UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-060
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0205/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 05-8019/AF.
INTERLOCUTORY ORDERS
No.
04-0724/NA.
No.
04-0734/NA.
No.
05-0152/AR.
v. Corey B. WOODS. CCA 20021016.
Appellant's motion to extend time to file supplement to petition
for
grant of review granted to
MANDATES ISSUED
No.
04-8025/MC.
Wade L. WALKER v.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-059
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0197/AR.
No.
05-0198/AR.
No.
05-0199/AR.
No.
05-0200/NA.
No.
05-0201/AF.
No.
05-0202/AF.
No.
05-0203/AF.
No.
05-0204/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-058
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0196/AR.
INTERLOCUTORY ORDERS
No.
99-0911/MC.
No.
04-0612/CG.
No.
05-0127/MC.
No.
05-0136/AF.
No.
05-0140/NA.
No.
05-0151/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-057
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0192/NA.
No.
05-0193/MC.
No.
05-0194/NA.
No.
05-0195/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-056
PETITIONS FOR GRANT OF REVIEW FILED
No.
01-0295/AR.
No.
05-0190/AR.
No.
05-0191/MC.
___________
*/
Second
petition filed in this case.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-055
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0625/AF.
No. 04-0768/AF.
No. 04-0785/AF.
No. 04-0788/AF.
No. 05-0003/AF.
No. 05-0019/AF.
No. 05-0036/AF.
No. 05-0045/AF.
No. 05-0055/AF.
No. 05-0075/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 02-0561/AF.
No. 05-0187/AR.
No. 05-0188/AR.
No. 05-0189/AF.
INTERLOCUTORY ORDERS
No. 04-0524/AR.
No. 05-0156/NA.
No. 05-8007/NA.
Roberto
RODRIGUEZ-RIVERA, Petitioner, v.
That Respondent Judge Advocate General of
the Navy shall file an additional Response not later than 30 days after
the
date of this order addressing the following issue specified by the
Court:
IN LIGHT OF THE
JUDGE ADVOCATE GENERAL’S STATUTORY
RESPONSIBILITIES TO ESTABLISH THE SERVICE COURT OF CRIMINAL APPEALS
PURSUANT TO
ARTICLE 66(a), UNIFORM CODE OF MILITARY JUSTICE (UCMJ), 10 U.S.C. §
866(a)
(2000), AND TO DETAIL GOVERNMENT AND DEFENSE APPELLATE COUNSEL PURSUANT
TO
ARTICLE 70(a), UCMJ, 10 U.S.C. § 870(a) (2000), AND IN LIGHT OF THE
JUDGE
ADVOCATE GENERAL’S STATUTORY AUTHORITY WITH RESPECT TO THE ASSIGNMENT
OF JUDGE
ADVOCATE OFFICERS OF THE NAVY UNDER ARTICLE 6(a), UCMJ, 10 U.S.C. §
806(a)
(2000), WHAT RESPONSIBILITY DOES RESPONDENT JUDGE ADVOCATE GENERAL OF
THE NAVY
HAVE TO ASSIGN SUFFICIENT APPELLATE COUNSEL AND APPELLATE MILITARY
JUDGES TO THE
APPELLATE DIVISIONS AND THE COURT OF CRIMINAL APPEALS, RESPECTIVELY, TO
ASSURE
PETITIONER’S CASE IS BRIEFED, REVIEWED AND ADJUDICATED IN A TIMELY
MANNER?
Petitioner
may file an additional Answer to the aforementioned Response not later
than 10
days after that Response is filed with this Court; and,
That upon receipt of Respondent Judge
Advocate General of the Navy’s Response to the Specified Issue and
Petitioner’s
Answer, if any, this matter will be set for oral argument.
____________
*/
Second petition filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-054
APPEALS - SUMMARY DISPOSITIONS
No.
03-0454/AF.
No.
03-0589/AR.
No.
03-0635/MC.
No.
04-0140/AR.
No.
04-0241/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0677/AR.
WHETHER
THE RECORD OF TRIAL FAILS TO SHOW THAT
APPELLANT
MADE A PERSONAL ELECTION OF FORUM, THUS CREATING A JURISDICTIONAL ERROR
REQUIRING REVERSAL.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0591/NA.
No.
04-0615/MC.
No.
04-0647/AR.
No.
04-0715/AR.
No.
04-0728/AR.
No.
04-0791/AR.
No.
04-0802/MC.
No.
05-0043/MC.
No.
05-0054/MC.
No.
05-0061/AR.
No.
05-0082/AR.
No.
05-0084/NA.
No.
05-0089/NA.
No.
05-0095/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0186/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-053
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0183/AR.
No.
05-0184/AR.
No.
05-0185/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 05-8004/AR.
Edward GOODWIN, Appellant, v. The Judge Advocate General of the Army and
Misc.
No. 05-8006/AR.
Cyrus YOUNG, Appellant, v.
Misc.
No. 05-8016/AR.
Daniel I. TAYLOR, Appellant, v.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 05-8006/AR.
Cyrus YOUNG, Appellant, v.
Misc.
No. 05-8016/NA.
Daniel I. TAYLOR, Appellant, v.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-052
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0175/AR.
No.
05-0176/MC.
No.
05-0177/AR.
No.
05-0178/AF.
No.
05-0179/AF.
No.
05-0180/AF.
No.
05-0181/AF.
No.
05-0182/AF.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 05-8010/AR.
Misc.
No. 05-8017/NA.
Todd R. FORBES, Petitioner, v.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 05-8017/NA.
Todd R. FORBES, Petitioner, v.
Misc.
No. 05-8018/AF.
Henry L. MCMASTER, Petitioner, v.
Misc.
No. 05-8019/AF.
United States, v. Dustin M. HART, Appellant. CCA 2004-03. Notice is hereby given that a writ-appeal
petition for review of the United States Air Force Court of Criminal
Appeals
decision on application for extraordinary relief was filed under Rule
27(b) on
December 15, 2004, and placed on the docket this date.
INTERLOCUTORY ORDERS
No.
03-0595/AR.
No.
04-0721/AF.
No.
05-0032/NA.
No.
05-0052/NA.
No.
05-0105/AR.
No.
05-0106/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-051
APPEALS - SUMMARY DISPOSITIONS
No. 04-0544/AF.
WHETHER
IT IS PLAIN ERROR FOR APPELLANT TO STAND CONVICTED OF TWO SEPARATE
SPECIFICATIONS OF CONSPIRACY FOR WHAT IS SUBSTANTIALLY A SINGLE
CRIMINAL
AGREEMENT ENCOMPASSING MORE THAN ONE OFFENSE.
ORDERS GRANTING PETITION FOR REVIEW
No.
04-0544/AF.
No. 04-0699/AF.
I.
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF
APPELLANT WHEN
HE PROHIBITED THE DEFENSE WITNESSES FROM TESTIFYING THAT THEY HAD DAILY
CONTACT
WITH APPELLANT DURING THE CHARGED TIME FRAME AND HAD NEVER SEEN OR
KNOWN HER TO
USE DRUGS.
II.
WHETHER THE
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0427/AF.
No.
04-0741/MC.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
05-0031/MC.
No.
05-0038/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0173/AR.
No.
05-0174/MC.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 05-8011/NA.
Herman BROWN, Petitioner, v.
Misc.
No. 05-8012/NA.
Sherwood V. ERVIN, Petitioner, v.
Misc.
No. 05-8013/NA.
Brendan C. FORNEY, Petitioner, v.
Misc.
No. 05-8014/NA.
Misc.
No. 05-8015/NA.
Bryant WASHINGTON, Petitioner, v.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 05-8011/NA.
Herman BROWN, Petitioner, v.
Misc.
No. 05-8012/NA.
Sherwood V. ERVIN, Petitioner, v.
Misc.
No. 05-8013/NA.
Brendan C. FORNEY, Petitioner, v.
Misc.
No. 05-8014/NA.
Misc.
No. 05-8015/NA.
Bryant WASHINGTON, Petitioner, v.
INTERLOCUTORY ORDERS
No.
04-0765/AR.
INTERLOCUTORY ORDERS
Misc.
No. 05-8013/NA.
Brendan C. FORNEY, Petitioner, v.
Misc.
No. 05-8015/NA.
Bryant WASHINGTON, Petitioner, v.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-050
APPEALS - SUMMARY DISPOSITIONS
No. 04-0445/AR.
Under the circumstances of this case, we conclude that the
offense of willfully disobeying an order directing Appellant to remain
in a
given place (specification 2 of Charge II) and the offense of leaving
that same
place of duty without authority (specification 1 of Charge I) are
factually the
same and multiplicious for findings.
See
Accordingly, the decision of the United States Army Court of
Criminal Appeals is reversed as to specification 1 of Charge I, but is
affirmed
in all other respects. The finding of
guilty as to specification 1 of Charge I is
set aside
and that specification is dismissed.
[See also ORDERS GRANTING PETITION FOR REVIEW this date.]
Pursuant to his pleas, Appellant was
convicted at a special court-martial of leaving his place of duty, a
100% unit
urinalysis test at Building 87021 on June 11, 2002, absenting himself
on June
11, 2002, from his appointed place of duty, Building 7021, disobeying
his
superior commissioned officer on June 11, 2002, by failing to stay in
Building
7021, disobeying another superior commissioned officer by leaving the
holding
area until his urinalysis had been completed, disobeying a staff
sergeant by
failing to clean the gutter system on the roof of Building 7021 on June
11,
2002, disobeying a sergeant by not firing his M16A2 rifle at silhouette
targets
on April 2, 2002, violating a lawful general regulation by possessing a
prohibited knife on his person, violating the same lawful general
regulation by
having a prohibited knife in his barracks room, and stealing government
property.
The defense did not make a motion before
pleas or before sentencing to combine or dismiss any of the
specifications or
charges. However, during the providence
inquiry, both sides agreed that the military judge could consider
specification
1 of Charge I, and specification 2 of Charge II, multiplicious
for sentencing. Additionally, the
military judge on her own decided to consider specification 1 of Charge
III,
and specification 2 of Charge I as multiplicious
for
sentencing. There were no objections by
either side.
The elements of specification 1 of Charge I
were described by the military judge as follows:
One, that
a certain authority appointed a certain time and place of duty for you
and that
is a 100 percent urinalysis at building 87021 on 11 June 2002 at Fort
Hood;
Two, that
you knew that you were required to be present at this appointed time
and place
of duty; and
Three,
that on or about 11 June 2002 at
As
to specification 2 of Charge II, she advised Appellant of the following
elements:
One, that you received a certain lawful command to not
leave the holding area until the urinalysis has been completed, or
words to
that effect, from Captain Eric S. Puls;
Two, that at the time Captain Puls
was your superior commissioned officer;
Three[,] that you knew that
Captain Puls was your superior
commissioned officer;
and
Four, that on
As
to the order to clean gutters, specification 1 of Charge III, he was
advised
the elements are as follows:
One, that on
Two, that you received a certain lawful order to clean the
gutter system for building 87021 [sic] on Fort Hood from Staff
Sergeant, either
Xavier or Javier Noronha;
Three, that at the time you knew that Staff Sergeant Noronha was a non-commissioned officer;
Four, that you had a duty to obey the order; and
Five, that on or about 11 June 2002, at
The evidence during sentencing established
that Appellant was punished pursuant to Article 15, Uniform Code of
Military
Justice, 10 U.S.C. § 815 (2000), for nine offenses including absence
without
leave, disrespect to a noncommissioned officer, and numerous offenses
of
disobeying a noncommissioned officer. He
received another Article 15 punishment for five offenses.
Appellant was sentenced to a bad-conduct
discharge, eight months’ confinement, and partial forfeitures. The convening authority, pursuant to a
pretrial agreement, approved the sentence but reduced the confinement
to four
months.
Based on the military judge’s initiative to
consider the offenses multiplicious, the
sentence
given, and the sentence eventually approved pursuant to the pretrial
agreement,
waiver should apply because the offenses are not facially duplicative,
and there
was no error that affected the substantial rights of the accused.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0445/AR.
No. 04-0722/AF.
WHETHER IT
WAS ERROR FOR THE MILITARY JUDGE TO ORDER THE RELEASE OF PRIVILEGED
STATEMENTS
MADE BY APPELLANT DURING HIS SANITY BOARD TO THE PROSECUTION AND TO
ADMIT THOSE
STATEMENTS AS EVIDENCE AT TRIAL.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0172/MC.
DAILY
JOURNAL
No.
05-049
INTERLOCUTORY ORDERS
No.
04-0216/AF.
No.
05-0098/AR.
No.
05-0103/MC.
No.
05-0117/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-048
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0171/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-047
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0669/AF.
WHETHER
APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED BY THE
PROSECUTION'S FAILURE TO DISCLOSE DISCOVERABLE INFORMATION PRIOR TO
TRIAL.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0668/AF.
No.
04-0796/NA.
No.
05-0060/AR.
No.
05-0081/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0188/AF.
No.
05-0167/AF.
No.
05-0168/AF.
No.
05-0169/AF.
No.
05-0170/AF.
INTERLOCUTORY ORDERS
No.
04-0720/AF.
No.
05-0004/AR.
No.
05-0030/AR.
____________
*/
Second
petition filed in this case.
DAILY
JOURNAL
No.
05-046
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0164/MC.
No.
05-0165/NA.
No.
05-0166/NA.
INTERLOCUTORY ORDERS
No.
03-0072/AF.
No.
04-0711/MC.
No.
04-0799/NA.
No.
05-0094/AR.
No.
05-0125/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-045
HEARINGS
No.
04-0433/AF.
No.
04-0480/AF.
No.
04-5006/AR.
No.
04-8013/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0662/MC.
No.
04-0771/AF.
No.
04-0783/AR.
No.
04-0792/AR.
No.
05-0017/AF.
No.
05-0020/AF.
No.
05-0021/AF.
No.
05-0025/AR.
No.
05-0049/AR.
No.
05-0114/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0163/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 05-044
HEARINGS
No.
02-0060/MC.
No.
04-0238/AF.
No.
04-0291/AR.
No.
04-5002/AF.
PETITIONS FOR GRANT OF REVIEW
DENIED
No.
05-0028/AR.
No.
05-0042/MC.
No.
05-0050/AF.
No.
05-0053/MC.
No.
05-0062/AR.
No.
05-0066/NA.
PETITIONS FOR GRANT OF REVIEW
FILED
No.
05-0162/NA.
INTERLOCUTORY ORDERS
No.
05-0013/AR.
No.
05-0052/NA.
No.
05-0102/AR.
No.
05-0140/NA.
No.
99-0911/MC.
MANDATES ISSUED
No.
04-0252/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-043
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0777/AR.
No.
05-0040/AR.
No.
05-0069/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0158/AR.
No.
05-0159/AR.
No.
05-0160/AR.
No.
05-0161/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-042
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0723/NA.
WHETHER
THE LOWER COURT ERRED IN CONCLUDING THAT THE APPELLANT WAS NOT
PREJUDICED BY
THE 512 DAYS OF UNREASONABLE AND UNEXPLAINED POST-TRIAL DELAY IN
FORWARDING THE
RECORD OF TRIAL FOR APPELLATE REVIEW AFTER THE CONVENING AUTHORITY'S
ACTION.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0007/AR.
No.
05-0009/NA.
No.
05-0057/AF.
PETITIONS FOR
GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS
No.
04-0754/MC.
INTERLOCUTORY ORDERS
No.
05-0153/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
05-041
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0533/AF.
No.
04-0749/MC.
No.
04-0750/NA.
No.
04-0798/MC.
No.
05-0002/MC.
No.
05-0023/AF.
PETITIONS FOR
GRANT OF REVIEW FILED
No.
05-0157/NA.
____________
*/
It is
directed that the promulgating order be amended