UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-185
MISCELLANEOUS DOCKET – SUMMARY DISPOSITIONS
Misc.
No. 06-8018/AR.
Daniel I. TAYLOR, Petitioner, v. The
Judge
Advocate General of the Army and
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 06-8018/AR.
Daniel I. TAYLOR, Petitioner, v. The
Judge
Advocate General of the Army and
INTERLOCUTORY ORDERS
No.
06-0060/AF.
No.
06-0657/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-184
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0724/MC.
No.
06-0725/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-183
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0482/AF.
No.
06-0501/AF.
No.
06-0516/AF.
No.
06-0542/AF.
No.
06-0548/AF.
No.
06-0549/AF.
No.
06-0559/AF.
No.
06-0573/AF.
No.
06-0635/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0721/AR.
No.
06-0722/NA.
No.
06-0723/NA.
INTERLOCUTORY ORDERS
No.
06-0585/AR.
No.
06-0587/AR.
No.
05-0592/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-182
APPEALS – SUMMARY DISPOSITIONS
No. 06-0360/AF.
WHETHER THE
CONVENING AUTHORITY ABUSED HIS DISCRETION WHEN
HE DENIED APPELLANT'S REQUEST TO DEFER AUTOMATIC FORFEITURES UNTIL
ACTION BASED
ON ERRONEOUS LEGAL ADVICE FROM THE STAFF JUDGE ADVOCATE.
The decision of the United States Air Force
Court of Criminal Appeals is set aside, as is the convening authority’s
action. The record of trial is returned
to the Judge Advocate General of the Air Force for remand for a new
staff judge
advocate’s recommendation and convening authority’s action. [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0360/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0412/AR.
No.
06-0487/AR.
No.
06-0519/AR.
No.
06-0527/AR.
No.
06-0538/AR.
No.
06-0582/AR.
No.
06-0602/AR.
No.
06-0612/AR.
INTERLOCUTORY ORDERS
No.
06-0632/AR.
No.
06-0640/AR.
MANDATES ISSUED
No.
04-0797/AR.
____________
1/
It is directed that
the
promulgating order be corrected by adding the following words and
figures to
the end of the summary of Specification 9 following the word “visual:”
“depictions of a minor engaged in sexually explicit conduct in
violation of 18
U.S.C. § 2252A.”
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-181
APPEALS - SUMMARY DISPOSITIONS
No. 04-0699/AF.
CRAWFORD, Judge
(dissenting): I dissent for the reasons
set forth in Judge Baker’s opinion. See
United States v. Brewer, 61 M.J. 425, 439-44 (C.A.A.F. 2005)(Baker, J., dissenting).
BAKER, Judge
(dissenting): On the testimonial issue,
the facts in this case are distinguishable from those in Brewer. Here, defense counsel proffered four
witnesses who:
will testify about
[sic] they
were her roommates and friends. They’ll
testify about [sic] they can account for the majority of time for
Airman Fuller
during this charged timeframe. That they
were living with her, they would go to events with her, that she was
active in
community involvement and that they had direct observation of this
community
involvement. . . .
Further, counsel
proffered that the witnesses would
testify that they did not see Appellant use drugs or appear under the
influence
of drugs, thus offering Appellant an alibi for “specific times during
this
diverse occasions.” The military judge
granted the Government's request to bar the defense from putting on
this
evidence on the ground that “unless the witness has direct contact and
observation of the Accused during the [charged] time frame, or the
entire
[charged] time frame, those are not alibi witnesses.”
United States v. Fuller,
No. ACM 35058, slip op. at 5 (
However, as
stated by the majority in Brewer, when the Government charges
divers use
over a period of time, a witness is not required to have direct and
continuous
contact with the accused over the entire charged period in order to
testify
regarding that contact. Rather, a
witness must have spent substantial and relevant time with the
Appellant. Thus, the military judge erred
as a matter of
law in rejecting Appellant’s alibi proffer.
With respect to
the
instructional issue, I adhere to my position in Brewer finding
no error,
in light of the content and totality of the instructions provided in
Appellant's case. As a result, in
testing whether Appellant suffered material prejudice to a substantial
right or
not, I have considered only the error pertaining to the military
judge′s
exclusion of the defense witnesses.
In the context of
this case,
the error was constitutional in nature, because it prevented Appellant
from
putting on her defense that those persons who saw her most frequently
over a
substantial portion of the charged time frame had not seen her use
cocaine. In this case the scientific
evidence indicated multiple uses of cocaine, up to five times per
month, over a
fifteen-month time period. However,
unlike the majority, I find that in the context of this case, the error
was
harmless beyond a reasonable doubt for the same reasons identified by
the Court
of Criminal Appeals.
Appellant was
charged with
one specification of use on divers
occasions, which
carried the same sentence exposure as if the Government had charged a
single
use. The Government's evidence was
overwhelming. This was not a naked
urinalysis case. Rather the Government's
evidence included the results of a urinalysis test as well as a hair
sample
analysis. Moreover, Appellant took the
stand and in the words of the Court of Criminal Appeals, “appellant’s
contradictory and implausible explanation for having cocaine in her
system was
utterly unpersuasive.” Fuller,
No. ACM 35058, slip op. at 7.
As a result,
I agree with the majority’s legal analysis, but respectfully dissent as
to
result.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0233/NA.
No.
06-0711/AR.
No.
06-0712/AR.
No.
06-0713/AF.
No.
06-0714/AF.
No.
06-0715/AF.
No.
06-0716/AF.
No.
06-0717/AF.
No.
06-0718/AF.
No.
06-0719/AF.
No.
06-0720/AF.
____________
1/
Second petition
filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-180
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0705/AF.
No.
06-0706/AF.
No.
06-0707/AF.
No.
06-0708/AF.
No.
06-0709/NA.
No.
06-0710/AR.
INTERLOCUTORY ORDERS
No.
06-0628/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-179
APPEALS – SUMMARY DISPOSITIONS
No. 03-0538/MC.
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0538/MC.
No. 04-0219/MC.
WHETHER THE DELAY
IN APPELLANT'S POST-TRIAL PROCESSING
VIOLATED HIS DUE PROCESS RIGHTS TO A TIMELY REVIEW OF HIS COURT-MARTIAL.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0215/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0704/MC.
INTERLOCUTORY ORDERS
No.
05-0471/AR.
No.
06-0321/MC.
No.
06-0621/AR.
No.
06-0623/AR.
No.
06-0627/AR.
No.
06-8017/AF.
Lantz E. NAVE, Appellant, v. Colonel Nancy Paul, USAF, Military
Judge
and
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-178
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0116/AF.
WHETHER
SPECIFICATION 2 OF CHARGE I FAILS TO STATE AN OFFENSE BECAUSE
APPELLANT'S
CONDUCT ALLEGED THEREIN DOES NOT VIOLATE THE SPECIFIED REGULATION.
Briefs will be filed under Rule 25.
No. 06-0291/NA.
WHETHER THE
PRETRIAL AGREEMENT VIOLATED RULE FOR
COURTS-MARTIAL 705(c) BY DENYING APPELLANT THE POST-TRIAL RIGHT TO SEEK
CLEMENCY AND PAROLE.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0584/NA.
No.
06-0607/AF.
No.
06-0625/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-177
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0421/AR.
No.
06-0422/AR.
No.
06-0451/AR.
No.
06-0515/AR.
No.
06-0570/AF.
No.
06-0588/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0702/AR.
No.
06-0703/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 06-8016/NA.
Kevin R. SANFORD, Petitioner, v.
INTERLOCUTORY ORDERS
No.
05-0127/MC.
No.
06-0321/MC.
No.
06-0417/NA.
No.
06-0510/MC.
No.
06-0611/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-176
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0345/NA.
No.
06-0368/AF.
No.
06-0369/AF.
No.
06-0391/AR.
No.
06-0404/AR.
No.
06-0433/AR.
No.
06-0456/AR.
No.
06-0457/AR.
No.
06-0531/AR.
No.
06-0543/AF.
No.
06-0550/AF.
No.
06-0558/AF.
No.
06-0577/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0696/AF.
No.
06-0697/AR.
No.
06-0698/AR.
No.
06-0699/AR.
No.
06-0700/AR.
No.
06-0701/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-175
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0695/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-174
APPEALS - SUMMARY DISPOSITIONS
No. 06-0237/AR.
WHETHER
THE
In light of Appellee’s concession of this
issue and United States v. Aubin, 62 M.J. 438 (C.A.A.F. 2006)(summary disposition), we consolidate
specification 2 into
specification 1 of Charge II as follows:
In
that Private Ryan C. Taylor, U.S. Army, did, at or near
Fort
Gordon, Georgia, on or about 4 March 2004, with intent to deceive, make
to
Military Police Officer, Sergeant Bradley J. Roehl, official
statements, to
wit: “I do not know where my car is, I
have not seen it since Monday,” and “No,” when asked, “Was anyone in
the car
with you?”, or words to that effect, which statements were totally
false, and
were then known by the said Private Ryan C. Taylor to be so false.
Because the
underlying misconduct has not changed and the military judge considered
the
consolidated specifications to be one offense for sentencing purposes,
we are
satisfied that Appellant suffered no prejudice as to his sentence.
The decision of the United States Army
Court of Criminal Appeals as to Charges I, III, IV, and V and the
specifications thereuder, Charge II and specification 1 thereunder (as
consolidated with specification 2), and the sentence is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0237/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0413/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0690/AR.
No.
06-0691/AR.
No.
06-0692/AR.
No.
06-0693/MC.
No.
06-0694/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-173
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0238/NA.
WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED TO THE
SUBSTANTIAL
PREJUDICE OF APPELLANT WHEN IT RULED THAT THE MILITARY JUDGE DID NOT
BECOME A
PARTISAN ADVOCATE FOR THE GOVERNMENT, AND
THAT THE
MILITARY JUDGE'S TREATMENT OF THE DEFENSE EXPERT DID NOT DENY
APPELLANT’S RIGHT
TO PRESENT A DEFENSE.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0173/AF.
No.
06-0395/AR.
No.
06-0411/AR.
No.
06-0470/AR.
No.
06-0497/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0687/MC.
No.
06-0688/MC.
No.
06-0689/NA.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 06-8013/NA.
Jessie A. QUINTANILLA, Petitioner, v.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 06-8017/AF.
Lantz E. NAVE, Appellant, v. Colonel Nancy Paul, USAF, Military
Judge
and
INTERLOCUTORY ORDERS
No.
06-0526/MC.
No.
06-0532/NA.
No.
06-0615/AF.
No.
06-0620/MC.
No.
06-8013/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-172
APPEALS - SUMMARY DISPOSITIONS
No. 03-0256/AR.
At the time of Appellant’s offenses, the MCM
provided that the punishment for unpremeditated murder was “such
punishment
other than death as a court-martial may direct.” MCM pt. IV, para.
43.e.(2). Because
a life sentence is in fact a lesser punishment than death, confinement
for life
was a maximum punishment authorized by this provision.
See
In
this case, the military judge properly advised the Appellant of this
maximum
confinement punishment of life without parole.
Accordingly, it is ordered that the decision of the United
States Army
Court of Criminal Appeals is affirmed.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0426/AR.
No.
06-0473/AF.
No.
06-0479/AF.
No.
06-0500/AF.
No.
06-0508/AR.
No.
06-0537/AR.
No.
06-0540/NA.
No.
06-0560/AF.
No.
06-0564/AR.
No.
06-0569/AF.
No.
06-0580/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0686/AR.
INTERLOCUTORY ORDERS
No.
05-0552/MC.
No.
06-0004/MC.
No.
06-0306/MC.
No.
06-0591/AR.
No.
06-0594/AR.
No.
06-0609/AR.
No.
06-0617/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-171
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0677/AR.
No.
06-0678/AR.
No.
06-0679/AR.
No.
06-0680/AR.
No.
06-0681/AR.
No.
06-0682/NA.
No.
06-0683/NA.
No.
06-0684/MC.
No.
06-0685/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-170
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0398/AF.
No.
06-0469/AR.
No.
06-0478/AF.
No.
06-0504/AR.
No.
06-0566/AF.
No.
06-0583/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0676/NA.
INTERLOCUTORY ORDERS
No.
06-0503/NA.
Appellant's second motion to extend time to
file the supplement to the petition for grant of review granted, but only up to and including June 23,
2006; and that, absent
extraordinary circumstances, no further extension of time will be
granted in
this case.
No.
06-0518/AR.
Appellant's
motion for leave to file supplement to the petition for grant of review
out of
time granted.
No.
06-0586/AR.
Appellant's
motion to extend time to file the supplement to the petition for grant
of
review granted to
No.
06-0590/AR.
Appellant's
motion to extend time to file the supplement to the petition for grant
of
review granted to
MANDATES ISSUED
No.
06-6001/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-169
APPEALS – SUMMARY DISPOSITIONS
No. 04-0350/MC.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0350/MC.
No. 06-0319/MC.
WHETHER
THE
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0675/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-168
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0109/NA.
I.
WHETHER
APPELLANT'S RIGHT TO A TIMELY APPELLATE REVIEW WAS VIOLATED WHEN IT
TOOK MORE
THAN SEVEN YEARS FROM THE DATE APPELLANT WAS SENTENCED UNTIL THE DATE
THE
And
the following issue specified by the Court:
II. WHETHER THE UNITED
STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING
"FORFEITURE OF TWO-THIRDS PAY PER MONTH FOR ANY PERIOD OF REMAINING
ACTIVE
SERVICE AFTER THE DATE OF TRIAL" WHEN R.C.M. 1003(b)(2)
PROVIDES THAT "[U]NLESS A TOTAL FORFEITURE IS ADJUDGED, A SENTENCE TO
FORFEITURE SHALL STATE THE EXACT AMOUNT IN WHOLE DOLLARS TO BE
FORFEITED EACH
MONTH AND THE NUMBER OF MONTHS THE FORFEITURES WILL LAST."
Briefs will be filed under Rule 25 on Issue
I only.
No. 06-0178/AF.
WHETHER THE
MILITARY JUDGE ERRED IN DENYING APPELLANT'S
CHALLENGE FOR CAUSE AGAINST CAPTAIN H.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0015/AR.
No.
06-0139/AF.
No.
06-0392/AR.
No.
06-0396/AR.
No.
06-0414/AR.
No.
06-0435/AR.
No.
06-0452/AR.
No.
06-0486/AR.
No.
06-0489/AR.
No.
06-0517/AR.
No.
06-0522/AF.
No.
06-0529/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0523/NA.
No.
06-0672/AR.
No.
06-0673/AF.
No.
06-0674/AF.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 06-8016/NA.
Kevin R. SANFORD, Petitioner, v.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
No.
06-8014/NA.
Stacie SOWELL, Appellant, v. Lewis T. Booker, Jr., CDR, JAGC,
USN,
Military Judge, Appellee. CCA 9901777. On
consideration of Appellant’s requests for a stay of proceedings, motion
to
attach, motion for clarification, and motion to withdraw writ-appeal
petition,
it is ordered that said motion to withdraw the writ-appeal petition is
granted;
and that said requests to stay proceedings, motion to attach, and
motion for
clarification are denied as moot. [See
also INTERLOCUTORY ORDERS this date.]
INTERLOCUTORY ORDERS
No.
03-0688/NA.
Stacie SOWELL, Appellant, v. Lewis T. Booker, Jr., CDR, JAGC,
USN,
Military Judge, Appellee. CCA 9901777. [See also MISCELLANEOUS DOCKET – SUMMARY DISPOSITIONS
this date.]
1/
Second petition
filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-167
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0563/MC.
I.
WHETHER ERROR OCCURRED
IN APPELLANT'S CASE WHEN APPELLANT LACKS THE MENTAL CAPACITY TO
UNDERSTAND AND
COOPERATE INTELLIGENTLY IN APPELLATE PROCEEDINGS PURSUANT TO RULE FOR
COURTS-MARTIAL 1203(c)(5) AND WHEN NO INQUIRY WAS MADE INTO WHETHER
APPELLANT
WAS CAPABLE TO ASSIST IN HIS DEFENSE PURSUANT TO RULE FOR
COURTS-MARTIAL 706.
II. WHETHER APPELLANT
WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
WHEN
HIS INITIAL APPELLATE DEFENSE COUNSEL FAILED TO ESTABLISH CONTACT WITH
THE
CLIENT, FAILED TO REASONABLY INVESTIGATE HIS CASE, AND FAILED TO RAISE
POST-TRIAL DELAY AT THE LOWER COURT.
III. WHETHER THE
UNREASONABLE DELAY CAUSED BY THE GOVERNMENT'S
GROSS NEGLIGENCE IN FULFILLING THE NON-DISCRETIONARY AND MECHANICAL
TASK OF
FORWARDING A RECORD OF TRIAL FOR APPELLATE REVIEW VIOLATED THE
APPELLANT'S
RIGHT TO A SPEEDY POST-TRIAL REVIEW.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0316/AR.
No.
06-0337/AR.
No.
06-0462/AF.
No.
06-0465/AF.
No.
06-0468/AF.
No.
06-0481/AF.
No.
06-0513/AF.
No.
06-0514/AF.
No.
06-0521/AR.
No.
06-0530/AR.
No.
06-0552/AF.
No.
06-0553/AF.
No.
06-0589/MC.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
05-0393/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0665/AR.
No.
06-0666/AR.
No.
06-0667/AR.
No.
06-0668/AR.
No.
06-0669/AR.
No.
06-0670/AR.
No.
06-0671/MC.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
No.
06-8015/NA.
Bryan BLACK, Appellant, v.
INTERLOCUTORY ORDERS
No.
06-0616/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-166
PETITIONS FOR GRANT OF
REVIEW FILED
No.
06-0664/NA.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 06-8015/NA.
Bryan BLACK, Appellant v.
INTERLOCUTORY ORDERS
No.
06-0581/AR.
MANDATES ISSUED
No.
04-0698/MC.
No.
05-0300/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-165
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0663/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-164
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0662/AR.
INTERLOCUTORY ORDERS
No.
06-0408/NA.