UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-200
PETITIONS FOR GRANT OF REVIEW
FILED
No.
04-0648/AR.
No.
04-0649/NA.
No.
04-0650/MC.
No. 04-0651/NA.
No. 04-0652/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-199
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0647/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 04-8026/AF.
Marcus WILLIAMS, Petitioner, v.
INTERLOCUTORY ORDERS
No.
04-0246/AR.
MANDATES ISSUED
No.
03-0369/AR.
No.
04-0082/AF.
No.
04-5003/MC.
No.
04-8019/NA.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-198
RULES CHANGES
Upon careful consideration of certain
proposed changes to the Rules of Practice and Procedure, United States
Court of
Appeals for the Armed Forces, which were presented to and reviewed by
the Rules
Advisory Committee of the United States Court of Appeals for the Armed
Forces,
and thereafter published in the Federal Register for comment, it is
ordered
that effective October 1, 2004, Rules 15, 21(b)(1),
24, 26, 37, and 38 are amended as provided in the attachment to this
order.
ATTORNEYS
RULE 15.
DISCIPLINARY ACTIONS
(a)
The Model Rules of Professional Conduct of the American Bar Association
are
hereby adopted as the rules of conduct for members of the Bar of this
Court. After notice, investigation, and
hearing as provided in this rule, the Court may take any disciplinary
action it
deems appropriate for failure to comply with the Model Rules of
Professional
Conduct.
(b)
For purposes of this rule, the Court shall appoint an Investigations
Committee
consisting of 5 members of the Bar of this Court who shall be appointed
for a
period of 3 years. The Investigations
Committee shall consider such complaints as may be referred to it for
investigation, including the taking of evidence, and shall submit a
report of
such investigation to the Court.
(c)
Upon receipt and docketing of a written complaint under oath of
unprofessional
conduct against a member of its Bar, the Court will cause a copy
thereof to be
served by certified mail, return receipt requested, on the attorney
thus
accused. The Clerk will, in addition,
acknowledge by letter, to the person filing such complaint, the receipt
thereof. The accused attorney will
answer the complaint by filing a formal
pleading responsive to
each allegation of misconduct
within 30 days of receipt of the complaint, but extensions of time may
be
granted by order of the Court on the accused attorney’s application. A complaint will be docketed only if the
Court makes a preliminary determination that it is not frivolous.
(d)
On consideration of the complaint and answer, and if it believes a
substantial
basis exists for the complaint, the Court will refer the matter to its
Investigations Committee for consideration under subsection (b). Otherwise, the Court will dismiss the
complaint. Any such investigation will
be held privately, unless the accused attorney requests that it be
opened to
the public.
(e)
On receiving the report of the Investigations Committee, the Court may
dismiss
the complaint or order the matter set down for hearing, giving due
notice to
the accused attorney. At the hearing,
the accused attorney will be given opportunity to present such matters
relevant
to the complaint as he or she deems appropriate and to examine any
witnesses
against such attorney. All documents
received in connection with a complaint under this rule shall be
furnished to
the accused attorney. A majority vote of
the Court is necessary to find an attorney guilty of unprofessional
conduct and
to fix any penalty.
(f)
(1) When it is shown to the Court that any member of its Bar has been
disbarred
or suspended from practice by any court, such member will be forthwith
called upon
to show cause within 30 days why similar action should not be taken by
this
Court. Upon the filing of the member’s
answer to an order to show cause, or upon expiration of 30 days if no
answer is
filed, the Court will enter an appropriate order; but no order of
disbarment or
suspension will be entered except with the concurrence of a majority of
the
judges participating.
(2) When it has been shown to the Court
that a member of the Bar of the Court has been convicted by
court-martial or by
other court of competent jurisdiction of conduct which evidences a
failure to
comply with the Model Rules of Professional Conduct and such conviction
has
become final, the Court may, in lieu of the complaint and investigative
procedures set forth in subsections (b) through (e), initiate a
disciplinary
action under this rule by issuance of an order to such person to show
cause why
the person should not be disbarred. Upon
the filing of the member’s answer to an order
to
show cause, or upon expiration of 30 days if no answer is filed, the
Court will
set the matter for hearing, giving the member due notice thereof, or
enter such
other order as may be deemed appropriate; but no order of disbarment or
suspension will be entered except with the concurrence of a majority of
the
judges participating.
(g)
Penalties for unprofessional conduct may extend to reprimand,
suspension, or
disbarment.
(h)
Except for an order of reprimand, suspension, or disbarment, no papers,
pleadings, or other information relative to a complaint in a
disciplinary
proceeding will be published or released to the public without prior
approval
of the Court. The docket of matters
arising under this rule shall not be available to the public.
[Amended
(a) The Model Rules of
Professional Conduct of the American Bar Association are hereby adopted
as the
rules of conduct for members of the Bar of this Court.
To the extent that these rules are
inconsistent with applicable service rules of professional conduct, the
conduct
of judge advocates will be reviewed under the rules of their service. To the extent that these rules are
inconsistent with the rules of professional conduct which apply in the
location
where a civilian member of the bar maintains a principal office, the
conduct of
civilian counsel will be reviewed under the rules of their licensing
jurisdiction.
(b) Whenever a member of
the Bar of this Court has been disbarred or suspended from practice in
any court
of record, the Court will enter an order suspending that member from
practice
before this Court and affording the member an opportunity to show
cause, within
30 days, why a disbarment order should not be entered.
Upon response, or if no response is timely
filed, the Court will enter an appropriate order.
(c) If it
appears that a member of the Bar of
this Court has engaged in conduct unbecoming a member of the Bar, or
failed to
comply with this Rule or any other Rule or order of the Court, the
Court may
enter an order affording the member an opportunity to show cause,
within 30
days, why disciplinary action should not be taken. If the member,
in responding to the show
cause order, raises material questions of fact, the Court may appoint a
special
master who shall hold a hearing and prepare proposed findings of fact
and
recommendations.
After affording
the member of the bar a reasonable opportunity
to prepare written objections to the proposed findings of fact and
recommendations, the proposed findings and recommendations, together
with any
written objections thereto, shall be submitted to the Court. Upon
due consideration thereof, the Court may
take such disciplinary action as it deems appropriate against the
member of the
Bar.
RULE 21. SUPPLEMENT TO PETITION FOR GRANT OF REVIEW
(b)
The supplement to the petition shall be filed in accordance with
the
applicable time limit set forth in Rule 19(a)(5)(A) or (B), shall
include an
Appendix required by Rule 24(a), shall conform to the provisions of
Rules
24(b), 35A, and 37, and shall contain:
(1)
A statement of the errors assigned for review
by the Court, expressed concisely in
relation to the circumstances of the case, without unnecessary detail. The assigned errors should be short and
should not be argumentative or repetitive.
RULE 24. FORM, CONTENT, AND PAGE LIMITATIONS
(a)
Form and content. All
briefs shall conform to the printing,
copying, and style requirements of Rule 37, shall be legible, and shall
be
substantially as follows:
IN THE UNITED
STATES COURT
OF APPEALS
FOR THE ARMED
FORCES
UNITED
STATES,
)
(Appellee) )
(Appellant) )
BRIEF ON BEHALF
(Respondent)) OF
(APPELLANT,
v.
) APPELLEE,
ETC.)
______________________ )
(Full
typed name, rank, )
Crim.App. Dkt. No. ______
&
service of accused) )
(Service
no. ___),
)
USCA Dkt.
No. ________
(Appellant) )
(Appellee)
)
(Petitioner) )
[Same.]
[Same.]
[Same.]
[Same.]
[Same.]
[Same.]
[Same.]
[Same.]
[Same.]
(b) Page
limitations. Unless
otherwise authorized by order of the Court, by motion of a party
granted by the
Court (see Rule 30), or by Rule
24(c), the page limitations for briefs filed with the Court, not
including
appendices, shall be as follows:
(1) Briefs of the
appellants/petitioners shall not exceed
30 pages;
(2) Answers of the appellees/petitioners shall
not exceed 30 pages;
(3) Replies of the
appellants/petitioners shall not exceed
15 pages.
(c)
Type-volume limitations.
(1) A brief of
the appellants/petitioners and an answer of the appellees/respondents
is acceptable if:
·
it contains no
more than
14,000 words; or
·
contains
no more than 1,300 lines of text.
(2) A reply is
acceptable if it contains no more than half of the type-volume
specified in
Rule 24(c)(1).
(3) Headings,
footnotes, and quotations count toward the word and line limitations. The index, table of cases, statutes, and
other authorities, the appendix and any certificates of counsel do not
count
toward the limitation.
(d)
Certificate of Compliance. A brief
submitted under Rule 24(c) must
include a certificate stating that the brief complies with the
type-volume
limitation and Rule 37. The person
preparing the certificate may rely on the word or line count of the
word-processing system used to prepare the brief. The
certificate must state either:
(i) the number of
words in the
brief; or
(ii) the number of lines of monospaced
type in the brief.
(e) Form
of Certificate of Compliance.
CERTIFICATE
OF
COMPLIANCE WITH RULE 24(d)
1.
This brief complies with the type-volume
limitation of Rule 24(d) because:
[principal brief may not exceed 14,000 words or
1,300 lines;
reply or amicus brief may not exceed 7,000 words or 650 lines; line
count can
be used only with monospaced type]
|
This brief contains ____________ [state the
number of]
words,
or
|
This brief contains ____________ [state the
number of]
lines of text.
2.
This brief complies with the typeface and
type style requirements of Rule 37 because:
[12-point font
must be used with monospaced typeface,
such as
Courier or Courier New]
|
This brief has been prepared in a monospaced
typeface
using
________________________________
[state name and
version of word processing
program, e.g., Microsoft
Word
Version 2000 with
__________________________
[state
number of characters per inch and name
of type style].
/s/
______________________________________________________
Attorney for
_____________________________________________
Dated:
__________________
(d) A brief of an amicus curiae shall
not exceed 30 pages, excluding
appendices. Except
by the Court’s permission, a brief of an amicus
curiae may be no more than
one-half the maximum length authorized by Rule 24 for a brief for an
appellant/petitioner. If the Court
grants a party permission to file a longer brief, that extension does
not
affect the length of an amicus brief.
(a) Printing. Except for records
of trial and as otherwise
provided by Rule 27(a)(4), all pleadings or other papers relative to a
case
shall be typewritten and double-spaced, printed on one side only on
white
unglazed paper, 8.5 by 11 inches in size, securely fastened in the top
left
corner. “With the exception of
footnotes, which may be 11 point proportionally spaced typeface, aAll
printed matter must appear in non-proportional monospaced
typeface, e.g., Courier or Courier New,
using 12-point type with no more than ten and
½ characters per inch. Margins
must be at least 1 inch on all four
sides. Page numbers may be placed in the
margin but no text may appear in the margin. Headings,
footnotes, and block quotations
may be single-spaced, but should not be used excessively to avoid page
limit
requirements.”
(a) General. Except for
documents filed in propria persona
and those provided for in subsection (b), all original pleadings or
other
papers filed in a case will bear the signature of at least one counsel
who is a
member of this Court’s Bar and who is participating in the case. The name, address, telephone number, Court Bar number, and rank, if any, of
the person signing, together with the capacity in which such counsel
signs the
paper, will be included. This signature
will constitute a certificate that the statements made in the pleading
or paper
are true and correct to the best of the counsel’s knowledge,
information, or
belief, and that the pleading or paper is filed in good faith and not
for the
purpose of unnecessary delay. A counsel
who signs a pleading “for” some other counsel whose name is typed under
such
signature must, in addition, affix their own signature in a separate
signature
block with their own name, address, telephone number, Court
Bar number, and rank, if any, typed thereunder.
(b)
[Same.]
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0646/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-197
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0637/AR.
No.
04-0638/AR.
No.
04-0639/AF.
No.
04-0640/AF.
No.
04-0641/AF.
No.
04-0642/NA.
No.
04-0643/NA.
No.
04-0644/NA.
No.
04-0645/MC.
INTERLOCUTORY ORDERS
No.
98-0497/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-196
ORDERS GRANTING PETITION FOR REVIEW
No.
04-0291/AR.
WHETHER
THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DETERMINED THAT THE
MILITARY
JUDGE'S ERROR IN NOT DISCLOSING MENTAL HEALTH RECORDS OF A VICTIM DID
NOT
MATERIALLY PREJUDICE APPELLANT. SEE
UNITED STATES V. ROBERTS, 59 M.J. 323,
327
(C.A.A.F. 2004).
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0381/AR.
No.
04-0432/AR.
No.
04-0531/AR.
No.
04-0541/AR.
No.
04-0564/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0630/AR.
No.
04-0631/MC.
No.
04-0632/MC.
No.
04-0633/NA.
No.
04-0634/NA.
No.
04-0635/MC.
No.
04-0636/NA.
PETITIONS FOR RECONSIDERATION DENIED
No.
03-0369/AR.
No.
04-0082/AF.
INTERLOCUTORY ORDERS
No.
04-0489/AR.
No.
04-0524/AR.
No.
04-0561/AR.
No.
04-8015/NA.
No.
04-8025/NA.
MANDATES ISSUED
No.
02-0603/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-195
ORDERS GRANTING PETITION FOR
REVIEW
No. 02-0060/MC.
DID
THE
PETITIONS FOR GRANT OF REVIEW
FILED
No.
04-0622/AF.
No.
04-0623/AF.
No.
04-0624/AF.
No.
04-0625/AF.
No.
04-0626/NA.
No.
04-0627/MC.
No.
04-0628/MC.
No.
04-0629/NA.
INTERLOCUTORY ORDERS
No.
03-0655/MC.
No.
03-0678/AR.
No.
04-0502/AR.
No.
04-0566/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-194
APPEALS - SUMMARY
DISPOSITIONS
No. 04-0168/AF.
Appellant asserts that he is prejudiced by
the action’s irregularity because it subjects him to possible
recoupment of the
forfeitures that were paid to his wife.
Appellant cites a Defense Department regulation concerning
collection of
forfeitures that were erroneously paid. Dep’t of Defense, Directive 7000.14-R, Department of
Defense
Financial Management Regulation, at Volume 7A, chapter 48 (February
2001). The Government argues that
such recoupment is
discretionary and the possibility of any resulting prejudice is
“speculative,”
but nevertheless acknowledges that “the government has the authority to
recoup
the funds.” The Government, however,
maintains that “Appellant’s dependents,” rather than Appellant himself,
“would
be liable for any recoupment.”
We conclude that Appellant has made a
“colorable showing of possible prejudice” arising from the action’s
irregularity. See
Accordingly,
said petition is granted on the following issues:
I.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER
ARTICLE
66(c), UCMJ, BY AFFIRMING A SENTENCE THAT IT ACKNOWLEDGED WAS NOT
“TECHNICALLY”
CORRECT IN LAW AND FACT AND WAS GREATER THAN THAT INTENDED TO BE
APPROVED BY
THE CONVENING AUTHORITY.
II. WHETHER THE AIR
FORCE COURT OF
CRIMINAL APPEALS ERRED WHEN ASSESSING PREJUDICE UNDER ARTICLE 59, UCMJ,
WHERE
IT DID NOT CONSIDER PREJUDICE THAT WILL OCCUR BY OPERATION OF
REGULATION WHEN
APPELLANT RECEIVES HIS FINAL ACCOUNTING OF PAY.
That the decision of the United States Air
Force Court of Criminal Appeals and the convening authority’s action
are set
aside; and,
That the record of trial
is returned to the Judge Advocate General of the Air Force for remand
to a
convening authority for a new action consistent with this Court’s
decision in Emminizer. [See
also ORDERS GRANTING PETITION FOR REVIEW
this date.]
For these
reasons, I respectfully dissent.
A. Theoretical Prejudice
The Court
is being overly technical when it requires the convening authority to
take
additional action on adjudged forfeitures before there may be a waiver
and the
payment of waived forfeitures to Appellant’s dependents.
There is no evidence that Appellant’s
dependents did not receive the waived forfeitures.
There is no prejudice to Appellant or his
family members based on the action taken in this case by the Court of
Criminal
Appeals. Even if, as Appellant alleges,
Department of Defense guidance permits recoupment
of
improperly waived forfeitures from his dependents, such action is
entirely
speculative, rendering the Court’s “remedy” prospective, rather than
curative. In order for the possible
prejudice alleged by Appellant to exist, some parsimonious fiscal
officer of
the government would have to (1) scrutinize United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002),
apply it to
these facts, and decide that, because the convening authority didn’t
say the
magic words, the waived forfeitures were “an erroneous payment”;1
(2) disregard both the convening authority’s plainly stated intention,
as well
as the AFCCA’s opinion that the action “clearly
reflects
the convening authority’s intention to waive the mandatory forfeiture
of pay
and allowances . . . for the benefit of appellant’s dependents”;2
and (3) initiate an involuntary collection of the “erroneous payment,”
even
though there was a perfectly lawful basis for the waived forfeitures to
have
been paid.
Emminizer is not inconsistent
with the view I
take. In Emminizer,
the Court held that the appellant was prejudiced because the convening
authority did not waive the adjudged forfeitures because of the misadvice by the staff judge advocate (SJA). Appellant was clearly prejudiced in that case
by the SJA’s action in not spelling out
the
alternatives that would have allowed a waiver of the forfeitures and
payments
to the appellant’s dependents. Here, there
was no prejudice because there was a waiver of forfeitures.
B. A Simpler Cure
Even
assuming error and prejudice, judicial economy demands that we cure the
error
in our decretal paragraph, or direct that
a service
court do so, rather than burdening SJAs
and convening
authorities with execution and review of new actions to cure trivial
errors. The convening authority plainly
intended to direct payment of the full measure of Appellant’s pay and
allowances to his dependents for six months.
To achieve that end, the convening authority could either have
disapproved or suspended adjudged forfeitures, with either action
having the
same effect today. Knowing that, and
assuming both error and prejudice, we should simply disapprove adjudged
forfeitures. We have not hesitated in
the past to cure errors arising from imposition of forfeitures pursuant
to
Article 58b, and we need not do so now.3
C. Unnecessary Legal Test
-----------------------
1
DoD Financial Management Regulation, February 2001,
at Volume
7A, Chapter 48, paragraph 480105.
2
3
4
------------------------
No. 04-0113/AF.
I.
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS
AUTHORITY UNDER ARTICLE 66(c), UCMJ, BY AFFIRMING A SENTENCE THAT IT
ACKNOWLEDGED WAS NOT "TECHNICALLY" CORRECT IN LAW AND FACT AND WAS
GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING AUTHORITY.
II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED WHEN ASSESSING
PREJUDICE UNDER ARTICLE 59, UCMJ, WHERE IT DID NOT CONSIDER PREJUDICE
THAT WILL
OCCUR BY OPERATION OF REGULATION WHEN APPELLANT RECEIVES HIS FINAL
ACCOUNTING
OF PAY.
That the decision
of the
United States Air Force Court of Criminal Appeals and the convening
authority’s
action are set aside; and
That the record
of trial is
returned to the Judge Advocate General of the Air Force for remand to a
convening authority for a new action consistent with this Court’s
decision in United
States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002).
[See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
CRAWFORD, Chief
Judge
(dissenting): I dissent for the reasons
set forth in my dissenting opinion in United States v. Lajaunie,
___
M.J. ___ (C.A.A.F. 2004)(Crawford, C.J., dissenting).
No. 04-0169/AF.
I.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER
ARTICLE
66(c), UCMJ, BY AFFIRMING A SENTENCE THAT IT ACKNOWLEDGED WAS NOT
“TECHNICALLY”
CORRECT IN LAW AND FACT AND WAS GREATER THAN THAT INTENDED TO BE
APPROVED BY
THE CONVENING AUTHORITY.
II.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN ASSESSING PREJUDICE
UNDER
ARTICLE 59, UCMJ, WHERE IT DID NOT CONSIDER PREJUDICE THAT WILL OCCUR
BY
OPERATION OF REGULATION WHEN APPELLANT RECEIVES HIS FINAL ACCOUNTING OF
PAY.
That the decision of the Air Force Court of
Criminal Appeals and the convening authority’s action are set aside; and
That the record of trial is returned to the
Judge Advocate General of the Air Force for remand to a convening
authority for
a new action in light of this Court’s decision in United States v.
Emminizer,
56 M.J. 441 (C.A.A.F. 2002). [See also
ORDERS GRANTING PETITION FOR REVIEW this date.]
CRAWFORD, Chief
Judge
(dissenting): I dissent for the reasons set forth in my dissenting
opinion in United
States v. Lajaunie, ___ M.J. ___ (C.A.A.F. 2004)(Crawford,
C. J., dissenting).
No. 04-0310/AF.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER
ARTICLE
66(c) UCMJ, BY AFFIRMING A SENTENCE THAT WAS NOT CORRECT IN LAW AND
FACT AND
WAS GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING
AUTHORITY.
That the decision of the Air Force Court of
Criminal Appeals and the convening authority’s action are set aside; and
That the record of trial is returned to the
Judge Advocate General of the Air Force for remand to a convening
authority for
a new action in light of this Court’s decision in United States v.
Emminizer,
56 M.J. 441 (C.A.A.F. 2002). [See also
ORDERS GRANTING PETITION FOR REVIEW this date.]
CRAWFORD, Chief
Judge (dissenting): I dissent for the
reasons set forth in my
dissenting opinion in United States v. Lajaunie, ___ M.J. ___
(C.A.A.F.
2004)(Crawford, C. J., dissenting).
No. 04-0311/AF.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER
ARTICLE
66(c) UCMJ, BY AFFIRMING A SENTENCE THAT WAS NOT CORRECT IN LAW AND
FACT AND
WAS GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING
AUTHORITY.
That the decision of the Air Force Court of
Criminal Appeals and the convening authority’s action are set aside; and
That the record of trial is returned to the
Judge Advocate General of the Air Force for remand to a convening
authority for
a new action in light of this Court’s decision in United States v.
Emminizer,
56 M.J. 441 (C.A.A.F. 2002). [See also
ORDERS GRANTING PETITION FOR REVIEW this date.]
CRAWFORD, Chief
Judge (dissenting): I dissent for the
reasons set forth in my
dissenting opinion in United States v. Lajaunie, ___ M.J. ___
(C.A.A.F.
2004)(Crawford, C. J., dissenting).
No. 04-0312/AF.
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER
ARTICLE
66(c) UCMJ, BY AFFIRMING A SENTENCE THAT WAS NOT CORRECT IN LAW AND
FACT AND
WAS GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING
AUTHORITY.
That the decision of the Air Force Court of
Criminal Appeals and the convening authority’s action are set aside; and
That the record of trial is returned to the
Judge Advocate General of the Air Force for remand to a convening
authority for
a new action in light of this Court’s decision in United States v.
Emminizer,
56 M.J. 441 (C.A.A.F. 2002). [See also
ORDERS GRANTING PETITION FOR REVIEW this date.]
CRAWFORD, Chief
Judge (dissenting): I dissent for the
reasons set forth in my
dissenting opinion in United States v. Lajaunie, ___ M.J. ___
(C.A.A.F.
2004)(Crawford, C. J., dissenting).
ORDERS GRANTING
PETITION FOR REVIEW
No. 04-0113/AF.
No. 04-0168/AF.
No. 04-0169/AF.
No. 04-0310/AF.
No. 04-0311/AF.
No. 04-0312/AF.
PETITIONS FOR GRANT
OF REVIEW DENIED
No. 04-0283/AF.
No. 04-0368/AF.
No. 04-0371/AR.
No. 04-0439/MC.
No. 04-0499/AF.
PETITIONS FOR GRANT
OF REVIEW FILED
No. 04-0617/NA.
No. 04-0618/NA.
No. 04-0619/MC.
No. 04-0620/NA.
No. 04-0621/NA.
INTERLOCUTORY
ORDERS
No. 04-0250/AR.
No. 04-0483/AR.
No. 04-0537/AR.
No. 04-0556/AF.
No. 04-0559/AR.
No. 04-0560/AR.
No. 04-0587/AR.
No. 04-0592/MC.
MANDATES ISSUED
No. 03-0520/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-193
APPEALS - SUMMARY DISPOSITIONS
No. 04-0318/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0238/AF.
WHETHER APPELLANT
SHOULD BE GRANTED A NEW TRIAL BECAUSE HE
SUFFERED FROM A SEVERE MENTAL DISEASE AT THE TIME OF HIS OFFENSES THAT
RENDERED
HIM UNABLE TO APPRECIATE THE NATURE AND QUALITY OF THE WRONGFULNESS OF
HIS
ACTIONS.
No. 04-0318/AR.
No. 04-0348/AR.
WHETHER
APPELLANT'S CONVICTION FOR ATTEMPTING TO PERSUADE AN INDIVIDUAL UNDER
THE AGE
OF EIGHTEEN YEARS TO ENGAGE IN AN ACT OF CRIMINAL SEXUAL MISCONDUCT
(SPECIFICATION 2 OF CHARGE I) IS SUPPORTED BY LEGALLY SUFFICIENT
EVIDENCE WHERE
THERE IS NO EVIDENCE THAT ANY PERSON UNDER EIGHTEEN YEARS OF AGE, OR A
PERSON
PRETENDING TO BE UNDER EIGHTEEN YEARS OF AGE, WAS EVER PERSUADED,
INDUCED,
ENTICED, OR COERCED TO ENGAGE IN AN ACT OF CRIMINAL SEXUAL MISCONDUCT.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0369/NA.
No.
04-0374/AF.
No.
04-0460/AR.
No.
04-0472/AR.
No.
04-0490/AR.
No.
04-0495/AF.
No.
04-0505/NA.
No.
04-0514/AR.
No.
04-0516/AF.
No.
04-0522/AR.
No.
04-0525/AR.
No.
04-0529/AF.
No.
04-0535/AR.
No.
04-0546/AR.
No.
04-0552/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0613/AR.
No.
04-0614/AR.
No.
04-0615/MC.
No.
04-0616/NA.
INTERLOCUTORY ORDERS
No.
04-0191/AR.
No.
04-0500/AR.
MANDATES ISSUED
No.
03-0272/NA.
No.
03-0614/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-192
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0608/AR.
No.
04-0609/CG.
No.
04-0610/AF.
No.
04-0611/AF.
No.
04-0612/CG.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-191
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0606/AF.
No.
04-0607/AF.
DAILY
JOURNAL
No.
04-190
APPEALS - SUMMARY DISPOSITIONS
No. 04-0338/AR.
WHETHER FURTHER
FACTFINDING IS NECESSARY WHERE:
(1) APPELLANT HAS
ALLEGED THAT HIS TRIAL DEFENSE
COUNSEL:
(A) DISCOURAGED
HIM FROM ENTERING INTO A PRETRIAL
AGREEMENT THAT INCLUDED A 24-MONTH CAP ON CONFINEMENT; (B) ENCOURAGED
HIM TO
INSTEAD PLEAD GUILTY WITHOUT THE BENEFIT OF A PRETRIAL AGREEMENT; AND
(C) GAVE
HIM A PERSONAL GUARANTEE THAT THE MILITARY JUDGE WOULD NOT IMPOSE MORE
THAN
EIGHT MONTHS OF CONFINEMENT;
(2) THE MILITARY
JUDGE SENTENCED APPELLANT TO
CONFINEMENT FOR THREE YEARS, A BAD-CONDUCT DISCHARGE, AND REDUCTION TO
PAY
GRADE E-1; AND
(3) THE CONVENING
AUTHORITY APPROVED THE SENTENCE AS
ADJUDGED.
The
decision of the United States Army Court of Criminal Appeals is set
aside. The record of trial is returned to
the Judge
Advocate General of the Army for remand to that court to obtain an
affidavit
from the trial defense counsel responding to Appellant’s allegation of
ineffective assistance of counsel. In
the course of conducting its new review under Article 66(c), Uniform
Code of
Military Justice, 10 U.S.C. § 866(c) (2000), the Court of Criminal
Appeals
shall
review the trial defense counsel’s affidavit and any other relevant
matters. See
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0338/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
02-0443/AR.
No.
04-0601/MC.
No.
04-0602/NA.
No.
04-0603/MC.
No.
04-0604/NA.
No.
04-0605/MC.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 04-8025/NA.
Wade L. WALKER, Petitioner, v.
INTERLOCUTORY ORDERS
No.
04-0191/AR.
No.
04-0295/AR.
*/
Second
petition filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-189
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0515/AF.
No.
04-0518/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0599/AR.
No.
04-0600/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-188
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0598/CG.
MANDATES ISSUED
No.
03-0279/NA.
No.
03-0620/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-187
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0597/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 04-8022/AR.
INTERLOCUTORY ORDERS
No.
03-0647/AR.
No.
04-0081/AF.
No.
04-0291/AR.
No.
04-5005/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-186
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0589/AR.
No.
04-0590/NA.
No.
04-0591/NA.
No.
04-0592/MC.
No.
04-0593/MC.
No.
04-0594/AF.
No.
04-0595/AF.
No.
04-0596/AF.
INTERLOCUTORY ORDERS
No.
02-0593/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-185
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0387/AR.
No.
04-0395/AF.
No.
04-0417/AR.
No.
04-0419/AR.
No.
04-0474/NA.
No.
04-0486/AR.
No.
04-0496/AF.
No.
04-0506/AR.
No.
04-0510/AF.
No.
04-0511/AF.
No.
04-0517/AF.
No.
04-0521/AR.
No.
04-0523/AR.
No.
04-0527/AF.
No.
04-0536/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0588/NA.
MANDATES ISSUED
No.
02-0849/AF.
No.
03-0224/AF.
No.
03-0561/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-184
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0646/AR.
WHETHER
THE MILITARY JUDGE ERRED IN FINDING THAT APPELLANT'S DECISION TO PLEAD
GUILTY
AT TRIAL WAIVED HIS FIFTH AND SIXTH AMENDMENT RIGHTS RETROACTIVELY WITH
RESPECT
TO INTERVIEWS CONDUCTED WHILE IN PRETRIAL CONFINEMENT AND LATER USED
DURING THE
SENTENCING PHASE OF HIS TRIAL.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
04-0435/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0587/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 04-8023/AF.
Fernando T. TELLO, Petitioner, v.
INTERLOCUTORY ORDERS
No.
04-0461/AR.
No.
04-0485/AR.
No.
04-0498/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-183
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0581/AR.
No.
04-0582/AR.
No.
04-0583/AR.
No.
04-0584/AR.
No.
04-0585/AR.
No.
04-0586/MC.
No.
04-5005/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-182
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0580/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 04-8024/NA.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 04-8024/NA.
UNITED STATES
COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-181
PETITIONS FOR GRANT
OF REVIEW FILED
No. 04-0578/AR.
No. 04-0579/CG.
INTERLOCUTORY
ORDERS
No. 03-0694/AR.
No. 04-0082/AF.
No. 04-0327/AR.