UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-020
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0145/AF.
No.
06-0065/AR.
No.
06-0066/AF.
No.
06-0067/MC.
No.
06-0068/MC.
No.
06-0069/NA.
_______________
*/
Second petition
filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-019
APPEALS - SUMMARY DISPOSITIONS
No. 05-0149/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
02-0048/AF.
No.
05-0510/AF.
No.
06-0053/AF.
No.
06-0054/AF.
No.
06-0055/AF.
No.
06-0056/AF.
No.
06-0057/AF.
No.
06-0058/AF.
No.
06-0059/AF.
No.
06-0060/AF.
No.
06-0061/AF.
No.
06-0062/AF.
No.
06-0063/AF.
No.
06-0064/NA.
PETITIONS FOR RECONSIDERATION DENIED
No.
02-0623/AR.
CRAWFORD,
Judge (dissenting): I would reconsider
this case because of the failure of the majority to consider its global
impact,
including its harm on military families stationed overseas. See United States v. Martinelli,
62 M.J. 52, 77 (C.A.A.F. 2005)(Crawford, J.,
dissenting).
No.
03-0595/AR.
CRAWFORD,
Judge (dissenting): I would reconsider
this case for the reasons set forth in United States v. Martinelli,
62
M.J. 52, 77 (C.A.A.F. 2005)(Crawford, J., dissenting).
No.
04-0264/AR.
CRAWFORD,
Judge (dissenting): I would reconsider
this case based on United States v. Martinelli, 62 M.J. 52, 77
(C.A.A.F.
2005)(Crawford, J., dissenting), and United States v. O’Connor,
58 M.J.
450, 455-59 (C.A.A.F. 2003)(Crawford, C.J., dissenting).
INTERLOCUTORY ORDERS
No.
05-0127/MC.
No.
05-0716/NA.
No.
05-0765/AR.
MANDATES ISSUED
No.
03-0688/NA.
No.
04-0081/AF.
No.
04-0119/AF.
No.
04-0465/AF.
No.
04-0559/AR.
No.
04-0722/AF.
No.
04-0756/MC.
_______________
1/
Third
petition filed in this case.
2/
Second
petition filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-018
APPEALS - SUMMARY DISPOSITIONS
No. 05-0615/NA.
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0420/MC.
WHETHER THE
Briefs will be filed under Rule 25.
No. 05-0478/NA.
WHETHER
APPELLANT'S DUE PROCESS RIGHTS TO TIMELY REVIEW OF
HIS APPEAL HAVE BEEN DENIED.
Briefs will be filed under Rule 25.
No. 05-0500/NA.
WHETHER THE FOUR
AND A HALF YEARS OF APPELLATE DELAY
CONSTITUTED A VIOLATION OF APPELLANT'S CONSTITUTIONAL AND STATUTORY
RIGHT TO A
TIMELY REVIEW WHEN THE CAUSE OF THE DELAY WAS ATTRIBUTABLE TO THE
GOVERNMENT'S
FAILURE TO STRUCTURE A SYSTEM OF APPELLATE REVIEW THAT PRESERVED THOSE
RIGHTS.
Briefs will be filed under Rule 25.
No. 05-0615/NA.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0294/AF.
No.
05-0396/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0052/NA.
INTERLOCUTORY ORDERS
No.
05-0709/NA.
No.
05-0777/MC.
No.
05-8042/NA.
I.
WHETHER THE
MILITARY JUDGE HAS THE AUTHORITY TO REVIEW THE CONVENING AUTHORITY’S
DECISION
PURSUANT TO RULE FOR COURTS-MARTIAL 908(b)(9)
TO
CONFINE APPELLEE PENDING THE OUTCOME OF THE APPEAL BY THE UNITED STATES.
II. IF THE MILITARY
JUDGE CANNOT REVIEW THE CONVENING AUTHORITY’S CONFINEMENT DECISION,
WHAT IS THE
No answers or reply briefs will be filed.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-017
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0564/NA.
WHETHER
APPELLANT WAS DEPRIVED OF A SUBSTANTIVE LEGAL AND FACTUAL REVIEW WHEN
HE DIED
AFTER THE COURT OF CRIMINAL APPEALS AFFIRMED HIS CONVICTION, BUT BEFORE
THE
TIME PERIOD FOR RECONSIDERATION HAD PASSED, IN VIOLATION OF THE UNITED
STATES
CONSTITUTION AND UNITED STATES v. RORIE, 58 M.J. 399 (C.A.A.F.
2003).
No briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0051/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-016
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
RULE 36. FILING OF PLEADINGS
(a)
In general. Pleadings or
other papers relative to a case
shall be filed in the
Clerk’s office, 450 E Street, Northwest,
(b)
Filing in person.
(no change).
(c)
Filing by mail or third-party commercial
carrier.
If
a pleading or other paper is filed by mail, such filing shall consist
of
depositing the pleading or other paper with the United States Postal
Service,
with no less than first-class postage prepaid, properly addressed to
the
Clerk’s office. If a pleading
or other paper is filed through a third-party commercial
carrier, such filing shall consist of delivery to the commercial
carrier for
delivery within 3 calendar days.
(d)
Time of filing. Pleadings
or other papers shall
be
deemed to have been filed on the date they are delivered to the Clerk’s
office
under subsection (b) or on the date they are mailed or
delivered to a commercial carrier under subsection (c). See Rules 37(b)(1)
and 39(e).
(e)
Non-compliant pleadings.
(no change).
[Amended
RULE 39. SERVICE OF PLEADINGS
(a) In
general.
At or
before the filing of any pleading or other paper relative to a case in
the
Clerk’s office, a copy thereof shall be served on all counsel of
record,
including amicus curiae counsel, in person, by mail, by third-party commercial carrier, or by
electronic means if the party being served
consents. See Rule 16(b). When a party is not represented by counsel,
service shall be made on such party in person, by mail, or
by third-party commercial carrier. When
reasonable, considering such factors as
the immediacy of the relief sought, distance, and cost, service must be
at
least as expeditious as the manner used to file the pleading or other
paper
with the Court. See Rule 36.
(b)
Personal service.
(no
change).
(c)
Service by mail. (no
change).
(d)
Service by third-party commercial carrier. If
service is made by a third-party
commercial carrier, it shall be for delivery within 3 calendar days.
(e)
Time of service. Personal service
is complete on delivery. Service by mail
or third-party commercial carrier is complete on mailing or delivery to
the
carrier. Service by electronic means is
complete upon transmission.
(f) Certificate for review.
(no change other
than re-designation of subparagraph).
(g)
Form of certificate of filing and service.
A certificate indicating the specific manner
of filing under Rule 36 and the specific manner of service under this
rule
shall be included in any pleading or other paper substantially in the
following
form:
CERTIFICATE OF
FILING AND
SERVICE
I certify that the original and seven
copies of the foregoing were [delivered] (or) [mailed-specify class] (or) [delivered
to-specify the name of
the third-party commercial carrier-for delivery-specify
within how many days delivery
will be effected] to the Court on
_____________ and that a
(date)
copy
of the foregoing was [delivered] (or) [mailed-specify
class] (or) [delivered to-specify the
name of the third-party commercial carrier-for delivery-specify
within how many days delivery will
be effected] (or) [transmitted by electronic means with the consent
of the
counsel being served-specify the
electronic mail address or facsimile number used] to (enter
specific name of
each
counsel of record or party, if not
represented) on _____________.
(date)
__________________________
(Typed name and
signature
of
certifying person)
__________________________
(Address and
telephone no.
of
certifying person)
[Amended
RULE 21(b)(6):
(6)
A certificate of filing and service in accordance with Rule 39(g).
[Amended
Rule 24(a):
CERTIFICATE OF
FILING AND
SERVICE
I certify that a copy of the foregoing was
[delivered] (or) [mailed-specify class] (or) [delivered to-specify
the name of the third-party
commercial carrier-for delivery and
specify within how many days delivery will be effected] to the
Court
and [delivered] (or) [mailed-specify class]
(or) [delivered to-specify the
name of the third-party commercial carrier-for delivery and
specify within how many days delivery
will be effected] (or) [transmitted by electronic means with
the
consent of
the counsel being served] to
_________________________________________
on ____________.
(email or facsimile
no.)
(date)
Where more than
one counsel
or party is being served, the certificate should specify how each party
or
counsel was served.
__________________________
(Typed name and
signature
of
certifying person)
__________________________
(Address and
telephone no.
of
certifying person)
[Amended October
1, 1987; amended October 30, 1991,
effective November 4, 1991; amended March 3, 1992, effective April 1,
1992;
amended October 12, 1994, effective February 27, 1996; amended January
12,
1998, effective February 2, 1998; amended January 20, 1999, effective
February
1, 1999; amended October 22, 2001, effective November 1, 2001; amended
July 27,
2004, effective October 1, 2004; amended October 25, 2005, effective
January 1,
2006.]
Rule 28(a):
CERTIFICATE OF
FILING AND
SERVICE
I certify that a copy of the foregoing was
[delivered] (or) [mailed-specify class]
(or) [delivered to-specify the
name of the third-party commercial carrier-for delivery and specify within how many days delivery will
be effected] to the Court, [delivered] (or) [mailed-specify class] (or) [delivered to-specify the name of the third-party commercial carrier-for
delivery
and specify within how many days delivery
will be effected] (or) to the [trial or appellate military
judge whose
decision, judgment, or order is the subject of the petition], and
[delivered]
(or) [mailed-specify class] (or)
[delivered to-specify the name of the
third-party commercial carrier-for delivery and
specify within how many days delivery will be effected] (or)
[transmitted by electronic means with the consent of the counsel being
served-specify the electronic mail
address or facsimile number used]
to______________________________,
(email
or facsimile no.)
the
[respondent] [appellee] on __________________.
(date)
__________________________
(Typed name and
signature)
__________________________
(Address and
telephone no.)
[Amended
Rule 32:
CERTIFICATE OF
FILING AND
SERVICE
I certify that a copy of the foregoing was
[delivered] (or) [mailed-specify class]
(or) [delivered to-specify the name of the third-party
commercial carrier-for delivery and
specify within how many days delivery will be effected] to the
Court
and [delivered] (or) [mailed-specify class]
(or) [delivered to-specify the name of the third-party
commercial carrier-for delivery and
specify within how many days delivery will be effected] (or)
[transmitted
by electronic means with
the consent of counsel being served] to
the
[appellant]
[appellee] [petitioner]
[respondent] on
____________.
(date)
__________________________
(Typed name
and signature)
___________________________
(Address and
telephone no.)
[Amended
Rule 34(b):
(b)
Additional time
when service
not made in person service by mail.
Whenever
a party has the right or is required to do some act within a prescribed
period
after the issuance of an order or the filing of a notice, pleading, or
other
paper relative to a case when service thereof is made upon him by mail,
5 days
will be added to the prescribed period if the party upon whom the
service is
made is within the limits of the contiguous 48 States and the District
of
[Amended
Rule 10(a)(3):
(3) a
special docket of the matters arising under Rule 15
concerning complaints of unprofessional conduct against a member of the
Bar of
this Court, and petitions and other
correspondence that are not docketed on another docket, and that are
returned
to the sender.
[Amended
Pursuant to
Rule 45 of the Rules of Practice and Procedure, United States Court of
Appeals
for the Armed Forces, the following person whose term expired on
September 30,
2005, is hereby reappointed this 25th day of October, 2005,
to the
Rules Advisory Committee for a term expiring on September 30, 2008:
Professor
Mary M. Cheh
Mary
T. Hall, Esq., is hereby appointed to replace Mark J. Biros, Esq.,
whose term
expired on
Professor
Peter Bowman Rutledge, is hereby appointed
to replace
Paul J. Larkin, Esq., whose term expired on
The
following members, whose terms expire on the dates indicated below,
remain on
the Rules Advisory Committee:
To
expire on
Hon. Joseph
H. Baum
Captain Carol
J. Cooper,
John F.
DePue, Esq.
Robert H.
Troidl, Esq.
To expire on
Prof. Steven
H. Goldblatt, Chair
Thomas F.
Granahan, Esq.
Matthew S.
Freedus, Esq.
LtCol Theresa
Gallagher,
William
A. DeCicco, Clerk of the Court, is an ex officio member of the
Committee
and serves as its Reporter.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0452/AR.
No.
05-0561/AR.
No.
05-0689/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0045/AR.
No.
06-0046/AR.
No.
06-0047/AR.
No.
06-0048/AR.
No.
06-0049/AR.
No.
06-0050/AR.
INTERLOCUTORY ORDERS
No.
05-0157/NA.
No.
05-0235/NA.
No.
05-0694/NA.
No.
05-0741/NA.
No.
05-0762/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-015
APPEALS - SUMMARY DISPOSITIONS
No. 02-0772/NA.
Accordingly,
on consideration of the petition for grant of review of the decision of
the
United States Navy-Marine Corps Court of Criminal Appeals, it is
ordered that
said petition is granted; that the decision of the Court of Criminal
Appeals is
set aside; and that the case is remanded to that court for an
appropriate
sentence reassessment under the principles contained in Peoples
and Sales. [See also ORDERS
GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 02-0772/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0037/AR.
No.
06-0038/AF.
No.
06-0039/AF.
No.
06-0040/AF.
No.
06-0041/AF.
No.
06-0042/AF.
No.
06-0043/MC.
No.
06-0044/MC.
INTERLOCUTORY ORDERS
No.
05-0127/MC.
No.
05-0260/AF.
No.
05-0260/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-014
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0606/NA.
No.
05-0631/AR.
No.
05-0643/AF.
No.
05-0724/AF.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 06-8001/MC.
Julius LETT, Petitioner, v. The
INTERLOCUTORY ORDERS
No.
02-0513/AR.
No.
03-0072/AF.
WHETHER THE COURT
OF CRIMINAL APPEALS ERRED IN FINDING THAT
“SOME OF THE APPELLANT’S SEXUAL ACTS WITH MM OCCURRED AFTER
Appellee
will file an answer brief within 30 days of the filing of Appellant’s
brief.
No.
05-0752/AR.
No.
05-0757/AR.
No.
05-0758/NA.
MANDATES ISSUED
No.
03-0694/AR.
No.
04-0295/AR.
No.
04-0300/AF.
No.
04-0540/AF.
No.
04-0700/AF.
No.
05-0068/NA.
_______________
1/
It is directed that
the
promulgating order should be corrected to include Specification 6 of
Charge
III.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-013
HEARINGS
No.
04-0428/AF.
No.
05-0103/MC.
No.
05-0117/MC.
No.
05-0403/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0035/AR.
No.
06-0036/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-012
HEARINGS
No.
03-0072/AF.
No.
03-0394/AF.
No.
05-0242/AR.
No.
05-0381/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0034/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-011
INTERLOCUTORY ORDERS
No.
05-0159/AR.
No.
05-0521/MC.
No.
05-0748/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-010
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0545/AF.
WHETHER APPELLANT
WAS DENIED MEANINGFUL CROSS-EXAMINATION OF
GOVERNMENT WITNESSES IN VIOLATION OF HIS SIXTH AMENDMENT RIGHT OF
CONFRONTATION
WHEN THE MILITARY JUDGE REPEATEDLY PREVENTED TRIAL DEFENSE COUNSEL FROM
CONFRONTING THE ALLEGED VICTIM AND OTHER WITNESSES WITH IMPEACHMENT
EVIDENCE
ADMISSIBLE UNDER MIL. R. EVID. 608.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0604/AR.
No.
05-0622/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0030/AR.
No.
06-0031/AR.
No.
06-0032/AR.
No.
06-0033/AR.
PETITIONS FOR RECONSIDERATION DENIED
No.
04-0756/MC.
MANDATES ISSUED
No.
04-0336/AF.
No.
04-0567/AF.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 06-009
APPEALS-SUMMARY DISPOSITIONS
No. 04-0121/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0121/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 05-0400/AR.
No. 05-0593/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 06-0022/AR.
No. 06-0023/AF.
No. 06-0024/AF.
No. 06-0025/AF.
No. 06-0026/AF.
No. 06-0027/AF.
No. 06-0028/AF.
No. 06-0029/AF.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
05-8041/MC.
INTERLOCUTORY ORDERS
No. 03-0072/AF.
No. 05-0165/NA.
No. 05-0172/MC.
No. 05-0287/MC.
No. 05-0381/AF.
No. 05-0460/AR.
No. 05-0622/AR.
No. 05-0735/AR.
UNITED STATES
COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 06-008
ORDERS GRANTING PETITION FOR REVIEW
No. 05-5002/MC.
WHETHER THE
Briefs will be filed under Rule 25.
The hearing notice issued on
PETITIONS FOR GRANT OF REVIEW DENIED
No. 05-0515/AF.
No. 05-0619/NA.
No. 05-0659/AR.
No. 05-0661/AR.
No. 05-0672/AR.
No. 05-0695/AR.
No. 05-0703/AF.
No. 05-0707/MC.
No. 05-0711/AR.
No. 05-0722/AF.
No. 05-0725/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 06-0021/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-007
HEARINGS
No.
04-0470/AR.
No.
04-0606/AF.
No.
04-0797/AR.
No.
05-0101/AF.
APPEALS - SUMMARY DISPOSITIONS
No. 05-0211/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0625/AF.
No.
05-0633/AR.
No.
05-0641/AR.
No.
05-0686/MC.
No.
05-0701/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0019/AR.
No.
06-0020/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-006
HEARINGS
No.
04-0801/MC.
No.
05-0072/MC.
No.
05-0172/MC.
No.
05-0271/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0012/AR.
No.
06-0013/AR.
No.
06-0014/AR.
No.
06-0015/AR.
No.
06-0016/AR.
No.
06-0017/AR.
No.
06-0018/AR.
PETITIONS FOR RECONSIDERATION DENIED
No.
05-8040/AR.
INTERLOCUTORY ORDERS
In the Matter
of the 2005 Term of Court, it is ordered that the following cases,
heard during the 2005 Term of Court or earlier, are hereby carried over
from
the 2005 Term of Court to the 2006 Term of Court:
Loving
v.
Loving
v.
No.
05-0382/NA.
No.
05-0655/NA.
No.
05-0662/NA.
No.
05-0675/AR.
No.
05-5003/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-005
PETITIONS FOR GRANT OF REVIEW FILED
No.
02-0257/AF.
No.
06-0005/AF.
No.
06-0006/AF.
No.
06-0007/AF.
No.
06-0008/AF.
No.
06-0009/AF.
No.
06-0010/AF.
No.
06-0011/AF.
____________
*/
Second petition
filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-004
APPEALS-SUMMARY DISPOSITIONS
No. 05-0408/AR.
WHETHER
THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT
APPELLANT'S PLEA OF GUILTY WAS PROVIDENT IN LIGHT OF UNITED STATES
v.
O'CONNOR, 58 M.J. 450 (C.A.A.F. 2003).
The decision of the United States Army
Court of Criminal Appeals is reversed, and the findings of guilty and
the
sentence are set aside. The record of
trial is returned to the Judge Advocate General of the Army for further
action
consistent with this Court’s decision in O’Connor.
CRAWFORD,
Judge (dissenting):
I dissent for the reasons set forth in United
States v. O’Connor, 58 M.J. 450, 455-57 (C.A.A.F. 2003)(Crawford,
C.J.,
dissenting): (a) Appellant waived the
issue since no motions were made (Ashcroft v. Free Speech Coalition,
535
U.S. 234 (2002)), and (b) the record supports Appellant’s guilty pleas
to
transporting child pornography depicting actual minors.
Pursuant to his pleas, Appellant was
convicted of transporting child pornography in violation of 18 U.S.C. §
2252A(a)(1) (2000) charged as a violation of
Article 134,
Uniform Code of Military Justice, 10 U.S.C. § 934 (2000).
In addition to applying the doctrine of
waiver, O’Connor, 58 M.J. at 455-56, the record fully supports
Appellant’s pleas. After a search of his
residences and vehicle resulted in the seizure of hard drives, floppy
disks,
and videotapes, Appellant
confessed to downloading
and sending
out multiple images of child pornography over a one-year period. The accused stated that specific sites
containing child pornography were www.lolita.com and
www.innocent-angels.com. He also stated
that the image he sent to Detective Wilson, “Juliel,” came from a
chatroom. The accused confessed to
receiving multiple images of adults engaged in sexual intercourse with
children. The accused stored many of the
images he downloaded on his hard drive in “My Documents” under
“Lolitas\Hardcore.” He accessed the
websites named above at least fifty times on various occasions.
Prosecution
Exhibit (P.E.) 3 at ¶8.
Appellant
further discussed his guilty pleas with the military judge:
MJ:
Please tell me what happened.
ACC:
I e-mailed images of minors engaged in sexually explicit
conduct
to other people. I used my home
computer at my house. Some of the images
were sent out of state, via the Internet; and, I did this multiple
times,
sir. I knew that these people were
under the age of 18.
. . .
MJ:
Now, when you sent these images over the Internet, did you know
that the images were child pornography?
ACC: Yes, sir.
MJ:
What--in a general description, what did the images show?
ACC: Sir,
they would show
sometimes a picture of a minor in a nudist beach or a nudist colony all
the way
up to being engaged in actual intercourse with adults, sir.
MJ:
These were all minor girls?
ACC:
All of the pictures on my computer?
MJ:
Well, the ones that you sent over the Internet?
ACC:
Yes, sir.
MJ:
By that, you knew that they were under the age of 18?
ACC: Yes, sir.
. . .
MJ:
Did you have any--did you believe you had any legal
justification
or excuse to send these images over the Internet?
ACC: No, sir, I
did not.
MJ:
So you’re willing to admit to me that these images you sent over
the Internet were child pornography as that has been defined for you
under the
statute?
ACC:
Yes, sir.
MJ:
That is -- some of the images included minors; that is, girls
under the age of 18, engaged in sexually explicit conduct?
ACC:
Yes, sir.
MJ:
Any doubt in your mind that these images you sent on multiple
occasions were, in fact, child pornography as I’ve defined that for you?
ACC:
No, sir, no doubt.
MJ:
And everything that’s contained in the stipulation is, in fact,
correct?
ACC:
Yes, sir.
(emphasis added).
Appellant also stipulated as a matter of
fact that he entered into a chat room called “tied lil ones.” P.E. 3 at ¶4.
“The focus of this [site] was to exchange pictures of child
pornography.”
The colloquy with the military
judge, the stipulation, and a sample of the downloaded pictures
depicting young
children, P.E. 6, support the court below concluding that
Appellant has
not demonstrated a substantial basis in law or fact for questioning the
guilty
plea. In United States v. James,
55 M.J. 297, 300 (C.A.A.F. 2001), we stated:
[I]n the
guilty-plea context, the Government does
not have to introduce evidence to prove the elements of the charged
offense
beyond a reasonable doubt; instead, there need only be “factual
circumstances”
on the record “which ‘objectively’ support” the guilty pleas, i.e., that actual minors were in
appellant’s pictures.
Because this case demonstrates the required
“factual circumstances” even more strongly than James, I must
respectfully dissent. [See also ORDERS
GRANTING PETITION FOR REVIEW this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0408/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0590/AR.
No.
05-0620/AR.
No.
05-0639/MC.
No.
05-0648/AR.
No.
05-0705/AF.
INTERLOCUTORY ORDERS
No.
05-0263/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-003
APPEALS-SUMMARY DISPOSITIONS
No. 02-0937/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 02-0937/AR.
No. 05-0680/MC.
WHETHER THE ORDER
DIRECTING APPELLANT TO RECEIVE ANTHRAX
VACCINE ABSORBED ON
No briefs will be filed under Rule 25.
CERTIFICATES FOR REVIEW FILED
No. 06-5001/AR.
WHETHER
THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND
THAT THE
MISTAKE OF FACT DEFENSE WAS AVAILABLE TO SERGEANT SAMUEL D. ZACHARY
AGAINST A
CHARGE OF INDECENT ACTS WITH A CHILD (ARTICLE 134, UCMJ), WHICH IS
CONTRARY TO
THE HOLDING IN UNITED STATES v. STRODE, 43 M.J. 29 (C.A.A.F.
1995).
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0004/MC.
INTERLOCUTORY ORDERS
No.
05-0563/MC.
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
No.
05-0721/AR.
No.
05-0730/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-002
APPEALS - SUMMARY DISPOSITIONS
No. 05-0523/NA.
WHETHER
THE DELAY IN DOCKETING APPELLANT'S RECORD OF TRIAL WITH THE LOWER COURT
VIOLATED APPELLANT'S RIGHT TO A TIMELY REVIEW UNDER UNITED STATES
v. TOOHEY,
60 M.J. 100 (C.A.A.F. 2004).
The decision of the United States
Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings
and set
aside as to sentence. The case is
returned to the Court of Criminal Appeals for further review in light
of
Appellant’s affidavit of May 26, 2005, and United States v. Oestmann,
61
M.J. 103 (C.A.A.F. 2005), United States v. Jones, 61 M.J. 80
(C.A.A.F.
2005), United States v. Toohey, 60 M.J. 100 (C.A.A.F. 2004), Diaz
v.
Judge Advocate General of the Navy, 59 M.J. 34 (C.A.A.F. 2003); and
United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002).
[See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION FOR REVIEW
No.
05-0523/NA.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
05-0230/AR.
No.
05-0436/AR.
No.
05-0446/AF.
No.
05-0573/AR.
No.
05-0578/AF.
No.
05-0597/AR.
No.
05-0598/AF.
No.
05-0618/NA.
No.
05-0630/AR.
No.
05-0669/NA.
No.
05-0696/NA.
No.
05-0704/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-001
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0001/AR.
No.
06-0002/AR.
No.
06-0003/NA.