UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-132

Friday, March 29, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0381/AF. U.S. v. Kevin M. BOOKS. CCA 37938.

No. 13-0382/AF. U.S. v. Travis S. HAYNES. CCA S31927.

No. 13-0383/AR. U.S. v. Romeo R. SAN PEDRO II. CCA 20110861.

No. 13-0384/AF. U.S. v. David J. CARRILLO. CCA S31973.

No. 13-0385/AF. U.S. v. Mathew T. REINDL. CCA S31993.

No. 13-0386/AF. U.S. v. Michael A. PRADELLA. CCA S31921.

 

MISCELLANEOUS DOCKET - FILINGS

 

Misc. No. 13-8030/NA. Audley G. EVANS, Appellant v. United States, Appellee. CCA 200600806. Notice is hereby given that a pro se 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 by mail under Rule 27(b) on March 1, 2013, and placed on the docket this date.

 

INTERLOCUTORY ORDERS

 

No. 13-0129/NA. U.S. v. Marcus R. SMITH. CCA 201100433. Appellee's motion to supplement the record is granted.

 

No. 13-0338/AF. U.S. v. Dalton S. DUGEN. CCA 37708. On consideration ofAppellee's motion to dismiss the petition for grant of review, Appellant's motion to substitute an erroneously filed supplement to the petition for grant of review and Appellee's motion to extend time to file an answer to Appellant's supplement to the petition for grant of review, it is ordered that Appellee's motion to dismiss the petition for grant of review is hereby denied, and that Appellant's motion to substitute an erroneously filed supplement to the petition for grant of review and Appellee's motion to extend time to file an answer to Appellant's supplement to the petition for grant of review are hereby granted. Appellee may file an answer to said supplement on or before April 18, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-131

Thursday, March 28, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

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

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

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

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.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0378/AF. U.S. v. Thomas L. BOURNE. CCA 37866.

No. 13-0379/NA. U.S. v. James D. THOMAS. CCA 201200203.

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

 

INTERLOCUTORY ORDERS

 

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

No. 13-5001/AR. U.S. v. Nicholas R. SCHELL. CCA 20110264.

 

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).




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-130

Wednesday, March 27, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0325/AR. U.S. v. Franklin L.C. DUNN. CCA 20110388. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that under Charge II and its sole Specification, Appellant was charged with premeditated murder. He pleaded guilty to the lesser included offense of unpremeditated murder. The military judge accepted his plea, and then conformed the specification to his plea. Having done so, a finding of guilty was entered. The court-martial promulgating order correctly states the charge, the plea, and the finding, but it fails to explain that the specification was modified to conform to the plea. Thus, the order is misleading as to the true finding. Accordingly, it is ordered that the petition is hereby granted; that the court-martial promulgating order be corrected to include that the military judge modified the Specification of Charge II to conform to Appellant's plea of guilty to the lesser included offense of unpremeditated murder; and that the decision of the United States Army Court of Criminal Appeals is affirmed.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 11-0638/AR. U.S. v. Edgar E. MARTINEZ. CCA 20090582. Review granted on the following issue:

 

WHETHER THE GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT IN SPECIFICATION 2 OF CHARGE III RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL RIGHT TO NOTICE.

 

No briefs will be filed under Rule 25.

 

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

 

No briefs will be filed under Rule 25.

 

No. 13-0325/AR. U.S. v. Franklin L.C. DUNN. CCA 20110388. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0100/AR. U.S. v. Mathew J. WILLIAMSON. CCA 20100828.

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

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

No. 13-0372/AR. U.S. v. Orson B. PORTER, Jr. CCA 20110489.

No. 13-0373/AR. U.S. v. Seth A. TROTTER. CCA 20120834.

No. 13-0374/AF. U.S. v. Keven N. DUONG. CCA 37892.

No. 13-0375/AR. U.S. v. Brandon M. WYSONG. CCA 20120162.

No. 13-0376/AR. U.S. v. Cordric L. COLEMAN. CCA 20110740.

No. 13-0377/AF. U.S. v. Bobbie J. ARRINGTON. CCA 37698.

 

INTERLOCUTORY ORDERS

 

No. 12-0617/MC. U.S. v. Hugo I. VALENTIN. CCA 201000683. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to April 16, 2013.

 

No. 13-0061/AR. U.S. v. Ted C. SQUIRE. CCA 20091106. Appellant's motion to substitute a corrected joint appendix granted.

 

No. 13-0321/NA. U.S. v. Christopher R. MORGAN. CCA 201200141. Appellant's third motion to extend time to file the supplement to the petition for grant of review granted up to and including April 3, 2013, and no further extension of time will be granted in this case.

 

No. 13-0364/AR. U.S. v. Aaron M. PERNELL. CCA 20100978. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to April 15, 2013.

 

No. 13-0368/AR. U.S. v. Kenyon T. TADLOCK. CCA 20110366. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to April 15, 2013.

 

No. 13-0371/NA. U.S. v. James B. HALL, Jr. CCA 201200219. Appellant's motion to extend time to file the supplement to petition for grant of review granted to April 16, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-129

Tuesday, March 26, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

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

No. 13-0163/AR. U.S. v. Willie J. SMITH, Jr. CCA 20100637.

No. 13-0201/AR. U.S. v. Jonne T. WEGLEY. CCA 20100744.

No. 13-0267/MC. U.S. v. Justin D. TANNER. CCA 201200250.

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

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

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

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

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0368/AR. U.S. v. Kenyon T. TADLOCK. CCA 20110366.

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

No. 13-0370/AR. U.S. v. Anthony M. SAWYERS. CCA 20111065.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-128

Monday, March 25, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0361/AR. U.S. v. Justin A. PEAVY. CCA 20110884.

No. 13-0362/AR. U.S. v. Daniel A. WILDMAN. CCA 20120388.

No. 13-0363/AF. U.S. v. Korey A. BOYD. CCA 37924.

No. 13-0364/AR. U.S. v. Aaron M. PERNELL. CCA 20100978.

No. 13-0365/AF. U.S. v. Scott A. KLEIN. CCA 37833.

No. 13-0366/AR. U.S. v. Roberto A. ROMERO. CCA 20111109.

No. 13-0367/AR. U.S. v. Jeffrey A. WEDLUND. CCA 20110637.

 

MANDATES ISSUED

 

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




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-127

Friday, March 22, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 12-0070/AF. U.S. v. Erica N. PERRY. CCA 37676. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the convening authority's action dated 21 March 2012 is ambiguous in that it approves Appellant's conviction for the false-official-statement charge "and its specification" even though there were, in fact, two specifications of that charge of which Appellant was convicted. Accordingly, it is ordered that said petition is hereby granted on the following issue:


WHETHER THE AFCCA ERRED BY AFFIRMING APPELLANT'S TWO CONVICTIONS FOR MAKING FALSE OFFICIAL STATEMENTS WHEN THE CONVENING AUTHORITY ONLY APPROVED ONE OF THE SPECIFICATIONS AND DID NOT INDICATE WHICH ONE.

The decision of the United States Air Force Court of Criminal Appeals is set aside. In accordance with Rule for Courts-Martial 1107(g), the record of trial is returned to the Judge Advocate General of the Air Force for submission to the convening authority to withdraw the ambiguous action and substitute a corrected one. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. 866 and 867 (2006), will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

 

No. 12-0070/AF. U.S. v. Erica N. PERRY. CCA 37676. [See also APPEALS-SUMMARY DISPOSIITONS this date.]

No. 13-0244/NA. U.S. v. Donald J. BROWN. CCA 201100516. Review granted on the following issue:

 

GENERALLY, OUTSIDE THE MILITARY JUSTICE SYSTEM, WITNESS ATTENDANTS MAY ACCOMPANY A CHILD ON THE WITNESS STAND IF THE PROSECUTION SHOWS GOOD CAUSE AND THE TRIAL JUDGE MAKES A FINDING OF COMPELLING OR SUBSTANTIAL NEED. HERE, WITHOUT GOOD CAUSE SHOWN AND WITHOUT FINDINGS OF COMPELLING OR SUBSTANTIAL NEED, THE MILITARY JUDGE ALLOWED A VICTIM ADVOCATE TO SERVE AS A WITNESS ATTENDANT FOR A SEVENTEEN-YEAR-OLD; THEN THE MILITARY JUDGE REFERRED TO THE WITNESS ATTENDANT AS THE COMPLAINANT'S "ADVOCATE" BEFORE THE MEMBERS. DID THIS PROCEDURE VIOLATE APPELLANT'S PRESUMPTION OF INNOCENCE AND RIGHT TO A FAIR TRIAL?

 

Briefs will be filed under Rule 25. Appellant's brief shall be filed within 20 days of the date of this order. Appellee's brief shall be filed within 20 days of the filing of Appellant's brief. Appellant may file a reply brief within 5 days of the filing of Appellee's brief.

 

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

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

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

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. 13-0302/AF. U.S. v. Christopher E. BECHTHOLD. CCA S31913.

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0359/AF. U.S. v. Nicholas E. JOHNSON. CCA 37970.

No. 13-0360/AF. U.S. v. Corey A.H. BOLIEAU. CCA 37836.

 

INTERLOCUTORY ORDERS

 

No. 12-0684/MC. U.S. v. Antonio M. CASTELLANO. CCA 201100248. On consideration of the motion 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 and that the new attorney has assumed the representation of said Appellant. Accordingly, it is ordered that said motion is hereby granted.

 

No. 13-0321/NA. U.S. v. Christopher R. MORGAN. CCA 201200141. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including March 27, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0356/AR. U.S. v. Antonio D. STEEL. CCA 20110649. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to April 10, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-126

Thursday, March 21, 2013

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0356/AR. U.S. v. Antonio D. STEEL. CCA 20110649.

No. 13-0357/AR. U.S. v. Bob L. WHITFIELD. CCA 20100774.

No. 13-0358/AR. U.S. v. Nicholas A. CASSATA. CCA 20120434.

 

MANDATES ISSUED

 

No. 12-5002/AF. U.S. v. Ray A. VAZQUEZ. CCA 37563.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-125

Wednesday, March 20, 2013

 

HEARINGS

 

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0353/AF. U.S. v. Laurence H. FINCH. CCA 38081.

No. 13-0354/AR. U.S. v. Blaine J. FRANKLIN. CCA 20100861.

No. 13-0355/AR. U.S. v. George D.L. STARR. CCA 20110908.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-124

Tuesday, March 19, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0452/AR. U.S. v. Raymond J. REYNARD. CCA 20100351.

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0349/AR. U.S. v. Mickey J. CAMPBELL. CCA 20100695.

No. 13-0350/AF. U.S. v. Melissa A. CORDERO. CCA 37828.

No. 13-0351/AF. U.S. v. Corey D. S. HERNANDEZ. CCA 37741.

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

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8029/AF. Nicholas E. DANIELS, Petitioner v. The United States and United States Air Force Court of Criminal Appeals, Respondents. On consideration of the petition for extraordinary relief in the nature of a writ of prohibition and the motion of the United States Army Defense Appellate Division to file an Amicus Curiae brief in support of the petition for extraordinary relief in the nature of a writ of prohibition, it is ordered that said motion is hereby granted, and that said petition is hereby denied without prejudice.

 

INTERLOCUTORY ORDERS

 

No. 11-0563/MC. U.S. v. Anthony J. SANDERS. CCA 201000522.

No. 13-0241/MC. U.S. v. Richard T. PEARCE. CCA 201100110.

 

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 the above named Appellants and that the new attorney has assumed the representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 13-0318/AR. U.S. v. Robert E. MCCLASKEY. CCA 20100853. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including March 28, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0345/AF. U.S. v. Robert M. PAYNE. CCA 37594. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to April 8, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-123

Monday, March 18, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

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

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0345/AF. U.S. v. Robert M. PAYNE. CCA 37594.

No. 13-0346/AF. U.S. v. Andrew T. PICKREL. CCA 380148.

No. 13-0347/AF. U.S. v. Yolanda HIGH. CCA 37777.

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

 

INTERLOCUTORY ORDERS

 

No. 13-5002/CG. U.S. v. Wilson MEDINA. CCA 1325. Appellee's motion to dismiss the certificate for review as unripe is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-122

Friday, March 15, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0245/AR. U.S. v. Michael A. DIAZ. CCA 20110763.

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

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0395/AR. U.S. v. Robert M. MEDEIROS. CCA 20081092.*

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8025/AR. Maurice K. ROBINS, Petitioner v. United States, Respondent. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus and Petitioner's motion for modification for writ of habeas corpus, it is ordered that said petition is hereby denied, and that said motion is hereby denied.

 

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. On consideration of Appellant's motion to suspend rules and motion to withdraw the writ-appeal petition as moot, it is ordered that said motion to withdraw the writ-appeal as moot is hereby granted, and that said motion to suspend rules is hereby denied as moot.

INTERLOCUTORY ORDERS

 

No. 11-0280/AR. U.S. v. Douglas K. WINCKELMANN. CCA 20070243. Appellant's motion to attach additional matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), is denied.

 

No. 12-0395/AR. U.S. v. Robert M. MEDEIROS. CCA 20081092. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to April 4, 2013.

 

No. 13-0313/AR. U.S. v. Michael W. PLEASANT, Jr. CCA 20100781. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including March 28, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

________________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-121

Thursday, March 14, 2013

 

APPEALS SUMMARY DISPOSITIONS

 

No. 13-0069/AF. U.S. v. Derek S. CONLEY. CCA S32023. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that there were only two conspiracies to steal and sell copper wire, not four. 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, Specification 1 of Charge I should be consolidated with Specification 3 of Charge I and Specification 2 of Charge I should be consolidated with Specification 4 of 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 granted on the following issue:

 

WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL DEFENSE COUNSEL FAILED TO MOVE TO DISMISS SPECIFICATIONS 1 AND 2 OF CHARGE I ON MULTIPLICITY GROUNDS, OR IN THE ALTERNATIVE, ON UNREASONABLE MULTIPLICATION OF CHARGES GROUNDS.

 

Specification 1 of Charge I is consolidated with Specification 3 of Charge I as follows:

 

In that Airman First Class Derek S. Conley, United States Air Force, 11th Civil Engineer Squadron, Joint Base Andrews, Maryland, did, at or near Joint Base Andrews, Maryland, between on or about 5 October 2011 and on or about 6 October 2011, conspire with Airman Cody L. Bornt to commit offenses under the Uniform Code of Military Justice, to wit: larceny and sale, without proper authority, of copper wire, of a value of more than $500.00, the property of the United States, and in order to effect the object of the conspiracy the said Airman First Class Derek S. Conley and Airman Cody L. Bornt did steal copper wire from the 11th Civil Engineer Squadron, strip the insulation from the copper wire, and wrongfully sell the copper wire.

 

Specification 2 of Charge I is consolidated with Specification 4 of Charge I as follows:

 

In that Airman First Class Derek S. Conley, United States Air Force, 11th Civil Engineer Squadron, Joint Base Andrews, Maryland, did, at or near Joint Base Andrews, Maryland, between on or about 1 August 2011 and on or about 6 October 2011, conspire with Airman First Class Caleb J. Urban and Airman Steven J. Umstattd to commit offenses under the Uniform Code of Military Justice, to wit: larceny and sale, without proper authority, of copper wire, of a value of more than $500.00, the property of the United States, and in order to effect the object of the conspiracy the said Airman First Class Derek S. Conley and Airman First Class Caleb J. Urban and Airman Steven J. Umstattd did steal copper wire from the 11th Civil Engineer Squadron, strip insulation from the copper wire, and wrongfully sell the copper wire.

 

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to Charge I and its two consolidated specifications, the remaining findings, and the sentence.

 

No. 13-0104/MC. U.S. v. Dustin D. KISH. CCA 201100404. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and Appellant's motion to supplement the record, it is ordered that the motion to supplement the record is granted and that said petition is granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. HERE, THE MILITARY JUDGE TOOK OVER THE DIRECT EXAMINATION OF A KEY WITNESS, MADE ERRATIC COMMENTS ON THE RECORD, ALLOWED MEMBERS TO CALL OUT QUESTIONS IN OPEN COURT, AND MADE COMMENTS AFTER TRIAL DEMONSTRATING HIS BIAS AGAINST ACCUSED GENERALLY. DID THE MILITARY JUDGE'S ACTIONS PUT INTO DOUBT THE FAIRNESS AND IMPARTIALITY OF STAFF SERGEANT KISH'S COURT-MARTIAL?

 

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the case is returned to the Judge Advocate General of the Navy for remand to an appropriate convening authority to order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to make findings of fact and conclusions of law related to what, if any, statements the military judge made on or about June 21, 2012, at a Professional Military Education meeting with junior officers regarding the practice of military justice. At the conclusion of the DuBay hearing, the record will be transmitted to the Court of Criminal Appeals for further review under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 866(c) (2006). Thereafter, Article 67, UCMJ, 10 U.S.C. 867 (2006), shall apply.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0196/MC. U.S. v. Brian P. HICKERSON. CCA 201100111. Review granted on the following issue:

 

AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO AN IMPARTIAL JUDGE. APPELLANT'S COURT-MARTIAL WAS PRESIDED OVER 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?

 

No briefs will be filed under Rule 25.

 

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

 

No briefs will be filed under Rule 25.

 

No. 13-0241/MC. U.S. v. Richard T. PEARCE. CCA 201100110. Review granted on the following additional issue:

 

AFTER APPELLANT'S COURT-MARTIAL, THE MILITARY JUDGE MADE EXTRA-JUDICIAL COMMENTS THAT CREATE THE APPEARANCE OF BIAS. DID THE MILITARY JUDGE'S COMMENTS DEPRIVE APPELLANT OF A FAIR AND IMPARTIAL COURT-MARTIAL?

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0189/NA. U.S. v. Edgardo F. PABON-BAEZ. CCA 201200218.

No. 13-0264/NA. U.S. v. Nathaniel R. HECKROTTE. CCA 201100611.

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. 13-0288/AF. U.S. v. Clifton H. ROBBINS. CCA 37753.

No. 13-6002/AR. U.S. v. Benjamin C. HILL. CCA 20120755.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0260/AR. U.S. v. Patrick A. FAUST. CCA 20090080.*

No. 13-0344/AF. U.S. v. Charles D. MOORE. CCA 37968.

 

MISCELLANEOUS DOCKET SUMMARY DISPOSITIONS

 

No. 13-8017/AF. In Re Matthew J. SOUSA. The petition for extraordinary relief in the nature of a writ of mandamus is denied without prejudice.

 

INTERLOCUTORY ORDERS

 

No. 13-0186/MC. U.S. v. Joseph B. SALYER. CCA 201200145. Appellant's motion to supplement the record is denied. The motion filed by the National Institute of Military Justice for leave to file a brief as Amicus Curiae is granted.

 

No. 13-0196/MC. U.S. v. Brian P. HICKERSON. CCA 201100111. Appellant's motion to attach documents is granted.

 

No. 13-6002/AR. U.S. v. Benjamin C. HILL. CCA 20120755. Appellant's motion for a stay of proceedings is denied as moot.

________________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-120

Wednesday, March 13, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0127/MC. U.S. v. Preston D. WALKER. CCA 201100463.

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0343/AR. U.S. v. Christopher L. BAXTER. CCA 20100487.

 

MISCELLANEOUS DOCKET FILINGS

 

Misc. No. 13-8029/AF. Nicholas E. DANIELS, Petitioner v. The United States and the United States Air Force Court of Criminal Appeals, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of prohibition was filed under Rule 27(a) this date.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-119

Tuesday, March 12, 2013

 

HEARINGS

 

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

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

 

INTERLOCUTORY ORDERS

 

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

No. 13-0061/AR. U.S. v. Ted C. SQUIRE. CCA 20091106.

No. 13-0096/AR. U.S. v. Maurice S. WILSON. CCA 20110146.

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

 

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 to perform judicial duties in the above-referenced cases, and that Senior Judge Cox has consented to perform judicial duties in said cases under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2006).




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-118

Monday, March 11, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0122/AR. U.S. v. Michael S. SPIESS. CCA 20100229.

No. 13-0252/AR. U.S. v. John A. GLASPIE. CCA 20110930.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0339/AF. U.S. v. Timothy B. HELMS. CCA S31963.

No. 13-0340/AF. U.S. v. Daniel S. CHIN. CCA S32046.

No. 13-0341/AF. U.S. v. Frank R. SMITH, Jr. CCA 37879.

No. 13-0342/AR. U.S. v. Johnny W. TAYLOR, Jr. CCA 20100322.

 

INTERLOCUTORY ORDERS

 

No. 13-0335/MC. U.S. v. Joel C. MILLER. CCA 201200184. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 27, 2013.

 

No. 13-0336/NA. U.S. v. Jason R. FROST. CCA 201200190. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 27, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-117

Friday, March 8, 2013

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0095/AR. U.S. v. Jeffrey W. SWARTZ. CCA 20091041. Review granted on the following issue:

 

WHETHER THE ARMY COURT ERRED WHEN IT FOUND THAT THE FAILURE TO PLEAD THE TERMINAL ELEMENTS IN APPELLANT'S CASE DID NOT RESULT IN MATERIAL PREJUDICE TO APPELLANT'S RIGHT TO NOTICE WHERE A DEFENSE PRETRIAL MOTION QUOTED THE TERMINAL ELEMENTS.

 

No briefs will be filed under Rule 25.

 

No. 13-0241/MC. U.S. v. Richard T. PEARCE. CCA 201100110. Review granted on the following issue:

 

IN MILLER v. CALIFORNIA, THE SUPREME COURT HELD THAT THE TRIER OF FACT MUST DETERMINE WHETHER JUDICIALLY-CREATED FACTORS THAT DISTINGUISH BETWEEN CONSTITUTIONALLY-PROTECTED AND CRIMINAL CONDUCT ARE SATISFIED. THE FACTORS IDENTIFIED IN UNITED STATES v. MARCUM ARE AN EXAMPLE OF SUCH FACTORS. BUT THE LOWER COURT HELD THAT THE MILITARY JUDGE MUST DETERMINE WHETHER THE MARCUM FACTORS ARE SATISFIED. WHO DETERMINES WHETHER THEY HAVE BEEN SATISFIED?

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0225/AR. U.S. v. Dennis G. WHEATON III. CCA 20110377.

No. 13-0232/AR. U.S. v. David A. MARTIN. CCA 20110061.

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

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0331/AF. U.S. v. Andrew L. KANE. CCA 37800.

No. 13-0332/MC. U.S. v. Chad J. BATCHELDER. CCA 201200180.

No. 13-0333/AR. U.S. v. Brandon D. JOHNSON. CCA 20110792.

No. 13-0334/AF. U.S. v. Joshua D. HALL. CCA 37700.

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

No. 13-0336/NA. U.S. v. Jason R. FROST. CCA 201200190.

No. 13-0337/AF. U.S. v. Emanuel R. WALKER. CCA 37865.

No. 13-0338/AF. U.S. v. Dalton S. DUGEN. CCA 37708.

 

INTERLOCUTORY ORDERS

 

No. 12-0313/MC. U.S. v. Andrew D. TEARMAN. CCA 201100195.

No. 12-0396/MC. U.S. v. Jason A. LUNSFORD, Jr. CCA 201100511.

No. 12-0450/MC. U.S. v. Jonathan M. KILARSKI. CCA 201100329.

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

 

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 new counsel to represent the above referenced Appellants and that new attorneys have assumed the representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 12-0693/AR. U.S. v. Bradley O. TEMPLE. CCA 20090883. Appellant's second motion to extend time to file the supplement granted, up to and including March 18, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0330/AF. U.S. v. Brock A. COOPER. CCA 37761. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 27, 2013.

 

No. 13-5001/AR. United States, Appellant and Cross-Appellee v. Nicholas R. SCHELL, Appellee and Cross-Appellant. On consideration of Appellee/Cross-Appellant's motion to file a corrected cover sheet, it is ordered that said motion is hereby granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-116

Thursday, March 7, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0221/AR. U.S. v. Rodney M. PAGE. CCA 20100450.

No. 13-0226/AR. U.S. v. Roger J. ALDRICH. CCA 20110626.

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

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719.

No. 13-0330/AF. U.S. v. Brock A. COOPER. CCA 37761.

 

INTERLOCUTORY ORDERS

 

No. 13-0273/AF. U.S. v. Christopher D. WALTERS. CCA 37873. On consideration of Appellant's second motion to extend time to file the supplement to the petition for grant of review and motion to remand, it is ordered that in view of the filing of the supplement on February 25, 2013, said motion to extend time to file the supplement is hereby denied as moot, and

that said motion to remand is hereby denied.

 

No. 13-0294/AR. U.S. v. Michael T. GLAD. CCA 20110066. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, up to and including March 25, 2013, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL. CCA 20120719. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 27, 2013.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-115

Tuesday, March 5, 2013

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 13-0261/MC. U.S. v. Nicholas M. LEPINSKI. CCA 201200337. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Navy-Marine Corps 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 reflect that Charge I is a violation of Article 81, UCMJ, and that Charge III is a violation of Article 112a, UCMJ. Further, it is noted that the decision of the United States Navy-Marine Corps Court of Criminal Appeals erroneously states that Appellant was sentenced on June 22, 2012, when he was actually sentenced on March 27, 2012.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 13-0261/MC. U.S. v. Nicholas M. LEPINSKI. CCA 201200337. [See also APPEALS SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0230/AF. U.S. v. Adam E. SERNA. CCA 37822.

No. 13-0266/AR. U.S. v. Christopher J. KESLER. CCA 20120586.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0325/AR. U.S. v. Franklin L.C. DUNN. CCA 20110388.

No. 13-0326/AR. U.S. v. Dustin R. BASSHAM. CCA 20120252.

No. 13-0327/AR. U.S. v. Anthony W. FLOYD. CCA 20120507.

No. 13-0328/AR. U.S. v. Darrius T. WILSON. CCA 20101034.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 13-8022/NA. Jeremy G. BOYER, Appellant v. Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, and United States, Appellees. On consideration of the writ-appeal petition, Appellant's motion to suspend Court Rules, and Appellee's motion to dismiss writ-appeal petition as moot, it is ordered that Appellee's motion to dismiss the writ-appeal petition as moot is hereby granted, that said writ-appeal petition is hereby dismissed as moot, and that said motion to suspend Court Rules is hereby denied as moot.

 

INTERLOCUTORY ORDERS

 

No. 13-0129/NA. U.S. v. Marcus R. SMITH. CCA 201100433. Appellee's motion to extend time to file a response to this Court's order granted to March 11, 2013.

 

No. 13-0186/MC. U.S. v. Joseph B. SALYER. CCA 201200145. On consideration of the motion filed by the National Institute of Military Justice for leave for Christopher Mathews and Kevin H. Hejmanowski to appear pro hac vice, it is ordered that said motion is hereby granted.

 

No. 13-0212/AR. U.S. v. Michael C. DEFEO. CCA 20110518. Appellant's motion to reconsider this Court's order issued January 29, 2013 is denied.

 

No. 13-0323/NA. U.S. v. Caitlin L. SMITH. CCA 201100594. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 25, 2013.

 

No. 13-6002/AR. U.S. v. Benjamin C. HILL. CCA 20120755. Appellee's motion to file Government's designation of portions of the record to be included in the joint appendix pursuant to Rule 24(f) is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-114

Monday, March 4, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 13-0136/AR. U.S. v. Jo E. LAW. CCA 20110614.

No. 13-0229/AR. U.S. v. James L. MALADY. CCA 20120005.

No. 13-0242/AR. U.S. v. Tyler R. SCHOMMER. CCA 20110989.

No. 13-0249/AR. U.S. v. Alan M. PALKA. CCA 20110774.

No. 13-0257/AR. U.S. v. Adrian GUTIERREZ. CCA 20111048.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 13-0322/AR. U.S. v. Juan J. ESTRADA. CCA 20120638.

No. 13-0323/NA. U.S. v. Caitlin L. SMITH. CCA 201100594.

No. 13-0324/AR. U.S. v. Drew D. PALMER. CCA 20110896.

 

MANDATES ISSUED

 

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

No. 12-0418/AF. U.S. v. Andrew P. HALPIN. CCA S31805.

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




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 13-113

Friday, March 1, 2013

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 12-0618/AF. U.S. v. Rudy A. BERTOLLI. CCA S31875.

No. 13-0258/AR. U.S. v. Derek G. STOKES. CCA 20110242.

No. 13-0259/MC. U.S. v. Aaron B. MORRIS. CCA 201100569.

No. 13-0262/AF. U.S. v. Luke A.G. ROSS. CCA S32053.

No. 13-0263/AF. U.S. v. Andrew M. FELIX. CCA 38130.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 12-0286/AF. U.S. v. Paul A. TITCOMBE. CCA 37618.

 

INTERLOCUTORY ORDERS

 

No. 13-0321/NA. U.S. v. Christopher R. MORGAN. CCA 201200141. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to March 20, 2013.



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