HEARINGS
No. 00-5001/MC. U.S. v. Gary L. SCALARONE. CCA 98-0227.
No. 99-0761/AF. U.S. v. Cara R. SANCHEZ. CCA 33117.
No. 99-0764/NA. U.S. v. Darwinn DAVIS. CCA 97-1012.
No. 99-0832/AF. U.S. v. Stefanie L. SOUTHWICK. CCA 32667.
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0299/AR. U.S. v. David Lloyd JONES. CCA 9900284.
No. 00-0300/AR. U.S. v. Leroy BROWN, Jr. CCA 9700954.
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
DAILY JOURNAL
No. 00-097
Thursday, March 02, 2000
HEARINGS
No. 99-0092/AR. U.S. v. Ricky M. JOHNSON. CCA 9601024.
No. 99-0224/AR. U.S. v. Hector RODRIGUEZ. CCA 9700189.
No. 99-0778/AF. U.S. v. Paul G. HUBERTY. CCA 32574.
No. 99-0844/MC. U.S. v. Keith R. PAALUHI. CCA 97-0321.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 00-0121/AR. U.S. v. Carlos A. ESTRELLA. CCA 9700317.
No. 00-0147/AF. U.S. v. Jerry D. HARDING. CCA 33051.
No. 00-0152/NA. U.S. v. Ronald J. HURST. CCA 99-0639.
No. 00-0155/AF. U.S. v. Henry P. JOHNSON, Jr. CCA 33343.
No. 00-0157/AF. U.S. v. Jennifer L. SHOWERS. CCA 33252.
No. 00-0161/AF. U.S. v. Marlon L. TILLMON. CCA 33387.
No. 00-0165/AF. U.S. v. Rustavus T. KERR. CCA 32953.
No. 00-0174/MC. U.S. v. Anthony P. DAVIN. CCA 98-1269.
No. 00-0178/MC. U.S. v. Christopher R. WITHEY. CCA 99-0989.
No. 00-0189/AR. U.S. v. Ronald JONES, Jr. CCA 9900676.
No. 00-0190/AR. U.S. v. Terrance L. WILLIAMS. CCA 9900359.
No. 00-0198/AR. U.S. v. Wardell SINGLETON, III. CCA 9900398.
No. 00-0205/AF. U.S. v. Rafael M. ROBLES. CCA 33500.
No. 00-0221/AR. U.S. v. Cameron L. WOOLCOTT. CCA 9900328.
No. 00-0237/AR. U.S. v. Woodrow JACKSON. CCA 9801653.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS
No. 00-0217/AF. U.S. v. Andrew C. FRENCH. CCA S29533. Appellant’s motion to withdraw petition for grant of review granted.
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0301/MC. U.S. v. Glenn E. HURN. CCA 98-0200.
No. 00-0302/NA. U.S. v. Carlos M. NORRIS. CCA 98-1311.
PETITIONS FOR RECONSIDERATION DENIED
No. 99-0803/NA. U.S. v. Frederick L. COZART. CCA 97-1396. Appellant’s petition for reconsideration of the order of the Court issued on January 24, 2000, denied; appellant’s motion to substitute denied.
Judge Effron did not participate in this decision. See United States v. Gorski, 48 MJ 317, 324, n. 9. 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, Pub.L. No. 104-106, 110 Stat. 462-63 (1996).
INTERLOCUTORY ORDERS
No. 99-0306/MC. U.S. v. James D. GUTHRIE. CCA 95-1697. Appellant's motion to file supplemental assignment of errors denied.
No. 99-0314/MC. U.S. v. Milton D. STEELE.
CCA 97-1236.
Appellant's motion to attach documents
filed on January 18, 2000 granted; appellant’s second motion to attach
document filed on January 28, 2000 denied.
No. 99-0560/NA. U.S. v. Kerry V. LYNN. CCA 97-1482. Appellant's second motion to extend time to file final brief granted to March 15, 2000.
No. 99-0788/AF. U.S. v. James M. ALLEN. CCA 32727. Appellant's motion for delay in scheduled oral argument granted.
No. 00-0128/NA. U.S. v. Juan J. TORRES. CCA 98-1961. Appellant's motion to file supplemental assignment of error pursuant to United States v. Grostefon, 12 MJ 431 (CMA 1982), granted.
No. 00-0159/AR. U.S. v. James A. BROWN. CCA 9801503. Appellant's motion to admit matters under United States v. Grostefon granted.
No. 00-0215/AF. U.S. v. Christopher G. ROBB. CCA 32857. Appellee's motion to supplement waiver letter granted.
No. 00-0222/NA. U.S. v. Perry E. LINDSAY. CCA 97-1643. Appellant's motion to attach documents granted; appellee's motion to dismiss petition for grant of review denied.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 00-098
Friday, March 03, 2000
APPEALS - SUMMARY DISPOSITIONS
No. 98-0971/AR. U.S. v. Moses LOVER, Jr. CCA 9500726. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted and the decision of the United States Army Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 98-0971/AR. U.S. v. Moses LOVER, Jr. CCA 9500726. [See also APPEALS - SUMMARY DISPOSITIONS this date.]
No. 00-0126/AF. U.S. v. Craig L. SIMPSON. CCA 32749. Review granted on the following issue raised by appellate defense counsel:
No. 00-0139/AF. U.S. v. Christopher M. FARIAS. CCA S29724.
No. 00-0146/AF. U.S. v. Donald G. STRYKER. CCA 33620.
No. 00-0148/AF. U.S. v. Derron W. JOHNSON. CCA 33588.
No. 00-0149/AF. U.S. v. Perry R. LAKE. CCA 33778.
No. 00-0150/AF. U.S. v. Jorge E. PEDROZA-DIAZ. CCA S29630.
No. 00-0151/AF. U.S. v. Jared E. ROACH. CCA S29674.
No. 00-0175/AR. U.S. v. Jamie SALINAS. CCA 9801394.
No. 00-0179/NA. U.S. v. William R. DALEY. CCA 99-0693.
No. 00-0183/NA. U.S. v. Odlemer CUETOPAULINO. CCA 99-0300.
No. 00-0184/NA. U.S. v. Brandon R. CRAIG. CCA 99-1101.
No. 00-0185/AF. U.S. v. Jonathan B. WAMSER. CCA 33780.
No. 00-0187/AF. U.S. v. Allen D. CAHILL. CCA 33831.
No. 00-0188/AF. U.S. v. Michael E.J. BURKE. CCA 33747.
No. 00-0191/AF. U.S. v. Alvin S. JONES. CCA S29695.
No. 00-0193/MC. U.S. v. Justin W. GREGORY. CCA 98-2198.
No. 00-0195/AR. U.S. v. Kenny W. SCOTT. CCA 9801674.
No. 00-0197/AR. U.S. v. Lance A. FAULKNER. CCA 9801346.
No. 00-0201/NA. U.S. v. Jeremy D. SIMONS. CCA 99-1440.
No. 00-0206/AF. U.S. v. Andrew R. TORKELSON. CCA 33746.
No. 00-0212/AF. U.S. v. Duane N. MILLER. CCA 33807.
No. 00-0213/AF. U.S. v. Garrett J. NUNN. CCA 33802.
No. 00-0248/AF. U.S. v. Eric A. JACOBSON. CCA S29729.
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0303/MC. U.S. v. Keith J. GUAY. CCA 99-0962.
No. 00-0304/AF. U.S. v. Richard B. VOGEL. CCA 33643.
No. 00-0305/AF. U.S. v. Conor R. STOEPPLER. CCA S29704.
No. 00-0306/AF. U.S. v. Napolean BAILEY. CCA 32898.
MANDATES ISSUED
No. 98-0940/AR. U.S. v. Michael D. SPRIGGS. CCA 9601685.
No. 99-0300/MC. U.S. v. Gehiser A. NAJERA. CCA 98-0155.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 00-099
Monday, March 06, 2000
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0307/CG. U.S. v. Bryan S. ROWLAND. CCA 1118.
No. 00-0308/AF. U.S. v. Scott A. SPRINGMEYER. CCA 33704.
No. 00-0309/AR. U.S. v. Zachary V. STICKLES. CCA 9701877.
No. 00-0310/MC. U.S. v. Ray V. WILLISTON. CCA 99-1255.
INTERLOCUTORY ORDERS
No. 99-0974/AR. U.S. v. Reinaldo MONTANEZ-PITRE. CCA 9701865. Appellate defense counsel's request for additional time to respond to appellant's submission granted to March 9, 2000.
No. 00-0229/AR. U.S. v. Gordon L. DABNEY. CCA 9701682. Appellant's motion to extend time to file supplement to petition for grant of review granted to March 28, 2000.
No. 00-0268/MC. U.S. v. Nolan P. GREEN. CCA 99-0162. Appellee's motion to extend time to file answer to petition for grant of review granted to April 23, 2000.
SULLIVAN, Judge (dissenting): I would deny appellee’s motion.
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
DAILY JOURNAL
No. 00-100
Tuesday, March 07, 2000
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0311/AR. U.S. v. Harrell WOODSON. CCA 9701853.
No. 00-0312/AR. U.S. v. Timothy A. HARRIS. CCA 9700640.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No. 00-8005/AR. U.S. v. Ian C. McROBERTS. On consideration of the writ appeal petition for review of the decision of the United States Army Court of Criminal Appeals on application for extraordinary relief, it is ordered that said writ appeal petition is denied without prejudice to appellant’s right to raise the issues in the writ appeal petition during normal appellate review if he is convicted.
INTERLOCUTORY ORDERS
No. 98-0783/NA. U.S. v. Michael W. FRICKE. CCA 96-1293. Motion filed by Lieutenant Commander Wentworth to file amicus curiae brief denied.
No. 99-0024/MC. U.S. v. William J. LAY. CCA 97-1542. Appellant's motion to file motion to attach granted; motion to attach granted.
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
DAILY JOURNAL
No. 00-101
Wednesday, March 08, 2000
APPEALS - SUMMARY DISPOSITIONS
No. 99-0852/MC. U.S. v. Daniel L. HOOD. CCA 98-1639. On consideration of the granted issue (Daily Journal November 19, 1999) in light of United States v. Tualla, 52 MJ 228 (2000), we note that appellant was sentenced by a special court-martial to a bad-conduct discharge, 100 days’ confinement, a $1,000 fine, 80 days’ additional confinement if the fine was not paid, and reduction to E-1. The sentence was unconditionally approved. As a result, appellant was required to forfeit two-thirds of his pay "during [the] period of confinement" under Article 58b(a)(1), Uniform Code of Military Justice, 10 USC § 858b(a)(1). Appellant was entitled to 46 days’ credit for pretrial confinement. The combination of this automatic forfeiture with the fine was lawful because the total "did not exceed the amount of the maximum forfeitures that could be adjudged" at appellant’s trial. Tualla, supra at 230; RCM 1003(b)(3), Manual for Courts-Martial, United States (1998 ed.). Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 00-0063/NA. U.S. v. Glenn D. LEHMAN. CCA 97-1394.
No. 00-0141/MC. U.S. v. Ricardo GOMEZARROYO. CCA 99-0286.
No. 00-0156/AF. U.S. v. Kenneth V. KUZEFF. CCA 33346.
No. 00-0196/MC. U.S. v. Raul RAMIREZ. CCA 99-1121.
No. 00-0202/MC. U.S. v. Jamie ROYALS. CCA 99-0552.
No. 00-0214/AR. U.S. v. Philemon XIONG. CCA 9801664.
No. 00-0220/NA. U.S. v. Brian P. COMPTON. CCA 99-0737.
No. 00-0230/AF. U.S. v. Kris C. COLE. CCA 33833.
No. 00-0236/AF. U.S. v. William L. COCHRAN. CCA 32928.
No. 00-0238/AR. U.S. v. Donald R. SHIELDS. CCA 9801570.
No. 00-0242/NA. U.S. v. Erick D. LAABS. CCA 99-0622.
No. 00-0250/AF. U.S. v. Colin C.A. BODE. CCA S29711.
No. 00-0262/NA. U.S. v. David L. BOARD. CCA 98-2061.
No. 00-0265/AF. U.S. v. Donald J. DIERKSEN. CCA 33861.
No. 00-0266/AF. U.S. v. James C. POLCHES. CCA 33842.
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0313/MC. U.S. v. Timothy A. HORN. CCA 98-1262.
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 00-8006/AF. United States, respondent, v. Nicholas G. MORGAN, III, petitioner. Petition for extraordinary relief in the nature of a writ of mandamus filed under Rule 27(a).
INTERLOCUTORY ORDERS
No. 99-0314/MC. U.S. v. Milton D. STEELE. CCA 97-1236. Motion filed by Lieutenant Dale O. Harris to withdraw as appellate defense counsel granted.
No. 00-0176/MC. U.S. v. Randy K. COCHRAN. CCA 98-1930. Appellant's motion to attach denied.
No. 00-0204/AF. U.S. v. John A. FLORES. CCA S29697. Appellant's motion to substitute supplement to the petition for grant of review granted.
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
DAILY JOURNAL
No. 00-102
Thursday, March 09, 2000
ORDERS GRANTING PETITION FOR REVIEW
No. 00-0113/MC. U.S. v. Bud W. TYNDALE. CCA 97-1741. Review granted on the following issue raised by appellate defense counsel:
No. 00-0314/AR. U.S. v. Lewis T. CARTER. CCA 9701744.
No. 00-0315/AR. U.S. v. Troy W. CARBAUGH. CCA 9701612.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 00-103
Friday, March 10, 2000
PETITIONS FOR GRANT OF REVIEW DENIED
No. 99-0863/NA. U.S. v. Lowman W. STEPHENS. CCA 98-0934.
SULLIVAN, Judge (dissenting):
I dissent. I would grant and have full oral argument on the following issues:
III. WHETHER THE LOWER COURT ERRED IN HOLDING THAT THE DEFENSE OF DURESS IS LIMITED TO SITUATIONS WHERE IT IS A THIRD PARTY THAT FORCES THE ACCUSED TO ACT ILLEGALLY.
I believe appellant should have a chance to have a day in this Court to argue his views on the duty of the trial judge in taking a plea and the special circumstances of this case. Can one justify going AWOL to prevent his brother’s possible suicide? Perhaps the judge erred by not inquiring into what the appellant was saying at the plea hearing.
PETITIONS FOR GRANT OF REVIEW FILED
No. 99-5005/AR. U.S. v. Audrey J. VALIGURA. CCA 9800225.*
No. 00-0316/AF. U.S. v. Bryan M. MELANCON. CCA 33696.
No. 00-0317/AR. U.S. v. O.J. Simpson LEE. CCA 9100691.
No. 00-0318/MC. U.S. v. Eric F. BARRON. CCA 98-1881.
No. 00-0319/NA. U.S. v. Ricky L. LAMBERT. CCA
97-2027.
______________
* Cross-petition filed in same case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 00-104
Monday, March 13, 2000
PETITIONS FOR GRANT OF REVIEW FILED
No. 99-0002/AF. U.S. v. Phillip K. LEE. CCA 32773.*
No. 00-0320/AR. U.S. v. Bryant ALLEN. CCA 9800469.
No. 00-0321/AF. U.S. v. Alicia E. ALVAREZ. CCA 33860.
No. 00-0322/AF. U.S. v. Jackie KLEIN, Jr. CCA 33781.
No. 00-0323/AF. U.S. v. Sekou S. MYRICKS. CCA S29710.
No. 00-0324/AF. U.S. v. James W. TAUBMAN. CCA 33742.
No. 00-0325/AF. U.S. v. David A. THOMPSON. CCA S29715.
No. 00-0326/NA. U.S. v. Michael P. CHILDERS. CCA 99-1321.
No. 00-0327/NA. U.S. v. Miguel E. INONG. CCA
98-1667.
______________
* Second petition filed in same case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 00-105
Tuesday, March 14, 2000
ORDERS GRANTING PETITION FOR REVIEW
No. 00-0170/MC. U.S. v. Alejandro HUERECA. CCA 98-1189. Review granted on the following issue raised by appellate defense counsel:
No. 00-0186/AF. U.S. v. Tommy E. LIGHTFOOT. CCA S29576.
No. 00-0199/MC. U.S. v. John G. RICHARDS. CCA 98-1935.
No. 00-0208/MC. U.S. v. Arkaduisz STAWICKI. CCA 98-1931.
No. 00-0209/MC. U.S. v. Steven D. DAVISSON. CCA 99-0134.
No. 00-0216/AF. U.S. v. Leonard R. TAYLOR, Jr. CCA 33083.
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0328/MC. U.S. v. Glen T. BIRDSONG. CCA 99-1148.
No. 00-0329/AR. U.S. v. Russell J. ROBINSON. CCA 9800736.
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 00-8007/NA. United States, appellee, v. Daniel M. KING, appellant. Writ appeal petition for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on application for extraordinary relief in the nature of writs of prohibition and mandamus filed under Rule 27(b).
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 00-106
Wednesday, March 15, 2000
INTERLOCUTORY ORDERS
No. 99-0631/MC. U.S. v. Edward L. JENKINS. CCA 97-1567. Motion filed by the University of San Diego School of Law, seeking permission to appear as amicus curiae and to present oral argument granted.
No. 99-0656/AR. U.S. v. Nicky A. THOMPSON. CCA 9600798. Appellant's motion to extend time to file final brief granted, but only up to and including March 20, 2000.
MANDATES ISSUED
No. 99-0040/AR. U.S. v. Ronald L. DIGGS. CCA 9700186.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-107
Thursday, March 16, 2000
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No. 00-8006/AF. United States, respondent, v. Nicholas G. MORGAN, III, petitioner. Petition for extraordinary relief in the nature of a writ of mandamus denied.
INTERLOCUTORY ORDERS
No. 99-0973/MC. U.S. v. Sean K. WILLIAMS. CCA 98-0213. Motion filed by Lieutenant John D. Holden to withdraw as appellate defense counsel granted.
No. 00-8007/NA. U.S. v. Daniel M. KING. CCA 20000039. Appellant's motion to stay Article 32 proceedings granted; said proceedings are stayed until further order of the Court.
SULLIVAN, Judge (concurring):
I strongly concur with my colleagues in ordering a stay of proceedings in this case. The court below was clearly wrong in denying relief under Clinton v. Goldsmith, 526 U.S. 529 (1999). They had the power to issue relief under the All Writs Act, 28 USC 1651. United States v. Dowty, 48 MJ 102, 107 (1998). Moreover, this Court clearly has the power to supervise criminal proceedings under Article 32, Uniform Code of Military Justice, 10 USC § 832. Congress created this Court as a "court under Article I." (Emphasis added.) Article 141, Uniform Code of Military Justice, 10 USC § 941. As such, it has powers under the All Writs Act to supervise proceedings and provide relief under the Uniform Code of Military Justice. The Article 32 hearing that is pending in this case is part of the Uniform Code of Military Justice. In the past, this Court has acted to supervise matters involving Article 32 hearings, ABC, Inc. v. Powell, 47 MJ 363 (1997) (Court ordered Article 32 hearing open to cameras from the press and the public).
In addition, federal courts have appropriately regulated the use of classified information in judicial proceedings. See, e.g., United States v. Collins, 603 F.Supp. 301 (S.D. Fla. 1985). I have no reason to doubt that this Court or any of the federal judges in the military justice system who have jurisdiction over this case can do the same thing.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-108
Friday, March 17,
2000
APPEALS - SUMMARY DISPOSITIONS
No. 99-5006/AR. U.S. v. Kier D. JACKSON. CCA 9700166. On consideration of the certified question and the cross-petition for grant of review in the above-entitled case, we hold that the Army Court of Criminal Appeals did not err when it set aside the findings of guilty to Charge II and its specification and ordered that Charge and its specification dismissed. The lower court’s action was based on its finding that the Government failed to persuade it beyond a reasonable doubt that the victim had a superior right of possession in the items allegedly stolen as against appellant. Therefore, we hold that it correctly held that the evidence was insufficient as a matter of fact to establish a wrongful taking. See para. 46c(1)(d), Part IV, Manual for Courts-Martial, United States (1995 ed.). On consideration of the cross-petition for grant of review, we hold that none of the assigned issues warrants further review. Accordingly, it is ordered that the cross-petition is denied. The certified question is answered in the negative, and the decision of the United States Army Court of Criminal Appeals is affirmed.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 00-0177/MC. U.S. v. Christopher A. ZAMMIT. CCA 98-0669.
No. 00-0182/AF. U.S. v. Gregory A. CERZA. CCA 33533.
No. 95-0865/AR. U.S. v. Hershell VEAL. CCA 9601448.
No. 99-5006/AR. U.S.
v. Kier D. JACKSON. CCA 9700166.*/
_____
*/ Cross-petition.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-109
Monday, March 20,
2000
APPEALS - SUMMARY DISPOSITIONS
No. 99-0618/AR. U.S. v. McTyran T. LANIER. CCA 9700598. On consideration of the Granted Issue (Daily Journal Oct. 18, 1999), in light of United States v. Townes, 52 MJ 275 (2000), we conclude that the error did not materially prejudice appellant’s substantial rights. Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a).
On consideration of the Specified Issue, we conclude under the facts of this case that there was no plain error. United States v. Powell, 49 MJ 460, 464 (1998). Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0330/MC. U.S. v. Jose L. JIMENEZ. CCA 98-0755.
No. 00-0331/AF. U.S. v. Khalid J. HOBSON. CCA 33847.
No. 00-0332/AF. U.S. v. Wendell O. HOLMES. CCA 33785.
No. 00-0333/AF. U.S. v. Darron A. JOHNSON. CCA 33858.
No. 00-0334/AF. U.S. v. William C. MERRICK. CCA 33824.
No. 00-0335/AF. U.S. v. Jeremy R. OGLE. CCA S29741.
No. 00-0336/AF. U.S. v. Thomas J. VANKLEEF. CCA 33726.
No. 00-0337/AF. U.S. v. Nicholas J. WILLIAMS. CCA S29712.
INTERLOCUTORY ORDERS
No. 99-0940/AF. U.S. v. Michael R. MCELHANEY. CCA 32522. Appellant's motion for additional allotment of time to present oral argument denied.
No. 00-0076/AR. U.S. v. Anthony J. BAUMANN. CCA 9701765. Appellee's motion to extend time to file answer to final brief granted, but only up to and including April 17, 2000.
No. 00-0210/MC. U.S. v. John R. CLOUGH. CCA 99-0183.
No. 00-0211/MC. U.S. v. Jonathan GUTIERREZ. CCA 99-0678.
In each of the above two cases, appellant's second motion to extend time to file supplement to petition for grant of review granted, but only up to and including April 7, 2000; absent extraordinary circumstances, no further extension of time will be granted in these cases.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-110
Tuesday, March 21,
2000
APPEALS - SUMMARY DISPOSITIONS
No. 99-0232/AR. U.S. v. Robert W. MARTIN. CCA 9600413. On further consideration of the four granted issues in this case, ___ MJ ___ (Daily Journal Oct. 5, 1999):
With respect to Issue I, it is not apparent what standard was employed by the Court of Criminal Appeals in addressing the question of whether appellant carried his "burden of proving the defense of lack of mental responsibility by clear and convincing evidence." See Art. 50a(b), Uniform Code of Military Justice, 10 USC § 850a(b). Therefore, it is necessary to return the record to the Judge Advocate General for remand to the Court of Criminal Appeals for reconsideration of that question. On reconsideration, the court will determine whether the court-martial’s finding that appellant did not prove lack of mental responsibility by clear and convincing evidence was correct both in law and in fact. See Art. 66(c), UCMJ, 10 USC § 866(c);.United States v. Turner, 25 MJ 324 (CMA 1987).
In determining whether the members’ finding was correct in fact, the court must weigh the evidence and determine for itself whether appellant proved the defense of lack of mental responsibility by clear and convincing evidence. In determining whether the finding was correct in law, the court must view the evidence and all reasonable inferences in the light most favorable to the Government and determine whether a court-martial composed of reasonable members could have found that appellant failed to prove lack of mental responsibility by clear and convincing evidence. See generally Jackson v. Virginia, 443 U.S. 307, 319 (1979).
With respect to Issue II, the military judge was not required to recuse himself under the facts and circumstances of this case. See RCM 902(a), Manual for Courts-Martial, United States (1998 ed.).
With respect to Issue III and IV, in view of the necessity for a remand, it appears that any further review by the Court of Criminal Appeals should be conducted by a panel of judges who were not present during either of the incidents that gave rise to Issues III and IV. This action is taken in the interests of judicial economy and does not reflect a decision on the question of whether the particular judges who originally reviewed this case should have disqualified themselves. To the extent that appellant seeks to disqualify all Army judge advocates from serving as appellate judges, such action is not warranted under the facts and circumstances of this case. It is therefore ordered that the decision of the United States Army Court of Criminal Appeals is set aside, and that the record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for reconsideration consistent with this opinion.
PETITIONS FOR GRANT OF REVIEW FILED
No. 96-0841/MC. U.S. v. David MAY. CCA 94-2027.*/
INTERLOCUTORY ORDERS
No. 00-0254/NA. U.S. v. Jerry A. STEEN. CCA 98-2014. Appellant's motion to file supplement to petition for grant of review out of time granted.
No. 00-0259/AR. U.S. v. Brannon K. MCDANIEL. CCA 9801068. Appellant's motion to extend time to file supplement to petition for grant of review granted to April 13, 2000.
No. 00-0309/AR. U.S.
v. Zachary V. STICKLES. CCA 9701877. Appellant's motion to extend time
to file supplement to petition for grant of review granted to May 5, 2000.
______
*/ Second petition filed in same case.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-111
Wednesday, March
22, 2000
HEARINGS
No. 99-0631/MC. U.S. v. Edward L. JENKINS. CCA 97-1567.*/
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0338/AF. U.S. v. Rocky L. RAMIREZ. CCA 33856.
No. 00-0339/AF. U.S. v. Joshua A. ROGERS. CCA 33848.
No. 00-0340/MC. U.S. v. Terry W. MCLEOD. CCA 97-1345.
No. 00-0341/NA. U.S. v. Lester KNIGHTEN. CCA 98-0040.
MANDATES
No. 97-0149/AR. U.S. v. Christopher W. CAMPBELL. CCA 9400527.
No. 99-0091/NA. U.S. v. Roger D. GEORGE. CCA 97-1969.
No. 99-0546/AF. U.S. v. Patrick R. HERYFORD. CCA 33249.
No. 99-5004/MC. U.S.
v. Kevin TOWNES. CCA 95-0849.
______
*/ Hearing held at the University of San Diego School of Law, San Diego, California, as part of the Court’s "Project Outreach" Program.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-112
Thursday, March 23,
2000
HEARINGS
No. 99-0932/AF. U.S. v. Larry D. SMITH, Jr. CCA 32850.*/
No. 99-0999/AF. U.S. v. Marcus L. STARR. CCA S29510.*/
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0342/AR. U.S. v. Anthony C. SPAIN. CCA 9900109.
No. 00-0343/AR. U.S. v. Angela L. JAMES. CCA 9601113.
INTERLOCUTORY ORDERS
No. 99-0778/AF. U.S.
v. Paul G. HUBERTY. CCA 32574. On further consideration of this case, it
is ordered that within 30 days of the date of this order, the United States
of America, appellee, shall take such action as is necessary to locate
and obtain those files in the possession of the United States that relate
to medical credentials of Captain Susan Snyder. Upon obtaining such files,
appellee shall forthwith provide them to this Court so that an in camera
inspection may be made to determine whether information is contained therein
that would reasonably support a petition by appellant for a new trial.
_____
*/ Both hearings held at the United States Air Force Academy, Colorado Springs, Colorado, as part of the Court’s "Project Outreach" Program.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-113
Friday, March 24,
2000
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0344/AF. U.S. v. Alejandro H. RAMIREZ. CCA 33732.
No. 00-0345/AR. U.S. v. Tracy R. GWYN. CCA 9800621.
No. 00-0346/AR. U.S. v. Eric B. PACHECO. CCA 9500002.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No. 00-8004/AR. United States, appellee, v. David R.E. HALE, appellant. Petition for extraordinary relief denied without prejudice to petitioner’s right to file a petition for extraordinary relief with the United States Army Court of Criminal Appeals. See Rule 4(b)(1), Court Rules.
INTERLOCUTORY ORDERS
No. 00-0270/AR. U.S. v. Billy K.J. MONDAY. CCA 9800082. Appellant's motion to extend time to file supplement to petition for grant of review granted to April 6, 2000.
No. 00-0271/AR. U.S. v. Andrew A. SZENTMIKLOSI. CCA 9701049.
No. 00-0272/AR. U.S. v. Junior S. PHILLIP. CCA 9700398.
In each of the above two cases, appellant's motion to extend time to file supplement to petition for grant of review granted to April 24, 2000.
No. 00-8007/NA. U.S. v. Daniel M. KING. Appellee’s motion to extend time to file answer to petition for extraordinary relief granted to March 27, 2000.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-114
Monday, March 27,
2000
ORDERS GRANTING PETITION FOR REVIEW
No. 00-0092/AR. U.S. v. John D. GUNKLE. CCA 9701960. Review granted on the following issues:
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING THE DEFENSE AN EXPERT THAT THE MILITARY JUDGE DETERMINED WAS NECESSARY TO EVALUATE THE TECHNIQUES USED BY THE SOCIAL WORKERS WHEN THEY INTERVIEWED THE ALLEGED VICTIMS, DESPITE THE FACT THAT THE MILITARY JUDGE ALLOWED INTO EVIDENCE EXCERPTS OF MS. G'S INTERVIEW AND ALLOWED ONE SOCIAL WORKER TO TESTIFY AS TO STATEMENTS MADE BY MS. A DURING AN OUT-OF-COURT INTERVIEW.
III. WHETHER THE STAFF JUDGE ADVOCATE'S RECOMMENDATION, WHICH INCORRECTLY REFLECTED THAT APPELLANT HAD BEEN FOUND GUILTY OF CERTAIN TYPES OF EGREGIOUS CHILD MOLESTATION, PREJUDICED APPELLANT WHEN THE CONVENING AUTHORITY CONSIDERED CLEMENCY.
No. 95-0738/AR. U.S. v. Louis B. NILES. CCA 9200448.*/
No. 00-0347/AR. U.S. v. Jamie H. RODGERS. CCA 9900108.
No. 00-0348/AF. U.S. v. Kevin A. BRANSCOM. CCA 33872.
No. 00-0349/AF. U.S. v. Shawn T. GOLDWIRE. CCA 32840.
No. 00-0350/AF. U.S. v. Daniel A. MAYBERRY. CCA S29730.
No. 00-0351/AF. U.S. v. Michael P. NELSON. CCA 32956.
No. 00-0352/AF. U.S. v. Joseph M. RIGGLE. CCA 33775.
No. 00-0353/AF. U.S. v. Rosendo SIAS. CCA 33690.
INTERLOCUTORY ORDERS
No. 99-0983/AR. U.S.
v. Kevin E. BROWN. CCA 9701539. Appellant's motion to extend time to file
final brief granted up to and including April 7, 2000.
_____
*/ Second petition filed in same case.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-115
Tuesday, March 28,
2000
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS
No. 98-0264/AR. U.S. v. Jason S. WESLEY. CCA 9700164. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that the United States Army Court of Criminal Appeals has determined that appellant is within the class of persons entitled to relief under United States v. Gorski, 47 MJ 370 (1997), but it failed to follow the decretal paragraph in Gorski. Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals on remand is set aside; and that the record of trial be returned to the Judge Advocate General to determine the amount of relief, if any, that is warranted. Thereafter, the record of trial will be returned directly to this Court.
Judge Effron did not participate in the Court’s prior action on this case. See 51 MJ 269 (1998). The case is now before the Court in a manner that does not require determination of the constitutionality under the Ex Post Facto Clause of 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). Accordingly, Judge Effron has participated in the present matter and will participate in any further proceedings on this case.
No. 99-0705/AR. U.S. v. Vance R. LASUEUR. CCA 9700803. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we note that government appellate counsel has conceded that appellant is within the class of persons entitled to relief pursuant to United States v. Gorski, 47 MJ 370 (1997), and has requested that we remand the case. Accordingly, 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 to determine the amount of relief, if any, that is warranted. Thereafter, the record of trial will be returned directly to this Court.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No. 99-8028/AR. United States, appellee, v. Anthony L. NEHRING. On further consideration of the writ appeal filed in the above-entitled case, we note that the issue specified in our order of November 3, 1999, has been decided by United States v. Townes, 52 MJ 275 (2000). Review of the original issue regarding the attorney-client privilege raised in the writ-appeal petition was not granted in our November 3 order. The writ appeal is now moot. Accordingly, it is ordered that 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. 99-0750/MC. U.S. v. Carl D. DAGNESE. CCA 97-0212. Appellant's second motion to extend time to file petition for reconsideration granted, but only up to and including April 10, 2000; absent extraordinary circumstances, no further extension of time will be granted in this case.
MANDATES ISSUED
No. 98-1129/AF. U.S. v. Troy D. HUGHES. CCA 32359.
No. 99-0536/AF. U.S. v. Robert J. MONROE. CCA 32592.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-116
Wednesday, March
29, 2000
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0354/NA. U.S. v. Kelsey L. BRIDGES. CCA 98-1057.
MANDATES ISSUED
No. 98-1089/AR. U.S. v. Sean G. GRIGORUK. CCA 9600949.
No. 99-0288/AF. U.S. v. Ryan A. SMITH. CCA S29464.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 00-117
Thursday, March 30,
2000
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0355/AR. U.S. v. Thomas M. LONERGAN. CCA 9700615.
INTERLOCUTORY ORDERS
No. 00-0113/MC. U.S. v. Bud W. TYNDALE. CCA 97-1741. Appellant's motion to extend time to file final brief granted, but only up to and including April 21, 2000; absent extraordinary circumstances, no further extension of time will be granted in this case.
No. 00-0229/AR. U.S. v. Gordon L. DABNEY. CCA 9701682. Appellant's second motion to extend time to file supplement to petition for grant of review granted, but only up to and including April 14, 2000; absent extraordinary circumstances, no further extension of time will be granted in this case.
No. 00-0292/AF. U.S. v. Shane A. WALKER. CCA 33477. Appellant's motion to extend time to file supplement to petition for grant of review granted to May 5, 2000.
No. 00-5002/CG. U.S. v. Thomas O. ARMSTRONG. CCA 1076. Appellee's motion to correct errata granted.
No. 00-8007/NA. U.S. v. Daniel M. KING. Appellant's motion to extend time to file reply brief granted to April 3, 2000.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 00-118
Friday, March 31, 2000
PETITIONS FOR GRANT OF REVIEW FILED
No. 00-0356/AF. U.S. v. William R. BENDER. CCA 33705.
No. 00-0357/MC. U.S. v. Niles L. LAING. CCA 99-1097.
MANDATES ISSUED
No. 98-1039/NA. U.S. v. Kevin M. ROBERTS. CCA 97-0767.
No. 99-0069/NA. U.S. v. Carlos L. GUZMAN. CCA 97-0293.
No. 99-0271/MC. U.S. v. Jerrimaine C. RAMSEY. CCA 98-0007.