UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-237

Friday, August 30, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0611/AR. U.S. v. Perry E. ZENON. CCA 20120786.

No. 13-0665/AR. U.S. v. James D. BOGUSKE. CCA 20120727.

No. 13-0667/AR. U.S. v. Bradley R. MEHRMAN. CCA 20110800.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0567/AR. U.S. v. Eric L. NORDIN. CCA 20090044.*

No. 13-0732/AR. U.S. v. Daniel L. SMITH. CCA 20120513.

No. 13-0733/AR. U.S. v. Daniel C. ARIZMENDI. CCA 20110966.

 

INTERLOCUTORY ORDERS

 

No. 11-0567/AR. U.S. v. Eric L. NORDIN. CCA 20090044. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 19, 2013.

 

No. 13-0504/AF. U.S. v. Matthew B. MCKEEVER. CCA 38026. On consideration of Appellant's motion to attach consent to withdraw case still subject to service court review, it is ordered that said motion is hereby denied without prejudice to filing a motion to withdraw the petition for grant of review that complies with Rules 21(f) and 30.

 

No. 13-0509/AF. U.S. v. Benjamin J. SIZEMORE. CCA 38020. On consideration of Appellant's motion to attach consent to withdraw case still subject to service court review, it is ordered that said motion is hereby denied without prejudice to filing a motion to withdraw the petition for grant of review that complies with Rules 21(f) and 30.

 

No. 13-0733/AR. U.S. v. Daniel C. ARIZMENDI. CCA 20110966. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 18, 2013.

_______________________________

 

* Second petition filed in this case.

 

 

ANNOUNCEMENT

 

BY THE CLERK OF THE COURT

 

OF THE CUMULATIVE SUMMARY OF

 

COURT WORKLOAD STATISTICS

 

FOR THE SEPTEMBER 2012 TERM OF COURT

 

 

I. CUMULATIVE PENDING SEPTEMBER 1, 2012

 

Master Docket . . . . . . . . . . . . . . . 23

Petition Docket . . . . . . . . . . . . . . 69

Miscellaneous Docket. . . . . . . . . . . . 4

TOTAL . . . . . . . . . . . . . . . . . 96

 

 

II. CUMULATIVE FILINGS

 

Master Docket . . . . . . . . . . . . . . . 117

Petition Docket . . . . . . . . . . . . . . 806

Miscellaneous Docket. . . . . . . . . . . . 41

TOTAL . . . . . . . . . . . . . . . . . 964

 

 

III. CUMULATIVE TERMINATIONS

 

Master Docket . . . . . . . . . . . . . . . 112

Petition Docket . . . . . . . . . . . . . . 744

Miscellaneous Docket. . . . . . . . . . . . 44

TOTAL . . . . . . . . . . . . . . . . . 900

 

 

IV. CUMULATIVE PENDING SEPTEMBER 1, 2013

 

Master Docket . . . . . . . . . . . . . . . 28

Petition Docket . . . . . . . . . . . . . . 131

Miscellaneous Docket. . . . . . . . . . . . 1

TOTAL . . . . . . . . . . . . . . . . . 160

 

 

 

V. CASES ON MASTER DOCKET CARRIED OVER TO THE

SEPTEMBER 2013 TERM OF COURT (28)

 

 

AWAITING ORAL ARGUMENT OR FINAL DISPOSITION (21)

(INCLUDES TRAILER CASES)

 

11-0280/AR - WINCKELMANN

12-0428/MC - MCGUIRE

13-0196/MC - HICKERSON

13-0213/MC - SANDERS

13-0241/MC - PEARCE

13-0268/MC - PACHECO

13-0269/MC - TIGER

13-0283/AF - MERRITT

13-0329/AR MCKIM-BURWELL

13-0332/MC - BATCHELDER

13-0345/AF - PAYNE

13-0348/AR - MOSS

13-0352/MC - ARNOLD

13-0353/AF - FINCH

& 13-5007/AF

13-0435/AR WARNER

13-0444/MC MYRICK

13-0445/MC ELLIS

13-0513/MC TYLER

13-0536/AR MOON

13-5008/AF ARRIAGA

13-6004/AF - WICKS

 

AWAITING BRIEFS (7)

13-0408/MC - BAILEY

13-0459/AR - MEAD

13-0512/AF - KNAPP

13-0518/AF - PASSUT

13-5009/AF - LINDGREN

13-5010/AR - HINES

13-7001/AR - AKBAR




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-236

Thursday, August 29, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0510/AF. U.S. v. Christopher S. FERRIS. CCA 37885. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and Appellant's motion to supplement the record, motion to file a supplemental issue, and motion to withdraw the petition for grant of review, it is ordered that Appellant's motion to supplement the record and motion to withdraw the petition for grant of review are hereby denied, and that Appellant's motion to file a supplemental issue is hereby granted, and said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT'S DECISION MUST BE SET ASIDE BECAUSE ONE OF THE JUDGES WHO PARTICIPATED IN THE DECISION OF APPELLANT'S CASE WAS UNCONSTITUTIONALLY APPOINTED

 

In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. 867(a) (2006) will apply.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0730/AR. U.S. v. David J. POGGIOLI. CCA 20110656.

No. 13-0731/AR. U.S. v. Edward J. SMITH. CCA 20110418.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 13-5005/AF. United States, Appellant v. Patrick CARTER. CCA 37715. On consideration of Appellant's petition for reconsideration of the Court's order issued on August 2, 2013, it is ordered that said petition for reconsideration is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 12-0414/AR. U.S. v. David G. SPICER, Jr. CCA 200900608. Appellant's motion to extend time to file the supplement granted to September 17, 2013.

 

No. 13-0654/AF. U.S. v. Jared R. BURDIN. CCA 38033. Appellant's motion to attach documents is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-235

Wednesday, August 28, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0414/AR. U.S. v. David G. SPICER, Jr. CCA 200900608.*

No. 13-0729/AR. U.S. v. Dean T. BULLOCK. CCA 20121078.

 

INTERLOCUTORY ORDERS

 

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.

 

No. 13-0724/AR. U.S. v. Michael G. TOVAR. CCA 20120015. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 16, 2013.

 

No. 13-5010/AR. U.S. v. Shawn M. HINES. CCA 20120024. Appellant's motion for leave to file a joint appendix is granted.

_______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-234

Tuesday, August 27, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0657/AR. U.S. v. Mark P. HUNT. CCA 20110604.

No. 13-0658/AR. U.S. v. Philip B. HUNT. CCA 20121155.

No. 13-0659/AR. U.S. v. Derek J. FORIT. CCA 20110537.

No. 13-0661/AF. U.S. v. Joshua J. LUI. CCA S32104.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

No. 13-0727/AR. U.S. v. Larry W. REED, Jr. CCA 20120589.

No. 13-0728/AR. U.S. v. Reshard D. GOUGIS. CCA 20120391.

_______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-233

Monday, August 26, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0722/AF. U.S. v. William H. DAVENPORT. CCA S32005.

No. 13-0723/AR. U.S. v. Dwayne T. BROWN. CCA 20100916.

No. 13-0724/AR. U.S. v. Michael G. TOVAR. CCA 20120015.

No. 13-0725/AF. U.S. v. Travis L. MCBRIDE. CCA 38109.

No. 13-0726/AF. U.S. v. Winston A. GORDON, Jr. CCA S32008.

 

INTERLOCUTORY ORDERS

 

No. 13-0718/NA. U.S. v. Mauricio R. DELGADO. CCA 201200473. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 12, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-232

Friday, August 23, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0655/AR. U.S. v. Luis A. ORTIZ. CCA 20110335.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0718/NA. U.S. v. Mauricio R. DELGADO. CCA 201200473.

No. 13-0719/AR. U.S. v. Michael O. HARROLD. CCA 20110709.

No. 13-0720/AR. U.S. v. Joshua J. FULTON. CCA 20120432.

No. 13-0721/AF. U.S. v. Zachary L. ODONNAL. CCA S32113.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-231

Thursday, August 22, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0513/MC. U.S. v. Levon TYLER. CCA 201200327. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. WITHIN MONTHS OF PRESIDING OVER APPELLANT'S COURT-MARTIAL, THE MILITARY JUDGE MADE SEVERAL STATEMENTS TO A GROUP OF MARINE OFFICERS REFLECTING HIS PARTIALITY, SAYING THAT DEFENDANTS ARE GUILTY, REFERRING TO DEFENDANTS AS "SCUMBAGS" AND MEMBERS AS "KNUCKLE-DRAGGERS AND MORONS" THAT HE "DESPISED," AND THAT DEFENDANTS NEEDED TO BE "CRUSHED." THE MILITARY JUDGE'S COMMENTARY PUT INTO DOUBT THE FAIRNESS AND IMPARTIALITY OF APPELLANT'S COURT-MARTIAL.

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0629/AR. U.S. v. Derek J. ANDRULAT. CCA 20120460.

No. 13-0650/AF. U.S. v. Julian M. FUENTES. CCA S32103.

No. 13-0651/AR. U.S. v. John T. TRAVIS. CCA 20120608.

No. 13-0653/AR. U.S. v. Johnell JOLIVETTE. CCA 20120938.

 

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

 

No. 13-0593/AR. U.S. v. Osborn F. EDWARDS. CCA 20100399. On consideration of Appellee's motion to dismiss the petition for grant of review and motion to extend time to file an answer to the supplement to the petition for grant of review, it is ordered that said motion to dismiss the petition for grant of review is hereby granted without prejudice, and

that said motion to extend time to file an answer to the supplement to the petition for grant of review is hereby denied as moot.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0716/AR. U.S. v. Michael S. CLARK. CCA 20120364.

No. 13-0717/AF. U.S. v. Zachary R. LYNCH. CCA 38094.

 

INTERLOCUTORY ORDERS

 

No. 13-0127/MC. U.S. v. Preston D. WALKER. CCA 201100463. Appellant's motion for leave to file a second petition for reconsideration out of time is denied.

 

No. 13-0459/AR. U.S. v. Rollan D. MEAD. CCA 20110717. Appellant's motion to extend time to file a brief granted, but only up to and including August 30, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0619/NA. U.S. v. Gabriel A. MORA. CCA 201200335. On consideration of Appellant's motion to stay the filing of the supplement to the petition for grant of review, motion to supplement the record, motion to remand to the United States Navy-Marine Corps Court of Criminal Appeals, and motion for leave to file replies to government's opposition to Appellant's motions, it is ordered that said motions are hereby denied without prejudice to raising the issues in the supplement to the petition for grant of review. Appellant will file a supplement to the petition for grant of review on or before August 29, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-230

Wednesday, August 21, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0502/AF. U.S. v. Sebastian P. LABELLA. CCA 37679. Review granted on the following issues:

 

I. WHETHER APPELLANT'S CONVICTION FOR SPECIFICATION 1 OF THE ARTICLE 134 CLAUSE 1 AND 2 CHARGE MUST BE SET ASIDE BECAUSE THE VERDICT OF GUILT RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED BECAUSE AT LEAST 6 OF THE IMAGES DID NOT DEPICT A LASCIVIOUS EXHIBITION OF THE GENITALS OR PUBIC AREA.

 

II. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF VISUAL DEPICTIONS OF MINORS ENGAGING IN SEXUALLY EXPLICIT CONDUCT IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF 18, INSTEAD OF UNDER THE AGE OF 16 AS THE UCMJ DEFINES A CHILD.

 

The decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for consideration of Issue I in light of United States v. Barberi, 71 M.J. 127 (C.A.A.F. 2012), and to address Issue II raised for the first time before this Court.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0533/AR. U.S. v. Darrick GARNER. CCA 20100684.

No. 13-0623/AR. U.S. v. Angel L. RIVERA. CCA 20120083.

No. 13-0643/AR. U.S. v. Erik D. JENKINS. CCA 20110673.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0711/AR. U.S. v. Colt M. SMITH. CCA 20110398.

No. 13-0712/AR. U.S. v. Arthur L. ROBERSON. CCA 20120498.

No. 13-0713/AR. U.S. v. Davuale B. WILLIAMS. CCA 20121064.

No. 13-0714/AR. U.S. v. James B. GIBSON. CCA 20120032.

No. 13-0715/AF. U.S. v. Andrew P. WITT. CCA 36785.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-229

Tuesday, August 20, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0648/AR. U.S. v. Todd R. HUNT II. CCA 20120828.

 

INTERLOCUTORY ORDERS

 

No. 13-0620/AR. U.S. v. Cavin B. MCKEN. CCA 20121019. Appellant's motion for leave to file the supplement to the petition for grant of review out of time granted.

 

No. 13-0701/MC. U.S. v. Justin D. LOYA. CCA 201200436. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 9, 2013.

 

No. 13-0702/AR. U.S. v. Douglas A. ALLEN IV. CCA 20110584. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 9, 2013.

 

No. 13-0704/AR. U.S. v. Theodore HINOJOSA. CCA 20110735. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 9, 2013.

 

No. 13-0705/AF. U.S. v. Robert F. LINDSEY. CCA 37894. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 9, 2013.

 

No. 13-0706/AF. U.S. v. Joshua M. O'FARRELL. CCA 37630. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 9, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-228

Monday, August 19, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0659/AF. U.S. v. Garland R. STEWART. CCA S31685.

No. 13-0493/AR. U.S. v. Benito NIEVESPABON. CCA 20100626.

No. 13-0532/AR. U.S. v. Christopher R. WHITFIELD. CCA 20100002.

No. 13-0571/AR. U.S. v. Nolan R. MOGG. CCA 20100943.

No. 13-0572/AR. U.S. v. Donnie K. STEVENS, Jr. CCA 20100708.

No. 13-0589/AR. U.S. v. Daudre L. LEE. CCA 20120334.

No. 13-0597/AR. U.S. v. Bobby E. SHORT. CCA 20120160.

No. 13-0604/AR. U.S. v. Davuale B. WILLIAMS. CCA 20110227.

No. 13-0612/AR. U.S. v. Jose A. RODRIGUEZ-RODRIGUEZ. CCA 20120154.

No. 13-0641/AR. U.S. v. Joseph A. HERNANDEZ. CCA 20111012.

No. 13-0646/AF. U.S. v. Michael J. ROY. CCA 38089.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0701/MC. U.S. v. Justin D. LOYA. CCA 201200436.

No. 13-0702/AR. U.S. v. Douglas A. ALLEN, IV. CCA 20110584.

No. 13-0703/AR. U.S. v. Ruele R. STRONG. CCA 20121045.

No. 13-0704/AR. U.S. v. Theodore HINOJOSA. CCA 20110735.

No. 13-0705/AF. U.S. v. Robert F. LINDSEY. CCA 37894.

No. 13-0706/AF. U.S. v. Joshua M. O'FARRELL. CCA 37630.

No. 13-0707/AF. U.S. v. John A. MCCRARY. CCA 38016.

No. 13-0708/AF. U.S. v. Corey L. PAYTON. CCA 37824.

No. 13-0709/MC. U.S. v. Kalleb M. WILSON. CCA 201300122.

No. 13-0710/AF. U.S. v. Christopher A. CUSHMAN. CCA 38216.

 

MANDATES ISSUED

 

No. 13-0186/MC. U.S. v. Joseph B. SALYER. CCA 201200145.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-227

Friday, August 16, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0698/AF. U.S. v. Dexter D. GILLISON. CCA S32112.

No. 13-0699/AR. U.S. v. Roberto L. QUINONEZ. CCA 20110211.

No. 13-0700/AF. U.S. v. Christopher E. SELISKAR. CCA 38039.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-226

Thursday, August 15, 2013
 

APPEALS SUMMARY DISPOSITIONS

 

No. 13-0574/NA. U.S. v. Dearon L. MAYBERRY. CCA 201200269. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we conclude that Specifications 3 and 4 of Charge III should be consolidated into a single specification. These specifications alleging aggravated sexual assault were based on the same sexual act. During the court-martial, the parties and the military judge agreed that the government alleged these specifications to meet the exigencies of proof. Because the panel returned guilty findings for both specifications and it was agreed that these specifications were charged for exigencies of proof, it was incumbent on the military judge and subsequently the Navy-Marine Corps Court of Criminal Appeals either to consolidate the specifications or to dismiss a specification as multiplicious. See United States v. Burris, 21 M.J. 82, 82 (C.M.A. 1985) (citing United States v. Morris, 18 M.J. 450 (C.M.A. 1984)). Here, it is appropriate to consolidate the specifications to recite explicitly the significant facts. See United States v. Ramirez, 21 M.J. 353, 355 (C.M.A. 1986). Because the specifications have not been consolidated, we will do so now. See Burris, 21 M.J. at 82. However, because the military judge merged these aggravated sexual assault specifications as one offense for sentencing purposes and instructed the panel that it could only sentence Appellant for one aggravated sexual assault offense, we are convinced he was not prejudiced for sentencing. See id. Accordingly, it is ordered that said petition is granted on the following specified issue:

 

WHETHER SPECIFICATIONS 3 AND 4 OF CHARGE III SHOULD BE CONSOLIDATED AS A SINGLE SPECIFICATION.

 

Specification 3 of Charge III is consolidated with Specification 4 of Charge III as follows:

 

In that Lieutenant Dearon L. Mayberry, U.S. Navy, USS KEARSARGE (LHD 3), on active duty did, on board the USS KEARSARGE (LHD 3), on or about 22 December 2010, cause Aviation Boatswain's Mate (Handling) Airman Recruit N.E.B., U.S. Navy, to engage in a sexual act, to wit: contact between the said Lieutenant Mayberry's penis and the said Aviation Boatswain's Mate (Handling) Airman Recruit N.E.B.'s vulva, by placing her in fear of physical injury and by threatening that the said Lieutenant Mayberry would use or abuse his military position, rank or authority, to affect the military career of the said Aviation Boatswain's Mate (Handling) Airman Recruit N.E.B.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to Charge III and the consolidated specification, the remaining findings, and the sentence.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0512/AF. U.S. v. Michael L. KNAPP II. CCA 37718. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE (1) PLAINLY ERRED BY INITIALLY ALLOWING "HUMAN LIE DETECTOR" TESTIMONY, (2) ABUSED HIS DISCRETION BY ALLOWING FURTHER ADMISSION OF "HUMAN LIE DETECTOR" TESTIMONY, OVER DEFENSE OBJECTION, AND (3) ERRED BY NOT PROVIDING A CURATIVE INSTRUCTION ON THE "HUMAN LIE DETECTOR" TESTIMONY.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0443/AR. U.S. v. Dustin R. HOGAN. CCA 20110172.

No. 13-0481/AR. U.S. v. Charles M. SAVAGE. CCA 20110495.

No. 13-0579/AF. U.S. v. Justin O. ILLING. CCA S31808.

No. 13-0590/AF. U.S. v. Leslie A. TORRANCE. CCA 37544.

No. 13-0592/AR. U.S. v. Jason R. SEJKORA. CCA 20110721.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0697/AR. U.S. v. Patrick R. CRISWELL. CCA 20110560.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 12-0328/AR. U.S. v. Bret A. GLOWTH. CCA 20090925. On consideration of Appellant's petition for reconsideration of the Court's order issued on July 11, 2013, it is ordered that said petition for reconsideration is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 13-0696/AR. U.S. v. Phillip L. BARTIE. CCA 20111179. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 4, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-225

Wednesday, August 14, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 11-0104/AF. U.S. v. Edward T. HUDSON. CCA 37249. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in view of United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013), and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013), it is ordered that said petition is granted on the following issue:

 

WHETHER THE CHARGE AND SPECIFICATION MUST BE DISMISSED IN ACCORDANCE WITH UNITED STATES v. HUMPHRIES, 71 M.J. 209 (C.A.A.F. 2012), WHERE THE SPECIFICATION FAILS TO STATE AN OFFENSE AND THE GOVERNMENT FAILED TO PROVIDE NOTICE OF THE MISSING ELEMENT DURING ITS CASE-IN-CHIEF.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed. The findings of guilty to the Charge and Specification 2 thereunder and the sentence are set aside. The record is returned to the Judge Advocate General of the Air Force. A rehearing on the affected charge and specification is authorized. * [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* STUCKY, Judge (concurring in the result):

 

I concur in the result.

 

* BAKER, Chief Judge (dissenting):

 

I would affirm based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

No. 12-0026/AF. U.S. v. Charles L. WALTON. CCA 37664. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in view of United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013), it is ordered that said petition is hereby granted on the following assigned issue:

 

APPELLANT'S ADULTERY SPECIFICATION UNDER ARTICLE 134, UCMJ, FAILED TO ALLEGE ANY TERMINAL ELEMENT. IN AFFIRMING HIS CONVICTION, THE AIR FORCE COURT OF CRIMINAL APPEALS FOUND HE "IMPLICITLY" RECEIVED NOTICE OF THE TERMINAL ELEMENT BECAUSE FACTS ELICITED BY THE PROSECUTION DURING DIRECT EXAMINATION WERE RELEVANT TO THE TERMINAL ELEMENT OF PREJUDICIAL TO GOOD ORDER AND DISCIPLINE. DOES "IMPLICIT NOTICE" OF THIS KIND COMPORT WITH THE REQUIRED NOTICE PROVISIONS ENUNCIATED IN UNITED STATES v. HUMPHRIES, 71 M.J. 209 (C.A.A.F. 2012)?

 

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge III and its specification and as to the sentence. The findings of guilty to Charge III and its specification are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may either dismiss Charge III and its specification and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected charge and the sentence. * [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* STUCKY, Judge (concurring in the result):

 

I concur in the result.

 

* BAKER, Chief Judge (dissenting):

 

I would affirm based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

No. 13-0095/AR. U.S. v. Jeffrey W. SWARTZ. CCA 20091041. On further consideration of the granted issue, 72 M.J. 154 (C.A.A.F. 2013), and in view of United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013), it is ordered that the decision of the United States Army Court of Criminal Appeals is reversed as to Charge II and Specification 1 thereunder and the sentence. The finding of guilty to Charge II and Specification 1 thereunder and the sentence are set aside. The record of trial is hereby returned to the Judge Advocate General of the Army. A rehearing is authorized. * [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* STUCKY, Judge (concurring in the result):

 

I concur in the result.

 

* BAKER, Chief Judge (dissenting):

 

I would affirm based on the analysis of the United States Army Court of Criminal Appeals and my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting, and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

No. 13-0397/AF. U.S. v. Jerome A. JONES, Jr. CCA 37528. On further consideration of the granted issue, 72 M.J. 386 (C.A.A.F. 2013), and in view of United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed as to Specification 1 of Charge III and the sentence. The finding of guilty to Specification 1 of Charge III is set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may either dismiss Specification 1 of Charge III and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected charge and the sentence. * [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* STUCKY, Judge (concurring in the result):

 

I concur in the result.

 

* BAKER, Chief Judge (dissenting):

 

I would affirm based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

No. 13-0491/AF. U.S. v. Mark J. JORDAN. CCA S31939. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in view of United States v. Tunstall, 72 M.J. 191 (C.A.A.F. 2013), United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013), and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013), it is ordered that said petition is granted on the following issue:

 

Whether Specifications 1 and 2 of Charge III fail to state an offense because they allege violations of Article 134 without alleging any of the terminal elements.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge III and the specifications thereunder and the sentence. The findings of guilty to Charge III and the specifications thereunder are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may either dismiss Charge III and the specifications thereunder and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected charge and the sentence. * [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* STUCKY, Judge (concurring in the result):

 

I concur in the result.

 

* BAKER, Chief Judge (dissenting):

 

I would affirm based on the analysis of the United States Air Force Court of Criminal Appeals and my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

No. 13-5003/AR. U.S. v. Justin P. SWIFT. CCA 20100196. Upon further consideration of the issues certified by the Judge Advocate General of the Army, 72 M.J. 37 (C.A.A.F. 2013), we conclude that the United States Army Court of Criminal Appeals did not err in finding that Appellee was prejudiced by the government's failure to allege the terminal element for the two Article 134, UCMJ, indecent acts with a child specifications of the Charge. See United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013). Accordingly, it is ordered that the first certified issue is answered in the negative, the second certified issue is answered in the affirmative, and the decision of the United States Army Court of Criminal Appeals is affirmed. *

 

* STUCKY, Judge (concurring in the result):

 

I concur in the result.

 

* BAKER, Chief Judge (dissenting):

 

I would answer the first certified issue in the affirmative and the second certified issue in the negative based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0104/AF. U.S. v. Edward T. HUDSON. CCA 37249. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 12-0026/AF. U.S. v. Charles L. WALTON. CCA 37664. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 13-0095/AR. U.S. v. Jeffrey W. SWARTZ. CCA 20091041. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 13-0397/AF. U.S. v. Jerome A. JONES, Jr. CCA 37528. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 13-0491/AF. U.S. v. Mark J. JORDAN. CCA S31939. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0694/AR. U.S. v. Kevin A. GIBSON. CCA 20110247.

No. 13-0695/AR. U.S. v. James A. CRAWFORD. CCA 20110765.

No. 13-0696/AR. U.S. v. Phillip L. BARTIE. CCA 20111179.

 

INTERLOCUTORY ORDERS

 

No. 13-0493/AR. U.S. v. Benito NIEVESPABON. CCA 20100626. Appellant's motion to consider additional Grostefon matters is granted.

 

No. 13-0611/AR. U.S. v. Perry E. ZENON. CCA 20120786. Appellant's motion for leave to file the supplement to the petition for grant of review out of time is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-224

Tuesday, August 13, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0692/AR. U.S. v. Kayle T. SHIELDS. CCA 20110984.

No. 13-0693/AR. U.S. v. Cody J. PINKERMAN. CCA 20120703.

 

INTERLOCUTORY ORDERS

 

No. 13-0443/AR. U.S. v. Dustin R. HOGAN. CCA 20110172. On consideration of Appellant's motion to file matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), it is ordered that said motion is hereby granted.

 

No. 13-8025/AR. Maurice K. ROBINS, Petitioner v. United States, Respondent. On consideration of the petition for reconsideration of the Court's order issued on March 15, 2013, it is ordered that said petition for reconsideration is hereby denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-223

Monday, August 12, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0633/AR. U.S. v. Michael E. MAGANA. CCA 20121116.

No. 13-0634/AR. U.S. v. Alexander J. CHRISTENSEN. CCA 20120156.

No. 13-0635/AR. U.S. v. Michael B. HARDEE. CCA 20120236.

No. 13-0636/AR. U.S. v. Johnathan W. DOMINY. CCA 20120365.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0690/AF. U.S. v. Austin F. CHAMBERLAIN. CCA 38098.

No. 13-0691/AF. U.S. v. Randall W. GILLILAND. CCA 37895.

 

INTERLOCUTORY ORDERS

 

No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719. Appellant's motion to extend time to file a reply brief granted, up to and including August 26, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0435/AR. U.S. v. Gary D. WARNER. CCA 20120499. On consideration of Appellee's motion to reschedule oral argument and Appellant's motion to extend time to file a reply brief, it is ordered that Appellee's motion to reschedule oral argument is hereby denied without prejudice, and Appellant's motion to extend time to file a reply brief is hereby granted, up to and including August 26, 2013.

 

No. 13-0687/NA. U.S. v. Matthew R. MCVEIGH. CCA 201200161. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 29, 2013.

 

No. 13-0688/AF. U.S. v. Daniel L. BERKHIMER. CCA 37850. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 29, 2013.

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. Appellant's second motion to extend time to file a brief is granted to September 20, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-222

Friday, August 9, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0625/AR. U.S. v. Fernando ALMAGUER. CCA 20120228.

No. 13-0626/AR. U.S. v. Davon M. LOVE. CCA 20120511.

No. 13-0627/AR. U.S. v. Alva D. SUMMERLOTT. CCA 20120352.

No. 13-0630/AR. U.S. v. Javier OROZCO. CCA 20120133.

No. 13-0631/AR. U.S. v. Kenneth W. PARKER. CCA 20120765.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0687/NA. U.S. v. Matthew R. MCVEIGH. CCA 201200161.

No. 13-0688/AF. U.S. v. Daniel L. BERKHIMER. CCA 37850.

No. 13-0689/AR. U.S. v. Christopher L. SPEROW. CCA 20110904.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-221

Thursday, August 8, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0628/AR. U.S. v. Jesus HERNANDEZ. CCA 20110471. 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 directed that the Notice of Court-Martial Order Correction order dated 22 May 2013 be corrected to reflect that the Charge is a violation of Article 85, UCMJ.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0628/AR. U.S. v. Jesus HERNANDEZ. CCA 20110471. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0578/AR. U.S. v. Phillip P. GOBERT. CCA 20110941.

No. 13-0621/AR. U.S. v. James R. REMMERS. CCA 20120068.

No. 13-0624/AR. U.S. v. Shawn N. DELLISS. CCA 20120349.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-220

Wednesday, August 7, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0614/AR. U.S. v. Donald G. DOBIE, Jr. CCA 20111129.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0685/AR. U.S. v. Johnnie L.W. LETBETTER. CCA 20120040.

No. 13-0686/AF. U.S. v. Michael J. LAPOINTE. CCA S32081.

 

MANDATES ISSUED

 

No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-219

Tuesday, August 6, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0519/AR. U.S. v. Anthony A. RIVERA. CCA 20110697. 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.*

 

* It is noted that the decision of the United States Army Court of Criminal Appeals indicated that Appellant was found guilty, inter alia, of two specifications of assault upon a noncommissioned officer and one specification of assault consummated by a battery. As correctly noted in the promulgating order, Appellant was found guilty, inter alia, of one specification of assault upon a noncommissioned officer and three specifications of assault consummated by a battery.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0679/AF. U.S. v. Jessie L. WRIGHT. CCA S32095.

No. 13-0680/AF. U.S. v. Bryan C. MCMILLAN. CCA 38189.

No. 13-0681/AF. U.S. v. Adam D. CHEW. CCA S32101.

No. 13-0682/AR. U.S. v. Christopher G. CANADAY. CCA 20120243.

No. 13-0683/AR. U.S. v. Aaron X. TAYLOR. CCA 20111066.

No. 13-0684/AR. U.S. v. Michael D. LAFFERTY. CCA 20111155.

 

INTERLOCUTORY ORDERS

 

No. 13-0676/AF. U.S. v. Robert J. DUTTON. CCA S32002. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 26, 2013.

 

No. 13-0677/AF. U.S. v. David J. CHARGUALAF. CCA 38023. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 26, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-218

Monday, August 5, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0408/MC. U.S. v. Don W. BAILEY. CCA 201200370. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT WAS SENTENCED BY A MILITARY JUDGE WHO LATER STATED THAT DEFENDANTS ARE GUILTY, REFERRED TO DEFENDANTS AS SCUMBAGS, AND STATED THAT DEFENDANTS NEED TO BE CRUSHED. WAS APPELLANT DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE?

 

Appellant's brief on this issue shall be filed within 20 days of the date of this order. Appellee's answer shall be filed within 20 days of the filing of Appellant's brief. A reply may be filed by Appellant within 5 days of Appellee's answer.

 

No. 13-0459/AR. U.S. v. Rollan D. MEAD. CCA 20110717. Review granted on the following issue:

 

WHETHER THE ARMY COURT INCORRECTLY RULED THAT PIERCE CREDIT MAY BE APPLIED AGAINST THE ADJUDGED SENTENCE WHERE THIS RESULTS IN NO RELIEF TO APPELLANT AND WHETHER THE ARMY COURT INCORRECTLY RULED THAT PAY LOST AS A RESULT OF PRIOR REDUCTION UNDER ARTICLE 15, UCMJ, NEED NOT BE RESTORED TO APPELLANT.

 

Appellant's brief on this issue shall be filed within 20 days of the date of this order. Appellee's answer shall be filed within 20 days of the filing of Appellant's brief. A reply may be filed by Appellant within 5 days of Appellee's answer.

 

No. 13-0518/AF. U.S. v. Jordan C. PASSUT. CCA 37755. Review granted on the following issue:

 

WHETHER A STATEMENT MADE TO AN AAFES EMPLOYEE FOR THE PURPOSE OF CASHING A WORTHLESS CHECK SATISFIES THE "OFFICIAL" ELEMENT OF A FALSE OFFICIAL STATEMENT.

 

Appellant's brief on this issue shall be filed within 20 days of the date of this order. Appellee's answer shall be filed within 20 days of the filing of Appellant's brief. A reply may be filed by Appellant within 5 days of Appellee's answer.

 

CERTIFICATES FOR REVIEW FILED

 

No. 13-5010/AR. U.S. v. Shawn M. HINES. CCA 20120024. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

 

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT APPELLEE'S PLEAS TO SPECIFICATIONS 1, 2, AND 3 OF CHARGE II WERE IMPROVIDENT BECAUSE THEFT OF BASIC ALLOWANCE FOR HOUSING AND FAMILY SEPARATION ALLOWANCE OCCURRING OVER MULTIPLE MONTHS "AMOUNTS TO A SEPARATE LARCENY EACH MONTH THE MONEY IS RECEIVED."

 

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THAT APPELLEE'S PLEAS TO SPECIFICATIONS 1 AND 3 OF CHARGE II WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE "NEVER SATISFACTORILY RESOLVED THE INCONSISTENCY BETWEEN [APPELLEE'S] PLEAS TO THE ENTIRE AMOUNT [OF BASIC ALLOWANCE FOR HOUSING] IN LIGHT OF HIS APPARENT ENTITLEMENT TO A LESSER AMOUNT."

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0415/AR. U.S. v. Ronald E. PLEASANT, Jr. CCA 20100437.

No. 13-0421/AR. U.S. v. Justin K. ODOM. CCA 20100756.

No. 13-0615/AR. U.S. v. Brian K. DEWEESE. CCA 20121017.

No. 13-0616/AR. U.S. v. Brian D. WHITE. CCA 20110660.

No. 13-0617/AF. U.S. v. Jose M. SANTANA-PENA. CCA 37931.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0676/AF. U.S. v. Robert J. DUTTON. CCA S32002.

No. 13-0677/AF. U.S. v. David J. CHARGUALAF. CCA 38023.

No. 13-0678/AF. U.S. v. Christopher B. REED. CCA 37632.

 

MANDATES ISSUED

 

No. 13-5006/AF. Airman First Class LRM, USAF, Appellant v. Lieutenant Colonel Joshua E. KASTENBERG, USAF, Military Judge, Appellee and Airman First Class Nicholas E. Daniels, USAF, Real Party In Interest. CCA 2013-05.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-217

Friday, August 2, 2013

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

No. 13-5005/AF. U.S. v. Patrick CARTER. CCA 37715. On consideration of the issues certified by the Judge Advocate General of the Air Force, 72 M.J. 253 (C.A.A.F. 2013), we conclude that the United States Air Force Court of Criminal Appeals did not err in finding that Appellee was prejudiced by the government's failure to allege the terminal element for Specifications 1 and 2 under Charge III alleging child endangerment and indecent acts with the same child, both in violation of Article 134, UCMJ. See United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013) and United States v. Gaskins, 72 M.J. 225 (C.A.A.F. 2013). Accordingly, it is ordered that the first certified issue is answered in the affirmative and the second and third certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.*

 

* Baker, Chief Judge (dissenting):

 

I dissent based on my dissenting opinions in United States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011) (Baker, J., dissenting), and United States v. Humphries, 71 M.J. 209, 217 (C.A.A.F. 2012) (Baker, C.J., dissenting).

 

No. 13-8038/AF. In re Anthony Douglas WILSON. On consideration of the petition for extraordinary relief in the nature of error coram nobis or other extraordinary relief, it is ordered that said petition is hereby dismissed for lack of jurisdiction.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0436/NA. U.S. v. Matthew R. GIFFORD. CCA 201200169.

No. 13-0563/AR. U.S. v. David W. BROWN. CCA 20101043.

No. 13-0575/AR. U.S. v. Shawn W. POTTS. CCA 20120546.

No. 13-0582/AR. U.S. v. Jason K. SAN NICOLAS. CCA 20111117.

No. 13-0599/AR. U.S. v. Michael D. HUDSON. CCA 20120524.

No. 13-0613/AR. U.S. v. Jeffrey R. COPPENS, Jr. CCA 20120161.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0672/MC. U.S. v. Marcos J. HERNANDEZ. CCA 201200369.

No. 13-0673/AF. U.S. v. Quinton M. ALSTON. CCA S32111.

No. 13-0674/AR. U.S. v. Frederick N. OWENS. CCA 20110404.

No. 13-0675/AR. U.S. v. Demone M. WHIGHAM. CCA 20110181.

 

INTERLOCUTORY ORDERS

 

No. 11-0280/AR. U.S. v. Douglas K. WINCKELMANN. CCA 20070243.

No. 13-0283/AF. U.S. v. Timothy L. MERRITT. CCA 37608.

No. 13-0348/AR. U.S. v. Amanda M. MOSS. CCA 20110337.

No. 13-0435/AR. U.S. v. Gary D. WARNER. CCA 20120499.

 

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 Andrew S. Effron to perform judicial duties in the above-referenced cases, and that Senior Judge Effron 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).

 

No. 13-0387/AR. U.S. v. David M. DERJAN. CCA 20101039. On consideration of Appellant's motion to consider matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), suspend Rule 21A(c), supplement the record, and file under seal and Appellant's motion for leave to file under seal, it is ordered that said motions are hereby denied. Appellant shall submit Grostefon matters in compliance with the 15-page limit of the C.A.A.F. Rule 21A(a) on or before August 12, 2013.

 

No. 13-0595/AF. U.S. v. Phillip T. BURLEIGH. CCA 37652. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted up to and including September 3, 2013. Appellant's motion for leave to withdraw from case as defense counsel denied without prejudice. Appellate defense counsel may resubmit another motion for leave to withdraw that includes the following: (1) a statement that the Appellant and appellate defense counsel have discussed the Appellant's rights to appellate review, the effect of permitting the withdrawal of appropriate defense counsel and declining any other legal representation, the effect of proceeding pro se and that Appellant understands these matters; (2) a further statement that Appellant's decision to allow appellate defense counsel to withdraw and his request to proceed pro se are submitted voluntarily and cannot be revoked; and (3) the signatures of the Appellant and appellate defense counsel.

 

No. 13-0672/MC. U.S. v. Marcos J. HERNANDEZ. CCA 201200369. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 22, 2013.

 

No. 13-0675/AR. U.S. v. Demone M. WHIGHAM. CCA 20110181. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 22, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-216

Thursday, August 1, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0517/NA. U.S. v. Rodney WILLIAMS. CCA 201200248.

No. 13-0564/AR. U.S. v. Brent T. MAUPIN. CCA 20120476.

No. 13-0583/AR. U.S. v. Carlos J. CAMACHO. CCA 20120428.

No. 13-0598/AR. U.S. v. Kenley D. ROBERTSON. CCA 20120302.

No. 13-0600/AF. U.S. v. Jovon R. BRANCH. CCA S32064.

No. 13-0608/AR. U.S. v. Bladimir S. RODRIGUEZ. CCA 20120128.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0669/AR. U.S. v. Brandon T. PARKER. CCA 20110248.

No. 13-0670/AR. U.S. v. Matthew J. BROWN. CCA 20120913.

No. 13-0671/AR. U.S. v. Shawn M. HINES. CCA 20120024.

 

INTERLOCUTORY ORDERS

 

No. 13-0061/AR. U.S. v. Ted C. SQUIRE. CCA 20091106. On consideration of Appellant's motion for an order to retain and preserve physical evidence, it is ordered that said motion is hereby dismissed for lack of jurisdiction.*

 

* Cox, Senior Judge (dissenting):

 

I would order the government to show cause why the evidence should not be preserved. See United States v. Denedo, 556 U.S. 904 (2009).

 

MANDATES ISSUED

 

No. 13-0244/NA. U.S. v. Donald J. BROWN. CCA 201100516.



Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site