UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-020
Friday, September 30, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No. 10-5004/AF. U.S.
v. Ryan D. HUMPHRIES. CCA 37491.
No. 12-0065/AR. U.S.
v. Edward R. JOHNSON. CCA 20100186.
No. 12-0066/AF. U.S.
v. Charles W. CALEY, Jr. CCA 37573.
No. 12-0067/AR. U.S.
v. Edward NUNEZ. CCA 20100998.
No. 12-0068/AR. U.S.
v. Zachary S. CHAVEZ. CCA 20100902.
In the Matter of the
RULES ADVISORY COMMITTEE
Pursuant to
Rule 45 of the Rules of Practice and Procedure, United States Court of Appeals
for the Armed Forces, it is, by the Court, this 30th day of September, 2011,
ORDERED:
That Edward F. Rodriguez, Jr., Esq., is hereby appointed as
a member of the Rules Advisory Committee to replace Professor Mary Cheh, whose
term expires this date. Mr. Rodriquez's
term will expire on September 30, 2014;
That Colonel Patricia A. Ham, JA, U.S. Army, is hereby
appointed as a member of the Rules Advisory Committee to replace Colonel Mark
Tellitocci, JA, U.S. Army, whose term expires this date. Colonel Ham's term will expire on September
30, 2014;
That Brian K. Keller, Esq., is hereby appointed as a member
of the Rules Advisory Committee to replace Mary T. Hall, Esq., whose term
expires this date. Mr. Keller's term
will expire on September 30, 2014; and
That the following members, whose terms expire on the dates
indicated below, remain on the Rules Advisory Committee:
To expire on September 30, 2012:
John F. DePue, Esq.
Malcolm Squires, Esq.
To expire on September 30, 2013:
Professor Steven H. Goldblatt, Chair
David B. Goodhand, Esq.
Michelle M. Lindo McCluer, Esq.
James E. McPherson, Esq.
William A. DeCicco, Clerk of the Court, is an ex officio
member of the Committee, and serves as its Reporter.
Colonel Barbara G. Brand, U.S. Air Force, will no longer
serve on the Rules Advisory Committee due to military retirement.
The Court wishes to express its great appreciation to
Professor Mary Cheh, Colonel Mark Tellitocci, Colonel Barbara G. Brand, and
Mary T. Hall, Esq., for their outstanding service as members of the Rules
Advisory Committee.
For the Court,
/s/ William A. DeCicco
Clerk of the Court
INTERLOCUTORY ORDERS
No. 11-0677/AR. U.S.
v. David T. BISHOP. CCA 20090746. On consideration of the motion of James M.
Branum, Esq., for leave of the Court to appear pro hac vice, it is ordered that
said motion is granted.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-019
Thursday, September 29, 2011
APPEALS – SUMMARY
DISPOSITIONS
No. 11-0640/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).
The decision of the United States Army Court of Criminal
Appeals is vacated. The record of trial
is returned to the Judge Advocate General of the Army for remand to that court
for consideration of the granted issue in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011). [See also
ORDERS GRANTING PETITION FOR REVIEW this date.]
EFFRON, Chief Judge (dissenting):
I dissent for the reasons stated in
my dissenting opinion in Fosler.
BAKER, Judge (dissenting):
I dissent for the reasons stated in
my dissenting opinion in Fosler.
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0640/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0064/MC.
INTERLOCUTORY ORDERS
No. 11-0671/AR.
No. 12-0064/MC.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-018
Wednesday, September 28, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0580/AR.
No. 12-0063/AR.
MISCELLANEOUS DOCKET – SUMMARY
DISPOSITIONS
Misc. No. 12-8002/AF.
Michael P. GRAFMULLER, Petitioner v. Michael G. DONLEY, Secretary of the
Air Force and the United States, Respondents.
Notice is hereby given that petitions for extraordinary relief in the
nature of a writ of prohibition and writ of error coram nobis were received by
mail on June 28, 2011, and placed on the docket this date. On consideration thereof, said petitions and
all remaining motions are denied.
INTERLOCUTORY ORDERS
No. 12-0008/AR.
No. 12-0049/AF.
_____________________
* Second
petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-017
Tuesday, September 27, 2011
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 07-0870/AF.
No. 11-0579/AR.
No. 11-0633/AR.
No. 11-0649/AR.
No. 11-0662/AR.
No. 11-0673/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0059/AR.
No. 12-0060/AF.
No. 12-0061/AF.
No. 12-0062/AF.
INTERLOCUTORY ORDERS
No. 10-0179/AF.
No. 12-0010/AF.
No. 12-0048/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-016
Monday, September 26, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 10-0179/AF. U.S.
v. Deanna T. THORNTON. CCA S31692.*
No. 11-0361/AR. U.S.
v. Mark C. CHARTIER. CCA 20100312.*
No. 12-0046/AR. U.S.
v. Daniel A. SMELSER. CCA 20110114.
No. 12-0047/AR. U.S.
v. Allan J. MARQUARDT. CCA 20100059.
No. 12-0048/AR. U.S.
v. Bobby D. JAMES. CCA 20081163.
No. 12-0049/AF. U.S.
v. Cory J. QUINN. CCA S31747.
No. 12-0050/AR. U.S.
v. Will H. HARRIS III. CCA 20100846.
No. 12-0051/AR. U.S.
v. Aldric D. CADE, Jr. CCA 20100949.
No. 12-0052/AR. U.S.
v. Lawrence L. MINOR. CCA 20090562.
No. 12-0053/AR. U.S.
v. Richard L. EASTON. CCA 20080640.
No. 12-0054/AR. U.S.
v. Rolando COLON. CCA 20100691.
No. 12-0055/AR. U.S.
v. Daniel M. BEARDSLEY. CCA 20100367.
No. 12-0056/AR. U.S.
v. Brandon K. AKANA. CCA 20100492.
No. 12-0057/AR. U.S.
v. Row E. BUHROW III. CCA 20100911.
No. 12-0058/AR. U.S.
v. Abdullah L. JONES. CCA 20100983.
INTERLOCUTORY ORDERS
No. 12-0044/AF. U.S.
v. Varun K NARULA. CCA 37658. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to October 13, 2011.
___________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-015
Friday, September 23, 2011
APPEALS
– SUMMARY DISPOSITIONS
No. 11-0537/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
OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
The decision of the United States Navy-Marine Corps Court of
Criminal Appeals is vacated. The record
of trial is returned to the Judge Advocate General of the Navy for remand to
that court for consideration of the granted issue in light of United States
v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).
[See also ORDERS GRANTING PETITION FOR REVIEW this date.]
No. 11-0638/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).
The decision of the United States Army Court of Criminal
Appeals is vacated. The record of trial
is returned to the Judge Advocate General of the Army for remand to that court
for consideration of the granted issue in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011). [See also
ORDERS GRANTING PETITION FOR REVIEW this date.]
No. 11-0652/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).
The decision of the United States Air Force Court of
Criminal Appeals is vacated. The record
of trial is returned to the Judge Advocate General of the Air Force for remand
to that court for consideration of the granted issue in light of United
States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
No. 11-0655/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).
The decision of the United States Air Force Court of
Criminal Appeals is vacated. The record
of trial is returned to the Judge Advocate General of the Air Force for remand
to that court for consideration of the granted issue in light of United
States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0537/MC.
No. 11-0638/AR.
No. 11-0652/AF.
No. 11-0655/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0043/AR.
No. 12-0044/AF.
No. 12-0045/NA.
INTERLOCUTORY ORDERS
No. 11-0440/MC.
No. 12-0043/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-014
Thursday, September 22, 2011
APPEALS – SUMMARY
DISPOSITIONS
No. 10-0659/AF.
STUCKY, Judge (concurring in the result):
I affirm my dissenting vote in United States v. Sweeney,
70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined by Stucky, J.,
concurring in part and dissenting in part).
The drug testing report at issue in this case was the third report. It was created pursuant to a follow-up
urinalysis test after the accused had previously tested positive. It is not entirely clear whether this fact
would change the primary purpose of the third test or the statements made
pursuant thereto. Given this difference,
and because this Court is not otherwise considering its significance, I agree
that setting aside the United States Air Force Court of Criminal Appeals' decision
and remanding the case is the most appropriate action.
BAKER, Judge (dissenting):
I would affirm based on the analysis of the Court of
Criminal Appeals in this case and based on my separate opinion in United
States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined
by Stucky, J., concurring in part and dissenting in part).
No. 10-6002/AF.
STUCKY, Judge (concurring in the result):
I affirm my dissenting vote in United States v. Sweeney,
70 M.J. 296, 306-13 (C.A.A.F. 2011), (Baker, J., joined by Stucky, J.,
concurring in part and dissenting in part).
I write separately given a notable factual difference from Sweeney. Although the accused's first test was
conducted pursuant to a random urinalysis test, the second test was conducted
because the accused's first test was positive.
It is not entirely clear whether this fact would change the primary
purpose of the second test or the statements made pursuant thereto. Given this difference, and because this Court
is not otherwise considering its significance, I agree that setting aside the
United States Air Force Court of Criminal Appeals' decision and returning the
record to the Judge Advocate General is the most appropriate option.
BAKER, Judge (dissenting):
I would affirm based on the analysis of the Court of
Criminal Appeals in this case and based on my separate opinion in United
States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined
by Stucky, J., concurring in part and dissenting in part).
No. 11-0045/AF.
STUCKY, Judge (concurring in the result):
I affirm my dissenting vote in United States v. Sweeney,
70 M.J. 296, 306-13 (Baker, J., joined by Stucky, J., concurring in part and
dissenting in part). I write separately given
a notable factual difference from Sweeney. The accused was subjected to a urinalysis
test because of his erratic behavior and because he was an informant. It is not entirely clear whether these facts
would change the primary purpose of the test or the statements made pursuant
thereto. Given this difference, and
because this Court is not otherwise considering its significance, I agree that
setting aside the United States Air Force Court of Criminal Appeals' decision
and remanding is the most appropriate option.
BAKER, Judge (dissenting):
I would affirm based on the analysis of the Court of
Criminal Appeals in this case and based on my separate opinion in United
States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011)(Baker, J., joined by
Stucky, J., concurring in part and dissenting in part).
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0598/AR.
No. 11-0622/AR.
No. 11-0667/AR.
No. 11-0668/AR.
No. 11-0669/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 09-0519/NA.
No. 10-0649/AF.
No. 12-0042/MC.
________________________
* Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-013
Wednesday, September 21, 2011
APPEALS
– SUMMARY DISPOSITIONS
No. 10-0265/AF.
No. 11-0227/NA.
No. 11-0293/CG.
No. 11-0303/MC.
No. 11-0362/AR.
No. 11-0368/AR.
No. 11-0374/AR.
No. 11-0380/MC.
No. 11-0383/NA.
No. 11-0400/AR.
No. 11-0401/AF.
No. 11-0419/AR.
No. 11-0420/AR.
No. 11-0422/AR.
No. 11-0427/AR.
No. 11-0434/AR.
No. 11-0437/MC.
No. 11-0443/AR.
No. 11-0446/MC.
No. 11-0453/AR.
No. 11-0454/AR.
No. 11-0467/AR.
No. 11-0474/AR.
No. 11-0476/AR.
No. 11-0481/AF.
No. 11-0494/AF.
No. 11-0495/AR.
No. 11-0496/AR.
No. 11-0511/AR.
No. 11-0514/NA.
No. 11-0516/AR.
No. 11-0525/AF.
No. 11-0529/AF.
No. 11-0554/AR.
No. 11-0558/AR.
No. 11-0564/MC.
No. 11-0565/NA.
No. 11-0566/MC.
No. 11-0575/NA.
No. 11-0580/AR.
No. 11-0595/NA.
No. 11-0599/AR.
No. 11-0601/AR.
No. 11-0607/AF.
No. 11-0610/AR.
No. 11-0611/AR.
No. 11-0614/NA.
No. 11-0617/AF.
No. 11-0626/AR.
No. 11-0637/AF.
No. 11-0642/AF.
On further consideration of the
granted issue in the above cases, the decision of the Court of Criminal Appeals
is hereby vacated. The record of trial
is returned to the Judge Advocate General for remand to that court for
consideration of the granted issue in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011).
EFFRON, Chief Judge (dissenting):
I dissent for the reasons stated in my dissenting opinion in
Fosler. United States v.
Fosler, 70 M.J. 225, 233-40 (C.A.A.F. 2011) (Effron, C.J., dissenting).
BAKER, Judge (dissenting):
I dissent for the reasons stated in my dissenting opinion in
Fosler. United States v.
Fosler, 70 M.J. 225, 240-47 (C.A.A.F. 2011) (Baker, J., dissenting).
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0041/AR.
MISCELLANEOUS DOCKET -
SUMMARY DISPOSITIONS
Misc. No. 12-8001/NA.
Frank D. WUTERICH, Appellant v. David M. JONES, Lieutenant Colonel,
United States Marine Corps, in his official capacity as Military Judge, and The
United States, Appellees. CCA 200800183. On consideration of the writ-appeal petition,
it is ordered that said petition is hereby denied.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-012
Tuesday, September 20, 2011
APPEALS - SUMMARY
DISPOSITIONS
No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 200800827.
On further consideration of the granted issue, 69 M.J. 168 (C.A.A.F.
2010), it is ordered that the decision of the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for consideration of the
granted issue in light of United States v. Sweeney, 70 M.J. 296
(C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010),
and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to
determine whether the erroneous admission of the specimen custody document of
the drug testing report was harmless beyond a reasonable doubt.
BAKER, Judge, joined by STUCKY, Judge (dissenting):
I would affirm based on the analysis of the Court of Criminal
Appeals in this case and based on my separate opinion in United States v.
Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined by Stucky,
J., concurring in part and dissenting in part).
No. 10-0668. U.S. v. Jerrod D. NUTT. CCA S31600. On further
consideration of the granted issues, 69 M.J. 271-72 (C.A.A.F. 2010), and the
briefs of the parties, it is ordered that the decision of the United States Air
Force Court of Criminal Appeals is set aside.
The record of trial is returned to the Judge Advocate General of the Air
Force for remand to that court for consideration of the granted issues in light
of United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), United
States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010), and United States v.
Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine whether the erroneous
admission of the cover memorandum and specimen custody document of the drug
testing report was harmless beyond a reasonable doubt.
BAKER, Judge, joined by STUCKY, Judge (dissenting):
I would affirm based on the analysis of the Court of Criminal
Appeals in this case and based on my separate opinion in United States v.
Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined by Stucky, J.,
concurring in part and dissenting in part).
BAKER,
Judge, joined by STUCKY, Judge (dissenting):
I
would affirm based on the analysis of the Court of Criminal Appeals in this
case and based on my separate opinion in United States v. Sweeney, 70
M.J. 296, 306-13 (C.A.A.F. 2011) (Baker,
J., joined by Stucky, J., concurring in part and dissenting in part).
BAKER, Judge, joined by STUCKY, Judge (dissenting):
I would affirm based on the analysis of the Court of Criminal
Appeals in this case and based on my separate opinion in United States v.
Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011) (Baker, J., joined by Stucky, J.,
concurring in part and dissenting in part).
No. 11-0497/MC. U.S. v. Desmond J. HORTON. CCA 201000481. Upon further
consideration of the granted issues, 70 M.J. 223 (C.A.A.F. 2011), it is ordered
that the decision of the United States Navy-Marine Corps Court of Criminal
Appeals is set aside. The record is
returned to the Judge Advocate General of the Navy for remand to that court for
consideration of the granted issues in light of United States v. Sweeney,
70 M.J. 296 (C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218
(C.A.A.F. 2010), and United States v. Blazier, 68 M.J. 439 (C.A.A.F.
2010) and to determine whether error occurred in the admission of the drug
testing report, and, if so, whether the error was harmless beyond a reasonable
doubt.1
1 Nothing in this order is intended
to limit the scope of the Court of Criminal Appeals' review on remand,
including, but not limited to, consideration of the issue raised in Judge
Stucky's separate opinion.
BAKER, Judge (dissenting):
I
would affirm based on the analysis of the Court of Criminal Appeals in this
case and based on my separate opinion in United States v. Sweeney, 70
M.J. 296, 306-13 (C.A.A.F. 2011)(Baker, J., joined by Stucky, J., concurring in
part and dissenting in part).
STUCKY, Judge (dissenting):
Appellant went to trial more than a year after the Supreme Court
decided Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), and more
than two months after this Court decided United States v. Blazier, 68
M.J. 439 (C.A.A.F. 2010) (Blazier I). When the Government moved to
introduce the drug testing laboratory report, the military judge asked
Appellant's counsel if he objected to its admission or any part thereof. Counsel said that he had no objection. The military judge reiterated his question
but received the same response from Appellant's counsel. Under these
circumstances, I conclude that Appellant waived -–intentionally relinquished
his right to contest on appeal -- his right to confront the laboratory
technicians who performed the tests on his urine specimen. I would affirm the judgment of the United
States Navy-Marine Corps Court of Criminal Appeals. Therefore, I respectfully
dissent.
No. 11-0563/MC. U.S. v. Anthony J. SANDERS. CCA 201000522.
On further consideration of the granted issue, __ M.J. __, (Daily
Journal September 15, 2011), it is ordered that the decision of the United
States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge
Advocate General of the Navy for remand to that court for consideration of the
granted issue in light of United States v. Sweeney, 70 M.J. 296
(C.A.A.F. 2011), United States v. Blazier, 69 M.J. 218 (C.A.A.F. 2010),
and United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and to determine
whether the erroneous admission of testimonial hearsay in the drug testing
report was harmless beyond a reasonable doubt.
BAKER, Judge (dissenting):
I would affirm based on the analysis of the Court of
Criminal Appeals in this case and based on my separate opinion in United
States v. Sweeney, 70 M.J. 296, 306-13 (C.A.A.F. 2011)(Baker, J., joined by
Stucky, J., concurring in part and dissenting in part).
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0665/AR. U.S.
v. Robert J. RUSSELL. CCA 20100672.
No. 11-0666/AF. U.S.
v. Peter W. DOLLY IV. CCA S31861.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0036/AR. U.S.
v. James E. CRAWFORD. CCA 20100247.
No. 12-0037/AR. U.S.
v. Roger D. JACOBSON. CCA 20100597.
No. 12-0038/AR. U.S.
v. Danielle M. DANCE. CCA 20100543.
No. 12-0039/AR. U.S. v. Jorge S. SALDANA DELGADO. CCA 20110035.
No. 12-0040/AR. U.S. v. Joseph H. PLASAN. CCA 20101004.
INTERLOCUTORY ORDERS
No. 12-0030/AR. U.S.
v. Michael C. BEHENNA. CCA 20090234. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to October 11, 2011.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-011
Monday, September 19, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 12-0029/AR. U.S.
v. Antonio L. ROBINSON. CCA 20081086.
No. 12-0030/AR. U.S.
v. Michael C. BEHENNA. CCA 20090234.
No. 12-0031/AF. U.S.
v. Kashara C. JOSEPH,. CCA S31872.
No. 12-0032/AF. U.S.
v. Christopher A. LENTZ. CCA 37769.
No. 12-0033/AF. U.S.
v. Joseph M. RUBITSCHUNG. CCA S31817.
No. 12-0034/AR. U.S.
v. Joel L. KAIN II. CCA 20100490.
No. 12-0035/AR. U.S.
v. Billy R. WHITE, III. CCA 20100530.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-010
Friday, September 16, 2011
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0462/AR.
WHETHER THE GENERAL VERDICT OF GUILT
RESTED ON CONDUCT THAT WAS CONSTITUTIONALLY PROTECTED, IN THAT AT LEAST ONE OF
THE SIX IMAGES PRESENTED TO THE MEMBERS WAS NOT CHILD PORNOGRAPHY.
Briefs will be filed under Rule 25.
CERTIFICATES FOR REVIEW
FILED
No. 11-5005/MC.
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
ERRED IN REVIEWING THE IMPLIED BIAS ISSUE DE
NOVO, RATHER THAN REVIEWING THE IMPLIED BIAS ISSUE UNDER THE STANDARD OF
"LESS DEFERENCE THAN ABUSE OF DISCRETION, BUT MORE DEFERENCE THAN DE NOVO" AS SET FORTH IN U.S. v.
BAGSTAD, 68 M.J. 460 (C.A.A.F. 2010)?
WHETHER THE LOWER
COURT FAILED TO APPLY THE IMPLIED BIAS TEST THAT
ASKS WHETHER, CONSIDERED OBJECTIVELY, "MOST PEOPLE IN THE SAME POSITION WOULD
BE PREJUDICED," REITERATED IN 2010 IN BAGSTAD, AND INSTEAD ERRONEOUSLY APPLIED A TEST ASKING WHETHER THE MEMBER'S
CIRCUMSTANCES "DO INJURY TO THE PERCEPTION OR APPEARANCE OF FAIRNESS IN THE
MILITARY JUSTICE SYSTEM"?
WHETHER THE LOWER COURT ERRED IN REVERSING THE MILITARY JUDGE AND SETTING ASIDE THE FINDINGS AND
SENTENCE FOR IMPLIED BIAS WHERE THE MEMBER SUBMITTED A WRITTEN REQUEST, WHICH
WAS DENIED, THAT THE MILITARY JUDGE ASK A WITNESS "DO YOU THINK THAT PEDOPHILES
CAN BE REHABILITATED?
Appellant will file a brief in accordance with Rule 24 on
the certified issues on or before the 17th day of
October, 2011. Appellee will file a
brief no later than 30 days after the filing of Appellant's brief. Appellant may file a reply no later than 10
days after the filing of Appellee's brief.
PETITIONS FOR GRANT OF REVIEW FILED
No. 12-0026/AF.
No. 12-0027/AF.
No. 12-0028/AR.
INTERLOCUTORY ORDERS
No. 11-0525/AF.
MANDATES ISSUED
No. 10-0461/NA.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-009
Thursday, September 15, 2011
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0563/MC. U.S.
v. Anthony J. SANDERS. CCA
201000522. Review granted on the
following issue:
IN APPELLANT'S COURT-MARTIAL, THE
MILITARY JUDGE ADMITTED A LABORATORY REPORT WHICH INCLUDED NOTATIONS FROM LAB
TECHNICIANS AND A CERTIFICATION DOCUMENT STATING IN PLAIN TERMS THAT APPELLANT
TESTED POSITIVE FOR AN ILLEGAL SUBSTANCE.
THE REPORT WAS DESIGNED TO BE "LEGALLY DEFENSIBLE" AT
COURT-MARTIAL. DID THE ADMISSION OF THIS
REPORT VIOLATE APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES
AGAINST HIM ABSENT TESTIMONY FROM THE TECHNICIANS OR THE CERTIFYING OFFICIAL WHO
CREATED THE DOCUMENTS IN THE REPORT?
No briefs will be filed under Rule
25.
CERTIFICATES FOR REVIEW
FILED
No. 10-5004/AF. U.S.
v. Ryan D. HUMPHRIES. CCA 37632. The Judge Advocate General of the Air Force
has requested that action be taken with respect to the following issue:
WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED IN FINDING APPELLEE'S SENTENCE INAPPROPRIATELY SEVERE
UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE AND ERRED IN AN ATTEMPT AT
EXERCISING APPELLATE CLEMENCY BY REMANDING THE CASE TO THE CONVENING AUTHORITY
WITH INSTRUCTIONS THAT THE CONVENING AUTHORITY MAY APPROVE AN ADJUDGED SENTENCE
NO GREATER THAN A SUSPENDED BAD CONDUCT DISCHARGE AND A REDUCTION TO THE GRADE
OF E-1.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0024/MC. U.S.
v. Steven E. MAUCERI. CCA 201000573.
No. 12-0025/AF. U.S.
v. Robert W. BLOOM. CCA S31826.
INTERLOCUTORY ORDER
No.
11-5006/MC. U.S. v. Jonathan E.
LEE. 200600543. On August 19, 2011, the United States filed a
motion for enlargement of time in which to file a certificate of review in the
above-captioned case. The Court granted
that motion to September 9, 2011, (Daily Journal, August 26, 2011). On
September 15, 2011, the United States filed a notice of intent not to certify
this case to the United States Court of Appeals for the Armed Forces. In view of this notice, it is ordered that
the above-captioned case is hereby removed from the Court's docket.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-008
Wednesday, September 14, 2011
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0614/NA. U.S. v. Abayomi O. KALEJAIYE. CCA 201100007.
Review granted on the following issue:
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. 11-0642/AF. U.S. v. Daniel W. DREWS. CCA S37727. Review
granted on the following issue:
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.
CERTIFICATES FOR REVIEW
FILED
No. 09-5003/AF. U.S. v. Brandon T. ROSE. CCA 36508. The Judge
Advocate General of the Air Force has requested that action be taken with
respect to the following issue:
WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED IN FINDING INEFFECTIVE ASSISTANCE OF COUNSEL IN THIS
CASE.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0620/AR. U.S.
v. Jeroen J. VELGHE. CCA 20100195.
No. 11-0641/AR. U.S.
v. Christopher A. BERGER. CCA 20100535.
No. 11-0645/NA. U.S.
v. Ziyao ZHANG. CCA 201100052.
No. 11-0651/AF. U.S.
v. Zachary A. TAYLOR. CCA 37552.
No. 11-0653/AF. U.S.
v. Ross A.J. STENERSON. CCA S31864.
No. 11-0654/AF. U.S.
v. Dillon P. HARRISON. CCA S31818.
No. 11-0656/AF. U.S.
v. Kevon H. AKRAM. CCA S31841.
No. 11-0657/AF. U.S.
v. Bradley D. CLOSE. CCA 37739.
No. 11-0658/AF. U.S.
v. Francis J. BUTTA. CCA S31741.
No. 11-0659/AF. U.S.
v. David P. NANCE. CCA S31911.
No. 11-6008/AF. U.S.
v. James M. BOORE. CCA 2011-01.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0023/MC. U.S.
v. James E. MCCOY. CCA 201100080.
INTERLOCUTORY ORDERS
No. 11-0646/AR. U.S.
v. Hector B. LOPEZ. CCA 20080736. Appellant's motion for leave to file out of
time and motion for an extension of time to file the supplement to the petition
for grant of review granted.
No. 12-0009/MC. U.S.
v. Brandon M. MAGNAN. CCA 201000414. Appellant's motion for leave to file the
supplement to the petition for grant of review separately is granted to
September 28, 2011.
No. 12-0015/AR. U.S.
v. Marvin C. SIMPSON. CCA 20091039. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to October 3, 2011.
No. 12-0022/AR. U.S.
v. Warren B. GILBERTSON. CCA 20080428. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to October 3, 2011.
MANDATES ISSUED
No. 11-0166/AF. U.S.
v. Harley LUSK. CCA S31624.
No. 11-6007/AR. U.S.
v. Demetrice K. BAKER. CCA 20100841.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-007
Tuesday, September 13, 2011
APPEALS - SUMMARY DISPOSITIONS
No. 11-0619/AR.
* It is noted that in summarizing the findings, the
United States Army Court of Criminal Appeals in its decision dated June 17,
2011, omitted mentioning the conviction under Charge I, Specification 2
(Redesignated Specification 1) for wrongful introduction of lysergic acid
diethylamide (LSD) onto a military installation with the intent to distribute. Because it had referenced this offense in
both of its previous decisions in this case, we view this solely as a clerical
error. Furthermore, we direct that the
court-martial promulgating order dated April 21, 2010, be corrected to reflect
that Charge I, Specification 2 (Redesignated Specification 1) states that same
offense.
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0559/NA.
WHETHER ARTICLE 120(c) IS
UNCONSTITUTIONAL AS APPLIED WHERE: THE MILITARY JUDGE (1) REQUIRED APPELLANT TO
PROVE THE AFFIRMATIVE DEFENSES OF CONSENT AND MISTAKE OF FACT AS TO CONSENT BY
A PREPONDERANCE OF THE EVIDENCE; (2) DETERMINED THAT THE DEFENSES HAD BEEN
PROVED BY A PREPONDERANCE OF THE EVIDENCE; AND THEN (3) FAILED TO DISMISS THE
CHARGES SUA SPONTE AS REQUIRED BY RULE FOR COURTS-MARTIAL 917.
No briefs will be filed.
No. 11-0595/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
OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
No briefs will be filed under Rule
25.
No. 11-0611/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. 11-0626/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.A.F. 2011).
No briefs will be filed under Rule
25.
ORDERS GRANTING PETITION
FOR RECONSIDERATION
No. 11-0559/NA.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0019/AR.
No. 12-0020/AR.
No. 12-0021/AR.
No. 12-0022/AR.
INTERLOCUTORY ORDERS
No. 11-0440/MC.
No. 11-0671/AR.
No. 12-0012/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-006
Monday, September 12, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 12-0011/AR.
No. 12-0012/AF.
No. 12-0013/AF.
No. 12-0014/AF.
No. 12-0015/AR.
No. 12-0016/AR.
No. 12-0017/AR.
No. 12-0018/AR.
INTERLOCUTORY ORDERS
No. 09-5003/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-005
Thursday, September 8, 2011
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 11-0636/AR.
No. 11-0643/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0009/MC.
No. 12-0010/AF.
INTERLOCUTORY ORDERS
No. 11-0615/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-004
Wednesday, September 7, 2011
NOTICE
OF FILING OF MOTION
No. 09-5003/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0007/AR.
No. 12-0008/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-003
Tuesday, September 6, 2011
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 11-0603/AR.
No. 11-0635/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0003/AF.
No. 12-0004/AF.
No. 12-0005/AF.
No. 12-0006/AF.
INTERLOCUTORY ORDERS
No. 11-6008/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-002
Friday, September 2, 2011
MISCELLANEOUS
DOCKET - FILINGS
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-001
Thursday, September 1, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 12-0001/AF.
No. 12-0002/AF.
INTERLOCUTORY ORDERS
No. 10-5004/AF.