UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
09-181
Friday,
May 29, 2009
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0636/AF.
No. 09-0637/AF.
No. 09-0638/AF.
No. 09-0639/AF.
No. 09-0640/AF.
No. 09-0641/AF.
No. 09-0642/AF.
No. 09-0643/AF.
No. 09-0644/AF.
No. 09-0645/AF.
No. 09-0646/AF.
No. 09-0647/AF.
No. 09-0648/AR.
INTERLOCUTORY ORDERS
No. 09-0258/NA.
No. 09-0568/AR.
No. 09-0569/AR.
No. 09-0570/AR.
No. 09-0572/AR.
No. 09-0573/AR.
No. 09-0574/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
09-180
Thursday,
May 28, 2009
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
08-0694/AR.
No.
08-0765/AF.
No.
09-0118/AR.
No.
09-0238/MC.
No.
09-0354/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
09-0634/AR.
No.
09-0635/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
09-8021/NA. In Re San K. SEZGINALP. On consideration of the petition for
extraordinary relief, it is ordered that said petition is hereby denied.
MADATES ISSUED
No.
08-0390/NA.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
09-179
Wednesday,
May 27, 2009
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0209/NA.
No. 09-0221/MC.
No. 09-0231/AF.
No. 09-0277/MC.
No. 09-0279/NA.
No. 09-0359/MC.
No. 09-0411/AR.
No. 09-0439/AR.
No. 09-0457/AF.
No. 09-0501/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0631/AF.
No. 09-0632/AF.
No. 09-0633/AF.
INTERLOCUTORY ORDERS
No. 09-0235/AR.
BITNER,
Robert D., 09-0199/AF
BLAZIER, Joshua C., 09-0441/AF
BOSS, Derrick D., 09-0587/AF
JACKSON, Chane, 09-0562/AF
JONES, Steven L., 09-0271/AF
LEWIS, Shane W., 09-0384/AF
MAY, Willie L., 09-0430/AF
NAVE, Lantz E., 09-0385/AF
PARKER, Jr., Charlie,
09-0547/AF
SANCHEZ, Jr., Benjamin P.,
09-0354/AF
SNOW,
Jamario C., 09-0565/AF
SUTTON, James W., 09-0458/AF
On consideration of the motions filed by
Major Lance J. Wood for leave to withdraw as counsel in the
above-entitled
cases, it appears that the Judge Advocate General has assigned another
counsel
to represent the Appellants and that the new counsel has assumed
representation
of said Appellants. Accordingly, it is
ordered that said motions are hereby granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
09-178
Tuesday,
May 26, 2009
APPEALS - SUMMARY DISPOSITIONS
No. 08-0474/AR.
No. 09-0383/AF.
ORDERS GRANTING PETITION
FOR REVIEW
No. 08-0474/AR.
No. 09-0380/AF.
WHERE THE
MILITARY JUDGE
FOUND THAT APPELLANT AND HIS WIFE HAD A PRIVATE CONVERSATION WHILE
MARRIED AND
NOT SEPARATED, WAS THE MILITARY JUDGE CORRECT THAT APPELLANT COULD
CLAIM THE
PRIVILEGE UNDER MIL. R. EVID. 504 ONLY AS TO HIS STATEMENTS DURING THAT
CONVERSATION BUT NOT TO HIS WIFE'S AS WELL.
WHETHER THE AIR
FORCE COURT
OF CRIMINAL APPEALS ERRED IN FINDING THERE WAS NO HARM AFTER
OVERTURNING THE MILITARY
JUDGE'S RULING THAT APPELLANT'S ACT OF SHOWING HIS WIFE THAT HE HAD
DELETED THE
PICTURES HE SAID HE WOULD WAS NOT COMMUNICATIVE AND THEREFORE NOT
PRIVILEGED
UNDER MIL. R. EVID. 504.
Briefs will be file under Rule 25.
No. 09-0383/AF.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 09-0071/AR.
No. 09-0149/AF.
No. 09-0199/AF.
No. 09-0249/AF.
No. 09-0310/AR.
No. 09-0320/AR.
No. 09-0323/MC.
No. 09-0364/AR.
No. 09-0438/AR.
No. 09-0469/AR.
No. 09-0475/AF.
No. 09-0477/AR.
No. 09-0483/AR.
No. 09-0484/AR.
No. 09-0493/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 07-0553/NA.
No. 09-0618/CG.
No. 09-0619/NA.
No. 09-0620/AR.
No. 09-0621/AR.
No. 09-0622/AR.
No. 09-0623/AR.
No. 09-0624/AR.
No. 09-0625/AR.
No. 09-0626/AR.
No. 09-0627/AR.
No. 09-0628/AR.
No. 09-0629/AR.
No. 09-0630/AR.
MISCELLANEOUS DOCKET -
FILINGS
INTERLOCUTORY ORDERS
No. 09-0370/AR.
No. 09-0342/AF.
No. 09-0396/AF.
No. 09-0420/AR.
No. 09-0434/AR.
No. 09-0441/AF.
On consideration
of the petitions for grant of
review in the above-listed cases, it appears that said petitions may be
untimely. See
____________________
*
It is directed
that the promulgating order be
corrected to reflect that Specification 9, Charge II, be modified to
exclude
the words “on divers occasions.”
**
Second petition filed in this case.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
09-177
Friday,
May 22, 2009
APPEALS - SUMMARY
DISPOSITIONS
No.
09-0143/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0143/AR.
[See also
APPEALS-SUMMARY DISPOSITIONS this date.]
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0614/MC.
No. 09-0615/AR.
No. 09-0616/AR.
No. 09-0617/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
09-8023/NA. In Re Michael R. CROTCHETT. CCA 200800770. On
consideration of the
motion to withdraw the petition for extraordinary relief in the nature
of a
writ of mandamus, said motion is hereby granted.
Misc. No.
09-8024/NA. In Re William C. FAIRLEY. CCA 200800762. On
consideration of the motion to withdraw the petition for extraordinary
relief
in the nature of a writ of mandamus, said motion is hereby granted.
PETITIONS FOR RECONSIDERATION DENIED
No.
08-0534/NA.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell,
No. 09-0098, __ M.J. __ (C.A.A.F. 2009) (Effron, C.J., concurring in
the
result).
BAKER, Judge
(concurring in the result):
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009)(Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009)(Baker, J., dissenting).
INTERLOCUTORY ORDERS
No. 08-0757/AR.
No. 09-0433/AR.
No. 09-0513/AF.
No. 09-0553/AR.
No. 09-5002/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
09-176
Thursday,
May 21, 2009
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
09-0217/NA.
No.
09-0227/AR.
No.
09-0244/AF.
No.
09-0261/AF.
No.
09-0295/AR.
No.
09-0331/AF.
No.
09-0357/AF.
No.
09-0388/AR.
No.
09-0397/AF.
No.
09-0398/AF.
No.
09-0437/AR.
No. 09-0455/AF.
No.
09-0463/AF.
No.
09-0487/AR.
No.
09-0494/AF.
No.
09-0515/AR.
No.
09-0525/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
09-0612/AR.
No.
09-0613/AR.
MANDATES ISSUED
No.
08-0452/AF.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
09-175
Wednesday,
May 20, 2009
ORDERS GRANTING
PETITION FOR REVIEW
No.
08-0339/AF.
WHETHER, HAVING
FOUND
KNOWING VIOLATIONS OF AFI 31-205, THE MILITARY JUDGE ERRED IN NOT
DETERMINING
THAT THE VIOLATION INVOLVED AN ABUSE OF DISCRETION WARRANTING CREDIT
UNDER RCM
305(K).
WHETHER THE
CONDITIONS OF
APPELLANT'S PRETRIAL CONFINEMENT IN SUICIDE WATCH, WHICH INCLUDED,
INTER ALIA,
DENIAL OF BOOKS, A RADIO, AND/OR A CD PLAYER, AND 24-HOUR-A-DAY
LIGHTING, WERE
SO EXCESSIVE THAT THEY CONSTITUTE PUNISHMENT IN VIOLATION OF ARTICLE
13, UCMJ, AND
THUS, APPELLANT IS ENTITLED TO ADDITIONAL SENTENCE CREDIT.
Briefs will be
filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0012/AR.
No. 09-0412/AF.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No. 09-0098/AR.
We note that in
proffering a basis for the relief
requested in the motion for leave to file the petition for grant of
review out
of time, appellate defense counsel informed the Court that he had
assured
Appellant he would file the petition for grant of review.
Despite this assurance, counsel states, “The
undersigned appellate counsel’s inefficiency resulted in the Petition
for Grant
of Review not being filed until 16 October 2008.” Thus,
counsel’s conduct is the cause of
Appellant being denied his right to petition this Court for a grant of
review. This neglect raises professional
responsibility concerns.
Prior to our
decision in Rodriguez, the Court
had permitted a petition for grant of review to be filed out of time
where the
cause of that late filing was the act or omission of appellate counsel. See
Rule 15(c) of
this Court’s Rules of Practice and
Procedure provides: “If it appears that a member of the Bar of this
Court has
engaged in conduct unbecoming a member of the Bar, or failed to comply
with
this Rule or any other Rule or order of the Court, the Court may enter
an order
affording the member an opportunity to show cause, within 30 days, why
disciplinary action should not be taken.”
Under this Rule, the Court could exercise its discretion in
cases where
counsel is or may be responsible for filing a petition for grant of
review out
of time and order the appellate counsel involved to show cause. However, in light of the Court’s past
practice, we decline to do so at this point.
Nonetheless, appellate counsel should take careful note of Rodriguez
and be fully aware of the professional responsibility issues inherent
in
protecting a client’s access to the Court. In
the future, we may consider those cases
where appellate counsel is or appears to be responsible for failing to
timely
invoke the jurisdiction of this Court as raising potential professional
responsibility issues and we will consider exercising our discretion to
initiate inquiry under Rule 15(c) of this Court’s Rules of Practice and
Procedure. Accordingly, it is ordered that
the Appellant’s motion for leave to file the petition for grant of
review out
of time is hereby denied.
EFFRON, Chief
Judge (concurring in the result):
Although I would
adhere to
our longstanding treatment of time limitations for petitions as
nonjurisdictional, see United States v. Rodriguez, 67
M.J. 110,
117 (C.A.A.F. 2009) (Effron, C.J., dissenting), I recognize that Rodriguez
is the controlling decision at the present time with respect to
petitions filed
under Article 67(a)(1), Uniform Code of Military Justice (UCMJ), 10
U.S.C. §
867(a)(1) (2000). See id.
at 116 (majority opinion) (treating time limitations for petitions as
jurisdictional).
Irrespective of
the
jurisdictional treatment of petitions, Appellant’s case is subject to
review in
our Court under Article 67(a)(2) -- the authority of the Judge Advocate
General
to certify cases for review. See Rodriguez,
67 M.J. at 116 n.11 (majority opinion).
Consideration of certification under Article 67(a)(2) by the
Judge
Advocate General would appear to be particularly appropriate in view of
the
professional responsibility of counsel appointed by the Judge Advocate
General
to ensure timely filing. See
Article 70, UCMJ, 10 U.S.C. § 870 (2000).
Cf. Article 6(a), UCMJ, 10 U.S.C. § 806(a) (2000) (noting
the
responsibilities of the Judge Advocate General regarding supervision of
the
administration of military justice).
BAKER,
Judge (concurring in the result):
I
would continue to apply this Court’s longstanding precedent and
interpretation
of Article 67, UCMJ, and treat the time limitations for petitions as
nonjurisdictional. See United
States v. Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009) (Baker, J.,
dissenting). However, for the reasons
set forth in Chief Judge Effron's separate opinion in the present case,
United
States v. Angell, ___ M.J. ___ (C.A.A.F. 2009) (Effron, C.J.,
concurring),
I concur in the result. I also echo the
Chief Judge’s suggestion that the Judge Advocates General (TJAGs)
consider
certification of cases to this Court under Article 67(a)(2), UCMJ. Such consideration is appropriate in light of
the TJAGs’ responsibility to train and assign personnel to the
appellate
defense offices. Consideration would
seem particularly appropriate in cases where the facts of service are
uncertain
and/or a filing may have been delayed as a result of an administrative
oversight or confusion on the part of government-assigned staff or
defense
counsel at the trial or appellate level.
Prior to Rodriguez, this Court would have addressed such
factors
through application of this Court’s Rules of Practice and Procedure
permitting
review of out-of-time petitions for good cause shown, which, of course,
is
different than granting the case. Now
that this Court has moved the goal posts, numerous appellants may find
that
they are denied review before a federal civilian appellate court. Likewise, numerous defense counsel may find
that they have been playing out of bounds.
To remedy these situations, the TJAGs retain the opportunity to
determine whether the ineffective assistance of counsel claims that may
be
generated by the many delayed filings now barred by Rodriguez
are best
addressed either within the military appellate process or through
collateral
review in the Article III courts. Among
other things, review before this court will provide for the application
of
uniform standards, as Congress intended.
It will also allow the military justice system to determine
whether any
underlying claims, involving untimely appeals, can be addressed through
application of the prejudice prong of Strickland v. Washington,
466 U.S.
668 (1984).
No. 08-0612/AF.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell,
No. 09-0098, ___ M.J. ___ (C.A.A.F. 2009) (Effron, C.J., concurring in
the
result).
BAKER, Judge
(concurring in the result).
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009) (Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009) (Baker, J.,
dissenting).
No. 08-0618/AF.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell,
No. 09-0098, __ M.J. __ (C.A.A.F. 2009) (Effron, C.J., concurring in
the
result).
BAKER, Judge
(concurring in the result):
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009)(Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009)(Baker, J., dissenting).
No.
08-0653/AR.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell,
No. 09-0098, ___ M.J. ___ (C.A.A.F. 2009) (Effron, C.J., concurring in
the
result).
BAKER, Judge
(concurring in the result).
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009) (Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009) (Baker, J.,
dissenting).
No.
08-0688/AR.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell,
No. 09-0098, ___ M.J. ___ (C.A.A.F. 2009) (Effron, C.J., concurring in
the
result).
BAKER,
Judge (concurring in the result).
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009) (Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009) (Baker, J.,
dissenting).
No. 09-0097/AR.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell,
No. 09-0098, __ M.J. __ (C.A.A.F. 2009) (Effron, C.J., concurring in
the
result).
BAKER, Judge
(concurring in the result):
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009)(Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009)(Baker, J., dissenting).
No. 09-0144/AR.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell,
No. 09-0098, __ M.J. __ (C.A.A.F. 2009) (Effron, C.J., concurring in
the
result).
BAKER, Judge
(concurring in the result):
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009)(Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009)(Baker, J., dissenting).
No. 09-0291/AF.
EFFRON, Chief
Judge (concurring in the result):
I concur in the
result and
note that Appellant’s case remains subject to review in our Court under
Article
67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2). See United States v. Angell,
No. 09-0098, __ M.J. __ (C.A.A.F. 2009) (Effron, C.J., concurring in
the
result).
BAKER, Judge
(concurring in the result):
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009)(Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009)(Baker, J., dissenting).
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0610/NA.
No. 09-0611/AR.
INTERLOCUTORY ORDERS
No.
08-0547/NA.
EFFRON, Chief
Judge (concurring in the result):
I would adhere to
our
longstanding treatment of time limitations for petitions as
nonjurisdictional, see
United States v. Rodriguez, 67 M.J. 110, 117 (C.A.A.F. 2009)
(Effron,
C.J., dissenting), and concur in the result.
BAKER, Judge
(concurring in the result):
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009)(Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009)(Baker, J., dissenting).
No. 08-0746/MC.
No.
09-0072/AR.
EFFRON, Chief
Judge (concurring in the result):
I would adhere to
our
longstanding treatment of time limitations for petitions as
nonjurisdictional, see
United States Rodriguez, 67 M.J. 110, 117 (C.A.A.F. 2009)
(Effron, C.J.,
dissenting), and concur in the result.
BAKER, Judge
(concurring in the result):
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009)(Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009)(Baker, J., dissenting).
No. 09-0177/AR.
EFFRON, Chief
Judge (concurring in the result):
I would adhere to
our
longstanding treatment of time limitations for petitions as
nonjurisdictional, see
United States v. Rodriguez, 67 M.J. 110, 117 (C.A.A.F. 2009)
(Effron,
C.J., dissenting), and concur in the result.
BAKER, Judge
(concurring in the result):
I concur in the
result. See United States v.
Angell, __
M.J. __ (C.A.A.F. 2009)(Baker, J., concurring), and United States
v.
Rodriguez, 67 M.J. 110, 120 (C.A.A.F. 2009)(Baker, J., dissenting).
No. 09-0536/AR.
No. 09-0537/AR.
No. 09-0539/AR.
No. 09-0541/AR.
No. 09-0542/AR.
MANDATES ISSUED
No. 05-0647/NA.
No. 06-0591/AR.
No. 08-0596/AF.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-174
Tuesday, May 19,
2009
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0606/AR.
No. 09-0607/AR.
No. 09-0608/AR.
No. 09-0609/AR.
MISCELLANEOUS DOCKET - FILINGS
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-173
Monday, May 18,
2009
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0596/AF.
No. 09-0597/AF.
No. 09-0598/AF.
No. 09-0599/AF.
No. 09-0600/AF.
No. 09-0601/AF.
No. 09-0602/AF.
No. 09-0603/NA.
No. 09-0604/MC.
No. 09-0605/AR.
DAILY JOURNAL
No. 09-172
Friday, May 15,
2009
CERTIFICATES FOR REVIEW FILED
No. 09-5004/NA.
I.
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN
FINDING IT HAD JURISDICTION OVER THIS ARTICLE 62, UCMJ, APPEAL, WHERE
THE APPEAL WAS TAKEN AFTER THE CASE WAS ADJOURNED AND THE MEMBERS
DISMISSED.
II. DESPITE
THE LANGUAGE OF ARTICLE 120(r), UCMJ, WHETHER THE NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT THE ARTICLE DOES NOT
PROHIBIT THE ACCUSED FROM INTRODUCING EVIDENCE OF CONSENT IN ORDER TO
NEGATE AN ELEMENT OF THE OFFENSE.
III. CONCERNING
THE AFFIRMATIVE DEFENSE SET
IV. WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS CORRECTLY HELD THAT
“LACK OF CONSENT” IS NOT AN IMPLICIT ELEMENT OF ARTICLE 120 CRIMES,
INCLUDING THE CHARGED OFFENSE, GIVEN THE DEFINITION OF “FORCE” IN
ARTICLE 120(t)(5), AND THUS ARTICLE 120, UCMJ, DOES NOT
UNCONSTITUTIONALLY SHIFT THE BURDEN TO THE ACCUSED TO “DISPROVE AN
ELEMENT OF THE OFFENSE.”
V.
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
CORRECTLY HELD THAT THE EVIDENCE TRIGGERED THE AFFIRMATIVE DEFENSE OF
CONSENT AS DEFINED IN ARTICLE 120(t)(16), UCMJ, DESPITE THE FACT THAT
THE APPELLANT FAILED TO ACKNOWLEDGE THE OBJECTIVE ACTS OF THE ALLEGED
OFFENSE.
VI. WHETHER
THE FINAL TWO SENTENCES OF ARTICLE 120(t)(16), UCMJ, WHICH ALLOWS FOR
CONSIDERATION AS TO WHETHER THE GOVERNMENT HAS DISPROVED THE
AFFIRMATIVE DEFENSE OF CONSENT BEYOND A REASONABLE DOUBT, AFTER THE
ACCUSED HAS PROVED THE DEFENSE BY A PREPONDERANCE OF THE EVIDENCE,
CREATE A LEGALLY IMPOSSIBLE BURDEN ALLOCATION.
Appellee will
file a brief regarding the certified issues on or before May 26, 2009.
Appellant may file a reply no later than five days after the
filing of Appellee’s brief.
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0593/MC.
No. 09-0594/NA.
No. 09-0595/AR.
DAILY JOURNAL
No. 09-171
Thursday, May 14,
2009
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0299/AR.
No. 09-0406/AR.
No. 09-0413/AF.
No. 09-0425/AR.
No. 09-0485/AR.
No. 09-0488/AR.
No. 09-0506/AR.
No. 09-0557/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0592/AR.
INTERLOCUTORY ORDERS
No. 09-0169/AR.
No. 09-0495/AR.
No. 09-0503/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-170
Wednesday, May
13, 2009
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0591/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-170
Wednesday, May
13, 2009
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0591/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-169
Tuesday, May 12,
2009
PETITIONS FOR GRANT OF REVIEW FILED
No. 05-0159/AR.
No. 09-0588/AR.
No. 09-0589/AR.
No. 09-0590/AR.
PETITIONS FOR RECONSIDERATION DENIED
INTERLOCUTORY ORDERS
No. 09-0517/AR.
No. 09-0531/AR.
* Third petition
filed in this case.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-168
Monday, May 11,
2009
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0351/AF.
No. 09-0394/AR.
No. 09-0468/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0584/AF.
No. 09-0585/AF.
No. 09-0586/AF.
No. 09-0587/AF.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-167
Friday, May 8,
2009
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0040/NA.
No. 09-0195/AR.
No. 09-0318/NA.
No. 09-0325/AF.
No. 09-0360/AR.
No. 09-0405/AR.
No. 09-0467/AF.
No. 09-0497/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0582/AF.
No. 09-0583/AF.
INTERLOCUTORY ORDERS
No. 09-0512/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-166
Thursday, May 7,
2009
APPEALS - SUMMARY DISPOSITIONS
No. 09-0057/AR.
* Noting that the
opinion of the United States Army Court of Criminal Appeals erroneously
listed Appellant’s middle initial as R, vice A, it is directed that the
middle initial be corrected.
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0057/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0099/AR.
No. 09-0184/AF.
No. 09-0456/AF.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
09-8023/NA. In Re Michael R. CROTCHETT.
CCA 200800770. Notice is hereby given that a
petition for extraordinary relief in the nature of a writ of mandamus
was filed under Rule 27(a) on this date.
Misc. No.
09-8024/NA. In Re William C. FAIRLEY. CCA
200800762. Notice is hereby given that a petition
for extraordinary relief in the nature of a writ of mandamus was filed
under Rule 27(a) on this date.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-165
Wednesday, May 6,
2009
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0270/AF.
PETITIONS FOR GRANT OF REVIEW FILED
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-164
Tuesday, May 5,
2009
ORDERS GRANTING PETITION FOR REVIEW
No. 08-0344/AR.
SHOULD THE
MILITARY JUDGE HAVE DISMISSED CHARGE III AS PREEMPTED, MULTIPLICIOUS,
AND AN UNREASONABLE MULTIPLICATION OF CHARGES; AND THE ADDITIONAL
CHARGE AS MULTIPLICIOUS WITH CHARGE I, SPECIFICATION 1, AND AN
UNREASONABLE MULTIPLICATION OF CHARGES WITH CHARGE I, SPECIFICATION 2?
WAS APPELLANT
AFFORDED A FAIR TRIAL EVEN THOUGH HIS REQUEST FOR A FORENSIC
PSYCHIATRIST WAS DENIED AND THE GOVERNMENT THEREAFTER AVAILED ITSELF OF
A FORENSIC PSYCHIATRIST AND ATTACKED THE QUALIFICATIONS OF THE VERY
EXPERT IT DID MAKE AVAILABLE TO THE DEFENSE?
Briefs will be
filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 08-0579/AR.
No. 09-0246/AF.
No. 09-0274/AF.
No. 09-0298/AR.
No. 09-0391/AR.
No. 09-0451/AR.
No. 09-0459/AF.
INTERLOCUTORY ORDERS
No. 08-0719/CG.
No. 09-0472/AR.
No. 09-0481/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-163
Monday, May 4,
2009
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0576/AF.
No. 09-0577/AF.
No. 09-0578/AR.
No. 09-0579/AR.
No. 09-0580/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
09-8019/AR. Joshua A. DIXON, Appellant v. F. L.
HAGENBECK, Lieutenant General, U.S. Army Convening Authority, and
Andrew J. GLASS, Lieutenant Colonel, U.S. Army, Military Judge, and The
United States, Appellees. CCA 20090001.
On consideration of the writ-appeal petition, said petition is
hereby denied.
INTERLOCUTORY ORDERS
No. 09-0489/AF.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 09-162
Friday, May 1,
2009
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0167/AF.
No. 09-0216/AR.
No. 09-0346/AF.
No. 09-0347/AF.
No. 09-0352/AF.
No. 09-0378/AF.
No. 09-0402/AR.
No. 09-0416/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 09-0575/AF.
INTERLOCUTORY ORDERS
No. 08-0644/AR.