UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, December 31, 2014
Petitions for Grant
of Review Filed
No. 15-0277/AR. U.S.
v. Michael A. Audet. CCA 20120574.
No. 15-0278/AR. U.S.
v. Alnivar Avellaneda. CCA 20140457.
No. 15-0279/AF. U.S.
v. Lashawn A. Jennings. CCA 38355.
Orders Granting
Petition for Review
No. 14-0767/AR. U.S. v. Brian A. Murphy. CCA 20120556. 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
hereby granted on the following issue:
WHETHER
THE ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT AMMUNITION
CONSTITUTES AN EXPLOSIVE FOR PURPOSES OF THE SENTENCE AGGRAVATOR OF ARTICLES
108 AND 121, UCMJ.
Briefs will be filed
under Rule 25.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, December 30, 2014
Petitions for Grant
of Review Filed
No. 15-0270/AR. U.S.
v. Kimberly E. Rivera. CCA 20130397.
No. 15-0271/AR. U.S.
v. Jason D. Salinas. CCA 20120833.
No. 15-0272/AR. U.S.
v. Christian M. Lopezmorales. CCA 20130502.
No. 15-0273/AR. U.S.
v. Corey A. Soucek. CCA 20140142.
No. 15-0274/AR. U.S.
v. Marcus Freeney. CCA 20130655.
No. 15-0275/AR. U.S.
v. Luke A. Langley. CCA 20140555.
No. 15-0276/AR. U.S.
v. Gary K. Ashmore. CCA 20140357.
Petitions for Grant
of Review Denied
No. 13-0426/AF. U.S.
v. Andre G. Gnash. CCA S32067.
No. 14-0098/AF. U.S.
v. David D.B. Luckado.
CCA 37962.
No. 15-0010/AF. U.S.
v. Justin G. Stipes. CCA 38421.
No. 15-0014/AF. U.S.
v. David K. Cooper. CCA 38293.
No. 15-0094/AF. U.S.
v. Nicholas R. Cron. CCA 38138.
No. 15-0187/AR. U.S.
v. Nushawn G. Gaskin. CCA 20121042.
No. 15-0188/AR. U.S.
v. Wilforde J. Camille. CCA 20130406.
No. 15-0190/AR. U.S.
v. James C. Green.
CCA
20130793.
Interlocutory Orders
No. 15-0222/AR. U.S.
v. Jamel E. Greene. CCA 20120805. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to January 14, 2015.
No. 15-0264/MC. U.S.
v. Christopher L. Olcott. CCA 201300228. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to January 20, 2015.
No. 15-0265/AF. U.S.
v. Shawn J. Parker. CCA S32148. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 20, 2015.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
Monday,
December 29, 2014
Petitions
for Grant of Review Filed
No. 15-0261/AF. U.S. v. Rachel M. Betts. CCA 38476.
No. 15-0262/AR. U.S. v. Joel T. Sharp. CCA 20130998.
No. 15-0263/AR. U.S. v. Bobby Ray Riffle. CCA 20130653.
No.
15-0264/MC. U.S. v. Christopher L. Olcott. CCA 201300228.
No.
15-0265/AF. U.S. v. Shawn J. Parker. CCA S32148.
No.
15-0266/AF. U.S. v. Michelle L. Hamby. CCA 38501.
No.
15-0267/NA. U.S. v. Adam Terral. CCA 201300273.
No.
15-0268/AF. U.S. v. Robert A. Hudson. CCA S32167.
No.
15-0269/AR. U.S. v. Joshua L. Sudbury. CCA 20120600.
Interlocutory
Orders
No.
14-0123/AF. U.S. v. Bobby R. Rodriguez. CCA 37927. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 13, 2015.
No.
15-0011/AF. U.S. v. Joshua K. Plant. CCA 38274. Appellant's
motion to extend time to file a brief granted to January 23, 2015.
No.
15-0225/AR. U.S. v. Neftaly Platero. CCA 20120620. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 30, 2015.
Mandates
Issued
No.
14-6009/MC. U.S. v. Ruben Vargas. CCA 201300426.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
Wednesday,
December 24, 2014
Petitions
for Grant of Review Filed
No. 14-0123/AF. U.S. v. Bobby R. Rodriguez. CCA 37927.
No. 15-0259/NA. U.S. v. John F. Doyle. CCA 201300442.
Interlocutory
Orders
No. 15-0206/NA. U.S. v. Jeffrey F. Morris. CCA 201300348. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted, but only up to and including January 13, 2015.
No. 15-0259/NA. U.S. v. John F. Doyle. CCA 201300442. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 13, 2015.
Mandatory
Review Case Filed
No. 15-0260/AF. U.S. v. Andrew P. Witt. CCA 36785. Notice is hereby
given that a case requiring mandatory review of the decision of the United
States Air Force Court of Criminal Appeals in which the affirmed sentence
extends to death was filed under Rule 23 on this 24th day of December, 2014.*
Appellant
will file a brief under Rule 23(b), not to exceed 250 pages, no later than
sixty days after the date of this notice.
Appellee will file a brief, not to exceed 250
pages, within sixty days of the filing of Appellant's brief. Appellant may file
a reply brief, not to exceed 50 pages, within twenty days of the filing of Appellee's brief. The
briefs may be filed electronically, but should counsel file said pleadings in a
paper format, such pleadings shall conform in all respects to the requirements
of Rule 37(a), with the additional requirement that they be printed on 3-hole
pre-punched paper and otherwise comply in all respects with Rule 24(f)(2). The briefs and
the reply, if any, shall be divided into the following parts: Part A shall set
forth systemic issues and case-specific issues raised before the Court of
Criminal Appeals but not previously decided by this Court; Part B shall set
forth all issues not raised before the court below; Part C shall set forth
systemic issues previously decided by this Court but raised to avoid waiver;
these issues may be listed without argument as an exception to Rule 24(a), but
must cite pertinent authority to support the position taken. All exhibits cited in the pleadings filed
before this Court shall be included in the Joint Appendix. After all pleadings have been submitted,
Appellant and Appellee are directed to seek agreement on the issues to be heard
at oral argument, and to inform the Court of those issues. If no agreement can be reached, the parties
will so advise the Court within 10 days of the date of the filing of the last
pleading, and the Court will resolve any differences.
* The caption on the
document filed by the Judge Advocate General states that it is a "Certificate
for Review" rather than a "Mandatory Review Case" as required by Rule 23.
However, upon review of the document, this appears to be a scrivener's error.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, December 23, 2014
Petitions for Grant
of Review Filed
No. 15-0257/AF. U.S.
v. Trent A. Schaeffer. CCA S32197.
Petitions for Grant
of Review Denied
No. 15-0022/AR. U.S.
v. Justin E. Parker. CCA 20120713.
No. 15-0183/AR. U.S.
v. Benjamin D. Hernandez. CCA 20130175.
No. 15-0008/AR. U.S.
v. Lowell L. Blackwell. CCA 20130524.
No. 15-0182/AR. U.S.
v. Landon K. Copeland. CCA 20130800.
No. 15-0181/AF. U.S. v. Michael J.
O'Brien Jr.,. CCA S32202.
Miscellaneous Docket
- Filings
No. 15-0258/AR. U.S.
v. Ricardo Gonzales. CCA 20140620. Notice is
hereby given that a writ-appeal petition for review of the decision of the
United States Army Court of Criminal Appeals on application for extraordinary
relief was filed under Rule 27(b) on this date.
Interlocutory Orders
No. 15-0256/AR. U.S.
v. Rashad J. Valmont. CCA 20110644. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to January 12, 2015.
No. 14-0792/AR. U.S.
v. Collin J. Carter. CCA 20121046. Appellee's motion for leave to file a supplemental joint
appendix is granted.
No. 15-0250/AF. U.S.
v. Nathanial A. Tessner. CCA 38514. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to January 12, 2015.
No. 15-0249/AF. U.S.
v. Bruce L. Broughton. CCA S32156. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 12, 2015.
No. 15-0248/AF. U.S.
v. Joseph M. Ward III. CCA 38376. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 12, 2015.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
Monday, December 22, 2014
Petitions for Grant
of Review Filed
No. 15-0248/AF. U.S.
v. Joseph M. Ward III. CCA 38376.
No. 15-0249/AF. U.S.
v. Bruce L. Broughton. CCA S32156.
No. 15-0250/AF. U.S.
v. Nathanial A. Tessner. CCA 38514.
No. 15-0251/AR. U.S.
v. Kevin J. Kitmanyen. CCA 20120632.
No. 15-0252/AR. U.S.
v. Luis D. Fernandez. CCA 20121173.
No. 15-0253/AR. U.S.
v. Byron E. Bero. CCA 20120694.
No. 15-0254/AR. U.S.
v. Joseph W. Lomas. CCA 20140307.
No. 15-0255/MC. U.S.
v. Michael A. Arnold. CCA 201400240.
No. 15-0256/AR. U.S.
v. Rashad J. Valmont. CCA 20110644.
Petitions for Grant
of Review Denied
No. 13-0268/MC. U.S.
v. Samuel Pacheco, Jr. CCA 201200366.
No. 14-0107/AF. U.S.
v. Andrew F. Piette. CCA 38101.
No. 14-0110/AF. U.S.
v. Joe A. Montoya IV. CCA 38116.
No. 15-0031/AR. U.S.
v. Sherry A. Derosia. CCA 20120255.
No. 15-0049/AR. U.S.
v. David J. Penrod. CCA 20120836.
No. 15-0055/AR. U.S.
v. Christopher D. McGee. CCA 20130064.
Petitions for Grant
of Review - Summary Dispositions
No. 14-0678/NA. U.S. v. Richard B. Freeman III. CCA 201300102.
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.*
* It is directed
that the promulgating order be corrected to list all three specifications under
Charge I, the accused's pleas to each, the findings
to each, and the "other disposition" ordered by the military judge to the
second specification.
Interlocutory Orders
No. 15-0244/MC. U.S.
v. Stacy A. Whalen. CCA 201400020. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 8, 2015.
No. 15-0246/AF. U.S.
v. Johnny A. Escobar. CCA 38343. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 8, 2015.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
Friday,
December 19, 2014
Petitions
for Grant of Review Filed
No. 14-0130/AF. U.S.
v. David J. Janssen. CCA 37681.
No. 15-0244/MC. U.S.
v. Stacy A. Whalen. CCA 201400020.
No. 15-0245/AF. U.S. v. Carl L.
Ponder. CCA S32161.
No. 15-0246/AF. U.S.
v. Johnny A. Escobar. CCA 38343.
Certificates
for Review Filed
No. 15-0247/AF. U.S. v. Eddy C. Soto.
CCA
38422. Notice is hereby given that a certificate for
review of the decision of the United States Air Force Court of Criminal Appeals
was filed under Rule 22 this date on the following issues:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA)
COMMITTED LEGAL ERROR BY APPLYING AN ERRONEOUS DEFINITION OF FORCE TO APPELLEE'S RAPE SPECIFICATION.
WHETHER AFCCA COMMITTED LEGAL ERROR BY FAILING TO CORRECTLY CONSIDER
LESSER INCLUDED OFFENSES TO APPELLEE'S CHARGED RAPE
SPECIFICATION
WHETHER AFCCA COMMITTED LEGAL ERROR IN THE MANNER IN WHICH IT CONDUCTED ITS FACTUAL AND LEGAL
SUFFICIENCY REVIEW BY REFUSING AND FAILING TO CONSIDER ALL THE EVIDENCE PRESENTED
TO THE FACT-FINDER AT TRIAL.
Interlocutory Orders
No. 14-0678/NA. U.S.
v. Richard B. Freeman III. CCA 201300102. On consideration of Appellant's motion to
supplement the record, it is ordered that said motion is hereby granted as it
pertains to Appendix 3 of the supplement and denied as it pertains to the
remainder of the motion.
No. 14-0685/AF. U.S.
v. Wilber J. McIntosh, Jr. CCA 37977. Appellant's motion to correct errata granted.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, December 18, 2014
Petitions for Grant
of Review Filed
No. 15-0241/NA. U.S.
v. Christopher A. Shafer. CCA 201400120.
No. 15-0242/AR. U.S.
v. Luther L. Porter. CCA 20110470.
No. 15-0243/AF. U.S.
v. Jonathan J. Arma. CCA 2014-09.
Petitions for Grant
of Review Denied
No. 15-0017/AR. U.S.
v. Jason G. Droddy. CCA 20120584.
No. 15-0025/AR. U.S.
v. Blake J. Kendall. CCA 20130117.
No. 15-0036/AR. U.S.
v. Adonnis C. Franklin. CCA 20140164.
No. 15-0150/AR. U.S.
v. Miguel A. Rodriguez. CCA 20120699.
No. 15-0166/AR. U.S.
v. Jose M. Nunez.
CCA
20121189.
No. 15-0168/AR. U.S.
v. Torey R. Purdin. CCA 20120277.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, December 17, 2014
Petitions for Grant
of Review - Summary Dispositions
No. 14-0696/AF. U.S. v. Saul M. Bookman. CCA 38342. On consideration
of the petition for grant of review of the decision of the United States Air
Force Court of Criminal Appeals, we note that the addendum to the staff judge
advocate's recommendation inaccurately stated that Appellant was convicted of
having committed 60 different thefts over the course of a single year that
totaled over $30,500, when in fact Appellant actually pleaded guilty to
stealing $15,797 in 41 discrete thefts. Accordingly, it is ordered that said petition
is hereby granted on the following issue:
WHETHER THE STAFF
JUDGE ADVOCATE'S RECOMMENDATION CONTAINED PLAIN AND PREJUDICIAL ERROR BECAUSE
IT STATED THAT APPELLANT WAS CONVICTED OF HAVING COMMITTED 60 THEFTS OVER THE
COURSE OF A SINGLE YEAR AND THAT APPELLANT PLEADED GUILTY TO STEALING MORE THAN
$30,500.
The decision of the United States Air
Force Court of Criminal Appeals is reversed and the convening authority's
action is set aside. The record of trial is returned to the Judge Advocate
General for remand to the same or a different convening authority for a new
post-trial recommendation and action.
No. 14-0750/AF. U.S. v. Mason W. Mandy. CCA 38227. 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.*
* It is directed that the
United States Air Force Court of Criminal Appeals substitute a corrected
opinion to correct the obvious clerical error in the opening sentence of its
decision by removing the language that Appellant was convicted of one
specification of dereliction of duty.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, December 16, 2014
Petitions for Grant
of Review Denied
No. 14-0022/AF. U.S.
v. Kyle R. Dietz. CCA 38117.
No. 15-0016/AR. U.S.
v. Timothy J. Prescott II. CCA 20130394.
No. 15-0162/AR. U.S.
v. Jerome A. Osborne. CCA 20130545.
No. 15-0163/AR. U.S.
v. Forrest E. Kidwell. CCA 20140042.
Interlocutory Orders
No. 15-0184/AF. U.S.
v. Jacob L. Hooper. CCA 38307. Appellant's
second motion to extend time to file the supplement to the petition for grant
of review granted, but only up to and including December 30, 2014.
No. 15-0192/MC. U.S.
v. Eric D. Raines.
CCA
201400027. Appellant's second
motion to extend time to file a supplement to the petition for grant of review
granted, but only up to and including January 6, 2015.
No. 15-0232/AF. U.S.
v. Clayton G. Bridges II. CCA S32157. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 5, 2015.
No. 15-0233/AF. U.S.
v. David E. Allgaier. CCA 38400. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to January 5, 2015.
No. 15-0234/AF. U.S.
v. Deandrea D. Atwater. CCA 38425. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to January 5, 2015.
No. 15-0236/AF. U.S.
v. Adam D. Parker. CCA 38384. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 5, 2015.
No. 15-0237/AF. U.S.
v. James R. Lewis. CCA 38321. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to January 5, 2015.
No. 15-0238/AF. U.S.
v. Myranda I. Decker. CCA S32173. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to January 5, 2015.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, December 15, 2014
Petitions for Grant
of Review Filed
No. 15-0231/AR. U.S.
v. Ryan J. Offutt.
CCA
20120804.
No. 15-0232/AF. U.S.
v. Clayton G. Bridges II. CCA S32157.
No. 15-0233/AF. U.S.
v. David E. Allgaier. CCA 38400.
No. 15-0234/AF. U.S.
v. Deandrea D. Atwater. CCA 38425.
No. 15-0235/AF. U.S.
v. Marcus K. Linn. CCA 38451.
No. 15-0236/AF. U.S.
v. Adam D. Parker. CCA 38384.
No. 15-0237/AF. U.S.
v. James R. Lewis. CCA 38321.
No. 15-0238/AF. U.S.
v. Myranda I. Decker. CCA S32173.
No. 15-0239/AR. U.S.
v. Joshua C. Hudsoncurrier. CCA 20110737.
No. 15-0240/AF. U.S.
v. Gavin R. Duenas. CCA S32181.
Petitions for Grant
of Review Denied
No. 14-0038/AF. U.S.
v. Kevin A. Slagle. CCA 38087.
No. 14-0050/AF. U.S.
v. Thomas N. Patterson. CCA 38031.
No. 14-0712/AR. U.S.
v. Annzala L. Pitt. CCA 20120842.
No. 15-0021/AR. U.S.
v. David A. Bliss, Jr. CCA 20130169.
No. 15-0033/AR. U.S.
v. Brett S. Allmond. CCA 20130328.
No. 15-0040/AR. U.S.
v. Tarence C. Dixon. CCA 20120473.
No. 15-0120/AR. U.S.
v. Terre W. Martin. CCA 20120898.
No. 15-0144/AR. U.S.
v. Jerry L. McLeod, Jr. CCA 20131010.
No. 15-0157/AF. U.S.
v. Stefin T. Reed. CCA 38428.
Petitions for New
Trial Denied
No. 14-0712/AR. U.S.
v. Annzala L. Pitt. CCA 20120842.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, December 12, 2014
Petitions for Grant
of Review Filed
No. 15-0229/AR. U.S.
v. Blake D. Brown.
CCA
20131068.
No. 15-0230/NA. U.S.
v. Titus R. Mayo, Jr. CCA 20140107.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, December 11, 2014
Petitions for Grant
of Review Filed
No. 15-0226/AF. U.S.
v. Anthony D. Daniels, Jr. CCA 38371.
No. 15-0227/AF. U.S.
v. Rachel S. Perone. CCA S32186.
No. 15-0228/MC. U.S.
v. Myles R. Spurling. CCA 201400124.
Petitions for Grant
of Review - Summary Dispositions
No. 15-0074/CG. U.S. v. John C. Riesbeck. CCA 1374. On consideration of Appellant's petition for
grant of review of the decision of the United States Coast Guard Court of
Criminal Appeals, we conclude that the issue of improper member selection was not
waived because of the exception contained in Rule for Courts-Martial (RCM) 912(b)(3) to the timeliness requirement of RCM 912(b)(1). On its face, RCM
912(b)(3) provides an exception to waiver where the objection is made on the
basis of an allegation that the convening authority selected members in
violation of RCM 502(a)(1) for reasons other than
those listed in Article 25(d)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 825(d)(2)
(2012): age, education, training, experience, length of service, and judicial
temperament. Furthermore, improper
member selection can constitute unlawful command influence, an issue that
cannot be waived. United States v. Baldwin, 54 M.J.
308, 310 n.2 (C.A.A.F. 2001).
Because the exception of RCM 912(b)(3)
should have applied, the question remains whether Appellant was deprived of a
fair trial by an impartial panel. Accordingly, it is ordered that said petition
is hereby granted on the following issue:
WAS APPELLANT
DEPRIVED OF A FAIR TRIAL BY AN IMPARTIAL PANEL?
The decision of the
United States Coast Guard Court of Criminal Appeals is set aside, and the case
is returned to the Judge Advocate General of the Coast Guard for remand to the
Court of Criminal Appeals for further review under Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2012).
Thereafter, Article 67, UCMJ, 10 U.S.C.
§ 867 (2012), shall apply.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, December 10, 2014
Petitions for Grant
of Review Filed
No. 15-0222/AR. U.S.
v. Jamel E. Greene. CCA 20120805.
No. 15-0223/AR. U.S.
v. Justin R. Crowell. CCA 20120184.
No. 15-0224/AR. U.S.
v. Allen I. Saucedo. CCA 20140200.
No. 15-0225/AR. U.S.
v. Neftaly Platero. CCA 20120620.
Petitions for Grant
of Review Denied
No. 14-0087/AF. U.S.
v. Craig X. Jorell. CCA 38061.
No. 14-0695/AF. U.S.
v. Anthony S. Lee. CCA S32066.
No. 15-0024/MC. U.S.
v. Ian R. Dunton. CCA 201300148.
Petitions for Grant
of Review - Summary Dispositions
No. 15-0051/AF. U.S. v. Franklin G.U. Cruz. CCA 38296. On consideration of the petition for grant of
review of the decision of the United States Air Force Court of Criminal
Appeals, we note that Appellant raises issues not previously considered by the
Court of Criminal Appeals. Accordingly, it is ordered that said petition is
hereby granted on the following issues:
I. WHETHER THE
MILITARY JUDGE ERRED IN FINDING PERSONAL JURISDICTION OVER APPELLANT.
II. WHETHER APPELLANT'S
FIFTH AMENDMENT DUE PROCESS RIGHTS WERE VIOLATED.
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
the Court of Criminal Appeals for a new review and consideration of the
aforementioned issues under Article 66(c), Uniform Code of Military Justice, 10
U.S.C. § 866(c)(2012).
Interlocutory Orders
No. 12-0616/AR. U.S.
v. Timothy E. Bennitt. CCA 20100172. Appellee's motion
for leave to file a corrected table of contents in the second supplemental
joint appendix is granted.
Hearings
No. 12-0616/AR. U.S.
v. Timothy E. Bennitt. CCA 20100172.
No. 14-0222/AF. U.S.
v. Adrian Torres. CCA 37623.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, December 9, 2014
Petitions for Grant
of Review Filed
No. 15-0217/AR. U.S.
v. Eric L. Newton II. CCA 20130890.
No. 15-0218/AR. U.S.
v. Riley C. Rose.
CCA
20130068.
No. 15-0219/AR. U.S.
v. Jonathan L. Kidwell. CCA 20130959.
No. 15-0220/AR. U.S.
v. Dylan M. Wammock. CCA 20131040.
No. 15-0221/AF. U.S.
v. Chasare D. Jackson. CCA 38431.
Petitions for Grant
of Review Denied
No. 14-0727/AR. U.S.
v. David G. Michaels. CCA 20110288.
No. 14-0774/AF. U.S.
v. Christopher J. Klein. CCA 38273.
No. 14-0777/MC. U.S.
v. Bryan S. Lacount. CCA 201300259.
No. 14-0796/NA. U.S.
v. Trevin C. Cummings. CCA 201400095.
No. 15-0124/AR. U.S.
v. Joshua A. Marks. CCA 20130777.
No. 15-0135/AR. U.S.
v. Andy G. Torres.
CCA
20120774.
No. 15-0151/AR. U.S.
v. Justino N. Mongkeya. CCA 20111151.
No. 15-0155/AR. U.S.
v. Damien A. McCoy. CCA 20130717.
Orders Granting
Petition for Review
No. 14-0773/AF. U.S. v. Jeremiah L. Thompson III. CCA 38269. 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 on the following
issue:
WHETHER APPELLANT'S
CONVICTIONS FOR POSSESSION AND RECEIPT OF CHILD PORNOGRAPHY MUST BE SET ASIDE
BECAUSE SEVERAL DEPICTIONS OFFERED IN SUPPORT OF THE SPECIFICATIONS ARE NOT
CHILD PORNOGRAPHY AND ARE CONSTITUTIONALLY PROTECTED, A GENERAL VERDICT WAS
ENTERED, AND IT IS IMPOSSIBLE TO DETERMINE WHETHER THE LEGALLY PROTECTED IMAGES
CONTRIBUTED TO THE VERDICT.
No briefs will be
filed under Rule 25.
Interlocutory Orders
No. 12-0616/AR. U.S.
v. Timothy E. Bennitt. CCA 20100172. Appellee's motion
for leave to file a supplemental joint appendix out of time is granted.
Hearings
No. 13-0522/AF. U.S.
v. David J.A. Gutierrez. CCA 37913.
No. 14-6010/AF. U.S.
v. Aaron M. Buford. CCA 2013-26.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, December 8, 2014
Petitions for Grant
of Review Filed
No. 13-0536/AR. U.S.
v. Jacob D. Moon.
CCA
20120112.
No. 15-0211/AR. U.S.
v. Steven D. Mahone. CCA 20130542.
No. 15-0212/AR. U.S.
v. Elijah M. Washington. CCA 20130291.
No. 15-0213/AR. U.S.
v. Bryan A. Commeau. CCA 20120946.
No. 15-0214/AR. U.S.
v. Russomar Villegas-Rojas. CCA 20111132.
No. 15-0215/AF. U.S.
v. Christopher T. Groomes. CCA 38360.
No. 15-0216/AR. U.S.
v. Willie C. Rodgers. CCA 20130442.
Petitions for Grant
of Review Denied
No. 14-0633/AF. U.S.
v. Dustin A. Miller. CCA 37869.
No. 14-0738/AR. U.S. v.
Johnathan S. Bendle. CCA 20120170.
No. 14-0764/AF. U.S.
v. Michael L. Mitchell. CCA 38254.
No. 14-0781/AR. U.S.
v. Tyler A. McIntosh. CCA 20120780.
No. 14-0789/AR. U.S.
v. Eric T. Ryant. CCA 20120204.
No. 15-0106/AR. U.S.
v. Danny O. Cabrera. CCA 20130664.
No. 15-0148/AR. U.S.
v. Josh Harris.
CCA
20120922.
No. 15-0149/AR. U.S.
v. Adam T. Lutz.
CCA
20130750.
No. 15-0153/AR. U.S.
v. David L. Jackson. CCA 20140050.
Orders Granting
Petition for Review
No. 14-0783/NA. U.S. v. Marshand A. Woods. CCA 201300153. 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 on the following
issue:
WHETHER THE MILITARY
JUDGE ERRED BY DENYING A CHALLENGE FOR CAUSE AGAINST THE COURT-MARTIAL
PRESIDENT, WHO SAID THE "GUILTY UNTIL PROVEN INNOCENT" STANDARD IS
"ESSENTIAL" TO THE MILITARY'S MISSION?
Briefs will be filed
under Rule 25.
No. 15-0011/AF. U.S. v. Joshua K. Plant. CCA 38274. 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 on the following
issue:
WHETHER THE EVIDENCE
IS LEGALLY SUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO CHARGE V AND ITS
SPECIFICATION (CHILD ENDANGERMENT) BECAUSE THE EVIDENCE FAILED TO PROVE
APPELLANT'S ALCOHOL USE ALONE AMOUNTED TO CULPABLE NEGLIGENCE THAT ENDANGERED
THE WELFARE OF L.P.
Briefs will be filed
under Rule 25.
No. 15-0029/AR. U.S. v. Levi A. Keefauver. CCA 20121026. 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
hereby granted on the following issue:
WHETHER THE ARMY
COURT ERRED IN FINDING THE PROTECTIVE SWEEP WAS APPROPRIATE IN TOTAL.
Briefs will be filed
under Rule 25.
No. 15-0059/NA. U.S. v. Darron D. Ward, Jr. CCA 201400021.
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 on the following issue:
THE CONVENING
AUTHORITY ISSUED AN INSTRUCTION THAT LIMITED COURT-MARTIAL MEMBER NOMINATIONS
TO PERSONNEL ONLY IN THE PAY-GRADES BETWEEN E-7 AND O-5. THE LOWER COURT FOUND
THIS SYSTEMATIC EXCLUSION OF PERSONNEL TO BE ERROR, BUT HARMLESS. SHOULD THIS
COURT SET ASIDE APPELLANT'S CONVICTIONS BASED ON THE RATIONALE OF UNITED
STATES v. KIRKLAND DUE TO THE UNRESOLVED APPEARANCE OF UNFAIRNESS?
Briefs will be filed
under Rule 25.
Interlocutory Orders
No. 15-0206/NA. U.S.
v. Jeffrey F. Morris. CCA 201300348. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to December 29, 2014.
No. 15-0209/AF. U.S.
v. Logan B. Carr. CCA 38025. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to December 29, 2014.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, December 5, 2014
Petitions for Grant
of Review Filed
No. 15-0206/NA. U.S.
v. Jeffrey F. Morris. CCA 201300348.
No. 15-0207/AR. U.S.
v. Anthony P. Mitchell. CCA 20130626.
No. 15-0208/AR. U.S.
v. Luis M. Rodriguez. CCA 20130772.
No. 15-0209/AF. U.S.
v. Logan B. Carr. CCA 38025.
No. 15-0210/AF. U.S.
v. Christopher J. Winston. CCA 38402.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, December 4, 2014
Petitions for Grant
of Review Filed
No. 14-0011/AF. U.S.
v. Kendall Norman II. CCA 37945.
No. 15-0203/AF. U.S.
v. Marckus E. Newhouse. CCA 38019.
No. 15-0204/AF. U.S.
v. Melvin E. Stanton, Jr. CCA 38385.
No. 15-0205/AF. U.S.
v. Charles R. Braun. CCA S32419.
Petitions for Grant
of Review Denied
No. 14-0673/AR. U.S.
v. Christopher L. Moyers. CCA 20110975.
No. 14-0787/AR. U.S.
v. Daniel Rojas.
CCA
20130701.
No. 15-0095/AF. U.S.
v. William J. Matthis. CCA 38312.
Interlocutory Orders
No. 14-0633/AF. U.S. v. Dustin A. Miller.
CCA 37869. Appellee's motion
to strike Appellant's reply is denied.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, December 3, 2014
Petitions for Grant
of Review Filed
No. 15-0201/AR. U.S.
v. Twyan J. Mitchell. CCA 20130033.
No. 15-0202/AR. U.S.
v. Alvin C. Endsley. CCA 20130052.
Petitions for Grant
of Review Denied
No. 14-0051/AF. U.S.
v. Daniel P. Openshaw. CCA 38049.
No. 14-0675/AR. U.S.
v. Erica L. Hurts. CCA 20120301.
No. 14-0739/AR. U.S.
v. Christopher D. Riley. CCA 20120073.
No. 14-0748/NA. U.S.
v. Kenneth A. Cole. CCA 201300165.
No. 14-0802/AR. U.S.
v. Steven A. Hart.
CCA
20140055.
No. 15-0002/AR. U.S.
v. Donna M. Maxson. CCA 20120578.
No. 15-0050/AF. U.S.
v. Anthony M. Watts. CCA S32146.
Petitions for Grant
of Review - Summary Dispositions
No. 15-0077/MC. U.S. v. Matthew T. Engler. CCA 201300365. On consideration of the petition for grant of
review of the decision of the United States Navy-Marine Corps Court of Criminal
Appeals and the record of trial, the Court notes a number of errors in the
post-trial processing of this case and decision of the lower court: (1) the
civilian defense counsel advised the staff judge advocate that he would not
submit clemency matters, but then submitted clemency matters several weeks
after the convening authority took his initial action; (2) the convening
authority purported to take a second action after he forwarded the record to
the lower court and thereby lost jurisdiction in the case; (3) the convening
authority failed to include the clemency matters in the record; (4) the lower
court failed to order the government to produce the missing clemency
submission; and (5) the lower court found a legal basis for a conclusion of no
prejudice in the second action despite that action
being a legal nullity. Accordingly, it is ordered that said petition is hereby
granted on the following issue:
CAN A MILITARY
APPELLATE COURT USE AN UNLAWFUL CONVENING AUTHORITY'S ACTION TO NEGATE
PREJUDICE WHEN TESTING FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING POST-TRIAL
CLEMENCY PROCESSING?
The decision of the
United States Navy-Marine Corps Court of Criminal Appeals is reversed, and the
convening authority's actions are set aside. The record of trial is returned to
the Judge Advocate General of the Navy for submission to an appropriate
convening authority for a new recommendation and action. Thereafter, Articles 66 and 67, Uniform Code
of Military Justice, 10 U.S.C. §§ 866 and 867 (2012)
shall apply.
Orders Granting
Petition for Review
No. 14-0754/AF. U.S. v. Kirkland C. Nettles. CCA 38336. 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 on the following issue:
WHETHER
THE AIR FORCE HAD PERSONAL JURISDICTION OVER APPELLANT AT THE TIME OF HIS
TRIAL.
Briefs will be filed
under Rule 25.
No. 15-0116/AR. U.S. v. Derrick L. Hardy. CCA 20120816. 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 hereby granted on the following issue:
WHETHER IT WAS AN
ABUSE OF DISCRETION FOR THE MILITARY JUDGE TO ACCEPT A PLEA OF GUILTY FOR
WILLFUL VIOLATION OF A SUPERIOR COMMISSIONED OFFICER IN THE SPECIFICATION OF
CHARGE I DESPITE THE ULTIMATE OFFENSE DOCTRINE AND THE MILITARY JUDGE'S
APPLYING THE MAXIMUM PUNISHMENT FOR BREAKING RESTRICTION UNDER ARTICLE 134, UCMJ.
No briefs will be
filed under Rule 25.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, December 2, 2014
Petitions for Grant
of Review Filed
No. 15-0200/AR. U.S.
v. Christopher A. Edgecombe. CCA 20120891.
Petitions for Grant
of Review Denied
No. 15-0141/AR. U.S.
v. Xavier A. Marcial. CCA 20140282.
Interlocutory Orders
No. 15-0192/MC. U.S.
v. Eric D. Raines.
CCA
201400027. Appellant's motion to
extend time to file the supplement to the petition for grant of review granted
to December 22, 2014.
No. 15-0193/MC. U.S.
v. Dwayne E. Novak, Jr. CCA 201300379. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to December 22, 2014.
No. 15-0194/AF. U.S.
v. Aaron J. Lucero. CCA 38386. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to December 22, 2014.
No. 15-0196/AF. U.S.
v. Dustin S. Purdy. CCA 38350. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to December 22, 2014.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, December 1, 2014
Petitions for Grant
of Review Filed
No. 15-0192/MC. U.S.
v. Eric D. Raines.
CCA
201400027.
No. 15-0193/MC. U.S.
v. Dwayne E. Novak, Jr. CCA 201300379.
No. 15-0194/AF. U.S.
v. Aaron J. Lucero. CCA 38386.
No. 15-0195/MC. U.S.
v. Stephen M. Pappas. CCA 201400218.
No. 15-0196/AF. U.S.
v. Dustin S. Purdy. CCA 38350.
No. 15-0197/AR. U.S.
v. Ruben A. Valle.
CCA
20130593.
No. 15-0198/AF. U.S.
v. William E. Callaway IV. CCA 38345.
No. 15-0199/AR. U.S.
v. Damion M. Petee. CCA 20130128.
Petitions for Grant
of Review Denied
No. 15-0131/MC. U.S.
v. Alejandro Torres. CCA 201300396.
No. 15-0136/AR. U.S.
v. Rahkeam W. Jacobs. CCA 20121141.
No. 15-0139/AR. U.S.
v. Kendell F. Vincent. CCA 20140349.
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