UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-119
APPEALS - SUMMARY DISPOSITIONS
No. 04-0254/CG.
ORDERS GRANTING PETITION FOR REVIEW
No.
04-0254/CG.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0400/NA.
No.
04-0401/MC.
No.
04-0402/MC.
DAILY
JOURNAL
No.
04-118
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-5003/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0398/AR.
No.
04-0399/AR.
INTERLOCUTORY ORDERS
No.
04-0330/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-117
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0394/AR.
No.
04-0395/AF.
No.
04-0396/AF.
No.
04-0397/MC.
INTERLOCUTORY ORDERS
No.
04-8013/AR.
Dwight J. LOVING, Petitioner, v.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-116
CERTIFICATES FOR REVIEW FILED
No. 04-5004/AR.
I.
WHETHER THE UNITED
STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN GRANTING THIRTY-THREE
DAYS OF
CONFINEMENT CREDIT AS RELIEF UNDER THIS COURT’S DECISION IN UNITED
STATES v.
WHEELUS, 49 M.J. 283 (C.A.A.F. 1998), ABSENT A CONCESSION OR
FINDING OF
LEGAL ERROR, WHERE THE FACTS IN THE RECORD (TRIAL AND POST-TRIAL
FILINGS)
CLEARLY EVIDENCE APPELLANT’S MENDACITY, AND IN LIGHT OF THIS COURT’S
DECISION
IN UNITED STATES v. FAGAN, 59 M.J. 238 (C.A.A.F. 2004).
II.
WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
ERRED IN
FAILING TO RESOLVE ALL OF APPELLANT’S CLAIMS OF UNLAWFUL PRETRIAL
PUNISHMENT
UNDER THE FIRST AND FOURTH GINN FACTORS.
III.
WHETHER THE UNITED
STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN FAILING TO RECONSIDER
THEIR
NOVEMBER 13, 2003 OPINION IN LIGHT OF AFFIDAVITS SUBMITTED BY
APPELLANT’S TRIAL
DEFENSE TEAM, CAPTAIN OREN MCKNELLY AND CAPTAIN COLLEEN SWEENEY.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0390/AF.
No.
04-0391/AF.
No.
04-0392/AF.
No.
04-0393/NA.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-115
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0388/AR.
No.
04-0389/MC.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 04-114
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0129/AR.
No.
04-0253/AR.
No.
04-0257/AF.
No.
04-0274/AF.
No.
04-0276/AF.
No.
04-0277/MC.
No.
04-0282/AF.
No.
04-0287/AR.
No.
04-0297/NA.
No.
04-0301/AF.
No.
04-0307/AR.
No.
04-0321/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0385/AR.
No.
04-0386/AR.
No.
04-0387/AR.
INTERLOCUTORY ORDERS
No.
03-0433/CG.
No.
04-0256/MC.
No.
04-0264/AR.
No.
04-0318/AR.
No.
04-0320/AR.
No.
04-0338/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-113
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0046/AR.
No.
04-0142/AR.
No.
04-0160/AR.
No.
04-0179/NA.
No.
04-0187/AF.
No.
04-0196/NA.
No.
04-0224/AR.
No.
04-0272/AR.
No.
04-0273/CG.
No.
04-0275/AF.
No.
04-0302/AF.
No.
04-0303/AR.
No.
04-0331/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0383/AR.
No.
04-0384/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-112
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0377/CG.
No.
04-0378/AR.
No.
04-0379/AR.
No.
04-0380/AR.
No.
04-0381/AR.
No.
04-0382/AF.
DAILY
JOURNAL
No.
04-111
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0371/AR.
No.
04-0372/MC.
No.
04-0373/AF.
No.
04-0374/AF.
No.
04-0375/AF.
No.
04-0376/AR.
INTERLOCUTORY ORDERS
No.
04-0191/AR.
No.
04-0313/AF.
DAILY
JOURNAL
No.
04-110
PETITIONS FOR GRANT OF
REVIEW FILED
No.
04-0370/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-109
HEARINGS
No.
03-0614/NA.
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0638/CG.
I.
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN A CHARGE OF RAPE
WHERE
THE VICTIM WAS AWAKE AND COHERENT YET TOTALLY PASSIVE, FAILED TO
REASONABLY
MANIFEST LACK OF CONSENT, AND THE ONLY
EVIDENCE OF
"FORCE" WAS MOVING HER LEG TO ACHIEVE PENETRATION.
II.
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING TESTIMONY OF SUPPOSEDLY
INCRIMINATING NON-VERBAL GESTURES, WHERE THE INTERROGATOR COULDN'T
REMEMBER
WHAT QUESTIONS HE ASKED TO ELICIT THE GESTURES.
III.
WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING EVIDENCE OF THE RAPE
VICTIM'S
MOTIVE TO MISREPRESENT.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0365/AR.
No.
04-0366/AR.
No.
04-0367/AR.
No.
04-0368/AF.
No.
04-0369/NA.
MANDATES ISSUED
No.
00-0559/AF.
____________
*/ Hearing
held at the Georgetown University,
Law Center, Washington, D.C., as part of the Court’s “Project Outreach”
Program.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-108
HEARINGS
No.
03-0691/MC.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0123/AR.
No.
04-0258/AF.
No.
04-0260/AF.
No.
04-0263/AF.
No.
04-0269/MC.
INTERLOCUTORY ORDERS
No.
03-0389/NA.
No.
04-0291/AR.
No.
04-0292/AR.
No.
04-0295/AR.
No.
04-0300/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-107
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0357/CG.
No.
04-0358/AR.
No.
04-0359/AR.
No.
04-0360/AR.
No.
04-0361/AF.
No.
04-0362/AF.
No.
04-0363/MC.
No.
04-0364/MC.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 04-8015/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-106
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0354/AF.
No.
04-0355/AF.
No.
04-0356/AF.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-105
APPEALS - SUMMARY DISPOSITIONS
No. 01-0738/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 01-0738/AF.
No. 04-0252/AR.
WHETHER THE ARMY
COURT OF
CRIMINAL APPEALS ABDICATED
ITS ARTICLE 66(C)
RESPONSIBILITY WHEN IT FOUND THAT THE
POST-TRIAL
PROCESSING OF
APPELLANT'S CASE WAS
UNREASONABLE,
UNEXPLAINED,
AND DILATORY, BUT REFUSED TO
CONSIDER THIS
ERROR IN
ANALYZING THE APPROPRIATENESS OF
APPELLANT'S
SENTENCE BECAUSE
IT RULED THAT THE ERROR
WAS
WAIVED.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0353/AR.
INTERLOCUTORY ORDERS
No. 03-0691/MC.
No. 04-0286/AR.
No. 04-8012/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-104
ORDERS GRANTING PETITION FOR REVIEW
No. 02-0938/AF.
I. WHETHER BRADY
v.
MARYLAND AND ARTICLE 46, UCMJ, REQUIRE THE GOVERNMENT TO DISCLOSE
EVIDENCE
OF A URINALYSIS “FALSE POSITIVE” FOR COCAINE WHERE APPELLANT WAS
CHARGED WITH
USE OF COCAINE; THE QUALITY CONTROL PROCESS COULD NOT DETERMINE THE
CAUSE OF
THE ERROR; THE LABORATORY MADE THE ERROR LESS THAN TWO MONTHS PRIOR TO
TESTING
APPELLANT'S SAMPLE; THE GOVERNMENT EXPERT WITNESS WORKED SUBSTANTIVELY
ON BOTH
TESTS; AND TRIAL COUNSEL DID NOT EXERCISE DUE DILIGENCE IN DISCLOSING
THE
ERROR.
II. WHETHER, IN
VIEW OF THE
CONCLUSION OF THE AIR FORCE COURT OF CRIMINAL APPEALS THAT TRIAL
DEFENSE
COUNSEL DID NOT EXERCISE REASONABLE DILIGENCE IN DISCOVERING THE
ERRONEOUS TEST
REPORT, APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. WHETHER THE
MILITARY
JUDGE ERRED BY GRANTING IN PART THE GOVERNMENT'S MOTION IN LIMINE. SEE UNITED STATES v. VAN HORN,
26 M.J. 434, 438 (C.M.A. 1988); AE VI; RECORD AT 66-69, 304-13.
No. 03-0645/AR.
WHETHER
THE MILITARY JUDGE ERRED, ONCE TRIAL DEFENSE COUNSEL ARGUED FOR A
PUNITIVE
DISCHARGE, BY NOT CONDUCTING AN INQUIRY WITH APPELLANT, SUA SPONTE, TO
ENSURE
THAT THE APPELLANT APPROVED OF HIS TRIAL DEFENSE COUNSEL ARGUING FOR A
PUNITIVE
DISCHARGE.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0130/AR.
No. 04-0200/AR.
No. 04-0233/AR.
No. 04-0249/AR.
No. 04-0251/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0352/AR.
INTERLOCUTORY ORDERS
No. 04-0123/AR.
No. 04-0242/AF.
No. 04-0265/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-103
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0350/MC.
No. 04-0351/AR.
INTERLOCUTORY ORDERS
No. 03-0403/NA.
No. 03-0578/NA.
No. 03-0613/MC.
No. 04-0069/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-102
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0347/AR.
No.
04-0348/AR.
No.
04-0349/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-101
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0143/AR.
No.
04-0262/AF.
No.
04-0268/AR.
No.
04-0270/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0341/AF.
No.
04-0342/AF.
No.
04-0343/AF.
No.
04-0344/AF.
No.
04-0345/AF.
No.
04-0346/AF.
INTERLOCUTORY ORDERS
No. 03-0490/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-100
PETITIONS FOR GRANT OF REVIEW DENIED
No.
03-0686/AR.
No.
04-0053/AR.
No.
04-0165/AR.
No.
04-0193/AR.
No.
04-0215/AF.
No.
04-0229/AR.
No.
04-0244/AR.
No.
04-0247/AR.
No.
04-0259/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0337/AR.
No.
04-0338/AR.
No.
04-0339/NA.
No.
04-0340/MC.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-099
HEARINGS
No. 03-0259/AR.
APPEALS - SUMMARY DISPOSITIONS
No.
03-5004/CG.
We note
that upon remand, the Coast Guard Court purported to affirm “only so
much of
the sentence approved below as provides for a dishonorable discharge,
confinement for 19 months, with credit previously granted under United
States v. Allen, [17 M.J. 126 (C.M.A. 1984),] forfeiture of all pay
and
allowances, and reduction to paygrade E-1.” 58 M.J. at 715. While the members adjudged total forfeitures,
the convening authority limited his approval of the monetary portion of
the
sentence to “total forfeitures for 24 months.”
See Commander, Eighth Coast Guard District, General
Court-Martial
Order No. 1-00 (
CRAWFORD,
Chief Judge (dissenting):
First, I dissent for the reasons set forth
in my separate opinion in United States v. Tardif, 57 M.J. 219,
225-28
(C.A.A.F. 2002)(Crawford, C.J., dissenting). In that dissent, I expressed my view that we
must read Article 66(c), Uniform Code of Military Justice [hereinafter
UCMJ],
10 U.S.C. § 866(c) (2000), in conjunction with Article 59(a), UCMJ, 10
U.S.C. §
859(a) (2000), and that such a reading indicates the improbability
that
“if Congress was asked, it would grant the authority to the Courts of
Criminal
Appeals to reduce sentences because of post-trial delay, even though an
appellant was not prejudiced.”
The Courts of Criminal Appeals may not
reduce sentences for post-trial delay without a showing of prejudice. Certainly, the Sixth Amendment to the
Constitution guarantees “the right to a speedy and public trial” – a
right
which “is ‘fundamental’ and is imposed by the Due Process Clause of the
[Fifth
Amendment].” Barker
v. Wingo, 407
This Court has
affirmed the lower court’s
determination to grant Appellant sentence relief for “unexplained and
unreasonable” post-trial delay without requiring that Appellant
show
prejudice. On remand, the lower court
reduced the confinement portion of the sentence from 24 months to 19
months
otherwise approving the sentence. Thus,
I also write separately today to illustrate the danger of departing
from
statutory requirements and legal norms regarding the necessity of
demonstrating
prejudice. To that end, I ask: If we are
going to empower the lower courts to grant sentence relief for all
“unexplained
and unreasonable” delay, without regard to a showing of prejudice,
where do we
draw the line? What are the standards to determine that, first,
there has
been a “delay” in the post-trial processing of a case, and, second,
that the
delay has been “unreasonable and unexplained?”
If we leave that determination to each lower court, are we not
opening
the door to a non-uniform application across the services?
Do we apply those standards –- or any
standards –- to the appellate process as well?
The majority empowered the lower court to
grant Appellant sentence relief in the instant case based on the lower
court’s
determination that the time which elapsed between the end
of trial until the forwarding of the case for appellate review
constituted
“unexplained and unreasonable” post-trial delay.
We also know that many appellants may
endure considerable periods of time in the post-trial processing of
their cases
while undergoing appellate review. At
what point in each case is this period of time rightfully considered a
“delay,”
and if so, is it an “unexplained and unreasonable” delay?
Because this Court fails to require a showing
of prejudice, and simply allows sentence relief for all “unexplained
and
unreasonable” delay, are the appellate courts not bound to evaluate the
periods
of time they impose on appellants during the appellate process? Or do we apply a different measuring standard
to the appellate process? I fear we have
started down a slippery slope by opening the door to granting relief
without a
showing of prejudice.
I believe these questions underscore the
wisdom of Congress in requiring a showing of prejudice pursuant to
Article
59(a) before authorizing courts to grant relief. Courts
are well-equipped to deal with issues
of material prejudice to substantial rights.
They are not equipped, and indeed are not authorized under the
UCMJ, to
deal with administrative case processing problems that should be
addressed by
the military departments.
For these
reasons, I again respectfully dissent from
the lead opinion.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No. 04-0230/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 02-0801/AR.
No. 04-0336/AF.
INTERLOCUTORY ORDERS
No. 02-0593/AF.
No. 03-0259/AR.
No. 03-0578/NA.
No. 04-0230/AR.
_____________
*/ Second petition
filed in this
case.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-098
HEARINGS
No. 02-0849/AF.
No. 03-0224/AF.
No. 03-0473/NA.
No. 03-0561/AR.
No. 04-0027/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0332/NA.
No. 04-0333/MC.
No. 04-0334/MC.
No. 04-0335/NA.
MANDATES ISSUED
No. 03-0072/AF.
No. 03-5002/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-097
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0331/AR.
INTERLOCUTORY ORDERS
No.
03-0403/NA.
No.
03-0473/NA.
No.
03-0614/NA.
No.
04-0206/AR.
No.
04-0266/AR.
No.
04-0267/AR.