UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-164
JUNE 1, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0752/AR. U.S. v. John M. MCCLAIN, Jr. CCA 9501831.

No. 98-0753/AF. U.S. v. Roger D. ARNOLD. CCA S29523.

No. 98-0754/AF. U.S. v. Erick U. TURLA. CCA S29437.

No. 98-0755/MC. U.S. v. Robert NEGRIN. CCA 97-0100.

No. 98-0756/MC. U.S. v. Michael L. ROWEN. CCA 97-0264.

INTERLOCUTORY ORDERS

No. 98-5002/MC. U.S. v. Eric A. BOYLAN. CCA 96-2377. Appellee’s motion to attach granted.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-165
JUNE 2, 1998

HEARINGS

No. 98-0038/AF. U.S. v. Clarence A. BECKETT. CCA 32375.

No. 97-0637/AF. U.S. v. Rickie L. HILL. CCA 31798.

No. 97-0723/AR. U.S. v. Orlando C. JONES. CCA 9501462.

No. 98-5002/MC. U.S. v. Eric A. BOYLAN. CCA 96-2377.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0757/NA. U.S. v. Donnell J. PALMORE. CCA 97-1529.

No. 98-0758/NA. U.S. v. Sarah F. THOMASSON. CCA 96-0938.

INTERLOCUTORY ORDERS

No. 97-0543/AF. U.S. v. Herman RIOS, Jr. CCA 31877. Appellant’s motion to cite supplemental authority granted.

No. 97-0708/AF. U.S. v. Christopher A. KEELS. CCA 32333. Appellant’s motion out of time to file supplemental issue denied.

No. 98-0034/CG. U.S. v. Scott L. GILBERT. CCA 1067. Appellee’s motion to extend time to file answer to final brief granted to July 6, 1998.

No. 98-0144/MC. U.S. v. Robert L. SMITH. CCA 96-1633. Appellant’s motion to file petition for reconsideration out of time denied.

No. 98-0497/NA. U.S. v. Charles W. DAVIS. CCA 96-0585. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to June 29, 1998.

No. 98-5014/AF. U.S. v. Paul R. CHAMBERS. CCA 32912. Cross-appellant’s motion to submit supplement to cross-petition for grant of review out of time denied. */

____________

*/ Judge Effron did not participate in this decision. See United States v. Gorski, 47 MJ 370 (1997). This is without prejudice to his future participation in this case should it subsequently be presented to the Court in a manner that does not require determination of the application of the ExPostFacto Clause to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-166
JUNE 3, 1998

HEARINGS

No. 98-0068/AF. U.S. v. Dianne EATMON. CCA 32664.

No. 97-0699/AF. U.S. v. Henry A. RUPPEL. CCA 31891.

No. 97-1073/AF. U.S. v. Gregory W. HAYMAKER. CCA 32338.

No. 96-1089/AF. U.S. v. Jonathan L. SHAVRNOCH. CCA 31564.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 96-0696/AF. U.S. v. Leo F. CARNLEY, Jr. CCA 31115. On consideration of appellate defense counsel’s motion to abate the proceedings ab initio and motion to submit documents, it appearing appellant died while this case was pending review by this Court, it is ordered that said motions are granted; that the findings and sentence are set aside; that the charge is dismissed; that all rights, privileges, and property of which appellant has been deprived by virtue of the findings and sentence be restored; and that the record of trial be returned to the Judge Advocate General of the Air Force for appropriate action.

    Gierke, Judge, with whom Crawford, Judge, joins (dissenting):

    I dissent for the reasons noted in the dissenting opinion in Berry v. Judges of U.S. ARMY C.M.R. 37 MJ 158, 162 (CMA 1993).

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0759/AF. U.S. v. Raymond L. JACKSON. CCA S29497.

No. 98-0760/AF. U.S. v. Dennis WILLIAMS. CCA 33017.

No. 98-0761/MC. U.S. v. Mark A. NAPIER. CCA 98-0198.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 98-8018/NA. HM3 Oscar W. WALKER, appellant, v. Captain C.A. SWAN, Commanding Officer, U.S. Naval Hospital, Sigonella, Italy; Lieutenant GARNER, Naval Legal Service Office, U.S. Naval Air Station, Sigonella, Italy; John H. DALTON, Secretary of the Navy; and The United States of America, appellees. Writ-appeal petition for review of United States Navy-Marine Corps Court of Criminal Appeals’ dismissal of petition for extraordinary relief and brief filed under Rule 27(b). Appellees will file answer on or before the 15th day of June, 1998. Appellant’s motion to file writ-appeal petition out of time granted.

INTERLOCUTORY ORDERS

No. 97-1061/CG. U.S. v. Frank J. DIRE. CCA 1077. Appellant’s third motion to extend time to file a final brief granted to June 29, 1998.

No. 97-1164/CG. U.S. v. Orison S. ACEVEDO. CCA 1066. To July 6, 1998.

No. 98-0095/NA. U.S. v. Lester E. OLINGER, IV. CCA 96-1319. To July 10, 1998.

    In each of the above two cases, appellee’s motion to extend time to file answer to final brief granted to the date indicated.

No. 98-0470/AF. U.S. v. Robert R. GILLESPIE. CCA 32466.

No. 98-0613/MC. U.S. v. Mitchell M. DUERSON. CCA 96-2581.

    In each of the above two cases, appellant’s motion to file supplement to petition for grant of review out of time granted.

No. 98-0639/AF. U.S. v. Michael A. REED. CCA 32500. To July 1, 1998.

No. 98-0650/AF. U.S. v. Glen R. THORPE. CCA 32589. To July 6, 1998.

No. 98-0679/AR. U.S. v. Carlos V. DIAZ-DUPREY. CCA 9600181. To July 13, 1998.

No. 98-0702/NA. U.S. v. Allan L. TURNER. CCA 95-0904. To July 15, 1998.

    In each of the above four cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to the date indicated.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-167
JUNE 4, 1998

HEARINGS

No. 98-5001/AF. U.S. v. Clinton CALHOUN, III. CCA 32314.

No. 97-0149/AR. U.S. v. Christopher W. CAMPBELL. CCA 9400527.

No. 97-1053/AR. U.S. v. Michael J. YOUNG. CCA 9501601.

No. 97-1008/AF. U.S. v. Herbert L. BRINSON. CCA S29228.

REMAND FROM SUPREME COURT OF THE UNITED STATES

No. 95-0189/AF. U.S. v. Chester NASH, Jr. CCA 30248.

No. 95-0346/AF. U.S. v. Chad E. LYNN. CCA 30133.

No. 95-0758/AF. U.S. v. Cedric W. MOBLEY. CCA 30881.

    Notice is hereby given that each of the above-entitled cases was returned to the Clerk’s Office on the 8th day of April, 1998, and was placed on the docket system this date in accordance with the order of the Supreme Court of the United States dated April 6, 1998, remanding the cases to this Court for further consideration in light of United States v. Scheffer, 523 U.S. ___ (1998), and each case has been referred to the Court for further consideration.

APPEALS - SUMMARY DISPOSITIONS

No. 97-0715/MC. U.S. v. David W. EASTWOOD. CCA 95-0878. On further consideration of the granted issue (48 MJ 12), in light of United States v. Davis, 47 MJ 484 (1998), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed with respect to the findings, except that the part of the decision affirming an assault with "a dangerous weapon" under Charge II and its specification is reversed; that only so much of the decision with respect to Charge II and its specification as affirms a conviction of simple assault is affirmed; and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals with respect to the sentence is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for either (1) reassessment of the sentence on the basis of appellant’s conviction of absence without authority (Charge I and specification 3 of Charge I) and simple assault (Charge II and its specification), or (2) an order authorizing a sentence rehearing. See United States v. Sales, 22 MJ 305 (CMA 1986).

    SULLIVAN, Judge (dissenting):

    The facts in this case, as found by the Court of Criminal Appeals, speak for themselves.

Turning to the facts of this case, the appellant offered to "show me something" as the victim left a nightclub. Record at 22.

Believing it would be a reptile, in which he and the appellant shared a common interest, the victim instead heard the appellant "rack" his shotgun and point the business end in his face. Record at 22, 27. Frightened, he slapped the weapon away; the appellant then pointed the shotgun at his head again. The victim testified that he did not know whether the gun was loaded; he did know that he was very scared and angry. Record at 28, 30. Indeed, according to an impartial observer, the victim was still "nervous and shaken," "sweating," and "very panicked" when he observed him at the barracks some time later that evening. Record at 33.

After a careful review of the record of trial, we have no doubt that the victim was under a reasonable apprehension of being killed or suffering grievous bodily harm when the appellant pointed an apparently functional, albeit unloaded, shotgun at his head. Therefore, we conclude that a finding of aggravated assault is both legally appropriate and was here proven beyond a reasonable doubt. Art. 66(c), UCMJ, 10 USC § 866.

Unpub. op. at 2-3 (footnote omitted).

To hold that, under the facts in this case, no aggravated assault occurred under Article 128, UCMJ, is to ignore common sense, the Supreme Court, and a statute of Congress. SeeUnited States v. Davis, 47 MJ 484, 487 (1998)(Sullivan, J., dissenting).

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 97-0666/AF. U.S. v. David E. MCCONNELL. CCA 32081.

    Appellant petitioned this Court for review of the following issues:

I.

Whether appellant was denied effective assistance of counsel.
II.
Whether the Air Force Court of Criminal Appeals erred by affirming appellant’s conviction where the military judge committed plain error by failing to instruct the members on the lesser-included offense of assault consummated by a battery.
III.
Whether the Air Force Court of Criminal Appeals erred by affirming appellant’s sentence where the members considered erroneous information leading them to believe that appellant would be able to retire notwithstanding an adjudged bad-conduct discharge. Upon consideration of the pleadings and the record of trial, and in light of United States v. Ginn, 47 MJ 236 (1997), we have determined that Issues II and III are without merit but that this case should be remanded for a factfinding hearing to obtain evidence relevant to Issue I. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside; that Issues II and III are denied; and that the record of trial is remanded for a factfinding hearing on Issue I pursuant to United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967). After the hearing is completed, the record of trial shall be returned to the Court of Criminal Appeals for further review pursuant to Article 66, Uniform Code of Military Justice, 10 USC § 866. Upon completion of that review, Article 67, UCMJ, 10 USC § 867 (1994), shall apply.

INTERLOCUTORY ORDERS

No. 98-0641/AR. U.S. v. Alvin W. CARR. CCA 9600939. Appellant’s motion to extend time to file supplement to petition for grant of review granted to July 6, 1998.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-168
JUNE 5, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 96-0036/AF. U.S. v. Benjamin ACOBA, Jr. CCA 31318. The decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 96-0036/AF. U.S. v. Benjamin ACOBA, Jr. CCA 31318. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 97-0731/AR. U.S. v. Timothy R. HALL. CCA 9500449. Review granted on the following issues assigned by appellate defense counsel:

I. Whether the Army Court of Criminal Appeals exceeded its jurisdiction under Article 66, UCMJ, when it considered and reversed the military judge’s ruling suppressing the evidence seized from appellant’s room.

II. Whether the Government waived consideration of the propriety of the military judge’s ruling suppressing the evidence seized from appellant’s room by failing to make a timely Article 62, UCMJ, appeal.

III. Whether the Army Court of Criminal Appeals erred by failing to follow the "law of the case" doctrine when it reversed the military judge’s ruling suppressing the evidence seized from appellant’s room.

IV. Whether Congress’s enactment of Article 62, UCMJ, overrules United States v. DeLeon, 5 USCMA 747, 19 CMR 43 (1955), and United States v. Nargi, 2 MJ 96 (CMA 1997), and their progeny.

V. Whether the Army Court of Criminal Appeals erred when it held that the military judge erred in ruling that the search of appellant’s barracks room was illegal.

And the following issue specified by the Court:  
Whether the military judge erred by refusing to grant appellant’s motion to suppress his confession for lack of adequate corroboration as required by Mil.R.Evid. 304(g). SeeUnited States v. Duvall, 47 MJ 189 (1997).
No. 97-1016/AR. U.S. v. Matthew D. ALLEN. CCA 9501503. Review granted on the following issue as modified by the Court: Whether the evidence is legally sufficient to support a finding of guilty of rape and adultery because the evidence presented at trial significantly varies from the specifications alleged in the pleadings.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0361/AR. U.S. v. Thomas W. PERKINS. CCA 9601909.

No. 98-0364/MC. U.S. v. Jason A. CIESIENSKI. CCA 96-1259.

No. 98-0374/MC. U.S. v. Beau PETERSON. CCA 96-1375.

No. 98-0392/AF. U.S. v. Charles A. FARR. CCA 32598.

No. 98-0394/AF. U.S. v. Timothy S. ALLEN. CCA 32713.

No. 98-0418/AF. U.S. v. Reuben M. CLARK. CCA S29436.

No. 98-0435/AR. U.S. v. Joseph H. COHEN. CCA 9602012.

No. 98-0453/MC. U.S. v. James D. LOVELAND. CCA 97-0734.

No. 98-0466/AR. U.S. v. Gary W. KRUSZYNSKI. CCA 9701715.

No. 98-0475/AF. U.S. v. Brandon J. TURNER. CCA S29409.

No. 98-0478/AR. U.S. v. Ronald J. JENCZALIK. CCA 9700838.

No. 98-0479/AR. U.S. v. Orlando J. AROCHO. CCA 9701565.

No. 98-0481/MC. U.S. v. Leon C. TAYLOR. CCA 97-1504.

No. 98-0483/NA. U.S. v. Daniel T. DOWLING. CCA 97-1018.

No. 98-0484/AF. U.S. v. Blaine CARTER. CCA S29368.

No. 98-0486/AR. U.S. v. Michael H. ERICKSON. CCA 9700267.

No. 98-0490/AR. U.S. v. Jeffrey N. REVALEON. CCA 9700137.

No. 98-0492/AF. U.S. v. Demequise T. HOWELL. CCA S29434.

No. 98-0496/AR. U.S. v. Jason E. EIDE. CCA 9701699.

No. 98-0505/AF. U.S. v. Tad J. SENOPOLE. CCA S29384.

No. 98-0516/AR. U.S. v. Daniel P. SCHWAN. CCA 9700968.

No. 98-0518/AF. U.S. v. Thomas E. COONEY. CCA 32742.

No. 98-0536/AF. U.S. v. Kenneth A. NEWSOME. CCA S29418.

No. 98-0537/AF. U.S. v. Ryan D. WEISE. CCA 32798.

No. 98-0541/AR. U.S. v. Terril M. DARNELL. CCA 9700920.

No. 98-0543/AR. U.S. v. Robert F. PLAIR. CCA 9701329.

No. 98-0549/AF. U.S. v. Melvin J. NARCISSE, Jr. CCA 32779.

No. 98-0551/AF. U.S. v. Celeno A. WEST. CCA S29411.

No. 98-0552/AR. U.S. v. Richard A. BLACK. CCA 9701886.

No. 98-0558/MC. U.S. v. Ronnie STONE. CCA 97-1765.

No. 98-0562/MC. U.S. v. Randy RODRIGUES. CCA 97-0654.

No. 98-0564/AF. U.S. v. Curt J. HOBBS, Jr. CCA 32948.

No. 98-0582/MC. U.S. v. Jose QUEZADAMARQUEZ. CCA 97-0620.

No. 98-0589/AF. U.S. v. Kathleen A. FITZGERALD. CCA 32901.

No. 98-0627/AF. U.S. v. Randy L. SHELTON. CCA 33035.

No. 98-0636/NA. U.S. v. Andrew D. SCHEELER. CCA 97-1711.

No. 98-0665/AF. U.S. v. Puyonsi CLIFT. CCA 32905.

No. 98-0672/AR. U.S. v. Adam C. DOOLITTLE. CCA 9701525.

No. 98-0674/AR. U.S. v. Joshua J. HUDSON. CCA 9701716.

No. 98-0688/AF. U.S. v. Ira M. KUTCH. CCA S29506.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0762/MC. U.S. v. James F. NALL. CCA 97-1926.

No. 98-0763/AF. U.S. v. Dewayne E. HICKS. CCA S29481.
 
 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-169
JUNE 8, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 97-0709/MC. U.S. v. Antonious D. WINGATE. CCA 96-0375. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we find that specifications 1 and 2 of Charge I (carrying a concealed weapon on his person and carrying a concealed weapon in the barracks in violation of a general order) allege two violations of the same statute by one transaction, thus constituting an unreasonable multiplication of charges. See Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). Moreover, these specifications are facially duplicative of the offense alleged in specification 4 of Charge III (carrying a concealed weapon). Therefore, appellant’s failure to challenge this multiplicity at trial did not waive this issue for appellate review, and appellant is entitled to the dismissal of the less serious offenses. United States v. Lloyd, 46 MJ 19, 22 (1997). Accordingly, the petition for review is granted as to Issue IV raised by appellate defense counsel; and the decision of the United States Navy-Marine Corps Court of Criminal Appeals as to Charge I and its specifications is reversed. The findings of guilty to that Charge and its specifications are set aside, and that Charge and its specifications are dismissed. In all other respects, the decision of the court below is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    SULLIVAN, Judge (concurring in the result):

    The specifications challenged as multiplicious in this case are as follows:

CHARGE I:  VIOLATION OF THE UCMJ, ARTICLE 92

SPECIFICATION 1: In that Private Antonious D. Wingate, U.S. Marine Corps, Marine Wing Headquarters Squadron 3, 3d Marine Aircraft Wing, Marine Forces Pacific, did, at Marine Corps Air Station El Toro, Santa Ana, California, on or about 15 March 1995, violate a lawful general order, to wit: paragraph 7003.3, Station Order P5510.2H, dated 1 June 1994, by wrongfully carrying a dangerous weapon concealed on or about his body.

SPECIFICATION 2: In that Private Antonious D. Wingate, U.S. Marine Corps, Marine Wing Headquarters Squadron 3, 3d Marine Aircraft Wing, Marine Forces Pacific, did, at Marine Corps Air Station E1 Toro, Santa Ana, California, on or about 15 March 1995, violate a lawful general order, to wit: paragraph 7003.4, Station Order P5510.2H, dated 1 June 1994, by wrongfully carrying a dangerous weapon within the barracks.

CHARGE III: VIOLATION OF THE UCMJ, ARTICLE 134

SPECIFICATION 4: In that Private Antonious D. Wingate, U.S. Marine Corps, Marine Wing Headquarters Squadron 3, 3d Marine Aircraft Wing, Marine Forces Pacific, [did] on or about 15 March 1995, unlawfully carry on or about his person a concealed weapon, to wit: a 9mm pistol.

Different regulatory provisions were violated in specifications 1 and 2 of Charge I, (Paragraphs 7003.3 and 7003.4 of Station Order P5510.2H (1 June 1994)). They state: 3. Transportation of Firearms, Dangerous Weapons and Ammunition

a. No person shall carry on or about their person any firearm or other dangerous weapon concealed from view, except when authorized in the performance of official duty. "On or about" means that the weapon is carried by a person or kept within the person’s reach.

b. Other than when authorized in the performance of official duty, no person shall carry on or about their person or within their vehicle any loaded firearm. A firearm is deemed to be "loaded" when there is an unexpended cartridge or shell in, or attached in any manner to, the firearm. This includes, but is not limited to, a cartridge or shell which is in the firing chamber, the magazine, or a clip which is attached to or inserted in the firearm.

c. Other than when authorized in the performance of official duty, individuals transporting firearms or other dangerous weapons aboard the Station must place the weapons inside the trunk of their vehicle. If a vehicle does not have a trunk, then the weapon may be transported in the passenger compartment. Firearms must be unloaded at the time of transportation. Ammunition must be transported in a sealed package or container.

4. Storage of Firearms, Dangerous Weapons, and Ammunition

a. Military Family Housing. All personnel residing in military family housing who desire to store firearms or other dangerous weapons in their respective quarters will register all such weapons with the PMO per paragraph 7003.1 prior to such storage. A completed copy of the registration form will be used as a permit for such retention and will be stored with the weapon at all times. Ammunition for registered weapons may also be stored in quarters. All firearms retained within quarters will be unloaded. All firearms, dangerous weapons and ammunition will be made inaccessible to children or disassembled to render them inoperable.

b. Barracks or Bachelor Officers Quarters (BOQ). At no time shall firearms, dangerous weapons, or ammunition be allowed within the Barracks or BOQ aboard the Station, unless required in the performance of official duties. Unit armories are designated as the only acceptable storage space for firearms, dangerous weapons, and ammunition possessed by personnel residing in these areas. Such firearms or other dangerous weapons must be registered with the PMO before being stored in the appropriate armory. Persons who check their weapons out of their unit armory for use over a weekend or in the evening will not store their weapon(s) in the barracks or in their vehicles. When aboard the Station, the weapon(s) will be temporarily stored in the PMO Armory, Building 6, which is open 24 hours a day, 7 days a week.

Specification 1 of Charge I requires proof that appellant carried a dangerous weapon, on base, concealed on his body. Specification 2 of Charge I requires proof that appellant carried a dangerous weapon within the barracks. Each offense has a different element of proof and neither offense necessarily proves the other. Accordingly, these are separate offenses for purposes of findings. United States v. Britton, 47 MJ 195 (1997); United States v. Oatney, 45 MJ 185 (1996); see generally Ball v. United States, 470 U.S. 856 (1985). Moreover, even if these offenses do both violate the same provision of law, dismissal of one is not required without further analysis. See United States v. Christner, 66 F.3d 922, 928-29 n.7 (8th Cir. 1995).

I conclude that specification 4 of Charge III (carrying a concealed weapon in violation of good order and discipline) is multiplicious for findings with specification 1 of Charge I (carrying a dangerous concealed weapon in violation of para. 7003.3 of Station Order P5510.2H). See United States v. Harwood, 46 MJ 26, 28-29 (1997); see generally United States v. Lloyd, 46 MJ 19 (1997). I also conclude that the evidence of record does not support the finding of guilty to specification 2 of Charge I (carrying a dangerous weapon within the barracks in violation of Para. 7003.4 of Station Order P5510.2H). See generally United States v. Byers, 40 MJ 321, 323 (CMA 1994). Accordingly, I join the result reached by the majority.

ORDERS GRANTING PETITION FOR REVIEW

No. 97-0709/MC. U.S. v. Antonious D. WINGATE. CCA 96-0375. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0305/NA. U.S. v. Eric V. CLAYTON. CCA 96-1530.

No. 98-0350/MC. U.S. v. Keith P. TRUEHART. CCA 97-1849.

No. 98-0353/MC. U.S. v. Michael M. WHITE. CCA 97-0238.

No. 98-0432/MC. U.S. v. Marc A. NOAKES. CCA 97-1015.

No. 98-0448/MC. U.S. v. Edwin D. BARBOSA. CCA 96-1582.

No. 98-0451/MC. U.S. v. Jeffery K. LANDRUM. CCA 97-0500.

No. 98-0454/MC. U.S. v. Stephen E. LYON. CCA 97-1839.

No. 98-0455/NA. U.S. v. Danny MARTINEZ. CCA 97-0966.

No. 98-0456/NA. U.S. v. Edwin J. PARKER, II. CCA 97-0638.

No. 98-0467/AR. U.S. v. David J. LOUD. CCA 9601165.

No. 98-0480/MC. U.S. v. Mark R. RABIDEAU. CCA 97-0921.

No. 98-0487/AR. U.S. v. Jeffery L. EVANS. CCA 9601590.

No. 98-0494/AF. U.S. v. Michael A. FRALEY. CCA 32608.

No. 98-0499/MC. U.S. v. James E. MARKS. CCA 97-2092.

No. 98-0500/MC. U.S. v. William A. BRATON. CCA 97-1249.

No. 98-0506/NA. U.S. v. Pierre G. LEPOUREAU. CCA 96-2109.

No. 98-0508/MC. U.S. v. Travis A. BINEGAR. CCA 97-1047.

No. 98-0524/MC. U.S. v. James W. IRIZARRY. CCA 97-1769.

No. 98-0528/NA. U.S. v. Angela M. WILLIAMS. CCA 97-1762.

No. 98-0529/AR. U.S. v. Rodrigo A. HERNANDEZ. CCA 9601656.

No. 98-0533/AR. U.S. v. Gamal SABLA. CCA 9700699.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0764/AR. U.S. v. Trevor D. GORDON. CCA 9700390.

No. 98-0765/MC. U.S. v. Kevin S. LEE. CCA 96-1851.

No. 98-0766/AF. U.S. v. Timothy L. ANYS, Jr. CCA S29484.

No. 98-0767/AF. U.S. v. Drake M. CRUZ. CCA S29414.

INTERLOCUTORY ORDERS

No. 97-7001/AF. U.S. v. Jose F.S. SIMOY. CCA 30496. Appellant’s motion to file corrected pages granted.

No. 98-0078/AR. U.S. v. Ervin M. GRAVES. CCA 9401271. Appellant’s third motion to extend time to file supplement to petition for grant of review granted to July 8, 1998.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-170
JUNE 9, 1998

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0495/AF. U.S. v. John M. WHITE. CCA 32590.

No. 98-0519/AF. U.S. v. Gina Y. KING. CCA 32752.

No. 98-0520/AF. U.S. v. David E. STOCK. CCA S29443.

No. 98-0523/AF. U.S. v. William R. HARRISON. CCA S29427.

No. 98-0538/AF. U.S. v. Charmmaletta L. VENEY. CCA 32926.

No. 98-0545/MC. U.S. v. Marty G. DUMO. CCA 97-1465.

No. 98-0546/MC. U.S. v. Raul VILLALOBOS, Jr. CCA 97-1130.

No. 98-0547/AF. U.S. v. Michael A. CASTELLAW. CCA S29380.

No. 98-0548/AF. U.S. v. Scott C. HIRSCH. CCA 32823.

No. 98-0550/AF. U.S. v. David G. RICHARDSON. CCA 32867.

No. 98-0553/MC. U.S. v. Michael L. CARTER. CCA 97-1907.

No. 98-0555/MC. U.S. v. Adam S. MIRANDA. CCA 97-1828.

No. 98-0557/AF. U.S. v. Marty J. WHITTEN. CCA S29422.

No. 98-0559/MC. U.S. v. Anthony D. CHATMAN. CCA 97-1429.

No. 98-0560/NA. U.S. v. Clint L. POWELL. CCA 97-1932.

No. 98-0563/AF. U.S. v. Robert C. BRYAN. CCA 32914.

No. 98-0566/AF. U.S. v. Brent A. NOISETTE. CCA S29466.

No. 98-0572/NA. U.S. v. Lester W. FOXWORTH. CCA 96-2356.

No. 98-0576/AF. U.S. v. Charles L. WATTERSON. CCA 32776.

No. 98-0577/AF. U.S. v. Jason C. TIBBETS. CCA 32785.

No. 98-0612/AF. U.S. v. Thomas G. STUBBS. CCA 32767.

No. 98-0626/AF. U.S. v. Eduardo RAMIREZ. CCA 32899.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0768/MC. U.S. v. Jesse P. DOEINCK. CCA 98-0268.

No. 98-0769/MC. U.S. v. Terrance L. SPANN. CCA 96-1420.

No. 98-0770/MC. U.S. v. Clinton R. WILSON. CCA 97-1391.

No. 98-0771/AR. U.S. v. Randall J. DOWNEY. CCA 9700554.

No. 98-0772/AR. U.S. v. Jeffrey C. GREEN. CCA 9700933.

No. 98-0773/AR. U.S. v. Dexter G. HOWARD. CCA 9700204.

No. 98-0774/AR. U.S. v. Vernon R. SCOTT, Jr. CCA 9601958.

No. 98-0775/AR. U.S. v. Shaun M. SMITH. CCA 9600300.

No. 98-0776/AR. U.S. v. Antoine WATTS. CCA 9701005.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 98-8019/NA. John J. HAEGER, appellant, v. UNITED STATES, appellee. CCA 90-3785. Documents submitted by appellant and construed as writ appeal petition for review of United States Navy-Marine Corps Court of Criminal Appeals denial of petition for extraordinary relief filed under Rule 27(b).

MANDATES ISSUED

No. 97-0469/AF. U.S. v. Michael D. LINDSEY. CCA 32088.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-171
JUNE 10, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0083/AF. U.S. v. Matthew S. ATER. CCA 32581.*/

No. 98-0777/AF. U.S. v. Melvin L. ALDRIDGE. CCA S29442.

No. 98-0778/AF. U.S. v. Ian S. GRANT. CCA 33088.

No. 98-0779/AF. U.S. v. John G. HAVRILESKO, Jr. CCA 32900.

No. 98-0780/AF. U.S. v. Dennis A. JOHNSON. CCA S29453.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 98-8019/NA. John J. HAEGER, appellant, v. UNITED STATES, appellee. CCA 90-3785. Writ-appeal petition for review of denial of petition for extraordinary relief in the nature of writ of habeas corpus denied.

INTERLOCUTORY ORDERS

No. 97-0597/AF. U.S. v. Warren L. DINGES. CCA 32122. Appellee’s motion to submit supplemental citation to the record of trial denied.

No. 98-0037/MC. U.S. v. Kevin M. HOLT. CCA 94-2003. Appellant’s motion to attach documents granted as to exhibits I-III and denied as to the remaining exhibits.

MANDATES ISSUED

No. 97-0843/MC. U.S. v. Michael L. CURRY. CCA 95-0016.
_________

*/ Second petition filed in same case.
 
 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98 172
JUNE 11, 1998

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0146/AF. U.S. v. Leslie D. RILEY. CCA 32183. Review granted on the following issues:

I. Whether the Air Force Court of Criminal Appeals, after finding that the evidence was factually insufficient to establish that Airman Riley intended to kill or inflict great bodily harm upon her new born infant daughter, erred when it affirmed a conviction for involuntary manslaughter where: A. Such a finding was contrary to the "law of the case" since trial counsel affirmatively asserted that the Government was not proceeding under any theory of culpability arising from the failure to summon medical care and the military judge instructed the members that they could not convict Airman Riley on such a theory;

B. Substituting an allegation that the cause of death was the refusal and impedance of assistance and care for the infant was a fatal variance from the charged specification which alleged the cause of death as the intentional fracturing of the infant’s skull and, thus, denied Airman Riley of the due process requirement of notice;

C. Airman Riley was denied the right to have her guilt or innocence determined by the members since the members, having convicted her of unpremeditated murder, never, pursuant to the military judge’s instructions, considered whether the negligence of the Air Force doctors was a sufficient intervening proximate cause to relieve her of criminal liability; and

D. Since there is no evidence that the infant was alive during "the three separate times" when Airman Riley allegedly turned away care and assistance while in the hospital bathroom, the evidence is legally insufficient to support a conviction of involuntary manslaughter.

II. Whether the Air Force Court of Criminal Appeals erred when, after having found the evidence to be sufficient only to support a conviction for the legally less serious offense of involuntary manslaughter, it reassessed the "maximum available punishment." No. 98-0232/AR. U.S. v. Kurt M. BERTIE. CCA 9600846. Review granted on the following issue personally assigned by appellant: Whether the convening authority stacked the court-martial with senior officers and NCOs. No. 98-0306/MC. U.S. v. Kenneth R. WATT. CCA 96-1587. Review granted on the following issues raised by appellate defense counsel: I. Whether appellant was denied a fair trial when the military judge abandoned his role as an impartial and neutral arbiter and assumed the role of a partisan advocate for the prosecution by badgering appellant with a question he knew appellant could not answer.

II. Whether appellant was denied his constitutional right to present a defense because the military judge ruled that he could not answer the judge’s question about the reasoning process that led him to make sexual advances on the alleged victim.
 

and the following issue specified by the Court:  
Whether appellant was denied the fundamental right to a fair trial when the military judge ruled a member’s question called for an impermissible response from appellant, instructed appellant to not give the answer, and then proceeded to ask similar questions and allow trial counsel to ask similar questions which called for the answer appellant had been instructed not to give.
No. 98-0388/AR. U.S. v. Derek C. ARMON. CCA 9601892. Review granted on the following issue: Whether the military judge committed plain error when allowing three government witnesses to offer their opinions during presentencing testimony before panel members regarding whether appellant should return to serve in his unit. No. 98-0431/NA. U.S. v. Stephanie K. FEE. CCA 97-0382. Review granted on the following issue personally assigned by appellant. Whether the Navy-Marine Corps Court of Criminal Appeals erred by affirming a sentence including six years confinement and a dishonorable discharge, where appellant’s husband received a sentence of fifteen months confinement and a bad-conduct discharge for similar offenses.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0125/NA. U.S. v. Raymond N. SHIRLEY. CCA 95-1383.

No. 98-0332/AR. U.S. v. Francis R. PEIRCE. CCA 9601778.

No. 98-0444/AF. U.S. v. Corey J. LEIGH. CCA 32671.

No. 98-0445/AF. U.S. v. Dung P.T. NGUYEN. CCA 32855.

No. 98-0446/AF. U.S. v. Timothy A. PERRI. CCA 32600.

No. 98-0526/MC. U.S. v. Rocky D. MCINTOSH. CCA 97-0657.

No. 98-0527/NA. U.S. v. Jose L. NOYOLA. CCA 97-0859.

No. 98-0540/AR. U.S. v. Jason E. BARHAM. CCA 9701683.

No. 98-0544/AR. U.S. v. Robert L. TINDALL. CCA 9700348.

No. 98-0554/MC. U.S. v. Rasheed A. GRAHAM. CCA 96-1833.

No. 98-0561/NA. U.S. v. Keith L. HARRIS. CCA 94-1947.

No. 98-0565/AF. U.S. v. Christopher W. MEADOR. CCA 32894.

No. 98-0567/AF. U.S. v. Edward J. SEGOBIA, III. CCA S29474.

No. 98-0571/MC. U.S. v. Cervone C. COPES. CCA 97-0272.

No. 98-0574/AF. U.S. v. Eric D. GOODIN. CCA 32839.

No. 98-0580/NA. U.S. v. Todd A. BREMER. CCA 97-1990.

No. 98-0587/MC. U.S. v. Carlos VILLICANA. CCA 97-1938.

No. 98-0588/AF. U.S. v. Anthony J. BALMERT. CCA 32922.

No. 98-0592/AF. U.S. v. Askia M. MCFADDEN. CCA S29517.

No. 98-0602/NA. U.S. v. Robert A. WARMACK. CCA 97-0302.

No. 98-0604/AR. U.S. v. Hikem S. DALTON. CCA 9701333.

No. 98-0606/MC. U.S. v. Gary M. BATES. CCA 97-0704.

No. 98-0607/MC. U.S. v. Thomas J. LIOTT. CCA 97-0993.

No. 98-0625/AF. U.S. v. Cedric W. MORSE. CCA S29456.

No. 98-0628/MC. U.S. v. Joseph T. ANTOSH. CCA 97-1805.

No. 98-0632/NA. U.S. v. Dallas C. MYERS. CCA 97-1757.

No. 98-0666/AF. U.S. v. John D. DAVIS. CCA 32939.

No. 98-0685/AF. U.S. v. Angela L. DRAUGHN. CCA S29392.

No. 98-0686/AF. U.S. v. Terry S. FULBRIGHT. CCA S29496.

No. 98-0689/AF. U.S. v. Kristopher J. LALONDE. CCA 33071.

No. 98-0690/AF. U.S. v. Brooker T. MALTAIS. CCA 32923.

No. 98-0691/AF. U.S. v. Luke M. O'SHAUGHNESSY. CCA S29503.

No. 98-0692/AF. U.S. v. Royce A. PELKEY. CCA S29450.

No. 98-0697/AF. U.S. v. Sonya M. WILLIAMS. CCA 32982.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0781/NA. U.S. v. Benjamin T. SELF. CCA 98-0191.

No. 98-0782/NA. U.S. v. Rory D. SMITH. CCA 97-1810.

INTERLOCUTORY ORDERS

No. 97-0242/AR. U.S. v. Thomas HAVERS, II. CCA 9500015. Appellant’s motion to extend time to file supplement to petition for grant of review granted to July 13, 1998.

No. 98-0207/AF. U.S. v. David E. RUSSELL. CCA 32662. Appellee’s motion to extend time to file answer to final brief granted to July 21, 1998.

No. 98-0251/MC. U.S. v. Timothy A. BROWN. CCA 96-1443. Appellant’s second motion to extend time to file final brief granted to June 19, 1998.

No. 98-0535/AF. U.S. v. Daniel R. FREZZA. CCA 32470. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to June 29, 1998

No. 98-0657/AR. U.S. v. Brian D. ROBERSON. CCA 9600765. To June 12, 1998.

No. 98-0658/NA. U.S. v. Darrell J. MUIRHEAD. CCA 96-1211.

No. 98-0659/MC. U.S. v. David S. NEWTON. CCA 96-1815.

No. 98-0680/AR. U.S. v. Anthony W. BORNEMAN. CCA 9600172. To July 13, 1998.

No. 98-0681/NA. U.S. v. Tyrone L. WELLS. CCA 96-1349. To July 10, 1998.

    In each of the above five cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to July 8, 1998, unless otherwise indicated.

No. 98-0661/NA. U.S. v. Jimmy HIERSCHE. CCA 98-0020. Appellant’s motion to extend time to file supplement to petition for grant of review out of time granted to July 8, 1998.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-173
JUNE 12, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 97-1073/AF. U.S. v. Gregory W. HAYMAKER. CCA 32338. On further consideration of the granted issue, ___ MJ ___ (Daily Journal Jan. 14, 1998), in light of United States v. Miller, 46 MJ 248 (1997), and United States v. Coffey, 38 MJ 290 (CMA 1993), the decision of the United States Air Force Court of Criminal Appeals is affirmed. Appellant’s motion to submit document out of time granted.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 97-1056/AR. U.S. v. Richard F. JENSEN. CCA 9601495. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in the above entitled case in light of United States v. Gorski, 47 MJ 370 (1997), the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996), affects the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a) (1994), will apply.

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the ExPost Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0267/AR. U.S. v. Joshua L. COMAN. CCA 9600853.

No. 98-0385/AR. U.S. v. Daniel J. DeSANTI. CCA 9601323.

No. 98-0437/AR. U.S. v. David HIRALDO. CCA 9701543.

    In each of the above three cases, on consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in light of United States v. Gorski, 47 MJ 370 (1997), the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996), affects the sentence in each case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a) (1994), will apply.

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Judge Effron did not participate in these decisions. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in these cases should they subsequently be presented to this Court in a manner that does not require determination of the application of the ExPost Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0783/NA. U.S. v. Michael W. FRICKE. CCA 96-1293.

No. 98-0784/MC. U.S. v. Jason M. ABRAMS. CCA 96-1714.

No. 98-0785/AF. U.S. v. David I. JOHNSON. CCA S29475.

No. 98-0786/AF. U.S. v. Jennifer L. PLANK. CCA S29480.
 
 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-174
JUNE 15, 1998

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0434/MC. U.S. v. Kasie L. DAWSON. CCA 96-2394. Review granted on the following issue:

Whether the Navy-Marine Corps Court of Criminal Appeals erred when it held that a post-trial agreement between the convening authority and appellant was valid although it effected a retrospective waiver of numerous violations of appellant’s substantial due process rights.
PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0787/MC. U.S. v. Corey T. BALLARD. CCA 96-2572.

No. 98-0788/NA. U.S. v. Jeffrey G. CONNELL. CCA 97-0559.

No. 98-0789/AR. U.S. v. Eric M. CAROZZA. CCA 9701609.

No. 98-0790/AR. U.S. v. Jimmie L. DUBOSE, Jr. CCA 9701331.

No. 98-0791/AR. U.S. v. Louis S. BARBER, Jr. CCA 9700969.

No. 98-0792/AF. U.S. v. Eric L. CONGROVE. CCA 33074.

No. 98-0793/AF. U.S. v. Erin L. KINSELLA. CCA 32680.

INTERLOCUTORY ORDERS

No. 98-0037/MC. U.S. v. Kevin M. HOLT. CCA 94-2003. To July 15, 1998.

No. 98-0109/AF. U.S. v. Jeffrey R. RICHTER. CCA 32106. To July 20, 1998.

No. 98-0489/NA. U.S. v. Anthony R. SHERMAN. CCA 96-0840. To July 22, 1998.

    In each of the above three cases, appellee’s motion to extend time to file answer granted to the date indicated.

No. 98-0638/AF. U.S. v. Jose L. RENSENDEZ, Jr. CCA S29246.

No. 98-0640/AF. U.S. v. Zane I. MCBRIDE. CCA 32709.

    In each of the above two cases, appellant’s motion to submit supplement to petition for grant of review out of time granted.

No. 98-0671/MC. U.S. v. Avery C. BATTS. CCA 96-2536. Appellant’s motion to extend time to file supplement to petition for grant of review granted to July 13, 1998.

No. 98-0710/AF. U.S. v. Brian L. SIEBE. CCA S29160.

No. 98-0712/AF. U.S. v. Sharon W. WRIGHT. CCA 32089.

In each of the above two cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to July 15, 1998.

MANDATES ISSUED

No. 97-0278/AF. U.S. v. Brady J. YOUNGMAN. CCA 32055.

No. 97-0542/AF. U.S. v. Sean C. SWEENEY. CCA 32026.

No. 97-0626/AF. U.S. v. Michael R. GRILL. CCA 32218.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-175
JUNE 16, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0794/AR. U.S. v. Robert G. JAMES. CCA 9701141.

INTERLOCUTORY ORDERS

No. 98-0264/AR. U.S. v. Jason S. WESLEY. CCA 9700164. Appellant’s motions to file defense appellate exhibit A and to file out of time on behalf of appellant denied.

    Judge Effron did not participate in the decision on these motion. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996.

No. 98-0335/NA. U.S. v. Julian W. LEWIS, Jr. CCA 96-0807. Appellant’s motion to file supplemental reason for granting review granted.

No. 98-0382/MC. U.S. v. Damien D. SAMPLE. CCA 97-1219. On consideration of appellant’s motions to stay proceedings, to attach documents and to compel a psychological evaluation pursuant to RCM 706, it is ordered that the motion to file documents is granted; the remaining motions are denied; and appellate defense counsel shall file a supplement to the petition for grant of review on or before July 16, 1998.

    COX, Chief Judge (dissenting):

    I would remand this case to the United States Navy-Marine Corps Court of Criminal Appeals to consider the defense request for a mental examination of appellant consistent with the Court’s practice for extraordinary requests. Cf. Rule 4(b)(1), Rules of Practice and Procedure for the United States Court of Appeals for the Armed Forces.

No. 98-0704/AF. U.S. v. Jon A. COOPER. CCA 32388. Appellant’s motion to extend time to file supplement to petition for grant of review granted to July 7, 1998.

Misc. No. 98-8016/NA. Dell R. VANDERSCHUIT, petitioner, v. UNITED STATES, respondent. On further consideration of the above styled case in light of the response filed by the respondent to the order of this Court to show case why the relief requested by the petitioner should not be granted, it is ordered that the United States be designated the respondent as indicated in the style of this case; and that counsel for the United States either produce the documents requested by the petitioner or, alternatively, show cause why the documents should not be produced.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-176
JUNE 17, 1998

APPEALS - SUMMARY DISPOSITIONS

No. 95-0189/AF. U.S. v. Chester NASH, Jr. CCA 30248. On further consideration of the above styled case in light of United States v. Scheffer, 523 U.S. ___ (1998), and the remand of the case to this Court by the Supreme Court of the United States, (United States v. Nash, Jr., No. 96-1134, April 6, 1998), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 95-0346/AF. U.S. v. Chad E. LYNN. CCA 30133. On further consideration of the above styled case in light of United States v. Scheffer, 523 U.S. ___ (1998), and the remand of the case to this Court by the Supreme Court of the United States, (United States v. Lynn, No. 96-1134, April 6, 1998), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 95-0758/AF. U.S. v. Cedric W. MOBLEY. CCA 30881. On further consideration of the above styled case in light of United States v. Scheffer, 523 U.S. ___ (1998), and the remand of the case to this Court by the Supreme Court of the United States, (United States v. Mobley, No. 96-1134, April 6, 1998), the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 96-1235/AF. U.S. v. John C. WHITE. CCA 31474. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals upon further review, it is ordered that said petition is granted; and that the decision of the United States Air Force Court of Criminal Appeals upon further review is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 97-1159/AF. U.S. v. Cabbett M. GALLOWAY. CCA 32540. On further consideration of the granted issue (Daily Journal December 11, 1997) we note that appellant’s enlistment expired on August 12, 1996. Appellant was not tried until November 12, 1996. Thus her entitlement to pay and allowances ceased as of that date, and there were no monies to be forfeited. See 39 Comp. Gen. 42. Accordingly, the decision of the United States Air Force Court of Criminal Appeals is affirmed as to result only.

    SULLIVAN, Judge (dissenting):

    I would remand this case to the United States Air Force Court of Criminal Appeals under United States v. Gorski, 47 MJ 370, 376 (1997) (separate opinion of J. Sullivan).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the ExPost Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 97-1198/AR. U.S. v. Darren S. MEHLER. CCA 9601064. On further consideration of the granted issue (Daily Journal December 11, 1997) we note that after announcing a sentence which included total forfeitures, the military judge stated:

With respect to the forfeiture of pay issue, the court’s hands were tied by the most recent change to Article 58b. The court is aware that the convening authority, in the exercise of his discretion - and this is purely discretionary on the convening authority’s part - he may direct that the forfeiture of pay, which the court was required to adjudge by Article 58b, be paid to the accused’s dependents for a period up to six months. The court indeed recommends that the convening authority exercise that discretion and provide Specialist Mehler’s wife and child the pay that the court was required to adjudge in the way of forfeitures for that period of six months. It is clear from this comment that the military judge believed that the addition of Article 58b, Uniform Code of Military Justice, 10 USC § 858b, required that he impose total forfeitures as part of the sentence.

Article 58b is closely akin to Article 58a, UCMJ, 10 USC § 858a. As to Article 58a, this Court has held that, despite that Article, the sentencing authority was free to adjudge reduction to any enlisted grade, as long as it was made aware that an administrative consequence of imposing a discharge or confinement was automatic reduction to the lowest enlisted grade. See United States v. Koleff, 16 USCMA 268, 269-70, 36 CMR 424,425-26 (1966). This means that Article 58a does not require that a reduction be adjudged as part of a sentence to a discharge or confinement. See United States v. Powell, 12 USCMA 288, 289, 30 CMR 288, 289 (1961). ("Congress had no intention of passing legislation designed to provide for an automatic, judicially imposed penalty if certain other punishments were awarded by the court-martial and approved by the convening authority.") We have previously concluded that the same principles apply to the operation of Article 58b. See United States v. Pedrazoli, No. 97-0516, __ MJ __ (Daily Journal January 28, 1998). Therefore, the military judge’s belief that maximum forfeitures were a mandatory part of the sentence because of the other components of the adjudged sentence was erroneous. This rebuts the presumption that the military judge knew the law and applied it correctly. Cf. United States v. Raya, 45 MJ 251, 253 (1996). Finally, we decline to apply waiver in this case as the court below considered this issue and rejected it.

We hold that this issue affects the validity of part of the sentence. We find prejudice as to the sentence, but only concerning the forfeitures, in view of the fact that the military judge may not have imposed maximum forfeitures if he had realized that they were not mandatory.

Consequently, for purposes of the granted issue, we treat the sentence as including only a bad-conduct discharge, confinement for 10 months, and reduction to E-1. For the reasons stated in United States v. Gorski, 47 MJ 370 (1997), we conclude that Article 58b, and the 14-day rule of Article 57(a)(1), UCMJ, 10 USC § 857(a)(1), do not apply to this case. Accordingly, the decision of the United States Army Court of Criminal Appeals as to forfeitures is reversed. The forfeitures are set aside. In all other respects the decision below is affirmed as to result only. Collection of any forfeitures, and execution of the reduction in grade prior to the date of the convening authority’s action, are hereby declared to be without legal effect. Any forfeitures already collected from appellant, and any pay and allowances withheld because of the premature reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Army for appropriate action.

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Senior Judge Everett did not participate.

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the ExPost Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

ORDERS GRANTING PETITION FOR REVIEW

No. 96-1235/AF. U.S. v. John C. WHITE. CCA 31474. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 98-0309/MC. U.S. v. Aaron S. VOORHEES. CCA 97-0831. Review granted on the following issues:

I. Whether the convening authority was an accuser due to his personal interest in appellant’s case, and therefore could not enter into a pretrial agreement with appellant.

II. Whether the convening authority was an accuser due to his personal interest in appellant’s case, and therefore could not perform the post-trial review of appellant’s case.

III. Whether appellant was denied effective assistance of counsel where civilian defense counsel and trial defense counsel both failed to object to the convening authority’s post-trial review when the convening authority became an accuser prior to trial.

No. 98-0511/MC. U.S. v. Andrea N. LACY. CCA 97-0667. Review granted on the following issue: Whether appellant’s sentence and the sentences in the companion cases of Lance Corporal Daniel and Private First Class Seay are inappropriately disparate, rendering appellant’s sentence inappropriately severe as a matter of law.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0158/AF. U.S. v. Gregory D. BROOKS. CCA 32509.

No. 98-0183/AF. U.S. v. Tricia T. RAMROOP. CCA S29385.

No. 98-0213/AF. U.S. v. Duane L. BRUBAKER. CCA 32607.

No. 98-0218/AF. U.S. v. Clinton L. JOHNSON. CCA 32545.

No. 98-0234/AF. U.S. v. Jeffrey L. COULTER. CCA 32642.

No. 98-0284/AF. U.S. v. Robert L. GREENE. CCA 32605.

No. 98-0299/NA. U.S. v. Luke T. AMORESANO. CCA 97-1075.

    Judge Effron did not participate in the decisions in any of the above seven cases. See United States v. Gorski, __ MJ ___ (Daily Journal September 8, 1997). This is without prejudice to his future participation in these cases should they subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 98-0271/AF. U.S. v. Tony D. WHITTY. CCA 32665. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals in the above-entitled case in light of United States v. Gorski, 47 MJ 370 (1997), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462 (1996), affects the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the ExPost Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0285/AF. U.S. v. Wesley R. STARKEY. CCA 32661. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals in the above-entitled case in light of United States v. Gorski, 47 MJ 370 (1997), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), and the addition of Article 58b, UCMJ, 10 USC § 858b, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996), affect the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0287/AR. U.S. v. Thurston K. SAWTELLE. CCA 9601029. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals in the above-entitled case in light of United States v. Gorski, 47 MJ 370 (1997), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to that court for consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462 (1996), affects the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the ExPost Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0308/AR. U.S. v. Paul D. PIERCE. CCA 9601171. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals we note that appellant has for the first time on appeal raised an issue questioning whether appellate defense counsel was ineffective under the Sixth Amendment and/or failed to comply with this Court’s decision in United States v Grostefon, 12 MJ 431 (CMA 1982), when he failed to contact appellant to inquire if appellant desired to submit any issues for appellate consideration even though appellant was incarcerated in the custody of the Federal Government during the pendency of his appeal at the Army Court of Criminal Appeals. It is appropriate for the court below to consider this question initially and to take appropriate action. It is also appropriate that the court below consider the above entitled case in light of United States v. Gorski, 47 MJ 370 (1997). Accordingly, the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the issue of ineffective assistance of appellate defense counsel raised for the first time before us and for consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462 (1996), affects the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the ExPost Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

No. 98-0370/MC. U.S. v. Shawn W. WEST. CCA 96-2355. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals in the above-entitled case in light of: (1) United State v. Gorski, 47 MJ 370 (1997); (2) the military judge’s erroneous advice that forfeitures at this special court-martial could be adjudged against both pay and allowances (R.22-23); and (3) the acting convening authority’s purported "vacation" of "the remainder of [appellant’s] sentence" on July 3, 1996, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462 (1996), affects the sentence in this case. Additionally, that court will consider the lawfulness of the adjudged and approved sentence as it extends to forfeitures, and the impact of the acting convening authority’s purported "vacation" of appellant’s sentence. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.

    SULLIVAN, Judge (concurring):

    I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0795/NA. U.S. v. Craig D. BROWNFIELD. CCA 93-1483.

No. 98-0796/AF. U.S. v. Dante R. RHYNE. CCA 33044.

No. 98-0797/AF. U.S. v. Kristopher L. RIVERA. CCA 32980.

No. 98-0798/AF. U.S. v. Kenneth J. ROBINSON. CCA 33013.

INTERLOCUTORY ORDERS

No. 98-0586/AR. U.S. v. Charles A. SEDGWICK. CCA 9600543. On consideration of appellee’s motion to dismiss petition for grant of review and supplement to petition for grant of review, it is ordered that on or before June 29, 1998 appellee file documents with this Court reflecting service of the decision of the United States Army Court of Criminal Appeals on appellant pursuant to Article 67(b), Uniform Code of Military Justice, 10 USC § 867(b).
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-177
JUNE 18, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0799/AR. U.S. v. Curtis MITCHELL. CCA 9700813.

No. 98-0800/NA. U.S. v. Kevin L. JETT. CCA 97-1840.

No. 98-0801/NA. U.S. v. Kristi C. HURDA. CCA 97-0648.

No. 98-0802/MC. U.S. v. Christohper M. BYARS. CCA 96-2164.

No. 98-0803/NA. U.S. v. Loren D. DRAKE. CCA 98-0064.
 
 



UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-178
JUNE 19, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0804/AR. U.S. v. Raymond J. BOVE. CCA 9701115.

No. 98-0805/MC. U.S. v. Wade A. REIDT. CCA 97-00614.

No. 98-0806/AF. U.S. v. Christopher L. CLAWSON. CCA 33020.

No. 98-0807/AF. U.S. v. Sampson C. GAYLER, II. CCA 33007

No. 98-0808/AF. U.S. v. Mary J. PATTERSON. S29495.

No. 98-0809/AF. U.S. v. John C. ZARTMAN. CCA 33024.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-179
JUNE 22, 1998

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0133/AF. U.S. v. Jerry W. OWENS. CCA 32468. Review granted on the following issue:

Whether the military judge erred as a matter of law when he denied appellant’s motion to suppress evidence. No. 98-0270/AR. U.S. v. Charles F. ROTH. CCA 9600441. Review granted on the following issue: Whether the military judge abused her discretion by refusing to allow appellant to offer a sentencing witness in rebuttal to the Government’s inference that appellant stole night vision goggles for use by a street gang. No. 98-0275/AF. U.S. v. Paul J. UNDERWOOD. CCA 32633. Review granted on the following issues: I. Whether the Air Force Court of Criminal Appeals erred when it found that the convening authority’s withdrawal and re-referral of charges was proper, even though such action undeniably circumvented the military judge’s ruling denying the prosecution’s request for a continuance of the proceedings.

II. Whether the application of Articles 57(a) and 58b, UCMJ, violate the Ex Post Facto Clause of the United States Constitution with respect to appellant.

    Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the ExPost Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0810/AR. U.S. v. Nathan D. LOONEY. CCA 9500433.

No. 98-0811/AR. U.S. v. Ezell MCCALPINE, Jr. CCA 9701508.

No. 98-0812/MC. U.S. v. Mario GARCIAMENDEZ. CCA 97-0051.

No. 98-0813/AF. U.S. v. David C. YAWMAN. CCA 33114.

No. 98-0814/AF. U.S. v. Christopher W. MCFARLAND. CCA S29494.

No. 98-0815/AF. U.S. v. Felix A. OTERO, III. CCA 33128.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-180
JUNE 23, 1998

PETITIONS FOR GRANT OF REVIEW DENIED

No. 97-1108/AR. U.S. v. Clement L. O'DONOGHUE. CCA 9502203.

No. 98-0295/NA. U.S. v. Hideo WILLIAMS. CCA 97-0086.*/

No. 98-0344/NA. U.S. v. Donald B. JACKSON. CCA 97-0307.

No. 98-0465/AR. U.S. v. Scot A. BLOOMFIELD. CCA 9701002.

No. 98-0599/AR. U.S. v. Christopher T. ZACHOW. CCA 9701418.

No. 98-0725/AF. U.S. v. Desmond B. HICKS. CCA S29482.

INTERLOCUTORY ORDERS

No. 97-0963/AF. U.S. v. Charles E. HANLEY, III. CCA 32370.

No. 98-0708/MC. U.S. v. Alexander J. LOGAN. CCA 97-2098.

No. 98-0717/AF. U.S. v. Daniel G. GARRISON. CCA S29403.

No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 96-0822.

In each of the above four case, appellant’s motion to extend time to file supplement to petition for grant of review granted to July 22, 1998.

No. 98-0160/NA. U.S. v. Antonio D. SCHULER. CCA 96-1316. Appellee’s motion to extend time to file answer to final brief granted to July 24, 1998.

No. 98-0542/AR. U.S. v. Cody W. OWEN. CCA 9502158. Appellant’s motion to enter Grostefon submission to supplement to petition for grant of review denied.

No. 98-0660/NA. U.S. v. Barry W. NOVINSKA. CCA 97-0119. Appellant’s motion to attach documents granted.

No. 98-5026/AF. U.S. v. Heath E. AUGUSTINE. CCA 32792. Cross-appellant’s motion to extend time to file supplement to cross-petition for grant of review granted to July 22, 1998.

MANDATES ISSUED

No. 97-0728/NA. U.S. v. Jermayne L. SMITH. CCA 96-0199.
___________

*/ It is noted that the specification to Charge III on Special Court-Martial Order No. 01-95 incorrectly indicates a plea and finding of guilty. Appellant pled not guilty to and was found not guilty of Charge III and its specification. A corrected promulgating order should be issued.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-181
JUNE 24, 1998

CERTIFICATES FOR REVIEW FILED

No. 98-5030/AR. United States, appellant, v. Timothy B. GIBSON, appellee. CCA 9600274. The Judge Advocate General, United States Army, requests that action be taken with respect to the following issues:

I. Whether the Army Court of Criminal Appeals erred in finding ineffective assistance of counsel on the basis of trial defense counsel failure to learn of witnesses who might have impeached the prosecutrix’ veracity , where there was overwhelming and unrebutted independent evidence that [appellee], a married man, and the fifteen year old prosecutrix who was not his spouse, undressed in his vehicle during daylight hours and engaged in sexual relations.

II. Whether, assuming the Army Court of Criminal Appeals correctly decided that defense counsel were ineffective in not learning of witnesses who might have questioned the truth of the prosecutrix’ allegations and veracity, that court nonetheless erred by setting aside all findings of guilty, where the alleged ineffectiveness could have only caused a reasonable doubt as to some elements, but could not have caused a reasonable doubt as to the lesser-included offenses of carnal knowledge, indecent acts (or liberties) with a child and indecent acts with another, and to the independent offense of adultery.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0816/AF. U.S. v. Deloyd M. EBERT. CCA 33086.

No. 98-0817/AF. U.S. v. Mark J. FOLEY. CCA 32908.

No. 98-0818/AF. U.S. v. Daniel K. SKINNER. CCA 33004.

No. 98-0819/AF. U.S. v. Elizabeth D. TURNER. CCA S29487.

No. 98-0820/MC. U.S. v. Samuel M. JONES. CCA 97-2140.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-182
JUNE 25, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0821/AR. U.S. v. David L. HAGER. CCA 9701751.

No. 98-0822/AR. U.S. v. Grady D. GLOVER. CCA 9600736.

No. 98-0823/AR. U.S. v. Brian K. HETHERINGTON. CCA 9701337.

No. 98-0824/AR. U.S. v. Reginald B. THOMPSON. CCA 9600958.

No. 98-0825/MC. U.S. v. Shanard R. MCDANIELS. CCA 97-0570.

No. 98-0826/MC. U.S. v. Jermaine T. STREET. CCA 96-1610.

No. 98-0827/MC. U.S. v. Chadme J. JOSEPH. CCA 97-1254.

No. 98-0828/NA. U.S. v. Cortney A. RILEY. CCA 97-0631.

No. 98-0829/NA. U.S. v. Eric L. JOHNSTON. CCA 94-1274.

INTERLOCUTORY ORDERS

No. 98-0591/AF. U.S. v. Gregg D. KOONTZ. CCA 32459. Appellant’s motion to submit documents denied.

    SULLIVAN, Judge (dissenting): I would grant the motion.

    Judge Effron did not participate in the decision on this motion. See United States v. Gorski, No.97-0034, __ MJ __ (Daily Journal September 8, 1997)). This is without prejudice to his future participation in this case should it subsequently be presented to the Court in a manner that does not require determination of the application of the Ex Post Facto Clause to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-183
JUNE 26, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0830/AF. U.S. v. Ashley J. BROCK-DUPONT. CCA 32986.

No. 98-0831/AF. U.S. v. Robert A. JOHNSON. CCA 33001.

No. 98-0832/AF. U.S. v. Kenyetta N. LOVINGS. CCA 33019.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-184
JUNE 29, 1998

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0833/AR. U.S. v. David HERNANDEZ-RIVERA. CCA 9700183.

No. 98-0834/AR. U.S. v. Tony A. SOFTLEY. CCA 9700967.

No. 98-0835/MC. U.S. v. Walter HALL, Jr. CCA 96-1526.
 


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
NO. 98-185
JUNE 30, 1998

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0542/AR. U.S. v. Cody W. OWEN. CCA 9502158.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0836/NA. U.S. v. Robert C. CHIVERS. CCA 97-0849.

No. 98-0837/AR. U.S. v. Paul E. WHITNER. CCA 9501034.
 
 
 
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