UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-227
Wednesday, September 01, 1999

ORDERS GRANTING PETITION FOR REVIEW

No. 99-0419/AR. U.S. v. Homer R. LANGSTON. CCA 9700358. Review granted on the following issues:

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY HOLDING M.R.E. 615 DID NOT APPLY TO THE PROVIDENCE INQUIRY AND THAT THE MILITARY JUDGE WAS NOT OBLIGATED TO SEQUESTER CERTAIN WITNESSES AT THE REQUEST OF THE DEFENSE.

II. WHETHER THE MILITARY JUDGE ERRED BY ALLOWING MERITS WITNESSES TO SIT IN THE COURTROOM DURING SFC LANGSTON'S PROVIDENCE INQUIRY OVER HIS OBJECTION, THEREBY PREJUDICING SFC LANGSTON.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0854/NA. U.S. v. Michael H. JOHNSON. CCA 98-2139.

INTERLOCUTORY ORDERS

No. 96-0659/AR. U.S. v. Steven L. BECKER. CCA 9400644. On further consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals filed in the above-entitled case and docketed under Docket No. 99-0854/AR on August 2, 1999, it appears that said petition was a second petition filed in an earlier case and was inadvertently given a new docket number. Accordingly, it is ordered that Docket No. 99-0854/AR issued on August 2, 1999, be rescinded in this case; that Docket No. 96-0659/AR be substituted and used on all future documents filed in this case; and that Docket No. 99-0854/AR be reassigned in due course to a new case.

MANDATES ISSUED

No. 99-0129/AF. U.S. v. Ross A. MCFADYEN. CCA 32878.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-228
Thursday, September 02, 1999

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 99-0870/AF. U.S. v. Brian S. DANIELS. CCA 33579. Appellant’s motion to file petition for grant of review out of time denied.

PETITIONS FOR GRANT OF REVIEW FILED

No. 97-1056/AR. U.S. v. Richard F. JENSEN. CCA 9601495. */

No. 99-0948/AR. U.S. v. Joe J. MACIAS. CCA 9800404.

INTERLOCUTORY ORDERS

No. 96-0659/AR. U.S. v. Steven L. BECKER. CCA 9600644. Appellant's motion to extend time to file supplement to petition for grant of review granted to October 1, 1999.

No. 99-0865/MC. U.S. v. Derrick D. JOHNSON. CCA 98-1524. Appellant's motion to attach lower court's decision to appellant 's supplement to the petition for grant of review granted.
_____________________

*/ Third petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-229
Friday, September 03, 1999

RETURN OF RECORD FROM COURT OF CRIMINAL APPEALS

No. 97-0528/AF. U.S. v. James RUIZ. CCA 31955. Notice is hereby given that the record of trial was returned to the Clerk’s Office in accordance with the decision of this Court, 49 MJ 340 (1998), and has been referred to the Court for further consideration.

PETITIONS FOR GRANT OF REVIEW FILED

No. 97-1172/AF. U.S. v. Jeffrey A. FUQUA. CCA 32496. */

No. 98-1013/AR. U.S. v. Stephen F. MESSNER. CCA 9600694.*/

No. 99-0949/NA. U.S. v. Michael P. NISGORE. CCA 99-0583.

No. 99-0950/MC. U.S. v. Charles B. RAY. CCA 98-0117.

No. 99-0951/AF. U.S. v. Anthony R. MCINTIRE. CCA S29675.

MANDATES ISSUED

No. 98-0335/NA. U.S. v. Julian W. LEWIS, Jr. CCA 96-0807

No. 98-0987/AR. U.S. v. Charlie SCOTT. CCA 9502201

______________________

*/ Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-230
Tuesday, September 07, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0952/AR. U.S. v. Kirt T. SMITH. CCA 9900129.

No. 99-0953/AR. U.S. v. Rohan G.R. WILSON. CCA 9700659.

No. 99-0954/AR. U.S. v. Rick E. SIEBERT. CCA 9801132.

No. 99-0955/NA. U.S. v. Andrew J. BURKIETT. CCA 97-1774.

No. 99-0956/NA. U.S. v. Brian E. HUSBANDS. CCA 98-1850.

No. 99-0957/AF. U.S. v. Richard C. BALL. CCA S29632.

No. 99-0958/AF. U.S. v. Reymund BELL. CCA S29677.

No. 99-0959/AF. U.S. v. Byron K. DODSON. CCA 33677.

No. 99-0960/AF. U.S. v. Ramiro LOYA. CCA 33639.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-231
Wednesday, September 08, 1999

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 99-0274/AR. U.S. v. Christopher L. CAIN. CCA 9601810. 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. Messner, 51 MJ 487 (1999), the decision of the United States Army Court of Criminal Appeals is set aside and the record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

PETITIONS FOR GRANT OF REVIEW FILED

No. 97-0302/AF. U.S. v. Jacqueline JOHNSON-SAUNDERS. CCA S29158.*/

No. 99-0962/AF. U.S. v. Keith L. SANDERS. CCA 33621.

INTERLOCUTORY ORDERS

No. 99-0306/MC. U.S. v. James D. GUTHRIE. CCA 95-1697. Appellant's motion to extend time to file final brief granted, but only up to and including October 12, 1999.

No. 99-0399/MC. U.S. v. Jose D. AVILA, Jr. CCA 97-0776. Appellant's motion to extend time to file final brief granted, but only up to and including October 8, 1999.

No. 99-0570/MC. U.S. v. Robert DIFFOOT. CCA 97-0515. Appellant's motion to cite supplemental authority granted; appellee's motion to extend time to file answer to final brief granted, but only up to and including October 4, 1999.

No. 99-0778/AF. U.S. v. Paul G. HUBERTY. CCA 32574.
Appellant's motion to submit brief in excess of fifty pages granted.

No. 99-0780/NA. U.S. v. Aaron K. ECHOLS. CCA 98-1059. Appellant's motion to file supplement to petition for grant of review out of time granted.
_____________________

*/ Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-232
Thursday, September 09, 1999

APPEALS - SUMMARY DISPOSITIONS

No. 98-0088/AF. U.S. v. Herold S. OSBORNE. CCA 32479. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, 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.]

    SULLIVAN, Judge (dissenting): I dissent. See my separate opinion in United States v. Roseboro, 50 MJ 207 (1998).

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0088/AF. U.S. v. Herold S. OSBORNE. CCA 32479. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 99-0311/AR. U.S. v. Brant D. PFISTER. CCA 9600589. Review granted on the following issue:

WHETHER THE STAFF JUDGE ADVOCATE DEPRIVED APPELLANT OF AN OPPORTUNITY TO RESPOND TO NEW POST-TRIAL MATTERS BY: (1) PRESENTING SAID NEW MATTERS TO THE CONVENING AUTHORITY ONLY ONE DAY AFTER THE ARMY COURT OF CRIMINAL APPEALS DENIED APPELLANT'S PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF PROHIBITION TO EXCLUDE SAID NEW MATTERS, WITHOUT FIRST NOTIFYING APPELLANT'S COUNSEL OF THE COURT'S DECISION, AND (2) PRESENTING SAID NEW MATTERS TO THE CONVENING AUTHORITY WITHOUT FIRST NOTIFYING APPELLANT'S COUNSEL THAT APPELLANT'S REQUEST THAT THE STAFF JUDGE ADVOCATE WITHDRAW THE NEW MATTERS WAS DENIED; APPELLANT'S DECISION TO DEFER REBUTTAL OF THE SAID NEW MATTERS UNTIL AFTER RESOLUTION OF THE PENDING PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF PROHIBITION AND UNTIL AFTER RESOLUTION OF HIS PENDING REQUEST TO THE STAFF JUDGE ADVOCATE TO WITHDRAW THE NEW MATTERS WAS NOT AN AFFIRMATIVE WAIVER; THEREFORE, WAIVER DOES NOT APPLY.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0504/AF. U.S. v. Daniel M. SCHATTE. CCA 32699.

    SULLIVAN, Judge (dissenting):

    I dissent. See my separate opinion in United States v. Roseboro, 50 MJ 207 (1998).

No. 98-1082/AF. U.S. v. Stephen W. MOORE. CCA 32974.

    SULLIVAN, Judge (dissenting):

    I dissent. See my separate opinion in United States v. Roseboro, 50 MJ 207 (1998).

    Judge Effron did not participate in this decision. See United States v. Gorski, 48 MJ 316 (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 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).

INTERLOCUTORY ORDERS

No. 98-0783/NA. U.S. v. Michael W. FRICKE. CCA 96-1293. Appellant's second motion to admit appellate exhibits denied.

No. 99-0111/NA. U.S. v. Brian H. HENSLEY. CCA 98-0225. Appellee's motion to attach documents granted.

No. 99-0666/NA. U.S. v. Marion H. TANKSLEY. CCA 96-1402.
Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to October 4, 1999.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-233
Friday, September 10, 1999

APPEALS – SUMMARY DISPOSITIONS

No. 99-0270/MC. U.S. v. Barry W. EASON. CCA 98-0082. On further review of the granted issue (51 MJ 477), in light of United States v. Johnston, 51 MJ 227 (1999), the decision of the United States Navy-Marine Corps Court of Criminal Appeals and the action of the convening authority are set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority for a new staff judge advocate’s recommendation and convening authority’s action. Thereafter, Articles 66 and 67, Uniform Code of Military Justice, 10 USC §§ 866 and 867 (1994), shall apply.

    CRAWFORD, Judge (dissenting):

    While the staff judge advocate's recommendation (SJAR) was served on the original military defense counsel rather than (as requested by appellant) on Mr. Robert Parks, civilian counsel who represented appellant, any error in this case would be harmless beyond a reasonable doubt. I am convinced that the government error in not serving the SJAR on civilian counsel did not prejudice appellant.

    Pursuant to a pretrial agreement, appellant pleaded guilty to the following periods of unauthorized absence:

1. April 7-13, 1997
2. April 16 - May 28, 1997
3. June 1 - 23, 1997
4. June 26 - August 11, 1997
    Appellant had also been given non-judicial punishment for an unauthorized absence in 1997.

    The convening authority (CA) approved appellant's sentence to a bad-conduct discharge, 60 days' confinement, and partial forfeitures. The pretrial agreement with the CA required the CA to suspend all confinement in excess of 60 days. Otherwise, any sentence adjudged could be approved.

    During sentencing, appellant's father testified that appellant "definitely" wanted to leave the Marine Corps "[a]s soon as possible." Appellant's father discussed with him the consequences of receiving a bad-conduct discharge. Recognizing that he would have "bad paper," appellant told his father of his willingness to accept those consequences.

    In his unsworn statement, appellant stated that he let the Marine Corps down and did not want to remain in the Marine Corps, even though that may have meant a punitive discharge. He understood the "adverse effect on my life from here on out but I think it's best for everyone, for me and the Corps to go their route." He appreciated that he was "unlikely" to get his discharge upgraded.

    The court below noted that

the detailed defense counsel retained an ethical obligation to protect his client's interests, at least for the purpose of ensuring that the materials were forwarded to Mr. Parks....We presume, therefore, that he reviewed the SJAR and the record of trial and evaluated whether to submit comments or additional materials on behalf of his client. After doing so, he determined that it was not in his client's best interests to do so. The mere failure to submit clemency materials does not constitute ineffective assistance of counsel. Nor is it ineffective representation to fail to comment on an SJAR, particularly, as here, when the document contains no error. Unpub. op. at 2.

    In any event, "appellant and his civilian defense counsel had 10 weeks between the date of trial and the convening authority's action to make his case for clemency." Id. at 2-3.

    In light of all of the above, it is hard to find prejudicial error. Additionally, it is highly unlikely that any favorable action would take place on returning the case for a new SJAR and CA's action. See United States v. Johnston, 51 MJ 227, 230 (1999) (Crawford, J., dissenting).

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0961/AF. U.S. v. Victor G. BEGIN. CCA 32755.

No. 99-0963/MC. U.S. v. Dustin D. HOUSTON. CCA 98-1934.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-234
Monday, September 13, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0441/AR. U.S. v. Jeffery A. ESTABROOK. CCA 9601988.

No. 99-0670/AR. U.S. v. Aloysius D. DAVIS. CCA 9701057.

No. 99-0781/AR. U.S. v. Markeith L. WILLIAMS. CCA 9801140.

No. 99-0786/MC. U.S. v. Vitaly KOVALENKO. CCA 99-0220.

No. 99-0790/AF. U.S. v. Michael V. BURKE. CCA 33591.

No. 99-0798/AR. U.S. v. Bruce A. WRIGHT. CCA 9701987.

No. 99-0800/AF. U.S. v. Brian R. CARMICHAEL. CCA S29648.

No. 99-0812/AR. U.S. v. Shedrick COLEMAN. Sr. CCA 9801562.

No. 99-0813/AF. U.S. v. John G. WOODMAN. CCA S29601.

No. 99-0814/AF. U.S. v. Daniel P. PRISCO. CCA S29662.

No. 99-0830/AR. U.S. v. Michael D. MARTIN. CCA 9801095.

No. 99-0835/AR. U.S. v. Mark E. BLECKMANN. CCA 9800888.

No. 99-0839/AF. U.S. v. Arthur L. JOHNSON II. CCA S29473.

No. 99-0841/AR. U.S. v. Kelneavan C. STROZIER. CCA 9800874.

No. 99-0868/AF. U.S. v. Christopher L. THOMSON. CCA 33667.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 99-0747/NA. U.S. v. James R. MILLER, III. CCA 99-0111. Appellee’s motion to dismiss petition for grant of review granted.

No. 99-0821/AR. U.S. v. Ricky D. JYNES. CCA 9801388. Appellant’s motion to withdraw petition for grant of review granted.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0440/AR. U.S. v. John H.I. WARNER. CCA 9601510. 1/

No. 99-0656/AR. U.S. v. Nicky A. THOMPSON. CCA 9600798. 2/

No. 99-0964/NA. U.S. v. Kristopher J. GREGOIRE. CCA 99-0589.

No. 99-0965/MC. U.S. v. Pedro A. TOLLINCHI. CCA 98-0246.

No. 99-0966/AF. U.S. v. Thomas C. BALL. CCA S29635.

No. 99-0967/AR. U.S. v. Murali S. KULATHUNGAM. CCA 9700340.

No. 99-0968/AR. U.S. v. Jarrod A. CAROZZA. CCA 9701519.

MISCELLANEOUS DOCKET – FILINGS

Misc. No. 99-8031/AF. U.S. v. Eric J. JOHNSTON. CCA 99-05. Writ-appeal petition for review of the United States Air Force Court of Criminal Appeals decision on application for extraordinary relief filed under Rule 27(b).

PETITIONS FOR RECONSIDERATION DENIED

No. 99-8016/MC. U.S. v. Richard E. JOHNSON. CCA 98-1076. Appellant’s motion to file petition for reconsideration out of time and to supplement the record of trial granted; appellee’s motion to file out of time answer to appellant’s petition for reconsideration granted. Appellant’s petition for reconsideration denied.

INTERLOCUTORY ORDERS

No. 93-7001/AR. U.S. v. Ronald A. GRAY. CCA 8800807. Appellee's second motion to extend time to file response to appellant's petition for reconsideration granted to September 20, 1999.

No. 97-0149/AR. U.S. v. Christopher W. CAMPBELL. CCA 9400527. Appellee's motion to file reply to appellant’s petition for reconsideration out of time denied as moot; appellee's motion to admit exhibits C, D, E, and F granted.

No. 98-0461/MC. U.S. v. John P. BEASLEY. CCA 96-1904. Appellant's motion to file supplemental assignment of error denied.

No. 99-0365/MC. U.S. v. Todd A. NAPOLITANO. CCA 97-0675.

No. 99-0724/MC. U.S. v. Matthew J. ALVES. CCA 97-1610.

    In each of the above two cases, appellant's motion to extend time to file final brief granted, but only up to and including October 8, 1999.
__________________

1/ Third petition filed in same case.

2/ Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-235
Tuesday, September 14, 1999

APPEALS – SUMMARY DISPOSITIONS

No. 99-0524/MC. U.S. v. Francisco J. LOPEZ. CCA 96-2454. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 99-0524/MC. U.S. v. Francisco J. LOPEZ. CCA 96-2454. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 99-0580/AF. U.S. v. Craig J. FANGUY, Jr. CCA S29419. Review granted on the following issue raised by appellate defense counsel:

WHETHER THE SPECIFICATION OF CHARGE I FAILS TO STATE AN OFFENSE, OR ALTERNATIVELY, THE APPELLANT'S PLEA TO THAT CHARGE AND SPECIFICATION WAS IMPROVIDENT IN THAT HIS CONDUCT WAS NOT IN VIOLATION OF 18 U.S.C. § 2252(a)(4)(A) BECAUSE HE DID NOT POSSESS THREE OR MORE BOOKS, MAGAZINES, PERIODICALS, FILMS, VIDEO TAPES, OR OTHER MATTER WHICH CONTAINED ILLEGAL IMAGES. and the following issue specified by the Court: WHETHER APPELLANT WAS GUILTY OF A LESSER INCLUDED OFFENSE UNDER ARTICLE 134, CLAUSE 1 OR CLAUSE 2, WITH RESPECT TO THE SPECIFICATION OF CHARGE I WHERE HE ADMITTED ALL THE ESSENTIAL ELEMENTS TO SUCH LESSER INCLUDED OFFENSE. No. 99-0619/AR. U.S. v. David M. MELANSON. CCA 9801266. Review granted on the following issue: WHETHER THE ARMY LACKED IN PERSONAM JURISDICTION OVER APPELLANT BECAUSE HE HAD BEEN VALIDLY DISCHARGED FROM ACTIVE DUTY. No. 99-0695/MC. U.S. v. Matthew T. YUNK. CCA 98-0228. Review granted on the following issue: WHETHER THE LOWER COURT ERRED IN FINDING ERROR AND THEN AWARDING WHAT AMOUNTED TO SHAM RELIEF BECAUSE THAT RELIEF IS EFFECTIVELY NULLIFIED BY THE AUTOMATIC FORFEITURE PROVISION OF ARTICLE 58b, UCMJ.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0768/AF. U.S. v. Jimmy B. HERRERA. CCA 32863.

No. 99-0785/AR. U.S. v. Richard S. RIBAR, Jr. CCA 9801120.

No. 99-0805/AF. U.S. v. Steven J. WIGLEY. CCA 33577.

No. 99-0806/AF. U.S. v. Robert E. SAWYER. CCA 33657.

No. 99-0808/AF. U.S. v. Phillip P. MORROW, Jr. CCA 33619.

No. 99-0809/AF. U.S. v. Jonathan V. FONNER. CCA 33309.

No. 99-0815/AF. U.S. v. Randy J. JONES. CCA S29621.

No. 99-0816/AF. U.S. v. Mika J. GUYER. CCA S29653.

No. 99-0823/AF. U.S. v. Ryan V. MOORE. CCA 33482.

No. 99-0836/AF. U.S. v. Mark A. DEES. CCA 33197.

No. 99-0840/AF. U.S. v. David J. CAMACHO. CCA 33574.

No. 99-0845/AF. U.S. v. Raphael HINTON. CCA S29652.

No. 99-0850/AF. U.S. v. Robert S. FLOYD. CCA S29659.

No. 99-0860/AF. U.S. v. Michael E. BUTTS. CCA 33590.

No. 99-0867/AF. U.S. v. Eric D. BOYD. CCA 33089.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0969/AR. U.S. v. Ivan E. BROWN. CCA 9700631.

No. 99-0970/NA. U.S. v. Iidefonso M. OMINGO. CCA 98-0783.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 99-8030/NA. Kenneth W. GODDARD, petitioner, v. The Navy-Marine Corps Court of Criminal Appeals, respondent. CCA 95-1179. On consideration of the petition for extraordinary relief, respondent’s motions to dismiss petition for writ of prohibition, to dismiss the United States Navy-Marine Corps Appellate Review Activity as a party, to attach, and the response to the order of the Court to show cause why the requested relief should not be granted, it is ordered that respondent’s motion to dismiss the United States Navy-Marine Corps Appellate Review Activity as a party is granted; that respondent’s motion to dismiss petition for extraordinary relief in the nature of a writ of prohibition is granted; that respondent’s motion to attach is granted; that the petition for extraordinary relief in the nature of a writ of mandamus is granted; and that said case is hereby forwarded to the Judge Advocate General for remand to the Court of Criminal Appeals for completion of review under Article 66, Uniform Code of Military Justice, 10 USC § 866.

INTERLOCUTORY ORDERS

No. 98-0385/AR. U.S. v. Daniel J. DE SANTI. CCA 9601323.
Appellant's motion to extend time to file supplement to petition for grant of review granted to October 12, 1999.

No. 99-0802/AF. U.S. v. Jadey D. THOMAS. CCA 33530. Appellant's second motion to extend time to file supplement to petition for grant of review granted, but only up to and including October 1, 1999; absent extraordinary circumstances, no further extension of time will be granted in this case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-236
Wednesday, September 15, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0590/AR. U.S. v. Addis G. WILEY. CCA 9101188.

No. 99-0661/NA. U.S. v. Brian A. KOCH. CCA 98-0483.

No. 99-0729/NA. U.S. v. Maxon E. HARTLEY. CCA 98-0406.

No. 99-0748/AF. U.S. v. Swazetta L. JOHNSON. CCA 32830.

No. 99-0749/AF. U.S. v. Jacque D. JAMES. CCA 33524.

No. 99-0762/AF. U.S. v. Swazetta L. JOHNSON. CCA 33032.

No. 99-0807/AF. U.S. v. Scott N. HOWARD. CCA 33504.

No. 99-0819/AF. U.S. v. Ray A. CHAVEZ. CCA 33368.

No. 99-0824/AF. U.S. v. Shawn M. HAZELWOOD. CCA S29535.

No. 99-0828/AR. U.S. v. Clayton L. BRIGGS. CCA 9701939.

No. 99-0855/AF. U.S. v. John F. TULODIESKI III. CCA S29666.

No. 99-0857/AF. U.S. v. Michael PASTVA. CCA S29614.

No. 99-0875/AF. U.S. v. Konya C. HURT. CCA 32991.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0971/NA. U.S. v. Mark A. CARLISLE. CCA 98-0612.

No. 99-0972/AF. U.S. v. Robert P. MCGOUGH. CCA 32987.

MANDATES ISSUED

No. 96-1241/AF. U.S. v. Johnnie M. TAYLOR. CCA 31574.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-237
Thursday, September 16, 1999

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0534/AR. U.S. v. Edward L. WORTHINGTON. CCA 9601109.

No. 99-0704/NA. U.S. v. Mitchell J. KLEIN. CCA 98-1466.

No. 99-0709/AR. U.S. v. Robert W. DISMUS, Jr. CCA 9701128.

No. 99-0727/MC. U.S. v. Nelson VAZQUEZ, Jr. CCA 98-0470.

No. 99-0784/AR. U.S. v. Timothy PINCKNEY. CCA 9602024.

No. 99-0787/NA. U.S. v. Jermaine D. NELSON. CCA 97-1628.

No. 99-0792/AF. U.S. v. Patrice L. ELMORE-BURTON. CCA S29432.

No. 99-0833/AF. U.S. v. Robin M. DOHRWARDT. CCA S29658.

No. 99-0849/AF. U.S. v. Shermaine T. COX. CCA 33384.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0973/MC. U.S. v. Sean K. WILLIAMS. CCA 98-0213.

No. 99-0974/AR. U.S. v. Reinaldo MONTANEZ-PITRE. CCA 9701865.

MANDATES ISSUED

No. 98-1050/NA. U.S. v. Daniel H. CARPENTER. CCA 97-2146.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-238
Friday, September 17, 1999

APPEALS – SUMMARY DISPOSITIONS

No. 99-0516/NA. U.S. v. Roberto LAUDERBAUGH. CCA 96-2071. On considersation of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we conclude that the action taken by the court below was correct as a matter of law. Our decision in Willenbring v. Neurauter, 48 MJ 152 (1998), supports the finding that the court-martial had personal jurisdiction over the appellant. Accordingly, the petition is hereby granted and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 99-0516/NA. U.S. v. Roberto LAUDERBAUGH. CCA 96-2071. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 99-0604/AF. U.S. v. Chris D. LITTLEWOOD. CCA 32763. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN ALLOWING APPELLANT'S COMMANDER, OVER DEFENSE OBJECTION, TO PERSONALLY CHARACTERIZE THE NATURE AND EFFECT OF MANY OF THE ACTS THAT APPELLANT ALLEGEDLY COMMITTED. No. 99-0631/MC. U.S. v. Edward L. JENKINS. CCA 97-1567. Review granted on the following issues: I. WHETHER THE LOWER COURT ERRED IN FINDING NO PREJUDICE WHERE THE TRIAL COUNSEL COMMITTED PLAIN ERROR BY REPEATEDLY ASKING APPELLANT ON CROSS-EXAMINATION WHETHER NUMEROUS WITNESSES WHO HAD TESTIFIED INCONSISTENTLY WITH APPELLANT WERE LYING.

II. WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR BY ARGUING FOR INCREASED PUNISHMENT BECAUSE APPELLANT PURPORTEDLY TESTIFIED FALSELY.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0846/AF. U.S. v. Robert D. O’NEAL II. CCA 33654.

No. 99-0847/AR. U.S. v. Jeffery L. SIMMONS. CCA 9800411.

No. 99-0848/AR. U.S. v. Bill WATTS, Jr. CCA 9800876.

No. 99-0861/NA. U.S. v. James N. MORRIS. CCA 98-1604.

No. 99-0879/AR. U.S. v. Raymond GAYHEART. CCA 9801778.

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0389/AR. U.S. v. James O. WRIGHT. CCA 9601769. 1/

No. 98-1071/AR. U.S. v. Willie L. VERTISON. CCA 9600303. 2/

No. 99-0975/AR. U.S. v. Scott G. GUSTAFSON. CCA 9801361.

No. 99-0976/AF. U.S. v. Carl D. VESTAL, Jr. CCA S29671.

No. 99-0977/AF. U.S. v. Philip P. MUNA. CCA 33200.

No. 99-0978/AF. U.S. v. Jason M. CAYEA. CCA 33635.

No. 99-0979/AF. U.S. v. Mary L. COLLIER. CCA 32886.

No. 99-0980/NA. U.S. v. Shannon J. HALBERT. CCA 98-1310.
___________________

1/ Third petition filed in same case.

2/ Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-239
Monday, September 20, 1999

RULE CHANGES

Upon careful consideration of certain proposed changes to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, which were presented to and reviewed by the Rules Advisory Committee of the United States Court of Appeals for the Armed Forces and thereafter published in the Federal Register for comment, it is ordered that effective October 1, 1999, Rules 9(d), 30(e), 36, and 39 are amended and new Rule 36A is promulgated as provided in the Attachment to this order.

ATTACHMENT TO COURT ORDER OF 20 SEPTEMBER 1999

PROMULGATION OF NEW RULE 36A AND CHANGES
TO RULES 9(d), 30(e), 36, AND 39
OF THE RULES OF PRACTICE AND PROCEDURE,
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

EFFECTIVE OCTOBER 1, 1999

RULE 9. CLERK

[Amend Rule 9(d) to delete the word and comma "citations," in the first sentence of this subsection.]

RULE 30. MOTIONS

[Amend Rule 30(e) to delete the words "other than those to file recent supplemental citations of authority without additional argument".]

RULE 36. FILING OF PLEADINGS

(a) In general. Pleadings or other papers relative to a case shall be filed in the Clerk’s office, 450 E Street, Northwest, Washington, D.C. 20442-0001, either in person or by mail. See Rule 37(b)(2).

(b) Filing in person. If a pleading or other paper is filed in person, such filing shall consist of delivery to a member of the Clerk’s office during normal business hours. See Rule 9(e).

(c) Filing by mail. If a pleading or other paper is filed by mail, such filing shall consist of depositing the pleading or other paper with the United States Postal Service, with no less than first-class postage prepaid, properly addressed to the Clerk’s office.

(d) Time of filing. Pleadings or other papers shall be deemed to have been filed on the date they are delivered to the Clerk’s office under subsection (b) or on the date they are mailed under subsection (c). See Rules 37(b)(1) and 39(e).

(e) Non-compliant pleadings. If any pleading or other paper is not filed or offered for filing in compliance with these Rules or an order of the Court, the Court may issue an order to show cause, dismiss the proceeding, or return the proffered pleading or paper on its own motion or the motion of a party. See Rules 27(a)(4) and 37(b)(1).

RULE 36A. CITATIONS TO SUPPLEMENTAL AUTHORITIES

If pertinent and significant authorities come to a party’s attention after such party has filed a pleading allowed under these Rules, or after oral argument but before a final decision, the party may promptly advise the Clerk by letter, with a copy to all parties, setting forth the citations. The letter must state, without argument, the reasons for each supplemental citation, referring either to the page of the earlier filed pleading or to a point argued orally to which the citation is pertinent. Any response by other parties must be made promptly and must be similarly limited. See Rule 37(b)(2).

RULE 39. SERVICE OF PLEADINGS

(a) In general. At or before the filing of any pleading or other paper relative to a case in the Clerk’s office, a copy thereof shall be served in person or by mail on all counsel of record, including amicus curiae counsel. See Rule 16(b). When a party is not represented by counsel, service shall be made on such party in person or by mail. When reasonable, considering such factors as the immediacy of the relief sought, distance, and cost, service must be at least as expeditious as the manner used to file the pleading or other paper with the Court. See Rule 36.

(b) Personal service. If service is made in person, it shall consist of delivery at the office of the counsel of record, either to counsel or to an employee therein. If the party is not represented, service shall consist of delivery to such party.

(c) Service by mailIf service is made by mail, it shall consist of depositing the pleading or other paper with the United States Postal Service, with no less than first-class postage prepaid, addressed to the counsel of record or, if the party is not represented, to such party, at the proper post office address.

(d) Certificate for review. In the case of a certificate for review, service of a copy thereof shall be made on appellate defense counsel and appellate government counsel as prescribed in Rule 22(a).

(e) Form of certificate of filing and service. A certificate indicating the specific manner of filing under Rule 36 and the specific manner of service under this rule shall be included in any pleading or other paper substantially in the following form:

CERTIFICATE OF FILING AND SERVICE

I certify that the original and seven copies of
the foregoing were [delivered] (or) [mailed-specify class of
mail] to the Court on ____________ and that a (date) copy of the foregoing was [delivered] (or) [mailed-specify
class of mail] to (enter specific name of each counselof
record or party, ifnot represented) on _______________. (date)


_____________________________

(Typed name and signature of
certifying person)

  _____________________________   (Address and telephone no.
of certifying person)
- - - - - - - - - -

RULES ADVISORY COMMITTEE COMMENTS



RULES ADVISORY COMMITTEE COMMENT ON REVISION TO RULE 9(d)

Rule 36A having been promulgated, the reference to "citations" in Rule 9(d) has been deleted as no longer necessary.

RULES ADVISORY COMMITTEE COMMENT ON REVISION TO RULE 30(e)

Rule 36A having been promulgated, the phrase referring to motions "to file recent supplemental citations of authority without additional argument" has been deleted as no longer necessary.

RULES ADVISORY COMMITTEE COMMENT ON RULE 36

The amendments to Rule 36 set forth the particular methods for filing pleadings or other papers relative to a case in person and by mail and provide that, when a filing is accomplished by mail, it must be made with no less than first-class postage prepaid, properly addressed to the Clerk’s office. A similar provision is incorporated in the amendments to Rule 39 for service of pleadings and other papers relative to a case.

RULES ADVISORY COMMITTEE COMMENT ON NEW RULE 36A

New Rule 36A substantially tracks Rule 28(j) of the Federal Rules of Appellate Procedure. It is designed to provide a party with an expeditious means of submitting important authorities to the Court that were either previously overlooked or unavailable when an earlier pleading was filed. The rule does not allow additional argument to be made and such letters should not be used for this purpose. If a party believes that supplemental briefing would be appropriate, that party should seek leave of Court to do so on motion under Rule 30 and should not rely on this rule for that purpose.

RULES ADVISORY COMMITTEE COMMENT ON RULE 39

The amendments to Rule 39 specify that the service of pleadings or other papers relative to a case, when accomplished by mail, must be made with no less than first-class postage prepaid. A similar provision is incorporated in the amendments to Rule 36 for the filing of pleadings and other papers relative to a case. Rule 39(a) also provides that, where practicable, service of a pleading or other paper should be by a means at least as expeditious as the manner in which the filing of such pleading or paper with the Court is accomplished under Rule 36.

APPEALS - SUMMARY DISPOSITIONS

No. 99-0252/NA. U.S. v. Terrence M. JONES. CCA 97-0486. 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, we note that the court stated: "As to factual sufficiency, we must ourselves be convinced of the accused’s guilt beyond a reasonable doubt after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses. Turner, 2[5] MJ at 325. In so doing, we give a degree of deference to the findings of the trier of fact who saw and heard the witnesses. United States v. Torres-Rodriguez, 37 MJ 809, 810 (NMCMR 1993); United States v. Bright, 20 MJ 661, 664 (NMCMR 1985)." Unpub op. at 3.

    In United States v. Turner, 25 MJ 324, 325 (1987), this Court noted that reference to Bright by the court below may create an ambiguity as to whether the lower court has made an independent determination of factual sufficiency, "recognizing that the trial court saw and heard the witnesses." Art. 66(c), Uniform Code of Military Justice, 10 USC § 866(c)(1994); see United States v. Irvinspence, 39 MJ 893, 896 (ACMR 1994), pet. denied, 42 MJ 99 (CMA 1995). From the opinion below, it is unclear whether that court independently evaluated the sufficiency of the evidence, as well as made that evaluation based upon an independent determination of credibility and the weight to be accorded the evidence of record. Because of this uncertainty, it is appropriate that we remand the case for further review. Accordingly, the petition for grant of review is granted, and 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 further review under Article 66(c). Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 99-0252/NA. U.S. v. Terrence M. JONES. CCA 97-0486. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW DENIED

No. 98-0461/MC. U.S. v. John P. BEASLEY. CCA 96-1904.

No. 99-0829/AR. U.S. v. Christopher R. KLINE. CCA 9800760.

No. 99-0877/AF. U.S. v. David A. SMITH. CCA 33371.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 99-0676/AR. U.S. v. Clyde B. PUGH, Jr. CCA 9600811. 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 the decision of the United States Army Court of Criminal Appeals is set aside and that the record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals. That court will consider whether appellant is within the class of persons who are entitled to relief under United States v. Gorski, 47 MJ 370 (1997). If the court concludes that appellant is within such class, the court will refer the case to the Judge Advocate General for a determination as to the amount of relief that is warranted, if any.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0981/AR. U.S. v. Craig E. WATERMAN. CCA 9700675.

No. 99-0982/AR. U.S. v. Jorge L. JOLY. CCA 9701546.

No. 99-0983/AR. U.S. v. Kevin E. BROWN. CCA 9701539.

No. 99-0984/AR. U.S. v. Kier D. JACKSON. CCA 9700166.

No. 99-0985/AR. U.S. v. Matthew E. LONG. CCA 9900333.

No. 99-0986/AF. U.S. v. Richard H. SABY. CCA 33609.

No. 99-0987/AF. U.S. v. Robert E. DUMP. CCA 33629.

INTERLOCUTORY ORDERS

No. 98-0811/AR. U.S. v. Ezell MCCALPINE, Jr. CCA 9701508. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and the petition for new trial in the above-entitled case, we note that appellate defense counsel have averred that Dr. Lois Freisleben-Cook has prepared an affidavit but that it had not yet been received at the time the pleadings were filed. Counsel further assert that this affidavit is necessary to resolve the issues raised in the petition for new trial. Accordingly, it is ordered that appellate defense counsel advise this Court in writing whether they have received an affidavit from Dr. Freisleben-Cook, and if so, whether they intend to submit it to the Court. Appellate defense counsel’s response and any affidavit that appellate defense counsel desire to submit shall be filed on or before October 20, 1999.

No. 98-1013/AR. U.S. v. Stephen F. MESSNER. CCA 9600694. Appellant's motions to file petition for grant of review out of time, to correct errata, and to admit defense appellate exhibits A, B, and C granted.

No. 99-0224/AR. U.S. v. Hector RODRIGUEZ. CCA 9700189. Appellant’s motion to extend time to file final brief granted to October 15, 1999.

No. 99-0912/NA. U.S. v. Aaron P. PRITT. CCA 98-1660.
Appellant's motion to extend time to file supplement to petition for grant of review granted to October 18, 1999.

No. 99-0915/MC. U.S. v. Noel A. PINEDA. CCA 98-1659.
Appellee's motion to dismiss appellant's petition for grant of review denied.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-240
Tuesday, September 21, 1999

APPEALS – SUMMARY DISPOSITIONS

No. 98-0778/AF. U.S. v. Ian S. GRANT. CCA 33088. On further consideration of the granted issue (51 MJ 281) in light of United States v. Gammons, 51 MJ 169 (1999), and United States v. Pierce, 27 MJ 367 (CMA 1989), 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 further consideration. Following these proceedings, Article 67(a), Uniform Code of Military Justice, 10 USC § 867(a)(1994), will apply.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 99-0520/NA. U.S. v. Daniel R. KANAGIE. CCA 98-0247.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0988/AR. U.S. v. Michael J. WILLIAMS. CCA 9700228.

No. 99-0989/AR. U.S. v. Frederick J.B. JONES. CCA 9700692.

No. 99-0990/MC. U.S. v. Christopher E. MILLER. CCA 98-1228.

No. 99-0991/NA. U.S. v. Brian B. HEATH. CCA 98-2022.

INTERLOCUTORY ORDERS

No. 99-0419/AR. U.S. v. Homer R. LANGSTON. CCA 9700358. On further consideration of the granted issues, counsel for appellant shall file a brief on the granted issues on or before October 22, 1999; and counsel for appellee shall file an answer within 30 days of the filing of said brief.

No. 99-0811/MC. U.S. v. Rockey J. REED. CCA 97-1378. Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to September 29, 1999.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-241
Wednesday, September 22, 1999

CERTIFICATES FOR REVIEW FILED

No. 99-5006/AR. United States, appellee and cross-appellant, v. Kier D. JACKSON, appellant and cross-appellee. CCA 9700166. The Judge Advocate General, United States Army, requests that action be taken with respect to the following issue:

Whether the Army Court of Criminal Appeals erred by holding that the wrongfulness element of the offense of larceny (Article 121, UCMJ) requires that the accused specifically intenDed to act wrongfully. [See also INTERLOCUTORY ORDERS this date.]

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0992/AF. U.S. v. Andrew P. PADILLA. CCA S29698.

No. 99-0993/AF. U.S. v. Michael L. LAMB. CCA 33678.

No. 99-0994/AF. U.S. v. Daniel E. HUGHES. CCA S29699.

No. 99-0995/AR. U.S. v. Lowell L. MCGEE. CCA 9700480.

INTERLOCUTORY ORDERS

No. 99-0803/NA. U.S. v. Frederick L. COZART. CCA 97-1396. Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to October 20, 1999.

No. 99-5006/AR. U.S. v. Kier D. JACKSON. CCA 9700166. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed this date under Rule 22. It appearing that the accused herein earlier filed a petition for grant of review of the same decision under Rule 20 on the 20th day of September, 1999, which was docketed under No. 99-0984/AR, it is ordered that Docket No. 99-0984/AR which was originally assigned to the petition for grant of review in this case be immediately rescinded and that said number be reassigned in due course; that Docket No. 99-5006/AR be immediately assigned to this case; that counsel for appellant file a supplement to the petition for grant of review on or before October 20, 1999 in accordance with the Court’s docketing notice of September 20, 1999; and that counsel for cross-appellant file a brief under Rule 22(b)(3) in support of the certificate for review on or before October 22, 1999. [See also CERTIFICATES FOR REVIEW FILED this date.]

MANDATES ISSUED

No. 98-0359/AF. U.S. v. Raymond D. KERR. CCA 32249.

No. 98-1109/AR. U.S. v. Jason E. NELSON. CCA 9601144.

No. 99-0346/AR. U.S. v. Andre T. HARGROVE. CCA 9601783.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-242
Thursday, September 23, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0984/MC. U.S. v. Aaron J. FISHER. CCA 98-0943.

No. 99-0996/MC. U.S. v. Joe W. NAVARRO. CCA 99-0194.

INTERLOCUTORY ORDERS

No. 99-0256/AR. U.S. v. Michael R. ARMSTRONG. CCA 9601966. Appellant’s motion to extend time to file final brief granted up to and including October 1, 1999.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-243
Friday, September 24, 1999

APPEALS – SUMMARY DISPOSITIONS

No. 99-0024/MC. U.S. v. William J. LAY. CCA 97-1542. On further consideration of the granted issue (51 MJ 350), 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 further consideration in light of United States v. Gammons, 51 MJ 169 (1999), and United States v. Pierce, 27 MJ 367 (CMA 1989). Following these proceedings, Article 67(a), Uniform Code of Military Justice, 10 USC § 867(a)(1994), will apply.

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0997/AF. U.S. v. Fernando AVILEZ-LOPEZ. CCA 33651.

No. 99-0998/AF. U.S. v. Matthew T. SWENSON. CCA 33186.

No. 99-0999/AF. U.S. v. Marcus L. STARR. CCA S29510.

No. 99-1000/AF. U.S. v. Michael J.T. PISA. CCA S29636.

INTERLOCUTORY ORDERS

No. 98-0308/AR. U.S. v. Paul D. PIERCE. CCA 9601171. To October 27, 1999.

No. 99-0908/AR. U.S. v. Reynaldo G. ALVARADO. CCA 9701332. To October 18, 1999.

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

No. 99-0780/NA. U.S. v. Aaron K. ECHOLS. CCA 98-1059. Appellee's motion to extend time to file answer to supplement to petition for grant of review granted to November 4, 1999.

MANDATES ISSUED

NO. 98-0512/MC. U.S. v. John E. PILKINGTON. CCA 96-2393.

No. 98-1076/NA. U.S. v. Mark E. GRIGGS. CCA 97-0553


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-244
Monday, September 27, 1999

APPEALS - SUMMARY DISPOSITIONS

No. 98-1029/AR. U.S. v. Javier ROCHA. CCA 9700676. On further consideration of the granted issue (51 MJ 281-82) in light of United States v. Izquierdo, 51 MJ 421 (1999), we are satisfied that appellant’s plea of guilty to committing an indecent act was provident. See United States v. Prater, 32 MJ 433 (CMA 1991). Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.

    SULLIVAN, Judge (concurring in the result):

    I concur in the result in this case. See my separate opinion in United States v. Izquierdo, 51 MJ 421, 423-24 (1999).

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0092/AR. U.S. v. Ricky M. JOHNSON. CCA 9601024. */

No. 99-1001/MC. U.S. v. Michael A. PEREIRA. CCA 97-1027.

No. 99-1002/MC. U.S. v. Luis R. BERMEO. CCA 98-1906.

No. 99-1003/MC. U.S. v. Donald K. RACKLEY, Jr. CCA 99-0127.

No. 99-1004/AF. U.S. v. Jeremy P. DIAMOND. CCA 33605.

INTERLOCUTORY ORDERS

No. 99-0556/AR. U.S. v. Benjamin JOHNSON. CCA 9602016. Appellee's motion to extend time to file answer to final brief granted up to and including October 19, 1999.

MANDATES ISSUED

No. 98-0100/NA. U.S. v. Angel A. IZQUIERDO. CCA 96-1116.

No. 98-1021/MC. U.S. v. Robert C. MARINE. CCA 96-2491.
________________

*/ Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-245
Tuesday, September 28, 1999

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-1005/MC. U.S. v. Gerald C. RYLANDER. CCA 98-1282.

INTERLOCUTORY ORDERS

No. 99-0780/NA. U.S. v. Aaron K. ECHOLS. CCA 98-1059. Appellant's motions to attach documents and for appropriate relief granted. It is ordered that appellant’s dishonorable discharge be rescinded; and that all rights and privileges which have been denied appellant as a result of the premature execution of said discharge be restored. Appellant’s second motion to attach documents denied.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-246
Wednesday, September 29, 1999

APPEALS - SUMMARY DISPOSITIONS

No. 99-0289/AF. U.S. v. Glenn A. ABLES, II. CCA 32842. 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, we conclude that appellant’s plea of guilty to specification 3 of Charge I, wrongful use of cocaine, is provident only as to the lesser-included offense of attempted wrongful use of cocaine in violation of Article 80, Uniform Code of Military Justice, 10 USC § 880. See Art. 45, UCMJ, 10 USC § 845. However, in view of the other, more serious offenses of which appellant stands convicted, we are "highly confident" that conviction of the greater offense "played no appreciable role in the adjudication of appellant’s sentence." See United States v. Fox, 10 MJ 176, 177 (CMA 1981), citing United States v. Thompson, 22 USCMA 88, 91, 46 CMR 88, 91 (1972). Accordingly, it is ordered that the petition for grant of review is granted on Issue I as raised by appellate defense counsel; and that the decision of the United States Air Force Court of Criminal Appeals as to specification 3 of Charge I is reversed. Only so much of the decision of the court below as to specification 3, Charge I, as affirms a finding of guilty of wrongful attempted use of cocaine, and findings of guilty of specifications 1, 2, 4, 5, and 6 of Charge I, and Charge II and its specification, and the sentence are affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 99-0289/AF. U.S. v. Glenn A. ABLES, II. CCA 32842. [See also APPEALS - SUMMARY DISPOSITIONS this date.]

No. 99-0417/AR. U.S. v. Samuel G. BROWNING. CCA 9601041. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY NOT EXCLUDING, UNDER MRE 403 AND 404(B), EVIDENCE OF THE MISCONDUCT OF OTHER ACTORS.

II. WHETHER THE MILITARY JUDGE COMMITTED REVERSIBLE ERROR BY ADMITTING EVIDENCE OF AN UNCHARGED CONSPIRACY AND BY REPEATEDLY INSTRUCTING THE MEMBERS ON THE APPELLANT'S LIABILITY AS A CO-CONSPIRATOR.

III. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN PERMITTING TRIAL COUNSEL TO PRESENT EVIDENCE THAT APPELLANT HAD THREATENED THE LIFE OF THE KEY PROSECUTION WITNESS.

IV. WHETHER THE MILITARY JUDGE ERRED IN REFUSING THE DEFENSE THE OPPORTUNITY TO PRESENT CERTAIN WITNESSES AND CERTAIN TESTIMONY THAT SUPPORTED THE DEFENSE'S THEORY OF THE CASE.

No. 99-0499/AF. U.S. v. Richard M. LATORRE, Jr. CCA 33262. Review granted on the following issue: WHETHER THE MILITARY JUDGE ERRED BY ALLOWING THE GOVERNMENT'S EXPERT WITNESS TO TESTIFY THAT SEX OFFENDERS USUALLY COMMIT SEVERAL CRIMES PRIOR TO THE CRIME FOR WHICH THEY ARE CURRENTLY BEING PROSECUTED AND THAT SOME SEX OFFENDERS LEARN HOW TO "GET AWAY" WITH THEIR CRIMES SO THAT THEIR OFFENSES ARE NOT DISCOVERED. No. 99-0515/AR. U.S. v. Bradford M. GOSNEY. CCA 9700653. Review granted on the following issues specified by the Court: I. WHETHER THE MILITARY JUDGE ERRED AS A MATTER OF LAW BY FAILING TO PROPERLY DEFINE THE LAW OF "CONSENT" AND "INTOXICATION" FOR THE MEMBERS, WHERE THE MILITARY JUDGE ALSO FAILED TO INFORM THE MEMBERS THAT THE LEGAL CONCLUSIONS USED BY THE CID AGENT DURING APPELLANT'S INTERROGATION WERE ERRONEOUS.

II. WHETHER THE MILITARY JUDGE, AND SUBSEQUENTLY THE ARMY COURT, ABUSED ITS DISCRETION IN FINDING THAT THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT THE FINDING THAT APPELLANT COMMITTED RAPE, IN LIGHT OF THE JUDGE'S INCORRECT INSTRUCTIONS ON THE LAW OF "CONSENT" AND "INTOXICATION."

No. 99-0751/NA. U.S. v. Michael J. LANGE. CCA 98-1731. Review granted on the following issue modified by the Court: WHETHER THE RECORD OF TRIAL IS SUFFICIENT TO PERMIT THE APPROVAL OF A BAD-CONDUCT DISCHARGE WHERE THE LEGAL OFFICER'S RECOMMENDATION IS AN OBVIOUS DRAFT THAT DOES NOT INDICATE THE NAME AND RANK OF THE PERSON WHO PREPARED THE RECOMMENDATION, AND WHERE THE SPECIAL COURT-MARTIAL ORDER INDICATES THAT A REQUEST FOR CLEMENCY WAS MADE BUT NO SUCH REQUEST APPEARS IN THE RECORD OF TRIAL.
PETITIONS FOR RECONSIDERATION DENIED

No. 99-0306/MC. U.S. v. James D. GUTHRIE. CCA 95-1697. Appellant’s petition for reconsideration denied. Appellee’s motion to file opposition out of time granted.

    SULLIVAN, Judge (dissenting):
    I would grant the petition for reconsideration.

INTERLOCUTORY ORDERS

No. 97-0149/AR. U.S. v. Christopher W. CAMPBELL. CCA 9400527. Appellee's motion to substitute original government exhibits C, E, and F granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 99-247
Thursday, September 30, 1999

ORDER GRANTING PETITION FOR RECONSIDERATION

No. 98-0064/AF. U.S. v. Scott FALK. CCA 32456. Appellee’s petition for reconsideration granted in part. See 50 MJ 396.

No. 99-1006/MC. U.S. v. Francis J.M. REINZI. CCA 98-1853.

INTERLOCUTORY ORDERS

No. 99-0131/MC. U.S. v. Darryl A. ANTLE. CCA 97-1026. 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 we note that appellate defense counsel filed, with the supplement, a document which appears to be a copy of an affidavit from appellant which purports to set forth conditions imposed on appellant during his pretrial confinement. However, major portions of the copy of the affidavit filed with this Court are not legible. Accordingly, within 30 days, appellate defense counsel shall file with the Court a certified legible copy of the affidavit submitted by appellant in support of his personal assignment that he suffered pretrial punishment. A legible copy of that affidavit will be served on appellate government counsel.

No. 99-0838/AF. U.S. v. Shelley S. ROGERS. CCA 32711. Appellant's motion to file brief in excess of fifty pages granted.

No. 99-0937/AF. U.S. v. Valarie L. FULLER. CCA 33266. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 99-0981/AR. U.S. v. Craig E. WATERMAN. CCA 9700675. Appellant's motion to extend time to file supplement to petition for grant of review granted November 22, 1999.

No. 99-5001/MC. U.S. v. Ronnie A. CURTIS. CCA 87-3856. Appellee's motion to dismiss certified issues or, in the alternative, summarily affirm denied as moot. Appellant's motion to file motion to attach granted; appellant’s motion to attach which was filed on May 27, 1999, denied.
 

ANNOUNCEMENT

by the

CLERK OF THE COURT

of the

CUMULATIVE SUMMARY OF

COURT WORKLOAD STATISTICS

FOR THE OCTOBER 1999 TERM OF COURT


I.  CUMULATIVE PENDING OCTOBER 2, 1998

 Master Docket .............................. 105
 Petition Docket ............................ 290
 Miscellaneous Docket .......................   3
 TOTAL ...................................... 398


II. CUMULATIVE FILINGS

 Master Docket .............................. 157
 Petition Docket ............................1051
 Miscellaneous Docket .......................  32
 TOTAL ......................................1240


III. CUMULATIVE TERMINATIONS

 Master Docket .............................. 185
 Petition Docket ............................1115
 Miscellaneous Docket .......................  32
 TOTAL ......................................1332


IV. CUMULATIVE PENDING OCTOBER 1, 1999

 Master Docket ..............................  77*/
 Petition Docket ............................ 226
 Miscellaneous Docket .......................   3
 TOTAL ...................................... 306
___
*/  Comparative Master Docket figures for the past 10 years are:  105 (FY98); 289 (FY97); 73 (FY96); 105 (FY95); 119 (FY94); 248 (FY93); 119 (FY92); 69 (FY91); 72 (FY90); 48 (FY89).
 

V.  CASES ON MASTER DOCKET CARRIED OVER TO OCTOBER 2000
    TERM OF COURT

AWAITING BRIEFS (29)

  98-1089/AR - GRIGORUK
  99-0109/MC - DUNCAN
  99-0224/AR - RODRIGUEZ
  99-0256/AR - ARMSTRONG
  99-0306/MC - GUTHRIE
  99-0311/AR - PFISTER
  99-0365/MC - NAPOLITANO
  99-0399/MC - AVILA, Jr.
  99-0417/AR - BROWNING
  99-0418/AR - GARREN
  99-0419/AR - LANGSTON
  99-0421/NA - ROBBINS
  99-0499/AF - LATORRE, Jr.
  99-0509/AF - RUIZ
  99-0511/AR - CHERUKURI
  99-0515/AR - GOSNEY
  99-0546/AF - HERYFORD
  99-0547/AR - GRIER
  99-0556/AR - JOHNSON
  99-0580/AF - FANGUY, Jr.
  99-0584/NA - ROSENDAHL
  99-0604/AF - LITTLEWOOD
  99-0619/AR - MELANSON
  99-0631/MC - JENKINS
  99-0695/MC - YUNK
  99-0724/MC - ALVES
  99-0751/NA - LANGE
  99-5005/AR - VALIGURA
  99-5006/AR - JACKSON
AWAITING ORAL ARGUMENT OR SUMMARY DISPOSITION (48)
  96-1157/AR - AVERY, Jr.
  97-0528/AF - RUIZ
  98-0656/AR - ROLLE
  98-0783/NA - FRICKE
  98-0940/AR - SPRIGGS
  98-0999/AR - EVERSOLE
  98-1023/AR - HENRY
  98-1039/NA - ROBERTS
  98-1118/NA - CARDREON
  98-1129/AF - HUGHES
  98-1131/AF - NORFLEET
  98-1140/MC - TAYLOR
  98-5012/AF - SWIFT
  98-5026/AF - AUGUSTINE
  99-0040/AR - DIGGS
  99-0052/NA - WILLIAMS
  99-0069/NA - GUZMAN
  99-0073/AR - COBIA
  99-0091/NA - GEORGE
  99-0094/AF - HENLEY, Sr.
  99-0111/NA - HENSLEY
  99-0120/AF - WILSON
  99-0177/AR - LEAL
  99-0202/NA - WILSON
  99-0242/MC - BURTON
  99-0260/AF - SAPP
  99-0271/MC - RAMSEY
  99-0286/AR - GOLSTON
  99-0288/AF - SMITH
  99-0292/MC - STOFFER
  99-0300/MC - NAJERA
  99-0301/NA - MOOLICK
  99-0303/AF - MURRAY
  99-0313/NA - PHILLIPS
  99-0318/AF - WRIGHT, III
  99-0409/NA - WILLIAMS
  99-0474/AF - BURNS
  99-0487/AF - MATTHEWS
  99-0536/AF - MONROE
  99-0545/AF - CLARK
  99-0570/MC - DIFFOOT
  99-0571/NA - TITTEL
  99-0582/AF - KNIGHT
  99-0632/MC - HARDCASTLE
  99-0651/AF - KIRKLAND
  99-5002/CG - TUALLA
  99-5003/NA - BYRD, Jr.
  99-5004/MC - TOWNES

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