UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-159
Monday, April 30, 2012
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0389/AR.
No. 11-0516/AR.
No. 12-0372/AR.
No. 12-0407/AF.
No. 12-0409/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0650/AF.
No. 12-0466/MC.
No. 12-0467/AF.
No. 12-0468/AF.
No. 12-0469/MC.
No. 12-0470/MC.
No. 12-0471/AR.
________________________
* Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-158
Friday, April 27, 2012
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0543/AR.
No. 12-0125/AR.
No. 12-0464/AR.
No. 12-0465/AR.
MISCELLANEOUS DOCKET -
SUMMARY DISPOSITIONS
Misc. No. 12-8020/NA.
INTERLOCUTORY ORDERS
No. 12-0206/AR.
MANDATES ISSUED
No. 12-0099/AR.
______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-157
Thursday, April 26, 2012
APPEALS - SUMMARY
DISPOSITIONS
No. 12-6002/AF.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0203/AR.
No. 12-0357/MC.
No. 12-0364/AR.
No. 12-0366/AR.
No. 12-0376/MC.
No. 12-0403/AR.
INTERLOCUTORY ORDERS
No. 12-0194/AR.
No. 12-0286/AF.
No. 12-0317/AF.
No. 12-0336/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-156
Wednesday, April 25, 2012
APPEALS-SUMMARY
DISPOSITIONS
No. 12-0380/MC.
* It is
directed that the promulgating order be corrected to accurately reflect that
Specification 4 of Charge III was dismissed by the military judge as
multiplicious with Specification 5.
Also, to the extent that the convening authority's action purported to
execute the bad-conduct discharge, it was a nullity. See
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0272/AF.
WHETHER SPECIFICATION 1 OF CHARGE
II, A CONTESTED ASSAULT WITH INTENT TO COMMIT ROBBERY SPECIFICATION THAT FAILS
TO EXPRESSLY ALLEGE AN ARTICLE 134 TERMINAL ELEMENT BUT THAT WAS NOT CHALLENGED
AT TRIAL, STATES AN OFFENSE.
No briefs will be filed under Rule
25.
No. 12-0380/MC.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0525/AF.
No. 12-0341/MC.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0009/MC.
No. 12-0461/AR.
No. 12-0462/AR.
No. 12-0463/AR.
INTERLOCUTORY ORDERS
No.
11-0515/MC.
No.
12-0172/NA.
No. 12-0194/AR.
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-155
Tuesday, April 24, 2012
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0443/AR.
WHETHER THE GOVERNMENT'S FAILURE TO
ALLEGE THE TERMINAL ELEMENT OF ARTICLE 134 IN THE SPECIFICATIONS OF CHARGE II
REQUIRES THIS COURT TO SET ASIDE THOSE SPECIFICATIONS IN APPELLANT'S CONTESTED
COURT-MARTIAL.
No briefs will be filed under Rule
25.
No. 11-0474/AR.
WHETHER THE SPECIFICATION OF CHARGE
II FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR
NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.
No briefs will be filed under Rule
25.
No. 11-0476/AR.
WHETHER THE CHARGE AND ITS
SPECIFICATION FAIL TO STATE AN OFFENSE BECAUSE THE SPECIFICATION DOES NOT
ALLEGE, EXPRESSLY OR BY NECESSARY IMPLICATION, THE "TERMINAL ELEMENT"
AS REQUIRED BY 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. 11-0652/AF.
No. 12-0379/MC.
No. 12-0381/MC.
No. 12-0382/MC.
No. 12-0402/AR.
No. 12-0404/AF.
No. 12-0405/AF.
No. 12-0406/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0460/AF.
INTERLOCUTORY ORDERS
No. 12-0454/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-154
Monday, April 23, 2012
HEARINGS
No. 12-0030/AR.
No. 12-0202/NA.
No. 12-6002/AF.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0198/NA.
No. 12-0225/AR.
No. 12-0400/MC.
No. 12-0401/MC.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0239/AR.
No. 12-0455/AR.
No. 12-0456/AR.
No. 12-0457/AR.
No. 12-0458/AR.
No. 12-0459/AR.
INTERLOCUTORY ORDERS
No. 11-0558/AR.
No. 11-5005/MC.
No. 12-0341/MC.
No. 12-0433/AR.
MANDATES ISSUED
No. 11-5005/MC.
_______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-153
Friday, April 20, 2012
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0229/AR.
UNDER THIS COURT'S DECISIONS IN FOSLER
AND BALLAN, WAS IT PREJUDICIAL ERROR, IN A PARTIALLY CONTESTED CASE, TO
CONVICT APPELLANT OF ARTICLE 134 SPECIFICATIONS THAT FAILED TO ALLEGE THE
TERMINAL ELEMENT OF THAT OFFENSE?
No briefs will be filed under Rule
25.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0200/NA.
No. 12-0283/MC.
No. 12-0394/AR.
No. 12-0397/NA.
No. 12-0399/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0257/MC.
No. 11-0595/NA.
No. 12-0451/AF.
No. 12-0452/AR.
No. 12-0453/AR.
No. 12-0454/AR.
_______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-152
Thursday, April 19, 2012
APPEALS - SUMMARY
DISPOSITIONS
No. 09-0519/NA.
No. 11-0227/NA.
No. 11-0303/MC.
No. 11-0383/NA.
No. 11-0419/AR.
No. 11-0420/AR.
No. 11-0427/AR.
No. 11-0434/AR.
No. 11-0453/AR.
No. 11-0454/AR.
No. 11-0554/AR.
No. 11-0580/AR.
No. 11-0599/AR.
No. 11-0601/AR.
No. 11-0610/AR.
No. 11-0647/MC.
No. 11-0661/AR.
No. 12-0034/AR.
No. 12-0046/AR.
No. 12-0057/AR.
No. 12-0071/AR.
No. 12-0073/MC.
No. 12-0106/AF.
No. 12-0131/AR.
No. 12-0132/AR.
No. 12-0136/AR.
No. 12-0164/AR.
No. 12-0165/MC.
No. 12-0180/MC.
No. 12-0182/AR.
No. 12-0195/AR.
No. 12-0222/AR.
No. 12-0224/AF.
No. 12-0230/AR.
No. 12-0234/AF.
No. 12-0249/AR.
No. 12-0259/AR.
No. 12-0275/AF.
No. 12-0278/AR.
No. 12-0304/AR.
No. 12-0305/AR.
No. 12-0310/AF.
No. 12-0311/AF.
No. 12-0340/AR.
In each of the above-referenced cases, on further
consideration of the granted issue, and in view of United States v. Ballan,
71 M.J. 28 (C.A.A.F. 2012), it is ordered that the decision of the Court of
Criminal Appeals is affirmed.*
* BAKER,
Chief Judge (concurring in the result in each of the above-referenced cases):
I adhere to my positions in United
States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011)(Baker, J., dissenting),
and United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012)(Baker, C.J.,
concurring in the result), and concur in the results here.
No. 12-0263/AR.
No. 11-0374/AR.
No. 12-0140/AF.
No. 12-0199/AF.
In each of the above-referenced cases, on further
consideration of the granted issue, and in view of the United States v.
Nealy, 71 M.J. _ (C.A.A.F. 2012) and United States v. Ballan, 71
M.J. 28 (C.A.A.F. 2012), it is ordered that the decision of the Court of
Criminal Appeals is affirmed.*
* BAKER,
Chief Judge (concurring in the result in each of the above-referenced cases):
I adhere to my positions in United
States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011)(Baker, J., dissenting),
and United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012)(Baker, C.J.,
concurring in the result), and concur in the results here.
No. 11-0258/MC.
*
BAKER, Chief Judge (concurring in the result):
I adhere to my positions in United
States v. Jones, 68 M.J. 465, 473 (C.A.A.F. 2010)(Baker, J., dissenting),
and United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012)(Baker, C.J.,
concurring in the result), and concur in the result here.
No. 12-0280/AR.
* BAKER,
Chief Judge (concurring in the result):
I adhere to my positions in United
States v. Fosler, 70 M.J. 225, 240 (C.A.A.F. 2011)(Baker, J., dissenting),
and United States v. Ballan, 71 M.J. 28, 36 (C.A.A.F. 2012)(Baker, C.J.,
concurring in the result), and concur in the result here.
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0354/NA.
WHETHER THE TWO ADULTERY
SPECIFICATIONS FAIL TO STATE AN OFFENSE BECAUSE THEY NEITHER ALLEGE NOR
NECESSARILY IMPLY THAT THE CONDUCT WAS PREJUDICIAL TO GOOD ORDER AND DISCIPLINE
OR OF A NATURE TO BRING DISCREDIT UPON THE ARMED FORCES.
No briefs will be granted under Rule
25.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 10-0461/NA.
No. 12-0448/MC.
No. 12-0449/AR.
No. 12-0450/MC.
_______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-151
Wednesday, April 18, 2012
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0486/NA.
WHETHER APPELLANT'S RIGHT TO DUE
PROCESS OF LAW WAS VIOLATED WHEN HE WAS CONVICTED FOR ABUSIVE SEXUAL CONTACT AS
A LESSER-INCLUDED OFFENSE OF AGGRAVATED SEXUAL ASSAULT.
Briefs will be filed under Rule 25.
No. 12-0282/AR.
WHETHER THE MILITARY JUDGE ERRED
WHEN SHE FAILED TO GIVE THE NECESSARY INSTRUCTIONS ON SENTENCE RECONSIDERATION.
WHETHER THE ARMY COURT OF CRIMINAL
APPEALS ERRED WHEN IT HELD THAT SPECIFICATION 1 OF CHARGE II STATES AN OFFENSE
EVEN THOUGH THE GOVERNMENT DID NOT ALLEGE THE TERMINAL ELEMENT, EITHER
EXPRESSLY OR BY NECESSARY IMPLICATION, AS REQUIRED BY UNITED STATES v. FOSLER,
70 M.J. 225 (C.A.A.F. 2011).
Briefs will be filed under Rule 25
on Issue I only.
No. 12-5001/AF.
WHETHER APPELLANT RECEIVED
INEFFECTIVE ASSISTANCE OF COUNSEL WHEN DEFENSE COUNSEL FAILED TO OBTAIN AN
EXPERT CONSULTANT IN THE FIELD OF SEXUAL ASSAULT EXAMINATIONS, FAILED TO MAKE
CHALLENGES FOR CAUSE AGAINST TWO PANEL MEMBERS WHO WERE BASE VICTIM ADVOCATES,
AND FAILED TO PROPERLY IMPEACH S.M.R. USING HER PERSONAL TELEPHONE RECORDS.
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0496/AR.
No. 12-0384/MC.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0447/AR.
MANDATES ISSUED
No. 11-0615/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-150
Tuesday, April 17, 2012
PETITIONS FOR GRANT OF REVIEW
DENIED
No. 11-0380/MC.
No. 11-0422/AR.
No. 12-0044/AF.
No. 12-0334/AF.
No. 12-0352/NA.
No. 12-0387/AF.
No. 12-0388/AF.
No. 12-0389/AF.
No. 12-0390/AF.
No. 12-0391/AF.
No. 12-0392/AR.
No. 12-0393/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0481/AF.
No. 11-0558/AR.
No. 12-0445/AF.
No. 12-0446/AF.
MISCELLANEOUS DOCKET -
SUMMARY DISPOSITIONS
Misc. No.
12-8017/AR. Ronald GRAY, Appellant v.
Eric BELCHER, Colonel, U.S. Army, Commandant, U.S. Disciplinary Barracks, Fort
Leavenworth, Kansas, Appellee. CCA
20110093. On consideration of the
writ-appeal petition, it is ordered that said writ-appeal petition is hereby
denied without prejudice to raising the issue asserted after the U.S. District
Court for the District of Kansas rules on the pending habeas petition.
INTERLOCUTORY ORDERS
No. 11-0626/AR.
No. 12-0410/MC.
_______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-149
Monday, April 16, 2012
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0446/MC.
No. 11-0655/AF.
No. 12-0342/AR.
No. 12-0348/AF.
No. 12-0351/AF.
No. 12-0369/AR.
No. 12-0378/AR.
No. 12-0383/AR.
No. 12-0386/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 10-0572/AF.
No. 12-0442/AF.
No. 12-0443/AF.
No. 12-0444/AF.
MISCELLANEOUS DOCKET -
SUMMARY DISPOSITIONS
INTERLOCUTORY ORDERS
No. 12-0251/AF.
No. 12-0408/MC.
No. 12-6002/AF.
_______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-148
Friday, April 13, 2012
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0529/AF.
No. 11-0607/AF.
No. 11-0617/AF.
No. 12-0437/AR.
No. 12-0438/AR.
No. 12-0439/AF.
No. 12-0440/AR.
No. 12-0441/NA.
_______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-147
Thursday, April 12, 2012
MANDATES ISSUED
No. 11-0143/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-146
Wednesday, April 11, 2012
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0511/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.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0361/AR.
No. 12-0434/MC.
No. 12-0435/AR.
No. 12-0436/AR.
INTERLOCUTORY ORDERS
No. 12-0194/AR.
_______________________________
* Third petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-145
Tuesday, April 10, 2012
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0312/AR.
No. 12-0358/AR.
No. 12-0363/AR.
No. 12-0374/NA.
INTERLOCUTORY ORDERS
No. 09-5003/AF.
No. 12-0194/AR.
No. 12-0433/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-144
Monday, April 9, 2012
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0343/AR.
No. 12-0367/AR.
No. 12-0368/AR.
No. 12-0370/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0431/AF.
No. 12-0432/AR.
No. 12-0433/AR.
MANDATES ISSUED
No. 11-0523/MC.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-143
Friday, April 6, 2012
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0611/AR.
WHETHER THE ACCA ERRED IN ITS
SUMMARY DISPOSITION ON REMAND, WHEN THERE WAS NO TERMINAL ELEMENT AS REQUIRED
BY ARTICLE 134 (EITHER EXPRESSED OR BY NECESSARY IMPLICATION), AND WHEN THE
UNITED STATES CONSTITUTION IN THE FIFTH AND SIXTH AMENDMENTS GUARANTEES A
CRIMINAL DEFENDANT THE RIGHT TO BE GIVEN SUFFICIENT NOTICE OF THE CRIMINAL
CHARGES AGAINST HIM, AND THIS LACK OF TERMINAL ELEMENT CAUSED UNDUE PREJUDICE
AND SUBSTANTIAL HARM TO THE APPELLANT.
No briefs will be filed under Rule
25.
No. 12-0264/AR.
WHEN THE GOVERNMENT FAILS TO ALLEGE
AN ARTICLE 134 TERMINAL ELEMENT, THE CHARGE FAILS TO STATE AN OFFENSE UNLESS
THE TERMINAL ELEMENT CAN BE "NECESSARILY IMPLIED" FROM THE LANGUAGE
OF THE SPECIFICATION. THE MISSING TERMINAL
ELEMENT FROM THE SPECIFICATIONS OF CHARGE III CANNOT BE NECESSARILY IMPLIED
FROM THE TEXT. ARE THE SPECIFICATIONS FATALLY DEFECTIVE?
No briefs will be filed under Rule
25.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0637/AF.
No. 12-0429/AF.
No. 12-0430/AF.
INTERLOCUTORY ORDERS
No. 12-0148/AR.
No. 12-0245/AR.
______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-142
Thursday, April 5, 2012
HEARINGS
No. 12-0008/AR.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0614/NA.
No. 11-0664/NA.
No. 12-0307/AR.
No. 12-0344/NA.
No. 12-0361/AR.
No. 12-0362/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0547/AR.
No. 12-0428/MC.
INTERLOCUTORY ORDERS
No. 12-0030/AR.
_____________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-141
Wednesday, April 4, 2012
INTERLOCUTORY ORDERS
No. 12-0385/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-140
Tuesday, April 3, 2012
HEARINGS
No. 09-5003/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0104/AF.
MISCELLANEOUS DOCKET -
FILINGS
INTERLOCUTORY ORDERS
No. 12-0414/AR.
______________________________
*
Third petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-139
Monday, April 2, 2012
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0467/AR.
No. 12-0423/AF.
No. 12-0424/AF.
No. 12-0425/AF.
No. 12-0426/AR.
No. 12-0427/AR.
MANDATES ISSUED
No. 11-0583/NA.
________________________________
*
Second petition filed in this
case
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