UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, September 30, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0038/AR. U.S. v. Shawn F. Hudson. CCA 20140428.

No. 16-0039/AR. U.S. v. Leangelo Gibson. CCA 20130625.

 

Interlocutory Orders

 

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137. On consideration of the motion filed by Captain David A. Peters for leave to withdraw as appellate defense counsel, it appears that the Judge Advocate General has assigned another counsel to represent Appellant and that the new attorney has assumed the representation of said Appellant. Accordingly, it is, ordered that said motion is hereby granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 29, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0036/AR. U.S. v. Evan M. Musgrove. CCA 20140777.

No. 16-0037/AR. U.S. v. Matthew Holladay, Jr. CCA 20140864.

 

Petitions for Grant of Review Denied

 

No. 15-0685/AR. U.S. v. Caleb J. Gunter. CCA 20130570.

No. 15-0775/NA. U.S. v. Ricky K. Talley. CCA 201500120.

 

Interlocutory Orders

 

No. 16-0034/AR. U.S. v. William D. Record. CCA 20130721. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 19, 2015.

 

No. 16-0035/AR. U.S. v. William A. McCaskill. CCA 20130428. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 19, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, September 28, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0032/AF. U.S. v. Neal R. Phillips. CCA S32265.

No. 16-0033/AR. U.S. v. Mark R. Eddy. CCA 20130239.

No. 16-0034/AR. U.S. v. William D. Record. CCA 20130721.

No. 16-0035/AR. U.S. v. William A. McCaskill. CCA 20130428.

 

Petitions for Grant of Review Denied

 

No. 15-0631/AR. U.S. v. Stanley S. Jnbaptiste. CCA 20121113.

No. 15-0730/AF. U.S. v. Franklyn J. Frias. CCA S32219.

No. 15-0743/AR. U.S. v. Marcus T. Fuqua. CCA 20140033.

No. 15-0762/AF. U.S. v. James R. Spear II. CCA 38537.

No. 15-0768/MC. U.S. v. Marquette Diggs. CCA 201400153.

No. 15-0769/AR. U.S. v. John W.Y. Yang. CCA 20140739.

 

Interlocutory Orders

 

No. 16-0028/AR. U.S. v. Aaron L. Bridges. CCA 20120714. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 13, 2015.

 

No. 16-0030/AF. U.S. v. Daniel W. Hill. CCA 38648. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 13, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, September 25, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0031/AR. U.S. v. Danzell T. Gonzales. CCA 20140605.

 

Appeals - Summary Dispositions

 

No. 15-0462/MC. U.S. v. Michael A. Arnold. CCA 201200382. On consideration of the certified issue, __ M.J. __, (Daily Journal Apr. 3, 2015), the briefs of the parties, and in view of United States v. Quick, 74 M.J. 332 (C.A.A.F. 2015), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 22, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0028/AR. U.S. v. Aaron L. Bridges. CCA 20120714.

No. 16-0029/AR. U.S. v. Michael W. Long II. CCA 20120166.

No. 16-0030/AF. U.S. v. Daniel W. Hill. CCA 38648.

 

Petitions for Grant of Review Denied

 

No. 15-0628/MC. U.S. v. Joseph A. Dyas. CCA 201400250.

No. 15-0660/AF. U.S. v. Benjamin A. Feldkamp. CCA 38493.

No. 15-0760/AR. U.S. v. Justin S. Cannon. CCA 20130415.

No. 15-0765/AR. U.S. v. Matthew K. Barker. CCA 20140189.

No. 15-0766/AR. U.S. v. Travis J. Gregg. CCA 20121119.

 

Petitions for Grant of Review - Summary Dispositions

 

No. 15-0669/AF. U.S. v. Reyna R. Lopeztegui. CCA S32209. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals said petition is hereby granted on the following issue:

 

WHETHER THE STAFF JUDGE ADVOCATE'S RECOMMENDATION (SJAR) AND ADDENDUM TO THE SJAR WERE ERRONEOUS BECAUSE THEY DID NOT PROVIDE ACCURATE INFORMATION TO THE CONVENING AUTHORITY.

 

The decision of the United States Air Force Court of Criminal Appeals is reversed, and the convening authority's action is set aside. The record of trial is returned to the Judge Advocate General for remand to the same or a different convening authority for a new post-trial recommendation and action.

 

No. 15-0726/AF. U.S. v. Patrick A. Shea. CCA S32225. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted on the following issue:

 

WHETHER THE AIR FORCE COURT ERRED IN REASSESSING THE SENTENCE TO MATCH THE SENTENCE ADJUDGED BY THE COURT-MARTIAL (WHICH INCLUDED FORFEITURES OF PAY) RATHER THAN THE SENTENCE APPROVED BY THE CONVENING AUTHORITY (WHICH DID NOT INCLUDE FORFEITURES OF PAY).

 

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to the findings but reversed as to the sentence. The record is returned to the Judge Advocate General of the Air Force for remand to that court to reassess the sentence based on the affirmed findings of guilty.

 

Interlocutory Orders

 

No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679. On consideration of the motion of the United States Air Force Appellate Defense Division to file an Amicus Curiae brief in support of the Appellant, it is ordered that Appellate Defense Counsel for the Appellant, within 10 days of the date of this order, submit to the Court the Appellant's view regarding the pending motion.

 

No. 16-0026/AR. U.S. v. Antiwan M. Henning. CCA 20150410. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 13, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, September 21, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0025/AR. U.S. v. Jose I. Ayala. CCA 20130610.

No. 16-0026/AR. U.S. v. Antiwan M. Henning. CCA 20150410.

 

Petitions for Grant of Review Denied

 

No. 15-0721/AR. U.S. v. Nicholas G. Buckus. CCA 20130627.

 

Miscellaneous Docket Filings

 

No. 16-0027/NA. Dustin M. Clark, Appellant v. United States, Appellee. CCA 201400232. Notice is hereby given that a writ-appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

 

Interlocutory Orders

 

No. 13-7001/AR. U.S. v. Hasan K. Akbar. CCA 20050514. On consideration of Appellee's motion to extend time to file an answer to Appellant's petition for reconsideration, it is ordered that said motion is hereby granted, but only up to and including October 16, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, September 18, 2015

 

Petitions for Grant of Review Denied

 

No. 15-0751/AR. U.S. v. Justin B. Butler. CCA 20110667.

No. 15-0756/AR. U.S. v. Patrick L. Tabaka. CCA 20140726.

No. 15-0758/AR. U.S. v. Reuss L. McKinnon. CCA 20140490.

 

Notices of Designation

 

No. 15-0087/MC. U.S. v. Carlton Wilder, Jr. CCA 201400118.

No. 15-0384/CG & 15-0387/CG. U.S. v. Christopher S. Cooley. CCA 1389.

No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193.

No. 15-0477/AF. U.S. v. Nicholas E. Busch. CCA 38530.

 

At the request of Chief Judge Charles E. "Chip" Erdmann, Chief Justice John G. Roberts, Jr., has designated Judge Albert Diaz of the United States Court of Appeals for the Fourth Circuit to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces for the above captioned cases pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. 942(f)(2012).

 

No. 15-0140/AR. U.S. v. Henry L. Williams III. CCA 20130284.

No. 15-0172/MC. U.S. v. Francis L. Captain. CCA 201300137.

No. 15-0334/MC. U.S. v. Quantaus R. Riggins. CCA 201400046.

No. 15-0361/MC. U.S. v. Matthew P. Hoffman. CCA 201400067.

No. 15-0413/AF. U.S. v. Sebastian P. LaBella. CCA 37679.

No. 15-0476/AR. U.S. v. Eric L. Rapert. CCA 20130309.

 

At the request of Chief Judge Charles E. "Chip" Erdmann, Chief Justice John G. Roberts, Jr., has designated Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces for the above captioned cases pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. 942 (f) (2012).




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, September 17, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0023/AR. U.S. v. Jarrell D. Speight. CCA 20130837.

No. 16-0024/AF. U.S. v. Christopher R. Perez. CCA 38559.

 

Petitions for Grant of Review - Summary Dispositions

 

No. 15-0770/AR. U.S. v. Demarcus L. Lilly. CCA 20130349. 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.*

 

* It is noted that the military judge neglected to seal the pleadings and transcript associated with two motions to exclude evidence under MRE 412. Accordingly, the Clerk is ordered to seal pages 22-29 of the record and Appellate Exhibits III and IV and all attachments thereto.

 

Interlocutory Orders

 

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 5, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, September 16, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0021/AR. U.S. v. Richard A. Sheltra. CCA 20130827.

No. 16-0022/AR. U.S. v. Brandon E. Baur. CCA 20140213.

 

Petitions for Grant of Review Denied

 

No. 15-0673/AR. U.S. v. Hugo Rosalesleonor. CCA 20140230.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 15, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647.

No. 16-0020/MC. U.S. v. Amber N. Basares. CCA 201400278.

 

Petitions for Grant of Review Denied

 

No. 15-0755/AF. U.S. v. Daniel J. McDonough. CCA 38605.

 

Interlocutory Orders

 

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538. On consideration of Appellant's motion for leave to file the supplement to the petition for grant of review exceeding 9,000 words, it is ordered that said motion is hereby denied. Appellant will file a supplement to the petition for grant of review that complies with Rule 21(b) on or before September 24, 2015.

 

No. 16-0014/NA. U.S. v. Jacob L. Pease. CCA 201400165. On consideration of Appellant's motion to extend time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said motion is hereby denied as moot.

 

No. 16-0018/AF. U.S. v. Justin M. Davis. CCA 38518. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 5, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, September 14, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0017/AR. U.S. v. Eikcaj K. Morris-Solomon. CCA 20140579.

No. 16-0018/AF. U.S. v. Justin M. Davis. CCA 38518.

 

Petitions for Grant of Review Denied

 

No. 15-0560/AR. U.S. v. Cornelius T. Summers. CCA 20121104.

No. 15-0746/AR. U.S. v. Edward L. Lowery. CCA 20120534.

No. 15-0748/AR. U.S. v. Carla S. Dotson. CCA 20120115.

No. 15-0752/AF. U.S. v. Kelly J. Schmidt. CCA 38583.

No. 15-0753/AR. U.S. v. Marc A. Greene. CCA 20130568.

 

Certificates for Review Filed

 

No. 16-0014/NA. U.S. v. Jacob L. Pease. CCA 201400165. Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

 

THE LOWER COURT JUDICIALLY DEFINED "INCAPABLE OF CONSENTING" CONTRARY TO THE INSTRUCTIONS GIVEN TO THE MEMBERS AND USED THIS DEFINITION TO FIND THREE CHARGES OF SEXUAL ASSAULT AND ONE CHARGE OF ABUSIVE SEXUAL CONTACT FACTUALLY INSUFFICIENT. IN CREATING THIS NEW LEGAL DEFINITION NOT CONSIDERED BY THE FACTFINDER AND NOWHERE PRESENT IN THE RECORD, DID THE LOWER COURT CONSIDER MATTERS OUTSIDE THE RECORD AND OUTSIDE ITS STATUTORY AUTHORITY IN CONDUCTING ITS FACTUAL SUFFICIENCY REVIEW?

 

THE LOWER COURT JUDICIALLY DEFINED "INCAPABLE OF CONSENTING" IN A MANNER THAT LIMITS PROSECUTIONS TO ONLY TWO SITUATIONS - -"INABILITY TO APPRECIATE" AND "INABILITY TO MAKE AND COMMUNICATE" AN AGREEMENT. TO PROVE THE LATTER, THE COURT FURTHER REQUIRED PROOF THAT A VICTIM BE UNABLE BOTH TO MAKE AND TO COMMUNICATE A DECISION TO ENGAGE IN THE CONDUCT AT ISSUE. NOTHING IN THE STATUTE REFLECTS CONGRESSIONAL INTENT TO LIMIT ARTICLE 120, UCMJ, PROSECUTIONS IN THIS MANNER. DID THE LOWER COURT ERR?

 

 

In the Matter of the

RULES ADVISORY COMMITTEE

 

Pursuant to Rule 45 of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, the following persons are, this 14th day of September, 2015, hereby appointed as members of the Rules Advisory Committee, effective October 1, 2015:

Dwight H. Sullivan, Esq., and Thomas E. Booth, Esq., whose terms will expire on September 30, 2018.

Malcolm Squires, whose term expires on September 30, 2015, is hereby reappointed as a member of the Rules Advisory Committee for a term expiring on September 30, 2018.

The following members, whose terms expire on the dates indicated below, remain on the Rules Advisory Committee:

To expire on September 30, 2016:

Professor Steven H. Goldblatt, Chairman

Michelle M. Lindo-McCluer, Esq.

James E. McPherson, Esq.

To expire on September 30, 2017:

Professor Matthew G. Kaiser

Rebecca S. Snyder, Esq.

Colonel Peter W. Teller, U.S. Air Force

William A. DeCicco, Clerk of the Court, is an ex officio member of the Committee, and serves as its Reporter.

The Court wishes to express its deepest appreciation to John F. DePue, Esq., who has served on the Rules Advisory Committee for 23 years for his outstanding service as a member of the Rules Advisory Committee.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, September 11, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0012/AF. U.S. v. Pamela L. Novy. CCA 38554.

No. 16-0013/AR. U.S. v. Charles D. Mayo. CCA 20140646.

No. 16-0015/AF. U.S. v. Adam B. Cagle. CCA 38592.

No. 16-0016/MC. U.S. v. Aaron C. Wilson. CCA 201500017.

 

Notice of Filing of Motion

 

No. 16-0014/NA. United States, Appellant v. Jacob L. Pease, Appellee. CCA 201400165. Notice is hereby given that a motion for an enlargement of time to file a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed by Appellant under Rule 30 on this date.

 

Interlocutory Orders

 

No. 15-0425/AF. U.S. v. Alan J. Killion, Jr. CCA S32193. Appellee's motion to file a corrected brief is granted.

 

No. 16-0012/AF. U.S. v. Pamela L. Novy. CCA 38554. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to October 1, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, September 10, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0010/AR. U.S. v. Kamarques K. Dyess. CCA 20120486.

No. 16-0011/AR. U.S. v. Donald L. Earls II. CCA 20150046.

 

Petitions for Grant of Review Denied

 

No. 15-0699/AR. U.S. v. Josue A. Nunezbyers. CCA 20120303.

 

Interlocutory Orders

 

No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785. Appellee's second motion to extend time to file a brief granted to October 30, 2015.

 

No. 15-0757/MC. U.S. v. William M. Lefevers. CCA 201400312. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted, but only up to and including September 23, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, September 9, 2015

 

Petitions for Grant of Review Denied

 

No. 15-0612/AR. U.S. v. Michael D. Klinetop. CCA 20131081.

No. 15-0745/AF. U.S. v. Cody A. Burckhardt. CCA 38625.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 8, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0009/AR. U.S. v. Corey W. North. CCA 20140268.

 

Interlocutory Orders

 

No. 16-0005/AR. U.S. v. Joseph R. Lee. CCA 20130718. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September, 23, 2015.

 

No. 16-0006/CG. U.S. v. Matthew A. Rogers. CCA 1391. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 24, 2015.

 

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 24, 2015.

 

Mandates Issued

 

No. 14-8014/AF. U.S. v. Mark K. Arness. CCA 2013-30.

No. 15-0186/CG. U.S. v. Michael E. Sullivan. CCA 001-69-13.

No. 15-0315/AR. U.S. v. Michael F. Stellato. CCA 20140453.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, September 4, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0006/CG. U.S. v. Matthew A. Rogers. CCA 1391.

No. 16-0007/AF. U.S. v. Calyx E. Harrell. CCA 38538.

 

Petitions for Grant of Review Denied

 

No. 15-0225/AR. U.S. v. Neftaly Platero. CCA 20120620.

No. 15-0532/NA. U.S. v. Jeramie M. Hutchinson. CCA 201400022.

No. 15-0638/AR. U.S. v. Alejandro L. Perez III. CCA 20130174.

No. 15-0652/AF. U.S. v. Robert A. Bondo. CCA 38438.

No. 15-0736/AR. U.S. v. Johnny Simmons, Jr. CCA 20130258.

 

Miscellaneous Docket - Filings

 

No. 16-0008/CG. Christopher S. Cooley, Petitioner v. William G. Kelly, Rear Admiral, United States Coast Guard, in his official capacity as Commander, Personnel Service Center, and United States, Respondents. Notice is hereby given that a petition for extraordinary relief in the nature of a writ of habeas corpus or writ of mandamus was filed under Rule 27(a) on this date.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, September 3, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0003/AF. U.S. v. Paulo D. Walters. CCA 38516.

No. 16-0004/AR. U.S. v. Michael McClendon. CCA 20140171.

No. 16-0005/AR. U.S. v. Joseph R. Lee. CCA 20130718.

 

Petitions for Grant of Review Denied

 

No. 15-0492/AR. U.S. v. Michael K. Jones II. CCA 20131058.

No. 15-0599/AR. U.S. v. John M. Agostini. CCA 20140509.

No. 15-0661/AR. U.S. v. Jesse J. Caballero. CCA 20130665.

No. 15-0694/AR. U.S. v. Jason E. Deiter. CCA 20140487.

No. 15-0696/AR. U.S. v. Anthony D. Balentine. CCA 20140334.

No. 15-0735/AR. U.S. v. James B. Hicks. CCA 20130901.

 

Interlocutory Orders

 

No. 16-0001/AF. U.S. v. Jeremy J. Grawey. CCA S32029. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 21, 2015.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 1, 2015

 

Petitions for Grant of Review Filed

 

No. 16-0001/AF. U.S. v. Jeremy J. Grawey. CCA S32029.

No. 16-0002/AF. U.S. v. Alphonso K. Dixon. CCA S32061.

 

Petitions for Grant of Review Denied

 

No. 15-0554/AR. U.S. v. Che D. Middleton. CCA 20121121.

No. 15-0622/AR. U.S. v. Kevin M. Reen. CCA 20130753.

 

Interlocutory Orders

 

No. 15-0774/AF. U.S. v. Floyd M. Jeter. CCA 38511. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to September 17, 2015.



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