UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-141
APPEALS - SUMMARY DISPOSITIONS
No. 03-0412/AF.
WHETHER APPELLANT'S GUILTY PLEAS TO THE CHARGE AND
ITS SPECIFICATION MUST BE SET ASIDE BECAUSE HIS PLEAS TO POSSESSING CHILD
PORNOGRAPHY UNDER 18 U.S.C. § 2252A WERE BASED ON A DEFINITION OF CHILD
PORNOGRAPHY THAT HAS BEEN PARTIALLY INVALIDATED BY THE UNITED STATES SUPREME
COURT.
The decision of the United States Air Force Court of Criminal Appeals is
reversed and the findings of guilty and the sentence are set aside. The
record of trial is returned to the Judge Advocate General of the Air Force for
further action consistent with this Court's decision in United States v.
O'Connor, 58 M.J. 450 (C.A.A.F. 2003). A rehearing may be
ordered. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]
CRAWFORD,
Chief Judge (dissenting):
I dissent for the reasons set forth in Sections A and B of my separate opinion
in United States v. O'Connor, 58 M.J. 450, 455-57 (C.A.A.F. 2003)
(Crawford, C.J., dissenting).
No. 03-0500/AR.
I. WHETHER THE FINDINGS OF GUILTY OF
SPECIFICATIONS 3, 4 AND 6 OF THE CHARGE CAN BE AFFIRMED IN LIGHT OF ASHCROFT
v. FREE SPEECH COALITION, 535
II. WHETHER THE ARMY
COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND THAT EACH OF THE IMAGES IN
QUESTION WAS A "VISUAL DEPICTION OF A REAL MINOR ENGAGED IN SEXUALLY
EXPLICIT CONDUCT WITHIN THE MEANING OF 18 U.S.C. § 2256(8)(A)" WHEN THERE
WAS NO FACTUAL BASIS FOR ITS FINDING.
Regarding Issue II, the Court of Criminal Appeals erred in "find[ing]" that any of the images at issue were visual
depictions of a "real minor" for purposes of 18 U.S.C. §
2256(8)(A). The scope of the lower court's factfinding
authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), does not extend to
making a "finding of fact" of that nature in the context of a guilty
plea, where no aspect of either the plea colloquy or the stipulation of fact is
directed toward the character of the images as depicting "real" or
"virtual" minors.
Therefore, the decision of the United States Army Court of Criminal Appeals is
reversed as to Specifications 3, 4, and 6 of the Charge and the sentence, but
is affirmed in all other respects. The findings as to Specifications 3,
4, and 6 of the Charge and the sentence are set aside. The record of
trial is returned to the Judge Advocate General of the Army for remand to a
convening authority for a rehearing on Specifications 3, 4, and 6 of the Charge
and the sentence. If a rehearing on Specifications 3, 4, and 6 is deemed
impracticable, the specifications may be dismissed and a rehearing on sentence
alone will be conducted. Thereafter, Articles 66 and 67, UCMJ, 10 U.S.C.
§ 866 and 867, will apply. [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
CRAWFORD,
Chief Judge (dissenting): I would dissent as to Issue I based on sections
A and B of my dissent in United States v. O'Connor, 58 M.J. 450, 455-57
(C.A.A.F. 2003). I also dissent on Issue II because the Court of Criminal
Appeals properly applied its factfinding power under
Article 66(c), UCMJ.
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0412/AF.
No. 03-0500/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0236/AF.
No. 04-0278/AR.
No. 04-0285/AF.
No. 04-0288/AR.
No. 04-0298/AF.
No. 04-0337/AR.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No. 04-0415/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0478/AF.
No. 04-0479/AF.
No. 04-0480/AF.
INTERLOCUTORY ORDERS
No. 04-0278/AR.
No. 04-0386/AR.
No. 04-8012/NA.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-140
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0647/AR.
I.
WHETHER
THE ARMY COURT OF CRIMINAL APPEALS ERRED BY CONVICTING APPELLANT OF THE GREATER
OFFENSE OF MALTREATMENT AND ITS LESSER-INCLUDED OFFENSE OF A VIOLATION OF A
SIMPLE DISORDER BASED ON THE SAME FACTS.
And
the following issues specified by the Court:
II.
WHETHER
THIS COURT HAS JURISDICTION TO ACT WITH RESPECT TO A FINDING SET ASIDE BY A
COURT OF CRIMINAL APPEALS AS FACTUALLY INSUFFICIENT? SEE ARTICLE
67(c), 10 U.S.C. § 867(c) (2000).
III.
WHETHER A
COURT OF CRIMINAL APPEALS’ FINDING OF FACTUAL INSUFFICIENCY PRECLUDES
REINSTATEMENT OF THE AFFECTED FINDING OF GUILTY ON DOUBLE JEOPARDY
GROUNDS? SEE UNITED STATES V. RILEY, 55 M.J. 185, 188
(C.A.A.F. 2001); UNITED STATES v. CRIDERS, 22 C.M.A. 108, 111, 46 C.M.R.
108, 111 (1973).
No. 04-0042/AR.
I.
WHETHER
THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED APPELLANT’S REQUEST FOR
A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE AND
And
the following issues specified by the Court:
II. WHETHER
APPELLANT’S FAILURE TO FILE THE PETITION FOR NEW TRIAL WITHIN THE TWO-YEAR
PERIOD ESTABLISHED BY ARTICLE 73 DEPRIVED THE ARMY COURT OF CRIMINAL APPEALS OF
JURISDICTION TO CONSIDER THE PETITION.
III. WHETHER THE MILITARY
JUDGE ERRED WHEN HE DENIED APPELLANT’S MOTION FOR A POST-TRIAL ARTICLE 39(a)
SESSION TO CONSIDER WHETHER APPELLANT SHOULD BE GRANTED A NEW TRIAL IN LIGHT OF
CLAIMS OF NEWLY DISCOVERED EVIDENCE AND FRAUD ON THE COURT.
No. 04-0145/AF.
I. WHETHER THE EVIDENCE
WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR OBSTRUCTION OF JUSTICE
WHERE: (1) APPELLANT HAD BEEN ENGAGED IN AN IMPROPER RELATIONSHIP WITH A
JUNIOR ENLISTED MEMBER; (2) APPELLANT ADVISED THE JUNIOR ENLISTED MEMBER NOT TO
SPEAK WITH LAW ENFORCEMENT PERSONNEL; (3) ALTHOUGH NOT ALLEGED IN THE
SPECIFICATION, APPELLANT ALSO ADVISED THE JUNIOR ENLISTED MEMBER TO CONSULT
WITH MILITARY DEFENSE COUNSEL; AND (4) ALTHOUGH NOT ALLEGED IN THE
SPECIFICATION, APPELLANT SENT THE JUNIOR ENLISTED MEMBER $200 TO ASSIST HER
WITH FINANCIAL DIFFICULTIES.
And
the following issue specified by the Court:
II. WHETHER, AS A MATTER OF LAW, APPELLANT MAY BE FOUND GUILTY OF
OBSTRUCTION OF JUSTICE WHERE: (1) APPELLANT HAD BEEN ENGAGED IN AN
IMPROPER RELATIONSHIP WITH A JUNIOR ENLISTED MEMBER; (2) APPELLANT ADVISED THE
JUNIOR ENLISTED MEMBER NOT TO SPEAK WITH LAW ENFORCEMENT PERSONNEL; (3)
ALTHOUGH NOT ALLEGED IN THE SPECIFICATION, APPELLANT ALSO ADVISED THE JUNIOR
ENLISTED MEMBER TO CONSULT WITH MILITARY DEFENSE COUNSEL; AND (4) ALTHOUGH NOT
ALLEGED IN THE SPECIFICATION, APPELLANT SENT THE JUNIOR ENLISTED MEMBER $200 TO
ASSIST HER WITH FINANCIAL DIFFICULTIES.
No. 04-0191/AR.
WHETHER APPELLANT IS ENTITLED TO TWENTY-EIGHT DAYS
CREDIT AGAINST HIS TWELVE-YEAR SENTENCE FOR THE PERIOD OF PRETRIAL CONFINEMENT
HE SERVED AT THE JEFFERSON COUNTY JAIL FOR THE SAME CHARGES FOR WHICH HE WAS
ULTIMATELY CONVICTED AND SENTENCED. UNITED STATES V.
ALLEN, 17 M.J. 126 (C.M.A. 1984); 18 U.S.C. § 3585.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 03-0626/AF.
No. 04-0010/NA.
No. 04-0144/AF.
No. 04-0227/AF.
No. 04-0237/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0472/AR.
No. 04-0473/AR.
No. 04-0474/NA.
No. 04-0475/NA.
No. 04-0476/NA.
No. 04-0477/NA.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-139
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0255/NA.
No. 04-0328/AF.
No. 04-0344/AF.
No. 04-0352/AR.
No. 04-0356/AF.
No. 04-0378/AR.
No. 04-0384/AR.
No. 04-0405/MC.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No. 04-8015/NA.
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 04-8018/AR.
Misc. No. 04-8019/NA. Jeffrey G. TOOHEY, Petitioner, v.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-138
HEARINGS
No. 03-0433/CG.
No. 04-5003/MC.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0304/AR.
No. 04-0315/AF.
No. 04-0324/MC.
No. 04-0332/NA.
No. 04-0333/MC.
No. 04-0343/AF.
No. 04-0353/AR.
No. 04-0361/AF.
No. 04-0366/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0470/AR.
No. 04-0471/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-137
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0294/AR.
No. 04-0322/AR.
No. 04-0326/MC.
No. 04-0342/AF.
No. 04-0354/AF.
No. 04-0393/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0460/AR.
No. 04-0461/AR.
No. 04-0462/AF.
No. 04-0463/AF.
No. 04-0464/AF.
No. 04-0465/AF.
No. 04-0466/AF.
No. 04-0467/AF.
No. 04-0468/AF.
No. 04-0469/AF.
PETITIONS FOR RECONSIDERATION DENIED
No. 03-0212/AR.
CRAWFORD,
Chief Judge (dissenting): I dissent from the denial of reconsideration.
The facts in this case are unique, but not for the reasons set forth by the
majority. Rather, they are unique because Appellant was given separate
counsel, Captain L, who rendered independent advice and negotiated a pretrial
agreement which resulted in a guilty plea and detailed plea inquiry.
Captain L's representation therefore severed any potential conflict of
interest. Additionally, Appellant waived the conflict with Major S.
Finally, the majority adopts a per se rule which, given the lack of prejudice
to Appellant, is contrary to Supreme Court practice. See,
e.g., United States v. Cronic, 466 U.S. 648
(1984).
INTERLOCUTORY ORDERS
No. 04-0387/AR.
DAILY JOURNAL
No. 04-136
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0453/AR.
No. 04-0454/AR.
No. 04-0455/AF.
No. 04-0456/AF.
No. 04-0457/AF.
No. 04-0458/AF.
No. 04-0459/AF.
INTERLOCUTORY ORDERS
No. 04-0238/AF.
MANDATES ISSUED
No. 98-0721/NA.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-135
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0451/AR.
No. 04-0452/NA.
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 04-8017/NA. United .States, Appellee, v. William C. BRAGG, Appellant. CCA 200400096. Writ-appeal petition for review of the
United States Navy-Marine Corps Court of Criminal Appeals decision on
application for extraordinary relief was filed under Rule 27(b).
PETITIONS FOR RECONSIDERATION DENIED
No. 98-0721/NA.
INTERLOCUTORY ORDERS
No. 04-0318/AR.
No. 04-0381/AR.
No. 04-0385/AR.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-134
HEARINGS
No. 03-0389/NA.
No. 03-0620/AR.
No. 03-0651/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0449/AR.
No. 04-0450/AR.
INTERLOCUTORY ORDERS
No. 04-0369/NA.
MANDATES ISSUED
No. 03-0470/NA.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-133
HEARINGS
No. 01-0664/AR.
No. 03-0246/AR.
No. 03-0692/AF.
No. 04-0082/AF.
APPEALS - SUMMARY DISPOSITIONS
No. 03-0582/NA.
No. 04-0066/MC.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 03-0659/NA.
No. 04-0289/AR.
No. 04-0299/AF.
No. 04-0314/AF.
MANDATES ISSUED
No. 03-5005/CG.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-132
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0444/AR.
No. 04-0445/AR.
No. 04-0446/AR.
No. 04-0447/AR.
No. 04-0448/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 04-8016/AF.
INTERLOCUTORY ORDERS
No. 03-0620/AR.
No. 04-8014/AF. Harry M. SCHMIDT, Appellant, v.
MANDATES ISSUED
No. 03-0093/AR.
No. 03-0109/AF.
No. 03-0336/AF.
No. 03-0522/MC.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-131
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0440/AR.
No. 04-0441/AF.
No. 04-0442/AF.
No. 04-0443/AF.
INTERLOCUTORY ORDERS
No. 04-0295/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-130
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0439/MC.
INTERLOCUTORY ORDERS
No. 04-0359/AR.
No. 04-0360/AR.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-129
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0438/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-128
HEARINGS
No. 02-0623/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0435/NA.
No. 04-0436/AR.
No. 04-0437/AR.
INTERLOCUTORY ORDERS
No. 02-0801/AR.
No. 04-0389/MC.
__________
*/ Hearing held at the United States
Coast Guard Academy, New London, Connecticut, as part of the Court's “Project
Outreach” Program.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-127
PETITIONS FOR GRANT OF
REVIEW FILED
No. 04-0432/AR.
No. 04-0433/AF.
No. 04-0434/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-126
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0424/AF.
No. 04-0425/AF.
No. 04-0426/AF.
No. 04-0427/AF.
No. 04-0428/AF.
No. 04-0429/AF.
No. 04-0430/AF.
No. 04-0431/AF.
INTERLOCUTORY ORDERS
No. 04-0069/MC.
No. 04-0308/NA.
No. 04-0348/AR.
MANDATES ISSUED
No. 03-0106/AF.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-125
APPEALS - SUMMARY DISPOSITIONS
No. 03-0207/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0207/AF.
No. 03-0678/AR.
I. BECAUSE LIFE
WITHOUT PAROLE WAS NOT AN AUTHORIZED PUNISHMENT UNDER THE CODE FOR THE CHARGED
OFFENSES, THE PRETRIAL AGREEMENT IS A NULLITY AND IT, AND THE FINDINGS AND
SENTENCE ON WHICH IT WAS BASED, SHOULD BE SET ASIDE BECAUSE APPELLANT ENTERED
INTO THE AGREEMENT BASED ON A MATERIAL MISUNDERSTANDING OF THIS ISSUE.
II. WHETHER THE MILITARY
JUDGE IMPROPERLY IMPOSED A SENTENCE THAT INCLUDED A $75,000 FINE WHERE
APPELLANT WAS NOT UNJUSTLY ENRICHED BY HIS CRIMES.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0078/AF.
No. 04-0176/AR.
No. 04-0232/MC.
No. 04-0234/AR.
No. 04-0305/AR.
No. 04-0309/AF.
No. 04-0316/AF.
No. 04-0335/NA.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-124
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0418/AR.
No. 04-0419/AR.
No. 04-0420/AR.
No. 04-0421/AR.
No. 04-0422/AR.
No. 04-0423/AF.
INTERLOCUTORY ORDERS
No. 03-0141/AF.
No. 03-0620/AR.
No. 04-0327/AR.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-124
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0418/AR.
No.
04-0419/AR.
No.
04-0420/AR.
No.
04-0421/AR.
No.
04-0422/AR.
No.
04-0423/AF.
INTERLOCUTORY ORDERS
No.
03-0141/AF.
No.
03-0620/AR.
No.
04-0327/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-123
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0416/AR.
No. 04-0417/AR.
INTERLOCUTORY ORDERS
No. 03-5003/MC.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-122
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0271/AR.
No. 04-0325/MC.
No. 04-0349/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0409/AF.
No. 04-0410/AF.
No. 04-0411/AF.
No. 04-0412/AF.
No. 04-0413/AF.
No. 04-0414/AF.
No. 04-0415/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-121
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0407/AF.
No. 04-0408/AF.
INTERLOCUTORY ORDERS
No. 03-0212/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-120
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0403/AR.
No. 04-0404/AR.
No. 04-0405/MC.
No. 04-0406/MC.
MANDATES ISSUED
No. 03-0271/AF.
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