UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-157
Friday,
April 29, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No.
11-0471/AR.
No.
11-0472/AR.
No.
11-0473/AR.
No.
11-0474/AR.
MISCELLANEOUS DOCKET - FILINGS
Misc. No.
11-8023/AR. Adam WINFIELD, Petitioner v.
Kwasi Hawks,
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-156
Thursday,
April 28, 2011
APPEALS - SUMMARY
DISPOSITIONS
No.
11-0393/NA.
WHETHER
THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY
PURPORTING TO AFFIRM "TOTAL FORFEITURE OF PAY AND ALLOWANCES" WHERE
THE CONVENING AUTHORITY SPECIFICALLY
DISAPPROVED SUCH PUNISHMENT. SEE ARTICLE 66(c), UCMJ.
ORDERS GRANTING PETITION FOR REVIEW
No. 11-0293/CG.
WHETHER
AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY
ALLEGE
EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME
COURT'S
HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v.
UNITED STATES,
AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND
JONES.
No
briefs will be filed under Rule 25.
No. 11-0393/NA.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
11-0372/AR.
No.
11-0402/AF.
No.
11-0404/AF.
No.
11-0406/AF.
No.
11-0407/AF.
No.
11-0408/AF.
No.
11-0409/AF.
No.
11-0412/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0468/AR.
No.
11-0469/AR.
No.
11-0470/AR.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-155
Wednesday,
April 27, 2011
APPEALS SUMMARY
DISPOSITIONS
No. 11-0391/AR.
WHETHER A PROPER
REVIEW
UNDER ARTICLE 66(c), UCMJ, HAS BEEN CONDUCTED WHERE THERE IS NO
EVIDENCE OF THE
AUTHENTICITY OF PAGES 1 - 102 OF THE RECORD OF TRIAL AS RQUIRED BY
ARTICLE
54(a), UCMJ.
The decision of
the United
States Army Court of Criminal Appeals is set aside.
The record of trial is returned to the Judge
Advocate General of the Army for resubmission to that court for further
review.
[See also ORDERS GRANTING PETITION FOR
REVIEW this date.]
ORDERS GRANTING PETITION FOR REVIEW
No.
11-0368/AR.
WHETHER AN
ARTICLE 134
CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER
POTENTIAL
TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS
IN UNITED
STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND
THIS
COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.
No briefs will be
filed
under Rule 25.
No.
11-0391/AR.
No.
11-0419/AR.
WHETHER AN
ARTICLE 134
CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER
POTENTIAL
TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDING IN
UNITED
STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND
THIS
COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.
No briefs will be
filed
under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 00-0252/AR.
No. 11-0345/AR.
No. 11-0363/AR.
No. 11-0379/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 11-0465/MC.
No. 11-0466/AR.
No. 11-0467/AR.
UNITED STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-154
Tuesday,
April 26, 2011
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
11-0370/AR.
No.
11-0394/AR.
No.
11-0395/AR.
INTERLOCUTORY ORDERS
No.
11-0381/AR.
No.
11-0463/AR.
No.
11-8019/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-153
Monday,
April 25, 2011
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0464/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-152
Friday,
April 22, 2011
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
11-6005/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0462/AR.
INTERLOCUTORY ORDERS
No.
11-6005/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-151
Thursday,
April 21, 2011
HEARINGS
No.
11-0131/AF.
No.
11-0165/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0457/AR.
No.
11-0458/AR.
No.
11-0459/AR.
No.
11-0460/AR.
DAILY
JOURNAL
No.
11-150
Wednesday,
April 20, 2011
ORDERS GRANTING
PETITION FOR REVIEW
No.
11-0380/MC.
WHETHER AN
ARTICLE 134
CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER
POTENTIAL
TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDING IN
UNITED
STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND
THIS
COURT'S RECENT OPINIONS IN MEDINA, MILLER, AND JONES.
No briefs will be
filed
under Rule 25.
No.
11-0383/NA.
WHETHER AN
ARTICLE 134
CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER
POTENTIAL
TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDING IN
UNITED
STATES v. RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA,
MILLER, AND JONES.
No briefs will be
filed
under Rule 25.
No.
11-0401/AF.
WHETHER AN
ARTICLE 134
CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER
POTENTIAL
TERMINAL ELEMENT STATES AN OFFENSE UNDER
THE SUPREME COURT'S HOLDING IN UNITED STATES v. RESENDIZ-PONCE
AND RUSSELL
v. UNITED STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA,
MILLER,
AND JONES.
No briefs will be
filed
under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 11-0384/AR.
No. 11-0386/AR.
No. 11-0387/AR.
No. 11-0388/AR.
No. 11-0390/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No. 11-0455/AR.
No. 11-0456/MC.
INTERLOCUTORY ORDERS
No. 11-6005/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-149
Tuesday,
April 19, 2011
RULES CHANGES
Upon
careful consideration of certain proposed changes to the Rules of
Practice and
Procedure, United States Court of Appeals for the Armed Forces, which
were
presented to and reviewed by the Rules Advisory Committee of the United
States
Court of Appeals for the Armed Forces and thereafter published in the
Federal
Register for comment, it is ordered that effective May 1, 2011, Rule
9(e) and Rule
41(b) are hereby amended, as follows: (changes appear in bold typeface)
RULE
9. CLERK
(e)
Hours. The Clerk’s office shall be open
for the filing of pleadings and other papers from 8:00 a.m. to 5:00
p.m. every
day except Saturdays, Sundays, and legal holidays, or as otherwise
ordered by
the Court. See Rule 36(a). The Court is always open for filing of
pleadings and other papers. A pleading
or other paper may be filed outside of normal operating hours of the
Clerk’s
office by delivery to Court security
personnel on duty in the front lobby of the courthouse. Pleadings will be deemed filed on the date
and time delivered to Court security
personnel. Court security
personnel will notify the Clerk of the filing in
accordance with procedures provided by the Clerk.
RULE
41. PHOTOGRAPHING, TELEVISING,
RECORDING,
OR
BROADCASTING OF HEARINGS
(a) The
photographing, televising,
recording, or broadcasting of any session of the Court or other
activity
relating thereto is prohibited unless authorized by the Court.
(b) Any
violation of this rule will be
deemed a contempt of this Court and, after due notice and hearing, may
be
punished accordingly. See Article 48, UCMJ.
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
11-0341/AR. U.S. v. Kiel W.
PAAVOLA. CCA 20080890.
No.
11-0375/AR. U.S. v. Jesse B. JOHNSTON
III. CCA 20100611.
No.
11-0376/AR. U.S. v. Michael J. FERGUSON
II. CCA 20100244.
No.
11-0377/AR. U.S. v. Jason E.
MANSOUR. CCA 20100507.
No.
11-0378/AR. U.S. v. Shawn F.
FALCON. CCA 20100180.
PETITIONS FOR GRANT OF
REVIEW FILED
No.
11-0453/AR. U.S. v. Aaron M.
MITCHELL. CCA 20100713.
No.
11-0454/AR. U.S. v. Oren A. REECE. CCA 20100448.
INTERLOCUTORY ORDER
No.
11-8017/AR. In re Daniel GASKINS,
Petitioner v. HOFFMAN, et al., Respondents.
CCA 20080132. Respondents are
hereby ordered to show cause
on or before May 9, 2011, why the requested relief should not be
granted.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-148
Friday,
April 15, 2011
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0446/MC.
No.
11-0447/MC.
No. 11-0448/MC.
No.
11-0449/AR.
No.
11-0450/AR.
No.
11-0451/AR.
No.
11-0452/AR.
INTERLOCUTORY ORDERS
No.
10-0512/AR.
No.
11-0400/AR.
MANDATES ISSUED
No.
10-6010/CG.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-147
Thursday,
April 14, 2011
ORDERS GRANTING PETITION FOR REVIEW
No. 11-0282/AR.
WHETHER
APPELLANT'S FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION WAS
VIOLATED WHEN
HE WAS PROSECUTED FOR OFFENSES ABOUT WHICH HE HAD PROVIDED IMMUNIZED
STATEMENTS.
Briefs
will be filed under Rule 25.
No. 11-0303/MC.
WHETHER
AN ARTICLE 134 CLAUSE 1 OR 2 SPECIFICATION THAT FAILS TO EXPRESSLY
ALLEGE
EITHER POTENTIAL TERMINAL ELEMENT STATES AN OFFENSE UNDER THE SUPREME
COURT'S
HOLDINGS IN UNITED STATES v. RESENDIZ-PONCE AND RUSSELL v.
UNITED
STATES, AND THIS COURT'S RECENT OPINIONS IN MEDINA, MILLER,
AND JONES.
No
briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
11-0184/AR.
No.
11-0254/AR.
No.
11-0347/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
11-8020/AR. Joseph C. BOZICEVICH, Jr.,
Petitioner
v. Tara A. Osborn,
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-146
Wednesday,
April 13, 2011
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0441/AR.
No.
11-0442/AR.
No.
11-0443/AR.
No.
11-0444/AR.
No.
11-0445/AR.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
INTERLOCUTORY ORDERS
No.
07-0253/NA.
No.
10-0512/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-145
Tuesday,
April 12, 2011
PETITIONS FOR GRANT OF REVIEW DENIED
No.
11-0196/AR.
No.
11-0307/AR.
No.
11-0373/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0440/MC.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-144
Monday,
April 11, 2011
APPEALS - SUMMARY DISPOSITIONS
No.
10-0651/CG.
No.
11-0046/NA.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0438/AR.
No.
11-0439/AR.
MISCELLANEOUS DOCKET - FILINGS
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-143
Friday,
April 8, 2011
PETITIONS FOR GRANT OF
REVIEW DENIED
No.
11-0333/AF.
No.
11-0344/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0432/AF.
No.
11-0433/AR.
No.
11-0434/AR.
No. 11-0435/AR.
No.
11-0436/AR.
No.
11-0437/MC.
MISCELLANEOUS DOCKET - FILINGS
INTERLOCUTORY ORDERS
No.
11-0431/AR.
No.
11-0433/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-142
Thursday,
April 7, 2011
HEARINGS
No.
11-0166/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0428/AR.
No.
11-0429/AR.
No.
11-0430/AF.
No.
11-0431/AR.
INTERLOCUTORY ORDERS
No. 09-5003/AF.
No. 11-8019/AR. Josh R. RITTENHOUSE, Petitioner, v.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-141
Wednesday,
April 6, 2011
HEARINGS
No.
11-0148/MC.
PETITIONS FOR GRANT OF REVIEW FILED
No. 11-0427/AR.
MANDATES ISSUED
No.
10-0262/MC.
No.
10-0468/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-140
Tuesday,
April 5, 2011
PETITIONS FOR GRANT OF REVIEW DENIED
No.
11-0327/AR.
No.
11-0328/AR.
No.
11-0371/AF.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0426/AR.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-139
Monday,
April 4, 2011
ORDERS GRANTING PETITION FOR REVIEW
No. 11-0231/AR.
WHETHER
THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT'S MOTION SEEKING
ARTICLE 13
SENTENCE CREDIT FOR THE GOVERNMENT'S 278 DAY DELAY IN TRANSFERRING HIM
FROM
DEATH ROW AFTER THE COURT OF CRIMINAL APPEALS SET ASIDE THE DEATH
SENTENCE AND
AFFIRMED ONLY THOSE NON-CAPITAL CHARGES TO WHICH APPELLANT PLEADED
GUILTY.
Briefs
will be filed under Rule 25.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
11-0188/AR.
No. 11-0367/AR.
No.
11-0369/AR.
PETITIONS FOR GRANT OF REVIEW FILED
No.
11-0425/AF.
MISCELLANEOUS DOCKET - SUMMARY DISPOSITIONS
Misc. No.
11-8009/MC. Frank D. WUTERICH, Appellant v.
David L.
Jones, Lieutenant Colonel, United States Marine Corps, in his official
capacity
as Military Judge, and
In the present
writ appeal, Appellant seeks various
forms of interlocutory relief, including a writ of mandamus under the
All Writs
Act, 28 U.S.C. § 1651(a) (2006) (authorizing “all courts established by
Act of
Congress [to] issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of
law”). The Supreme Court has held that
three conditions must be met before a court may provide extraordinary
relief in
the form of a writ of mandamus: (1) the
party seeking the writ must have “no other adequate means to attain the
relief”; (2) the party seeking the relief must show that the “right to
issuance
of the relief is clear and indisputable”; and (3) “even if the first
two
prerequisites have been met, the issuing court, in the exercise of its
discretion,
must be satisfied that the writ is appropriate under the circumstances.” Cheney v.
United
States Dist. Court, 542
The present
appeal involves the status of Lieutenant
Colonel (LtCol)
A critical focus
of Appellant’s request for relief
on appeal involves an assertion that “LtCol Vokey’s conflict was not
irreconcilable. Rather, the potential
limitation on LtCol
Vokey’s representation of Appellant arose solely from an imputed
disqualification, not an actual conflict of interest.”
According to Appellant, “LtCol Vokey’s
conflict will be reconciled simply by recalling LtCol
Vokey to active duty.”
In that regard, Appellant has
requested various forms of relief, including “[r]equiring the
The defense
posture, both as to the nature of the
alleged conflict and as to the requested relief, differs in significant
respects from the position of the defense during the proceedings before
the
military judge. The defense did not
assert at trial that the conflict arose, in the words of the defense
appellate
brief, “solely from an imputed disqualification, not an actual conflict
of
interest.” Instead, the defense at trial
assured the military judge that the conflict did not simply involve
“appearances” and that it was “[m]ore than one of an attorney working
at a firm
that also happened to represent a witness.”
Likewise, the defense, in its request for relief at trial
following the
severance of LtCol Vokey as civilian counsel, did not assert at trial
that the
conflict could be resolved, in the words of the appellate brief,
“simply by
recalling LtCol Vokey to active duty.”
Instead, the defense team advised the military judge that “we on
the
defense side don’t have a solution” and that it would take “mental
gymnastics
to figure it out.”
In short, the
writ appeal requests appellate
intervention in an ongoing trial in the form of an extraordinary writ
that
would provide relief not requested from the military judge on a theory
not
presented to the military judge. In the
context of an interlocutory appeal, and the narrowly limited authority
to issue
a writ of mandamus under Cheney, it is neither necessary nor
appropriate
for this Court to take such action prior to consideration of these
matters by
the military judge at the ongoing trial.1
Accordingly, it
is ordered that the writ appeal is
hereby denied without prejudice to consideration of the status of LtCol
Vokey
as defense counsel upon the motion of either party or by the military
judge sua
sponte during further proceedings in this case, or upon appeal, if any.2
________________
1 In that regard, we need not address the alternative forms of relief requested by Appellant.
2 In the event of
any such proceeding at Appellant’s court-martial, the military judge
should
ensure that there is a complete record, including a verbatim transcript
of the
proceedings. The military judge also
should ensure that the record reflects the pertinent facts regarding
any
potential conflict; the applicable source of law pertaining to the
potential
conflict; whether the conflict is actual, imputed, or subject to
another
characterization under applicable law; whether the conflict requires
disqualification or is waivable under applicable law; and, if waivable,
whether
it has been waived and, if so, by whom.
In the course of any such determination, the military judge should
address separately, under applicable law, any conflict arising out
of:
(1) representation of an accused by a lawyer
whose law firm represents a separate client with a potential
conflicting
interest; (2) representation of an accused by a lawyer whose law firm
formerly
represented a client with a potentially conflicting interest; and (3)
representation of an accused by a lawyer in light of the attorney’s
prior
conduct in the case with respect to conflict of interest issues to the
extent
that such conduct may have been inconsistent with applicable law
governing
attorney-client relationships. If the
military judge determines that any such determination requires an ex
parte
proceeding, the military judge should ensure that the record
establishes the
necessity and basis in law for any ex parte proceeding, including the
basis in
law for any assertion of privilege as the basis for an ex parte
proceeding. If the accused is not
present for any proceeding, the military judge should set forth in the
record
the basis in law for conducting the proceeding in the absence of the
accused.
INTERLOCUTORY ORDERS
No.
11-8009/MC. Frank D.
WUTERICH, Appellant
v. David L. Jones, Lieutenant Colonel, United States Marine Corps, in
his
official capacity as Military Judge, and
MANDATES ISSUED
No.
10-0291/NA.
UNITED
STATES
COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No.
11-138
Friday,
April 1, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No.
11-0421/AR.
No.
11-0422/AR.
No.
11-0423/NA.
No.
11-0424/AF.