UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-194

Friday, June 28, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 09-0441/AF. U.S. v. Joshua C. BLAZIER. CCA 36988. On further consideration of the granted issue, 71 M.J. 459 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 200800827. On further consideration of the granted issue, 71 M.J. 358 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 10-0685/AF. U.S. v. Kenneth J. BURTON, Jr. CCA S31632. On further consideration of the granted issue, 71 M.J. 454 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 11-0019/AF. U.S. v. Shannon L. DOLLAR. CCA S31607. On further consideration of the granted issue, 71 M.J. 450 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 11-0497/MC. U.S. v. Desmond J. HORTON. CCA 201000481. On further consideration of the granted issue, 71 M.J. 359 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 11-0563/MC. U.S. v. Anthony J. SANDERS. CCA 201000522. On further consideration of the granted issue, 71 M.J. 324 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 12-0396/MC. U.S. v. Jason A. LUNSFORD, Jr. CCA 201100511. On further consideration of the granted issue, 71 M.J. 314 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

No. 12-0450/MC. U.S. v. Jonathan M. KILARSKI. CCA 201100329. On further consideration of the granted issue, 71 M.J. 334 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0438/AF. U.S. v. Dewey K. CLAWSON. CCA 37723.

No. 13-0515/AF. U.S. v. Brandon L. BAILEY. CCA 37746.

No. 13-0520/AR. U.S. v. James L. JONES. CCA 20111054.

No. 13-0521/AR. U.S. v. Bryan J. THERIOT. CCA 20120037.

No. 13-0530/AF. U.S. v. Rickey L. COOK, Jr. CCA S32102.

No. 13-0534/AR. U.S. v. Dequan D. EDWARDS. CCA 20120936.

No. 13-0538/AR. U.S. v. Obed NOEL. CCA 20110441.

No. 13-0541/AR. U.S. v. Nicholas S. WHITE. CCA 20110750.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

No. 13-0601/AF. U.S. v. Korey J. TALKINGTON. CCA 37785.

No. 13-0602/AR. U.S. v. Thomas C. FLESHER. CCA 20120236.

No. 13-0603/AR. U.S. v. Anthony J. MARINO. CCA 20120107.

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

No. 13-0605/MC. U.S. v. Hector Y. APARCIO. CCA 201200408.

No. 13-0606/AR. U.S. v. Christopher MILLENDER. CCA 20100680.

No. 13-0607/AF. U.S. v. Matthew J. SOUSA. CCA 37889.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-193

Thursday, June 27, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0388/AR. U.S. v. Zakaria H. LOUTFI. CCA 20100489.

No. 13-0462/AR. U.S. v. Michael A. WILLIAMSON. CCA 20110881.

No. 13-0482/AR. U.S. v. Charles L. SMITH. CCA 20101013.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

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

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

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8035/MC. George W. PRICE v. U.S. CCA 201000193. On consideration of the writ-appeal petition, it is ordered that said petition is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 13-0338/AF. U.S. v. Dalton S. DUGEN. CCA 37708. Appellee's motion for leave to file a waiver letter out of time granted.

 

No. 13-0518/AF. U.S. v. Jordan C. PASSUT. CCA 37755.

No. 13-0581/AF. U.S. v. Jason K. PENDERGAST. CCA 38047.

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

No. 13-5005/AF. U.S. v. Patrick CARTER. CCA 37715.

 

On consideration of the motions filed by Dwight H. Sullivan, Esq., for leave to withdraw as appellate defense counsel in each of the above cases, it appears that the Judge Advocate General has assigned another counsel to represent the Appellants and that the new counsel have assumed representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 13-0591/NA. U.S. v. Kenan H. BELTON. CCA 201200292. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 16, 2013.

 

No. 13-0593/AR. U.S. v. Osborn F. EDWARDS. CCA 20100399. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 16, 2013.

 

No. 13-0594/AR. U.S. v. Alice M. ROOSA. CCA 20100879. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 16, 2013.

 

No. 13-0595/AF. U.S. v. Phillip T. BURLEIGH. CCA 37652. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 16, 2013.

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. Appellant's motion to compel discovery of government possessed documents is hereby denied as moot.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-192

Wednesday, June 26, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0591/NA. U.S. v. Kenan H. BELTON. CCA 201200292.

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

No. 13-0593/AR. U.S. v. Osborn F. EDWARDS. CCA 20100399.

No. 13-0594/AR. U.S. v. Alice M. ROOSA. CCA 20100879.

No. 13-0595/AF. U.S. v. Phillip T. BURLEIGH. CCA 37652.

No. 13-0596/AR. U.S. v. Christopher R. MCCLENDON. CCA 20110468.

No. 13-6004/AF. U.S. v. Samuel A. WICKS. CCA 2013-08.

 

INTERLOCUTORY ORDERS

 

No. 13-0548/AR. U.S. v. Detric A. KELLY. CCA 20110138. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including July 15, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0588/AR. U.S. v. John P. FIGUEROA. CCA 20110951. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 15, 2013.

 

No. 13-0589/AR. U.S. v. Daudre L. LEE. CCA 20120334. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 15, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-191

Tuesday, June 25, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0472/AR. U.S. v. Matthew S. HARVEY. CCA 20110710.

No. 13-0477/AR. U.S. v. Jack L. HARVEY. CCA 20120582.

No. 13-0483/AR. U.S. v. James J. SAYAH. CCA 20110312.

No. 13-0526/AR. U.S. v. Emily W. BUSCH. CCA 20100977.

No. 13-0528/AR. U.S. v. Charles W. FAIRBAIRN. CCA 20110011.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

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




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-190

Monday, June 24, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0465/AR. U.S. v. Aaron J. DELANEY. CCA 20110145. 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.*

 

* It is directed that the promulgating order of 18 July 2011 be corrected as follows. First, the recitation of the Specification of Charge I shall be corrected to replace the phrase "rape or aggravated sexual assault" with the phrase "rape and aggravated sexual assault." Second, the recitation of Specification 1 of Charge II shall be corrected to replace the phrase "strength, power, or restraint" with the phrase "strength, power, and restraint." Third, the recitation of Specification 2 of Charge II shall be corrected to replace the phrase "substantially incapacitated or substantially incapable of appraising the nature of the sexual act or substantially incapable of declining participation in the sexual act or substantially incapable of communicating unwillingness to engage in the sexual act" with the phrase "substantially incapacitated and substantially incapable of appraising the nature of the sexual act and substantially incapable of declining participation in the sexual act and substantially incapable of communicating unwillingness to engage in the sexual act." Finally, the Specification of Charge III shall be corrected to reflect that Appellant entered a plea of "Not Guilty" to the Specification, not a plea of "Guilty." [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0465/AR. U.S. v. Aaron J. DELANEY. CCA 20110145. [See also APPEALS SUMMARY DISPOSITIONS this date.]

 

CERTIFICATES FOR REVIEW FILED

 

No. 13-5008/AF. U.S. v. Alejandro V. ARRIAGA. CCA 37439. 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 issues:

 

I. WHETHER APPELLEE SATISFIED HIS BURDEN TO DEMONSTRATE THAT THE DEFECTIVE SPECIFICATION UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED HIS SUBSTANTIAL RIGHTS WHEN HE WAS PROVIDED ACTUAL NOTICE OF THE TERMINAL ELEMENT THROUGH AN ARTICLE 32 REPORT RECEIVED PRIOR TO TRIAL.

 

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS APPLIED AN ERRONEOUS STANDARD OF LAW WHEN EVALUATING WHETHER THE DEFECTIVE SPECIFICATION UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS BY FAILING TO CONSIDER WHETHER THE EVIDENCE ON THE MISSING ELEMENT WAS "OVERWHELMING AND ESSENTIALLY UNCONTROVERTED" AND BY FINDING NOTICE OF THE MISSING ELEMENT WAS NOT EXTANT IN THE RECORD.

 

III. WHETHER THIS HONORABLE COURT SHOULD APPLY THE FOURTH PRONG OF THE PLAIN ERROR ANALYSIS AS ARTICULATED BY THE UNITED STATES SUPREME COURT IN UNITED STATES V. OLANO, 507 U.S. 725 (1993), WHEN ASSESSING WHETHER THE DEFECTIVE SPECIFICATION UNDER ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS IN THIS CASE.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0471/AR. U.S. v. Van E. BUSH. CCA 20110724.

No. 13-0511/AF. U.S. v. Bryan W. HEARN. CCA 37867.

No. 13-0514/NA. U.S. v. Matthew A. WILLIAMS. CCA 201200386.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0586/AR. U.S. v. Michael S. KELLAM. CCA 20120518.

No. 13-0587/AR. U.S. v. Dean A. MURRIETTA. CCA 20120493.

No. 13-0588/AR. U.S. v. John P. FIGUEROA. CCA 20110951.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-189

Friday, June 21, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

No. 13-0584/AR. U.S. v. Clyde W. ANTHONY. CCA 20120955.

No. 13-0585/AR. U.S. v. Steven J. MCDERMOTT. CCA 20120671.

 

MANDATES ISSUED

 

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




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-188

Thursday, June 20, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0345/AF. U.S. v. Robert M. PAYNE. CCA 37594. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE MEMBERS OF THE ELEMENTS FOR CREATION OF CHILD PORNOGRAPHY.

 

Briefs will be filed under Rule 25.

 

No. 13-0348/AR. U.S. v. Amanda M. MOSS. CCA 20110337. Review granted on the following issues:

 

I. WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE DEFENSE COUNSEL MADE AN UNSWORN STATEMENT ON HER BEHALF WHEN SHE WAS TRIED IN ABSENTIA AND THERE IS NO EVIDENCE THAT SHE CONSENTED TO THE UNSWORN STATEMENT.

 

II. WHETHER APPELLANT WAS DEPRIVED OF HER RIGHT TO CONFLICT-FREE COUNSEL WHEN HER DEFENSE COUNSEL MADE AN UNSWORN STATEMENT WITHOUT HER CONSENT AND SUBSEQUENTLY INVOKED HIS FIFTH AMENDMENT RIGHTS AND FAILED TO ASSERT THAT APPELLANT WAS PREJUDICED.

 

III. WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR WHEN HE ALLOWED THE DEFENSE COUNSEL TO MAKE AN UNSWORN STATEMENT ON BEHALF OF APPELLANT WHEN SHE WAS TRIED IN ABSENTIA.

 

IV. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE FOUND THAT THERE WAS NO PREJUDICE WHEN THE DEFENSE COUNSEL READ AN UNSWORN STATEMENT WITHOUT APPELLANT'S CONSENT AND THEN FAILED TO INSTRUCT THE PANEL TO DISREGARD THE UNSWORN STATEMENT AND SERGEANT FIRST CLASS M'S REBUTTAL TESTIMONY.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8030/NA. Audley G. EVANS v. U.S. CCA 200600806. On consideration of Appellee's motion to dismiss the writ-appeal for lack of jurisdiction, it is ordered that said motion is hereby granted.

 

Misc. No. 13-8039/AF. Travis A. SCHMIDT v. The Air Force Court of Criminal Appeals and United States of America. CCA 38220. On consideration of the petition for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that said petition is hereby denied without prejudice to re-filing the petition before the United States Air Force Court of Criminal Appeals. See C.A.A.F. R. 4(b)(1) (stating that "[a]bsent good cause, no [petition for extraordinary relief] shall be filed unless relief has first been sought in the appropriate Court of Criminal Appeals. Original writs are rarely granted.").

 

Misc. No. 13-8041/AF. Andre G. GNASH v. The Air Force Court of Criminal Appeals and The United States of America. On consideration of the petition for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that said petition is hereby denied without prejudice to re-filing the petition before the United States Air Force Court of Criminal Appeals. See C.A.A.F. R. 4(b)(1).

 

INTERLOCUTORY ORDERS

 

Nos. 13-0353/AF and 13-5007/AF. U.S. v. Laurence H. FINCH. CCA 38081. On consideration of the motion filed by Dwight H. Sullivan, Esq., 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.

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. It is ordered that the briefs of the Appellant and the Appellee, and the reply of Appellant, if any, may be filed electronically, but should counsel file said pleadings in a paper format, such pleadings shall conform in all respects to the requirements of Rule 37(a), Rules of Practice and Procedure, with the additional requirement that they be printed on 3-hole pre-punched paper. Additionally, the joint appendix shall be printed on 3-hole pre-punched paper and otherwise comply in all respects with Rule 24(f)(2). The briefs and the reply, if any, shall be divided into the following parts:

 

Part A shall set forth systemic issues and case-specific issues raised before the Court of Criminal Appeals but not previously decided by this Court;

 

Part B shall set forth all issues not raised before the court below;

 

Part C shall set forth systemic issues previously decided by this Court but raised to avoid waiver; these issues may be listed without argument as an exception to Rule 24(a), but must cite pertinent authority to support the position taken.

 

All exhibits cited in the pleadings filed before this Court shall be included in the Joint Appendix.*

 

* 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 for the purposes of this Order and any matters related thereto, and that Senior Judge Effron has consented to perform such 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).




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-187

Wednesday, June 19, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0205/AR. U.S. v. Justin C. QUINN. CCA 20110159. On further consideration of the granted issue, 72 M.J. 95 (C.A.A.F. 2013), and in view of Lawrence v. Texas, 539 U.S. 558 (2003), and United States v. Elhelou, __ M.J. __ (C.A.A.F. 2013) (summary disposition), it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* STUCKY, Judge (dissenting):

 

I respectfully dissent from the summary disposition of this case. See United States v. Elhelou, __ M.J. __ (C.A.A.F. 2013) (Stucky, J., dissenting).

 

No. 13-0235/AR. U.S. v. Waseem ELHELOU. CCA 20110246. On further consideration of the granted issues, 72 M.J. 253 (C.A.A.F. 2013), we conclude that there is no substantial basis in law or fact to question the providence of Appellant's pleas. During the plea colloquy, the military judge sufficiently explained to Appellant that private, consensual, sexual activity, absent an aggravating factor, is not punishable as an indecent act, but that "open and notorious" sexual activity is punishable as an indecent act, in violation of Article 120(k), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 920(k) (2006 & Supp. I 2007), repealed by National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 541(a)(6), 125 Stat. 1298, 1406 (2011). Appellant then admitted sufficient facts to establish that his conduct amounted to "open and notorious" sexual activity: that he engaged in sexual conduct with a fellow servicemember while in the presence of additional servicemembers in an unlocked barracks room of two other servicemembers who were reasonably likely to observe the sexual activity because they could have returned at any time. The dialogue between the military judge and Appellant amply demonstrates that Appellant understood why his conduct was subject to criminal sanction. See Lawrence v. Texas, 539 U.S. 558 (2003); United States v. Hartman, 69 M.J. 467 (C.A.A.F. 2011); see also United States v. Medina, 72 M.J. 148 (C.A.A.F. 2013); United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013). Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* STUCKY, Judge (dissenting):

 

Appellant stands convicted, pursuant to his pleas, of two specifications of indecent acts for engaging in sexual intercourse with a female soldier and placing his penis in her mouth while in the presence of other soldiers who were also engaging in sexual conduct with the same female in violation of Article 120(k), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 920(k) (Supp. I 2007). Citing this Court's recent opinion in United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013), the majority affirms Appellant's convictions on the grounds that his plea was provident because the military judge sufficiently explained the difference between private, consensual, sexual activity and "open and notorious" sexual activity that is punishable as an indecent act, and Appellant admitted sufficient facts to establish that his conduct amounted to "open and notorious" sexual activity. United States v. Elhelou, __ M.J. __ (C.A.A.F. 2013) (summary disposition).

 

During the plea inquiry, the military judge informed Appellant that "Article 120, UCMJ, is not intended to regulate the wholly private, consensual, sexual activities of individuals," and that in the "absence of aggravating circumstances" such conduct is "not punishable as an indecent act." Appellant did not admit to engaging in non-consensual or "public" conduct for the two specifications at issue. Rather, he admitted that his conduct was not protected under Lawrence v. Texas, 539 U.S. 558 (2003), because it was indecent, specifically, because it was "open and notorious."

 

I was concerned, in Goings, with using "open and notorious," as defined by this Court, as a standard for indecency under Article 134, UCMJ, 10 U.S.C. 934 (2006), and am even more concerned with using it under Article 120, UCMJ, which was not designed to address military-specific offenses. See Goings, 72 M.J. at 213-14 (Stucky, J., dissenting). However, even assuming the "open and notorious" standard is a viable metric to determine indecency under Article 120, UCMJ, after Lawrence, I am not convinced that engaging in sexual activity in the consensual presence of another individual or individuals, an unlocked door, the involvement of other servicemembers, or the fact that someone may have walked in on the activity, but did not, necessarily renders conduct indecent.1

 

I believe this Court needs to address, in a non-summary fashion: (1) the tension between this Court's definition of "indecency," specifically the "open and notorious" standard, and the liberty interest identified in Lawrence -- especially now that the offense has moved from Article 134 to Article 120; and (2) what military-specific factors, if any, render conduct indecent such that it is outside the protections of Lawrence. Given the above, I respectfully dissent.

______________________________________

 

1 I agree that, depending on the circumstances, such conduct may rise to the level of "public conduct" and fall outside the protections of Lawrence, or may constitute an offense under another provision of the UCMJ. See Goings, 72 M.J. at 212-14 & nn.7, 13 (Stucky, J., dissenting).

 

No. 13-0240/AR. U.S. v. Bradley G. HOWARD. CCA 20110109. On further consideration of the granted issue, 72 M.J. 259 (C.A.A.F. 2013), we conclude that the issue was forfeited, rather than waived. See United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013). We also conclude that the conduct in question -- which involved a fellow servicemember, and occurred while in the presence of two additional servicemembers in the unlocked barracks room of two other servicemembers who were reasonably likely to unintentionally observe the sexual activity -- was not plainly "private" under Lawrence v. Texas, 539 U.S. 558 (2003), see United States v. Elhelou, __ M.J. __ (C.A.A.F. 2013) (summary disposition), and therefore the failure of the military judge to raise a Lawrence issue sua sponte was not plain error. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* STUCKY, Judge (dissenting):

 

I respectfully dissent from the summary disposition of this case. See United States v. Elhelou, __ M.J. __ (C.A.A.F. 2013) (Stucky, J., dissenting); see also United States v. Goings, 72 M.J. 202, 214-14 & n.7 (C.A.A.F. 2013) (Stucky, J., dissenting) (discussing the conception of "private" conduct under Lawrence v. Texas, 539 U.S. 558 (2003)).

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0455/AR. U.S. v. Steven A. WILLIAMS. CCA 20110632.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0581/AF. U.S. v. Jason K. PENDERGAST. CCA 38047.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8032/MC. Bradley A. MORALES, Appellant v. Colonel Eric Belcher, in his official capacity as Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas and the United States. CCA 201000057. On consideration of the writ-appeal petition, it is ordered that said writ-appeal petition is hereby denied.

 

Misc. No. 13-8034/AF. In re Dennis D. KELLER, Petitioner. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus or, in the alternative, a writ of mandamus, it is ordered that said petition is hereby denied without prejudice.

 

INTERLOCUTORY ORDERS

 

No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719. Appellant's motion to extend time to file a brief granted, but only up to and including July 8, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0408/MC. U.S. v. Don W. BAILEY. CCA 201200370. On consideration of Appellant's motion to attach documents and Appellee's motion to file a 10-day answer letter out of time, it is ordered that Appellant's motion to attach documents is hereby granted, and that Appellee's motion to file a 10-day letter out of time is hereby denied.

 

No. 13-0435/AR. U.S. v. Gary D. WARNER. CCA 20120499. Appellant's motion to extend time to file a brief granted, but only up to and including July 8, 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. 13-186

Tuesday, June 18, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0265/NA. U.S. v. Decker B. JORDAN. CCA 201100621.

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

No. 13-0369/AR. U.S. v. Corey A. MOORE. CCA 20110149.

No. 13-0396/AF. U.S. v. Jarrod T. LUTES. CCA 37665.

No. 13-0468/AR. U.S. v. Daniel M. NORIEGA. CCA 20110596.

No. 13-0507/AR. U.S. v. Justin M. RANDAZZO. CCA 20120588.

No. 13-0508/AF. U.S. v. Timothy M. SPRADER. CCA S32086.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

No. 13-0576/AR. U.S. v. Ricky A. WALLS. CCA 20110501.

No. 13-0577/AR. U.S. v. Steven R. SMALLEY. CCA 20120738.

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

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

No. 13-0580/AR. U.S. v. Burt A. LANCASTER. CCA 20120386.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8040/AF. Coren D. FAISON v. U.S. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, it is ordered that said petition is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 13-0231/AF. U.S. v. Andrew J. THOMPSON. CCA S32019. Appellant's motion to withdraw the petition for grant of review without prejudice is hereby denied without prejudice to filing a subsequent motion that complies with Rule 21(f).

 

No. 13-0499/AF. U.S. v. Benny BROCKINGTON, III. CCA S32089. Appellant's motion to withdraw the petition for grant of review without prejudice is hereby denied without prejudice to filing a subsequent motion that complies with Rule 21(f).

 

No. 13-0504/AF. U.S. v. Matthew B. MCKEEVER. CCA 38026. Appellant's motion to withdraw the petition for grant of review without prejudice is hereby denied without prejudice to filing a subsequent motion that complies with Rule 21(f).

 

No. 13-0509/AF. U.S. v. Benjamin J. SIZEMORE. CCA 38020. Appellant's motion to withdraw the petition for grant of review without prejudice is hereby denied without prejudice to filing a subsequent motion that complies with Rule 21(f).

 

No. 13-0532/AR. U.S. v. Christopher R. WHITFIELD. CCA 20100002. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including July 1, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0544/AR. U.S. v. Johnny F. PROTHRO. CCA 20110331. 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 July 3, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0565/AR. U.S. v. Christopher R. KEARNS. CCA 20110348. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 3, 2013.

 

No. 13-0571/AR. U.S. v. Nolan R. MOGG. CCA 20100943. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 8, 2013.

 

No. 13-0573/AR. U.S. v. Calvin J. DAVENPORT. CCA 20081102. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 8, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-185

Monday, June 17, 2013

 

CERTIFICATES FOR REVIEW FILED

 

No. 13-5007/AF. U.S. v. Laurence H. FINCH. CCA 38081. Notice is hereby given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 this date on the following issue:

 

IF THE COURT FINDS THAT THE SPECIFICATIONS SUFFICIENTLY ALLEGED THAT THE VISUAL DEPICTIONS WERE OF ACTUAL MINORS BUT THAT THE MILITARY JUDGE'S DEFINITIONS WERE INCONSISTENT WITH THE ALLEGED SPECIFICATIONS, WHAT IS THE APPROPRIATE REMEDY, IF ANY, TO BE GIVEN?

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0486/AF. U.S. v. Sean M. JOHNSTON. CCA S32080.

No. 13-0494/AR. U.S. v. Thomas J. ROWLANDS, Jr. CCA 20120145.

No. 13-0497/AR. U.S. v. William J. PISER. CCA 20110723.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 10-0649/AF. U.S. v. Dean E. THOMPSON. CCA 37380.*

No. 13-0568/AR. U.S. v. Brian L. KIMBERLING. CCA 20111169.

No. 13-0569/AR. U.S. v. Fermin R. MEDINA. CCA 20110947.

No. 13-0570/AF. U.S. v. Steven A. DANYLO. CCA 37916.

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. 13-0573/AR. U.S. v. Calvin J. DAVENPORT. CCA 20081102.

No. 13-0574/NA. U.S. v. Dearon L. MAYBERRY. CCA 201200269.

_______________________________

 

* Third petition filed in this case.

 


 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-184

Friday, June 14, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0561/NA. U.S. v. Jason L. NIX. CCA 201300061.

No. 13-0562/AR. U.S. v. Bud A. MITCHELL. CCA 20120683.

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

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

No. 13-0565/AR. U.S. v. Christopher R. KEARNS. CCA 20110348.

No. 13-0566/AF. U.S. v. Sean C. BOGDONAS. CCA 37725.

No. 13-0567/AR. U.S. v. Alexei L. SUND. CCA 20120641.

 

INTERLOCUTORY ORDERS

 

No. 11-0280/AR. U.S. v. Douglas K. WINCKELMANN. CCA 20070243. Appellee's motion to extend time to file a brief granted, up to and including June 21, 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. 13-183

Thursday, June 13, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 10-5004/AF. U.S. v. Ryan D. HUMPHRIES. CCA 37491. On further consideration of the granted issue, 72 M.J. ___ (C.A.A.F. 2013), and in view of United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2013), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed. The findings of guilty to the Additional Charge and its specification 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 the sentence is authorized.*

 

* On February 4, 2013, the Judge Advocate General of the Air Force certified 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.

 

In light of the above order, we dismiss the certified issue as moot.

 

No. 12-0331/AR. U.S. v. Jamil V. WILLIAMS. CCA 20090619. On further consideration of the granted issue, 71 M.J. 454 (C.A.A.F. 2012), and in view of United States v. Castellano, 72 M.J. 217 (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 its specification and the sentence. The findings of guilty to Charge II and its specification are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may either dismiss Charge II 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.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0556/AR. U.S. v. Kevin J. WEEDEN. CCA 20120623.

No. 13-0557/AR. U.S. v. Travis F. CARDEN. CCA 20120947.

No. 13-0558/AR. U.S. v. Tyrone L. KIRK. CCA 20121049.

No. 13-0559/AR. U.S. v. Steven D. PATTERSON. CCA 20120927.

No. 13-0560/AF. U.S. v. Matthew J. MANGAN. CCA 38223.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-182

Wednesday, June 12, 2013

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 13-0357/AR. U.S. v. Bob L. WHITFIELD. CCA 20100774. On consideration of Appellant's petition for reconsideration of this Court's order issued on April 30, 2013, it is ordered that said petition for reconsideration is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 12-0428/MC. U.S. v. Stephen J. MCGUIRE. CCA 201000611. Appellee's motion to extend time to file a brief granted, up to and including July 1, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0525/AR. U.S. v. Matthew D. BELL. CCA 20100266. Appellant's second motion to extend time to file a supplement to the petition for grant of review granted, up to and including July 1, 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. 13-181

Tuesday, June 11, 2013

 

HEARINGS

 

No. 13-5006/AF. LRM v. KASTENBERG. CCA 2013-05.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0484/AR. U.S. v. Eric E. TAYLOR. CCA 20120958.

No. 13-0485/AR. U.S. v. Christopher A. HARGEST. CCA 20111052.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0554/AR. U.S. v. Trevor R. CHANEY. CCA 20110799.

No. 13-0555/AR. U.S. v. Andrew H. HOLMES. CCA 20110838.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8040/AF. Coren D. FAISON, Petitioner v. United States, Respondent. Notice is hereby given that a motion to vacate which this Court construes as 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. 13-8041/AF. Andre G. GNASH, Petitioner v. The Air Force Court of Criminal Appeals and The United States of America, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(a) on this date.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-180

Monday, June 10, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0321/NA. U.S. v. Christopher R. MORGAN. CCA 201200141. 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 the aggravated sexual assault specification alleging the insertion of Appellant's finger into VM's vagina by causing bodily harm (specification 3 of Charge I) is a lesser included offense of the rape specification alleging the insertion of Appellant's finger into VM's vagina by using force (specification 1 of Charge I). United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). We also conclude that the aggravated sexual assault specification alleging the insertion of Appellant's penis into VM's vagina by causing bodily harm (specification 4 of Charge I) is a lesser included offense of the rape specification alleging the insertion of Appellant's penis into VM's vagina by force (specification 2 of Charge I). Id. The aggravated sexual assault specifications therefore are impermissibly multiplicious of the rape specifications. United States v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002); see also Brown v. Ohio, 432 U.S. 161, 165-69 (1977). Thus, we dismiss the two aggravated sexual assault specifications. See United States v. Leak, 61 M.J. 234, 249 (C.A.A.F. 2005); Palagar, 56 M.J. at 297. However, because the military judge merged the rape and aggravated sexual assault specifications as one offense for sentencing purposes and instructed the panel that it could only sentence Appellant for one rape offense, we are convinced that he was not prejudiced for sentencing by the multiplicity. See Palagar, 56 M.J. at 297. Accordingly, it is ordered that the petition is granted on the following issue:

 

WHETHER APPELLANT WAS SUBJECTED TO MULTIPLICITY WHEN THE GOVERNMENT CHARGED HIM WITH RAPE AND AGGRAVATED SEXUAL ASSAULT BY CAUSING BODILY HARM FOR THE SAME ACTS.

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed as to specifications 3 and 4 of Charge I, but is affirmed in all other respects. The findings of guilty as to specifications 3 and 4 of Charge I are set aside and those specifications are dismissed.  [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0321/NA. U.S. v. Christopher R. MORGAN. CCA 201200141. [See also APPEALS SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0553/AR. U.S. v. John C. KING. CCA 20120136.

 

INTERLOCUTORY ORDERS

 

No. 07-0725/MC. U.S. v. Jonathan E. LEE. CCA 200600543. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 26, 2013.

 

No. 13-0549/CG. U.S. v. David N. SHANNON. CCA 1358. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 26, 2013.

 

No. 12-0617/MC. U.S. v. Hugo I. VALENTIN. CCA 201000683.

No. 13-0196/MC. U.S. v. Brian P. HICKERSON. CCA 201100111.

No. 13-0213/MC. U.S. v. Daniel W. SANDERS. CCA 201200202.

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. 13-0332/MC. U.S. v. Chad J. BATCHELDER. CCA 201200180.

No. 13-0352/MC. U.S. v. Michael A. ARNOLD. CCA 201200382.

No. 13-0408/MC. U.S. v. Don W. BAILEY. CCA 201200370.

No. 13-0467/MC. U.S. v. Wilson M. SABERON. CCA 201200103.

 

On consideration of the motions filed by Lieutenant Kevin S. Quencer in each of the cases listed above for leave to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned another counsel to represent the Appellants and that the new counsel have assumed representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

MANDATES ISSUED

 

No. 11-0547/AR. U.S. v. Ivan D. GOINGS. CCA 20080602.

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

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

No. 12-0684/MC. U.S. v. Antonio M. CASTELLANO. CCA 201100248.

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




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-179

Friday, June 7, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0380/AR. U.S. v. Joshua D. SEGUIN. CCA 20110063.

No. 13-0392/AR. U.S. v. Kenneth F. PAPALEO II. CCA 20110977.

No. 13-0430/NA. U.S. v. Joshua P. JACKSON. CCA 201200418.

No. 13-0478/AR. U.S. v. James A. WEBB. CCA 20120454.

No. 13-0479/AR. U.S. v. Steven M. FALCONE. CCA 20110297.

No. 13-0480/AR. U.S. v. Martin R. DURAN, Jr. CCA 20120049.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0550/AF. U.S. v. Joshuah X. CARPENTER. CCA S32069.

No. 13-0551/AR. U.S. v. Carlos I. VELASQUEZ. CCA 20110296.

No. 13-0552/AF. U.S. v. Edward L. DIAS II. CCA S31987.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-178

Thursday, June 6, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 07-0725/MC. U.S. v. Jonathan E. LEE. CCA 200600543.*

No. 13-0549/CG. U.S. v. David N. SHANNON. CCA 1358.

 

MISCELLANEOUS DOCKET - FILINGS

 

No. 13-8039/AF. Travis A. SCHMIDT, Petitioner v. The Air Force Court of Criminal Appeals and United States of America, Respondents. CCA 38220. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of error coram nobis was filed under Rule 27(a) on this date.

 

INTERLOCUTORY ORDERS

 

No. 13-0443/AR. U.S. v. Dustin R. HOGAN. CCA 20110172. On consideration of Appellant's motion to file additional matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), it is ordered that said motion is hereby denied. Appellant shall submit Grostefon matters in compliance with the 15-page limit of CAAF Rule 21A(a) on or before June 21, 2013.

 

No. 13-0548/AR. U.S. v. Detric A. KELLY. CCA 20110138. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 25, 2013.

 

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. On consideration of the motion filed by Protect Our Defenders to supplement the record, and the motion filed by the Real Party in Interest to file a declaration, it is ordered that said motions are hereby denied.

_______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No.13-177

Wednesday, June 5, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0547/AR. U.S. v. Vivek BHATTI. CCA 20121044.

No. 13-0548/AR. U.S. v. Detric A. KELLY. CCA 20110138.

 

INTERLOCUTORY ORDERS

 

No. 13-0490/AR. U.S. v. Brandon J. RYLES. CCA 20110095. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including June 18, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0493/AR. U.S. v. Benito NIEVESPABON. CCA 20100626. Appellant's second motion to extend time to file the supplement granted, up to and including June 17, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

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. On consideration of the motion filed by Protect Our Defenders for leave to file an Amicus Curiae brief in support of Appellant, it is ordered that said motion is hereby granted.

 

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. On consideration of the motion for leave to file a reply of Amicus Curiae Appellate Defense Division for the Navy-Marine Corps to proposed brief of Amicus Curiae Protect Our Defenders and the motion to correct errata in the motion for leave to file a reply of Amicus Curiae Appellate Defense Division for the Navy-Marine Corps to proposed brief of Amicus Curiae Protect Our Defenders, it is ordered that said motions are hereby denied.



 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-176

Tuesday, June 4, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 10-0483/AR. U.S. v. David C. ELLERBROCK. CCA 20070925.

No. 13-0433/AF. U.S. v. Daniel W. NORTHERN, Jr. CCA 37984.

No. 13-0473/AF. U.S. v. Joey T. HILL. CCA 38178.

No. 13-0474/AR. U.S. v. John R. MORTENSEN. CCA 20120143.

No. 13-0475/AR. U.S. v. Ian M. KEANEY. CCA 20120721.



 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-175

Monday, June 3, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0335/MC. U.S. v. Joel C. MILLER. CCA 201200184.

No. 13-0371/NA. U.S. v. James B. HALL, Jr. CCA 201200219.

No. 13-0401/MC. U.S. v. Michael J. FOSTER. CCA 201200235.

No. 13-0422/AR. U.S. v. Andrew W. HAGA. CCA 20110362.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0546/AR. U.S. v. Ronald A. JOHNSON. CCA 20120395.

 

INTERLOCUTORY ORDERS

 

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. On consideration of the motions filed by the National Crime Victim Law Institute for leave to participate as Amicus Curiae in support of Petitioner's brief and for leave to appear pro hac vice; the motion filed by the United States Air Force Trial Defense Division for leave to file an Amicus Curiae brief in support of Appellee and Real Party in Interest; and the motion filed by the United States Marine Corps Defense Services Organization for leave to file an Amicus Curiae brief in support of Appellee and Real Party In Interest, said motions are hereby granted.



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