UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-204
Tuesday,
July 31, 2007
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0557/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0557/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
07-0057/AR.
No.
07-0416/AR.
No.
07-0498/AR.
No.
07-0499/MC.
No.
07-0500/AR.
No.
07-0534/NA.
No.
07-0564/AF.
No.
07-0572/AR.
No.
07-0580/AF.
No.
07-0603/AR.
No.
07-0627/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0747/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-203
Monday,
July 30, 2007
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0728/AR.
No.
07-0729/AR.
No.
07-0730/AR.
No.
07-0731/AR.
No.
07-0732/AF.
No.
07-0733/AF.
No.
07-0734/AF.
No.
07-0735/AF.
No.
07-0736/AF.
No.
07-0737/AF.
No.
07-0738/AF.
No.
07-0739/AF.
No.
07-0740/AF.
No.
07-0741/AF.
No.
07-0742/AF.
No.
07-0743/AF.
No.
07-0744/AF.
No.
07-0745/AF.
No.
07-0746/AF.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 07-8018/AF.
Michael D. MURPHY, Petitioner v. Major General Robert Smolen,
Convening
Authority and Colonel Bruce Ambrose, Investigating Officer, Respondents. CCA 2007-03. On consideration of the petition for
extraordinary relief and Petitioner’s motion to stay proceeding, it is
ordered
that said motion to stay proceedings is hereby denied, and that said
petition
for extraordinary relief is hereby denied.
INTERLOCUTORY ORDERS
No.
07-0661/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-202
Friday,
July 27, 2007
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0495/MC.
WHETHER
THE LOWER COURT ERRED WHEN IT HELD THAT THE MILITARY JUDGE DID NOT
COMMIT PLAIN
ERROR WHEN HE PERMITTED THE TRIAL COUNSEL TO ASK HYPOTHETICAL VOIR DIRE
QUESTIONS THAT PRESENTED THE MEMBERS WITH SUCH DETAILED FACTS ABOUT
APPELLANT'S
CASE THAT THE TRIAL COUNSEL WAS IN EFFECT COMMITTING THE MEMBERS TO
RETURN A
VERDICT OF GUILTY PRIOR TO THE PRESENTATION OF EVIDENCE, ARGUMENT, AND
INSTRUCTIONS.
Briefs
will be filed under Rule 25.
INTERLOCUTORY ORDERS
No.
07-0237/NA.
MANDATES ISSUED
No.
06-0591/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-201
Thursday,
July 26, 2007
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0727/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
07-8020/NA. Javier
PETITIONS FOR RECONSIDERATION DENIED
No.
06-0914/AF.
INTERLOCUTORY ORDERS
No.
06-0914/AF.
No.
07-0585/AR.
No.
06-0870/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-200
Wednesday,
July 25, 2007
APPEALS - SUMMARY
DISPOSITIONS
No. 04-0336/AF.
No. 07-0512/AF.
ORDERS GRANTING PETITION FOR REVIEW
No. 04-0336/AF.
No. 07-0225/MC.
WHETHER
APPELLANT'S GUILTY PLEA TO
and
the following issue specified by the Court:
WHETHER
APPELLANT'S GUILTY PLEA TO DISTRIBUTING MARIJUANA WAS PROVIDENT WHEN
APPELLANT
TOLD THE MILITARY JUDGE THAT THE SUBSTANCE HE DISTRIBUTED WAS NOT MARIJUANA.
Briefs
will be filed under Rule 25.
No. 07-0512/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
07-0238/AR.
No.
07-0444/AF.
No.
07-0467/AF.
No.
07-0546/AF.
No.
07-0579/AF.
No.
07-0581/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0020/AR.
No.
07-0723/AR.
No.
07-0724/AR.
No.
07-0725/MC.
No.
07-0726/AR.
____________________
* Second
petition filed in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-199
Tuesday,
July 24, 2007
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
07-0272/NA.
No.
07-0403/MC.
No.
07-0427/MC.
No.
07-0435/AR.
No.
07-0521/AR.
No.
07-0532/CG.
No.
07-0545/AR.
No.
07-0551/AR.
No.
07-0558/AR.
No.
07-0560/AR.
No.
07-0583/AR.
No.
07-0607/AR.
No.
07-0618/AR.
No.
07-0623/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0720/AR.
No.
07-0721/AR.
No.
07-0722/AR.
INTERLOCUTORY ORDERS
No.
07-0067/MC.
No.
07-0640/NA.
No.
07-0712/MC.
No.
07-0475/NA.
In
each of the above-listed cases, the motion filed by Lieutenant Richard
H.
McWilliams to withdraw as appellate defense counsel is granted.
No.
07-0173/AR.
No.
07-0642/AR.
No.
07-0644/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-198
Monday,
July 23, 2007
PETITIONS FOR GRANT OF
REVIEW FILED
No.
04-0465/AF.
No.
07-0718/AF.
No.
07-0719/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 07-8020/NA.
Javier MORENO, Appellant v. Paul H. MCCONNELL, Military Judge,
Lieutenant
Colonel, U.S. Marine Corps, Appellee. CCA 200100715. Notice
is hereby given that a writ-appeal petition for review of the decision
of the
United States Navy-Marine Corps Court of Criminal Appeals on
application for
extraordinary relief was filed under Rule 27(b) on this date.
_____________________
* Second petition
in this case.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-197
Friday,
July 20, 2007
INTERLOCUTORY ORDERS
No.
07-0378/MC.
No.
07-0508/MC.
No. 07-0639/MC.
In
each of the above-listed cases, the motion filed by Lieutenant Richard
H.
McWilliams to withdraw as appellate defense counsel is granted.
No.
07-0571/NA.
No. 07-0651/AR.
Misc. No.
07-8018/AF. Michael D. MURPHY, Petitioner
v. Major General Robert Smolen, Convening Authority, and Colonel Bruce
Ambrose,
Investigating Officer, Respondents. CCA
2007-03. Petitioner's motion to submit
document granted.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-196
Thursday,
July 19, 2007
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
07-0537/AR.
No.
07-0556/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
07-8019/NA. Darryl S. PHILLIPS,
Petitioner v.
PETITIONS FOR RECONSIDERATION DENIED
No. 06-0591/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-195
Wednesday,
July 18, 2007
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
06-0901/AR.
No.
07-0231/AR.
No.
07-0235/NA.
No.
07-0315/NA.
No.
07-0394/AF.
No.
07-0399/AR.
No.
07-0431/AR.
No.
07-0446/AR.
No.
07-0515/AR.
No.
07-0530/AR.
No.
07-0531/AR.
No.
07-0540/AF.
No.
07-0554/AR.
No.
07-0565/AF.
No.
07-0634/AR.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
07-0211/AR.
No.
07-0525/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0713/AR.
No.
07-0714/AR.
No.
07-0715/AR.
No.
07-0716/MC.
No.
07-0717/NA.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 07-8018/AF.
Michael D. MURPHY, Petitioner v. Major General Robert Smolen,
Convening
Authority, and Colonel Bruce Ambrose, Investigating Officer,
Respondents. CCA
2007-03. Notice is hereby given
that a petition for
extraordinary relief was filed under Rule 27(a).
INTERLOCUTORY ORDERS
No.
06-0689/NA.
No.
06-0870/AR.
No.
06-0880/AR.
No.
07-0101/NA.
No.
07-0235/NA.
No.
07-0401/NA.
No.
07-0427/MC.
No.
07-0553/NA.
No.
07-0636/AR.
No.
06-0908/NA.
No.
07-0241/MC.
No.
07-0452/MC.
No.
07-0510/NA.
In each of the above-listed cases, the motion
filed by Lieutenant Richard H. McWilliams to withdraw as appellate
defense
counsel is granted.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-194
Tuesday,
July 17, 2007
CERTIFICATES FOR
REVIEW FILED
No.
07-5003/AF.
WHETHER
THE MILITARY JUDGE ABUSED HER DISCRETION IN GRANTING THE DEFENSE MOTION
FOR NEW
TRIAL
WHETHER
PRIOR TO AUTHENTICATION THE MILITARY JUDGE HAS THE AUTHORITY IN A
POST-TRIAL
ARTICLE 39(a) SESSION TO SET ASIDE A CONVICTION AND ORDER A NEW TRIAL
AS A
REMEDY FOR A DISCOVERY VIOLATION DISCOVERED POST-TRIAL
PETITIONS FOR GRANT OF REVIEW DENIED
No.
07-0206/AR.
No.
07-0226/AR.
No.
07-0283/AF.
No.
07-0352/MC.
No.
07-0366/NA.
No.
07-0378/MC.
No.
07-0462/AF.
No.
07-0484/AR.
No.
07-0528/AF.
No.
07-0542/AR.
No.
07-0543/AR.
No.
07-0562/AR.
No.
07-0570/AR.
No.
07-0578/AF.
No.
07-0609/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0710/AR.
No.
07-0711/MC.
No.
07-0712/MC.
MANDATES ISSUED
No.
06-0474/AF.
No.
06-0567/AF.
No.
06-0857/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-193
Monday,
July 16, 2007
APPEALS - SUMMARY
DISPOSITIONS
No. 05-0503/AF.
WHETHER
APPELLANT WAS IMPROPERLY PLACED ON EXCESS APPELLATE LEAVE AND DENIED
PAY AND
ALLOWANCES IN VIOLATION OF ARTICLE 76a, UCMJ, WHEN HIS SENTENCE TO CONFINEMENT WAS NOT COMPLETED OR REMITTED AND
HE WAS FORCED TO FULFILL CONDITIONS OF MANDATORY SUPERVISION UPON HIS
RELEASE
FROM CONFINEMENT.
WHETHER
THE AIR FORCE CLEMENCY AND PAROLE BOARD INCREASED THE SEVERITY OF
APPELLANT'S
SENTENCE IN VIOLATION OF ARTICLE 55, UCMJ, AND THE EIGHTH AMENDMENT
WHEN IT
FORCED APPELLANT TO FULFILL CONDITIONS OF MANDATORY SUPERVISION THAT
ARE NOT
AUTHORIZED BY THE UCMJ.
THE
IMPOSITION OF CONDITIONS OF MANDATORY SUPERVISION ON APPELLANT VIOLATES
THE DUE
PROCESS CLAUSE BECAUSE THE MILITARY JUDGE DID NOT ANNOUNCE A PERIOD OF
MANDATORY SUPERVISED RELEASE OR ANY OF ITS CONDITIONS AS PART OF THE
SENTENCE.
The
decision of the United States Air Force Court of Criminal Appeals is
affirmed. See
No. 06-0427/AR.
No. 06-0502/AF.
/s/ William A.
DeCicco
Clerk of the Court
_____________________
*
RYAN, Judge (concurring in the result):
The
remand in this case is based on United States v. Pena, 64 M.J.
259 (C.A.A.F.
2007), a case in which I did not participate.
There is a potential reading of the Pena decision that
gives me
pause with respect to the threshold question of jurisdiction.
Not so long ago the Supreme Court
reaffirmed a fundamental principle of law:
this Court’s jurisdiction is “strictly circumscribed” to “act
only with
respect to the findings and sentence as approved by the convening
authority and
as affirmed or set aside as incorrect in law by the Court of Criminal
Appeals.” Clinton
v. Goldsmith, 526
In light of this precedent, it is unclear
to me whether and how this Court has jurisdiction under Article 67(c),
UCMJ, to
take action with regard to something that is not itself part of the
findings or
adjudged sentence or an alteration of the judgment.
Goldsmith, 526
A brief review of the Mandatory Supervised Release
Program (MSRP) that Pena complained of heightens the reservation I have
about
the breadth of this statement. Pena
complained
that:
he was unable to
stop in
Colorado to ship his household goods to Illinois, that he incurred a
ten dollar
per week expenditure for transportation to the sex offender treatment
program,
that he was required to attend Alcoholic Anonymous classes three times
a week
at night and sex offender treatment classes once a week during the day,
that he
had various other appointments and a requirement to give a urine sample
on
short notice every two weeks, and that the conditions of mandatory
supervision
left him unable to find work to support his family.
I do not see how
these complaints involve an
alteration of the adjudged sentence.
This Court held that Pena failed to show that his “burdens
[were] such
that they resulted in an increase in the punishment of confinement
adjudged by
the court-martial.”
It
remains to be seen whether my reservation is warranted.
Regardless, a summary remand with no briefing
on the jurisdictional issue is not the proper vehicle to address the
issue. Consequently, I join the Court’s
disposition here today. But I am open to
revisiting the issue, as necessary, in an appropriate case.
ORDERS GRANTING PETITION FOR REVIEW
No. 05-0503/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0703/AR.
No.
07-0704/AR.
No.
07-0705/AR.
No.
07-0706/AR.
No.
07-0707/AR.
No.
07-0708/NA.
No.
07-0709/NA.
MANDATES ISSUED
No.
04-0216/AF.
No.
06-0715/AF.
No.
06-0863/AR.
No.
07-5001/MC.
In
Re:
) CORRECTED
)
CHANGE
OF RULES
) ORDER
)
)
Upon
careful consideration of certain proposed changes to the Rules of
Practice and
ORDERED:
That
effective August 1, 2007, Rule 24 is amended as provided in the
attachment to
this order, except that the provisions of Rule 24(f)(1)(D)-(F) will
take effect
on July 1, 2008. During the period from
August 1, 2007 to July 1, 2008, compliance with the provisions of Rule
24(f)(1)(D)-(F) may be accomplished by including a list of items stated
in
those sections to which appellant/petitioner
and appellee/respondent wish to
direct the Court’s attention.
For the Court,
/s/ William
A. DeCicco
Clerk
of the Court
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-192
Friday,
July 13, 2007
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0701/CG.
No.
07-0702/NA.
INTERLOCUTORY ORDERS
No.
06-0532/NA.
No.
07-0237/NA.
No.
07-0544/AR.
No.
07-0633/AR.
MANDATES ISSUED
No.
06-0207/AF.
No.
06-0350/NA.
No.
06-0503/NA.
No.
06-0617/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-191
Thursday,
July 12, 2007
ORDERS GRANTING
PETITION FOR REVIEW
No. 07-0386/CG.
WHETHER
R.C.M. 705(c)(2)(D) PERMITS PRETRIAL MISCONDUCT TO FORM THE BASIS FOR A
WITHDRAWAL FROM THE SENTENCING LIMITATION OF THE PRETRIAL AGREEMENT
WHEN
PRETRIAL MISCONDUCT, BY ITS VERY NATURE, CANNOT FALL WITHIN ANY PERIOD
OF
SUSPENSION AS REQUIRED BY R.C.M. 1109 SINCE THERE IS NO SENTENCE PRIOR
TO
TRIAL.
WHETHER
APPELLANT'S PLEAS WERE IMPROVIDENT BECAUSE THE MILITARY JUDGE FAILED TO
ENSURE
THAT APPELLANT UNDERSTOOD THE MEANING AND EFFECT OF THE MISCONDUCT
PROVISIONS
IN THE PRETRIAL AGREEMENT, AND THE CONVENING AUTHORITY
SUBSEQUENTLY WITHDREW FROM THE SENTENCING LIMITATION PORTION OF THE
PRETRIAL
AGREEMENT BASED ON PRETRIAL MISCONDUCT.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
07-0529/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0700/AR.
MANDATES ISSUED
No.
05-0139/MC.
No.
06-0881/MC.
No.
06-0943/NA.
No.
07-0002/AR.
No.
07-0084/MC.
No.
07-0093/AR.
________________________
* It is directed
that the promulgating
order be corrected to include the Additional Charge and Specification
of
wrongful possession of drug paraphernalia, in violation of Article 134,
UCMJ,
and the plea of guilty and finding of guilty.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-190
Wednesday,
July 11, 2007
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
07-0162/AF.
No.
07-0274/AR.
No.
07-0314/NA.
No.
07-0387/NA.
No.
07-0408/NA.
No.
07-0440/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0697/AR.
No.
07-0698/AR.
No.
07-0699/NA.
INTERLOCUTORY ORDERS
No.
06-0934/NA.
No.
07-0096/AR.
No.
07-0114/AR.
No.
07-0199/AR.
No.
07-0229/NA.
No.
07-0628/AF.
* It is directed
that the promulgating
order be corrected to include the date on which sentence was adjudged
as
required by Rule for Courts-Martial 1114(c)(2).
** It is directed
that the promulgating
order be corrected to reflect indecent assault in Specification 2,
Charge III,
vice assault and battery.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-189
Tuesday,
July 10, 2007
APPEALS - SUMMARY
DISPOSITIONS
No. 07-0539/MC.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0539/MC.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
07-0392/AR.
No.
07-0419/AR.
No.
07-0424/AF.
No.
07-0426/AF.
No.
07-0439/AR.
No.
07-0445/NA.
No.
07-0447/AR.
No.
07-0466/AF.
No.
07-0507/AF.
No.
07-0509/MC.
No.
07-0561/AR.
No.
07-0577/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0693/AR.
No.
07-0694/AR.
No.
07-0695/MC.
No.
07-0696/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-188
Monday,
July
9, 2007
PETITIONS FOR GRANT OF REVIEW FILED
No.
07-0686/AR.
No.
07-0687/AR.
No.
07-0688/AR.
No.
07-0689/AF.
No.
07-0690/AF.
No.
07-0691/NA.
No.
07-0692/AR.
INTERLOCUTORY ORDERS
No.
07-0522/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-187
Friday,
July 6, 2007
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0678/AR.
No.
07-0679/AR.
No.
07-0680/AR.
No.
07-0681/AR.
No.
07-0682/AF.
No.
07-0683/AF.
No.
07-0684/AF.
No.
07-0685/AF.
INTERLOCUTORY ORDERS
No.
07-0057/AR.
No.
07-0173/AR.
No.
07-0617/AR.
No.
07-0619/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-186
Thursday,
July 5, 2007
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0677/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-185
Tuesday,
July 3, 2007
PETITIONS FOR GRANT OF
REVIEW FILED
No.
07-0676/MC.
INTERLOCUTORY ORDERS
No.
07-0105/NA.
No.
07-0476/NA.
No.
07-0490/AF.
No.
07-0523/NA.
No.
07-0604/AR.
No.
07-0614/AR.
No.
07-0621/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
07-184
Monday,
July 2, 2007
PETITIONS
FOR GRANT OF
REVIEW FILED
No.
07-0670/AR.
No.
07-0671/AR.
No.
07-0672/AF.
No.
07-0673/AF.
No.
07-0674/AF.
No.
07-0675/NA.