UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-237
Friday, August 29,
2014
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0604/NA. U.S. v. Donald J.
MCALLISTER. CCA
201300086.
No. 14-0622/AR. U.S. v. Mickey B. KEEN. CCA 20130473.
No. 14-0647/AR. U.S. v. Jonathon H.
CHAMBERS. CCA
20110324.
No. 14-0713/NA. U.S. v. Christopher
GRIFFIN. CCA
201300227.
No. 14-0746/AR. U.S. v. Kenneth B.
GREENWOOD. CCA
20120468.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0805/NA. U.S. v. Christopher
JANUSKI. CCA
201300210.
No. 14-0806/AR. U.S. v. James H. TOBEY. CCA 20121059.
No. 14-0807/NA. U.S. v. Jonathan D. REDMON. CCA 201300077.
INTERLOCUTORY
ORDERS
No. 14-0805/NA. U.S. v. Christopher
JANUSKI. CCA
201300210. Appellant's motion to
extend time to file the supplement to the petition for grant of review granted
to September 18, 2014.
ANNOUNCEMENT
BY
THE CLERK OF THE COURT
OF
THE CUMULATIVE SUMMARY OF
COURT
WORKLOAD STATISTICS
FOR
THE SEPTEMBER 2013 TERM OF COURT
I. CUMULATIVE
PENDING SEPTEMBER 1, 2013
Master
Docket . . . . . . . . . . . . . . .
28
Petition
Docket . . . . . . . . . . . . . . 131
Miscellaneous
Docket. . . . . . . . . . . . 1
TOTAL
. . . . . . . . . . . . . . . . .
160
II. CUMULATIVE FILINGS
Master
Docket . . . . . . . . . . . . . . .
101
Petition
Docket . . . . . . . . . . . . . . 853
Miscellaneous
Docket. . . . . . . . . . . . 22
TOTAL
. . . . . . . . . . . . . . . . .
976
III. CUMULATIVE TERMINATIONS
Master
Docket . . . . . . . . . . . . . . .
101
Petition
Docket . . . . . . . . . . . . . . 816
Miscellaneous
Docket. . . . . . . . . . . . 22
TOTAL
. . . . . . . . . . . . . . . . .
939
IV. CUMULATIVE PENDING SEPTEMBER
1, 2014
Master
Docket . . . . . . . . . . . . . . .
28
Petition
Docket . . . . . . . . . . . . . . 168
Miscellaneous
Docket. . . . . . . . . . . . 1
TOTAL
. . . . . . . . . . . . . . . . .
197
V. CASES
ON MASTER DOCKET CARRIED OVER TO THE
SEPTEMBER
2013 TERM OF COURT (28)
AWAITING
ORAL ARGUMENT OR FINAL DISPOSITION (23)
(INCLUDES TRAILER CASES)
12-0501/AF - MCFADDEN
13-7001/AR - AKBAR
14-0033/AF - PEACOCK
14-0057/AF - JONES
14-0060/AF - GRAWEY
14-0125/AF - ANNIS
14-0138/AF - BURNS
14-0156/AF - JOHNSON
14-0157/AF - DIXON
14-0199/AF - PHILLIPS
14-0222/AF - TORRES
14-0283/AF – PIOLUNEK
& 14-5006/AF
14-0289/AR - PETERS
14-0384/AF - HUEY
& 14-5009/AF
14-0453/AR - PIREN
14-0457/AR - CASTILLO
14-0491/AR - NEMETH
14-0505/AR - CARROLL
14-0558/AR - AMAYA
14-0619/AR - TWINAM
14-5008/AF – KATSO
14-6009/MC – VARGAS
14-6010/AF - BUFORD
AWAITING BRIEFS
(5)
12-0616/AR - BENNITT
13-0522/AF - GUTIERREZ
14-0322/MC - GILBREATH
14-0415/AR - NEWTON
14-5007/AF - MORITA
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-236
Thursday, August 28,
2014
APPEALS -
SUMMARY DISPOSITIONS
No. 14-0040/NA. U.S. v. Ethan S. SHORT. CCA 201200483. On
further consideration of the granted issue, 73 M.J.
200 (C.A.A.F. 2014), and the briefs of the parties,
and in view of United States v. Davenport, 73 M.J.
373 (C.A.A.F. 2014), we hold that the record of trial
in this case contains a substantially verbatim transcript.
During Appellant's
sentencing, an audio recording of the providence inquiry was played for the
members. While the transcript of this
portion of the proceedings did not include a verbatim transcript of the
recorded providence inquiry, a verbatim transcript of the entire providence
inquiry is included earlier in the record.
Moreover, Appellant consented to the attachment to the record of an
audio recording of the entire trial, which included the recording of the
providence inquiry played for the members.
Thus, the substance
of the omitted material can "be recalled with fidelity" because it is located
elsewhere in the transcript in its entirety.
See Davenport, 73 M.J.
at ___. Consequently, the
omission in this case is not substantial, and, therefore, the transcript here
was verbatim. Accordingly, it is ordered
that the decision of the United States Navy-Marine Corps Court of Criminal
Appeals is affirmed.
No. 14-0707/AR. U.S. v. Cortland A. REID. CCA 20130671. On
consideration of the petition for grant of review of the decision of the United
States Army Court of Criminal Appeals, it is ordered that said petition is
granted and the decision of the United States Army Court of Criminal Appeals is
affirmed.* (See also ORDERS GRANTING PETITION FOR REVIEW
this date.)
* It is noted that the military judge neglected to seal
the exhibits and transcript relative to a notice to offer evidence under M.R.E. 412.
Accordingly, the Clerk is directed to seal the record at pages 85-97 and
Appellate Exhibits XXXIX and XXX.
ORDERS
GRANTING PETITION FOR REVIEW
No. 14-0505/AR. U.S. v. Martin L. CARROLL. CCA 20111158.
Review granted on the following issue:
WHETHER THE MILITARY
JUDGE ABUSED HER DISCRETION BY ACCEPTING APPELLANT'S PLEA OF GUILTY TO
DISOBEYING THE ORDER OF HIS COMMANDER IN VIOLATION OF ARTICLE 90, UCMJ, WHEN THE ULTIMATE OFFENSE AT ISSUE WAS THE MINOR OFFENSE
OF RESTRICTION BREAKING DESCRIBED UNDER ARTICLE 134, UCMJ,
AND THE RECORD DOES NOT REFLECT APPELLANT'S UNDERSTANDING THAT THE ORDER
IMPOSING RESTRICTION WAS ISSUED WITH THE FULL AUTHORITY OF HIS COMMANDER'S OFFICE
TO LIFT THE DUTY "ABOVE THE COMMON RUCK."
No briefs will be
filed under Rule 25.
No. 14-0707/AR. U.S. v. Cortland A. REID. CCA 20130671. (See also APPEALS – SUMMARY DISPOSITIONS this date.)
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0434/NA. U.S. v. Johnny R. RICHARDS. CCA 201300332.
No. 14-0504/AF. U.S. v. Juan J. BASABE. CCA 38277.
No. 14-0512/AF. U.S. v. Christopher B JAGASSAR. CCA 38228.
No. 14-0548/AF. U.S. v. Timothy M. MILLER. CCA 38211.
No. 14-0557/NA. U.S. v. Anil K. DUTTA. CCA 201300254.
No. 14-0598/AF. U.S. v. Kyle W. LIGHTNER. CCA 38253.
No. 14-0692/AR. U.S. v. Kevin E. MATHIS,
Jr. CCA 20130337.
No. 14-0700/AR. U.S. v. Kyle E. NEITZKE. CCA 20120397.
No. 14-0702/AR. U.S. v. Phillip C.
GRIFFITH. CCA 20140100.
No. 14-0733/AR. U.S. v. Timothy A. PAGE. CCA 20130465.
No. 14-0737/AR. U.S. v. Israel GARCIA. CCA 20130884.
No. 14-0742/AF. U.S. v. Grant C. BETTS. CCA 38432.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0802/AR. U.S. v. Steven A. HART. CCA 20140055.
No. 14-0803/AR. U.S. v. Adrian W. ANDREWS. CCA 20140187.
No. 14-0804/MC. U.S. v. Vidal E. SANCHEZ
III. CCA 201400053.
INTERLOCUTORY
ORDERS
No. 13-7001/AR. U.S. v. Hasan
K. AKBAR. CCA 20050514. On consideration of the motion filed by Major
Jacob D. Bashore for leave to withdraw as appellate defense counsel, and the
motion to deny the motion to withdraw as appellate defense counsel, which this
Court construes as an answer to said motion to withdraw as appellate defense
counsel, it is ordered that said motion to withdraw as appellate defense
counsel is hereby denied without prejudice to re-filing after oral argument or
until Appellant declines to waive any appearance of conflict based on counsel's
reassignment, which waiver should be sought immediately and submitted to the
Court no later than September 15, 2014.
No. 14-0604/NA. U.S. v. Donald J.
MCALLISTER. CCA 201300086. Appellant's motion for leave to submit ex
parte filing denied, and Appellant's motion to seal ex parte filing denied as
moot.
No. 14-0648/AR. U.S. v. Blake C. BAKER. CCA 20120420. Appellant's
motion to substitute a corrected supplement to the petition for grant of review
granted.
MANDATES
ISSUED
No. 13-0536/AR. U.S. v. Jacob D. MOON. CCA 20120112.
No. 13-0573/AR. U.S. v. Calvin J.
DAVENPORT. CCA 20081102.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-235
Wednesday, August 27,
2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0077/AR. U.S. v. Robert L. DAVIS,
Jr. CCA 20120244.*
No. 14-0801/AR. U.S. v. John S. VLASIS II. CCA 20120897.
INTERLOCUTORY
ORDERS
No. 14-5008/AF. United States, Appellant v. Joshua KATSO, Appellee. CCA 38005. On
consideration of the motions filed by
the Defense Forensic Center, United States Army Criminal Investigation
Laboratory, to file an amicus curiae brief in support of Appellant and to
extend time to file a proposed amicus curiae brief in support of Appellant, it
is ordered that said motions are hereby granted. The brief of amicus curiae will be filed on
or before September 10, 2014.
______________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-234
Tuesday, August 26,
2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0799/AR. U.S. v. Paul W. BOLT. CCA 20130505.
No. 14-0800/AR. U.S. v. Enos
J. MILLER. CCA 20130576.
No. 14-6011/AR. U.S. v. Brandon S. WILSON. CCA 20140386.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-233
Monday, August 25,
2014
ORDERS
GRANTING PETITION FOR REVIEW
No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172.
Review granted on the following issue:
WHETHER THE ARMY
COURT OF CRIMINAL APPEALS ABUSED ITS DISCRETION BY RE-AFFIRMING APPELLANT'S APPROVED
SENTENCE AFTER THIS COURT SET ASIDE HIS CONVICTION FOR MANSLAUGHTER.
Briefs will be filed
under Rule 25.
No. 14-0619/AR. U.S. v. Aaron J. TWINAM. CCA 20120384.
Review granted on the following issue:
WHETHER
THE MILITARY JUDGE ABUSED HIS DISCRETION BY ACCEPTING APPELLANT'S PLEA WHEN HE
IGNORED THE ULTIMATE OFFENSE DOCTRINE AND FOUND APPELLANT GUILTY OF FAILURE TO
OBEY AN ORDER OR REGULATION.
No briefs will be
filed under Rule 25.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0511/AF. U.S. v. Clayton A.
BIEHUNKO. CCA
S32117.
No. 14-0645/AR. U.S. v. Czechoslovak T.
HICKS. CCA
20121172.
No. 14-0665/AR. U.S. v. John D. NAGEL. CCA 20121133.
No. 14-0668/AF. U.S. v. Christopher M.
SANCHEZ. CCA
S32144.
No. 14-0732/AR. U.S. v. Dakota J. BARFIELD. CCA 20130870.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0793/NA. U.S. v. Donnell T. EPPS. CCA 201300423.
No. 14-0794/MC. U.S. v. Tyler R.
CIESLEWICZ. CCA
201300421.
No. 14-0795/MC. U.S. v. Phillip H. THAI. CCA 201400084.
No. 14-0796/NA. U.S. v. Trevin C. CUMMINGS. CCA 201400095.
No. 14-0797/AR. U.S. v. Theodore W. POLAND,
Jr. CCA 20130532.
No. 14-0798/AF. U.S. v. Gary D. MOORE. CCA 38435.
INTERLOCUTORY
ORDERS
No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of the joint motion to file out of time a response to the
Court's order to submit a digital version of the joint appendix, it is ordered
that said motion is hereby granted.
No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. On consideration of the joint motion to amend
the joint motion for oral argument, it is ordered that said motion is hereby granted.
No. 14-0166/AF. U.S. v. Brittany N. OLSON. CCA S32034. On consideration of Appellant's motion to
supplement the record and motion to file supplemental issue, it is ordered that
said motions are hereby denied.
No. 14-0434/NA. U.S. v. Johnny R. RICHARDS. CCA 201300332. On consideration of Appellant's third motion to
extend time to file the supplement to the petition for grant of review, and
motion to file the supplement to the petition for grant of review out of time,
it is ordered that said motion to file the supplement to the petition for grant
of review out of time is hereby granted, and that said third motion to extend
time to file the supplement to the petition for grant of review is hereby
denied as moot.
No. 14-0794/MC. U.S. v. Tyler R. CIESLEWICZ. CCA 201300421.
Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to September
15, 2014.
No. 14-0795/MC. U.S. v. Phillip H. THAI. CCA 201400084. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to September 15, 2014.
NOTICES
No. 14-0415/AR. U.S. v. William E. NEWTON,
Jr. CCA 20110499. In view of Judge Ohlson's
recusal in the above-referenced case, notice is hereby given that the Chief
Judge has called upon Senior Judge Walter T. Cox III to perform judicial duties
in the above-referenced case, and that Senior Judge Cox has consented to
perform judicial duties in said case under Article 142(e)(1)(A)(ii),
Uniform Code of Military Justice, 10 U.S.C. §
942(e)(1)(A)(ii) (2006).
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-232
Friday, August 22,
2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0791/AR. U.S. v. Lester M. ENCALADE, Jr.
CCA
20120642.
No. 14-0792/AR. U.S. v. Collin J. CARTER. CCA 20121046.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-231
Thursday, August 21,
2014
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0447/AR. U.S. v. Stephen C. PANTOJA. CCA 20120030.
No. 14-0714/AR. U.S. v. Shaun P. KUHN. CCA 20120098.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0789/AR. U.S. v. Eric T. RYANT. CCA 20120204.
No. 14-0790/AR. U.S. v. Adam P. DYER. CCA 20140122.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-230
Wednesday, August 20,
2014
APPEALS -
SUMMARY DISPOSITIONS
No. 14-0411/AF. U.S. v. Joseph W. YANEZ. CCA 38181. On further consideration of the granted issue, 73 M.J.
___ (C.A.A.F. June 12, 2014), and the briefs filed by the parties, it is
ordered that the decision of the United States Air Force Court of Criminal
Appeals is affirmed.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0456/MC. U.S. v. Alex J. DURAN. CCA 201200440.
No. 14-0489/AR. U.S. v. O'Neil G. DAVIDSON. CCA 20120103.
No. 14-0514/AF. U.S. v. Holly M. DICKINSON. CCA S32134.
No. 14-0536/NA. U.S. v. Griffin J.
CHRASTINA. CCA
201200464.
No. 14-0639/AF. U.S. v. Corey K. HUDGINS. CCA 38305.
No. 14-0721/AR. U.S. v. Allison SOMERSET. CCA 20110220.
No. 14-0722/AR. U.S. v. Danny W. NELSON. CCA 20130483.
No. 14-0723/AR. U.S. v. Christopher R. MEIERHOLTZ. CCA 20121177.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0787/AR. U.S. v. Daniel ROJAS. CCA 20130701.
No. 14-0788/AR. U.S. v. John W. BRINSON,
Jr. CCA
20120887.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
No. 14-229
Tuesday,
August 19, 2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0785/AR. U.S. v. Richard S.
BJORLING. CCA
20120832.
No. 14-0786/AR. U.S. v. Larry A. FRANCISCO. CCA 20140208.
INTERLOCUTORY
ORDERS
No. 14-0773/AF. U.S. v. Jeremiah L.
THOMPSON III. CCA
38269. Appellant's motion to
extend time to file the supplement to the petition for grant of review granted
to September 4, 2014.
No. 14-0777/MC. U.S. v. Bryan S. LACOUNT. CCA 201300259. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to September 8, 2014.
No. 14-0783/NA. U.S. v. Marshand A. WOODS. CCA 201300153. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to September 8, 2014.
No. 14-0784/NA. U.S. v. Anthony L. EVANS. CCA 201300174. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to September 8, 2014.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-228
Monday, August 18,
2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0774/AF. U.S. v. Christopher J.
KLEIN. CCA 38273.
No. 14-0775/AF. U.S. v. Michael J. ROCHE. CCA 38266.
No. 14-0776/AF. U.S. v. Neil C. MACDONALD. CCA 38491.
No. 14-0777/MC. U.S. v. Bryan S. LACOUNT. CCA 201300259.
No. 14-0778/NA. U.S. v. Jeremy R. GREEN. CCA 201300276.
No. 14-0779/AR. U.S. v. Travis R. PRICE. CCA 20130161.
No. 14-0780/AR. U.S. v. Steven D. WILLIAMS. CCA 20120375.
No. 14-0781/AR. U.S. v. Tyler A. MCINTOSH. CCA 20120780.
No. 14-0782/AR. U.S. v. Mason D. DIVINE. CCA 20120962.
No. 14-0783/NA. U.S. v. Marshand
A. WOODS. CCA 201300153.
No. 14-0784/NA. U.S. v. Anthony L. EVANS. CCA 201300174.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-227
Friday, August 15,
2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0772/AR. U.S. v. Robert J. MURRILO. CCA 20130245.
No. 14-0773/AF. U.S. v. Jeremiah L.
THOMPSON III. CCA
38269.
INTERLOCUTORY
ORDERS
No. 14-0515/AF. U.S. v. William C. GURNEY. CCA 37905. On consideration of Appellant's motion for
reconsideration, which this Court construed as a petition for reconsideration,
it is ordered that said petition for reconsideration is hereby denied.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No.14-226
Thursday, August 14,
2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0771/AR. U.S. v. Michael D. TYREE. CCA 20130034.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-225
Wednesday, August 13,
2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0770/AR. U.S. v. Gabriel A. PARRA,
Sr. CCA 20110920.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-224
Tuesday, August 12,
2014
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0522/AR. U.S. v. Rudy A. VILLASANA. CCA 20120249.
No. 14-0602/AR. U.S. v. Maurice BARNES. CCA 20130613.
No. 14-0708/AR. U.S. v. Robert A. WOODYARD. CCA 20130020.
No. 14-0709/AF. U.S. v. Christopher L. AHN. CCA 38217.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0768/AR. U.S. v. Jeffery R. KUNTZ. CCA 20130555.
No. 14-0769/AF. U.S. v. Kwinton
K. ESTACIO.
CCA
38256.
INTERLOCUTORY
ORDERS
No. 14-0764/AF. U.S. v. Michael L. MITCHELL. CCA 38254.
Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to September 2,
2014.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No.14-223
Monday, August 11,
2014
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0493/AR. U.S. v. William J. GRIMES. CCA 20100720.
No. 14-0539/CG. U.S. v. Brandon M. CORRAL. CCA 1373.
No. 14-0701/AF. U.S. v. Jesse L. GIERKE. CCA 38439.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0764/AF. U.S. v. Michael L.
MITCHELL. CCA 38254.
No. 14-0765/AR. U.S. v. Marvin L. MAYBERRY. CCA 20110486.
No. 14-0766/AR. U.S. v. Jesse M. ANDERSON. CCA 20130439.
No. 14-0767/AR. U.S. v. Brian A. MURPHY. CCA 20120556.
MANDATES
ISSUED
No. 14-0265/CG. U.S. v. Jaason
LEAHR. CCA 1365.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-222
Friday, August 8,
2014
APPEALS -
SUMMARY DISPOSITIONS
No. 14-0261/AR. U.S. v. Elliot M. CARRASQUILLO. CCA 20110719. On
further consideration of the granted issue, 73 M.J.
288 (C.A.A.F. 2014), and in view of United States
v. Jones, 73 M.J. 357 (C.A.A.F.
2014), we conclude that in light of the facts and circumstances of this case,
the military judge did not err in concluding that SPC
Ellis was not acting, and could not reasonably be considered by Appellant to be
acting, in an official law enforcement or disciplinary capacity in questioning
Appellant, and the military judge did not abuse his discretion when he denied
the defense's motion to suppress Appellant's statement. Accordingly, it is ordered that the decision of the United States Army Court
of Criminal Appeals is hereby affirmed.
No. 14-5005/AF. United States, Appellant v. Todd E. MCDOWELL,
Appellee, Christopher A. DEMARIO,
Real Party In Interest. CCA 2013-28. On consideration of the issues certified by
the Judge Advocate General of the Air Force, 73 M.J.
287 (C.A.A.F. 2014), the briefs of the parties and of
the amici curiae, the motions of Protect Our
Defenders and the alleged victim for leave to file amicus curiae briefs and make oral argument in support of
Appellant, and the motions of the Real Party in Interest and Appellant to
supplement the record, we conclude that the United States Air Force Court of
Criminal Appeals did not err in denying Appellant's petition for extraordinary
relief. Accordingly, it is ordered that
the motions of Protect Our Defenders and the alleged victim to file amicus curiae briefs are hereby granted,
that the motions of the Real Party in Interest and Appellant to supplement the
record are hereby granted, that the motions of Protect Our Defenders and the
alleged victim to make oral argument are hereby denied as moot, that the
certified issues are answered in the negative, and the decision of the Court of
Criminal Appeals is hereby affirmed.
* BAKER, Chief Judge (concurring):
I agree with the
reasoning of the Court of Criminal Appeals as to why the military judge did not
abuse his discretion in this case as well as its reasons for not granting a
writ of mandamus. A writ of mandamus is
limited to "the exceptional case where there is clear abuse of discretion or
'usurpation of judicial power.'" Bankers
Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953). Neither is present in this case. However, given the importance of the issues
raised to military justice, including to the alleged victim, to the Government,
and to the accused, I believe it important to state on the record my
concurrence with the military judge and the lower court. I also do so to highlight the sui generis
nature of this case.
Background
As
summarized in the lower court's order, a single charge and specification were
preferred against the accused alleging the rape of BB, a 16-year-old female
acquaintance. On the day prior to the
Article 32, UCMJ,1
investigation, defense counsel interviewed the alleged victim for three
hours. At the hearing, defense counsel
informed the investigating officer that they had not been able to complete
their interview of the alleged victim the previous day. To accommodate the defense the investigating
officer allowed more expansive questioning of the alleged victim "that would
normally have been covered during a pretrial interview." After more than two hours on the stand
answering the defense questions, it appeared to the investigating officer that
the alleged victim was becoming upset with the nature of the questions. At this point the investigating officer
informed the alleged victim that she was not obligated to continue her
appearance at the hearing and that she was free to leave, and she departed. At the point the witness's testimony
terminated, defense counsel had just begun questioning her relating to the
events on the day of the alleged act. Up
to that point, counsel had been questioning her on her interactions with the
accused leading up to the day of the alleged rape.
Later, at a
pretrial Article 39(a), UCMJ,2
session, the defense moved to depose the alleged victim asserting they had had
insufficient opportunity to interview her or to cross-examine her at the
Article 32 investigation. The military
judge concluded, "due to the exceptional circumstances of this case, it is in
the interest of justice that the testimony of [the witness] be taken and
preserved." He then granted the motion
to depose the witness and ordered the convening authority to reopen the Article
32 investigation to allow the investigating officer to consider the deposition
once it was taken. The Government filed
a Petition for Extraordinary Relief with the Court of Criminal Appeals seeking
a writ of mandamus against the military judge.
Relief, however, was denied.
A writ of
mandamus is a writ this court may issue under the authority of the All Writs
Act, 28 U.S.C. § 1651(a) (2006). However, "[t]o justify reversal of a
discretionary decision by mandamus, the judicial decision must amount to more
than even 'gross error'; it must amount 'to a judicial usurpation of power' or
be 'characteristic of an erroneous practice which is likely to recur.'" Murray v. Haldeman,
16 M.J. 74, 76 (C.M.A. 1983)(internal citations omitted).
Discussion
At the time
of the military judge's ruling, Article 49(a), UCMJ,3
provided the accused a statutory right to "take oral or written depositions
unless the military judge . . . forbids it for good cause." Moreover, as a general matter, an accused has
a due process right to interview witnesses in order to prepare a defense. Consistent with these principles, "A request
for a deposition may be denied only for good cause." Rule for Courts-Martial (R.C.M.)
702(c)(3)(A).
"The fact that a witness is or will be available for trial is good cause
for denial in the absence of unusual circumstances . . . ." R.C.M. 702(a)(3)(A) Discussion.
However, if there are unusual circumstances, such as the "unavailability
of an essential witness at an Article 32 hearing," there is no good cause to
deny the deposition. Id.
Three
factors make this case both sui generis and place it beyond easy
characterization. First, the witness BB
was available for trial. She was also
interviewed prior to trial and cross-examined during the Article 32 investigation. However, at the same time, and as noted by
the military judge and the Court of Criminal Appeals, BB's
pretrial interview was terminated before the defense had concluded its
questioning, and her cross-examination testimony at the Article 32
investigation was curtailed before the incident in question was addressed.
Second, in
the context presented, the military judge placed limits on the deposition. The military judge's order permits BB's attorney to attend the deposition, including those
portions relating to matters covered by Military Rule of Evidence (M.R.E.) 412, thus allowing BB to exercise any privileges,
including her privilege under M.R.E 513 to refuse to
disclose confidential communications between her and her psychotherapist. See
R.C.M. 405(i). In addition, the military judge's order
provides additional protection by requiring the defense to provide notice and
by authorizing the deposition officer to take reasonable and necessary measures
if issues under M.R.E. 412 arise.
These
safeguards were in addition to the existing rules and tools already available
to the military judge to regulate the proper conduct of depositions. For instance, under R.C.M.
702(f)(3), the deposition officer is charged with
protecting witnesses from "annoyance, embarrassment, or oppression." Also, under R.C.M.
702(g)(1)(B), "The scope and manner of examination and
cross-examination shall be such as would be allowed in the trial itself." Thus, it would appear that the military
judge, who was in the best position to observe the witness and was most able to
assess the circumstances surrounding the issue of the witness's expected
testimony in this case, exercised discretion that was within the ambit of his
authority.
Third, while
Article 32 has been amended, the impact of this provision on military practice
is not at issue in this case. As the Court of Criminal Appeals noted: "Defense counsel may or may not have greater
occasion to request depositions of alleged victims after this legislation takes
effect, but such requests will be based on different factual predicates than
the situation in this case."
Under Article 6b, UCMJ,4 victims have the right not to be excluded from,
and the right to be heard at any hearing convened pursuant to Article 32. Although this provision of the UCMJ took effect after the Article 32 investigation in this
case, it is an example of a continuing trend toward affording alleged crime
victims protections throughout the criminal justice process, particularly in
sexual assault cases. As the lower court
pointed out, further changes are on the horizon. The coming changes to Article 32 itself will
expressly state that no victim will be required to testify at an Article 32 hearing.5 Moreover, the fact of the matter is that
in this case the alleged victim was a civilian who could not have been
compelled to appear, or continue her appearance, at the Article 32 hearing in
the first place. See R.C.M. 405(g)(2)(B)
Discussion. Thus, how Article 6(b) and
the new Article 32 interplay with an accused's rights
is not addressed in this case and must be resolved in future contexts.
As a result,
I concur with the Court's resolution of the relevant motions in the case and
the Court's disposition of the certified issues.
1 Uniform Code of
Military Justice (UCMJ), 10 U.S.C.
§ 832 (2006).
2 10 U.S.C. § 839(a) (2006).
3 10 U.S.C. § 849 (2006).
4 10 U.S.C. § 806b (2013).
5 113-66, FY 2014 National Defense Authorization Act, § 1702(a).
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0762/AR. U.S. v. Kevin S. HOSKINS. CCA 20130451.
No. 14-0763/AR. U.S. v. Prescott A. AIKEN. CCA 20120705.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 14-221
Thursday, August 7, 2014
MANDATES ISSUED
No. 14-0071/AR. U.S. v. Travis D. JONES. CCA 20110679.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-220
Wednesday, August 6,
2014
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0760/AR. U.S. v. Logan M. STYFF. CCA 20110889.
No. 14-0761/AR. U.S. v. Shelton A. HUNT. CCA 20111081.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-219
Tuesday, August 5,
2014
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0401/NA. U.S. v. Richard M. PAYNE. CCA 201200477.
No. 14-0518/AR. U.S. v. Justin A.J. FREY. CCA 20120227.
No. 14-0688/AF. U.S. v. Christian R. MANN. CCA 38444.
No. 14-0693/AR. U.S. v. Michael A. KUBIC. CCA 20130748.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0755/AR. U.S. v. Brandon H. YATES. CCA 20130408.
No. 14-0756/AR. U.S. v. Christopher W.
BROWNE. CCA 20130252.
No. 14-0757/AR. U.S. v. Christian J. FOGLE. CCA 20131089.
No. 14-0758/AR. U.S. v. Daniel L. TUCKER. CCA 20130396.
No. 14-0759/AR. U.S. v. Ralph LAKE, Jr. CCA 20130519.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-218
Monday, August 4,
2014
APPEALS
- SUMMARY DISPOSITIONS
No. 14-0048/AR. U.S. v. Jason C. WAGNER. CCA 20111064. Upon further consideration of the granted issue (73 M.J.
283-84 (C.A.A.F. 2014)), it is
ordered that the decision of the United States Army Court of Criminal Appeals
is hereby affirmed.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0754/AF. U.S. v. Kirkland C.
NETTLES. CCA
38336.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
Misc. No. 14-8020/AF. Jerome C. POWERS, Appellant v. United States,
Appellee. CCA 38205. On consideration of the writ-appeal petition,
it is ordered that said petition is hereby denied.
Misc. No. 14-8021/AF. U.S. v. Brian C. KATES. CCA S32018. On
consideration of the writ-appeal petition, it is ordered that said petition is
hereby denied.
Misc. No. 14-8022/AF. Michael J. ROY, Appellant v. United States,
Appellee. CCA 38089. On consideration of the writ-appeal petition,
it is ordered that said petition is hereby denied.
INTERLOCUTORY
ORDERS
No. 14-0289/AR. U.S. v. Jordan M. PETERS. CCA 20110057. Appellee's motion
for leave to file a supplemental joint appendix is hereby granted.
MANDATES
ISSUED
No. 14-0280/AR. U.S. v. Michael L. TREAT. CCA 20110402.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 14-217
Friday, August 1,
2014
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 14-0461/AR. U.S. v. Steven M. CHAPMAN. CCA 20120740.
No. 14-0474/AR. U.S. v. Errol V. SCOTT. CCA 20111082.
No.
14-0498/AR. U.S. v. Christopher L.
BERGSTROM. CCA 20120692.
No. 14-0510/AR. U.S. v. Michael A. TORRES. CCA 20130474.
No. 14-0640/AR. U.S. v. Sean B. ADAMS. CCA 20120665.
No. 14-0655/AR. U.S. v. Shawn C. KNIGHT. CCA 20121131.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 14-0752/AR. U.S. v. Cecilia J. TALLMAN. CCA 20111005.
No. 14-0753/AR. U.S. v. Brandon B. WARD. CCA 20120681.
PETITIONS
FOR NEW TRIAL - FILINGS
No. 14-0712/AR. U.S. v. Annzala L. PITT. CCA 20120842. Notice is
hereby given that a petition for new trial and supporting brief were filed
under Rule 29 on this date.
Appellee will file an answer under Rule 29(c) on or before September 2, 2014.
INTERLOCUTORY
ORDERS
No. 14-0679/AF. U.S. v. Charles L. ALLEN. CCA 38159. On consideration of the motion filed by Protect Our Defenders to extend time to
file a motion and proposed brief of Amicus Curiae concerning Appellant's
petition for grant of review, it is ordered that said motion is hereby granted to August 7, 2014.
MANDATES
ISSUED
No. 14-0012/AF. U.S. v. Nicholas R.
ELESPURU. CCA
38055.
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