DAILY JOURNAL
No. 05-020
Friday,
October 29, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0074/NA. U.S. v. Mack
A. HARRIS.
CCA 200301923.
No. 05-0075/AF. U.S. v. Jose
F. GARCIA.
CCA S30099.
No. 05-0076/AF. U.S. v.
Pernell R. HILL.
CCA 35477.
No. 05-0077/AF. U.S. v. Keith
E. POPE.
CCA 34921.
No. 05-0078/AF. U.S. v. Eric
W. SAXON.
CCA 35069.
No. 05-0079/AF. U.S. v.
Marquis A. ALDERMAN. CCA 35927.
INTERLOCUTORY ORDERS
No. 04-0723/NA. U.S. v. Aaron
A. OESTMANN.
CCA 200301443. Appellant's motion to attach
survey of Navy-Marine Corps Court of Criminal Appeals decisions in cases where
unreasonable post-trial delay was asserted is granted.
No. 04-0792/AR. U.S. v. James
M. JOSEPH III.
CCA 20031093. Appellant's motion to extend time
to file supplement to petition for grant of review granted to November
26, 2004.
No. 05-0013/AR. U.S. v. Louis
S. LOPEZ.
CCA 20010994. Appellant's motion to extend time
to file supplement to petition for grant of review granted to December
5, 2004.
No. 05-0015/AR. U.S. v.
Michael A. SHIFFLETT. CCA 20000881. Appellant's
motion to extend time to file supplement to petition for grant of review
granted to December 8, 2004.
DAILY JOURNAL
No. 05-019
Thursday,
October 28, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0073/AR. U.S. v. Joshua
L. KRELL.
CCA 20020266.
DAILY JOURNAL
No. 05-018
Wednesday,
October 27, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0069/MC. U.S. v. Thomas
A. HORTON.
CCA 200401142.
No. 05-0070/NA. U.S. v.
Randall N. MITCHELL. CCA 200101673.
No. 05-0071/NA. U.S. v. John
C. HOLLNAGEL.
CCA 200301562.
No. 05-0072/MC. U.S. v.
Christopher E. PARKER. CCA 200102191.
DAILY JOURNAL
No. 05-017
Tuesday,
October 26, 2004
HEARINGS
No. 04-0340/MC. U.S. v.
Michael D. BAIER.
CCA 02-0476.
No. 04-8025/MC. U.S. v. Wade
L. WALKER.
CCA 9501607.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0336/AF. U.S. v.
Bradley K. RHODES. CCA 34697. Review granted on the
following issues:
I. IN LIGHT OF CRAWFORD v. WASHINGTON, 124
S.Ct. 1354 (2004), WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED BY
FINDING THAT THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT WAS NOT IMPLICATED
WHERE AN ALLEGED ACCOMPLICE'S TESTIMONIAL STATEMENT TO INVESTIGATORS WAS USED
AS SUBSTANTIVE EVIDENCE OF APPELLANT'S GUILT AFTER THE ACCOMPLICE COULD NOT
REMEMBER THE EVENTS THAT WERE REPORTED IN HIS WRITTEN STATEMENT.
II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS
ERRED WHEN IT FOUND THAT AN ALLEGED ACCOMPLICE'S WRITTEN STATEMENT TO
INVESTIGATORS UNDER MIL.R.EVID. 804(b)(3) WAS TRULY SELF-INCULPATORY WHERE THE
ACCOMPLICE REALIZED IN ADVANCE THAT OTHER CO-ACTORS HAD ALREADY GIVEN
STATEMENTS TO INVESTIGATORS AND HIS WRITTEN STATEMENT INDICATED HIS DESIRE TO
CURRY FAVOR WITH AUTHORITIES.
III. WHETHER THE MILITARY JUDGE ERRED BY ADMITTING
EVIDENCE OF UNCHARGED MISCONDUCT UNDER MIL.R.EVID. 404(b) AND 403 WHERE THE
ONLY EVIDENCE OF AN ALLEGED OBSTRUCTION OF JUSTICE WAS THE CHANCE TIMING OF THE
WITNESS WITH THE TRIAL DEFENSE COUNSEL TO MAKE AN AFFIDAVIT RECANTING
SIGNIFICANT TESTIMONY.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0569/AF. U.S. v.
Richard S. SOVINE.
CCA S30135.
No. 04-0593/MC. U.S. v.
Zachariah R. DELACRUZ. CCA 200101482.
No. 04-0597/AR. U.S. v. Robert
C. SPARKS.
CCA 20020822.
No. 04-0654/AR. U.S. v. Cody
B. HOPPE.
CCA 20021162.
No. 04-0655/AF. U.S. v.
Suzanne R. ANGELES. CCA S30265.
No. 04-0681/AF. U.S. v.
Vincent C. T. FINONA. CCA 35233.
No. 04-0705/AF. U.S. v.
Jonathan P. GILLIAM. CCA 35770.
No. 04-0706/AF. U.S. v. Reina
L. LUSHINE.
CCA S30471.
No. 04-0725/AR. U.S. v. Jason
C. LEE.
CCA 20040080.
No. 04-0740/AF. U.S. v. Anna
E. BELLAMY.
CCA S30549.
No. 04-0742/MC. U.S. v.
Brandon L. HANSON.
CCA 200300269.
No. 04-0747/NA. U.S. v. Paul
F. CASTANEDA.
CCA 200301089.
No. 04-0748/MC. U.S. v. Luis
M. CASTRO.
CCA 200300379.
No. 04-0767/AR. U.S. v. Cleveland WILCOX. CCA
20040273.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0067/AR. U.S. v. Mike
E. JENERETTE.
CCA 20020821.
No. 05-0068/NA. U.S. v. Walter
D. DISNEY.
CCA 200100932.
INTERLOCUTORY ORDERS
No. 02-0060/MC. U.S. v.
Anthony L. JONES.
CCA 200100066. Appellant's motion
to extend time to file reply brief granted to October
29, 2004.
No. 03-0590/AR. U.S. v. Kirk
E. HALL.
CCA 20021342. On consideration of Appellant's
petition for grant of review and the matters personally asserted by Appellant
under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), (see
Appendix B to the Supplement to the Petition for Grant of Review), we conclude
that it is necessary to obtain briefs of counsel and any available supporting
documents relating to the issue raised in paragraph 6 of Appellant's submission
and on related potential questions of ineffective assistance of trial defense
counsel. See generally United States v. Smith, 34 M.J. 158
(C.M.A. 1991)(interlocutory order). Accordingly, it is
ordered that, within 60 days of the date of this order, appellate defense
counsel will file a brief with this Court that will include the following:
1. A discussion of the various forms of
restitution identified by Appellant in Appendix B, paragraph 6, and the
attachment thereto, including but not limited to: how much was taken and
from whom; when the larcenies occurred; the maximum punishment or potential
range of maximum punishment; relevant provisions of the pretrial agreement; how
much was repaid and to whom; when the repayments were made; and other pertinent
information from the record of trial.
2. An analysis of the impact of such matters
on:
a.
Whether there is good cause to review the legal sufficiency of the
advice regarding restitution in the staff judge advocate's post-trial
recommendation; and
b.
Whether there is good cause to review an issue of ineffective assistance
of counsel both at trial and post-trial relative to the restitution purportedly
made both before and after trial;
That appellate defense counsel additionally will provide this Court with an
affidavit from Appellant and such other documents as may be pertinent to the
issue of Appellant's restitution. Copies of the brief and all documents
will be served on counsel for the United States; and
That the Government will file an answer brief within 30 days of the filing of
Appellant's brief and supporting documents.
No. 04-0698/MC. U.S. v. Javier
A. MORENO.
CCA 200100715. Appellee's motion to extend time
to file an answer to the supplement to petition for grant of review granted to November
19, 2004.
No. 04-0723/NA. U.S. v. Aaron
A. OESTMANN.
CCA 200301443. Appellee's motion to correct
pleadings granted.
No. 04-0749/MC. U.S. v. Keenan
J. LAWRENCE.
CCA 200400338. In light of United States v.
Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion for leave to file
supplement to petition for grant of review out of time is granted.
No. 04-0750/NA. U.S. v.
Christian R. CASTILLO. CCA 200400091. In light of
United States v. Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion
for leave to file supplement to petition for grant of review out of time is
granted.
No. 04-0754/MC. U.S. v. Jorge
J. ADRIAZOLA.
CCA 200301990.
Appellant's
motion to extend time to file supplement to petition for grant of review out of
time granted up to and including November
15, 2004.
DAILY JOURNAL
No. 05-016
Monday,
October 25, 2004
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0595/AR. U.S. v.
Marc R. REEVES. CCA 20010497. On consideration of
the petition for grant of review of the decision of the United States Army
Court of Criminal Appeals, and in light of United States v. O’Connor, 58
M.J. 450 (C.A.A.F. 2003), said petition is granted on the following issue
raised by appellate defense counsel:
WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN UPHOLDING APPELLANT'S
CONVICTION UNDER THE CHILD PORNOGRAPHY PREVENTION ACT, 18 U.S.C. SECTION 2251, ET
SEQ., DESPITE THE SUPREME COURT'S PRONOUNCEMENT THAT THE CPPA DEFINITION
OF CHILD PORNOGRAPHY IS UNCONSTITUTIONAL, ASHCROFT V. FREE SPEECH COALITION,
535 U.S. 234 (2002), AND THIS COURT'S DECISION THAT ASHCROFT V. FREE SPEECH
COALITION REQUIRES PROOF THAT ACTUAL MINORS WERE USED IN PRODUCING THE
PORNOGRAPHIC IMAGES. SEE UNITED STATES V. O'CONNOR, 58 M.J. 450 (C.A.A.F. 2003).
And
the following issues specified by the Court:
I. WHETHER 18 U.S.C. § 2252A(a)(2), WHICH IN PART
PROSCRIBES KNOWING RECEIPT OF CHILD PORNOGRAPHY THAT HAS TRAVELED IN
"FOREIGN COMMERCE," HAS EXTRATERRITORIAL APPLICATION.
II. WHETHER 18 U.S.C. § 2252A(a)(5),
WHICH PROSCRIBES KNOWING POSSESSION OF CHILD PORNOGRAPHY "ON ANY LAND OR
BUILDING OWNED BY, LEASED TO, OR OTHERWISE USED BY OR UNDER THE CONTROL OF THE U.S. GOVERNMENT," HAS
EXTRATERRITORIAL APPLICATION.
III. WHETHER 18 U.S.C. § 2251(a), WHICH IN PART
PROSCRIBES USING A MINOR TO ENGAGE IN SEXUALLY EXPLICIT CONDUCT FOR THE PURPOSE
OF PRODUCING A VISUAL DEPICTION OF THAT CONDUCT USING MATERIAL THAT HAS
TRAVELED IN "FOREIGN COMMERCE," HAS EXTRATERRITORIAL APPLICATION.
IV. WHETHER 18 U.S.C. § 2252A(a)(2) IS BEING APPLIED
DOMESTICALLY OR EXTRATERRITORIALLY WHEN APPLIED TO THE ACT OF DOWNLOADING AND
RECEIVING CHILD PORNOGRAPHY AT A COMPUTER LOCATED IN GERMANY WHEN THAT MATERIAL
WAS "SENT FROM THE U.S. THROUGH THE INTERNET."
V. WHAT EFFECT, IF ANY, IS THERE ON APPELLANT'S
GUILTY PLEA TO RECEIVING CHILD PORNOGRAPHY IN VIOLATION OF 18 U.S.C. §
2252A(a)(2), FROM APPELLANT'S ADMISSION DURING THE PROVIDENCE INQUIRY THAT THE
IMAGES "WERE SENT FROM THE U.S. THROUGH THE INTERNET TO ME."
PETITIONS FOR GRANT OF REVIEW FILED
No. 02-0955/AR. U.S. v.
Raphelito G. WELLINGTON. CCA 9900782.*/
No. 05-0059/AR. U.S. v. Ryan
P. WARZYNSKI.
CCA 20030361.
No. 05-0060/AR. U.S. v.
Sebastian L. BELCHER. CCA 20030189.
No. 05-0061/AR. U.S. v. Ryan
S. McLEOD.
CCA 20031046.
No. 05-0062/AR. U.S. v.
Antonio D. BARBER.
CCA 20000413.
No. 05-0063/AR. U.S. v. Jason
L. DOUGLASS.
CCA 20020382.
No. 05-0064/AF. U.S. v.
William N. ROGERS.
CCA 35256.
No. 05-0065/AF. U.S. v. David
A. HARRIS.
CCA 35264.
No. 05-0066/NA. U.S. v.
Nicholas J. GENEST. CCA 200201749.
__________
*/ Second petition filed in this case.
DAILY JOURNAL
No. 05-015
Friday,
October 22, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 03-0072/AF. U.S. v. Joshua
P. LOVETT.
CCA 33947.*/
No. 05-0055/AF. U.S. v. Allen
N. PRICE.
CCA S30517.
No. 05-0056/AF. U.S. v.
Brendan L. DODSON.
CCA S30499.
No. 05-0057/AF. U.S. v. Ryan
R. BELL.
CCA S30548.
No. 05-0058/NA. U.S. v. Peter
T. COSBY.
CCA 9901704.
INTERLOCUTORY ORDERS
No. 02-0623/AR. U.S. v.
Christopher P. MARTINELLI. CCA 20000311.
On consideration of the briefs filed and the oral arguments made by the
parties, it is ordered that Appellant will file a supplemental brief on or
before November 22, 2004, addressing the following
issues specified by the Court:
I.
WHETHER
18 U.S.C. §§ 2252A(a)(1)-(3) APPLY TO AN INDIVIDUAL WHO SENDS, RECEIVES, AND
REPRODUCES ELECTRONIC FILES CONTAINING CHILD PORNOGRAPHY AT AN INTERNET CAFÉ
LOCATED OFF POST IN GERMANY.
II.
WHETHER
18 U.S.C. §§ 2252A(a)(1)-(3) ARE BEING APPLIED DOMESTICALLY OR
EXTRATERRITORIALLY WHEN E-MAILS CONTAINING CHILD PORNOGRAPHY ARE SENT THROUGH
E-MAIL OR INTERNET SERVICE PROVIDER SERVERS LOCATED IN THE UNITED STATES.
Appellee shall file an answer to the supplemental
brief within thirty days thereafter.
__________
*/ Second petition filed in this case.
DAILY JOURNAL
No. 05-014
Thursday,
October 21, 2004
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0524/AR. U.S. v.
John M. ARNOLD. CCA 20010713. Review granted on the following issues:
WHETHER THE MILITARY JUDGE PLAINLY ERRED BY
ADMITTING APPELLANT'S CONFESSION BASED ON TESTIMONY DERIVED EXCLUSIVELY FROM
THE CONFESSION ITSELF, WHICH FAILED TO SATISFY THE INDEPENDENCE REQUIREMENT OF THE
CORROBORATION RULE.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0614/AR. U.S. v.
Darrell K. HAYNES.
CCA 20010580.
No. 04-0664/AR. U.S. v.
Antonio D. KIRBY.
CCA 20020626.
No. 04-0691/AR. U.S. v. Calvin
B. DONOVAN.
CCA 20020669.
No. 04-0692/AR. U.S. v. Lenard
A. BROOKS.
CCA 20031150.
No. 04-0693/AR. U.S. v. John
D. MORRIS.
CCA 20021266.
No. 04-0696/AR. U.S. v. Billie
H. SLUCK.
CCA 20010693.
No. 04-0714/AR. U.S. v.
Anthony C. CRAWFORD. CCA 20030060.
No. 04-0716/AR. U.S. v.
Benjamin L. LEHMAN. CCA 20021421.
No. 04-0736/AR. U.S. v. James
M. BLAIR.
CCA 20030349.
No. 04-0759/AR. U.S. v. Larry
S. JONES.
CCA 20030358.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0052/NA. U.S. v. Jorge
E. AGUIRRE.
CCA 200400479.
No. 05-0053/MC. U.S. v. Joshua
A. GILLIAM.
CCA 200400392.
No. 05-0054/MC. U.S. v. Erick
G. GOMEZ.
CCA 200302052.
MISCELLANEOUS DOCKET – SUMMARY DISPOSITIONS
Misc. No. 05-8005/AR. Ricardo GONZALEZ, Petitioner, v. United States, Respondent. Notice
is hereby given that a “Writ-Appeal Petition of the Decision of the U.S. Army
Court of Criminal Appeals Denying Petitioner’s Motion for New Action,” which
this Court construes as a petition for extraordinary relief under Rule 27(a) of
this Court’s Rules of Practice and Procedure, was filed on September 23, 2004,
and placed on the docket this date. On consideration thereof, it is
ordered that said petition is hereby denied without prejudice to Petitioner’s
right to raise the issue contained in the petition during the course of normal
appellate review. [See also MISCELLANEOUS DOCKET –
FILINGS this date.]
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 05-8005/AR. Ricardo GONZALEZ, Petitioner, v. United States, Respondent. [See
also MISCELLANEOUS DOCKET – FILINGS this date.].
PETITIONS FOR RECONSIDERATION DENIED
No. 03-0152/NA. U.S. v. Thomas
W. DOWTY.
CCA 9901701. Appellant’s petition for
reconsideration of this Court’s decision (60 M.J. 163 (C.A.A.F. 2004)), denied.
DAILY JOURNAL
No. 05-013
Wednesday,
October 20, 2004
HEARINGS
No. 03-0655/MC. U.S. v. Keith
W. STROTHER.
CCA 200000050.
No. 04-0145/AF. U.S. v. Andrea
L. REEVES.
CCA 34730.
No. 04-0217/AF. U.S. v. Richard ISRAEL, Jr. CCA 34877.
No. 04-0240/AR. U.S. v.
Bartholomew M. BERRY. CCA 20000960.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0623/AF. U.S. v.
Matthew L. DAVIS.
CCA 35548.
No. 04-0635/MC. U.S. v. Gary
M. JOHNSON.
CCA 200301875.
No. 04-0656/AF. U.S. v. Francesco
P. MARRAPODI-BOVE.
CCA S30437.
No. 04-0658/MC. U.S. v. John
O. CARRINGTON.
CCA 200400199.
No. 04-0674/AF. U.S. v. Nathan
A. SHERRILL.
CCA S30444.
No. 04-0687/AF. U.S. v.
Timothy V. DENIO.
CCA S30440.
No. 04-0704/AF. U.S. v. Justin
N. ALLEN.
CCA S30580.
No. 04-0743/NA. U.S. v. Clevon
R. MAYE.
CCA 200302035.
No. 04-0744/MC. U.S. v. Jorge
L. CANDANOZA.
CCA 200400280.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0049/AR. U.S. v. Vito
A. LANGLEY.
CCA 20031332.
No. 05-0050/AF. U.S. v. John
N. ANTHONY.
CCA 35867.
No. 05-0051/AF. U.S. v. Jeremy
M. GEHLHAUSEN.
CCA 35280.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No. 05-8003/AR. Donald Moore PRESTON, Petitioner, v. United States, Respondent. Petition
for extraordinary relief denied.
INTERLOCUTORY ORDERS
No. 04-0524/AR. U.S. v. John
M. ARNOLD.
CCA 20010713. Appellant's motion to attach
denied.
No. 04-0591/NA. U.S. v. E'
Randal K. WILLIS.
CCA 200200842. Appellant's motion for leave to
file supplement to petition for grant of review out of time granted.
No. 04-0660/AR. U.S. v. Marsha
R. PURCELL.
CCA 20031007. Appellant's motion for leave to
file and motion to withdraw assignment of error brief, and motion for leave to
file substitute supplement to petition for grant of review are granted;
Appellee's motion for leave to file answer to supplement to petition for grant
of review granted.
INTERLOCUTORY ORDERS
No. 04-0708/NA. U.S. v.
Shawanna L. MOORE.
CCA 200201537. In light of United States v.
Brunson, 59 M.J. 41 (C.A.A.F. 2003), Appellant's motion for leave to file
supplement to petition for grant of review out of time is granted.
No. 04-0718/AF. U.S. v. Mark
R. HUSCHAK.
CCA 35382. Appellant's motion to submit document
granted.
No. 04-0800/AF. U.S. v. James MORENO Jr. CCA
S30552. Appellant's motion to submit petition for grant of review
out of time granted.
DAILY JOURNAL
No. 05-012
Tuesday,
October 19, 2004
APPEALS - SUMMARY DISPOSITIONS
No. 04-0293/AR. U.S. v. James W. GRANDY,
II. CCA 20000258. On consideration of
the petition for grant of review of the decision of the United States Army
Court of Criminal Appeals, said petition is hereby 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. 04-0293/AR. U.S. v. James W. GRANDY,
II. CCA 20000258. [See also
APPEALS – SUMMARY DISPOSITIONS this date.]
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0242/AF. U.S. v.
Anthony E. CUTINO.
CCA S30239.
No. 04-0386/AR. U.S. v. Eric
L. GASPER.
CCA 20010801.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0047/MC. U.S. v. Thomas
M. HANEY.
CCA 9900878.
No. 05-0048/MC. U.S. v. Julius
E. LETT.
CCA 9901826.
INTERLOCUTORY ORDERS
No. 04-0711/MC. U.S. v. Joshua
A. WHITE.
CCA 200202259. Appellant's motion to withdraw
the petition for grant of review denied. Had this motion been granted,
Appellant’s conviction would be rendered final under Article 76, Uniform Code
of Military Justice, 10 U.S.C. § 876 (2000). Such a result would be
inconsistent with the reasons to withdraw provided in the motion.
It is further ordered that Appellant will file a supplement to the petition for
grant of review on or before November 19, 2004.
No. 04-0778/AR. U.S. v.
Patrick S. MCDERMOTT, Jr. CCA 20020837.
Appellant's motion to extend time to file supplement to petition for grant of
review granted to November 18, 2004.
DAILY JOURNAL
No. 05-011
Monday,
October 18, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0038/NA. U.S. v. Scott
A. PULVER.
CCA 84 0203.
No. 05-0039/AR. U.S. v. Steven
D. CORDOVA.
CCA 20021420.
No. 05-0040/AR. U.S. v. John
W. RZUCEK.
CCA 20020307.
No. 05-0041/AF. U.S. v.
Terrance A. BETHEA. CCA 35381. [See also
INTERLOCUTORY ORDERS this date.]
No. 05-0042/MC. U.S. v. Jose
L. SOLA.
CCA 200400675.
No. 05-0043/MC. U.S. v.
Anthony A. SANVILLE. CCA 200400008.
No. 05-0044/AF. U.S. v.
Deandrea J. KING, Jr. CCA 35653.
No. 05-0045/AF. U.S. v. James
M. McCORMICK.
CCA S30511.
No. 05-0046/AF. U.S. v.
Timothy J. RYAN.
CCA 35710.
INTERLOCUTORY ORDERS
No. 05-0041/AF. U.S. v.
Terrance A. BETHEA. CCA 35381. Notice is
hereby given that a petition for grant of review was offered for filing under
Rule 20 together with Appellant’s supplement to petition for grant of review
and motion to file the same out of time this date. Appellee shall file an
answer to Appellant’s motion on or before the 25th day of October,
2004. Further action on the petition shall be held in abeyance pending
the Court’s final action on the motion. [See also PETITIONS FOR GRANT OF
REVIEW FILED this date.]
DAILY JOURNAL
No. 05-010
Friday,
October 15, 2004
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0313/AF. U.S. v.
George E. ROLLINS. CCA 34515. Review granted on the
following issues:
I. WHETHER THE CONVENING AUTHORITY ERRED BY ALTERING
THE INCEPTION DATE OF TWO SPECIFICATIONS IN ORDER TO DEFEAT A STATUTE OF
LIMITATIONS CLAIM.
II. WHETHER THE CONVENING AUTHORITY ERRED BY
ATTEMPTING TO REASSESS THE SENTENCE AFTER SETTING ASIDE THREE FINDINGS OF
GUILTY.
III. WHETHER APPELLANT'S CONVICTION FOR INDECENT
ACTS WITH JG MUST BE SET ASIDE WHERE APPELLANT'S ACTIONS WERE NOT DONE WITH THE
"PARTICIPATION" OF JG AND WHERE APPELLANT'S ACTIONS ARE PROTECTED BY
THE FIRST AMENDMENT.
No. 04-0429/AF. U.S. v.
Jeffrey R. DILLON. CCA 34933. Review granted on the
following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS HAS
MISAPPLIED THIS COURT'S HOLDING IN UNITED STATES v. STRINGFELLOW, 32
M.J. 335 (C.M.A. 1991), IN CASES WHERE AN ACCUSED IS CHARGED WITH KNOWING
INGESTION OF A CONTROLLED SUBSTANCE AND IS SEPARATELY CHARGED WITH THE
SIMULTANEOUS, BUT UNKNOWING, INGESTION OF ANOTHER CONTROLLED SUBSTANCE.
No. 04-0555/AF. U.S. v.
Christopher D. DEISHER. CCA 35143. Review granted on the
following issue specified by the Court:
WHETHER PLAIN ERROR OCCURRED UNDER UNITED STATES
v. NEW, 55 M.J. 95 (C.A.A.F. 2001), WHEN THE MILITARY JUDGE, CONTRARY TO
THE DEFENSE REQUEST, SUBMITTED THE QUESTION OF THE LAWFULNESS OF THE DISOBEYED
ORDER TO THE MEMBERS.
No. 04-0563/AF. U.S. v. Wayne
G. AUGSPURGER. CCA S30222. Review granted on the
following issue:
WHETHER, IN LIGHT OF UNITED STATES v. WALTERS,
58 M.J. 391 (C.A.A.F. 2003), THE AIR FORCE COURT ERRED IN AFFIRMING APPELLANT'S
CONVICTION FOR WRONGFULLY USING MARIJUANA WHERE THE MEMBERS DID NOT SPECIFY THE
INSTANCE OF USE THAT FORMED THE BASIS OF THEIR FINDING.
PETITIONS FOR GRANT OF REVIEW FILED
No. 03-0394/AF. U.S. v. Hector R. GONZALEZ,
Jr. CCA 34691.*/
No. 05-0034/AR. U.S. v. Jose
R. ROSA-GOMEZ.
CCA 20000165.
No. 05-0035/AF. U.S. v. Mark
GIBSON.
CCA 35150.
No. 05-0036/AF. U.S. v. Arthur
B. HEATH.
CCA 35201.
No. 05-0037/AR. U.S. v. Eric
J. PETERSON.
CCA 20020897.
____________
*/ Second petition filed in this case.
DAILY JOURNAL
No. 05-009
Thursday,
October 14, 2004
APPEALS - SUMMARY DISPOSITIONS
No. 04-0120/AR. U.S. v.
George R. LITTERAL. CCA 20011191. On consideration of
the granted issue, 59 M.J. 344 (C.A.A.F. 2004), and in light of this Court’s
decision in United States v. Felder, 59 M.J. 444 (C.A.A.F. 2004), it is
ordered that the decision of the United States Army Court of Criminal Appeals
is affirmed.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0031/MC. U.S. v. Brian
K. CATCHINGS.
CCA 85 2172.
No. 05-0032/NA. U.S. v. Joseph
E. SNYDER.
CCA 200300729.
No. 05-0033/MC. U.S. v.
Michael T. SIRK.
CCA 200301084.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No. 05-8001/AR. United States, Appellee, v. Ivan L.
FREDERICK, Appellant. CCA 20040937.
Writ-appeal petition is denied without prejudice to Appellant’s right to raise
the matter asserted in the petition during the course of normal appellate
review.
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 05-8004/AR. United States, Appellee, v. Edward
GOODWIN, Appellant. CCA 20040826.
Writ-appeal petition for review of the United States Army Court of Criminal
Appeals decision on application for extraordinary relief was filed under Rule
27(b) on September 20, 2004, and placed on the docket this date.
INTERLOCUTORY ORDERS
No. 03-0403/NA. U.S. v. Robert
F. BRINTON.
CCA 200001971. Motion filed by Karen L. Hecker,
Esquire, to withdraw as appellate defense counsel granted.
No. 03-0678/AR. U.S. v. John
H. STEBBINS.
CCA 20000497. Motion filed by Karen L. Hecker,
Esquire, to withdraw as appellate defense counsel granted.
No. 04-0513/MC. U.S. v. Wayne
D. MCKENZIE.
CCA 200101937. Motion filed by Karen L. Hecker,
Esquire, to withdraw as appellate defense counsel granted.
No. 04-0765/AR. U.S. v. John
P. DAUM.
CCA 20010683. Appellant's motion to extend time
to file supplement to petition for grant of review granted to November
17, 2004.
DAILY JOURNAL
No. 05-008
Wednesday,
October 13, 2004
HEARINGS
No. 04-0042/AR. U.S. v.
Shapour MEGHDADI.
CCA 20000029.
No. 04-0208/AR. U.S. v. Keith
L. WILLIAMS, Jr.
CCA 20020327.
No. 04-0216/AF. U.S. v. Carl
L. KEY.
CCA 34965.
No. 04-0382/AF. U.S. v.
Patrick A. MIZGALA. CCA 34822.
APPEALS - SUMMARY DISPOSITIONS
No. 04-0494/AF. U.S. v.
Stephen J. DODGE. CCA 34870. On consideration of
Appellant’s petition for grant of review, and in light of this Court’s decision
in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition
is granted on the following issue:
WHETHER APPELLANT’S GUILTY PLEA TO POSSESSING CHILD
PORNOGRAPHY UJNDER 18 U.S.C. § 2252A MUST BE SET ASIDE BECAUSE IT WAS 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 as to
Specification 1 of the Additional Charge and the sentence is reversed, but is
affirmed in all other respects. The finding of guilty of Specification 1 of
the Additional Charge and the sentence are set aside. The record of trial
is returned to the Judge Advocate General of the Air Force for remand to the
Court of Criminal Appeals. That court may either dismiss Specification 1
of the Additional Charge and reassess the sentence based on the affirmed guilty
findings or order a rehearing. [See also ORDERS GRANTING PETITION FOR
REVIEW this date.]
CRAWFORD,
Chief Judge (dissenting): As to the reversal concerning Specification 1
of the Additional Charge, I dissent for the reasons set forth in my separate
opinion in United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003)
(Crawford, C.J., dissenting).
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0494/AF. U.S. v.
Stephen J. DODGE. CCA 34870. [See
also APPEALS – SUMMARY DISPOSITIONS this date.]
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0438/AF. U.S. v.
Charles N. SOLLMANN. CCA 35041.
No. 04-0538/AF. U.S. v. Edward
A. BARKLEY II.
CCA S30142.
No. 04-0557/AF. U.S. v. Samuel
D. MIRACLE.
CCA 35002.
No. 04-0594/AF. U.S. v. Robert
L. FRENCH.
CCA S30183.
No. 04-0610/AF. U.S. v. Wayne
E. DANIELS.
CCA 35642.
No. 04-0640/AF. U.S. v.
Christopher K. WARE. CCA S30453.
No. 04-0641/AF. U.S. v. Juan
J. JARVIS.
CCA S30226.
No. 04-0675/AF. U.S. v. Sean
M. MOHONEY.
CCA 35330.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0028/AR. U.S. v. Carl
M. EVANS.
CCA 20040238.
No. 05-0029/AR. U.S. v. William E. PITRE, III. CCA 20010258.
No. 05-0030/AR. U.S. v.
Gabriel C. DURAN.
CCA 20011052.
INTERLOCUTORY ORDERS
No. 04-0685/AR. U.S. v. Adam
R. COOK.
CCA 20010400. Appellant's second
motion to extend time to file supplement to petition for grant of review
granted up to and including November 15, 2004; and absent
extraordinary circumstances, no further extension of time will be granted in
this case.
No. 04-0758/AR. U.S. v. Ricky
G. THOMAS.
CCA 20040388. Appellant's motion to extend time
to file supplement to petition for grant of review granted to November
1, 2004.
DAILY JOURNAL
No. 05-007
Tuesday,
October 12, 2004
HEARINGS
No. 03-0638/CG. U.S. v.
William E. DATZ.
CCA 001-69-01.
No. 04-0252/AR. U.S. v.
Michael E. BODKINS. CCA 20010107.
No. 04-5004/AR. U.S. v.
Charles E. SINGLETON. CCA 20010376.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0500/AR. U.S. v.
Kristina L. COSSICH. CCA 20020856.
No. 04-0600/AR. U.S. v. Jason
E. RUDIN.
CCA 20031287.
No. 04-0649/NA. U.S. v. Damon
D. MUNGIN.
CCA 200301154.
No. 04-0653/AR. U.S. v. Larry
K. HAGUE, Jr.
CCA 20021413.
No. 04-0657/NA. U.S. v. David
L. ROBERTS.
CCA 200301353.
No. 04-0678/AR. U.S. v. Ronnie
C. CARPENTER.
CCA 20020894.
No. 04-0679/AR. U.S. v.
Darlene N. MARTINEZ. CCA 20040071.
No. 04-0680/AR. U.S. v.
Michael E. NISSEL.
CCA 20030630.
No. 04-0684/AR. U.S. v. Miles
E. ABRAHAM.
CCA 20031282.
No. 04-0688/NA. U.S. v. Rafael
L. CENTENERA.
CCA 200400183.
No. 04-0694/NA. U.S. v. John
J. STEPHENS.
CCA 200301649.
No. 04-0697/AR. U.S. v. Jose
M. BONILLA RAMIREZ. CCA 20040155.
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0024/AR. U.S. v.
Michael T. BILLADEAU. CCA 20020876.
No. 05-0025/AR. U.S. v.
Fernando JAUREGUI.
CCA 20030289.
No. 05-0026/AR. U.S. v. Eric
L. BARNETT.
CCA 20031259.
No. 05-0027/NA. U.S. v.
Ferland D. ANTWINE. CCA 200300327.
INTERLOCUTORY ORDERS
No. 04-0042/AR. U.S. v.
Shapour MEGHDADI.
CCA 20000029. Appellee's motion to correct
errata granted.
No. 04-0741/MC. U.S. v.
Clayton J. McALEES. CCA 200301664. Appellant's
motion to extend time to file supplement to petition for grant of review
granted to November 12, 2004.
No. 04-0756/MC. U.S. v. David
E. FISCHER.
CCA 200200303. Appellant's motion to extend time
to file supplement to petition for grant of review granted to November
12, 2004.
DAILY JOURNAL
No. 05-006
Friday,
October 08, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0015/AR. U.S. v.
Michael A. SHIFFLETT. CCA 20000881.
No. 05-0016/AF. U.S. v. Reggie
L. BERRY.
CCA 35168.
No. 05-0017/AF. U.S. v.
Jacqueline V. CHESTER. CCA 35853.
No. 05-0018/AF. U.S. v.
Nicholas S. HACKLER. CCA S30586.
No. 05-0019/AF. U.S. v. Brian
C. HILLS.
CCA 35732.
No. 05-0020/AF. U.S. v. Brandt
P. MELERINE.
CCA 35764.
No. 05-0021/AF. U.S. v. Rachel
K. MONJURE.
CCA S30561.
No. 05-0022/AF. U.S. v. Terry
E. NORTHINGTON.
CCA 35667.
No. 05-0023/AF. U.S. v. Alan
M. SKLENCHAR.
CCA 35793.
DAILY JOURNAL
No. 05-005
Thursday,
October 07, 2004
HEARINGS
No. 04-0081/AF. U.S. v. Mathew
P. SCHEURER.
CCA 34866. */
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 05-8003/AR. Donald Moore PRESTON, Petitioner, v. United States, Respondent. Petition
for extraordinary relief was filed under Rule 27(a) on September
28, 2004,
and placed on the docket this date.
_____________
*/ Hearing held at the Harvard Law
School, Cambridge, Massachusetts, as part of the Court’s “Project Outreach”
Program.
DAILY JOURNAL
No. 05-004
Wednesday,
October 06, 2004
HEARINGS
No. 03-0647/AR. U.S. v. Ray T.
LEAK.
CCA 20000356.*/
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0012/AR. U.S. v. David
S. SWEETING.
CCA 20020720.
No. 05-0013/AR. U.S. v. Louis
S. LOPEZ.
CCA 20010994.
No. 05-0014/MC. U.S. v.
Michael G. SHRUM, II. CCA 200300224.
MISCELLANEOUS DOCKET - FILINGS
Misc. No. 05-8001/AR. United States, Appellee, v. Ivan L. FREDERICK,
Appellant. CCA 20040937. Writ-appeal
petition for review of the United States Army Court of Criminal Appeals
decision on application for extraordinary relief was filed under Rule 27(b) on
September 30, 2004, and placed on the docket this date.
Misc. No. 05-8002/AR. William J. KREUTZER, Jr.,
Petitioner, v. United States,
Respondent.
CCA 20040953. Petition for extraordinary relief
in the nature of a writ of mandamus was filed under Rule 27(a) on September 29,
2004, and placed on the docket this date.
INTERLOCUTORY ORDERS
No. 04-0348/AR. U.S. v. Justin
L. BROOKS.
CCA 20000901. Appellee's motion to extend time
to file answer to the final brief granted, but only up to and including October 20, 2004; and absent
extraordinary circumstances, no further extension of time will be granted in
this case.
No. 04-0662/MC. U.S. v.
Michael J. YUNGEN.
CCA 200301752. Appellant's second
motion to extend time to file supplement to petition for grant of review
granted, but only up to and including October
25, 2004; and absent extraordinary circumstances, no further
extension of time will be granted in this case.
No. 04-0729/AR. U.S. v. Pedro
S. RAMIREZ.
CCA 20021445. Appellant's motion to extend time
to file supplement to petition for grant of review granted to November
3, 2004.
INTERLOCUTORY ORDERS
No. 04-0734/NA. U.S. v. Thomas
J. SMITH.
CCA 200201003. Appellant's motion to extend time
to file supplement to petition for grant of review granted to November
3, 2004.
_____________
*/ Hearing held at the Vermont Law
School, South Royalton, Vermont, as part of the Court’s “Project Outreach”
Program.
DAILY JOURNAL
No. 05-003
Tuesday,
October 05, 2004
HEARINGS
No. 03-0694/AR. U.S. v.
Darrell L. SHELTON. CCA 9900816.*/
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0011/AR. U.S. v.
Jermaine R. LOWE.
CCA 20030568.
_____________
*/ Hearing held at the Franklin Pierce
Law Center, Concord, New Hampshire, as part of the Court’s “Project Outreach”
Program.
DAILY JOURNAL
No. 05-002
Monday,
October 04, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0004/AR. U.S. v.
Kimberly E. DOBSON. CCA 20000098.
No. 05-0005/AR. U.S. v. Joshua
R. TODD.
CCA 20040472.
No. 05-0006/AR. U.S. v. Ruben
MALDONADO.
CCA 20010048.
No. 05-0007/AR. U.S. v.
Derrick L. MIVENS.
CCA 20021314.
No. 05-0008/AR. U.S. v. Diego
M. TOROMARCA.
CCA 20040471.
No. 05-0009/NA. U.S. v.
Suzanne M. SCLAFINI. CCA 200201800.
No. 05-0010/MC. U.S. v. Amy L.
HOLDERMAN.
CCA 200301880.
DAILY JOURNAL
No. 05-001
Friday,
October 01, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0001/NA. U.S. v.
Garrick O. STEWART. CCA 200400312.
No. 05-0002/MC. U.S. v.
Jonathan S. CAMPBELL. CCA 200400559.
No. 05-0003/AF. U.S. v. Justin
T. WEST.
CCA S30256.
INTERLOCUTORY ORDERS
In
the Matter of the 2004 Term of Court, it is ordered that the following cases
heard during the 2004 Term of Court, are hereby carried over from the 2004 Term
of Court to the 2005 Term of Court:
United States v. Martinelli, No. 02-0623/AR
Loving v. United States, No. 03-8007/AR
No. 04-5005/NA. United
States, Appellant/Cross-Appellee,
v. Todd R. FORBES, Appellee/Cross-Appellant. CCA
9901454. Cross-Appellant's motion to extend time to file final
brief granted up to and including November 15, 2004; and absent
extraordinary circumstances, no further extension of time will be granted in
this case.
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