UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-242
Wednesday, August 31, 2011
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0637/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 HOLDINGS IN UNITED STATES v.
RESENDIZ-PONCE AND RUSSELL v. UNITED STATES AND THIS COURT'S OPINION
IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F 2011).
No briefs will be filed under Rule
25.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0510/NA.
No. 11-0546/AR.
No. 11-0596/NA.
No. 11-0604/AR.
No. 11-0609/AR.
No. 11-0612/NA.
No. 11-0628/AR.
No. 11-0630/AR.
No. 11-0631/AR.
No. 11-0632/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0684/AR.
No. 11-0685/AF.
No. 11-0686/NA.
No. 11-0687/AF.
No. 11-0688/AF.
No. 11-0689/AF.
INTERLOCUTORY ORDERS
No. 10-0659/AF.
No. 11-0617/AF.
No. 11-0651/AF.
No. 11-0653/AF.
On consideration of the motions filed by Major Andrew J.
Unsicker to withdraw from representation as Appellate Defense Counsel in the
above cases, it appears that the Judge Advocate General has assigned another
counsel to represent the Appellants and that new counsel have assumed
representation of said Appellants.
Accordingly, it is ordered that said motions are hereby granted.
No. 11-0583/NA.
No. 11-0677/AR.
ANNOUNCEMENT
BY THE CLERK OF THE COURT
OF THE CUMULATIVE SUMMARY OF
COURT WORKLOAD STATISTICS
FOR THE SEPTEMBER 2010 TERM
OF COURT
I. CUMULATIVE PENDING SEPTEMBER 1, 2010
Master Docket . . . . . . . . . . . . . .
. 30
Petition Docket . . . . . . . . . . . . .
. 91
Miscellaneous Docket. . . . . . . . . . . .
4
TOTAL . . . . . . . . . . . . . .
. . . 125
II. CUMULATIVE FILINGS
Master Docket . . . . . . . . . . . . . .
. 123
Petition Docket . . . . . . . . . . . . .
. 700
Miscellaneous Docket. . . . . . . . . . . .
39
TOTAL . . . . . . . . . . . . . .
. . . 862
III.
CUMULATIVE TERMINATIONS
Master Docket . . . . . . . . . . . . . .
. 82
Petition Docket . . . . . . . . . . . . .
. 704
Miscellaneous Docket. . . . . . . . . . . .
43
TOTAL . . . . . . . . . . . . . .
. . . 829
IV. CUMULATIVE PENDING SEPTEMBER 1, 2011
Master Docket . . . . . . . . . . . . . .
. 71
Petition Docket . . . . . . . . . . . . .
. 87
Miscellaneous Docket. . . . . . . . . . . .
0
TOTAL . . . . . . . . . . . . . .
. . . 158
V. CASES ON MASTER DOCKET CARRIED OVER TO
THE
SEPTEMBER 2011 TERM OF COURT (71)
AWAITING ORAL ARGUMENT OR
FINAL DISPOSITION
(65)
(INCLUDES TRAILER CASES)
10-0178/AF – ST. BLANC 11-0437/MC - ROSCHE
10-0265/AF – LONG 11-0443/AR
-
10-0319/MC – ROBINSON 11-0446/MC -
GEYER
10-0659/AF – STEWART 11-0453/AR - MITCHELL
10-0668/AF – NUTT 11-0454/AR
- REECE
10-0685/AF –
10-6002/AF – SKREDE 11-0474/AR
- KNOWLAND
11-0034/AF – WEEKS 11-0476/AR
- TILLER
11-0045/AF – DUNN 11-0481/AF
-
11-0143/AR –
11-0227/NA –
11-0231/AR – KREUTZER 11-0496/AR -
RICE
11-0239 & 5004/AR – PIERCE 11-0497/MC
- HORTON
11-0257/MC – SCHUMACHER 11-0511/AR - STONE
11-0280/AR – WINCKELMANN 11-0514/NA - AUTRY
11-0282/AR – MORRISSETTE 11-0516/AR - ROBINS
11-0293/CG – BERNARD 11-0525/AF - GRAFMULLER
11-0303/MC – LIRLEY 11-0529/AF
- ROTH
11-0362/AR – GENTRY 11-0554/AR
- RORRO
11-0368/AR – TYSON 11-0558/AR
- GARCIA
11-0374/AR – SHANKLES 11-0564/MC -
MORALES
11-0380/MC – HERNANDEZ 11-0565/NA - RUSCITTO
11-0383/NA – LUMPKINS 11-0566/MC - SOBENES
11-0389/AR – GOODMAN 11-0575/NA - OLMOS
11-0396/MC – FRY 11-0580/AR
- ROBINSON
11-0400/AR – MCNAUGHTON 11-0599/AR - DARROW
11-0401/AR – ATTARDO 11-0601/AR -
11-0403/AF –
11-0419/AR – GUMP 11-0610/AR
- MELCHOR
11-0420/AR – SMITH 11-0617/AF
- SWENSON
11-0422/AR – TYSON 11-0637/AF
-
11-0427/AR – PATLA 11-5003/NA
- HAYES
11-0434/AR – ISENHOWER
AWAITING BRIEFS (6)
11-0413/NA - BALLAN
11-0440/MC - STEWART
11-0523/MC - WATSON
11-0526/AF - WEEKS
11-0583/NA - KING
11-0615/AR - NEALY
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-241
Tuesday, August 30, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0678/AF.
No. 11-0679/AF.
No. 11-0680/AF.
No. 11-0681/AF.
No. 11-0682/AF.
No. 11-0683/MC.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-240
Monday, August 29, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0675/AR.
No. 11-0676/AR.
No. 11-0677/AR.
MANDATES ISSUED
No. 10-0512/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-239
Friday, August 26, 2011
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0558/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
OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
No briefs will be filed under Rule
25.
NOTICE OF FILING OF MOTION
No. 10-5004/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0579/AR.
No. 11-0673/AR.
No. 11-0674/AF.
INTERLOCUTORY ORDERS
No. 11-5005/MC.
No. 11-5006/MC.
MANDATES ISSUED
No. 11-0149/MC.
_________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-238
Thursday, August 25, 2011
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 11-0623/AR.
No. 11-0624/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0672/AR.
INTERLOCUTORY ORDERS
No. 11-0239/AR.
No. 11-0639/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-237
Wednesday, August 24, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0671/AR.
INTERLOCUTORY ORDERS
No. 11-0670/MC.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-236
Tuesday, August 23, 2011
NOTICE
OF FILING OF MOTIONS
No. 11-5005/MC.
No. 11-5006/MC.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0568/AR.
No. 11-0571/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-235
Monday, August 22, 2011
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0476/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
OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
No briefs will be filed under Rule
25.
No. 11-0617/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 HOLDINGS IN UNITED STATES v.
RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S
OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
No briefs will be filed under Rule
25.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0667/AR.
No. 11-0668/AR.
No. 11-0669/AR.
No. 11-0670/MC.
INTERLOCUTORY ORDERS
No. 11-6008/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-234
Friday, August 19, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0666/AF.
No. 11-6008/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-233
Thursday, August 18, 2011
APPEALS
- SUMMARY DISPOSITIONS
No. 11-0627/MC.
*
It is noted that the military
judge neglected to seal the pleadings and record of a closed hearing under MRE
412(c)(2). Accordingly, the Clerk is
directed to seal Appellate Exhibits VI, IX, X, and XI and pages 51-106, 142-44,
147-48, and 198-201. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0526/AF.
WHETHER APPELLANT'S GUILTY PLEA TO
CHARGE II AND ITS SPECIFICATION IS IMPROVIDENT BECAUSE APPELLANT DID NOT
FALSELY MAKE OR ALTER A SIGNATURE OR WRITING.
Briefs will be filed under Rule 25.
No. 11-0565/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 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. 11-0627/MC.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0538/NA.
No. 11-0586/MC.
No. 11-0618/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0662/AR.
No. 11-0663/NA.
No. 11-0664/NA.
No. 11-0665/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-232
Wednesday, August 17, 2011
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 11-0600/AR.
No. 11-0613/AR.
No. 11-0616/AR.
INTERLOCUTORY ORDERS
No. 11-0143/AR.
No. 11-0579/AR.
No. 11-0629/AR.
No. 11-0661/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-231
Tuesday, August 16, 2011
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0610/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.
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
DAILY JOURNAL
No. 11-230
Monday, August 15, 2011
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0615/AR.
I. APPELLANT WAS CHARGED WITH COMMUNICATING A
THREAT UNDER ARTICLE 134, BUT WAS CONVICTED PURSUANT TO HIS PLEA OF USING
PROVOKING SPEECH IN VIOLATION OF ARTICLE 117.
IN LIGHT OF UNITED STATES v. JONES, 68 M.J. 465 (2010) CAN THE
CONVICTION BE SUSTAINED?
II. 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.
Briefs will be filed under Rule 25 on Issue I only.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0584/AR.
No. 11-0597/AF.
No. 11-0602/AR.
No. 11-0606/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0661/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-229
Friday, August 12, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0647/MC.
No. 11-0648/NA.
No. 11-0649/AR.
No. 11-0650/AF.
No. 11-0651/AF.
No. 11-0652/AF.
No. 11-0653/AF.
No. 11-0654/AF.
No. 11-0655/AF.
No. 11-0656/AF.
No. 11-0657/AF.
No. 11-0658/AF.
No. 11-0659/AF.
No. 11-0660/MC.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-228
Thursday, August 11, 2011
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0566/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.
No. 11-0601/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.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0391/AR.
No. 11-0576/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0645/NA.
No. 11-0646/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-227
Wednesday, August 10, 2011
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0440/MC.
I. UNDER
UNITED STATES v. PRATHER, IS IT LEGALLY POSSIBLE FOR THE PROSECUTION TO
DISPROVE AN AFFIRMATIVE DEFENSE BEYOND A REASONABLE DOUBT ONCE THE MILITARY
JUDGE HAS DETERMINED THAT THE DEFENSE HAS BEEN PROVED BY A PREPONDERANCE OF THE
EVIDENCE AND, IF NOT, IS THE MILITARY JUDGE REQUIRED TO ENTER A FINDING OF NOT
GUILTY IN SUCH A CASE UNDER RCM 917?
II. WHETHER
THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN FINDING THE EVIDENCE
FACTUALLY SUFFICIENT BEYOND A REASONABLE DOUBT TO SUSTAIN APPELLANT'S CONVICTION
UNDER SPECIFICATION 2 BECAUSE IN DOING SO IT (1) VIOLATED THE PRATHER
LEGAL-IMPOSSIBILITY PRINCIPLE AND (2) IMPERMISSIBLY FOUND AS FACTS ALLEGATIONS
THAT HE WAS FOUND NOT GUILTY OF IN SPECIFICATION 1.
III. WHETHER
THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY REQUIRING THE DEFENSE TO
PRESENT EVIDENCE ON THE DEFENSE OF CONSENT AT AN ARTICLE 39(a) SESSION PRIOR TO
TRIAL.
Briefs will be filed under Rule 25.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-226
Tuesday, August 9, 2011
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 11-0593/AF.
No. 11-0594/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-225
Monday, August 8, 2011
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 11-0577/AR.
No. 11-0591/AF.
No. 11-0592/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0644/AR.
INTERLOCUTORY ORDERS
No. 11-0239/AR.
No. 11-0619/AR.
No. 11-0639/AR.
No. 11-0640/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-224
Friday, August 5, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0639/AR. U.S.
v. Tanner P. FORRY. CCA 20080334.
No. 11-0640/AR. U.S.
v. Robert L. MCCULLOUGH. CCA 20090206.
No. 11-0641/AR. U.S.
v. Christopher A. BERGER. CCA 20100535.
No. 11-0642/AF. U.S.
v. Daniel W. DREWS. CCA S37727.
No. 11-0643/AF. U.S.
v. Evan E. CONNER. CCA S31843.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-223
Thursday, August 04, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0637/AF.
No. 11-0638/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-222
Wednesday, August 03, 2011
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0549/AR.
No. 11-0587/AR.
No. 11-0588/AR.
No. 11-0590/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0635/AR.
No. 11-0636/AR.
INTERLOCUTORY ORDERS
No. 11-0621/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 11-221
Tuesday, August 2, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0633/AR.
No. 11-0634/AR.