UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-138
Friday, March 30, 2012
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0400/AR.
No. 12-0414/AR.
No. 12-0415/AF.
No. 12-0416/AR.
No. 12-0417/AF.
No. 12-0418/AF.
No. 12-0419/AF.
No. 12-0420/AR.
No. 12-0421/AR.
No. 12-0422/AR.
MANDATES ISSUED
No. 11-0526/AF.
______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-137
Thursday, March 29, 2012
APPEALS - SUMMARY
DISPOSITIONS
No. 11-0514/NA.
*
It is directed that the promulgating order be corrected to reflect the
finding of Specification 4, Charge II, was guilty, and the findings of
Specifications 5, 7, and 8 of Charge II were guilty with exceptions and
substitutions.
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0514/NA.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0437/MC.
No. 11-0575/NA.
No. 12-0233/MC.
No. 12-0327/MC.
No. 12-0355/AR.
No. 12-0356/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0410/MC.
No. 12-0411/AR.
No. 12-0412/AR.
No. 12-0413/AR.
INTERLOCUTORY ORDERS
No. 12-0149/AR.
No. 12-0410/MC.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-136
Wednesday, March 28, 2012
RULES CHANGES
On further consideration of the Order of the Court of March
15, 2012, regarding amendments to the Rules of Practice and Procedure, United
States Court of Appeals for the Armed Forces, it is ordered that the portion of
the Order of the Court of March 15, 2012, regarding the amendment of Rule
19(b), Rules of Practice and Procedure, is hereby rescinded pending further
order of the Court. The portion of the
Order regarding Rules 13A and 27(a)(4)remains in effect.
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0362/AR. U.S. v. Thomas G. GENTRY. CCA 20080985.
Review granted on the following issue:
WHETHER IN LIGHT OF UNITED STATES
v. FOSLER, THE SPECIFICATION OF CHARGE II FAILS TO STATE AN OFFENSE UNDER
ARTICLE 134.
No briefs will be filed under Rule
25.
No. 11-0537/MC. U.S. v.
Christopher M. HARRIS. CCA 201000341.
Review granted on the following issue:
DOES AN ARTICLE 134 CLAUSE 1 OR 2
SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
STATE 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. 11-0638/AR. U.S. v. Edgar E. MARTINEZ. CCA 20090582.
Review granted on the following issue:
WHETHER SPECIFICATION 2 OF CHARGE
III 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. 11-0639/AR. U.S. v. Tanner P. FORRY. CCA 20080334.
Review granted on the following issue:
WHETHER SPECIFICATIONS 5 AND 7 OF
ADDITIONAL CHARGE II FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY
ALLEGE OR NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.
No briefs will be filed under Rule
25.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0345/AR. U.S.
v. Kyle B. HARRINGTON. CCA 20110169.
No. 12-0346/AF. U.S.
v. Matthew A. DAVENPORT. CCA S31960.
No. 12-0347/AF. U.S.
v. Matthew S. LEAHEY. CCA S31950.
No. 12-0349/AF. U.S.
v. Ivy M. MILLARD. CCA 37649.
No. 12-0350/AF. U.S.
v. Michael F. REYES. CCA S31932.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0409/AR. U.S.
v. Jorge GARCIACORTES. CCA 20110555.
INTERLOCUTORY ORDERS
No. 12-0206/AR. U.S.
v. Tommie L. OLDS. CCA 20091044. Appellant's motion to extend time to file a
brief granted to May 2, 2012.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-135
Tuesday, March 27, 2012
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0640/AR. U.S. v. Robert L. MCCULLOUGH. CCA 20090206.
Review granted on the following issue:
WHETHER THE SPECIFICATION OF CHARGE
II FAILS TO STATE AN OFFENSE UNDER ARTICLE 134 BECAUSE THE SPECIFICATION FAILS
TO ALLEGE ANY OF THE THREE TERMINAL CLAUSES OF ARTICLE 134.
Briefs will be filed under Rule 25.
No. 12-0300/AR. U.S. v. Payson C. AVERILL. CCA 20090491.
Review granted on the following issue:
WHETHER SPECIFICATION 1 OF CHARGE II
IS FATALLY DEFECTIVE BECAUSE THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ, 10
U.S.C. SECTION 934, IS NEITHER EXPRESSLY ALLEGED NOR "NECESSARILY
IMPLIED."
Briefs will be filed under Rule 25.
No. 12-0336/AR. U.S. v. Christopher L. COVINGTON. CCA 20090877.
Review granted on the following issue:
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 SPECIFICATIONS 1, 2, AND 3 OF CHARGE IV CANNOT BE
NECESSARILY IMPLIED FROM THE TEXT. ARE
THE SPECIFICATIONS FATALLY DEFECTIVE?
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0368/AR. U.S.
v. Brantley R. TYSON. CCA 20100093.
No. 11-0564/MC. U.S.
v. Bradley A. MORALES. CCA 201000057.
No. 11-0629/AR. U.S.
v. Jesse V. SPIELMAN. CCA 20070883.
No. 12-0281/AR. U.S.
v. Jason A. KELLER. CCA 20100600.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0516/AR. U.S.
v. Maurice K. ROBINS. CCA 20090996.*
No. 11-0563/MC. U.S.
v. Anthony J. SANDERS. CCA 201000522.*
PETITIONS FOR RECONSIDERATION
DENIED
No. 12-0287/NA. U.S. v. Michael D. SILVERSTEIN. CCA 201100407. On consideration of Appellant's petition for
reconsideration of this Court's order issued on March 13, 2012, it is ordered
that said petition for reconsideration is hereby denied.
INTERLOCUTORY ORDERS
No. 12-0206/AR. U.S.
v. Tommie L. OLDS. CCA 20091044. On consideration of the motions filed by United States Army Appellate Defense Division to withdraw as
appellate defense counsel and to provide additional information concerning the
motion to withdraw, it is
ordered that said motions are hereby granted.
No. 12-0365/AR. U.S.
v. Joshua J. WRIGHT. CCA 20101001. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted, up to and including April 9, 2012, and absent extraordinary
circumstances, no further extension of time will be granted in this case.
No. 12-6002/AF. U.S.
v. Darren N. HATHORNE. CCA 2011-02. On consideration of Appellant's motion to
exclude Appendices A, B, C and D from Appellee's answer, it is ordered that
said motion is hereby denied as to Appendix A, but is granted as to Appendices
B, C, and D without prejudice to Appellee's filing a motion to supplement the
record under Rule 30A, Rules of Practice and Procedure.
MANDATES ISSUED
No. 11-0440/MC. U.S.
v. Nicholas S. STEWART. CCA 201000021.
________________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-134
Monday, March 26, 2012
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 12-6006/AR. U.S.
v. Justin D. ROBISON. CCA 20110758.
PETITIONS FOR GRANT OF REVIEW
FILED
No. 11-0494/AF. U.S.
v. Michael T. NERAD. CCA 36994.*
No. 12-0408/MC. U.S. v. Lawrence G. HUTCHINS III. CCA 200800393.
PETITION FOR
RECONSIDERATION DENIED
No. 12-8019/MC. Edwin
A. EHLERS, II, Appellant v. United States, Appellee. CCA 200800190. On consideration of Appellant's petition for
reconsideration of this Court's order issued on February 23, 2012, it is
ordered that said petition for reconsideration is hereby denied.
INTERLOCUTORY ORDERS
No. 09-0677/AR. U.S.
v. Chauncey J.R. THORNE. CCA 20080565. Appellant's motion for leave to file out of
time and motion for enlargement of time to file the brief in support are
denied.
No. 12-0408/MC. U.S. v. Lawrence G. HUTCHINS III. CCA 200800393. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to April 16, 2012.
________________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-133
Friday, March 23, 2012
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0313/MC. U.S. v. Andrew D. TEARMAN. CCA 201100195.
Review granted on the following issues:
I. THE LOWER COURT HELD THAT THE ADMISSION,
OVER APPELLANT'S OBJECTION, OF TWO PIECES OF TESTIMONIAL HEARSAY FOUND WITHIN
THE DD FORM 2624 WAS HARMLESS ERROR BEYOND A REASONABLE DOUBT. BUT IT MISAPPLIED THE SWEENEY FACTORS
AND DID NOT CONSIDER THE BLAZIER II FACTORS IN ASSESSING PREJUDICE. DID THE LOWER COURT ERR IN HOLDING THAT THE
TESTIMONIAL HEARSAY DID NOT CONTRIBUTE TO APPELLANT'S CONVICTION?
II. THE LOWER COURT HELD THAT THE MILITARY JUDGE
DID NOT ABUSE HIS DISCRETION IN ADMITTING, OVER APPELLANT'S OBJECTION, THE
CHAIN-OF-CUSTODY DOCUMENTS AND INTERNAL REVIEW WORKSHEETS BECAUSE THEY WERE
NON-TESTIMONIAL. ARE THESE NON-MACHINE
GENERATED DOCUMENTS AND WORKSHEETS TESTIMONIAL?
Briefs will be filed under Rule 25.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0276/MC. U.S.
v. Jose A. JIMENEZ. CCA 201100187.
No. 12-0296/MC. U.S.
v. Brandon L. RHEEL. CCA 201100108.
No. 12-0303/AR. U.S.
v. Ricci J. ANGEL. CCA 20091152.
No. 12-0318/AR. U.S.
v. Joshua A. WEEKS. CCA 20110381.
No. 12-0326/AR. U.S.
v. Dennis Q. GIEBLER. CCA 20100842.
No. 12-0339/AR. U.S.
v. Maurice D. FLETCHER. CCA 20110168.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0652/AF. U.S.
v. Michelle E. COURTNEY. CCA 37694.*
No. 12-0402/AR. U.S.
v. Cenquita N. FAGAN. CCA 20110493.
No. 12-0403/AR. U.S.
v. Christopher M. DYER. CCA 20100738.
No. 12-0404/AF. U.S.
v. Jonathan E. MUELLER. CCA 37903.
No. 12-0405/AF. U.S.
v. Justin K. ARAKI. CCA 38009.
No. 12-0406/AF. U.S.
v. Christopher R. DANIELS. CCA S31957.
No. 12-0407/AF. U.S.
v. Kevin W. WILEY. CCA 37953.
INTERLOCUTORY ORDERS
No. 11-0626/AR. U.S.
v. Kirby B. MOSES. CCA 20090247. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to April 11, 2012.
No. 12-0008/AR. U.S.
v. Alaa M. ALI. CCA 20080559. On consideration of the motions filed by Professor Eric Schnapper, the
University of Washington School of Law, to appear pro hac vice, to file a brief
of Amicus Curiae out of time, to allow appearance of law student, to allow Eric
Schnapper to appear as Amicus Curiae, and to present oral argument, it is
ordered that said motions are hereby granted, and that Amicus Curiae will be
allotted 10 minutes to present oral argument.
______________________________
* Second petition filed in this case.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-132
Thursday,
March 22, 2012
APPEALS - SUMMARY
DISPOSITIONS
No. 11-0566/MC. U.S. v. Alan D. SOBENES. CCA 201000381.
On consideration of the petition for grant of review of the decision of
the United States Navy-Marine Corps Court of
Criminal Appeals, we note that the convening authority approved the sentence,
which included a dishonorable discharge, and then stated "the adjudged sentence
is approved and will be executed." Under
Article 71(c)(1), UCMJ, a punitive discharge cannot be ordered executed until,
after the completion of direct appellate review, there is a final judgment as
to the legality of the proceedings.
Thus, to the extent that the convening authority's action purported to
execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again
suggest that the model "Forms for Action" in the Manual for Courts-Martial,
United States app. 16 at A16-1 – A16-6 (2008 ed.) be revised. See United States v. Karras, 70
M.J. 25 (C.A.A.F. 2011); United States v. Politte, 63 M.J. 24, 26 n.11
(C.A.A.F. 2006). Accordingly, it is ordered that said petition is hereby granted, and that,
subject to the above, the decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed. [See
also ORDERS GRANTING PETITION FOR REVIEW this date.]
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0566/MC. U.S. v. Alan D. SOBENES. CCA 201000381.
[See also APPEALS-SUMMARY DISPOSITIONS this date.]
No. 12-0285/AR. U.S. v. Benjamin M. ACKMAN. CCA 20090615.
Review granted on the following issue:
WHETHER SPECIFICATION 1 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.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0626/AR. U.S.
v. Kirby B. MOSES. CCA 20090247.*
INTERLOCUTORY ORDERS
No. 09-5003/AF. U.S.
v. Brandon T. ROSE. CCA 36508.
No. 12-0008/AR. U.S.
v. Alaa M. ALI. CCA 20080559.
No. 12-0030/AR.
U.S. v. Michael C. BEHENNA. CCA
20090234.
No. 12-0202/NA. U.S.
v. Michael IGNACIO. CCA 201100062.
No. 12-6002/AF. U.S.
v. Darren N. HATHORNE. CCA 2011-02.
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-131
Wednesday, March 21, 2012
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0400/MC. U.S.
v. Bryan M. LAMPE. CCA 201100520.
No. 12-0401/MC. U.S.
v. Beau J. PARRA. CCA 201100558.
MISCELLANEOUS DOCKET -
FILINGS
Misc. No. 12-8020/NA. U.S. v. Calvin A. PRINCE, II. CCA 201100161. Notice is hereby given that a
writ-appeal petition for review of the decision of the United States
Navy-Marine Corps Court of Criminal Appeals on application for extraordinary
relief was filed under Rule 27(b) on this date.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-130
Tuesday, March 20, 2012
APPEALS - SUMMARY
DISPOSITIONS
No. 12-0338/AF. U.S. v. Michael J. SALINAS. CCA S31983. On
consideration of the petition for grant of review of the decision of the United
States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted, and the
decision of the United States Air Force Court of Criminal Appeals is affirmed.* [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
* It is directed that the promulgating order be corrected to
reflect that the plea and finding to Charge IV (Art. 128) were guilty, vice not
guilty.
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0338/AF. U.S. v. Michael J. SALINAS. CCA S31983. [See also
APPEALS-SUMMARY DISPOSITIONS this date.]
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0105/AF. U.S.
v. William T. HALEY. CCA 37565.
No. 12-0308/AR. U.S.
v. Justin A. BOYLE. CCA 20090893.
No. 12-0330/AR. U.S.
v. Marc W. COLLIER. CCA 20100741.
No. 12-0332/AF. U.S.
v. Kyle L. SUMMERELL. CCA S31955.
No. 12-0333/AF. U.S.
v. Christopher F. SPOSETO. CCA S31852.
No. 12-0335/AR. U.S.
v. Daniel A. HEIM. CCA 20110646.
No. 12-0337/AF. U.S.
v. Casey M. CULPEPPER. CCA S31981.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0397/NA. U.S.
v. Bryan M. MARTIN. CCA 201100457.
No. 12-0398/AR. U.S.
v. Ryan A. BOWERSOX. CCA 20100580.
No. 12-0399/AR. U.S.
v. Carina L. POE. CCA 20110523.
MANDATES ISSUED
No. 11-0399/NA. U.S.
v. Willie A. BRADLEY. CCA 200501089.
No. 11-0403/AF. U.S.
v. Brent A. CAMPBELL. CCA 37460.
No. 11-0413/NA. U.S.
v. Anthony P. BALLAN. CCA 201000242.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-129
Monday, March 19, 2012
APPEALS - SUMMARY
DISPOSITIONS
No. 12-6005/AF. U.S. v. Robert C. BRISSETTE. CCA 2011-07.
On consideration of the certificate of review of the decision of the
United States Air Force Court of Criminal Appeals on appeal by the United
States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862
(2006), and Appellee's motion to dismiss, it is ordered
that the decision of the United States Air Force Court of Criminal Appeals is
affirmed, and the motion to dismiss is denied.*
* BAKER, Chief Judge (concurring in part, dissenting
in part):
A summary
affirmance is consistent with the majority's position in United States v.
Fosler, 70 M.J. 225 (C.A.A.F. 2011), and in light of Fosler,
correctly resulted in the granting of Appellee's petition for extraordinary
relief on January 3, 2012. However,
because I adhere to my position in Fosler, I concur in denying the
motion to dismiss, but dissent with regard to the Fosler issues for the
reasons stated in my dissenting opinion in Fosler. 70 M.J. 225, 240-47 (C.A.A.F. 2011).
No. 12-6004/AR. U.S. v. Eric W. COOPER. CCA 20110914. On consideration of the certificate for review
of the decision of the United States Army Court of Criminal Appeals on appeal
by the United States under Article 62, Uniform Code of Military Justice, 10
U.S.C. § 862 (2006), and oral argument, we note that because the Army Court of
Criminal Appeals has returned the underlying matter to the military judge for
clarification, no ripe interlocutory issue exists for this Court to
decide. Given the procedural posture of
this case, any decision we render on the certified issues would be premature. Accordingly, it is
ordered that the decision of the United States Army Court of Criminal Appeals
is affirmed.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0394/AR. U.S.
v. Tyler S. FORD. CCA 20110338.
No. 12-0395/AR. U.S.
v. Robert W. MEDEIROS. CCA 20081092.
No. 12-0396/MC. U.S. v. Jason A. LUNSFORD, Jr. CCA
20110511.
INTERLOCUTORY ORDERS
No. 12-0194/AR. U.S.
v. Evan VELA. CCA 20080133. Appellant's motion to extend time to file a
brief granted to March 21, 2012.
No. 12-0395/AR. U.S.
v. Robert W. MEDEIROS. CCA 20081092. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to March 30, 2012.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-128
Friday, March 16, 2012
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 12-0244/AR. U.S.
v. Joshua D. PROCTOR. CCA 20100289.
No. 12-0321/AR. U.S. v. Christopher C. CHAMPION. CCA
20100926.
No. 12-0322/AR. U.S. v. Latretta S. CLEMONS. CCA 20110633.
No. 12-0323/AF. U.S.
v. David G. CONN. CCA S31949.
No. 12-0324/AF. U.S.
v. Danny SANTOS. CCA S31916.
No. 12-0325/AF. U.S.
v. Luke R. ALLISON. CCA 37883.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0392/AR. U.S.
v. Bryon L. SULLIVAN. CCA 20110625.
No. 12-0393/AR. U.S.
v. Michael J. YONG. CCA 20110094.
INTERLOCUTORY ORDERS
No. 12-0030/AR. U.S.
v. Michael C. BEHENNA. CCA 20090234. On consideration of the motions filed by the National Association of Criminal
Defense Lawyers for leave to file Amicus Curiae brief, to participate in oral
argument, and to correct errata, it is ordered that said
motions to correct errata and for leave to file
Amicus Curiae brief are hereby granted, and the motion to participate in oral
argument is hereby denied.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-127
Thursday,
March 15, 2012
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
April 1, 2012, Rule 13A and Rule 19(b) are hereby amended as provided in the
attachment to this Order (changes appear in bold typeface), and Rule 27(a)(4)
is hereby rescinded.
Rule 13A:
Add new
subparagraph (h) as follows:
(h) Time for Filing. An amicus brief submitted under this Rule
is not subject to the time limitation in Rule 26(b), but such brief shall be
filed no less than 14 days before the scheduled date for oral argument. Both the appellant and the appellee may file
a reply to such brief within 7 days of the filing thereof, subject to the
limitations specified in Rule 24(b) and (c).
Rule 19(b):
(b) Certificate for review/brief/answer/reply
(1) Article 62, UCMJ, cases. In cases involving a decision by a Court of
Criminal Appeals on appeal by the United States under Article 62, UCMJ, 10 USC
§ 862, a certificate for review, together with a supporting brief in accordance
with Rule 24 on behalf of the appellant, shall be filed with the Court by the
Judge Advocate General no later than 60
days after the date of the decision of the Court of Criminal Appeals.
[Remainder of paragraph is unchanged.]
(2) Extraordinary Relief Cases. In cases involving a decision by a Court of
Criminal Appeals on application for extraordinary relief filed therein, a
certificate for review, together with a supporting brief in accordance with
Rule 24 on behalf of the appellant, shall be filed with the Court by the Judge
Advocate General no later than 60
days after the date of the decision of the Court of Criminal Appeals. [Remainder of paragraph is unchanged.]
(3) Other Cases. In all other cases involving a decision by a
Court of Criminal Appeals, a certificate for review filed by the Judge Advocate
General shall be filed either (a) no later than 60 days after the date of the decision of the Court of Criminal
Appeals, or (b) no later than 30 days after a petition for grant of review is
granted. [Remainder of paragraph is
unchanged.]
APPEALS - SUMMARY
DISPOSITIONS
No. 12-0293/NA. U.S. v. Adam G. HALL. CCA 201000671.
On consideration of the petition for grant of review of the decision of
the United States Navy-Marine Corps Court of
Criminal Appeals, it is ordered that said petition is
hereby granted, and the decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.* [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
* It is directed that the promulgating
order be corrected to include the sentencing date.
No. 12-0301/CG. U.S. v. Patrick L. MURPHY. CCA 0274. On
consideration of the petition for grant of review of the decision of the United
States Coast Guard Court of Criminal Appeals, we note that the convening
authority approved the sentence, which included a dishonorable discharge, and
then stated "the adjudged sentence is approved and will be executed." Under Article 71(c)(1), UCMJ, a punitive
discharge cannot be ordered executed until, after the completion of direct
appellate review, there is a final judgment as to the legality of the
proceedings. Thus, to the extent that
the convening authority's action purported to execute the dishonorable
discharge, it was a nullity. To avoid
any error in this regard, we again suggest that the model "Forms for Action" in
Manual for Courts-Martial, United States app. 16 at A16-1 - A16-6 (2008) ed.)
be revised. See United States
v. Politte, 63 M.J. 24, 26 n.11 (C.A.A.F. 2006). Accordingly, it is ordered that said petition
is hereby granted, and that subject to the above, the decision of the United
States Coast Guard Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0293/NA. U.S. v. Adam G. HALL. CCA 201000671.
[See also APPEALS-SUMMARY DISPOSITIONS this date.]
No. 12-0301/CG. U.S. v. Patrick L. MURPHY. CCA 0274. [See also
APPEALS-SUMMARY DISPOSITIONS this date.]
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0314/AF. U.S.
v. Benjamin J. KNELL. CCA 37832.
No. 12-0315/AF. U.S.
v. Joseph W. GRAHAM II. CCA S31907.
No. 12-0316/AF. U.S.
v. Warren W. BARNHART IV. CCA S31940.
No. 12-0319/AR. U.S.
v. Jamie S. FRISBY. CCA 20110021.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0387/AF. U.S.
v. Kevin W. BOLIVAR. CCA S31961.
No. 12-0388/AF. U.S.
v. Nicholas G. ANDERSON. CCA S31945.
No. 12-0389/AF. U.S.
v. Ivan FLORES. CCA 37991.
No. 12-0390/AF. U.S.
v. Bryan P. WILLIAMS. CCA S31975.
No. 12-0391/AF. U.S.
v. D'Jon A. CAMELL. CCA 37955.
INTERLOCUTORY ORDERS
No. 12-0030/AR. U.S.
v. Michael C. BEHENNA. CCA 20090234. On consideration of the motion filed by the National Institute of Military
Justice for leave to file as Amicus Curiae, and for leave to permit law student
participation, it is ordered that said motion is hereby granted.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-126
Wednesday, March 14, 2012
APPEALS
- SUMMARY DISPOSITIONS
No. 12-0236/NA.
* It is directed that the promulgating order be
corrected to reflect that the adjudged sentence included a bad-conduct
discharge.
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0236/NA.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0385/AR.
No. 12-0386/AR.
INTERLOCUTORY ORDERS
No. 11-0495/AR.
No. 11-0559/NA.
hereby denied and said petition
is denied as moot.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-125
Tuesday, March 13, 2012
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 12-0287/NA. U.S. v. Michael D. SILVERSTEIN. CCA 201100407.
No. 12-0299/AF. U.S. v. Nathan AMBRIZ. CCA 37674.
No. 12-0306/AF. U.S.
v. Jacob L. SCOTT. CCA S31838.
No. 12-0309/AR. U.S.
v. John P. CRAWFORD. CCA 20110154.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0475/AR. U.S.
v. Robert L. CONRADY. CCA 20080534.*
No. 12-0379/MC. U.S. v. Michael A. MANGLICMOT. CCA 201100435.
No. 12-0380/MC. U.S. v. Scott D. BAUER, Jr. CCA 201100515.
No. 12-0381/MC. U.S.
v. Brian D. ALEXANDER. CCA 201100421.
No. 12-0382/MC. U.S.
v. Benjamin T. MCDANIEL. CCA 201100573.
No. 12-0383/AR. U.S. v. Edwin COLLAZO-HERNANDEZ. CCA 20110186.
No. 12-0384/MC. U.S. v. Jonathan R. CARRILLO. CCA 201100232.
INTERLOCUTORY ORDERS
No. 09-5003/AF. U.S.
v. Brandon T. ROSE. CCA 36508. On consideration of the motions filed by Brooks Holland, Assistant Professor of
Law, Gonzaga University School of Law, to permit law students to appear on
behalf of Amicus Curiae, to appear as Amicus Curiae and file untimely brief,
and to submit oral argument, it is ordered that said
motions are hereby granted, and the Amicus Curiae will be allotted 10 minutes
to present oral argument.
No.
12-0377/AR. U.S. v. Randy A. GIDDENS.
CCA 20090598. Appellant's motion to extend time to file the supplement to the
petition for grant of review granted to April 2, 2012.
_______________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-124
Monday, March 12, 2012
HEARINGS
No. 12-0053/AR.
No. 12-6004/AR.
No. 12-0099/AR.
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0303/MC.
A SPECIFICATION STATES AN OFFENSE
ONLY IF IT ALLEGES EITHER EXPRESSLY OR BY IMPLICATION, EVERY ELEMENT OF THE
OFFENSE. THE "TERMINAL
ELEMENT" OF ARTICLE 134, UCMJ, IS AN ELEMENT OF THE OFFENSE THAT MUST BE
PROVED BEYOND A REASONABLE DOUBT.
SPECIFICATIONS 1, 2, AND 3 OF THE CHARGE DO NOT ALLEGE THE TERMINAL
ELEMENT OF ARTICLE 134, UCMJ. DO THE
SPECIFICATIONS FAIL TO STATE AN OFFENSE?
No briefs will be filed under Rule
25.
No. 11-0610/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 SPECIFICATION OF CHARGE III CANNOT BE NECESSARILY
IMPLIED FROM THE TEXT. IS THE CHARGE
FATALLY DEFECTIVE?
No briefs will be filed under Rule
25.
No. 12-0234/AF.
WHETHER APPELLANT'S PLEA OF GUILTY
TO CHARGE II AND ITS SPECIFICATION WAS IMPROVIDENT BECAUSE THE SPECIFICATION OF
CHARGE II FAILED TO ALLEGE ANY ONE OF THE THREE DISTINCTIVE ELEMENTS OF ARTICLE
134 AND THEREBY FAILED TO MEET THE CONSTITUTIONAL NOTICE STANDARD SET FORTH IN SCHMUCK
v. UNITED STATES, HAMLING v. UNITED STATES, AND RUSSELL v. UNITED
STATES.
No briefs will be filed under Rule
25.
No. 12-0280/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 SPECIFICATION OF CHARGE IV CANNOT BE NECESSARILY
IMPLIED FROM THE TEXT. IS THE CHARGE
FATALLY DEFECTIVE?
And the following issue specified by the Court:
WHETHER THE UNITED STATES ARMY COURT
OF CRIMINAL APPEALS ERRED BY PURPORTING TO AFFIRM A "REDUCTION TO THE
GRADE OF PRIVATE E1" WHERE NO SUCH PUNISHMENT WAS ADJUDGED AT THE
COURT-MARTIAL. SEE ARTICLE 66(c), UCMJ.
No briefs will be filed under Rule
25.
No. 12-0340/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 SPECIFICATION OF CHARGE VI CANNOT BE NECESSARILY
IMPLIED FROM THE TEXT. IS THE CHARGE
FATALLY DEFECTIVE?
No briefs will be filed under Rule
25.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0376/MC.
No. 12-0377/AR.
No. 12-0378/AR.
MANDATES ISSUED
No. 11-0396/MC.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-123
Friday, March 9, 2012
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0227/NA.
DOES AN ARTICLE 134 CLAUSE 1 OR 2
SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
STATE 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. 12-0304/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 SPECIFICATIONS 2-12 OF CHARGE IV CANNOT BE NECESSARILY
IMPLIED FROM THE TEXT. ARE THE CHARGES
FATALLY DEFECTIVE?
No briefs will be filed under Rule
25.
No. 12-0305/AR.
WHETHER THE SPECIFICATION OF THE
ADDITIONAL CHARGE 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. 12-0310/AF.
WHETHER 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. 12-0311/AF.
WHETHER THE SPECIFICATION OF CHARGE
IV FAILS TO STATE AN OFFENSE BECAUSE IT DOES NOT EXPRESSLY ALLEGE OR
NECESSARILY IMPLY THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ.
No briefs will be filed under Rule
25.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0255/AR.
No. 12-0268/NA.
No. 12-0302/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0165/AF.
No. 11-0401/AF.
No. 12-0373/AF.
No. 12-0374/NA.
No. 12-0375/MC.
INTERLOCUTORY ORDERS
No. 12-0371/AR.
No. 12-0373/AF.
No. 12-6006/AR.
_____________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-122
Thursday, March 8, 2012
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0383/NA.
DOES AN ARTICLE 134 CLAUSE 1 OR 2
SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
STATE 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. 12-0148/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 SPECIFICATION OF CHARGE IV CANNOT BE NECESSARILY IMPLIED
FROM THE TEXT. IS THE CHARGE FATALLY DEFECTIVE?
And the following issue specified by the Court:
WHETHER APPELLANT'S CONVICTION FOR
ASSAULT AS A LESSER-INCLUDED OFFENSE OF INDECENT ASSAULT UNDER ARTICLE 134 MAY
BE AFFIRMED WHERE THE ARTICLE 134 SPECIFICATION WAS DEFECTIVE UNDER UNITED
STATES v. FOSLER, 70 M.J.
225 (C.A.A.F. 2011).
Briefs will be filed under Rule 25.
No. 12-0245/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 SPECIFICATION 2 OF CHARGE II CANNOT BE NECESSARILY
IMPLIED FROM THE TEXT. IS THE CHARGE
FATALLY DEFECTIVE?
Briefs will be filed under Rule 25.
No. 12-0252/AR.
WHETHER SPECIFICATIONS 2 AND 5 OF
CHARGE III FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR
NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.
Briefs will be filed under Rule 25.
No. 12-0259/AR.
WHETHER SPECIFICATIONS 3 THROUGH 5
OF CHARGE I FAIL TO STATE AN OFFENSE BECAUSE THEY DO NOT EXPRESSLY ALLEGE OR
NECESSARILY IMPLY THE TERMINAL ELEMENT OF ARTICLE 134, UCMJ.
No briefs will be filed under Rule
25.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0389/AR.
No. 12-0371/AR.
No. 12-0372/AR.
___________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-121
Wednesday, March 7, 2012
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0368/AR.
No. 12-0369/AR.
No. 12-0370/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-120
Tuesday, March 6, 2012
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0294/AR.
No. 12-0295/AR.
No. 12-0297/AR.
No. 12-0298/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0044/AF.
No. 12-0365/AR.
No. 12-0366/AR.
No. 12-0367/AR.
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-119
Monday, March 5, 2012
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0443/AR.
No. 12-0363/AR.
No. 12-0364/AR.
MISCELLANEOUS DOCKET -
SUMMARY DISPOSITIONS
Misc. No. 12-8014/MC.
Shawn C. BLAIR, v. William Riggs, Colonel, United States Marine Corps,
in his official capacity as Military Judge, and The United States, Appellees. CCA 201200018. On
consideration of the writ-appeal petition, it is ordered that said petition is
hereby denied.
INTERLOCUTORY ORDERS
No. 11-0443/AR.
No. 11-0476/AR.
No. 12-0331/AR.
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-118
Friday, March 2, 2012
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0197/AR.
No. 12-0288/AF.
No. 12-0289/AF.
No. 12-0290/AF.
No. 12-0291/AF.
No. 12-0292/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 11-0511/AR.
No. 12-0361/AR.
No. 12-0362/AR.
MANDATES ISSUED
No. 11-5003/NA.
______________________________
*
Second petition filed in this
case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-117
Thursday, March 1, 2012
PETITIONS FOR GRANT OF REVIEW
DENIED
No. 12-0223/NA.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0360/MC.
INTERLOCUTORY ORDERS
No. 12-0053/AR.
No. 12-0099/AR.
No. 12-6004/AR.
Home Page
|
Opinions & Digest
| Daily
Journal | Scheduled Hearings
| Search Site