTIER. CCA 201000361. Appellee's motion to extend time to file a brief granted, up to and including September 17, 2012, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 12-0687/AR. U.S. v. Daniel ZAVALAGAMEZ. CCA 20110197. On consideration of Appellant's motion to extend time to file the supplement to the petition for grant of review, it is ordered that said motion is hereby granted, but only up to and including September 25, 2012; and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0001/AR. U.S. v. Jarvis J. PILAGO. CCA 20100414. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to September 24, 2012.

 

No. 13-8001/NA. United States, Appellant v. Saheed A. LAWANSON, Appellee. CCA 201200187. Notice is hereby given that a motion to stay proceedings was filed by Appellant on this date.

 

 

In the Matter of the

 

RULES ADVISORY COMMITTEE

 

Pursuant to Rule 45 of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, it is ordered:

 

That Colonel James B. Roan, U.S. Air Force, is hereby appointed as member of the Rules Advisory Committee. Colonel Roan's term will expire on September 30, 2015;

 

That John F. DePue, Esq. and Malcolm Squires, Esq. are hereby re-appointed as members of the Rules Advisory Committee. Their terms will expire on September 30, 2015;

 

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

 

To expire on September 30, 2013:

 

Professor Steven H. Goldblatt, Chair

David B. Goodhand, Esq.

Michelle M. Lindo McCluer, Esq.

James E. McPherson, Esq.

 

To expire on September 30, 2014:

 

Edward F. Rodriguez, Jr., Esq.

Colonel Patricia A. Ham, JA, U.S. Army

Brian K. Keller, Esq.

 

William A. DeCicco, Clerk of the Court, is an ex officio member of the Committee, and serves as its Reporter.

 

 

For the Court,

/s/ William A. DeCicco




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-001

Tuesday, September 4, 2012

 

NOTICE

 

IN RE SEPTEMBER 2012 TERM OF COURT

 

Article 142 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 942 (2006) authorizes the appointment of five judges to serve on the Court. One of the positions is vacant. Unless the Court issues a notice that a senior judge or an Article III judge will perform judicial duties, the four judges in active service will perform the functions of the Court. See Articles 142 and 144, UCMJ, 10 U.S.C. 942 and 944, and U.S.C.A.A.F. Rule 6(a).

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0001/AR. U.S. v. Jarvis J. PILAGO. CCA 20100414.

 

INTERLOCUTORY ORDERS

 

No. 12-8027/AR. Center for Constitutional Rights, et al., Appellants v. United States and Colonel Denise Lind, Military Judge, Appellees. CCA 20120514. On consideration of Appellees' motion to attach trial transcript in response to court order, it is ordered that said motion is hereby granted.



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