UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-112

Thursday, February 28, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0143/AR. U.S. v. Tremayne J. JONES. CCA 20100702. On consideration of the petition for grant of review of the decision of the Army Court of Criminal Appeals, we agree with Appellant's personally asserted contention that there was only one conspiracy to distribute marijuana. Appellant was convicted of two conspiracies to distribute some amount of marijuana, but the trial evidence shows that there was only one agreement between Appellant and his co-conspirator, then-SPC Valerie Guajardo, to distribute marijuana. Under these circumstances, the government only proved one conspiracy. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United States v. Reliford, 27 M.J. 176 (C.M.A. 1988) (summary disposition). Therefore, to conform the pleadings to the proof, the conspiracy specification of Additional Charge I should be consolidated with the conspiracy specification of Additional Charge II to become a single specification within Additional Charge I. Although the conspiracy offenses are consolidated, we are satisfied that Appellant suffered no prejudice as to his sentence. Accordingly, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER A SINGLE AGREEMENT TO COMMIT THE SAME CRIME ON MULTIPLE OCCASIONS IS LEGALLY SUFFICIENT TO SUPPORT FINDINGS OF GUILTY ON TWO SEPARATE CONSPIRACY CHARGES.

 

The conspiracy specification of Additional Charge I is consolidated with the conspiracy specification of Additional Charge II to allege the following specification under Additional Charge I:

 

ADDITIONAL CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 81.

 

THE SPECIFICATION: In that Specialist Tremayne J. Jones, U.S. Army, did at or near Fort Huachuca, AZ, between on or about 1 October 2009 and on or about 21 October 2009, conspire with Specialist Valerie C. Guajardo to commit an offense under the Uniform Code of Military Justice, to wit: wrongful distribution of some amount of marijuana, a schedule I controlled substance, and in order to effect the object of the conspiracy, the said Specialist Tremayne J. Jones and Specialist Valerie C. Guajardo, did wrongfully possess marijuana with the intent to distribute the said controlled substance on or about 6 and 21 October 2009.

 

The decision of the Army Court of Criminal Appeals is affirmed as to Charge I and its specification of possession with the intent to distribute 138 pounds of marijuana, Additional Charge I and its specification (consolidated), and Additional Charge III and its specification of possession with intent to distribute some amount of marijuana on or about 6 October 2009, and the sentence. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

No. 13-0198/AR. U.S. v. Jayson L. STEAR. CCA 20100419. 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 that 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 promulgating order be corrected to change the plea to Charge IV (redesignated as Charge II) from "None Entered" to "Not Guilty" and the finding from "None Entered" to "Guilty."

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0143/AR. U.S. v. Tremayne J. JONES. CCA 20100702. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

No. 13-0198/AR. U.S. v. Jayson L. STEAR. CCA 20100419. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0250/AR. U.S. v. Jesse G. CATINO. CCA 20120018.

No. 13-0251/AF. U.S. v. Stoney B. OSBORNE. CCA 37909.

No. 13-0254/AR. U.S. v. Zachary T. SWAIM. CCA 20120105.

No. 13-0255/AR. U.S. v. Steven A. WOODY II. CCA 20120056.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0321/NA. U.S. v. Christopher R. MORGAN. CCA 201200141.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 13-0006/NA. U.S. v. Brian L. BRIMEYER. CCA 201100141. On consideration of the motion for reconsideration of this Court's order issued on December 7, 2012, it is ordered that said motion is hereby granted, and that said petition for reconsideration is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 200800827.

No. 12-0448/MC. U.S. v. Jonathan E. LONSFORD. CCA 201100022.

No. 12-5003/MC. U.S. v. Leslie D. PORTER. CCA 201100188.

No. 13-0260/NA. U.S. v. Jay D. WYLIE. CCA 201200088.

On consideration of the motions filed by Captain Michael D. Berry to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned another counsel to represent Appellant's and that the new attorney has assumed the representation of said Appellant's. Accordingly, it is ordered that said motions are hereby granted.

 

No. 13-0270/MC. U.S. v. Bryan B. HARRIS. CCA 201200274. Appellant's third motion to extend time to file the supplement to the petition for grant of review granted to March 14, 2013.

 

No. 13-0318/AR. U.S. v. Robert E. MCCLASKEY. CCA 20100853. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 18, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-111

Wednesday, February 27, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0319/AR. U.S. v. Lemanuel A. SANTANA. CCA 20120746.

No. 13-0320/AR. U.S. v. Jessie A. RUIZ. CCA 20111051.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-110

Tuesday, February 26, 2013

 

HEARINGS

 

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

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0150/MC. U.S. v. Michael S. JACQUEZ. CCA 201200201.

No. 13-0179/AR. U.S. v. Joe SOTELO. CCA 20110267.

No. 13-0188/AR. U.S. v. Jeremy L. SHIELDS. CCA 20101035.

No. 13-0220/AR. U.S. v. Jacob M. LAFATA. CCA 20110124.

No. 13-0223/AR. U.S. v. Dnetric J. WILLIAMS. CCA 20100833.

No. 13-0246/AR. U.S. v. Jorge A. QUEVEDO. CCA 20120224.

No. 13-0247/AR. U.S. v. Christopher P. KILBURN. CCA 20100917.

No. 13-0248/AR. U.S. v. Cory J. ORCUTT. CCA 20120325.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0317/AR. U.S. v. Brian J. RIEF. CCA 20120515.

No. 13-0318/AR. U.S. v. Robert E. MCCLASKEY. CCA 20100853.

 

INTERLOCUTORY ORDERS

 

No. 11-0537/MC. U.S. v. Christopher M. HARRIS. CCA 201000341. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 18, 2013.

 

No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Appellant's motion to file corrected brief on the specified issue granted.

 

No. 13-0274/AF. U.S. v. Steven J. DIMATTEO. CCA 37552. Appellant's motion to file a corrected table of contents granted.

 

No. 13-0312/AR. U.S. v. Erik A. HOLLINGSWORTHMATA. CCA 20100752. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 12, 2013.

 

No. 13-0313/AR. U.S. v. Michael W. PLEASANT, Jr. CCA 20100781. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 18, 2013.

 

No. 13-0314/NA. U.S. v. Edmund L. GREENE. CCA 201200105. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 18, 2013.

 

No. 13-5003/AR. U.S. v. Justin P. SWIFT. CCA 20100196. Appellant's motion to extend time to file a brief granted, up to and including March 6, 2013, 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. 13-109

Monday, February 25, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0205/AR. U.S. v. Justin C. QUINN. CCA 20110159. Review granted on the following issue:

 

WHETHER APPELLANT'S CONVICTION UNDER ARTICLE 120(k), UCMJ, FOR ENGAGING IN SEXUAL RELATIONS IN THE PRESENCE OF OTHERS VIOLATES THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0537/MC. U.S. v. Christopher M. HARRIS. CCA 201000341.*

No. 13-0310/AR. U.S. v. George L. RIVAS. CCA 20120175.

No. 13-0311/AR. U.S. v. Patrick T. WILLBARGER. CCA 20091026.

No. 13-0312/AR. U.S. v. Erik A. HOLLINGSWORTHMATA. CCA 20100752.

No. 13-0313/AR. U.S. v. Michael W. PLEASANT, Jr. CCA 20100781.

No. 13-0314/NA. U.S. v. Edmund L. GREENE. CCA 201200105.

No. 13-0315/AR. U.S. v. Kenneth R. UNDERWOOD, Jr. CCA 20120284.

No. 13-0316/AR. U.S. v. Keith D. KERRIGAN. CCA 20111083.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8027/AF. United States, Respondent v. William C. SUMMERFIELD, Petitioner. CCA 2013-06. Notice is hereby given that a motion to stay proceedings was filed by Petitioner on this date.

 

Misc. No. 13-8028/NA. Joseph M. MANCILLAS, Petitioner v. Navy-Marine Corps Court of Criminal Appeals, Respondent. 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.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

No. 13-8027/AF. United States, Respondent v. William C. SUMMERFIELD, Petitioner. CCA 2013-06. On consideration of Petitioner's motion to stay trial proceedings and Respondent's opposition, it is ordered that said motion to stay is denied without prejudice.

 

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 February 14, 2013, the Court denied the motions filed by Guardian News and Media LLC for leave to file memorandum as Amicus Curiae out of time, and for leave to file declaration of Ed Pilkington. It is, by the Court, this date, ordered that said order is hereby rescinded.

 

MANDATES ISSUED

 

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

____________________________

 

* Third petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-108

Friday, February 22, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0091/AR. U.S. v. Alexander LOYA. CCA 20090770.

No. 13-0200/NA. U.S. v. Zane M. MASON. CCA 201200310.

No. 13-0239/AF. U.S. v. Dustin A. DREES. CCA 37942.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0308/AR. U.S. v. Kasey L. GOAD. CCA 20120171.

No. 13-0309/AF. U.S. v. Anthony J. DEVLIN. CCA S31858.

 

INTERLOCUTORY ORDERS

 

No. 13-0270/MC. U.S. v. Bryan B. HARRIS. CCA 201200274. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including February 28, 2013, 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. 13-107

Thursday, February 21, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 12-0597/AR. U.S. v. Reginald D. HOLSEY. CCA 20100479. On further consideration of the granted issue, 71 M.J. 398 (C.A.A.F. 2012) (order granting review), the briefs of the parties, and oral argument, we note that both parties agree that the military judge abused his discretion by rejecting Appellant's guilty plea to unauthorized absence based on the mere possibility that a necessity defense existed in this case. Assuming, without deciding, that the military judge did abuse his discretion, we conclude that this error did not materially prejudice Appellant's substantial rights. Article 59(a), Uniform Code of Military Justice, 10 U.S.C. 859(a) (2006). Even if the military judge had accepted Appellant's guilty plea to unauthorized absence, the Government charged, was prepared to move forward on, and did in fact prove the greater offense of desertion. Furthermore, Appellant's attempt to plead guilty to unauthorized absence, his cooperation with the Government in returning to his unit, and his acceptance of responsibility were all matters in mitigation before the military judge for sentencing purposes. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0134/AF. U.S. v. Gustavo A. ABADIA. CCA 37682.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0307/AR. U.S. v. Christopher C. GILL. CCA 20110722.

 

INTERLOCUTORY ORDERS

 

No. 12-0524/AR. U.S. v. Bruce L. KELLY. CCA 20090809. On consideration of the motions filed by Professor Paul Bennett, University of Arizona, James E. Rogers College of Law, to appear pro hac vice as counsel of record for Amici Curiae, to allow law student Michelle Behan to appear on behalf of the Amici Curiae and present oral argument, of law student David Potts to appear on brief as Amicus Curiae, of law student Matthew Randle to appear on brief as Amicus Curiae, to allow law student Michelle Behan to appear on behalf of the Amici Curiae, to file Amicus Curiae brief, and for leave to file Amicus Curiae supplemental brief, it is ordered that said motions are hereby granted, and that the Amicus Curiae will be allotted 10 minutes to present oral argument.

 

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

No. 13-5002/CG. U.S. v. Wilson MEDINA. CCA 1325.

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 in the above-referenced cases, and that Senior Judge Walter T. Cox III 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. 13-0025/MC. U.S. v. Allen J. SOLOMON. CCA 201100582. 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 case, and that Senior Judge Andrew S. Effron has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii)(2006).

 

No. 13-0091/AR. U.S. v. Alexander LOYA. CCA 20090770. 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) is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-106

Wednesday, February 20, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0229/AR. U.S. v. Roger S. DANES. CCA 20091072. Review granted on the following issue:

 

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE ANY OF THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ, IN SPECIFICATIONS 2, 4, AND 6 OF CHARGE III REQUIRES THIS COURT TO SET ASIDE THOSE SPECIFICATIONS.

 

No briefs will be filed under Rule 25.

 

No. 12-0336/AR. U.S. v. Christopher L. COVINGTON. CCA 20090877. Review granted on the following issue:

 

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE ANY OF THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ, IN SPECIFICATIONS 1, 2, AND 3 OF CHARGE IV REQUIRES THIS COURT TO SET ASIDE THOSE SPECIFICATIONS.

 

No briefs will be filed under Rule 25.

 

No. 13-0116/AR. U.S. v. Travis L. SMITH. CCA 20101040. Review granted on the following issue:

 

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF A CONTESTED ARTICLE 134, UCMJ, OFFENSE AMOUNTED TO PLAIN ERROR THAT RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL CONSTITUTIONAL RIGHT TO NOTICE UNDER THE TOTALITY OF THE CIRCUMSTANCES.

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0557/AR. U.S. v. Mac D. WARNER. CCA 20100398.

No. 13-0131/AR. U.S. v. Evan R. BROWN. CCA 20100022.

No. 13-0216/AR. U.S. v. Steward S. MOLENS. CCA 20100185.

No. 13-0233/AF. U.S. v. Pilar GRIJALVA, III. CCA S32051.

No. 13-0234/AF. U.S. v. Zachary D. BRISSEY. CCA S32042.

No. 13-0236/AR. U.S. v. Luke E. SALDIVAR. CCA 20120111.

No. 13-0237/AR. U.S. v. Terry F. DOAN. CCA 20110810.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0123/AR. U.S. v. Bryant K. MARSH. CCA 20080382.*

No. 12-0448/MC. U.S. v. Jonathan E. LONSFORD. CCA 201100022.*

 

INTERLOCUTORY ORDERS

 

No. 13-0134/AF. U.S. v. Gustavo A. ABADIA. CCA 37682. Appellee's motion to strike Appellant's attachment of facts outside the record but included in reply and supplement is granted.

 

No. 13-0163/AR. U.S. v. Willie J. SMITH, Jr. CCA 20100637. Appellant's motion to file the supplement to the petition for grant of review out of time is granted.

 

No. 13-0297/NA. U.S. v. Stetson O. HOLMES. CCA 201100602. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 11, 2013.

 

No. 13-0300/AR. U.S. v. John H. ROGAN. CCA 20110650. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 11, 2013.

____________________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-105

Tuesday, February 19, 2013

 

HEARINGS

 

No. 12-0555/NA. U.S. v. Heather D. LUBICH. CCA 201100378.

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

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0224/AR. U.S. v. Robert M. WEBB. CCA 20110300.

No. 13-0227/AR. U.S. v. Nathaniel C. BURKHART. CCA 20120230.

No. 13-0228/AR. U.S. v. Domingo A. SOSA. CCA 20120197.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0296/AR. U.S. v. Lando C. KELLY. CCA 20111137.

No. 13-0297/NA. U.S. v. Stetson O. HOLMES. CCA 201100602.

No. 13-0298/AR. U.S. v. Stephan N. SMITH. CCA 20120226.

No. 13-0299/AF. U.S. v. Timothy B. HELMS. CCA S31923.

No. 13-0300/AR. U.S. v. John H. ROGAN. CCA 20110650.

No. 13-0301/AR. U.S. v. Corey M. LUEHRING. CCA 20120077.

No. 13-0302/AF. U.S. v. Christopher E. BECHTHOLD. CCA S31913.

No. 13-0303/AR. U.S. v. Marcus D. PRICE. CCA 20120495.

No. 13-0304/AF. U.S. v. Clayton P. PAYNE. CCA 37793.

No. 13-0305/AF. U.S. v. Shawn D. HENDERSON. CCA 37874.

No. 13-0306/AF. U.S. v. Andrew M. MONTELONGO. CCA S31882.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8024/AR. Gregory ROBERTSON, Appellant v. United States, Appellee. CCA 20050565. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus, which the Court construes as writ-appeal petition under Rule 27(b), was filed on this date. Appellee will file an answer on or before March 1, 2013.

 

Misc. No. 13-8025/AR. Maurice K. ROBINS, Petitioner v. United States, Respondent. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus was filed under Rule 27(a) on this date.

 

Misc. No. 13-8026/AF. Patrick CARTER, Appellant v. Norman Presecan, Commander, United States Navy, in his official capacity, as Commanding Officer, United States Naval Consolidated Brig, Miramar, California and the United States, Appellees. 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 was filed under Rule 27(b) on this date. Appellee will file an answer on or before March 1, 2013.

 

INTERLOCUTORY ORDERS

 

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 to March 7, 2013.

 

No. 13-0294/AR. U.S. v. Michael T. GLAD. CCA 20110066. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 7, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-104

Friday, February 15, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0693/AR. U.S. v. Bradley O. TEMPLE. CCA 20090883.*

No. 13-0293/AF. U.S. v. Christopher W. GIBSON. CCA S31967.

No. 13-0294/AR. U.S. v. Michael T. GLAD. CCA 20110066.

No. 13-0295/AR. U.S. v. Leslie BEASLEY. CCA 20110616.

______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-103

Thursday, February 14, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0467/AR. U.S. v. Arthur R. YOUNG, Jr. CCA 20090092.

No. 13-0199/AR. U.S. v. Jacquen L. BRATCHER. CCA 20120533.

No. 13-0203/NA. U.S. v. Lucas D. WYLIE. CCA 201200123.

No. 13-0217/AR. U.S. v. Bryant C. WHITESIDE. CCA 20120048.

No. 13-0218/AR. U.S. v. Robert L. BOYD. CCA 20110129.

No. 13-0219/AR. U.S. v. Derek K. CONVER. CCA 20111071.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8023/AF. In re James W. RICHARDS, Petitioner. CCA 2012-14. On consideration of the writ-appeal petition, and the motion for a stay of proceedings below, it is ordered

that said writ-appeal petition is hereby denied without prejudice, and that said motion is hereby denied as moot.

 

INTERLOCUTORY ORDERS

 

No. 12-8027/AR. Center for Constitutional Rights, et al, Appellant v. United States, and Colonel Denise Lind, Military Judge, Appellees. CCA 20120514. On consideration of the motions filed by Guardian News and Media LLC for leave to file memorandum as Amicus Curiae out of time, and for leave to file declaration of Ed Pilkington, it is ordered that said motions are hereby denied.

 

No. 13-0253/AR. U.S. v. Kallai Q. SWANSON. CCA 20110702. Appellant's motion to amend the appendix is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-102

Tuesday, February 12, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 09-0079/AR. U.S. v. James T. MURPHY. CCA 19872873.

No. 13-0182/AR. U.S. v. Alvaro ALEMAN. CCA 20110004.

No. 13-0214/AR. U.S. v. Steven M. SERVATIUS. CCA 20120502.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0290/AR. U.S. v. Lakaryl Q. WATERS. CCA 20100026.

No. 13-0291/AF. U.S. v. Dantejio T. TAFT. CCA S32056.

No. 13-0292/AF. U.S. v. Terrell A. PEARSON. CCA 37735.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8021/AF. Marcus L. WILLIAMS v. U.S. Petition for extraordinary relief in the nature of a writ of error coram nobis is denied without prejudice, and motion for suspension of Rule 37(b)(2) is denied as moot.

 

INTERLOCUTORY ORDERS

 

No. 11-0431/AR. U.S. v. Clyde E. CALLWOOD. CCA 20080577. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including February 28, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 12-0377/AR. U.S. v. Randy A. GIDDENS. CCA 20090598. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 1, 2013.

 

No. 13-0025/MC. U.S. v. Allen J. SOLOMON. CCA 201100582. Appellant's motion for leave to file a corrected brief and Appellant's motion to file a redacted joint appendix are granted.

 

No. 13-0061/AR. U.S. v. Ted C. SQUIRE. CCA 20091106. Appellant's motion to extend time to file a brief granted, up to and including February 21, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0240/AR. U.S. v. Bradley G. HOWARD. CCA 20110109. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including February 26, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0283/AF. U.S. v. Timothy L. MERRITT. CCA 37608. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 28, 2013.

 

No. 13-0287/AR. U.S. v. Jeremiah J. REED. CCA 20110878. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 1, 2013.

 

No. 13-0290/AR. U.S. v. Lakaryl Q. WATERS. CCA 20100026. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 22, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-101

Monday, February 11, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0210/AR. U.S. v. Nikki L. PARKER. CCA 20110804.

No. 13-0211/AR. U.S. v. Alysia D. REED. CCA 20120189.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0377/AR. U.S. v. Randy A. GIDDENS. CCA 20090598.*

No. 13-0284/AF. U.S. v. Vincent J. GALLEGOS. CCA S31966.

No. 13-0285/AF. U.S. v. Desiree A. NEWENHAM. CCA S32054.

No. 13-0286/AF. U.S. v. Nathan L. SETTLES. CCA S32059.

No. 13-0287/AR. U.S. v. Jeremiah J. REED. CCA 20110878.

No. 13-0288/AF. U.S. v. Clifton H. ROBBINS. CCA 37753.

No. 13-0289/AF. U.S. v. Glen R. GLOVER. CCA 38012.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8023/AF. In re James W. RICHARDS. CCA 2012-14. 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 mandamus or in the alternative prohibition was filed under Rule 27(b) on this date.

________________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-100

Friday, February 8, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0121/MC. U.S. v. Kenneth BELCHER. CCA 201200079.

No. 13-0135/AR. U.S. v. Marius St. GERARD. CCA 20100506.

No. 13-0209/AF. U.S. v. Douglas E. SMITH. CCA 37863.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0280/AR. U.S. v. Anthony M. RABY. CCA 20110395.

No. 13-0281/AF. U.S. v. Andrew H. BAKER. CCA S31928.

No. 13-0282/AF. U.S. v. Steven W. FORD, Jr. CCA 37934.

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

No. 13-6003/AF. U.S. v. Brendan D. PARK. CCA 2012-11.

 

INTERLOCUTORY ORDERS

 

No. 13-0129/NA. U.S. v. Marcus R. SMITH. CCA 201100433. GCMCO) 01-10 dated 10 February 2010 and GCMCO 01N-10, dated 1 March 2011. GCMCO 01-10 detailed 12 officer members, none of whom appeared at trial. GCMCO 01N-10 detailed 10 officer and enlisted members, each of whom appeared and were sworn. That order also relieved, for this case only, one officer member and two enlisted members who had been previously detailed by GCMCO 01K-10, dated 30 December 2010. The only orders included in the record are 01-10 and 01N-10. The record does not account for the absence of the members detailed by GCMCO 01-10. Accordingly, it is ordered that Appellee file an answer addressing the following specified issue:

 

Whether Appellant was materially prejudiced where 12 detailed members were absent.

 

   Appellee's answer shall be filed with the Court within 20 days of the date of this order. Appellant may file a reply within 5 days after the filing of the answer.*

__________________________________

 

* It is noted that the military judge neglected to order certain portions of the record sealed under MRE 513. Accordingly, the Clerk is directed to seal pages 201-33.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-099

Thursday, February 7, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0147/AR. U.S. v. John F. MULLINGS. CCA 20100925.

No. 13-0176/AR. U.S. v. Aaron S. MARLOW. CCA 20120067.

No. 13-0181/AR. U.S. v. Douglas W. SHEVLIN. CCA 20110577.

No. 13-0195/AF. U.S. v. Austin W. HANSKNECHT. CCA S31865.

No. 13-0207/AF. U.S. v. Adam V. HARRIS. CCA S32049.

No. 13-0208/AF. U.S. v. Jason L. KEPHART. CCA 37923.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0279/AR. U.S. v. Adam C. WINFIELD. CCA 20110675.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-098

Wednesday, February 6, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-5001/AR. U.S. v. Nicholas R. SCHELL. CCA 20110264. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE'S FAILURE TO DISCUSS WITH CROSS-APPELLANT THAT THE OFFENSE OF ATTEMPTED ENTICEMENT OF A MINOR REQUIRES A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THE UNDERLYING SUBSTANTIVE OFFENSE PROVIDES A SUBSTANTIAL BASIS IN LAW TO QUESTION CROSS-APPELLANT'S PLEA.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0079/NA. U.S. v. Steve MOYA. CCA 201100444.

No. 13-0153/AF. U.S. v. Brandon W. MCCLANNAHAN. CCA 37770.

No. 13-0175/NA. U.S. v. Ryan G. DESIERTO. CCA 201200046.

 

INTERLOCUTORY ORDERS

 

No. 10-5004/AF. U.S. v. Ryan D. HUMPHRIES. CCA 37491. Appellee/Cross-Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 25, 2013.

 

No. 12-0070/AF. U.S. v. Erica N. PERRY. CCA 37676. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 25, 2013.

 

No. 13-0271/AF. U.S. v. Trevor L. BAGLEY. CCA S31876. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 25, 2013.

 

No. 13-0272/AR. U.S. v. Curtis M. JACKSON. CCA 20110597. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 19, 2013.


 

No. 13-0273/AF. U.S. v. Christopher D. WALTERS. CCA 37873. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 25, 2013.

 

No. 13-0274/AF. U.S. v. Steven J. DIMATTEO. CCA 37552. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 25, 2013.

 

No. 13-0276/AR. U.S. v. James V. TAYLOR. CCA 20120387. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 22, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-097

Tuesday, February 5, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

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

 

In Specification 2 of Charge I Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King's wrongful use of Oxymorphone, which is alleged to be an "offense" directly affecting the person of Ms. King. Must Ms. King's use of Oxymorphone be an "offense" to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

 

Briefs will be filed on the specified issue under Rule 25.

 

No. 13-0013/AR. U.S. v. Paul R. JASPER. CCA 20100112. Review granted on the following issues:

 

I. WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED THE ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY WAIVING THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER ADMITTED FABRICATING SOME OF THE ALLEGATIONS AGAINST APPELLANT.

 

II. WHETHER THE ARMY COURT ERRED WHEN IT CREATED A CONSTITUTIONAL "KNOWING" ELEMENT TO MILITARY RULE OF EVIDENCE 510(a) REQUIRING A PRIVILEGE HOLDER TO BE INFORMED OF THE REGULATORY PRIVILEGE IN ORDER FOR THE DISCLOSURE TO BE DEEMED VOLUNTARY.

 

III. WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 1 OF CHARGE II AND THE SPECIFICATIONS OF THE ADDITIONAL CHARGE RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL RIGHT TO NOTICE.

 

IV.  WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF CHILD PORNOGRAPHY IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF A CHILD UNDER THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN AS THE UCMJ DEFINES CHILD.

 

Briefs will be filed under rule 25.

 

No. 13-0124/MC. U.S. v. William C. DALTON. CCA 201100521. Review granted on the following issue:

 

IN UNITED STATES v. JONES, THIS COURT RETURNED TO THE STRICT ELEMENTS TEST FOR DETERMINING THE EXISTENCE OF LESSER-INCLUDED OFFENSES. MURDER AND VOLUNTARY MANSLAUGHTER REQUIRE THE INTENT TO KILL OR INFLICT GREAT BODILY HARM, BUT INVOLUNTARY MANSLAUGHTER REQUIRES CULPABLE NEGLIGENCE. UNDER JONES, IS VOLUNTARY MANSLAUGHTER A LESSER-INCLUDED OFFENSE OF EITHER MURDER OR VOLUNTARY MANSLAUGHTER?

 

Briefs will be filed under Rule 25.

 

CERTIFICATES FOR REVIEW FILED

 

No. 13-5004/CG. U.S., Appellant v. Justin R. WHITAKER, Appellee. CCA 1366. Notice is hereby given that a certificate for review of the decision of the United States Coast Guard Court of Criminal Appeals was filed under Rule 22 on the following issue:

 

WHETHER THE COAST GUARD COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE PROVIDENCY REQUIREMENTS OF HARTMAN IN A CASE WHERE THE FACTS ELICITED DURING THE PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY FELL OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v. TEXAS BECAUSE IT INVOLVED A SLEEPING VICTIM.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 11-0640/AR. U.S. v. Robert L. MCCULLOUGH. CCA 20090206.

No. 13-0204/AR. U.S. v. Travis W. OTT. CCA 20111089.

No. 13-0206/AR. U.S. v. Manuel E. OLMOTORRES. CCA 20111103.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 11-0475/AR. U.S. v. Robert L. CONRADY. CCA 20080534.

No. 13-0278/AF. U.S. v. Michael D. REED. CCA 37775.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8019/AF. U.S. v. John C. CALHOUN. CCA 2012-01. On consideration of the motion filed by Appellant for an enlargement of time to file a writ-appeal petition, it is ordered that said motion is hereby granted to February 11, 2013.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8022/NA. Jeremy G. BOYER, Appellant v. Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, and United States, Appellees. 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 in the nature of a writ of habeas corpus was filed under Rule 27(b) on this date.

 

INTERLOCUTORY ORDERS

 

No. 13-0268/MC. U.S. v. Samuel PACHECO, Jr. CCA 201200366. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 21, 2013.

 

No. 13-0269/MC. U.S. v. Joshua W. TIGER. CCA 201200284. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 21, 2013.

 

No. 13-0270/MC. U.S. v. Bryan B. HARRIS. CCA 201200274. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 21, 2013.


No. 13-8017/AF. In Re Matthew J. SOUSA, Petitoner.On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that the United States show cause on or before February 15, 2013, why the requested relief should not be granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-096

Monday, February 4, 2013

 

CERTIFICATES FOR REVIEW FILED

 

No. 10-5004/AF. U.S., Appellant v. Ryan D. HUMPHRIES, Appellee. CCA 37491. 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 on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE'S SENTENCE INAPPROPRIATELY SEVERE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 10-5004/AF. U.S. v. Ryan D. HUMPHRIES. CCA 37491.*

No. 12-0070/AF. U.S. v. Erica N. PERRY. CCA 37676.*

No. 13-0271/AF. U.S. v. Trevor L. BAGLEY. CCA S31876.

No. 13-0272/AR. U.S. v. Curtis M. JACKSON. CCA 20110597.

No. 13-0273/AF. U.S. v. Christopher D. WALTERS. CCA 37873.

No. 13-0274/AF. U.S. v. Steven J. DIMATTEO. CCA 37552.

No. 13-0275/AR. U.S. v. Francisco J. GAMBOATERAN. CCA 20111072.

No. 13-0276/AR. U.S. v. James V. TAYLOR. CCA 20120387.

No. 13-0277/AF. U.S. v. Christopher P. HUIE. CCA 37779.

 

MISCELLANEOUS DOCKET FILINGS

 

No. 13-8022/MC. Jeremy G. BOYER, Appellant v. Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, and United States, Appellees. 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 in the nature of a writ of habeas corpus was filed under Rule 27(b) on this date.

 

INTERLOCUTORY ORDERS

 

No. 12-0524/AR. U.S. v. Bruce L. KELLY. CCA 20090809. On consideration of the pleadings and record, it is ordered that both parties will file briefs on or before February 14, 2013, on the following specified issue:

 

WHETHER THE EXAMINATION OF THE CONTENTS OF APPELLANT'S COMPUTER WAS AN UNLAWFUL INSPECTION UNDER M.R.E. 313(b).

_______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-095

Friday, February 1, 2013

 

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

 

No. 13-0231/AF. U.S. v. Andrew J. THOMPSON. CCA S32019. On consideration of Appellee's motion to dismiss the petition for grant of review, it is ordered that said motion is hereby granted without prejudice.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0268/MC. U.S. v. Samuel PACHECO, Jr. CCA 201200366.

No. 13-0269/MC. U.S. v. Joshua W. TIGER. CCA 201200284.

No. 13-0270/MC. U.S. v. Bryan B. HARRIS. CCA 201200274.

 

INTERLOCUTORY ORDERS

 

No. 13-0267/MC. U.S. v. Justin D. TANNER. CCA 201200250. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to February 20, 2013.



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