UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-098
Friday,
January 29, 2010
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0171/AR.
PETITIONS FOR GRANT OF REVIEW FILED
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-097
Thursday,
January 28, 2010
PETITIONS FOR GRANT
OF REVIEW FILED
No.
10-0244/AR.
No.
10-0245/AR.
INTERLOCUTORY
ORDERS
No.
08-0683/AR.
No.
09-0597/AF.
RYAN,
Judge, with whom ERDMANN, Judge, joins (dissenting):
Article 67(a),
Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §
867(a)
(2006), authorizes this Court to “review the record” in certain cases. The attachment at issue is not part of “the
record”: it was presented neither at trial nor at the Court of Criminal
Appeals
(CCA). Appellant gives no reason for his
failure to add this material to the record before now.
C.A.A.F.
R. 30A(a) recognizes that we “will normally not consider
any facts outside of the record established at the trial and the Court
of
Criminal Appeals.” Since this limitation
is consonant with Article 67, UCMJ, it seems a prudent rule. Nothing indicates that the circumstances
under which this attachment is presented are extraordinary: Appellant
asserts
that the document he seeks to attach is “necessary to show . . . what
contributed to [his] negative behavior, the severity of his PTSD, and
his need
for continued therapy,” but he proffers no reason, let alone good
cause, for
failing to present it to the CCA. Before
we depart from the “normal” practice memorialized in Rule 30A(a), a
movant must
show that his situation is somehow unusual.
Because Appellant has not done so, I would follow the mandate of
Article
67, UCMJ, and the “normal” practice discussed in Rule 30A(a) and deny
the
motion.
No.
10-0074/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-096
Wednesday,
January 27, 2010
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0034/AR.
No.
10-0095/AR.
No.
10-0127/AF.
No.
10-0180/AR.
No.
10-0189/AF.
No.
10-0194/AR.
No.
10-0200/AR.
No.
10-0207/AR.
No.
10-0209/AF.
No.
10-0210/AF.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No.
09-0795/MC.
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, 68
M.J. 79, 80 (C.A.A.F. 2009) (Effron, C.J., concurring in the result).
BAKER, Judge
(concurring in the result):
I concur in the
result
because I would deny the petition. See
United States v. Angell, 68 M.J. 79, 80 (C.A.A.F. 2009) (Baker,
J.,
concurring in the result) 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.
10-0242/AR.
No.
10-0243/MC.
DAILY
JOURNAL
No.
10-095
Tuesday,
January 26, 2010
HEARINGS
No.
09-0441/AF.
No.
09-0589/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0202/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
No. 10-5002/NA.
INTERLOCUTORY ORDERS
No.
10-0240/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-094
Monday,
January 25, 2010
HEARINGS
No.
07-0870/AF.
No.
10-0020/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0240/NA.
No.
10-0241/NA.
MANDATES ISSUED
No.
08-0757/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-093
Friday,
January 22, 2010
APPEALS-SUMMARY DISPOSITIONS
No. 09-5005/AF.
The record of
trial is returned to the Judge
Advocate General of the Air Force for remand to the Court of Criminal
Appeals
for a new review under Article 66, UCMJ, 10 U.S.C. § 866.
Thereafter, Article 67, UCMJ, 10 U.S.C. § 867
shall apply.
1 WHETHER THE AIR
FORCE COURT
OF CRIMINAL APPEALS ERRED IN HOLDING THAT THAT ADMISSION OF TWO
PROSECUTION
EXHIBITS EVIDENCING APPELLANT’S CONTINUED DRUG USE CONSTITUTED PLAIN
ERROR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0239/AR.
INTERLOCUTORY ORDERS
No.
09-0589/AR.
No.
10-0144/AR.
No.
10-5001/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-092
Thursday,
January 21, 2010
APPEALS - SUMMARY
DISPOSITIONS
No. 10-0001/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 09-0822/AR.
WHETHER
THE ARMY COURT ERRONEOUSLY AFFIRMED APPELLANT'S SENTENCE WHICH INCLUDED
A BAD-CONDUCT
DISCHARGE WHERE APPELLANT RECEIVED A VALID HONORABLE DISCHARGE FROM THE
Briefs
will be filed under Rule 25.
No. 10-0001/AR.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
09-0801/AR.
No.
10-0201/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0235/AF.
No.
10-0236/AF.
No.
10-0237/AF.
No.
10-0238/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-091
Wednesday,
January 20, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
09-0810/AR.
No.
10-0105/AF.
No.
10-0124/AF.
No.
10-0136/AR.
No.
10-0186/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 10-0228/AR.
No.
10-0229/AR.
No.
10-0230/AR.
No.
10-0231/AR.
No.
10-0232/AF.
No.
10-0233/AF.
No.
10-0234/AF.
INTERLOCUTORY ORDERS
No.
09-0759/NA.
No.
10-0222/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-090
Tuesday,
January 19, 2010
PETITIONS FOR GRANT OF REVIEW DENIED
No.
09-0658/AF.
No.
09-0803/MC.
No.
09-0805/AR.
No.
10-0036/MC.
No.
10-0133/AR.
No.
10-0140/AR.
No.
10-0166/AR.
No.
10-0191/AF.
No.
10-0195/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0222/MC.
No.
10-0223/AF.
No.
10-0224/AF.
No.
10-0225/AF.
No.
10-0226/AF.
No.
10-0227/AF.
INTERLOCUTORY ORDERS
No.
09-0658/AF.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-089
Friday,
January 15, 2010
APPEALS - SUMMARY
DISPOSITIONS
No. 08-0283/MC.
No. 08-0307/AF.
No. 08-0779/AR.
ORDERS GRANTING PETITION FOR REVIEW
No. 07-0401/NA.
WHETHER
THE LOWER COURT ERRED IN HOLDING THAT THERE WAS NOTHING IMPERMISSIBLE
IN THE
MILITARY
JUDGE
ALLOWING THE GOVERNMENT TO INTRODUCE LIE DETECTOR TESTIMONY IN
VIOLATION OF
MILITARY RULE OF EVIDENCE 702.
WHETHER
THE LOWER COURT
DENIED APPELLANT DUE PROCESS WHEN IT DENIED HIM RELIEF DUE TO EXCESSIVE
POST-TRIAL PROCESSING DELAY AND DENIED HIS SUPPLEMENTAL ASSIGNMENTS OF
ERROR.
Briefs
will be filed under Rule 25.
No. 08-0283/MC.
No. 08-0307/AF.
No. 08-0779/AR.
No. 09-0729/MC.
WHETHER
THE COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT'S CONVICTION
FOR
ATTEMPTING TO ENTICE A MINOR TO ENGAGE IN ILLEGAL SEXUAL ACTIVITY, IN
VIOLATION
OF 18 U.S.C. SECTION 2422(b), WHERE THE RECORD OF TRIAL FAILED TO SHOW
THAT
APPELLANT TOOK THE "SUBSTANTIAL STEP" NECESSARY FOR AN ATTEMPT
CONVICTION UNDER THE STATUTE.
Briefs
will be filed under Rule 25.
No. 09-0754/AF.
WHETHER
THE HOUSEBREAKING CHARGE SHOULD BE SET ASIDE BECAUSE THE UNDERLYING
CRIMINAL
OFFENSE, INDECENT ACTS WITH ANOTHER UNDER ARTICLE 134, UCMJ, IS A
PURELY
MILITARY OFFENSE.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
09-0549/MC.
No.
09-0617/AR.
No.
09-0619/NA.
No.
09-0744/AF.
No.
09-0811/AF.
No.
10-0026/MC.
No.
10-0066/AR.
No.
10-0084/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0221/AR.
INTERLOCUTORY ORDERS
No.
09-0658/AF.
No.
09-0810/AR.
No. 10-0036/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-088
Thursday,
January 14, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0003/AR.
No.
10-0083/AF.
No.
10-0106/AF.
No.
10-0163/AR.
No.
10-0170/AR.
No.
10-0184/AR.
No.
10-0192/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0218/AR.
No.
10-0219/AR.
No.
10-0220/AR.
INTERLOCUTORY ORDERS
No.
09-0535/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-087
Wednesday,
January 13, 2010
HEARINGS
No.
09-0242/MC.
No.
10-0030/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
10-0025/AR.
No.
10-0086/AR.
No.
10-0098/AR.
No.
10-0116/AR.
No.
10-0147/AR.
No.
10-0181/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0217/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-086
Tuesday,
January 12, 2010
HEARINGS
No.
09-0458/AF.
No.
09-0523/AF.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
09-0804/AR.
No.
09-0814/AR.
No.
10-0151/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0213/AR.
No.
10-0214/AR.
No.
10-0215/AR.
No.
10-0216/AF.
INTERLOCUTORY ORDERS
No. 10-0208/AF.
No.
10-5001/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-085
Monday,
January 11, 2010
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0211/CG.
No.
10-0212/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-084
Friday,
January 8, 2010
PETITIONS FOR GRANT OF REVIEW DENIED
No. 09-0813/AF.
No. 10-0120/AR.
No. 10-0125/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 10-0207/AR.
No. 10-0208/AF.
No. 10-0209/AF.
No. 10-0210/AF.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 10-8006/MC. Wade L. WALKER,
Appellant v. Eugene ROBINSON,
INTERLOCUTORY ORDERS
No. 10-0188/AR.
MANDATES ISSUED
No. 08-0660/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-083
Thursday,
January 7, 2010
PETITIONS FOR GRANT OF
REVIEW FILED
No.
10-0204/AR.
No.
10-0205/AR.
No.
10-0206/AR.
INTERLOCUTORY ORDERS
No.
10-0077/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-082
Wednesday,
January 6, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 10-0107/AF.
No. 10-0130/AR.
No. 10-0156/AF.
No. 10-0162/AR.
No. 10-0167/AF.
No. 10-0169/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No. 10-6005/AF.
INTERLOCUTORY ORDERS
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-081
Tuesday,
January 5, 2010
APPEALS - SUMMARY DISPOSITIONS
No. 10-0024/MC.
WHETHER
THE DECISION OF THE UNITED STATES NAVY-MARINE CORPS COURT OF
CRIMINAL APPEALS IS AMBIGUOUS AS TO WHETHER THE AFFIRMED SENTENCE
INCLUDED
FORFEITURE OF ALL PAY AND ALLOWANCES.
The decision of the United
States
Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings
but set
aside as to sentence. The record of
trial is returned to the Judge Advocate General of the Navy for remand
to the
United States Navy-Marine Corps Court of Criminal Appeals for
clarification as
to the affirmed sentence. Thereafter
Article 67, UCMJ, shall apply.
ORDERS GRANTING
PETITION FOR REVIEW
No. 10-0013/AF.
WHETHER THE
MILITARY JUDGE ERRED IN
FINDING APPELLANT'S ADDITIONAL URINALYSES CONDUCTED PURSUANT TO UNITED
STATES
v. BICKEL, 30 M.J. 277 (C.M.A. 1990), WERE FOR A PERMISSIBLE
PURPOSE.
Briefs will be
filed under Rule 25.
PETITIONS FOR GRANT
OF REVIEW DENIED
No.
09-0727/AF.
No.
09-0756/AR.
No.
09-0787/AR.
No.
10-0090/AR.
CERTIFICATES FOR REVIEW FILED
No. 10-5001/NA.
I.
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
ERRONEOUSLY HELD
THAT THE DUTY IMPOSED ON SAILORS BY CHIEF OF NAVAL OPERATIONS
INSTRUCTION
5350.4C TO NOTIFY THEIR COMMANDING OFFICER OF AN ARREST BY CIVIL
AUTHORITY FOR
AN ALCOHOL-RELATED OFFENSE COMPELLED A TESTIMONIAL COMMUNICATION THAT
WAS
INCRIMINATING.
II. WHETHER THE
NAVY-MARINE CORPS COURT
OF CRIMINAL APPEALS ERRONEOUSLY HELD THAT NO EXCEPTION TO THE FIFTH
AMENDMENT
SELF-INCRIMINATION CLAUSE, INCLUDING THE REGULATORY EXCEPTION DEVELOPED
IN CALIFORNIA
v. BYERS, APPLIES TO THE REPORTING REQUIREMENT IN CHIEF OF NAVAL
OPERATIONS
INSTRUCTION 5350.4C.
Appellee shall
file an answer to Appellant’s
brief on or before January 15, 2010.
Appellant may file a reply no later than 5 days after the filing
of
Appellee’s answer.
PETITIONS FOR GRANT
OF REVIEW FILED
No.
08-0683/AR.
No.
10-0201/AR.
No.
10-0202/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
10-080
Monday,
January 4, 2010
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
10-0052/MC.
No.
10-0064/AF.
No.
10-0080/AR.
No.
10-0088/AR.
No.
10-0123/AF.
No.
10-0138/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
10-0200/AR.
INTERLOCUTORY ORDERS
No.
09-0441/AF.