UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-237

Friday, August 29, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0604/NA. U.S. v. Donald J. MCALLISTER. CCA 201300086.

No. 14-0622/AR. U.S. v. Mickey B. KEEN. CCA 20130473.

No. 14-0647/AR. U.S. v. Jonathon H. CHAMBERS. CCA 20110324.

No. 14-0713/NA. U.S. v. Christopher GRIFFIN. CCA 201300227.

No. 14-0746/AR. U.S. v. Kenneth B. GREENWOOD. CCA 20120468.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0805/NA. U.S. v. Christopher JANUSKI. CCA 201300210.

No. 14-0806/AR. U.S. v. James H. TOBEY. CCA 20121059.

No. 14-0807/NA. U.S. v. Jonathan D. REDMON. CCA 201300077.

 

INTERLOCUTORY ORDERS

 

No. 14-0805/NA. U.S. v. Christopher JANUSKI. CCA 201300210. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 18, 2014.

 

 

ANNOUNCEMENT

 

BY THE CLERK OF THE COURT

 

OF THE CUMULATIVE SUMMARY OF

 

COURT WORKLOAD STATISTICS

 

FOR THE SEPTEMBER 2013 TERM OF COURT

 

 

I. CUMULATIVE PENDING SEPTEMBER 1, 2013

 

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

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

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

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

 

II. CUMULATIVE FILINGS

 

Master Docket . . . . . . . . . . . . . . . 101

Petition Docket . . . . . . . . . . . . . . 853

Miscellaneous Docket. . . . . . . . . . . . 22

TOTAL . . . . . . . . . . . . . . . . . 976

 

 

III. CUMULATIVE TERMINATIONS

 

Master Docket . . . . . . . . . . . . . . . 101

Petition Docket . . . . . . . . . . . . . . 816

Miscellaneous Docket. . . . . . . . . . . . 22

TOTAL . . . . . . . . . . . . . . . . . 939

 

 

IV. CUMULATIVE PENDING SEPTEMBER 1, 2014

 

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

Petition Docket . . . . . . . . . . . . . . 168

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

TOTAL . . . . . . . . . . . . . . . . . 197

 

 

V. CASES ON MASTER DOCKET CARRIED OVER TO THE

SEPTEMBER 2013 TERM OF COURT (28)

 

 

AWAITING ORAL ARGUMENT OR FINAL DISPOSITION (23)

(INCLUDES TRAILER CASES)

 

12-0501/AF - MCFADDEN

13-7001/AR - AKBAR

14-0033/AF - PEACOCK

14-0057/AF - JONES

14-0060/AF - GRAWEY

14-0125/AF - ANNIS

14-0138/AF - BURNS

14-0156/AF - JOHNSON

14-0157/AF - DIXON

14-0199/AF - PHILLIPS

14-0222/AF - TORRES

14-0283/AF PIOLUNEK

& 14-5006/AF

14-0289/AR - PETERS

14-0384/AF - HUEY

& 14-5009/AF

14-0453/AR - PIREN

14-0457/AR - CASTILLO

14-0491/AR - NEMETH

14-0505/AR - CARROLL

14-0558/AR - AMAYA

14-0619/AR - TWINAM

14-5008/AF KATSO

14-6009/MC VARGAS

14-6010/AF - BUFORD

 

AWAITING BRIEFS (5)

 

12-0616/AR - BENNITT

13-0522/AF - GUTIERREZ

14-0322/MC - GILBREATH

14-0415/AR - NEWTON

14-5007/AF - MORITA




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-236

Thursday, August 28, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0040/NA. U.S. v. Ethan S. SHORT. CCA 201200483. On further consideration of the granted issue, 73 M.J. 200 (C.A.A.F. 2014), and the briefs of the parties, and in view of United States v. Davenport, 73 M.J. 373 (C.A.A.F. 2014), we hold that the record of trial in this case contains a substantially verbatim transcript.

 

During Appellant's sentencing, an audio recording of the providence inquiry was played for the members. While the transcript of this portion of the proceedings did not include a verbatim transcript of the recorded providence inquiry, a verbatim transcript of the entire providence inquiry is included earlier in the record. Moreover, Appellant consented to the attachment to the record of an audio recording of the entire trial, which included the recording of the providence inquiry played for the members.

 

Thus, the substance of the omitted material can "be recalled with fidelity" because it is located elsewhere in the transcript in its entirety. See Davenport, 73 M.J. at ___. Consequently, the omission in this case is not substantial, and, therefore, the transcript here was verbatim. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

 

No. 14-0707/AR. U.S. v. Cortland A. REID. CCA 20130671. 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 granted and the decision of the United States Army Court of Criminal Appeals is affirmed.* (See also ORDERS GRANTING PETITION FOR REVIEW this date.)

 

* It is noted that the military judge neglected to seal the exhibits and transcript relative to a notice to offer evidence under M.R.E. 412. Accordingly, the Clerk is directed to seal the record at pages 85-97 and Appellate Exhibits XXXIX and XXX.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0505/AR. U.S. v. Martin L. CARROLL. CCA 20111158. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION BY ACCEPTING APPELLANT'S PLEA OF GUILTY TO DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ, AND THE RECORD DOES NOT REFLECT APPELLANT'S UNDERSTANDING THAT THE ORDER IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER'S OFFICE TO LIFT THE DUTY "ABOVE THE COMMON RUCK."

 

No briefs will be filed under Rule 25.

 

No. 14-0707/AR. U.S. v. Cortland A. REID. CCA 20130671. (See also APPEALS SUMMARY DISPOSITIONS this date.)

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0434/NA. U.S. v. Johnny R. RICHARDS. CCA 201300332.

No. 14-0504/AF. U.S. v. Juan J. BASABE. CCA 38277.

No. 14-0512/AF. U.S. v. Christopher B JAGASSAR. CCA 38228.

No. 14-0548/AF. U.S. v. Timothy M. MILLER. CCA 38211.

No. 14-0557/NA. U.S. v. Anil K. DUTTA. CCA 201300254.

No. 14-0598/AF. U.S. v. Kyle W. LIGHTNER. CCA 38253.

No. 14-0692/AR. U.S. v. Kevin E. MATHIS, Jr. CCA 20130337.

No. 14-0700/AR. U.S. v. Kyle E. NEITZKE. CCA 20120397.

No. 14-0702/AR. U.S. v. Phillip C. GRIFFITH. CCA 20140100.

No. 14-0733/AR. U.S. v. Timothy A. PAGE. CCA 20130465.

No. 14-0737/AR. U.S. v. Israel GARCIA. CCA 20130884.

No. 14-0742/AF. U.S. v. Grant C. BETTS. CCA 38432.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0802/AR. U.S. v. Steven A. HART. CCA 20140055.

No. 14-0803/AR. U.S. v. Adrian W. ANDREWS. CCA 20140187.

No. 14-0804/MC. U.S. v. Vidal E. SANCHEZ III. CCA 201400053.

 

INTERLOCUTORY ORDERS

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of the motion filed by Major Jacob D. Bashore for leave to withdraw as appellate defense counsel, and the motion to deny the motion to withdraw as appellate defense counsel, which this Court construes as an answer to said motion to withdraw as appellate defense counsel, it is ordered that said motion to withdraw as appellate defense counsel is hereby denied without prejudice to re-filing after oral argument or until Appellant declines to waive any appearance of conflict based on counsel's reassignment, which waiver should be sought immediately and submitted to the Court no later than September 15, 2014.

 

No. 14-0604/NA. U.S. v. Donald J. MCALLISTER. CCA 201300086. Appellant's motion for leave to submit ex parte filing denied, and Appellant's motion to seal ex parte filing denied as moot.

 

No. 14-0648/AR. U.S. v. Blake C. BAKER. CCA 20120420. Appellant's motion to substitute a corrected supplement to the petition for grant of review granted.

 

MANDATES ISSUED

 

No. 13-0536/AR. U.S. v. Jacob D. MOON. CCA 20120112.

No. 13-0573/AR. U.S. v. Calvin J. DAVENPORT. CCA 20081102.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-235

Wednesday, August 27, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0077/AR. U.S. v. Robert L. DAVIS, Jr. CCA 20120244.*

No. 14-0801/AR. U.S. v. John S. VLASIS II. CCA 20120897.

 

INTERLOCUTORY ORDERS

 

No. 14-5008/AF. United States, Appellant v. Joshua KATSO, Appellee. CCA 38005. On consideration of the motions filed by the Defense Forensic Center, United States Army Criminal Investigation Laboratory, to file an amicus curiae brief in support of Appellant and to extend time to file a proposed amicus curiae brief in support of Appellant, it is ordered that said motions are hereby granted. The brief of amicus curiae will be filed on or before September 10, 2014.

______________________________

 

* Second petition filed in this case.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-234

Tuesday, August 26, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0799/AR. U.S. v. Paul W. BOLT. CCA 20130505.

No. 14-0800/AR. U.S. v. Enos J. MILLER. CCA 20130576.

No. 14-6011/AR. U.S. v. Brandon S. WILSON. CCA 20140386.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-233

Monday, August 25, 2014

 

ORDERS GRANTING PETITION FOR REVIEW

 

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

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY RE-AFFIRMING APPELLANT'S APPROVED SENTENCE AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.

 

Briefs will be filed under Rule 25.

 

No. 14-0619/AR. U.S. v. Aaron J. TWINAM. CCA 20120384. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S PLEA WHEN HE IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF FAILURE TO OBEY AN ORDER OR REGULATION.

 

No briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0511/AF. U.S. v. Clayton A. BIEHUNKO. CCA S32117.

No. 14-0645/AR. U.S. v. Czechoslovak T. HICKS. CCA 20121172.

No. 14-0665/AR. U.S. v. John D. NAGEL. CCA 20121133.

No. 14-0668/AF. U.S. v. Christopher M. SANCHEZ. CCA S32144.

No. 14-0732/AR. U.S. v. Dakota J. BARFIELD. CCA 20130870.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0793/NA. U.S. v. Donnell T. EPPS. CCA 201300423.

No. 14-0794/MC. U.S. v. Tyler R. CIESLEWICZ. CCA 201300421.

No. 14-0795/MC. U.S. v. Phillip H. THAI. CCA 201400084.

No. 14-0796/NA. U.S. v. Trevin C. CUMMINGS. CCA 201400095.

No. 14-0797/AR. U.S. v. Theodore W. POLAND, Jr. CCA 20130532.

No. 14-0798/AF. U.S. v. Gary D. MOORE. CCA 38435.

 

INTERLOCUTORY ORDERS

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of the joint motion to file out of time a response to the Court's order to submit a digital version of the joint appendix, it is ordered that said motion is hereby granted.

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of the joint motion to amend the joint motion for oral argument, it is ordered that said motion is hereby granted.

 

No. 14-0166/AF. U.S. v. Brittany N. OLSON. CCA S32034. On consideration of Appellant's motion to supplement the record and motion to file supplemental issue, it is ordered that said motions are hereby denied.

 

No. 14-0434/NA. U.S. v. Johnny R. RICHARDS. CCA 201300332. On consideration of Appellant's third motion to extend time to file the supplement to the petition for grant of review, and motion to file the supplement to the petition for grant of review out of time, it is ordered that said motion to file the supplement to the petition for grant of review out of time is hereby granted, and that said third motion to extend time to file the supplement to the petition for grant of review is hereby denied as moot.

 

No. 14-0794/MC. U.S. v. Tyler R. CIESLEWICZ. CCA 201300421. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 15, 2014.

 

No. 14-0795/MC. U.S. v. Phillip H. THAI. CCA 201400084. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 15, 2014.

 

NOTICES

 

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499. In view of Judge Ohlson's recusal in the above-referenced case, 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 case, and that Senior Judge Cox 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).




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-232

Friday, August 22, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0791/AR. U.S. v. Lester M. ENCALADE, Jr. CCA 20120642.

No. 14-0792/AR. U.S. v. Collin J. CARTER. CCA 20121046.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-231

Thursday, August 21, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0447/AR. U.S. v. Stephen C. PANTOJA. CCA 20120030.

No. 14-0714/AR. U.S. v. Shaun P. KUHN. CCA 20120098.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0789/AR. U.S. v. Eric T. RYANT. CCA 20120204.

No. 14-0790/AR. U.S. v. Adam P. DYER. CCA 20140122.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-230

Wednesday, August 20, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0411/AF. U.S. v. Joseph W. YANEZ.  CCA 38181.  On further consideration of the granted issue, 73 M.J. ___ (C.A.A.F. June 12, 2014), and the briefs filed by the parties, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0456/MC. U.S. v. Alex J. DURAN. CCA 201200440.

No. 14-0489/AR. U.S. v. O'Neil G. DAVIDSON. CCA 20120103.

No. 14-0514/AF. U.S. v. Holly M. DICKINSON. CCA S32134.

No. 14-0536/NA. U.S. v. Griffin J. CHRASTINA. CCA 201200464.

No. 14-0639/AF. U.S. v. Corey K. HUDGINS. CCA 38305.

No. 14-0721/AR. U.S. v. Allison SOMERSET. CCA 20110220.

No. 14-0722/AR. U.S. v. Danny W. NELSON. CCA 20130483.

No. 14-0723/AR. U.S. v. Christopher R. MEIERHOLTZ. CCA 20121177.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0787/AR. U.S. v. Daniel ROJAS. CCA 20130701.

No. 14-0788/AR. U.S. v. John W. BRINSON, Jr. CCA 20120887.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-229

Tuesday, August 19, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0785/AR. U.S. v. Richard S. BJORLING. CCA 20120832.

No. 14-0786/AR. U.S. v. Larry A. FRANCISCO. CCA 20140208.

 

INTERLOCUTORY ORDERS

 

No. 14-0773/AF. U.S. v. Jeremiah L. THOMPSON III. CCA 38269. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 4, 2014.

 

No. 14-0777/MC. U.S. v. Bryan S. LACOUNT. CCA 201300259. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 8, 2014.

 

No. 14-0783/NA. U.S. v. Marshand A. WOODS. CCA 201300153. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 8, 2014.

 

No. 14-0784/NA. U.S. v. Anthony L. EVANS. CCA 201300174. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 8, 2014.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-228

Monday, August 18, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0774/AF. U.S. v. Christopher J. KLEIN. CCA 38273.

No. 14-0775/AF. U.S. v. Michael J. ROCHE. CCA 38266.

No. 14-0776/AF. U.S. v. Neil C. MACDONALD. CCA 38491.

No. 14-0777/MC. U.S. v. Bryan S. LACOUNT. CCA 201300259.

No. 14-0778/NA. U.S. v. Jeremy R. GREEN. CCA 201300276.

No. 14-0779/AR. U.S. v. Travis R. PRICE. CCA 20130161.

No. 14-0780/AR. U.S. v. Steven D. WILLIAMS. CCA 20120375.

No. 14-0781/AR. U.S. v. Tyler A. MCINTOSH. CCA 20120780.

No. 14-0782/AR. U.S. v. Mason D. DIVINE. CCA 20120962.

No. 14-0783/NA. U.S. v. Marshand A. WOODS. CCA 201300153.

No. 14-0784/NA. U.S. v. Anthony L. EVANS. CCA 201300174.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-227

Friday, August 15, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0772/AR. U.S. v. Robert J. MURRILO. CCA 20130245.

No. 14-0773/AF. U.S. v. Jeremiah L. THOMPSON III. CCA 38269.

 

INTERLOCUTORY ORDERS

 

No. 14-0515/AF. U.S. v. William C. GURNEY. CCA 37905. On consideration of Appellant's motion for reconsideration, which this Court construed as a petition for reconsideration, it is ordered that said petition for reconsideration is hereby denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No.14-226

Thursday, August 14, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0771/AR. U.S. v. Michael D. TYREE. CCA 20130034.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-225

Wednesday, August 13, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0770/AR. U.S. v. Gabriel A. PARRA, Sr. CCA 20110920.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-224

Tuesday, August 12, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0522/AR. U.S. v. Rudy A. VILLASANA. CCA 20120249.

No. 14-0602/AR. U.S. v. Maurice BARNES. CCA 20130613.

No. 14-0708/AR. U.S. v. Robert A. WOODYARD. CCA 20130020.

No. 14-0709/AF. U.S. v. Christopher L. AHN. CCA 38217.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0768/AR. U.S. v. Jeffery R. KUNTZ. CCA 20130555.

No. 14-0769/AF. U.S. v. Kwinton K. ESTACIO. CCA 38256.

 

INTERLOCUTORY ORDERS

 

No. 14-0764/AF. U.S. v. Michael L. MITCHELL. CCA 38254. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 2, 2014.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No.14-223

Monday, August 11, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0493/AR. U.S. v. William J. GRIMES. CCA 20100720.

No. 14-0539/CG. U.S. v. Brandon M. CORRAL. CCA 1373.

No. 14-0701/AF. U.S. v. Jesse L. GIERKE. CCA 38439.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0764/AF. U.S. v. Michael L. MITCHELL. CCA 38254.

No. 14-0765/AR. U.S. v. Marvin L. MAYBERRY. CCA 20110486.

No. 14-0766/AR. U.S. v. Jesse M. ANDERSON. CCA 20130439.

No. 14-0767/AR. U.S. v. Brian A. MURPHY. CCA 20120556.

 

MANDATES ISSUED

 

No. 14-0265/CG. U.S. v. Jaason LEAHR. CCA 1365.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-222

Friday, August 8, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0261/AR. U.S. v. Elliot M. CARRASQUILLO. CCA 20110719. On further consideration of the granted issue, 73 M.J. 288 (C.A.A.F. 2014), and in view of United States v. Jones, 73 M.J. 357 (C.A.A.F. 2014), we conclude that in light of the facts and circumstances of this case, the military judge did not err in concluding that SPC Ellis was not acting, and could not reasonably be considered by Appellant to be acting, in an official law enforcement or disciplinary capacity in questioning Appellant, and the military judge did not abuse his discretion when he denied the defense's motion to suppress Appellant's statement. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

No. 14-5005/AF. United States, Appellant v. Todd E. MCDOWELL, Appellee, Christopher A. DEMARIO, Real Party In Interest. CCA 2013-28. On consideration of the issues certified by the Judge Advocate General of the Air Force, 73 M.J. 287 (C.A.A.F. 2014), the briefs of the parties and of the amici curiae, the motions of Protect Our Defenders and the alleged victim for leave to file amicus curiae briefs and make oral argument in support of Appellant, and the motions of the Real Party in Interest and Appellant to supplement the record, we conclude that the United States Air Force Court of Criminal Appeals did not err in denying Appellant's petition for extraordinary relief. Accordingly, it is ordered that the motions of Protect Our Defenders and the alleged victim to file amicus curiae briefs are hereby granted, that the motions of the Real Party in Interest and Appellant to supplement the record are hereby granted, that the motions of Protect Our Defenders and the alleged victim to make oral argument are hereby denied as moot, that the certified issues are answered in the negative, and the decision of the Court of Criminal Appeals is hereby affirmed.

 

* BAKER, Chief Judge (concurring):

 

I agree with the reasoning of the Court of Criminal Appeals as to why the military judge did not abuse his discretion in this case as well as its reasons for not granting a writ of mandamus. A writ of mandamus is limited to "the exceptional case where there is clear abuse of discretion or 'usurpation of judicial power.'" Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953). Neither is present in this case. However, given the importance of the issues raised to military justice, including to the alleged victim, to the Government, and to the accused, I believe it important to state on the record my concurrence with the military judge and the lower court. I also do so to highlight the sui generis nature of this case.

 

Background

 

As summarized in the lower court's order, a single charge and specification were preferred against the accused alleging the rape of BB, a 16-year-old female acquaintance. On the day prior to the Article 32, UCMJ,1 investigation, defense counsel interviewed the alleged victim for three hours. At the hearing, defense counsel informed the investigating officer that they had not been able to complete their interview of the alleged victim the previous day. To accommodate the defense the investigating officer allowed more expansive questioning of the alleged victim "that would normally have been covered during a pretrial interview." After more than two hours on the stand answering the defense questions, it appeared to the investigating officer that the alleged victim was becoming upset with the nature of the questions. At this point the investigating officer informed the alleged victim that she was not obligated to continue her appearance at the hearing and that she was free to leave, and she departed. At the point the witness's testimony terminated, defense counsel had just begun questioning her relating to the events on the day of the alleged act. Up to that point, counsel had been questioning her on her interactions with the accused leading up to the day of the alleged rape.

 

Later, at a pretrial Article 39(a), UCMJ,2 session, the defense moved to depose the alleged victim asserting they had had insufficient opportunity to interview her or to cross-examine her at the Article 32 investigation. The military judge concluded, "due to the exceptional circumstances of this case, it is in the interest of justice that the testimony of [the witness] be taken and preserved." He then granted the motion to depose the witness and ordered the convening authority to reopen the Article 32 investigation to allow the investigating officer to consider the deposition once it was taken. The Government filed a Petition for Extraordinary Relief with the Court of Criminal Appeals seeking a writ of mandamus against the military judge. Relief, however, was denied.

 

A writ of mandamus is a writ this court may issue under the authority of the All Writs Act, 28 U.S.C. 1651(a) (2006). However, "[t]o justify reversal of a discretionary decision by mandamus, the judicial decision must amount to more than even 'gross error'; it must amount 'to a judicial usurpation of power' or be 'characteristic of an erroneous practice which is likely to recur.'" Murray v. Haldeman, 16 M.J. 74, 76 (C.M.A. 1983)(internal citations omitted).

 

Discussion

 

At the time of the military judge's ruling, Article 49(a), UCMJ,3 provided the accused a statutory right to "take oral or written depositions unless the military judge . . . forbids it for good cause." Moreover, as a general matter, an accused has a due process right to interview witnesses in order to prepare a defense. Consistent with these principles, "A request for a deposition may be denied only for good cause." Rule for Courts-Martial (R.C.M.) 702(c)(3)(A). "The fact that a witness is or will be available for trial is good cause for denial in the absence of unusual circumstances . . . ." R.C.M. 702(a)(3)(A) Discussion. However, if there are unusual circumstances, such as the "unavailability of an essential witness at an Article 32 hearing," there is no good cause to deny the deposition. Id.

Three factors make this case both sui generis and place it beyond easy characterization. First, the witness BB was available for trial. She was also interviewed prior to trial and cross-examined during the Article 32 investigation. However, at the same time, and as noted by the military judge and the Court of Criminal Appeals, BB's pretrial interview was terminated before the defense had concluded its questioning, and her cross-examination testimony at the Article 32 investigation was curtailed before the incident in question was addressed.

 

Second, in the context presented, the military judge placed limits on the deposition. The military judge's order permits BB's attorney to attend the deposition, including those portions relating to matters covered by Military Rule of Evidence (M.R.E.) 412, thus allowing BB to exercise any privileges, including her privilege under M.R.E 513 to refuse to disclose confidential communications between her and her psychotherapist. See R.C.M. 405(i). In addition, the military judge's order provides additional protection by requiring the defense to provide notice and by authorizing the deposition officer to take reasonable and necessary measures if issues under M.R.E. 412 arise.

 

These safeguards were in addition to the existing rules and tools already available to the military judge to regulate the proper conduct of depositions. For instance, under R.C.M. 702(f)(3), the deposition officer is charged with protecting witnesses from "annoyance, embarrassment, or oppression." Also, under R.C.M. 702(g)(1)(B), "The scope and manner of examination and cross-examination shall be such as would be allowed in the trial itself." Thus, it would appear that the military judge, who was in the best position to observe the witness and was most able to assess the circumstances surrounding the issue of the witness's expected testimony in this case, exercised discretion that was within the ambit of his authority.

 

Third, while Article 32 has been amended, the impact of this provision on military practice is not at issue in this case. As the Court of Criminal Appeals noted: "Defense counsel may or may not have greater occasion to request depositions of alleged victims after this legislation takes effect, but such requests will be based on different factual predicates than the situation in this case." Under Article 6b, UCMJ,4 victims have the right not to be excluded from, and the right to be heard at any hearing convened pursuant to Article 32. Although this provision of the UCMJ took effect after the Article 32 investigation in this case, it is an example of a continuing trend toward affording alleged crime victims protections throughout the criminal justice process, particularly in sexual assault cases. As the lower court pointed out, further changes are on the horizon. The coming changes to Article 32 itself will expressly state that no victim will be required to testify at an Article 32 hearing.5 Moreover, the fact of the matter is that in this case the alleged victim was a civilian who could not have been compelled to appear, or continue her appearance, at the Article 32 hearing in the first place. See R.C.M. 405(g)(2)(B) Discussion. Thus, how Article 6(b) and the new Article 32 interplay with an accused's rights is not addressed in this case and must be resolved in future contexts.

 

As a result, I concur with the Court's resolution of the relevant motions in the case and the Court's disposition of the certified issues.

_______________________

 

1 Uniform Code of Military Justice (UCMJ), 10 U.S.C. 832 (2006).

2 10 U.S.C. 839(a) (2006).

3 10 U.S.C. 849 (2006).

4 10 U.S.C. 806b (2013).

5 113-66, FY 2014 National Defense Authorization Act, 1702(a).

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0762/AR. U.S. v. Kevin S. HOSKINS. CCA 20130451.

No. 14-0763/AR. U.S. v. Prescott A. AIKEN. CCA 20120705.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-221

Thursday, August 7, 2014

 

MANDATES ISSUED

 

No. 14-0071/AR. U.S. v. Travis D. JONES. CCA 20110679.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-220

Wednesday, August 6, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0760/AR. U.S. v. Logan M. STYFF. CCA 20110889.

No. 14-0761/AR. U.S. v. Shelton A. HUNT. CCA 20111081.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-219

Tuesday, August 5, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0401/NA. U.S. v. Richard M. PAYNE. CCA 201200477.

No. 14-0518/AR. U.S. v. Justin A.J. FREY. CCA 20120227.

No. 14-0688/AF. U.S. v. Christian R. MANN. CCA 38444.

No. 14-0693/AR. U.S. v. Michael A. KUBIC. CCA 20130748.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0755/AR. U.S. v. Brandon H. YATES. CCA 20130408.

No. 14-0756/AR. U.S. v. Christopher W. BROWNE. CCA 20130252.

No. 14-0757/AR. U.S. v. Christian J. FOGLE. CCA 20131089.

No. 14-0758/AR. U.S. v. Daniel L. TUCKER. CCA 20130396.

No. 14-0759/AR. U.S. v. Ralph LAKE, Jr. CCA 20130519.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-218

Monday, August 4, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0048/AR. U.S. v. Jason C. WAGNER. CCA 20111064. Upon further consideration of the granted issue (73 M.J. 283-84 (C.A.A.F. 2014)), it is ordered that the decision of the United States Army Court of Criminal Appeals is hereby affirmed.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0754/AF. U.S. v. Kirkland C. NETTLES. CCA 38336.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 14-8020/AF. Jerome C. POWERS, Appellant v. United States, Appellee. CCA 38205. On consideration of the writ-appeal petition, it is ordered that said petition is hereby denied.

 

Misc. No. 14-8021/AF. U.S. v. Brian C. KATES. CCA S32018. On consideration of the writ-appeal petition, it is ordered that said petition is hereby denied.

 

Misc. No. 14-8022/AF. Michael J. ROY, Appellant v. United States, Appellee. CCA 38089. On consideration of the writ-appeal petition, it is ordered that said petition is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 14-0289/AR. U.S. v. Jordan M. PETERS. CCA 20110057. Appellee's motion for leave to file a supplemental joint appendix is hereby granted.

 

MANDATES ISSUED

 

No. 14-0280/AR. U.S. v. Michael L. TREAT. CCA 20110402.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-217

Friday, August 1, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0461/AR. U.S. v. Steven M. CHAPMAN. CCA 20120740.

No. 14-0474/AR. U.S. v. Errol V. SCOTT. CCA 20111082.

No. 14-0498/AR. U.S. v. Christopher L. BERGSTROM. CCA 20120692.

No. 14-0510/AR. U.S. v. Michael A. TORRES. CCA 20130474.

No. 14-0640/AR. U.S. v. Sean B. ADAMS. CCA 20120665.

No. 14-0655/AR. U.S. v. Shawn C. KNIGHT. CCA 20121131.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0752/AR. U.S. v. Cecilia J. TALLMAN. CCA 20111005.

No. 14-0753/AR. U.S. v. Brandon B. WARD. CCA 20120681.

 

PETITIONS FOR NEW TRIAL - FILINGS

 

No. 14-0712/AR. U.S. v. Annzala L. PITT. CCA 20120842. Notice is hereby given that a petition for new trial and supporting brief were filed under Rule 29 on this date. Appellee will file an answer under Rule 29(c) on or before September 2, 2014.

 

INTERLOCUTORY ORDERS

 

No. 14-0679/AF. U.S. v. Charles L. ALLEN. CCA 38159. On consideration of the motion filed by Protect Our Defenders to extend time to file a motion and proposed brief of Amicus Curiae concerning Appellant's petition for grant of review, it is ordered that said motion is hereby granted to August 7, 2014.

 

MANDATES ISSUED

 

No. 14-0012/AF. U.S. v. Nicholas R. ELESPURU. CCA 38055.



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