UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-247
PETITIONS FOR GRANT OF
REVIEW FILED
No.
06-0954/AF.
No.
06-0955/AF.
No.
06-0956/AF.
No.
06-0957/AF.
ANNOUNCEMENT
BY THE
CLERK OF THE COURT
OF THE
CUMULATIVE
SUMMARY OF
COURT WORKLOAD
STATISTICS
FOR THE OCTOBER
2006 TERM OF
COURT
I.
CUMULATIVE
PENDING
Master Docket . .
. . . . . . . . . . . . . . . 87
Petition Docket .
. . . . . . . . . . . . . . . 252
Miscellaneous Docket. . . .
. . . . . . . . . . 6
TOTAL . . . . . .
. . . . . . . . . . . . . . . 345
II. CUMULATIVE
FILINGS
Master Docket . .
. . . . . . . . . . . . . . . 116
Petition Docket .
. . . . . . . . . . . . . . .1,006
Miscellaneous Docket. . . .
. . . . . . . . . . 23
TOTAL . . . . . .
. . . . . . . . . . . . . . .1,145
III. CUMULATIVE
TERMINATIONS
Master Docket . .
. . . . . . . . . . . . . . . 165
Petition Docket .
. . . . . . . . . . . . . . .1,018
Miscellaneous Docket. . . .
. . . . . . . . . . 29
TOTAL . . . . . .
. . . . . . . . . . . . . . .1,212
IV. CUMULATIVE
PENDING
Master Docket . .
. . . . . . . . . . . . . . . 38*
Petition Docket .
. . . . . . . . . . . . . . . 240
Miscellaneous Docket. . . .
. . . . . . . . . . 0
TOTAL . . . . . .
. . . . . . . . . . . . . . . 278
V.
CASES ON MASTER DOCKET CARRIED OVER TO
OCTOBER 2007 TERM OF COURT
AWAITING ORAL
ARGUMENT OR FINAL DISPOSITION (20)
00-0252/AR
– McALLISTER
03-0071/AF
– LEE
05-0503/AF
– IRVIN
05-0563/MC
– SIMON
05-0565/AR
– PEREZ
05-0779/MC
– CLAY
06-0064/NA
– HARDISON
06-0091/AF
– PENA
06-0116/AF
– CRAFTER
06-0119/NA
– RANKIN
06-0178/AF
– BRIGGS
06-0238/NA
– FOSTER
06-0291/NA
– TATE
06-0314/AF
– TERRY
06-0319/MC
–
06-0350/NA
– THOMAS
06-0427/AR
–
06-0503/NA
–
06-5005/AR
– GUTIERREZ
06-6005/AF
– COSSIO
AWAITING
BRIEFS (18)
05-0157/NA
– LUKE
06-0001/AR
– ECKARD
06-0050/AR
– CARRUTHERS
06-0060/AF
– BROOKS
06-0207/AF
– MORAN
06-0403/MC
– SHAW
06-0439/AF
–
06-0474/AF
– HARROW
06-0520/AR
– GREEN
06-0571/AF
– BARRETT
06-0567/AF
– LEEDY
06-0591/AR
– GARDINIER
06-0610/AR
– WISE
06-0615/AF
– LEONARD
06-0617/AR
– SANCHEZ
06-0675/MC
–
06-0695/AF
– PAXTON
06-0714/AR
- ADCOCK
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-246
APPEALS - SUMMARY DISPOSITIONS
No. 05-0103/MC.
We therefore
conclude that there were separate orders
by two different commanding officers and that Appellant was not
entitled to a
sentencing credit under this Court’s holding in United States v.
Pierce,
27 M.J. 367 (C.M.A. 1989). As to Issue
II, in light of this Court’s opinion in United States v. Kisala,
__ M.J.
__ (C.A.A.F. September 27, 2006), we hold that the order directing
Appellant to
receive the anthrax vaccine was a lawful order which he disobeyed in
violation
of Article 90, UCMJ, 10 U.S.C. § 890 (2000).
Accordingly, the decision of the United States Navy-Marine Corps
Court
of Criminal Appeals is affirmed.
______
1
I. WHETHER THE
MILITARY JUDGE ERRED WHEN HE DECLINED TO
GIVE APPELLANT SENTENCING CREDIT FOR A PREVIOUS NONJUDICIAL PUNISHMENT
FOR
REFUSING TO RECEIVE ANTHRAX VACCINE ABSORBED IN ACCORDANCE WITH UNITED
STATES
v. PIERCE, 27 M.J. 367 (C.M.A. 1989).
II. WHETHER THE
ORDER DIRECTING APPELLANT TO RECEIVE ANTHRAX VACCINE ABSORBED ON
No. 05-0505/MC.
No. 05-0506/NA.
No. 05-0508/MC.
In
each of the above cases, on consideration of granted issue I, in light
of United
States v. Kisala, __ M.J. __ (C.A.A.F.
CRAWFORD,
Judge (concurring in the result):
I
concur in the result in these cases but disassociate myself from the
reasoning
in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United
States v. Allison, 63 M.J. 365 (C.A.A.F. 2006).
See Moreno at
144-52 (Crawford, J., concurring in part and dissenting in part) and Allison
at 371 (Crawford, J., concurring in part and in the result).
No. 05-0628/MC.
No. 05-0680/MC.
No. 05-0681/MC.
CRAWFORD, Judge
(concurring in the result):
I concur in the
result in
this case but disassociate myself from the reasoning in United
States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v.
Allison,
63 M.J. 365 (C.A.A.F. 2006). See Moreno at 144-52 (Crawford, J.,
concurring in
part and dissenting in part) and Allison at 371 (Crawford, J.,
concurring in part and in the result).
No. 05-0682/MC.
CRAWFORD, Judge
(concurring in the result):
I concur in the
result in
this case but disassociate myself from the reasoning in United
States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v.
Allison,
63 M.J. 365 (C.A.A.F. 2006). See Moreno at 144-52 (Crawford, J.,
concurring in
part and dissenting in part) and Allison at 371 (Crawford, J.,
concurring in part and in the result).
No. 05-0683/MC.
CRAWFORD, Judge
(concurring in the result):
I concur in the
result in
this case but disassociate myself from the reasoning in United
States v.
Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United States v.
Allison,
63 M.J. 365 (C.A.A.F. 2006). See Moreno at 144-52 (Crawford, J.,
concurring in
part and dissenting in part) and Allison at 371 (Crawford, J.,
concurring in part and in the result).
No. 05-0684/MC.
CRAWFORD, Judge
(concurring in the result):
I concur in the
result in
this case but disassociate myself from the reasoning in United
States v. Moreno,
63 M.J. 129 (C.A.A.F. 2006), and United States v. Allison, 63
M.J. 365
(C.A.A.F. 2006). See
Moreno at 144-52 (Crawford, J., concurring in part and
dissenting in
part) and Allison at 371 (Crawford, J., concurring in part and
in the
result).
The decision of
the United States Army Court of
Criminal Appeals is affirmed as to Charge II and its specification as
amended,
as well as to Charge I and its specification and the sentence. [See
also ORDERS GRANTING PETITION FOR REVIEW this date.]
CRAWFORD, Judge (dissenting):
I dissent for the reasons
set forth in my dissenting opinion in United States v. Martinelli,
62
M.J. 52, 77 (C.A.A.F. 2006)(Crawford, J., dissenting).
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0466/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 06-0525/AF.
No. 06-0777/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 06-0952/AR.
No. 06-0953/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
06-8023/NA.
Russell B. MULLINS, Petitioner v.
INTERLOCUTORY ORDERS
No. 06-0886/AR.
Appellant's
motion to extend time to file the supplement
to the petition granted to
No. 06-0888/AR.
Appellant's
motion to extend time to file the supplement
to the petition granted to
MANDATES ISSUED
No. 05-0270/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-245
ORDERS GRANTING
PETITION FOR REVIEW
No. 06-0591/AR.
I.
WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED WHEN IT HELD THAT EVIDENCE OF APPELLANT'S GUILT WAS SO GREAT AS
TO MAKE
ADMISSION OF K.G.'S VIDEOTAPED TESTIMONY HARMLESS BEYOND A REASONABLE
DOUBT.
II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS
ERRED WHEN IT HELD THAT THE TESTIMONY OF V.S. [SEXUAL ASSAULT NURSE
EXAMINER]
WAS NOT TESTIMONIAL HEARSAY REQUIRING THAT THE DECLARANT BE SUBJECT TO
CROSS-EXAMINATION AS REQUIRED BY THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
III. WHETHER THE
ARMY COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE CID AGENT'S
FAILURE TO
ADVISE APPELLANT OF HIS ARTICLE 31(b) RIGHTS ON
PETITIONS FOR GRANT OF REVIEW DENIED
No. 06-0653/AF.
No. 06-0654/AF.
No. 06-0682/NA.
No. 06-0696/AF.
No. 06-0733/MC.
No. 06-0738/AF.
No. 06-0762/AR.
No. 06-0763/AR.
No. 06-0772/AR.
No. 06-0783/AF.
No. 06-0803/AF.
No. 06-0808/AR.
No. 06-0820/AR.
No. 06-0846/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-244
APPEALS - SUMMARY
DISPOSITIONS
No. 02-0513/AR.
No. 05-0311/AF.
No. 99-0911/MC.
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0714/AF.
I.
WHETHER, HAVING
FOUND THAT THE TERMS OF APPELLANT'S PRETRIAL CONFINEMENT VIOLATED AIR
FORCE
INSTRUCTION (AFI) 31-205, AND THE AIR FORCE CORRECTIONS SYSTEM PARAS.
5.8.1.2
AND 7.1.1 (
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0670/AR.
No.
06-0805/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0950/AR.
No.
06-0951/AR.
INTERLOCUTORY ORDERS
No.
06-0742/NA.
No.
06-0880/AR.
No.
05-0157/NA.
APPENDIX A
NORTHERN JUDICIAL CIRCUlT
Navy-Marine Corps Trial Judiciary
UNITED STATES
)
GENERAL COURT-MARTIAL
v.
)
)
DUBAY HEARING
IVOR G. LUKE
)
HM2 (E-5)
)
FINDINGS OF FACT
On
24 April 2006, the Court
of Appeals for the Armed Forces (CAAF) issued a ruling in the subject
case
mandating that a post-trial fact-finding
hearing be held, pursuant to United States v. DuBay, 17 C.M.A.
147
(1967). CAAF ordered the hearing to receive and examine evidence
relating to
"Appellant's claim of contamination of his DNA sample and falsification
of
his [DNA] test results." The hearing was held at the Washington Navy
Yard
on 2 June and
PREDICATE FACTS
FROM ORIGINAL TRIAL
1. During
Appellant's original trial, the
prosecution introduced evidence which tended to show that Appellant's
DNA was
found on the bra worn by the alleged victim at the time of the alleged
indecent
assault, and that Appellant's DNA was found on a bed sheet seized from
the place
of the alleged indecent assault.
2. Specifically,
the prosecution introduced
evidence of forensic testing of the bra, which showed that saliva was
found on
the inside portion of the right-hand side cup of the bra, and further
that
Appellant's DNA was present in the saliva found on the inside cup of
the bra.
3. This evidence
tended to corroborate the
testimony of the alleged victim that Appellant had placed his mouth on
her
right-hand side breast.
4.
The forensic testing was conducted by employees of the U.S. Army
Criminal
Investigative Laboratory (USACIL) located in
5. Relevant to
this evidence, the forensic
testing consisted of serology analysis, which identified the presence
of saliva
on the bra and the bed sheet, and DNA analysis, which identified the
presence
of Appellant's DNA in the saliva on the bra and the bed sheet.
6. The serology
analysis was
conducted by Mr. [M], followed by the DNA analysis conducted by Ms. [C].
APPENDIX
A
7. As part of his
serology analysis, Mr. [M]
identified saliva stains on the bra and the bed sheet, cut sample
fragments
from them, placed the fragments in test tubes, and forwarded them to
Ms. [C],
along with other test tubes containing samples, for DNA analysis.
8. Ms. [C]
performed DNA analysis
on the samples, using the "PCR" process, and identified the presence
of Appellant's DNA on the bra fragment and the bed sheet fragment.
9. At trial,
both Mr. [M] and Ms. [C] testified regarding the testing procedures and
the
results.
10. At trial,
Appellant was convicted and the
sentence was adjudged on
POST-TRIAL
FACTS
11. On
a. From January
2004 until September 2004, Mr. [M] had been suspended from performing
DNA
casework because, in December 2003, he had "cross-contaminated and/or
switched samples within and betweeJ1 [several] cases."
b. On
c. On 13 April
2005, with
respect to a different case, Mr. [M]
falsely stated that he had examined certain evidence and found
negative
results when, in fact, he had not examined the evidence at all.
d. On
12. On
FACTS FROM DuBAY
HEARING
13.
Mr. [M] was suspended from performing DNA casework from January 2004
until
September 2004 for a contamination incident that he caused in December
2003
while conducting forensic DNA analysis.
14. When
performing DNA
analysis, the testing equipment allows the operator to test multiple
samples
simultaneously. This is referred to as "batch" testing.
15. On one
occasion in December of 2003, Mr.
[M] conducted DNA analysis on several samples from five different
cases. He
prepared the samples and tested them as one batch.
16. A "known"
sample is one with a
confirmed origin, such as when blood is drawn or hair is collected from
a
person. An "unknown" sample is one for which the origin has not yet
been determined.
17. A sample
whether known or unknown, can
become contaminated during forensic analysis if it comes into contact
with
another sample that contains DNA.
18. During the
testing process for this
batch, Mr. [M] allowed the samples to contaminate one another.
19.
Consequently, the profile of a known DNA sample associated with one
case also
appeared as the profile of an unknown DNA sample in an unrelated case.
20.
The exact cause of this error could not be determined. However, it is
clear
that the samples within the batch were contaminated during Mr. [M]’s
testing.
21. Although the
results of
the DNA analysis for this batch were erroneous and unreliable, Mr. [M]
did not
falsify the results, and he did not intentionally contaminate the
samples.
22.
Mr. [M] was suspended a second time from performing DNA casework on
23. The second
suspension
was imposed because, in April 2005; Mr. [M] did not follow proper
testing
procedures during DNA analysis, and then subsequently documented his
results as
though he had.
24. Proper
testing
procedures called for Mr. [M] to use two control samples, known as
reagent
blanks, in the particular test he was conducting. Mr. [M], however,
only used
one reagent blank. Several days later, Mr. [M] altered his test report
so it
would appear that he had used two reagent blanks.
25. Mr. [M] did
falsify the
report, in that he documented a part of the procedure he did not in
fact
perform.
26. Mr. [M] did
not falsify
the results, meaning he did not falsely report the presence or absence
of DNA
in a particular sample. Also, he did not contaminate the samples.
27. Mr. [M]’s
failure to
follow proper procedures and use two reagent blanks on this occasion
did not
affect the results of the test.
28. Subsequent to
Mr. [M]’s
second suspension, several of his prior cases were reviewed, and
several errors
were detected. All of the errors were in connection with DNA testing.
29. Mr. [M]
demonstrated a
pattern of mistakes in conducting DNA analysis and on at least one
occasion, he
attempted to cover up his mistake by making a false data entry.
30. No evidence
was presented that Mr. [M]
ever altered any results to falsely show the presence or absence of DNA
in a
sample, or that his failure to follow proper procedures was an attempt
to in
properly influence or alter the outcome of the DNA analysis any of the
cases.
31. It is evident,
however, that Mr. [M] had significant problems with the DNA analysis
process,
which calls into question the forensic reliability of the results of
his DNA
casework.
32. Mr. [M]’s
disciplinary and proficiency
problems were all related to his performance of DNA analysis. Mr. [M]
had never
demonstrated a lack of proficiency in any of his other duties.
33. Mr. [M]’s was
proficient in performing
serology analysis. He had a full understanding of the standard
procedures for
conducting serology casework.
34.
In Appellant's case, Mr. [M] performed the serology portion, but did
not
conduct any of the DNA analysis.
35.
Mr. [M] understood the standard procedure for conducting serology
analysis, and
followed it in Appellant's case.
36. It is still
possible for
contamination to occur, even when standard procedure is followed.
37. In
Appellant's case, Mr.
[M] received a box which contained evidence collected for the case.
Within the
box each item of evidence was in a separate container.
38. Mr. [M]
removed and
visually inspected the items in the order in which they are listed on
page 3 of
appellate exhibit LXXV. However, he did not do a serological analysis
on each
item.
39. The first
three items he removed from the
box, in order, were the panties, the bra, and the bed sheet. Mr. [M]
did
perform a serological analysis on each of these. On
each item, he observed what appeared to be
stains from bodily fluids, cut a fragment from each item an
placed the fragment in a test tube.
40.
The fourth item Mr. [M] removed from the box was the saliva swab taken
from the
Appellant. Mr. [M] did not do a serological examination of the swab,
but only
visually inspected it to ensure that it was in the container.
41. After Mr. [M]
did the
serological analysis, Ms. [C] did the DNA analysis on the samples that
Mr. [M]
prepared.
42. Appellant's
DNA was found on the bra and
the bed sheet, but it was not found on the panties.
43. The presence
of Appellant's DNA on the
bra can be explained in one of three ways: a) Appellant came into
contact with
the bra sometime prior to it being collected as evidence; b) the bra
became
contaminated after it was collected as evidence by coming into contact
with
Appellant's DNA from another sample; or c) the results were falsified.
44. With respect
to Mr. [M], he did not
conduct the DNA analysis, so he did not have the opportunity to falsify
the
results. Also, he had no motive to falsify the results, such as the
desire to
cover up a mistake, as in the documented case. Also, no evidence was
presented
that Ms. [C] or anyone else ever sought to falsify the results.
45.
The panties could not have contaminated the bra with Appellant's DNA,
because
the Appellant's DNA was not present on, the panties.
46. Neither the bed sheet nor any other item could
have contaminated the bra during the serology portion, because the
sample of
the bra was cut and sealed in a test tube before the other items were
opened.
47. The bra was
not
contaminated with Appellant's DNA during the serology portion of the
forensic
analysis, and the results of the DNA analysis were not falsified.
48. The physical
evidence in
Appellant's case has been destroyed and is thus not available for
re-testing.
No.
06-0001/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-243
APPEALS - SUMMARY
DISPOSITIONS
No. 06-0788/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0788/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0471/AR.
No.
06-0947/AR.
No.
06-0948/AR.
No.
06-0949/AR.
MANDATES ISSUED
No.
05-0220/AF.
______________
*Second
petition filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-242
PETITIONS FOR GRANT OF
REVIEW FILED
No. 06-0942/NA.
No.
06-0943/NA.
No.
06-0944/NA.
No.
06-0945/NA.
No.
06-0946/MC.
INTERLOCUTORY ORDERS
No.
06-0869/MC.
No.
06-0870/AR.
No.
06-0871/MC.
No.
06-0872/AR.
No.
06-0875/AR.
No.
06-0883/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-241
APPEALS - SUMMARY DISPOSITIONS
No. 05-0447/AF.
CRAWFORD,
Judge (dissenting):
I dissent for the reasons set forth in my
dissenting opinion in United States v. Lane, _ M.J._, _
(C.A.A.F.
September 20, 2006) (Crawford, J., dissenting).
No. 06-0232/AF.
CRAWFORD,
Judge (dissenting):
I dissent for the reasons set forth in my
dissenting opinion in United States v. Lane, _ M.J. _, _
(C.A.A.F
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0503/NA.
WHETHER
THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN
AFFIRMING A SENTENCE THAT INCLUDED A DISHONORABLE DISCHARGE WHEN THE
CONVENING AUTHORITY'S
ACTION DID NOT APPROVE ONE.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0230/NA.
No.
06-0677/AR.
No.
06-0766/AR.
No.
06-0817/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
05-0427/AR.
No.
06-0941/NA.
_________________
*Second petition
filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-240
ORDERS GRANTING
PETITION FOR REVIEW
No. 06-0567/AF.
WHETHER
THE MILITARY JUDGE ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS THE
EVIDENCE
SEIZED FROM APPELLANT'S COMPUTER WHERE THE AFFIDAVIT IN SUPPORT OF THE
SEARCH
DID NOT CONTAIN ANY DESCRIPTION OF THE SUBSTANCE OF THE IMAGES
SUSPECTED TO
DEPICT "SEXUALLY EXPLICIT CONDUCT."
Briefs
will be filed under Rule 25.
No.
06-0675/MC.
I.
WHETHER THE
II. WHETHER THE
MILITARY JUDGE ERRED WHEN HE CONCLUDED THAT THE GOVERNMENT WOULD HAVE
"INEVITABLY DISCOVERED" APPELLANT'S CONFESSION.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0554/AF.
No.
06-0626/AR.
No.
06-0756/AF.
No.
06-0784/AF.
No.
06-0806/AF.
No.
06-0825/AR.
No.
06-0836/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0940/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-239
APPEALS - SUMMARY DISPOSITIONS
No. 05-0523/NA.
CRAWFORD,
Judge (concurring in the result):
I concur in the result but disassociate myself
from the reasoning in United States v. Moreno, 63 M.J. 129, 144
(C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in
part), and United
States v. Rodriguez-Rivera, 63 M.J. 372, 386-87 (C.A.A.F. 2006)
(Crawford,
J., concurring in part and in the result).
No. 06-0275/MC.
No. 06-0374/NA.
In each of
the above cases, on consideration of the petition for grant of review
of the
decision of the
CRAWFORD,
Judge (concurring in the result):
I concur in the result but disassociate myself
from the reasoning in United States v. Moreno, 63 M.J. 129, 144
(C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in
part), and United
States v. Allison, 63 M.J.365, 371 (C.A.A.F. 2006) (Crawford, J.,
concurring in part and in the result).
No. 06-0753/MC.
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0523/NA.
No. 06-0275/MC.
No. 06-0374/NA.
No. 06-0753/MC.
No. 06-6005/AF.
WHETHER
THE MILITARY JUDGE ERRED IN GRANTING APPELLANT’S MOTION TO DISMISS
BASED ON
DENIAL OF HIS RIGHT TO A SPEEDY TRIAL UNDER ARTICLE 10, UCMJ.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0191/NA.
No. 06-0363/NA.
No. 06-0389/MC.
No.
06-0459/AF.
No.
06-0494/AR.
No.
06-0605/AF.
No.
06-0632/AR.
No.
06-0710/AR.
No.
06-0728/AR.
No.
06-0773/AF.
No.
06-0812/AR.
PETITIONS FOR RECONSIDERATION DENIED
No. 05-0270/NA.
Appellant’s
petition for reconsideration is denied.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0939/AR.
INTERLOCUTORY ORDERS
No.
06-0854/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-238
ORDERS GRANTING
PETITION FOR REVIEW
No. 06-0617/AR.
WHETHER THE
MILITARY JUDGE ABUSED HER DISCRETION BY ADMITTING
EXPERT TESTIMONY REGARDING THE ALLEGED VICTIM'S MEDICAL EXAMINATION
OVER
DEFENSE OBJECTION.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0927/AR.
No.
06-0928/AR.
No.
06-0929/AR.
No.
06-0930/AR.
No.
06-0931/AR.
No.
06-0932/NA.
No.
06-0933/MC.
No.
06-0934/NA.
No.
06-0935/AF.
No.
06-0936/AF.
No.
06-0937/AF.
No.
06-0938/AF.
INTERLOCUTORY ORDERS
No.
06-0494/AR.
Appellant's
motion to file additional matters pursuant to United States v.
Grostefon,
12 M.J. 431 (CMA 1982), granted.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-237
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0676/NA.
No.
06-0722/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0921/AR.
No.
06-0922/AF.
No.
06-0923/AF.
No.
06-0924/AF.
No.
06-0925/AR.
No.
06-0926/AR.
INTERLOCUTORY ORDERS
No.
06-0850/AR.
U.S.v. Franklin W. PERKINS, Jr. CCA 20041005. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to
No.
06-0851/AR.
No. 06-8020/AF.
Mark HUSCHAK, Petitioner v.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-236
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0439/AF.
I.
WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED WHEN IT REQUIRED APPELLANT TO DEMONSTRATE PREJUDICE FROM
THE
DENIAL OF HIS SUBSTANTIAL PRETRIAL RIGHT TO AN OPEN ARTICLE 32 HEARING,
CONTRARY TO THE COURT'S OPINION IN UNITED STATES v. CHUCULATE,
5 M.J.
143 (C.M.A. 1978), THAT STATES THE COURT WILL NOT TEST FOR PREJUDICE.
Briefs will be
filed under
Rule 25.
No. 06-0474/AF.
I. WHETHER
THE MILITARY JUDGE ERRED BY
PREVENTING THE DEFENSE FROM IMPEACHING THE TESTIMONY OF THE DECEASED
BABY'S
FATHER - THE ONLY OTHER PERSON PRESENT AT THE TIME OF THE ALLEGED
SHAKING
INCIDENT - WITH PRIOR INCONSISTENT STATEMENTS REGARDING THE BABY'S
INTERACTIONS
WITH APPELLANT AND THE BABY'S CRYING AFTER APPELLANT LEFT THE HOUSE.
II. WHETHER
APPELLANT'S
DUE PROCESS RIGHTS WERE VIOLATED WHEN IT TOOK OVER FOUR YEARS FOR THE
ARTICLE
66 REVIEW BY THE COURT BELOW TO BE COMPLETED.
III. WHETHER THE
MILITARY JUDGE ERRED BY DENYING A DEFENSE MOTION IN LIMINE TO EXCLUDE
THE
TESTIMONY OF VARIOUS WITNESSES REGARDING APPELLANT'S PATTERN OF MINOR
PARENTAL
ABUSE WHERE THE TESTIMONY CONSTITUTED INAPPROPRIATE CHARACTER EVIDENCE
THAT WAS
UNFAIRLY PREJUDICIAL.
IV.
WHETHER THE MILITARY JUDGE ERRED BY ALLOWING
THE PROSECUTION'S EXPERT WITNESS TO PRESENT INADMISSIBLE PROFILE
EVIDENCE THAT
PLACED APPELLANT IN THE PROFILED CATEGORY AND EXCLUDED THE DECEASED
BABY'S
FATHER - THE ONLY OTHER SUSPECT - FROM THE PROFILED CATEGORY.
V.
WHETHER APPELLANT'S GUILTY PLEAS TO CHARGE
II AND ITS SPECIFICATION [LARCENY] WERE PROVIDENT.
VI. WHETHER THE AIR
FORCE COURT OF CRIMINAL APPEALS PROPERLY REASSESSED THE SENTENCE WHEN
IT
INCLUDED A REDUCTION IN PAY GRADE THAT WAS NOT ADJUDGED (OR AUTHORIZED).
Brief will be
filed under
Rule 25.
No. 06-0615/AF.
I.
WHETHER THE MILITARY JUDGE ERRED IN
CALCULATING THE MAXIMUM PUNISHMENT AND, IF SO, WHETHER APPELLANT'S PLEA
WAS
IMPROVIDENT BECAUSE IT WAS BASED UPON A SUBSTANTIAL MISUNDERSTANDING OF
THE
MAXIMUM PUNISHMENT.
II. WHETHER
APPELLANT'S
TRIAL DEFENSE COUNSEL MISAPPREHENDED THE MAXIMUM PUNISHMENT AND, IF SO,
WHETHER
APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF
COUNSEL
BECAUSE DEFENSE COUNSEL'S ADVICE WAS BASED UPON AN ERRONEOUS
CALCULATION OF THE
MAXIMUM PUNISHMENT.
Brief will be
filed under
Rule 25.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No. 06-0802/AF.
Appellant's
motion to withdraw the petition for grant of review granted.
PETITIONS FOR GRANT OF REVIEW FILED
No. 06-0918/MC.
No. 06-0919/AR.
No. 06-0920/AR.
INTERLOCUTORY ORDERS
No. 05-0503/AF.
No. 06-0676/NA.
No. 06-0828/MC.
No. 06-0843/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-235
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0197/AF.
No.
06-0353/AF.
No.
06-0672/AR.
No.
06-0690/AR.
No.
06-0720/AF.
No.
06-0721/AR.
No.
06-0744/AR.
No.
06-0765/NA.
No.
06-0767/AR.
No.
06-0809/AR.
No.
06-0810/AR.
PETITIONS FOR RECONSIDERATION DENIED
No.
05-0220/AF.
Appellant’s
petition for reconsideration is denied.
CRAWFORD,
Judge (dissenting):
In the opinion of the Court,1 the majority misapprehended and
overlooked the basis of the
exclusionary rule to conclude that Appellant’s consent was “obtained
through
exploitation of the illegal [search]” because it was not “sufficiently attenuated from the taint
of that
[illegal search]”.2 In reaching this conclusion
the
majority misapplied Brown v.
______________
1
2
3 422
4 See, e.g.,
United States v. Boone, 245
F.3d 352, 363 (4th Cir. 2001); United States v. Oguns, 921 F.2d
442,
447-48 (2d Cir. 1990); United States v. Snype, 441 F.3d 119,
134-35 (2d
Cir. 2006) (holding consent to search given a half-hour after an
illegal entry
severed any taint, court noted no flagrant misconduct).
5 57 M.J. 282 (C.A.A.F.
2002).
PETITIONS FOR GRANT OF REVIEW FILED
No.
03-0651/MC.
No.
06-0917/AR.
INTERLOCUTORY ORDERS
No.
06-0856/AR.
Appellant's
motion
to extend time to file supplement to the petition for grant of review
granted
to
No.
06-0863/AR.
Appellant's
motion
to extend time to file supplement to the petition for grant of review
granted
to
_______________
*Second petition
filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-234
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
06-0242/CG.
No.
06-0665/AR.
No.
06-0718/AF.
No.
06-0746/AR.
No.
06-0816/AF.
INTERLOCUTORY ORDERS
No.
06-0520/AR.
No.
06-0610/AR.
No.
06-0831/AR.
MANDATES ISSUED
No.
05-0165/NA.
No.
05-0710/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-233
APPEALS - SUMMARY DISPOSITIONS
No. 03-0473/NA.
No. 04-0067/MC.
No. 04-0219/MC.
No. 04-0372/MC.
No. 04-0604/NA.
No. 05-0058/NA.
No. 05-0236/MC.
No. 05-0278/MC.
No. 05-0287/MC.
No. 05-0353/NA.
No. 05-0421/NA.
No. 05-0500/NA.
No. 05-0535/MC.
No. 05-0548/NA.
No. 05-0552/MC.
No. 05-0566/NA.
No. 05-0592/NA.
No. 05-0634/MC.
No. 05-0693/NA.
No. 05-0694/NA.
No. 05-0709/NA.
No. 06-0052/NA.
No. 06-0068/MC.
No. 06-0120/MC.
No. 06-0127/NA.
No. 06-0128/MC.
No. 06-0212/MC.
No. 06-0235/NA.
No. 06-0297/NA.
No. 06-0306/MC.
No. 06-0321/MC.
No. 06-0366/MC.
No. 06-0417/NA.
No. 06-0440/NA.
In each of
the above cases, on consideration of the granted issue, in light of United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United
States v.
Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that the Appellant
was
denied the due process right to speedy post-trial review and appeal,
that error
was harmless beyond a reasonable doubt.
Accordingly, the decision of the United States Navy-Marine Corps
Court
of Criminal Appeals is affirmed.
CRAWFORD,
Judge (concurring in the result):
I concur in the results in these cases but
disassociate myself from the reasoning in United States v. Moreno,
63
M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and
dissenting
in part), and United States v. Allison, 63 M.J. 365, 371
(C.A.A.F. 2006)
(Crawford, J., concurring in part and in the result).
No. 05-0478/NA.
CRAWFORD,
Judge (concurring in the result):
I concur in the result but disassociate myself
from the reasoning in United States v. Moreno, 63 M.J. 129, 144
(C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in
part), and United
States v. Rodriguez-Rivera, 63 M.J. 372, 386-87 (C.A.A.F. 2006)
(Crawford,
J., concurring in part and in the result).
No. 05-0647/NA.
CRAWFORD,
Judge (dissenting):
I dissent in this case based on United
States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J.,
concurring in part and dissenting in part), and United States v.
Cendejas,
62 M.J. 334, 341 (C.A.A.F. 2006) (Crawford, J., dissenting).
No. 05-0741/NA.
CRAWFORD,
Judge (concurring in the result):
I concur in the result but disassociate myself
from the reasoning in United States v. Moreno, 63 M.J. 129, 144
(C.A.A.F. 2006)(Crawford, J., concurring in part and dissenting in
part), and United
States v. Rodgriguez-Rivera, 63 M.J. 372, 386-87 (C.A.A.F 2006)
(Crawford,
J., concurring in part and in the result).
No. 06-0034/NA.
CRAWFORD,
Judge (concurring in the result):
I concur in the result in this case but
disassociate myself from the reasoning in United States v. Moreno,
63
M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and
dissenting
in part), and United States v. Allison, 63 M.J. 365, 371
(C.A.A.F. 2006)
(Crawford, J., concurring in part and in the result).
No. 06-0109/NA.
CRAWFORD,
Judge (concurring in the result):
I concur in the result in this case but
disassociate myself from the reasoning in United States v. Moreno,
63
M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and
dissenting
in part), and United States v. Allison, 63 M.J. 365, 371
(C.A.A.F. 2006)
(Crawford, J., concurring in part and in the result).
No. 06-0130/NA.
No. 05-0627/MC.
CRAWFORD,
Judge (dissenting):
Setting aside the United States v. Baier,
60 M.J. 382 (C.A.A.F. 2005) issue, I dissent from the holding of a
denial of
due process. See United States v. Moreno,
63
M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and
dissenting
in part).
No. 05-0697/MC.
CRAWFORD,
Judge (dissenting):
I dissent for the reasons set for in United
States v. Moreno, 63 M.J. 129, 144 (C.A.A.F. 2006) (Crawford J.,
concurring
in part and dissenting in part).
No. 05-0538/AR.
No. 05-0721/AR.
No. 05-745/AR.
In each of
the above cases, on consideration of the granted issue, assuming that
Appellant
was denied his due process right to speedy post-trial review and
action, we
conclude that any error in that regard was harmless beyond a reasonable
doubt. See
CRAWFORD,
Judge (concurring in the result):
I concur in the results in these cases but
disassociate myself from the reasoning in United States v. Moreno,
63
M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and
dissenting
in part), and United States v. Allison, 63 M.J. 365, 371
(C.A.A.F. 2006(
(Crawford, J., concurring in part and in the result).
No. 05-0015/AR.
No. 05-0320/AR.
No. 05-0594/AR.
No. 06-0170/AR.
In each of
the above cases, on consideration of the granted issue, in light of United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United
States v.
Allison, 63 M.J. 365 (C.A.A.F. 2006), assuming that Appellant was
denied
his due process right to speedy post-trial review and appeal, that
error was
harmless beyond a reasonable doubt.
Accordingly, the decision of the United States Army Court of
Criminal
Appeals is affirmed.
CRAWFORD,
Judge (concurring in the result):
I concur in the results in these cases but
disassociate myself from the reasoning in United States v. Moreno,
63
M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and
dissenting
in part), and United States v. Allison, 63 M.J. 365 (C.A.A.F.
2006)
(Crawford, J., concurring in part and in the result).
No. 06-0382/AR.
CRAWFORD,
Judge (concurring in the result):
I concur in the result in this case but
disassociate myself from the reasoning in United States v. Moreno,
63
M.J. 129, 144 (C.A.A.F. 2006) (Crawford, J., concurring in part and
dissenting
in part), and United States v. Allison, 63 M.J. 365, 371
(C.A.A.F. 2006)
(Crawford, J., concurring in part and in the result).
No. 06-0004/MC.
No. 06-0471/MC.
In each of
the above cases, on consideration of the granted issue, in light of United
States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006), and United
States v.
Rodriguez-Rivera, 63 M.J. 372 (C.A.A.F. 2006), we conclude that
Appellant
was denied the due process right to speedy post-trial review and
appeal, that
the error was not harmless beyond a reasonable doubt, but that “to
fashion
relief that would be actual and meaningful in this case would be
disproportionate
to the possible harm generated from the delay.”
CRAWFORD,
Judge (concurring in the result):
I concur in the result but disassociate myself
from the reasoning in United States v. Moreno, 63 M.J. 129, 144
(C.A.A.F. 2006) (Crawford, J., concurring in part and dissenting in
part), and United
States v. Rodriguez-Rivera, 63 M.J. 372, 386-87 (C.A.A.F. 2006)
(Crawford,
J., concurring in part and in the result).
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0216/AF.
No.
06-0909/AR.
No.
06-0910/AR.
No.
06-0911/AF.
No.
06-0912/AF.
No.
06-0913/AF.
No.
06-0914/AF.
No.
06-0915/NA.
No.
06-0916/MC.
MANDATES ISSUED
No.
06-5001/AR.
________________________
*Second petition
filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-232
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
06-0674/AF.
No.
06-0708/AF.
No.
06-0792/AR.
No.
06-0798/AF.
No.
06-0807/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0903/AR.
No.
06-0904/AF.
No.
06-0905/AF.
No.
06-0906/AF.
No.
06-0907/AF.
No.
06-0908/NA.
INTERLOCUTORY ORDERS
No.
06-0050/AR.
Appellant's
motion
to extend time to file brief granted to
No.
06-0830/ar.
Appellant's
motion
to extend time to file supplement to the petition for grant of review
granted
to
No.
06-0837/AF.
Appellant's
motion to extend time to file the supplement to the petition for grant
of
review granted to
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-231
APPEALS - SUMMARY
DISPOSITIONS
No. 06-0155/AF.
WHETHER
TRIAL DEFENSE COUNSEL'S FAILURE TO REQUEST DEFERMENT OF ADJUDGED
FORFEITURES
AND WAIVER OF AUTOMATIC FORFEITURES IN FAVOR OF APPELLANT'S DEPENDENTS
ON
BEHALF OF APPELLANT WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
The decision of the United States Air Force
Court of Criminal Appeals is set aside. The record of trial is returned
to the
Judge Advocate General of the Air Force for remand to that court for
further
appellate inquiry on the granted issue. The Court of Criminal Appeals
may
obtain additional affidavits from the trial defense counsel or others
relating
to the granted issue if it determines that such affidavits may assist
it in
resolving whether a fact-finding hearing is necessary. See
No. 06-0299/AF.
WHETHER
TRIAL DEFENSE COUNSEL'S FAILURE TO REQUEST WAIVER OF AUTOMATIC
FORFEITURES IN
FAVOR OR APPELLANT'S DEPENDENT
The decision of the United States Air Force
Court of Criminal Appeals is set aside. The record of trial is returned
to the
Judge Advocate General of the Air Force for remand to that court for
further
appellate inquiry on the granted issue. The Court of Criminal Appeals
will
obtain affidavits from trial defense counsel relating to the granted
issue. If
the court, after reviewing the additional affidavits, determines that a
fact-finding hearing is necessary, See
No. 06-0587/AR.
Further, on consideration of Appellant’s
personal assertion and the record of trial, we note that the convening
authority’s action was taken 363 days after trial and that this case
was
docketed at the Court of Criminal Appeals for 1,239 days before a
decision was
issued.
The said petition for grant of review is
hereby granted on the following issues specified by the Court:
I. WHETHER THE UNITED STATES ARMY COURT OF
CRIMINAL APPEALS ABUSED ITS
DISCRETION
IN AFFIRMING A CONVICTION OF ASSAULT WITH A DANGEROUS WEAPON UNDER
CHARGE III,
SPECIFICATION 1 WHERE THE APPROVED FINDING OF GUILTY WAS TO THE OFFENSE
OF
ATTEMPTED ASSAULT WITH A DANGEROUS WEAPON.
II.
WHETHER APPELLANT WAS DENIED DUE PROCESS BECAUSE OF
UNREASONABLE
POST-TRIAL AND APPELLATE DELAY.
The
decision of the United States Army Court of Criminal Appeals is set
aside. The record is returned to the Judge
Advocate
General of the Army for remand to the Court of Criminal Appeals for
further
consideration in light of the granted issues.* Thereafter, Article 67,
Uniform Code of Military Justice, 10 U.S.C. 867 (2000) shall apply.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0287/AF.
No.
06-0645/AF.
No.
06-0705/AF.
No.
06-0748/AF.
No.
06-0775/AF.
No.
06-0776/AF.
No.
06-0824/AR.
INTERLOCUTORY ORDERS
No.
03-0256/AR.
Appellant's
motion for reconsideration of Appellant's brief denied.
No.
06-0821/NA.
Appellant's
motion to extend time to file the supplement to the petition for grant
of
review granted to
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-230
ORDERS GRANTING PETITION FOR REVIEW
No. 06-0695/AF.
I. WHETHER
APPELLANT
WAS MATERIALLY PREJUDICED WHEN TRIAL COUNSEL IMPROPERLY COMMENTED IN
SENTENCING
ARGUMENT ABOUT APPELLANT NOT TESTIFYING IN SENTENCING.
II. WHETHER APPELLANT
RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE TRIAL DEFENSE COUNSEL (A) FAILED TO
OBJECT OR ASK
FOR A CURATIVE INSTRUCTION WHEN TRIAL COUNSEL MADE IMPROPER ARGUMENT IN
REBUTTAL; (B) FAILED TO OBJECT TO TRIAL COUNSEL'S SENTENCING ARGUMENT
WHEN HE REFERRED TO APPELLANT'S RIGHT TO
REMAIN
SILENT; (C) ADVISED APPELLANT TO REMAIN SILENT DURING SENTENCING; AND
(D)
FAILED TO CALL APPELLANT'S SPOUSE AND FORMER SPOUSE AS WITNESSES DURING
FINDINGS.
III. WHETHER THE
SPECIFICATIONS OF RENUMBERED CHARGE III (INDECENT
ACTS WITH BCP) WERE MULTIPLICIOUS FOR SENTENCING WITH THE SPECIFICATION
OF
RENUMBERED CHARGE I (RAPE OF BCP), OR AN UNREASONABLE MULTIPLICATION OF
CHARGES.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
06-0438/AR.
No.
06-0546/AF.
No.
06-0636/AF.
No.
06-0666/AR.
No.
06-0697/AR.
No.
06-0749/AR.
No.
06-0760/AR.
No.
06-0770/MC.
No.
06-0826/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
06-0902/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
06-229
PETITIONS FOR GRANT OF
REVIEW FILED
No.
06-0896/AR.
No.
06-0897/AR.
No.
06-0898/AR.
No.
06-0899/AR.
No.
06-0900/AR.
No.
06-0901/AR.
INTERLOCUTORY ORDERS
No.
06-0694/AR.
No.
06-0729/AR.
06-0819/AR.