UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-195

Monday, June 30, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0127/AF. U.S. v. John I. RODRIGUEZ. CCA 38080.

No. 14-0371/AF. U.S. v. Larry M. PALMER III. CCA 38184.

No. 14-0523/AR. U.S. v. Sheldon R. LYNCH. CCA 20110827.

No. 14-0575/AR. U.S. v. Tammi L. SMITH. CCA 20120656.

No. 14-0608/AR. U.S. v. Sebastian P. FLORES. CCA 20130180.

No. 14-0620/AR. U.S. v. Dewade E. WILSON. CCA 20120908.

 

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

 

No. 14-0646/AR. U.S. v. Craig E. JOSEPH. CCA 20130089. Regarding the petition for grant of review filed personally by the Appellant under the name of Joseph E. Craig on June 4, 2014, under Article 67(a), UCMJ, 10 U.S.C. 867(a), which was docketed under Docket Number 14-0646/AR, and it now appearing that said petition is in fact a duplicate petition for grant of review of the decision of the United States Army Court of Criminal Appeals, earlier filed by appellate defense counsel under Docket Number 14-0588/AR, the original docket number in this case, with the correct name of Craig E. Joseph, it is ordered that Docket Number 14-0588/AR be immediately assigned to this case, that Docket Number 14-0646/AR issued on June 4, be rescinded in this case and not reassigned to another case, and the petition for grant of review for the case in Docket Number 14-0588/AR was denied on June 25, 2014, __ M.J. __ (C.A.A.F. Daily Journal June 25, 2014).

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0681/MC. U.S. v. Dauthard S. MASON. CCA 201300154.

No. 14-0682/AR. U.S. v. Jeremy N. MORLOCK. CCA 20110230.

No. 14-0683/AR. U.S. v. Keith J. HIGGINS. CCA 20110664.

 

INTERLOCUTORY ORDERS

 

No. 14-0453/AR. U.S. v. James S. PIREN. CCA 20110416. Appellant's motion to extend time to file a brief granted, up to and including July 14, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

No. 14-0594/NA. U.S. v. Niclous P. HOWARD. CCA 201300289.

No. 14-0615/MC. U.S. v. Xavier E. RAMIREZ-EMPUNO. CCA 201300190.

 

On consideration of the motions filed by Lieutenant Jared A. Hernandez for leave to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned other counsel to represent Appellants and the new counsel have assumed the representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 14-0678/NA. U.S. v. Richard B. FREEMAN III. CCA 201300102. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 17, 2014.

 

No. 14-0679/AF. U.S. v. Charles L. ALLEN. CCA 38159. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 17, 2014.

 

No. 14-0681/MC. U.S. v. Dauthard S. MASON. CCA 201300154. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 21, 2014.

 

No. 14-0682/AR. U.S. v. Jeremy N. MORLOCK. CCA 20110230. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 18, 2014.

 

MANDATES ISSUED

 

No. 14-0158/AF. U.S. v. Candice N. CIMBALL SHARPTON. CCA 38027.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-194

Friday, June 27, 2014

 

APPEALS-SUMMARY DISPOSITIONS

 

No. 13-0531/AF. U.S. v. Matthew B. ALBRIGHT. CCA 37961. Upon further consideration of the granted issue, 73 M.J. 193 (C.A.A.F. Jan. 2, 2014), and in light of United States v. Janssen, 73 M.J. 221 (C.A.A.F. 2014), it is ordered that thedecision of the United States Air Force Court of Criminal Appeals is reversed. The record is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012), before a properly constituted panel of that court.

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028. Upon further consideration of the granted issue, 73 M.J. 138 (C.A.A.F. Dec. 23, 2013), it is ordered that said petition is hereby granted on the following issue:

 

WHETHER THE DE FACTO OFFICER DOCTRINE CONFERRED VALIDITY UPON JUDGE SOYBEL'S PARTICIPATION IN THE AIR FORCE COURT OF CRIMINAL APPEALS' DECISION IN APPELLANT'S CASE. SEE RYDER v. UNITED STATES, 515 U.S. 177, 182-84 (1995); NGUYEN v. UNITED STATES, 539 U.S. 69, 72-73 (2003); UNITED STATES v. AMERICAN-FOREIGN S.S. CORP., 363 U.S. 685 (1960); AYSHIRE COLLIERIES CORP. v. UNITED STATES, 331 U.S. 132 (1947); NORTON v. SHELBY COUNTY, 118 U.S. 425, 446 (1886); UNITED STATES v. JANSSEN, 73 M.J. 221 (C.A.A.F. 2014); UNITED STATES v. ELLIOTT, 15 M.J. 347 (C.M.A. 1983).

 

Briefs will be filed under Rule 25.

 

No. 14-0322/MC. U.S. v. Matthew A. GILBREATH. CCA 201200427. Review granted on the following issues:

 

I. WHETHER INDIVIDUAL READY RESERVISTS, SUBJECT TO PUNISHMENT UNDER THE UCMJ, ARE ENTITLED TO THE PROTECTIONS OF ARTICLE 31(b) WHEN QUESTIONED BY SENIOR SERVICE MEMBERS ABOUT SUSPECTED MISCONDUCT COMMITTED ON ACTIVE DUTY.

 

II. WHETHER THE MILITARY JUDGE ERRED IN CONCLUDING THAT APPELLANT'S STATEMENTS WERE ADMISSIBLE UNDER ARTICLE 31(b), UCMJ, AND MILITARY RULE OF EVIDENCE 305.

 

Briefs will be filed under Rule 25.

 

No. 14-0415/AR. U.S. v. William E. NEWTON, Jr. CCA 20110499. Review granted on the following issue:

 

WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA), 18 U.S.C. SECTION 2250(a) (2006), APPLIED TO APPELLANT AS A RESULT OF EITHER THE ATTORNEY GENERAL'S 2007 INTERIM RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v. LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v. REYNOLDS, 710 F.3d 498 (3d Cir. 2013.)

 

Briefs will be filed under Rule 25.*


* Judge Ohlson has recused himself from participation in this case.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0678/NA. U.S. v. Richard B. FREEMAN III. CCA 201300102.

No. 14-0679/AF. U.S. v. Charles L. ALLEN. CCA 38159.

No. 14-0680/AR. U.S. v. Aaron W. BRITAIN. CCA 20130921.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-193

Thursday, June 26, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0404/AR. U.S. v. Robert D. GEORGE. CCA 20120152.

No. 14-0431/AR. U.S. v. Robert C. SMITH. CCA 20120793.

No. 14-0478/AR. U.S. v. Michael A. ANTWI. CCA 20110112.

No. 14-0485/AR. U.S. v. Dakota M. WOLF. CCA 20120385.

No. 14-0531/AF. U.S. v. William J. SIGO. CCA 38268.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0677/AR. U.S. v. Daniel I. ENRIQUEZ. CCA 20110921.

 

INTERLOCUTORY ORDERS

 

No. 14-0033/AF. U.S. v. Anthony L.W. PEACOCK. CCA 38043.

No. 14-0057/AF. U.S. v. William R. JONES. CCA 38028.

No. 14-0138/AF. U.S. v. Danny M. BURNS. CCA 37847.

 

On consideration of the motions filed by Major Zaven T. Saroyan for leave to withdraw as appellate defense counsel in the above cases, it appears that the Judge Advocate General has assigned other counsel to represent the Appellants and the new counsel have assumed the representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 14-0361/AF. U.S. v. Donald R. SWIGER, Jr. CCA 38231. On consideration of Appellant's motion for leave to file a motion for reconsideration out of time, it is ordered that said motion is hereby denied.

 

No. 14-0371/AF. U.S. v. Larry M. PALMER III. CCA 38184. Appellant's motion to attach documents is granted.

 

No. 14-0505/AR. U.S. v. Martin L. CARROLL. CCA 20111158. On consideration of Appellee's motion to file a ten-day letter out of time, and that the filing of said ten-day letter was timely (Rule 34(a), Rules of Practice and Procedure), it is ordered that said motion is hereby denied.

 

No. 14-0672/NA. U.S. v. Gerald O. HENDERSON. CCA 201300149. Appellant's motion to extend time to file to supplement to the petition for grant of review granted to July 14, 2014.

 

No. 14-0673/AR. U.S. v. Christopher L. MOYERS. CCA 20110975. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 14, 2014.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-192

Wednesday, June 25, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0425/AR. U.S. v. Richard MARTINEZ, Jr. CCA 20110570.

No. 14-0445/AF. U.S. v. Tito E. MATOS, Jr. CCA S32107.

No. 14-0466/AR. U.S. v. Jeffery L. LECLAIR. CCA 20120082.

No. 14-0588/AR. U.S. v. Craig E. JOSEPH. CCA 20130089.

No. 14-0592/AR. U.S. v. Cleveland J. LEWIS. CCA 20110350.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0675/AR. U.S. v. Erica L. HURTS. CCA 20120301.

No. 14-0676/AR. U.S. v. Christopher M. SAULSBERRY. CCA 20120132.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-191

Tuesday, June 24, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0433/AR. U.S. v. Lawrence J. BRUCE. CCA 20121063.

No. 14-0441/AR. U.S. v. Michael T. MCMAHON. CCA 20120505.

No. 14-0549/AF. U.S. v. David P. ZARE. CCA 38374.

No. 14-0601/AR. U.S. v. Bryan A. HENRIQUEZ. CCA 20130272.

No. 14-0607/AR. U.S. v. Jonathan A. SANTIAGO. CCA 20121162.

No. 14-0610/AR. U.S. v. Ira N. MIDDLETON. CCA 20130809.

No. 14-0612/AF. U.S. v. Christopher A. EVANS. CCA S32154.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0672/NA. U.S. v. Gerald O. HENDERSON. CCA 201300149.

No. 14-0673/AR. U.S. v. Christopher L. MOYERS. CCA 20110975.

No. 14-0674/AR. U.S. v. Estaquio V. MAGALLENES. CCA 20130286.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-190

Monday, June 23, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0603/AR. U.S. v. Ryan R. MCINTYRE. CCA 20130374. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.* [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

*The military judge merged Specifications 1 and 2 of Charge I and convicted Appellant of the offense of conspiracy to steal and sell fuel, military property of the United States. The new specification is found at Appellate Exhibit V. However, the court-martial promulgating order omitted the words, "and selling of fuel" from Appellate Exhibit V. Accordingly, we direct that the court-martial promulgating order be corrected by adding the words "and selling of fuel" after the words, "larceny of fuel."

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0603/AR. U.S. v. Ryan R. MCINTYRE. CCA 20130374. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0096/AF. U.S. v. Travis W. PRICE. CCA 38045.

No. 14-0667/AF. U.S. v. Michael BURL. CCA 38433.

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

No. 14-0669/AF. U.S. v. Cree A. DENNIS. CCA S32151.

No. 14-0670/AR. U.S. v. Jesus D. CORTEZ. CCA 20130675.

No. 14-0671/AR. U.S. v. Hammie RAGIN, Jr. CCA 20121084.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-189

Thursday, June 19, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0392/CG. U.S. v. Benjamin J. RUSSELL. CCA 1368.

No. 14-0582/AR. U.S. v. Sean P. MCKENDRICK. CCA 20120351.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

No. 14-0666/AR. U.S. v. Gerald N. BUSS, Jr. CCA 20121169.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-188

Wednesday, June 18, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0458/AF. U.S. v. Nicholas S. LAFOLLETTE. CCA 38174.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0663/AR. U.S. v. Lynch MYERS. CCA 20130364.

No. 14-0664/AR. U.S. v. William M. BISHOP. CCA 20130578.

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 14-8019/MC. Lawrence G. HUTCHINS III, Appellant v. Michael B. RICHARDSON, Colonel, United States Marine Corps, In his official capacity as Military Judge, and United States, Appellees. CCA 200800393. On consideration of the writ-appeal petition, the motion for stay, and the motion for leave to add Appellee, it is ordered that said petition is hereby denied without prejudice to Appellant's right to raise the issues asserted during the course of normal appellate review, and the motion for stay and motion for leave to add Appellee are denied as moot.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-187

Tuesday, June 17, 2014

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0491/AR. U.S. v. Jacob T. NEMETH. CCA 20120653. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S PLEA OF GUILT 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.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0341/AR. U.S. v. Joshua K. BASS. CCA 20130546.

No. 14-0358/AF. U.S. v. Jonathan K. ROWELL. CCA S31991.

No. 14-0405/MC. U.S. v. Benjamin D. MORRIS. CCA 201300269.

No. 14-0428/AR. U.S. v. Samuel A. MEIXUEIRO. CCA 20120492.

No. 14-0500/AR. U.S. v. Adrienne V. TAUAESE. CCA 20120176.

No. 14-0503/AR. U.S. v. Adam R. DEROSIER. CCA 20120733.

No. 14-0516/AR. U.S. v. Colby R. ADAMS. CCA 20111009.

No. 14-0541/AR. U.S. v. Cory E. PIPAL. CCA 20130220.

No. 14-0571/AR. U.S. v. Richard D. JENKINS. CCA 20111134.

No. 14-0573/AR. U.S. v. Ronald W. GEARY, Jr. CCA 20130024.

No. 14-0595/AF. U.S. v. Joshua L. PYFFER. CCA 38411.

No. 14-0597/AR. U.S. v. Luis M. SERRANO, Jr. CCA 20130221.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-186

Monday, June 16, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0553/AR. U.S. v. Martin S. NEWMAN. CCA 20120814.

No. 14-0569/AR. U.S. v. Xavier V. ALVARADO. CCA 20130017.

No. 14-0572/AF. U.S. v. Parker J. MILLER. CCA 38327.

No. 14-0574/AR. U.S. v. Frederick J. GUENTHER. CCA 20110516.

No. 14-0578/AR. U.S. v. Andrew W. PEPPER. CCA 20130720.

No. 14-0624/AR. U.S. v. Federico J. TENNYSON. CCA 20130010.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0661/AR. U.S. v. Zachery W. HESTER, Jr. CCA 20120644.

No. 14-0662/AR. U.S. v. Christopher L. CLEMONS. CCA 20130489.

 

INTERLOCUTORY ORDERS

 

No. 14-0134/AR. U.S. v. Brett M. GASKILL. CCA 20110028.

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

No. 14-0656/AR. U.S. v. Dana P. BLOUIN. CCA 20121135.

No. 14-0658/AR. U.S. v. Corey J. BENNETT. CCA 20111107.

 

On consideration of the motions filed by Major Jacob D. Bashore for leave to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned other counsel to represent the Appellants and the new counsel has assumed the representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 14-0657/AF. U.S. v. Todd J. BARLOW. CCA 37981. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 3, 2014.

 

No. 14-0660/AR. U.S. v. Michael C. BUDKA. CCA 20120435. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 3, 2014.

 

MANDATES ISSUED

 

No. 14-0119/AF. U.S. v. Charles W. PAUL. CCA S32025.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-185

Friday, June 13, 2014

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0587/AR. U.S. v. Bernard H. FERGUSON. CCA 20130630.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0657/AF. U.S. v. Todd J. BARLOW. CCA 37981.

No. 14-0658/AR. U.S. v. Corey J. BENNETT. CCA 20111107.

No. 14-0659/AF. U.S. v. Matthew D. SCHENCK. CCA S32158.

No. 14-0660/AR. U.S. v. Michael C. BUDKA. CCA 20120435.

 

INTERLOCUTORY ORDERS

 

No. 14-0341/AR. U.S. v. Joshua K. BASS. CCA 20130546. Appellant's motion to file the supplement to the petition for grant of review out of time denied.

 

No. 14-0634/AR. U.S. v. Christopher T. FRASER. CCA 20130124. On consideration of Appellant's motion to withdraw the petition for grant of review, it is ordered that said motion is hereby denied without prejudice to the subsequent filing of a motion to withdraw that complies with Rule 21(f), Rules of Practice and Procedure, or the filing of a supplement to the petition for grant of review, on or before June 30, 2014.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-184

Thursday, June 12, 2014

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN APPLYING THE MARITAL PRIVILEGE.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0344/AF. U.S. v. John R. VASQUEZ, Jr. CCA 38192.

No. 14-0368/AR. U.S. v. Dennis E. DOCKERY. CCA 20110796.

No. 14-0421/AR. U.S. v. Kenneth M. NEWBERRY II. CCA 20121109.

No. 14-0563/MC. U.S. v. Tamira C. DICKENS. CCA 201300025.

No. 14-0570/AR. U.S. v. James B. WINFIELD. CCA 20120569.

No. 14-0580/AF. U.S. v. Derek W. BRYANT. CCA 38405.

No. 14-0583/AR. U.S. v. Christopher E. CABRERA. CCA 20130158.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

No. 14-0656/AR. U.S. v. Dana P. BLOUIN. CCA 20121135.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-183

Wednesday, June 11, 2014

 

CERTIFICATES FOR REVIEW FILED

 

No. 14-5009/AF. U.S. v. Patrick J. HUEY. CCA 38139. 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:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT IMAGES 00395505, 00394392, 00395408, 00395454, 00365481, FROM PROSECUTION EXHIBIT 11; THE THIRD AND FOURTH IMAGES ON PAGE 5, THE SECOND IMAGE ON PAGE 7, THE IMAGE ON PAGE 9, THE IMAGE ON PAGE 12, AND THE IMAGE ON PAGE 14 OF PROSECUTION EXHIBIT 14; IMAGE 00180276 IN THE "NON NCMECCP" FOLDER AND IMAGES ON PAGES 11, 14, 29, 31, 41, AND 42 IN THE WORD DOCUMENT TITLED "PE_THUMBNAILS" OF PROSECUTION EXHIBIT 15 DID NOT CONSTITUTE VISUAL DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT AS A MATTER OF LAW.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0654/AF. U.S. v. Stephen G. BURGH. CCA 38207.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-182

Tuesday, June 10, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0519/AR. U.S. v. Cerion R. ALLEN. CCA 20120742. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we agree with Appellant's personally asserted contention that the facts established during the plea inquiry and in the stipulation of fact demonstrate only a single conspiracy. Appellant was convicted of one conspiracy to commit robbery (Specification 2 of Charge II) and one conspiracy to commit burglary (Specification 3 of Charge II), but the plea inquiry and stipulation of fact show that there was only one agreement between Appellant and his co-conspirators to break into and rob the alleged drug house. Therefore, Specification 3 of Charge II should be consolidated with Specification 2 of Charge II to become a single specification. 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). 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 personally asserted issue:

 

WHETHER IT WAS ERROR TO CONVICT APPELLANT SEPARATELY FOR SPECIFICATION 2 (CONSPIRACY TO COMMIT ROBBERY) AND SPECIFICATION 3 (CONSPIRACY TO COMMIT BURGLARY) OF CHARGE II.

 

Specifications 2 and 3 of Charge II are consolidated to allege the following conspiracy specification:

 

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 81.

 

SPECIFICATION 2: In that Private First Class Cerion R. Allen, U.S. Army, did, at or near Fort Bragg, North Carolina on or about 29 January 2011, conspire with Private (E1) Cordic L. Coleman, Private First Class Kamarques K. Dyess, Private (E1) Bryan C. N. Alston, and Private First Class Shelton A. Hunt to commit offenses under the Uniform Code of Military Justice, to wit: robbery with a firearm and burglary, and in order to effect the object of the conspiracy the said Private First Class Cerion R. Allen did dress in black, acquire a firearm, travel to the dwelling house of another, conceal his face, kick in the back door of said dwelling house to gain entrance, and enter the back door of said dwelling house.

 

The decision of the United States Army Court of Criminal Appeals is affirmed as to Charge I and its Specification, Charge II and Specification 2 (consolidated), Charges III through VI and their Specifications, and the sentence. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0519/AR. U.S. v. Cerion R. ALLEN. CCA 20120742. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0576/AR. U.S. v. Cory D. WILLIER. CCA 20121005.

 

INTERLOCUTORY ORDERS

 

No. 14-0585/AF. U.S. v. Jasper C. BROOKS III. CCA 38245.

No. 14-0586/AF. U.S. v. Richard M. CHERUBINI, Jr. CCA 38292. On consideration of the motions filed by Lieutenant Colonel Jane E. Boomer to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned other counsel to represent the Appellants and the new counsel have assumed the representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 14-0614/AR. U.S. v. Jason A. PRICE. CCA 20121003. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 19, 2014, 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. 14-181

Monday, June 9, 2014

 

CERTIFICATES FOR REVIEW FILED

 

No. 14-5008/AF. U.S. v. Joshua KATSO. CCA 38005. 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:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND APPELLEE'S SIXTH AMENDMENT RIGHT TO CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE PERMITTED, OVER DEFENSE OBJECTION, THE TESTIMONY OF THE GOVERNMENT'S DNA EXPERT, AND THAT THE ERROR WAS NOT HARMLESS

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0651/AR. U.S. v. Donald E. GRAVES. CCA 20110210.

No. 14-0652/AR. U.S. v. Clayton W. MOSES. CCA 20130831.

No. 14-0653/AR. U.S. v. Michael A. THOMAS. CCA 20120318.

 

MANDATES ISSUED

 

No. 14-0029/AR. U.S. v. Ronald J. DAVIS. CCA 20100815.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-180

Friday, June 6, 2014

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0134/AR. U.S. v. Brett M. GASKILL. CCA 20110028.

No. 14-0648/AR. U.S. v. Blake C. BAKER. CCA 20120420.

No. 14-0649/AR. U.S. v. Lesile L. JOHNSON. CCA 20110233.

No. 14-0650/AR. U.S. v. Kenneth E. HAGSTROM. CCA 20121058.

 

INTERLOCUTORY ORDERS

 

No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of Appellant's motion to reconsider the limitation placed on Defense Appellate Exhibits QQQ and RRR, which this Court construes as a petition for reconsideration of this Court's order issued on February 3, 2014, it is ordered that said petition for reconsideration is hereby denied, that Appellee file a corrected brief deleting the improper references to Defense Appellate Exhibit QQQ on or before June 13, 2014, that Appellee's motion to file a corrected copy of its response to Appellant's motion to reconsider limitations placed on Defense Appellate Exhibits QQQ and RRR is denied as moot, and that Appellant may file a reply brief within 15 days after the filing of the Appellee's corrected brief.

 

No. 14-0528/AF. U.S. v. Abner C. LEPS. CCA S32129. On consideration of Appellant's motion to withdraw the petition for grant of review, it is ordered that said motion is hereby denied without prejudice to the subsequent filing of a motion to withdraw that complies with Rule 21(f), Rules of Practice and Procedure, or the filing of a supplement to the petition for grant of review, on or before June 23, 2014.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-179

Thursday, June 5, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-0364/AR. U.S. v. Keith A. JACKSON. CCA 20120026. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals is affirmed.* [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

* It is directed that the promulgating order be corrected to reflect that Appellant was found guilty of Charge I.

 

No. 14-0567/AR. U.S. v. Michael C. EVANS. CCA 20130251. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that Specification 3 of Charge IV charged Appellant with violating clause 1 of Article 134, not clause 2. However, the providence inquiry focused on clause 2 of Article 134, and there was no discussion on the record of clause 1. This was reversible error, where Appellant was unaware of one of the elements of the offense, either explicitly or inferentially. See United States v. Schell, 72 M.J. 339 (C.A.A.F. 2013). Accordingly, it is ordered that said petition is granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY ACCEPTING APPELLANT'S PLEA OF GUILTY TO BREACH OF RESTRICTION TO THE PREJUDICE OF GOOD ORDER AND DISCIPLINE IN THE ARMED FORCES (SPECIFICATION 3 OF CHARGE IV) WITHOUT QUESTIONING APPELLANT REGARDING CLAUSE 1 OF ARTICLE 134, UCMJ.

 

The decision of the United States Army Court of Criminal Appeals is reversed as to Specification 3 of Charge IV, and the finding of guilty is 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 Specification 3 of Charge IV and reassess the sentence based on the affirmed findings, or it may order a rehearing on the affected specification and the sentence. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0364/AR. U.S. v. Keith A. JACKSON. CCA 20120026. [See also APPEALS SUMMARY DISPOSITIONS this date.]

 

No. 14-0457/AR. U.S. v. Eric R. CASTILLO. CCA 20110935. Review granted on the following issue:

 

WHETHER, UNDER THE TOTALITY OF THE CIRCUMSTANCES, THE MILITARY JUDGE ERRED IN DENYING THE DEFENSE IMPLIED BIAS CHALLENGE AGAINST LTC DS IN LIGHT OF HIS PERSONAL EXPERIENCE AS A SEXUAL ASSAULT VICTIM, HIS DIRECT SUPERVISORY ROLE OVER TWO OTHER MEMBERS, HIS ONGOING RELIANCE ON THE TRIAL COUNSEL FOR MILITARY JUSTICE ADVICE, THE PRESENCE OF FOUR OTHER MEMBERS WHO ALSO RECEIVED MILITARY JUSTICE ASSISTANCE FROM THE TRIAL COUNSEL, AND THE FACT THAT THE PANEL WAS SELECTED EXCLUSIVELY FROM APPELLANT'S BRIGADE.

 

Briefs will be filed under Rule 25.

 

No. 14-0567/AR. U.S. v. Michael C. EVANS. CCA 20130251. [See also APPEALS SUMMARY DISPOSITIONS this date.]

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0327/AF. U.S. v. Zachary N. CAPPS. CCA 38160.

No. 14-0383/AF. U.S. v. Michael B. WITTMAN. CCA 38135.

No. 14-0386/AF. U.S. v. Paul R. SMITH. CCA 38157.

No. 14-0477/NA. U.S. v. Warren J. WHITE. CCA 201300115.

No. 14-0480/AF. U.S. v. Elliot K. JORDAN. CCA 38319.

No. 14-0483/AF. U.S. v. Steven J. HOLSEY. CCA 38306.

No. 14-0534/AR. U.S. v. Cory A. CLOPPER. CCA 20130352.

No. 14-0559/AR. U.S. v. Justin R. HORNSBY. CCA 20130999.

No. 14-0564/AR. U.S. v. Johnathan L. BORING. CCA 20130674.

No. 14-0566/AR. U.S. v. Jimmylee D. GREEN. CCA 20130372.

 

PETITIONS FOR RECONSIDERATION DENIED

 

No. 14-0449/AR. U.S. v. Larry J. WILLIAMS, Jr. CCA 20120341. On consideration of Appellant's petition for reconsideration of this Court's order issued on April 24, 2014, and Appellant's motions to file additional matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), out of time, it is ordered that said motions are hereby denied, and said petition for reconsideration is hereby denied.

 

INTERLOCUTORY ORDERS

 

No. 14-0483/AF. U.S. v. Steven J. HOLSEY. CCA 38306. Appellant's motion to attach documents is denied.

 

No. 14-0487/AR. U.S. v. Cecil SADDLER, Jr. CCA 20110676. Upon consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals and the supplement of the Appellant, we note two discrepancies in the matters filed pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). First, pages 1-4, 10-15, and 20 are missing. Second, once provided, the matters total 24 pages and therefore exceed the maximum limit of 15 pages under CAAF Rule 21A(a). Accordingly, it is ordered that Appellant shall submit a complete set of Grostefon matters in compliance with the 15-page limit of CAAF Rule 21A(a) on or before June 12, 2014.

 

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

No. 14-0515/AF. U.S. v. William C. GURNEY. CCA 37905.

 

On consideration of the motions filed by Lieutenant Colonel Jane E. Boomer to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned another counsel to represent Appellants and the new counsel has assumed the representation of said Appellants. Accordingly, it is ordered that said motions are hereby granted.

 

No. 14-0589/AR. U.S. v. Alvin PATTERSON. CCA 20121146. Appellant's motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including June 19, 2014, and absent extraordinary circumstances, no further extension of time will be granted in this case.

 

MANDATES ISSUED

 

No. 14-0005/AF. U.S. v. Daniel A. FREY. CCA 37759.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-178

Wednesday, June 4, 2014

 

HEARINGS

 

No. 14-5003/AF. U.S. v. Jimmy L. WILSON. CCA 37897.

No. 14-0348/AF & No. 14-5002/AF. U.S. v. Michael C. MCPHERSON. CCA S32068.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

No. 14-0353/AR. U.S. v. Samuel L. SYKES. CCA 20110747.

No. 14-0395/AR. U.S. v. Michael D. HUDSON. CCA 20121008.

No. 14-0402/AR. U.S. v. Samuel A. MOREL-LOZADA. CCA 20120276.

No. 14-0546/AF. U.S. v. Cree A. DENNIS. CCA S32115.

No. 14-0552/AR. U.S. v. Andrew C. HICKS. CCA 20130183.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

No. 14-0646/AR. U.S. v. Joseph E. CRAIG. CCA 20130089.

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

 

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

 

Misc. No. 14-8018/AF. Sean M. OLIVER, Appellant v. United States, and Brigadier General Patrick X. Mordente, in his official capacity as Commander, 86th Air Base Wing, United States Air Force, Appellees. CCA 2014-04. On consideration of the writ-appeal petition it is ordered that said petition is hereby denied without prejudice.

 

INTERLOCUTORY ORDERS

 

No. 14-0642/AR. U.S. v. Quintin D. LEWIS. CCA 20121010. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 23, 2014.

 

No. 14-0645/AR. U.S. v. Czechoslovak T. HICKS. CCA 20121172. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 23, 2014.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-177

Tuesday, June 3, 2014

 

ORDERS GRANTING PETITION FOR REVIEW

 

No. 14-0199/AR. U.S. v. Bryce M. PHILLIPS. CCA 20120585. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS 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 BREAKING RESTRICTION 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 IN THE PARLANCE OF THIS COURT'S EARLIER OPINION, "ABOVE THE COMMON RUCK."

 

Briefs will be filed under Rule 25.

 

No. 14-0289/AR. U.S. v. Jordan M. PETERS. CCA 20110057. Review granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED IN DENYING THE IMPLIED BIAS CHALLENGE AGAINST LTC JC, IN LIGHT OF LTC JC'S PROFESSIONAL RELATIONSHIP WITH TRIAL COUNSEL, THE SPECIAL COURT-MARTIAL CONVENING AUTHORITY, AND THE INVESTIGATING OFFICER.

 

Briefs will be filed under Rule 25.

 

PETITIONS FOR GRANT OF REVIEW DENIED

 

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

No. 14-0301/AF. U.S. v. Jason W. HEPBURN. CCA S32073.

No. 14-0323/AR. U.S. v. Carlos S. CAICEDO. CCA 20110833.

No. 14-0372/AR. U.S. v. Christopher B. NICKERSON. CCA 20120191.

No. 14-0388/AR. U.S. v. Cameron A. TURNER. CCA 20120504.

No. 14-0468/AR. U.S. v. Seth D. LEMASTERS. CCA 20111143.

No. 14-0494/AR. U.S. v. Alfred E. ESPOSITO. CCA 20120125.

No. 14-0501/AR. U.S. v. Curtis R. LONG. CCA 20110114.

No. 14-0508/AR. U.S. v. Jeffrey L. MATHIS. CCA 20130637.

No. 14-0535/AR. U.S. v. Roger B. DUFF. CCA 20120567.

No. 14-0555/AR. U.S. v. Maurice J. FLANIGAN. CCA 20130267.

No. 14-0562/AR. U.S. v. Martin L. HALL. CCA 20130405.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

No. 14-0641/AR. U.S. v. Tinh T. TRAN. CCA 20121047.

No. 14-0642/AR. U.S. v. Quintin D. LEWIS. CCA 20121010.

No. 14-0643/AR. U.S. v. Cory A. ANDERSON. CCA 20120225.

No. 14-0644/AR. U.S. v. Travis W. BARNES. CCA 20130529.

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




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

No. 14-176

Monday, June 2, 2014

 

APPEALS - SUMMARY DISPOSITIONS

 

No. 14-5004/AF. U.S. v. Nicholas T. BURNS. CCA S32084. On consideration of the issue certified by the Judge Advocate General of the Air Force, 73 M.J. __ (C.A.A.F. Daily Journal Mar. 13, 2014), Appellee's motion to supplement the record, Appellant's motion to supplement the record, and the briefs of the parties, we conclude that the United States Air Force Court of Criminal Appeals did not abuse its discretion in finding that Appellee's conviction of the greater offense of willful and wrongful discharge of a firearm under circumstances such as to endanger human life was factually insufficient and in affirming a finding of guilt as to the lesser included offense of negligent discharge of a firearm. Accordingly, it is ordered that the motions to supplement the record are granted, the certified issue is answered in the negative, and the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

PETITIONS FOR GRANT OF REVIEW FILED

 

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

No. 14-0635/AR. U.S. v. Christopher T. TODARO. CCA 20120541.

No. 14-0636/AR. U.S. v. Kathryn T. DEVONSHIRE. CCA 20110356.

No. 14-0637/AR. U.S. v. Clint N. MARRERO. CCA 20120421.

No. 14-0638/AF. U.S. v. Jonathan T. DANIEL. CCA 38322.

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

No. 14-6009/MC. U.S. v. Ruben VARGAS. CCA 201300426.

 

INTERLOCUTORY ORDERS

 

No. 13-0717/AF. U.S. v. Zachary R. LYNCH. CCA 38094. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 23, 2014.

 

No. 14-0632/MC. U.S. v. Bruno J. RUSSELL. CCA 201300208. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 19, 2014.

 

No. 14-0633/AF. U.S. v. Dustin A. MILLER. CCA 37869. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 19, 2014.

 

No. 14-0634/AR. U.S. v. Christopher T. FRASER. CCA 20130124. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to June 19, 2014.

_______________________________________

 

* Second petition filed in this case.



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