UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-119
Monday, April 03, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0358/NA. U.S. v. Kipp C. SANDLIN. CCA 88-4230.

No. 00-0359/AR. U.S. v. Samuel A. LAVIGNE. CCA 9900637.

No. 00-0360/AF. U.S. v. Lynn M. DECASTRO. CCA 33863.

No. 00-0361/AF. U.S. v. Randall L. DYKES. CCA 33668.

No. 00-0362/AF. U.S. v. Zabrina MOGRO. CCA 33754.

No. 00-0363/AF. U.S. v. Charles F. JACKSON. CCA 32714.

No. 00-0364/AF. U.S. v. Wendell K. MALONE. CCA 33870.

No. 00-0365/AF. U.S. v. James A. RAMSEY II. CCA 33181.

No. 00-0366/AF. U.S. v. Scott W. SEATON. CCA 33739.

No. 00-0367/AF. U.S. v. Jason M. TEMPLIN. CCA S29746.

No. 00-0368/AF. U.S. v. Michael S. WILLIAMS. CCA 33838.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-120
Tuesday, April 04, 2000

HEARINGS

No. 99-0314/MC. U.S. v. Milton D. STEELE. CCA 97-1236.

No. 99-0853/NA. U.S. v. Clifton L. MANNS. CCA 98-0641.

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

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 00-0315/AR. U.S. v. Troy W. CARBAUGH. CCA 9701612. Appellant's motion to withdraw petition for grant of review granted without prejudice to appellant’s right to file a petition for grant of review on a subsequent date.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0369/MC. U.S. v. Renarda K. KIRT. CCA 98-0621.

No. 00-0370/NA. U.S. v. Tangela D. SPARKS. CCA 98-1698.

INTERLOCUTORY ORDERS

No. 98-0938/AR. U.S. v. Benjamin T. FIELD. CCA 9700785. Appellant's motion to admit defense appellate exhibits denied.

No. 99-0306/MC. U.S. v. James D. GUTHRIE. CCA 95-1697. Appellant's second motion to file supplemental assignments of error denied.

No. 99-0901/AR. U.S. v. Derrick E. PATTERSON. CCA 9800417. Appellee's motion to file supplemental argument denied; appellant’s motion to file reply to appellee’s motion granted.

No. 99-0940/AF. U.S. v. Michael R. MCELHANEY. CCA 32522. Appellee's motion to file substitute corrected pages granted.

No. 99-5003/NA. U.S. v. Derreck D. BYRD, Jr. CCA 95-0907. Motion to file supplemental brief on behalf of the United States, filed after oral argument, granted; appellant may file an answer within 30 days from the date of this order.

No. 00-0010/NA. U.S. v. Sharon Y. NELSON. CCA 97-1978. Appellant's motion for additional time to present oral argument denied.

No. 00-0232/AF. U.S. v. Paula C. STEWART. CCA 33097. Appellant's motion to attach documents denied.

SULLIVAN, Judge (dissenting): I would grant the motion.
No. 00-0328/MC. U.S. v. Glen T. BIRDSONG. CCA 99-1148. 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. 00-121
Wednesday, April 05, 2000

HEARINGS

No. 99-0811/MC. U.S. v. Rockey J. REED. CCA 97-1378.

No. 99-0838/AF. U.S. v. Shelley S. ROGERS. CCA 32711.

No. 99-0940/AF. U.S. v. Michael R. MCELHANEY. CCA 32522.

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

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0371/NA. U.S. v. Armando J. MONTANO. CCA 99-0948.

No. 00-0372/NA. U.S. v. Carlos M. PILOT. CCA 99-0762.

INTERLOCUTORY ORDERS

No. 99-0560/NA. U.S. v. Kerry V. LYNN. CCA 97-1482. Appellant's motion to attach granted.

No. 00-0286/AR. U.S. v. Steven D. JEFFERS. CCA 9701201. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 00-0301/MC. U.S. v. Glenn E. HURN. CCA 98-0200. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 3, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-122
Thursday, April 06, 2000

HEARINGS

No. 00-5002/CG. U.S. v. Thomas O. ARMSTRONG. CCA 1076.

No. 99-0703/NA. U.S. v. Tonia L. GLOVER. CCA 98-1603.

No. 99-0944/AR. U.S. v. Jeffery L. AYERS, Sr. CCA 9701847.

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

PETITIONS FOR RECONSIDERATION DENIED

No. 93-7001/AR. U.S. v. Ronald A. GRAY. CCA 8800807. Appellant’s petition for reconsideration of this Court’s decision, 51 MJ 1 (1999), denied; and appellant’s motion for a hearing denied.

No. 98-0940/AR. U.S. v. Michael D. SPRIGGS. CCA 9601685. Appellant’s petition for reconsideration of this Court’s decision (52 MJ 235) denied.

MANDATES ISSUED

No. 99-0111/NA. U.S. v. Brian H. HENSLEY. CCA 98-0225.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-123
Friday, April 07, 2000

INTERLOCUTORY ORDERS

No. 00-0312/AR. U.S. v. Timothy A. HARRIS. CCA 9700640. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 8, 2000.

No. 93-0157/AF. U.S. v. Charles M. HANEY, Jr. CCA 29000. Appellant's motion to substitute corrected page granted.

MANDATES ISSUED

No. 93-7001/AR. U.S. v. Ronald A. GRAY. CCA 8800807.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-124
Monday, April 10, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0373/AF. U.S. v. Brett J. WADDELL. CCA S29676.

No. 00-0374/AF. U.S. v. Karl P. DEMAREE, II. CCA 33837.

No. 00-0375/AF. U.S. v. Anthony C. PUCCI. CCA S29742.

No. 00-0376/AF. U.S. v. John K. THOMASON. CCA S29685.

No. 00-0377/AF. U.S. v. Idalia VILLARREAL-DANCY. CCA 33546.

No. 00-0378/AR. U.S. v. Robert C. FOAN. CCA 9900160.

No. 00-0379/AR. U.S. v. Walter H. McCLENDON. CCA 9700824.

No. 00-0380/AR. U.S. v. Michael J. DUHON. CCA 9900750.

INTERLOCUTORY ORDERS

No. 00-0170/MC. U.S. v. Alejandro HUERECA. CCA 98-1189. Appellant's motion to extend time to file final brief granted up to and including May 15, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-125
Tuesday, April 11, 2000

PETITIONS FOR GRANT OF REVIEW DENIED

No. 00-0074/NA. U.S. v. Donnie M. BOLERJACK. CCA 98-1500.

No. 00-0171/MC. U.S. v. Terrance D. HIGGINS. CCA 98-0158.

No. 00-0176/MC. U.S. v. Randy K. COCHRAN. CCA 98-1930.

No. 00-0204/AF. U.S. v. John A. FLORES. CCA S29697.

No. 00-0218/NA. U.S. v. Thomas A. GOODCHILD, Jr. CCA 99-0009.

No. 00-0231/AF. U.S. v. Thomas N. EDDINS. CCA 33770.

No. 00-0235/AF. U.S. v. Henry A. FLORES. CCA 33443.

No. 00-0240/NA. U.S. v. Dana L. GRIMES. CCA 98-0955.

No. 00-0246/AF. U.S. v. Charles E. FERRIS. CCA 33798.

No. 00-0247/AF. U.S. v. Jeffery D. HOBBS. CCA 33694.

No. 00-0249/AF. U.S. v. Anthony M. KING. CCA 33902.

No. 00-0253/AR. U.S. v. Francis W. DONMARTIN. CCA 9900834.

No. 00-0257/MC. U.S. v. Billy A. BELL. CCA 99-0392.

No. 00-0258/AR. U.S. v. Robert C. BARTSCH. CCA 9900244.

No. 00-0260/AF. U.S. v. Robert B. BUTCHART. CCA 33782.

No. 00-0263/NA. U.S. v. Charles C. HAMMOCK. CCA 98-1461.

No. 00-0269/NA. U.S. v. Curtis BATTLE. CCA 98-1015.

No. 00-0276/MC. U.S. v. Sabrina M. FOSTER. CCA 99-0885.

No. 00-0293/AF. U.S. v. Jeneane A. BLACINE. CCA S29686.

No. 00-0294/AF. U.S. v. Nathan L. BERGERON. CCA S29727.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0381/AR. U.S. v. Carl L. BRANCH. CCA 9801790.

INTERLOCUTORY ORDERS

No. 99-0619/AR. U.S. v. David M. MELANSON. CCA 9801266. Appellant's motion to admit appellate exhibit XVII granted.

No. 99-0915/MC. U.S. v. Noel A. PINEDA. CCA 98-1659. Appellant's motion to file petition for reconsideration out of time denied; appellant's second motion to file appellant’s affidavit denied.

No. 00-8007/NA. U.S. v. Daniel M. KING. On consideration of appellant’s writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals denial of his petition for extraordinary relief, appellee’s answer to the writ-appeal petition, and appellant’s reply brief to appellee’s answer to the writ-appeal petition, it is ordered that on or before April 19, 2000, counsel for appellant shall show cause why the petition for extraordinary relief should not be denied in light of: (1) the assertion by the Government that Mr. Turley has not executed a Memorandum of Understanding concerning security procedures and nondisclosure of classified information and (2) the assertion by the Government that Mr. Turley and Lieutenant Bailey have not sought the requisite security clearances; that on or before April 19, 2000, counsel for appellee shall show cause why the petition for extraordinary relief should not be granted in light of: (1) the apparent failure to ensure that all counsel detailed by the Navy under Article 27, Uniform Code of Military Justice, 10 USC § 827, possessed the requisite security clearances to represent appellant without requiring the presence of an Investigation Security Officer to monitor attorney-client communications and conversations among members of the defense team; (2) the apparent expectation that the Investigation Security Officer will disclose to the Government the substance of conversations between appellant and his counsel, or among counsel, if the conversations include certain classified matters; (3) the absence of an explanation for imposing an Investigation Security Officer without ensuring that appellant was provided with properly cleared counsel; and (4) the failure to clarify whether the Investigation Security Officer is required to be present during conversations between appellant and Lieutenant Freedus, a person apparently possessing the required security clearance; that any answer to the opposing party’s response to this order to show cause shall be filed not later than April 24, 2000; and that this matter shall be called for oral argument before the Court on May 2, 2000, at 1:30 P.M., at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street NW, Washington, D.C. 20442.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-126
Wednesday, April 12, 2000

APPEALS - SUMMARY DISPOSITIONS

No. 99-0751/NA. U.S. v. Michael J. LANGE. CCA 98-1731. On consideration of appellant’s "motion, pursuant to this Court’s supervisory jurisdiction, for an order remanding this case to the lower court with instructions to issue an order, pursuant to NMCCA Rule 4-8.5, to prepare a completed legal officer’s recommendation and new convening authority’s action," and it appearing that this Court specified an issue which was not addressed by the court below, and it further appearing that appellee concedes that a remand is appropriate, it is ordered that appellant’s motion is granted to the extent it requests a remand to the United States Navy-Marine Corps Court of Criminal Appeals but denied to the extent it requests more specific relief; and that the record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further consideration.

    CRAWFORD, Chief Judge (dissenting):

    I dissent, because there has been no showing that there would be a miscarriage of justice absent corrective action, nor has appellant made any "colorable showing of possible prejudice." United States v. Wheelus, 49 MJ 283, 289 (1998) (quoting United States v. Chatman, 46 MJ 321, 323-24 (1997)).

Appellant was charged with striking a commissioned officer in the execution of his office on board a ship, disobeying an order of a commissioned officer on board a ship, wrongful use of LSD, disorderly conduct, and indecent exposure, in violation of Articles 90, 112a, and 134, Uniform Code of Military Justice, 10 USC §§ 890, 912a, and 934. Pursuant to a pretrial agreement, he pled guilty at a special court-martial to an assault on a commissioned officer, wrongful use of LSD, and disorderly conduct. He was sentenced by a military judge to a bad-conduct discharge, 120 days' confinement, and partial forfeitures. Because there was no limitation on the sentence, the convening authority approved the sentence as adjudged.

Since the Staff Judge Advocate's recommendation (SJAR) does not indicate the name and rank of the person who prepared the recommendation, I agree with the defense that there was incomplete and sloppy action during the post-trial phase. On the other hand, the defense posed no objection to the SJAR. Failure to object to an SJAR constitutes waiver. RCM 1106(f)(6), Manual for Courts-Martial, United States (1998 ed.).

The rationale for waiver is that fairness to all parties requires the defense to advance its contentions at a time when there is an opportunity to respond and take appropriate action. It is inappropriate to now claim prejudice due to an incomplete SJAR, when the SJA was never presented with a timely opportunity.

Foremost, appellant has not shown prejudice in the case. Two charges were dropped against appellant: (1) disobedience of a commissioned officer and (2) indecent exposure. Another charge was reduced from assault upon a commissioned officer in execution of his office to assault upon a commissioned officer. Additionally, less than a year prior to trial, appellant was punished under Article 15, UCMJ, 10 USC § 815, for absence without leave, insubordination, and communicating a threat.

While appellant claims shoddy staff work, he does not present additional information or facts that would result in the convening authority taking a different action.

No. 00-0153/MC. U.S. v. Chad C. REDHOUSE. CCA 99-0556.
On further consideration of the petition for grant of review, it appears that the military judge sustained appellant's objection to consideration during sentencing of two personnel record entries reflecting nonjudicial punishments under Article 15, Uniform Code of Military Justice, 10 USC § 815; it further appears that the United States Navy-Marine Corps Court of Criminal Appeals, in its determination that appellant's sentence was appropriate, see Art. 66(c), UCMJ, 10 USC § 866(c)(1994), specifically cited the records of nonjudicial punishment that had been excluded from consideration by the military judge. Because the lower court's decision as to the correctness of the approved sentence relied upon material expressly excluded from evidence by the military judge, the lower court should have the opportunity to evaluate the correctness of the approved sentence without consideration of the excluded material. Accordingly, it is ordered that said petition is granted; that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and set aside as to sentence; and that the record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further review of the sentence. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

    CRAWFORD, Chief Judge (dissenting):

    Pursuant to his pleas, appellant was convicted by judge alone at a special court-martial and sentenced to a bad-conduct discharge, 90 days' confinement, and partial forfeitures. Confinement in excess of 60 days was suspended in accordance with a pretrial agreement.

The Court of Criminal Appeals found the sentence appropriate based on drunk driving being a serious offense and its conclusion that "appellant's misconduct in this case is also aggravated by a prior disciplinary record that includes a special court-martial conviction and two nonjudicial punishments" (NJP) under Article 15, Uniform Code of Military Justice, 10 USC § 815. Unpub. op. at 2.

Prosecution Exhibit 1, page 9, shows appellant was counseled for misconduct during liberty and for disobeying guidelines set forth by the commanding officer. Page 10 establishes appellant was counseled on March 19, 1997, for failing to take responsibility for his own actions. Page 11 sets forth that appellant was counseled on July 23, 1997, for a lack of judgment, self-discipline, disobedience of orders, and absence without leave. Page 12 shows appellant was being considered for administrative discharge on May 15, 1997, for alcohol abuse. Page 13 indicates another counseling statement for patterns of misconduct on September 3, 1997. Page 15 displays an Article 15 on November 7, 1996, for disrespectful language and disobedience of a lawful order. It also shows an Article 15 on February 27, 1997, for absence without leave. Prosecution Exhibit 2 is a record of a prior conviction at special court-martial for absence without leave from March 17 through May 14, 1998.

The defense objected to the two Article 15s since there were "two standard [United States v. Booker, 5 MJ 238 (CMA 1977)] warning-type entries with no attendant NJPs or any other proceedings." The judge sustained the objection, even though the Article 15s had an appropriate Booker statement regarding counsel and were admissible. Cf. United States v. Kelly, 45 MJ 259, 266 (1996)(Crawford, J., dissenting).

Although the court below considered the two Article 15s, and perhaps inappropriately so, the counseling statements as well as appellant’s prior conviction persuade me of the appropriateness of his sentence.

ORDERS GRANTING PETITION FOR REVIEW

No. 00-0096/AR. U.S. v. Maurice RUSH. CCA 9701687. Review granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY FINDING NO PREJUDICE DESPITE FINDING THE MILITARY JUDGE ERRED BY REFUSING TO GIVE A PRESENTENCING INSTRUCTION REGARDING THE INERADICABLE STIGMA OF A PUNITIVE DISCHARGE. No. 00-0153/MC. U.S. v. Chad C. REDHOUSE. CCA 99-0556. [See also APPEALS-SUMMARY DISPOSITIONS this date.]

No. 00-0166/AF. U.S. v. Gary Q. DIMBERIO. CCA 33091. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY REFUSING TO ADMIT CONSTITUTIONALLY REQUIRED DEFENSE EXPERT EVIDENCE FROM A FORENSIC PSYCHIATRIST ABOUT AN ALTERNATIVE PERPETRATOR THAT WAS AN INDISPENSIBLE ELEMENT OF APPELLANT'S DEFENSE, EVIDENCE WHICH SHOULD MOST CERTAINLY HAVE BEEN ADMITTED UNDER EXISTING MILITARY LAW AND WHICH WOULD HAVE MOST CERTAINLY BEEN ADMITTED IN MANY OTHER FEDERAL AND STATE COURTS. No. 00-0207/AF. U.S. v. Charles D. BINEGAR. CCA 32854. Review granted on the following issues: I. WHETHER THE MILITARY JUDGE ERRED IN NOT ALLOWING DEFENSE COUNSEL TO ELICIT STATE OF MIND HEARSAY EVIDENCE OF APPELLANT FROM A WITNESS.   II. WHETHER THE MILITARY JUDGE ERRED IN PROVIDING THE COURT MEMBERS A MISTAKE OF FACT INSTRUCTION WHERE THE COURT MEMBERS HAD TO FIND THAT APPELLANT'S MISTAKE OF FACT WAS BOTH "HONEST AND REASONABLE" INSTEAD OF JUST "HONEST."
PETITIONS FOR GRANT OF REVIEW DENIED

No. 00-0215/AF. U.S. v. Christopher G. ROBB. CCA 32857.

No. 00-0222/NA. U.S. v. Perry E. LINDSAY. CCA 97-1643.

No. 00-0223/MC. U.S. v. Thomas A. TRAMAGCIA. CCA 99-0466.

No. 00-0225/NA. U.S. v. Patrick C. NEWMAN. CCA 99-1439.

No. 00-0226/AR. U.S. v. James E. LUTZ. CCA 9801265.

No. 00-0233/AF. U.S. v. Brent D. PRESCOTT. CCA 33373.

No. 00-0239/MC. U.S. v. Jeremy L. NORTON. CCA 99-0753.

No. 00-0243/AF. U.S. v. Sidney J. ROBINSON. CCA 33835.

No. 00-0244/AF. U.S. v. Candace R. VAUGHAN. CCA 33801.

No. 00-0251/NA. U.S. v. Samuel R. LEPRESTI. CCA 97-1671.

No. 00-0254/NA. U.S. v. Jerry A. STEEN. CCA 98-2014.

No. 00-0264/AR. U.S. v. Ryan L. PRICE. CCA 9801782.

No. 00-0274/MC. U.S. v. Jason P. WINGATE. CCA 99-1336.

No. 00-0275/MC. U.S. v. Joseph A. WRIGHT. CCA 99-1317.

No. 00-0278/MC. U.S. v. Jason P. WINGATE. CCA 99-0776.

No. 00-0282/AF. U.S. v. Richard A. MCLEAN. CCA 33280.

No. 00-0284/MC. U.S. v. Joseph VALLEJOS. CCA 99-0922.

No. 00-0288/AR. U.S. v. Modesto ORTEGA. CCA 9900732.

No. 00-0289/MC. U.S. v. Carlton E. LEWIS. CCA 99-0289.

No. 00-0291/AF. U.S. v. Cornelius A. WILSON. CCA 33713.

No. 00-0296/AR. U.S. v. Leland M. TILGHMAN. CCA 9801442.

No. 00-0297/AR. U.S. v. Patrick S. TIMMONS. CCA 9801558.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0382/AR. U.S. v. Andre D. JAMISON. CCA 9601932.

PETITIONS FOR RECONSIDERATION DENIED

No. 99-0313/NA. U.S. v. Allen B. PHILLIPS. CCA 97-1458. Appellant’s petition for reconsideration of the opinion of the Court issued on March 6, 2000 (52 MJ 268), denied.

INTERLOCUTORY ORDERS

No. 96-0841/MC. U.S. v. David MAY. CCA 94-2027. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 22, 2000.

No. 00-0095/AR. U.S. v. Paul J. FULLER. CCA 9701004. Appellee's motion for one-week extension of time to file an answer to final brief due to a family emergency granted to April 24, 2000.

No. 00-0099/AF. U.S. v. Shelby B. FORREST. CCA 32707. On consideration of the petition for grant of review in the above-entitled case, it appears that appellant has filed a motion asking that this Court release appellate defense counsel because of disagreements between them; it further appears that appellant is seeking representation from "two independent local attorneys" and that if they decline, he will seek to represent himself pro se; it further appears that appellant has no right to proceed pro se in this Court, see Martinez v. Court of Appeal of California, 120 S.Ct. 684 (2000); it further appears that appellant has the right to representation by appellate defense counsel qualified under Article 27, Uniform Code of Military Justice, 10 USC § 827, whether or not he is represented by civilian counsel retained by him, see Art. 70, UCMJ, 10 USC § 870; and it finally appears that appellant's request for release of initially appointed appellate defense counsel because of disagreements between them on representation would not necessarily waive that right. Accordingly, it is ordered that the United States show cause within 30 days of the date of this Order why substitute military appellate defense counsel should not be appointed to represent appellant alone or in association with any counsel retained by appellant.

No. 00-0104/AR. U.S. v. Holly M. BALDWIN. CCA 9800230. Appellant's motion to admit defense appellate exhibits granted only as to the declaration of appellant and denied as to the remainder of the exhibits.

    SULLIVAN, Judge (dissenting):

    I would grant this motion. All these exhibits are relevant to the assigned issue in this case and will assist our Court in deciding whether Article 55, Uniform Code of Military Justice, 10 USC § 855, was violated. I would hold that good cause has been shown under Rule 30, Court Rules.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-127
Thursday, April 13, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0383/AR. U.S. v. Kenneth B. BIBBEE. CCA 9801406.

No. 00-0384/AR. U.S. v. Willie James WILLIAMSON, Jr. CCA 9702022.

INTERLOCUTORY ORDERS

No. 99-0973/MC. U.S. v. Sean K. WILLIAMS. CCA 98-0213. On further consideration of the above-entitled case, we note that a petition for habeas corpus was filed on appellant’s behalf in the United States District Court for the Eastern District of North Carolina (Docket No. 599HC56), Wilmington, N.C. A copy of this petition was presented to the Court of Criminal Appeals, but that court denied a motion to admit the document. The petition was mentioned in oral argument, along with the fact that the District Court dismissed the petition. The Court is of the opinion that this petition may be relevant to disposition of this case, so it desires to have access to it. In addition, it appears that access to the provisions of service regulations regarding the legal-hold procedure would be helpful. Accordingly, it is ordered that the Judge Advocate General of the Navy will cause a copy of the following documents to be filed with the Clerk of this Court within 30 days of the date of this order:

1. the Government's response to the petition for habeas corpus filed on January 21, 1999;

2. petitioner's reply to said response, if any;

3. transcript of any hearing held in the case, if available;

4. the Magistrate's findings of fact and conclusions of law;

5. the decision of the District Court dated February 17, 2000; and

6. Service regulations regarding legal hold.

Upon receipt of these materials, the Court will issue any further orders as may be appropriate.

MANDATES ISSUED

No. 99-0313/NA. U.S. v. Allen B. PHILLIPS. CCA 97-1458.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-128
Friday, April 14, 2000

CERTIFICATES FOR REVIEW FILED

No. 00-5003/AF. U.S. v. Leslie D. RILEY. CCA 32183. The Judge Advocate General, United States Air Force, requests that action be taken with respect to the following issue:

WHETHER THE AIR FORCE COURT ERRED WHEN IT CONCLUDED THAT IT LACKED THE POWER TO REVISIT ITS EARLIER FINDING THAT THE EVIDENCE OF RECORD WAS FACTUALLY INSUFFICIENT TO SUPPORT APPELLEE’S CONVICTION OF UNPREMEDITATED MURDER.
PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0385/AF. U.S. v. Larry C. ADAMS, II. CCA 33869.

No. 00-0386/AF. U.S. v. Vincent E. CONRAD. CCA 33888.

No. 00-0387/AF. U.S. v. Barry A. GARVIN. CCA 33796.

No. 00-0388/AF. U.S. v. Anthony D. JOHNSON. CCA 33134.

No. 00-0389/AF. U.S. v. Mark D. KNAB. CCA S29750.

No. 00-0390/AF. U.S. v. Shawn W. MAYNARD. CCA 33823.

No. 00-0391/AF. U.S. v. Francis D. MCCUE. CCA 33586.

No. 00-0392/AF. U.S. v. Carlos A. NAVARRO. CCA 32895.

No. 00-0393/AF. U.S. v. Harry C. SLYE. CCA 33836.

No. 00-0394/AF. U.S. v. Brian D. TRACEY. CCA 33874.

No. 00-0395/AF. U.S. v. Thomas H. WILLIS, III. CCA 33666.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-129
Tuesday, April 18, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0396/AR. U.S. v. Charles Wayne HERRING. CCA 9801640.

INTERLOCUTORY ORDERS

No. 00-0227/NA. U.S. v. Shawn M. PROMIN. CCA 98-0929. Appellant's second motion to extend time to file supplement to petition for grant of review out of time granted, but only up to and including April 24, 2000; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 00-0252/AR. U.S. v. John C. MCALLISTER. CCA 9601134. Appellant's motion to correct errata granted.

No. 00-0320/AR. U.S. v. Bryant ALLEN. CCA 9800469. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 1, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-130
Wednesday, April 19, 2000

ORDERS GRANTING PETITION FOR REVIEW

No. 00-0200/NA. U.S. v. Galen E. SOTHEN. CCA 98-0738. Review granted on the following issues:

I. WHETHER APPELLANT'S APPROVED SENTENCE TO CONFINEMENT CONSTITUTES AN OBVIOUS MISCARRIAGE OF JUSTICE OR AN ABUSE OF DISCRETION BECAUSE HIS SENTENCE OF 25 YEARS WAS MORE THAN EIGHT TIMES GREATER THAN HIS CO-DEFENDANT'S SENTENCE OF 3 YEARS.

II. WHETHER THE GOVERNMENT FAILED TO MEET ITS BURDEN TO PROVE A RATIONAL BASIS FOR THE HIGHLY DISPARATE SENTENCES GIVEN TO APPELLANT AND HIS CO-DEFENDANT.

III. WHETHER, IN PERFORMING ITS SENTENCE APPROPRIATENESS ANALYSIS GIVEN TWO "CLOSELY RELATED CASES," THE COURT OF CRIMINAL APPEALS ERRED IN DISREGARDING THE SENTENCE OF A CIVILIAN CO-DEFENDANT BECAUSE THE MILITARY AND CIVILIAN SYSTEMS HAVE DIFFERING APPROACHES TO SENTENCING PRINCIPLES AND THE ADMINISTRATION OF PUNISHMENT.

No. 00-0224/NA. U.S. v. Erik G. VASQUEZ. CCA 99-0051. Review granted on the following issue: WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY JUDGE DID NOT VIOLATE M.R.E. 410 BY ADMITTING (AS AGGRAVATION UNDER R.C.M. 1101) APPELLANT'S ADMISSION OF GUILT IN AN UNRELATED REQUEST FOR AN OTHER THAN HONORABLE DISCHARGE.
PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0397/AR. U.S. v. Kendyl D. WILSON. CCA 9900419.

No. 00-0398/AR. U.S. v. Brandon J. NICHOLS. CCA 9900137.

No. 00-0399/MC. U.S. v. Christopher A. BRUCI. CCA 98-1793.

MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS

Misc. No. 00-8003/AR. U.S. v. Vernell ROBINSON, Jr. CCA 9901112. On further consideration of the writ appeal filed in the above-entitled case, we note that the granted issue (Daily Journal January 20, 2000) has been decided by United States v. Townes, 52 MJ 275 (2000). Accordingly, the decision of the United States Army Court of Criminal Appeals denying the petition for extraordinary relief is affirmed. The abatement of direct review under Article 66, Uniform Code of Military Justice, 10 USC § 866 (1994), is no longer in effect. Following such review, Article 67, UCMJ, 10 USC § 867 (1994), will apply.

INTERLOCUTORY ORDERS

No. 00-0326/NA. U.S. v. Michael P. CHILDERS. CCA 99-1321.

No. 00-0328/MC. U.S. v. Glen T. BIRDSONG. CCA 99-1148.

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

Misc. No. 00-8007/NA. U.S. v. Daniel M. KING. Appellant's motion for extension of time to file appellant's answer granted to April 24, 2000; appellee’s time to file an answer is sua sponte extended to April 24, 2000; each opposing party’s time to respond to said answers is extended to April 27, 2000; motions for leave to file brief as amicus curiae filed by the National Institute of Military Justice and the National Association of Criminal Defense Lawyers granted; each amicus curiae is granted 10 minutes to present oral argument; so much of the order of the Court that called this matter for oral argument on May 2, 2000, is vacated; and this matter shall be called for oral argument before the Court on May 4, 2000, at 9:30 a.m. at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street, N.W., Washington, D.C. 20442.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-131
Thursday, April 20, 2000

INTERLOCUTORY ORDERS

No. 00-0311/AR. U.S. v. Harrell WOODSON. CCA 9701853. Appellee's motion to file ten-day letter out of time granted.

No. 95-0738/AR. U.S. v. Louis B. NILES. CCA 9200448. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 26, 2000.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-132
Friday, April 21, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 99-0252/NA. U.S. v. Terrence M. JONES. CCA 97-0486.*/

No. 99-0676/AR. U.S. v. Clyde B. PUGH, Jr. CCA 9600811.*/

No. 00-0400/NA. U.S. v. Justin D. FRISH. CCA 99-1800.

No. 00-0401/NA. U.S. v. Michael WOODS. CCA 99-0010.
__________________

*/Second petition filed in same case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-133
Monday, April 24, 2000

PETITIONS FOR GRANT OF REVIEW DENIED

No. 00-0234/AF. U.S. v. Jarvis C. KNIGHT, Jr. CCA 33514.

No. 00-0255/AR. U.S. v. James A. WILLIAMS. CCA 9801603.

No. 00-0281/AF. U.S. v. Jeremy S. MATHIAS. CCA 33506.

PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS

No. 99-0721/AF. U.S. v. Carrey C. SHORT. CCA S29379. Upon consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that on February 20, 1997, appellant was sentenced to a bad-conduct discharge, confinement for 5 months, and reduction to E-1. The convening authority took his action on April 29, 1997. As a matter of law, the forfeitures were effective as of March 6, 1997. See Art. 57(a)(1)(A), Uniform Code of Military Justice, 10 USC § 857(a)(1)(A) (forfeitures effective 14 days after adjudged or upon action of the convening authority, whichever occurs first).

On initial review, the Court of Criminal Appeals set aside the convening authority’s action due to ineffective assistance of counsel post-trial and remanded the case for a new action. 48 MJ 892 (1998). In the second action, the convening authority stated that the forfeitures were "waived for 5 months, effective 29 April 1997." Because the convening authority purported to waive 5 months of forfeitures, which was the full extent of forfeitures adjudged, it would appear that he intended to waive all forfeitures. On the other hand, by not making the waiver effective until April 29, 1997, the convening authority in fact waived forfeitures for 54 days less than 5 months. Accordingly, it is unclear whether the convening authority in the second action intended that all forfeitures should be waived or that only the forfeitures after April 29, 1997, should be waived.

We will return this case to the Court of Criminal Appeals. That court either may terminate appellate proceedings by construing the action to waive all forfeitures, see United States v. Pedrazoli, 48 MJ 473, 474 (1998) (ambiguity in sentence should be resolved in favor of the accused); or it may set aside the convening authority’s action and return the case for a new action that will waive the forfeitures effective either March 6, 1997, or April 29, 1997.

Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. The record is returned to the Judge Advocate General for remand to the Court of Criminal Appeals for appropriate action.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0402/NA. U.S. v. David S. OHREE. CCA 99-0336.

No. 00-0403/AF. U.S. v. Bruce A. LUSTER. CCA S29525.

No. 00-0404/AF. U.S. v. Julius D. JENKINS. CCA 33760.

No. 00-0405/AF. U.S. v. Kirby L. AMLEE. CCA 33281.

No. 00-0406/AR. U.S. v. Margaret J. CARR. CCA 9501722.

No. 00-0407/AR. U.S. v. Sean D. DABNEY. CCA 9800428.

No. 00-0408/AR. U.S. v. Joe L. BENEDETTI. CCA 9901184.

No. 00-0409/AR. U.S. v. Adam S. FOGAL. CCA 9900903.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-134
Tuesday, April 25, 2000

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0410/MC. U.S. v. Peter A. MASELLI. CCA 99-0259.

INTERLOCUTORY ORDERS

No. 00-0095/AR. U.S. v. Paul J. FULLER. CCA 9701004. Appellee's motion to file an answer to final brief out of time granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-135
Wednesday, April 26, 2000

PETITIONS FOR GRANT OF REVIEW DENIED

No. 00-0173/AR. U.S. v. Matthew W. FLEMINGS III. CCA 9800219.

No. 00-0273/MC. U.S. v. Bryan W. MORRIS. CCA 99-0657.

No. 00-0285/MC. U.S. v. Manuel A. TISCARENORENTARIA. CCA 99-1346.

No. 00-0298/AR. U.S. v. George W. DE LA CRUZ. CCA 9800864.

PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0411/AR. U.S. v. Kedriane L. GURLEY. CCA 9900392.

No. 00-0412/AF. U.S. v. Adrian D. FULTON. CCA 33568.

No. 00-0413/MC. U.S. v. Sean C. GAUCI. CCA 98-1343.

No. 00-0414/NA. U.S. v. Robert R. KEEFE. CCA 99-0279.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-136
Thursday, April 27, 2000

INTERLOCUTORY ORDERS

No. 99-0560/NA. U.S. v. Kerry V. LYNN. CCA 97-1482.
Appellee's motion to correct errata granted.

No. 99-0788/AF. U.S. v. James M. ALLEN. CCA 32727.
Appellee's motion to review sealed document granted.

MANDATES ISSUED

No. 99-0303/AF. U.S. v. Paul H. MURRAY. CCA 32670.

No. 99-0421/NA. U.S. v. Stephen A. ROBBINS. CCA 97-0652.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-137
Friday, April 28, 2000

CERTIFICATES FOR REVIEW FILED

No. 00-5004/MC. United States, appellant, v. Anthony QUIROZ, appellee. CCA 98-1864. The Judge Advocate General of the Navy requests that action be taken with respect to the following issues:

I. WHETHER THE LOWER COURT ERRED IN HOLDING THAT AN EQUITABLE DOCTRINE OF UNREASONABLE MULTIPLICATION OF CHARGES EXISTS SEPARATE FROM MULTIPLICITY AND IS AN INDEPENDENT BASIS FOR GRANTING RELIEF.   II. WHETHER THE LOWER COURT ERRED BY ENUNCIATING AND APPLYING A NEW PER SE RULE THAT IT WILL NEVER APPLY FORFEITURE TO CLAIMS OF UNREASONABLE MULTIPLICATION OF CHARGES RAISED FOR THE FIRST TIME ON APPEAL.   III. WHETHER THE LOWER COURT ERRED IN GRANTING APPELLEE RELIEF FOR BEING CONVICTED OF AN UNREASONABLE MULTIPLICATION OF CHARGES WITHOUT FIRST FINDING THAT APPELLEE HAD SUFFERED MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT.
PETITIONS FOR GRANT OF REVIEW FILED

No. 00-0415/NA. U.S. v. Michael J. ELLIS. CCA 99-0712.

No. 00-0416/AF. U.S. v. Jason A. HART. CCA 32881.

No. 00-0417/AF. U.S. v. Charles W. MUMPOWER. CCA 33873.


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