UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-243
APPEALS - SUMMARY
DISPOSITIONS
No. 03-0518/MC.
WHETHER THE
The decision of
the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for a new review
pursuant
to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c)
(2000),
before a panel comprised of judges who have not previously participated
in this
case. [See also ORDERS GRANTING PETITION
FOR REVIEW this date.]
No. 03-0538/MC.
WHETHER THE
The decision of
the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for a new review
pursuant
to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c)
(2000),
before a panel comprised of judges who have not previously participated
in this
case. [See also ORDERS GRANTING PETITION
FOR REVIEW this date.]
No. 03-0588/NA.
WHETHER THE
The decision of
the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for a new review
pursuant
to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c)
(2000),
before a panel comprised of judges who have not previously participated
in this
case. [See also ORDERS GRANTING PETITION
FOR REVIEW this date.]
No. 03-0591/NA.
WHETHER THE
The decision of
the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for a new review
pursuant
to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c)
(2000),
before a panel comprised of judges who have not previously participated
in this
case. [See also ORDERS GRANTING PETITION
FOR REVIEW this date.]
No. 04-0069/MC.
No. 04-0219/MC.
WHETHER THE
The decision of
the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for a new review
pursuant
to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c)
(2000),
before a panel comprised of judges who have not previously participated
in this
case. [See also ORDERS GRANTING PETITION
FOR REVIEW this date.]
No. 04-0350/MC.
WHETHER THE
The decision of
the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for a new review
pursuant
to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c)
(2000),
before a panel comprised of judges who have not previously participated
in this
case. [See also ORDERS GRANTING PETITION
FOR REVIEW this date.]
No. 04-0372/MC.
WHETHER THE
The decision of
the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for a new review
pursuant
to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c)
(2000),
before a panel comprised of judges who have not previously participated
in this
case. [See also ORDERS GRANTING PETITION
FOR REVIEW this date.]
No. 04-0442/AF.
WHETHER
APPELLANT'S
CONVICTION FOR RECEIVING AND POSSESSING CHILD PORNOGRAPHY UNDER 18
U.S.C. §
2252A MUST BE SET ASIDE.
The decision of
the United
States Air Force Court of Criminal Appeals as to Specifications 1 and 2
of the
Charge and the sentence is reversed, but is affirmed in all other
respects. The findings of guilty of
Specifications 1 and 2 of the 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
Specifications 1 and 2 of the 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): I dissent from the
order setting aside
Specifications 1 and 2 of the Charge 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).
No. 04-0464/AF.
No. 04-0491/AR.
WHETHER THE
UNITED STATES
ARMY 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.
The decision of
the United
States Army Court of Criminal Appeals and the convening authority’s
action 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 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. ___
(Daily
Journal July 21, 2004) (Crawford, C.J., dissenting).
No. 04-0509/AF.
WHETHER
THE UNITED STATES 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.
The decision of
the United
States Air Force Court of Criminal Appeals and the convening
authority’s action
are set aside. 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. ___
(Daily
Journal July 21, 2004) (Crawford, C.J., dissenting).
ORDERS GRANTING
PETITION FOR REVIEW
No. 03-0518/MC.
No. 03-0538/MC.
No. 03-0588/NA.
No. 03-0591/NA.
No. 04-0219/MC.
No. 04-0350/MC.
No. 04-0372/MC.
No. 04-0442/AF.
No. 04-0464/AF.
No. 04-0491/AR.
No. 04-0509/AF.
PETITIONS FOR GRANT
OF REVIEW DENIED
No. 04-0339/NA.
No. 04-0602/NA.
PETITIONS FOR GRANT
OF REVIEW FILED
No. 04-0801/MC.
No. 04-0802/MC.
____________
*/
It is directed that the promulgating order be corrected
to
reflect that Appellant was found guilty of the Specification of the
Charge by
exceptions and substitutions in accordance with his pleas.
--------------------------------------------
ANNOUNCEMENT
by the
CLERK OF THE COURT
of the
CUMULATIVE SUMMARY OF
COURT WORKLOAD STATISTICS
FOR THE OCTOBER 2004 TERM OF
COURT
I.
CUMULATIVE PENDING
Master Docket ..............................
49
Petition Docket ............................ 171
Miscellaneous Docket ....................... 4
TOTAL ......................................
224
ii. CUMULATIVE FILINGS
Master Docket .............................. 136
Petition Docket ............................ 802
Miscellaneous Docket ....................... 29
TOTAL ......................................
967
III. CUMULATIVE TERMINATIONS
Master Docket .............................. 134
Petition Docket ............................ 758
Miscellaneous Docket ....................... 27
TOTAL ......................................
919
IV. CUMULATIVE PENDING
Master Docket ..............................
51*/
Petition Docket ............................ 215
Miscellaneous Docket ....................... 6
TOTAL ......................................
272
___
*/ Comparative Master
Docket figures for
the past 10 years are: 49 (FY03); 50 (FY02); 60 (FY01); 70 (FY00); 77
(FY99);
105 (FY98); 289 (FY97); 73 (FY96); 105 (FY95); 119 (FY94).
V.
CASES ON MASTER DOCKET
CARRIED OVER TO
OCTOBER 2005
TERM OF COURT
AWAITING ORAL ARGUMENT OR
FINAL DISPOSITION (40)
98-0497/NA -
00-0679/AR - BEST
02-0623/AR - MARTINELLI
03-0223/AF -
03-0256/AR – BOWLEY
03-0270/AF – POLFLIET, Jr.
03-0293/AF - MARTENS
03-0382/AR -
03-0454/AF - ALLEN
03-0589/AR - BODIN
03-0635/MC - HALL
03-0638/CG - DATZ
03-0646/AR - FARLEY
03-0647/AR - LEAK
03-0655/MC - STROTHER
03-0694/AR -
04-0042/AR - MEGHDADI
04-0081/AF - SCHEURER
04-0119/AF - WARNER
04-0120/AR - LITTERAL
04-0140/AR - ASBURY
04-0145/AF - REEVES
04-0208/AR – WILLIAMS, Jr.
04-0216/AF - KEY
04-0217/AF –
04-0218/MC -
04-0238/AF - HARRIS
04-0240/AR - BERRY
04-0241/AF – MOSES
04-0250/AR - SCALO
04-0252/AR - BODKINS
04-0284/AF – JAMES
04-0291/AR - CANO
04-0295/AR - McNUTT
04-0340/MC - BAIER
04-0348/AR – BROOKS
04-0382/AF - MIZGALA
04-5002/AF - CARTER
04-5004/AR – SINGLETON
04-5006/AR - KREUTZER
AWAITING BRIEFS (11)
02-0060/MC - JONES
03-0568/AR -
03-0678/AR - STEBBINS
04-0178/AR – SAINTAUDE, Jr.
04-0359/AR -
04-0392/AF – GRIGGS
04-0433/AF - STARGELL
04-0465/AF - FLETCHER
04-0480/AF - SONEGO
04-0540/AF - BARRIER
04-5005/NA - FORBES
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-242
APPEALS - SUMMARY
DISPOSITIONS
No. 03-0403/NA.
No. 03-0515/NA.
No. 03-0578/NA.
No. 03-0613/MC.
No. 04-0067/MC.
No. 04-0090/MC.
No. 04-0177/NA.
PETITIONS FOR GRANT
OF REVIEW DENIED
No. 04-0482/AF.
No. 04-0577/AR.
No. 04-0637/AR.
No. 04-0638/AR.
No. 04-0659/AR.
No. 04-0667/AF.
No. 04-0682/AF.
No. 04-0690/AR.
No. 04-0702/AR.
PETITIONS FOR GRANT
OF REVIEW FILED
No. 04-0797/AR.
No. 04-0798/MC.
No. 04-0799/NA.
No. 04-0800/AF.
INTERLOCUTORY
ORDERS
No. 03-0568/AR.
No. 04-0615/MC.
No. 04-0724/AR.
No. 04-0728/AR.
No. 04-0800/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-241
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0586/MC.
No.
04-0587/AR.
No.
04-0590/NA.
No.
04-0609/CG.
No.
04-0628/MC.
No.
04-0630/AR.
No.
04-0632/MC.
No.
04-0645/MC.
No.
04-0652/NA.
No.
04-0672/AR.
INTERLOCUTORY ORDERS
No.
03-0678/AR.
No.
04-0291/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-240
PETITIONS FOR GRANT OF REVIEW FILED
No.
01-0653/AF.
No.
04-0791/AR.
No.
04-0792/AR.
No.
04-0793/AR.
No.
04-0794/AF.
No.
04-0795/AF.
No.
04-0796/NA.
__________
*/
Second
petition filed in this case.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-239
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0784/AF.
No.
04-0785/AF.
No.
04-0786/AF.
No.
04-0787/AF.
No.
04-0788/AF.
No.
04-0789/AF.
No.
04-0790/AF.
INTERLOCUTORY ORDERS
No.
03-0694/AR.
No.
04-0683/MC.
No.
04-0715/AR.
No.
04-0717/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-238
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 04-8029/NA.
Reginold D. ALLISON, Petitioner, v. The
Judge
Advocate General of the Navy and
CRAWFORD,
Chief Judge (dissenting): See my dissent
in Toohey v. United States,
60 M.J. 100
(C.A.A.F. 2004).
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-237
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0783/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-236
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
04-6002/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0782/AR.
INTERLOCUTORY ORDERS
No.
98-0497/NA.
No.
04-0591/NA.
No.
04-0698/MC.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-235
APPEALS - SUMMARY DISPOSITIONS
No. 02-0065/AF.
WHETHER
PROSECUTION UNDER ARTICLE 125 VIOLATES SUBSTANTIVE DUE PROCESS BY
UNFAIRLY
INFRINGING ON SERVICEMEMBERS’ FUNDAMENTAL RIGHT TO PRIVACY.
ALSO WHETHER PROSECUTION UNDER ARTICLE 125
FOR PRIVATE CONSENSUAL NON-COMMERCIAL SODOMY VIOLATES A STATUTORILY
ESTABLISHED
ZONE OF PRIVACY WITHOUT A COMPELLING GOVERNMENT INTEREST.
WHETHER
APPELLANT'S PLEA OF
GUILTY TO POSSESSING AND TRANSPORTING CHILD PORNOGRAPHY UNDER 18 U.S.C.
§ 2252A
IS IMPROVIDENT BECAUSE CONVICTION UNDER SAID STATUTE VIOLATES THE FIRST
AMENDMENT’S GUARANTEE OF FREE SPEECH AND BECAUSE THE PHRASES “APPEARS
TO BE”
AND “CONVEYS THE IMPRESSION” IN THE STATUTE MAKE IT UNCONSTITUTIONALLY
VAGUE
AND OVERBROAD.
In terms
of Appellant’s challenge to his conviction for possessing and
distributing
child pornography, it is ordered that specifications 1 and 2 of Charge
III are
amended to read as follows:
In that SECOND
LIEUTENANT
RYAN W. DAVIS, United States Air Force, Detachment 1, 325th
Fighter
Wing, Pensacola Naval Air Station, Pensacola, Florida, did at or near
Pensacola, Florida, on or about 15 December 1997, knowingly possess
images of
child pornography that had been transported in interstate commerce;
in
violation of Title 18, United States Code, § 2252A(a)(5)(B).
In that SECOND
LIEUTENANT
RYAN W. DAVIS, United States Air Force, Detachment 1, 325th
Fighter
Wing, Pensacola Naval Air Station, Pensacola, Florida, did in the
continental
United States between on or about 16 October 1997 and on or about 16
October
1997, knowingly distribute by computer child pornography that had
been
transported in interstate commerce; in violation of Title 18, United
States
Code, § 2252A(a)(2)(A).
The
decision of the United States Air Force Court of Criminal Appeals is
affirmed
as to Charge III and its specifications as amended, as well as to the
remaining
Charges, specifications, and the sentence.
[See also ORDERS GRANTING PETITION FOR REVIEW this date.]
No. 02-0233/AF.
WHETHER,
IN LIGHT OF ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 234
(2002), THE
APPELLANT’S GUILTY PLEA IS IMPROVIDENT.
Specification 1
of the Charge is amended to read as
follows:
In that TECHNICAL
SERGEANT
DALE P. KEYSER, United States Air Force, 93rd Maintenance Squadron,
Robins Air
Force Base, Georgia, did, at Robins Air Force Base, Georgia, on or
about 16
April 1999, knowingly receive child pornography that had been
mailed,
shipped, or transported in interstate or foreign commerce by any means
including computer, in violation of Title 18, United States Code, §
2252(a)(2)(A).
The
decision of the United States Air Force Court of Criminal Appeals is
affirmed
as to the Charge and specification 1 as amended, as well as to the
sentence. [See also ORDERS GRANTING
PETITION FOR REVIEW this date.]
No. 02-0844/AF.
WHETHER THE
FINDINGS OF
GUILTY IN THIS CASE CAN BE AFFIRMED IN LIGHT OF ASHCROFT v. FREE
SPEECH
COALITION, 535 U.S. 234 (2002).
Specifications 1
and 2 of the Charge are amended to
read as follows:
In that AIRMAN
FIRST CLASS
JASON PATRICK APPELDORN, United States Air Force, 90th Transportation
Squadron,
did, at or near Francis E. Warren Air Force Base, Wyoming, on divers
occasions
between on or about 1 July 2000 and on or about 31 August 2000,
knowingly
receive twenty-two computer images of child pornography that were
transported in interstate commerce, in violation of Title 18, United
States
Code, § 2252(a)(2)(A).
In that AIRMAN
FIRST CLASS
JASON PATRICK APPELDORN, United States Air Force, 90th Transportation
Squadron,
did, at or near Francis E. Warren Air Force Base, Wyoming, on or about
4
January 2001, knowingly possess nineteen pages of printed computer
images of
child pornography that were transported in interstate commerce, in
violation
of Title 18, United States Code, § 2252(a)(5)(B).
The
decision of the United States Air Force Court of Criminal Appeals is
affirmed
as to the Charge and its specifications as amended, as well as to the
sentence. [See also ORDERS GRANTING
PETITION FOR REVIEW this date.]
No. 04-0188/AF.
WHETHER
APPELLANT’S
CONVICTION FOR POSSESSING CHILD PORNOGRAPHY UJNDER 18 U.S.C. § 2252A IS
VOID
BECAUSE APPELLANT CANNOT BE CONVICTED OF POSSESSING IMAGES THAT “APPEAR
TO BE”
OR “CONVEY THE IMPRESSION OF BEING” MINORS AND BECAUSE THE GOVERNMENT
DID NOT
PRESENT PROOF BEYOND A REASONABLE DOUBT THAT THE ALLEGED PERSONS
DEPICTED IN
THE IMAGES WERE ACTUAL CHILDREN.
The decision
of the United States Air Force Court of Criminal Appeals as to
specification 1
of Charge I and the sentence is reversed, but is affirmed in all other
respects. The finding of guilty of
specification 1 of Charge I 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 Charge I 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 (concurring in part,
dissenting in part): I would affirm the
findings of specification 1 of Charge I based on my dissent in United
States
v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003) (Crawford, C.J.
dissenting). Thus, I would affirm the
sentence.
ORDERS GRANTING PETITION FOR REVIEW
No. 02-0065/AF.
No. 02-0233/AF.
No. 02-0844/AF.
No. 04-0188/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0777/AR.
No. 04-0778/AR.
No. 04-0779/AR.
No. 04-0780/AR.
No. 04-0781/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-234
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0458/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0768/AF.
No.
04-0769/AF.
No.
04-0770/AF.
No.
04-0771/AF.
No.
04-0772/AF.
No.
04-0773/AF.
No.
04-0774/AF.
No.
04-0775/AF.
No.
04-0776/AF.
PETITIONS FOR NEW TRIAL DENIED
No.
01-0664/AR.
MANDATES ISSUED
No.
01-0664/AR.
No.
02-0885/AF.
No.
97-0299/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-233
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0402/MC.
No.
04-0542/MC.
No.
04-0571/AF.
No.
04-0581/AR.
No.
04-0589/AR.
No.
04-0613/AR.
No.
04-0616/NA.
No.
04-0619/MC.
No.
04-0626/NA.
No.
04-0633/NA.
No.
04-0634/NA.
No.
04-0643/NA.
No.
04-0644/NA.
No.
04-0648/AR.
No.
04-0661/AR.
No.
04-0663/MC.
No.
04-0686/AR.
No.
04-0709/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0765/AR.
No.
04-0766/AR.
No.
04-0767/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-232
ORDERS GRANTING PETITION FOR REVIEW
No. 04-5005/NA.
WHETHER
THE COURT OF CRIMINAL APPEALS ERRED IN ADDRESSING THE ISSUE OF FACTUAL
AND
LEGAL SUFFICIENCY OF THE EVIDENCE IN LIGHT OF ITS DECISION TO REVERSE
ON AN
INSTRUCTIONAL ERROR TO THE MEMBERS.
It is
further ordered by the Court that the hearing notice dated
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0286/AR.
No. 04-0345/AF.
No. 04-0492/AF.
No. 04-0528/AF.
No. 04-0565/MC.
No. 04-0596/AF.
No. 04-0605/MC.
No. 04-0617/NA.
No. 04-0621/NA.
No. 04-0631/MC.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No. 04-0502/AR.
No. 04-0710/NA.
No. 04-0712/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0762/AR.
No. 04-0763/AF.
No. 04-0764/MC.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
04-8028/NA.
Peter T. COSBY, Petitioner, v.
INTERLOCUTORY ORDERS
No. 02-0060/MC.
No. 04-0250/AR.
No. 04-0606/AF.
No. 04-0679/AR.
No. 04-0685/AR.
No. 04-0700/AF.
No. 04-5005/NA.
No. 04-8025/NA.
Wade L. WALKER, Petitioner, v.
WHETHER UNDER
ARTICLE 66(A),
UCMJ, THE PANEL REVIEWING THE PETITIONER’S
CASE IS
PROPERLY ASSIGNED, AND WHETHER THERE CAN BE TWO CHIEF JUDGES OF THE
NAVY-MARINCE CORPS COURT OF CRIMINAL APPEALS.
It is
further ordered that the above-entitled action be called for hearing at
No. 04-8025/NA.
Wade L. WALKER, Petitioner, v.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-231
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0483/AR.
No.
04-0489/AR.
No.
04-0551/AR.
No.
04-0573/AF.
No.
04-0595/AF.
No.
04-0618/NA.
No.
04-0620/NA.
No.
04-0622/AF.
No.
04-0624/AF.
No.
04-0627/MC.
No.
04-0629/NA.
No.
04-0636/NA.
No.
04-0671/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0761/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-230
APPEALS - SUMMARY DISPOSITIONS
No. 98-0783/NA.
ORDERS GRANTING PETITION FOR REVIEW
No. 98-0783/NA.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0317/CG.
No. 04-0396/AF.
No. 04-0479/AF.
No. 04-0507/AF.
No. 04-0543/AR.
No. 04-0561/AR.
No. 04-0570/AF.
No. 04-0579/CG.
No. 04-0585/AR.
No. 04-0603/MC.
No. 04-0642/NA.
No. 04-0650/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0758/AR.
No. 04-0759/AR.
No. 04-0760/AF.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-229
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0751/AF.
No. 04-0752/AF.
No. 04-0753/AF.
No. 04-0754/MC.
No. 04-0755/MC.
No. 04-0756/MC.
No. 04-0757/NA.
INTERLOCUTORY ORDERS
No. 02-0443/AR.
No. 04-0218/MC.
No. 04-0533/AF.
No. 04-8018/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-228
APPEALS - SUMMARY DISPOSITIONS
No. 01-0786/AF.
No. 03-0092/AR.
In that Private
First Class
Daniel C. Hague-Campbell, U.S. Army, Headquarters Company, United
States Army
Garrison, Ft. Wainwright, Alaska, did at Fort Wainwright, Alaska
knowingly
receive and distribute child pornography that has been mailed, or
shipped or
transported in interstate or foreign commerce by means of a computer
on
divers occasions between 1 October 1999 and 31 March 2000 in
violation of
Title 18, United States Code, § 2252(a)(2)(A).
The
decision of the United States Army Court of Criminal Appeals is
affirmed as to
Charge I and its specification as amended, as well as to the remaining
charge
and its specification and the sentence.
No. 03-0441/NA.
made no reference to
those
portions, however, and focused Appellant on the portions of the statute
subsequently held to be constitutional.
Appellant’s responses were directed toward the portions of the
statute
subsequently held to be constitutional, and there is no substantial
basis in
law and fact for questioning the providence of his guilty plea. O’Connor, 58 M.J.
at
454. Accordingly, said petition
is granted and the decision of the United States Navy-Marine Corps
Court of
Criminal Appeals is affirmed. [See also
ORDERS GRANTING PETITION FOR REVIEW this date.]
No. 03-0467/AR.
WHETHER THE ARMY
COURT OF
CRIMINAL APPEALS ERRED IN UPHOLDING APPELLANT'S CONVICTION UNDER THE
CHILD
PORNOGRAPHY PREVENTION ACT, 18 U.S.C. § 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 (2003).
The
decision of the United States Army Court of Criminal Appeals as to
specifications 7 and 8 of Charge II and the sentence is reversed, but
is
affirmed in all other respects.
The
findings of guilty of specifications 7 and 8 of Charge II and the
sentence are
set aside. The record of trial is
returned to the Judge Advocate General of the Army for remand to the
Court of
Criminal Appeals. That Court may either
dismiss specifications 7 and 8 of Charge II 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 (concurring in part and
dissenting in part): I would affirm the
findings of specifications 7 and 8 of Charge II based on my dissent in United
States v. O’Connor, 58 M.J. 450, 455-59 (C.A.A.F. 2003). Thus, I would also affirm the sentence.
No. 04-0157/AF.
WHETHER
APPELLANT'S
CONVICTION FOR POSSESSING CHILD PORNOGRAPHY IN VIOLATION OF TITLE 18,
UNITED
STATES CODE SECTION 2252A(a)(5)(A), MUST BE SET ASIDE IN LIGHT OF THE
SUPREME
COURT'S DECISION IN ASHCROFT v. FREE SPEECH COALITION.
The decision
of the United States Air Force Court of Criminal Appeals as to the
Additional
Charge and its specification and the sentence is reversed, but is
affirmed in
all other respects. The finding of
guilty of the Additional Charge and its specification 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 the Additional Charge and its specification 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 (concurring in part and
dissenting in part): I would affirm the
Additional Charge and its specification based on my dissent in United
States
v. O’Connor, 58 M.J. 450, 455-59 (C.A.A.F. 2003).
Thus, I would also affirm the sentence.
No. 04-0226/AF.
WHETHER
APPELLANT'S PLEA OF
GUILTY TO AN OFFENSE UNDER 18 U.S.C. § 2252A WAS INVOLUNTARY BECAUSE HE
HAD AN
INCOMPLETE UNDERSTANDING OF THE OFFENSE WHEN THE MILITARY JUDGE
EXPLAINED THE
OFFENSE USING THE UNCONSTITUTIONALLY VAGUE AND OVERBROAD DEFINITIONS OF
CHILD
PORNOGRAPHY CONTAINED IN 18 U.S.C. § 2256.
Specification 9 of Charge II is amended to read as follows:
In that TECHNICAL
SERGEANT
JAY C. JENSEN, United States Air Force, 319th Aircraft
Generation
Squadron, did, within the continental United States, on divers
occasions, between
on or about 20 August 1997 and on or about 2 April 2001, knowingly
possess
materials that contained an image of child pornography; that was
mailed,
shipped or transported in interstate or foreign commerce by any means,
including computer, or were produced using materials mailed, shipped or
transported in interstate or foreign commerce by any means, including
computer,
in violation of Title 18, United States Code, § 2252A(a)(5)(B).
The
decision of the United States Air Force Court of Criminal Appeals is
affirmed
as to Charge II and Specification 9 as amended, as well as to the
remaining
charges and their specifications and the sentence.
[See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
No. 04-0261/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 01-0786/AF.
No. 03-0441/NA.
No. 03-0467/AR.
No. 04-0157/AF.
No. 04-0226/AF.
No. 04-0261/AF.
No. 04-0540/AF.
WHETHER THE
MILITARY JUDGE
ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT WHEN, OVER DEFENSE
OBJECTION, HE GAVE THE “FRIEDMANN INSTRUCTION.”
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0228/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0749/MC.
No. 04-0750/NA.
INTERLOCUTORY ORDERS
No. 01-0786/AF.
No. 04-0600/AR.
MANDATES ISSUED
No. 03-0692/AF.
No. 03-6003/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-227
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0745/AR.
No.
04-0746/NA.
No.
04-0747/NA.
No.
04-0748/MC.
INTERLOCUTORY ORDERS
No.
04-0178/AR.
No.
04-0662/MC.
No.
04-0707/MC.
No.
04-5004/AR.
No.
04-8025/NA.
Wade L. WALKER, Petitioner, v.
DAILY
JOURNAL
No.
04-226
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0735/AR.
No.
04-0736/AR.
No.
04-0737/AR.
No.
04-0738/AR.
No.
04-0739/AF.
No.
04-0740/AF.
No.
04-0741/MC.
No.
04-0742/MC.
No.
04-0743/NA.
No.
04-0744/MC.
DAILY
JOURNAL
No.
04-225
APPEALS - SUMMARY DISPOSITIONS
No. 04-0431/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0431/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0733/MC.
No.
04-0734/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-224
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0568/AR.
WHETHER
THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN UPHOLDING THE
MILITARY JUDGE'S DECISION TO (1) ACCEPT A JEWELER CALLED BY THE
GOVERNMENT AS
AN EXPERT IN "CARTIER WATCH IDENTIFICATION;" (2) ALLOW THAT JEWELER
TO IDENTIFY A WATCH IN A PICTURE AS SOLID GOLD (RATHER THAN GOLD
PLATE); AND
(3) ALLOW THAT JEWELER TO TESTIFY THAT THE WATCH IN ONE PICTURE IS THE
SAME
STYLE AS THE WATCH IN A DIFFERENT PICTURE.
No. 04-0465/AF.
WHETHER THE
CIRCUIT TRIAL COUNSEL'S FINDINGS ARGUMENT WAS
IMPROPER AND MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0498/AF.
No.
04-0537/AR.
No.
04-0568/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0729/AR.
No.
04-0730/AF.
No.
04-0731/AF.
No.
04-0732/NA.
INTERLOCUTORY ORDERS
No.
03-0568/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
04-223
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0727/AR.
No.
04-0728/AR.
PETITIONS FOR RECONSIDERATION DENIED
No.
04-0381/AR.
INTERLOCUTORY ORDERS
No.
04-0591/NA.
No.
04-8025/NA.
Wade L. WALKER, Petitioner, v.