UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, July 31, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0322/AR. U.S. v. Jefferson B. Taylor. CCA 20170637.

 

Interlocutory Orders

 

No. 18-0247/AR. U.S. v. Hector Nicola. CCA 20150781. Appellant's motion to extend time to file a brief granted to September 4, 2018.

 

No. 18-0317/AR. U.S. v. Chelsea E. Manning. CCA 20130739. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 20, 2018.

 

No. 18-0318/AF. U.S. v. Zachariah S. Noga. CCA 39199. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 20, 2018.

 

No. 18-0319/AF. U.S. v. Bryant H. Preston. CCA 38996. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to August 20, 2018.

 

Petitions for Reconsideration Denied

 

No. 17-0285/AR. U.S. v. Gene N. Williams. CCA 20130582. Appellant's petition for reconsideration of the Court's decision, United States v. Williams, 77 M.J. __ (C.A.A.F. 2018) is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, July 30, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0319/AF. U.S. v. Bryant H. Preston. CCA 38996.

No. 18-0320/AR. U.S. v. Oshea D. Miller. CCA 20160422.

No. 18-0321/NA. U.S. v. Troy D. Biggham. CCA 201700348.

 

Petitions for Grant of Review Denied

 

No. 18-0266/AR. U.S. v. Taylor L. Werner. CCA 20160741.

No. 18-0298/AR. U.S. v. David L. Jerkins. CCA 20140071.

No. 18-0299/AF. U.S. v. David G. Chesser. CCA 39207.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, July 27, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0317/AR. U.S. v. Chelsea E. Manning. CCA 20130739.

No. 18-0318/AF. U.S. v. Zachariah S. Noga. CCA 39199.

 

Petitions for Grant of Review Denied

 

No. 18-0200/AR. U.S. v. Dwight D. Harris, Jr. CCA 20131045.

No. 18-0250/AF. U.S. v. Carl M. Shea. CCA 39158.

No. 18-0261/NA. U.S. v. Alex J. Werner. CCA 201700238.

No. 18-0263/AF. U.S. v. Mattox A. Davis. CCA 39157.

No. 18-0264/AR. U.S. v. Steven A. Quilantang. CCA 20170092.

No. 18-0296/AF. U.S. v. Joseph T. McCarson. CCA 39178.

 

Interlocutory Orders

 

No. 18-0201/AR. U.S. v. Anthony M. Bodoh. CCA 20150218. Appellant's motion to extend time to file a brief granted to August 23, 2018.

 

Mandates Issued

 

No. 17-0604/AR. U.S. v. Christopher E. Christensen. CCA 20140372.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, July 26, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0315/AR. U.S. v. Isaac R. Rangel. CCA 20170482.

No. 18-0316/AR. U.S. v. Mario I. Lopez. CCA 20140973.

 

Orders Granting Petition for Review

 

No. 18-0211/AR. U.S. v. Graham H. Smith. CCA 20160150. 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 issues:

 

I. WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN DENYING A DEFENSE MOTION TO SUPPRESS EVIDENCE OBTAINED FROM APPELLANT'S CELLULAR TELEPHONE BECAUSE ACCESS TO THE CONTENTS OF THE IPHONE WOULD NOT HAVE BEEN AVAILABLE BUT FOR THE GOVERNMENT'S ILLEGAL SEARCH AND THE GOOD FAITH DOCTRINE WOULD BE INAPPLICABLE UNDER THE CIRCUMSTANCES.

 

II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN DEEMING THE INSUFFICIENT NEXUS ISSUE WAIVED BECAUSE THERE WAS NO DELIBERATE DECISION NOT TO PRESENT A GROUND FOR POTENTIAL RELIEF BUT INSTEAD ONLY A FAILURE TO SUCCINCTLY ARTICULATE THE GROUNDS UPON WHICH RELIEF WAS SOUGHT.

 

Briefs will be filed under Rule 25.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, July 24, 2018

 

Orders Granting Petition for Review

 

No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. 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 PROSECUTION OF APPELLANT VIOLATED THE FIFTH AMENDMENT'S DOUBLE JEOPARDY PROHIBITION.

 

No briefs will be filed under Rule 25.

 

No. 18-0267/AR. U.S. v. Jason A. Kohlbek. CCA 20160427. 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 MILITARY JUDGE ERRED BY MISCONSTRUING MIL.R.EVID. 707 AND PROHIBITING APPELLANT FROM PRESENTING EVIDENCE RELEVANT TO APPELLANT'S POST-POLYGRAPH STATEMENT.

 

Briefs will be filed under Rule 25.

 

Interlocutory Orders

 

No. 18-0211/AR. U.S. v. Graham H. Smith. CCA 20160150. Appellee's motion to file a 10-day letter out of time is denied.

 

No. 18-0259/AR. U.S. v. Lorne C. Falcon. CCA 20160176. Appellant's motion to submit matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) is granted.

 

No. 18-0312/AF. U.S. v. Gabriel C. Villanueva. CCA 39300. Appellant's motion to extend time to file a supplement to the petition for grant of review granted to August 13, 2018.

 

Mandates Issued

 

No. 17-0553/AF. U.S. v. Ryan A. Hardy. CCA 38937.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, July 23, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0312/AF. U.S. v. Gabriel C. Villanueva. CCA 39300.

No. 18-0313/MC. U.S. v. Christopher T. Pena. CCA 201700327.

No. 18-0314/AR. U.S. v. James E. Hopkins. CCA 20140913.

 

Petitions for Grant of Review Denied

 

No. 18-0283/AF. U.S. v. James I. Miller. CCA S32433.

No. 18-0289/AR. U.S. v. Nicholas W. Souza. CCA 20160612.

No. 18-0290/AR. U.S. v. Lamont D. Hughes. CCA 20170249.

No. 18-0291/AR. U.S. v. Joshua J. Munger. CCA 20170397.

No. 18-0292/AR. U.S. v. Logan C. Peters. CCA 20170480.

 

Interlocutory Orders

 

No. 18-0277/AF. U.S. v. Jared M. Bard. CCA 38766. Appellant's motion for leave to file Appendix B of the supplement to the petition for grant of review under seal is granted.

 

No. 18-0311/AF. U.S. v. Leon A. Brown IV. CCA 38864. Appellant's motion to extend time to file a supplement to the petition for grant of review granted to August 13, 2018.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, July 20, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0311/AF. U.S. v. Leon A. Brown IV. CCA 38864.

 

Orders Granting Petition for Review

 

No. 18-0247/AR. U.S. v. Hector Nicola. CCA 20150781. 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 EVIDENCE OF INDECENT VIEWING IN VIOLATION OF ARTICLE 120c, UCMJ, WAS LEGALLY SUFFICIENT.

 

Briefs will be filed under Rule 25.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, July 19, 2018

 

Petitions for Grant of Review Denied

 

No. 18-0217/MC. U.S. v. Caleb J. Frasure. CCA 201700030.

No. 18-0224/CG. U.S. v. William A. Fisher. CCA 1444.*

No. 18-0225/AF. U.S. v. Clint A. Williams. CCA 39142.

No. 18-0232/CG. U.S. v. Jerry W. Clifft. CCA 1446.**

No. 18-0242/AF. U.S. v. William D. Maske. CCA 39146.

No. 18-0252/NA. U.S. v. Gary W. Mitchell. CCA 201600327.

No. 18-0274/AR. U.S. v. Casey R. West. CCA 20170282.

No. 18-0275/AF. U.S. v. Benjamin L. Ten Eyck. CCA 39188.

No. 18-0276/AF. U.S. v. Bradley D. Hintz. CCA 39136.

No. 18-0278/AF. U.S. v. Demetris A. Touttoulos. CCA 39177.

No. 18-0293/AR. U.S. v. John S. Burnworth. CCA 20170344.

 

Petitions for Grant of Review - Summary Dispositions

 

No. 18-0253/AR. U.S. v. Stephen C. McGinn. CCA 20150726. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, we conclude that (1) Appellant did not waive the error resulting from the improper propensity instructions as we do not construe the failure to object to what was the settled law at the time as an intentional relinquishment of a known right, but (2) the error was harmless beyond a reasonable doubt.

 

Accordingly, it is ordered that said petition is hereby granted, and the decision of the United States Army Court of Criminal Appeals, except with respect to the matter of waiver, is affirmed.

Appeals Summary Dispositions

 

No. 17-0605/AR. U.S. v. Erik J. Burris. CCA 20150047. On further consideration of the granted issue (77 M.J. 138 (C.A.A.F. 2017)), the briefs of the parties, and oral argument, we note that the United States Army Court of Criminal Appeals concluded that the mere failure to object to evidence and findings argument waives challenges to such evidence and argument and that the Government concedes that the lower court's reasoning was in error. We agree with the Government that a mere failure to object to the admission of evidence and to findings argument constitutes forfeiture, not waiver. United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018), United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014). We further note that the Government has argued for the first time in this Court that Appellant affirmatively waived his challenges to the admission of character evidence and argument. We leave this argument for the lower court to address on remand.

Accordingly, it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. 866 (2012).

Orders Granting Petition for Review

 

No. 18-0254/AR. U.S. v. Steven M. Tucker. CCA 20150634. 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 HOLDING THAT THE MINIMUM MENS REA REQUIRED UNDER CLAUSES 1 AND 2 OF ARTICLE 134, UCMJ, TO SEPARATE WRONGFUL FROM INNOCENT CONDUCT IS SIMPLE NEGLIGENCE.

Briefs will be filed under Rule 25.
___________________________________ 

 

* The Clerk of Court is ordered to seal the MRE 412 matters.

** The Clerk of Court is ordered to seal Appellate Exhibits XIV, XV & XVI.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, July 18, 2018

 

Miscellaneous Docket - Summary Disposition

 

No. 18-0228/AR. U.S. v. Colby S. Morris. CCA 20180088. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied without prejudice to raising the issues during the course of normal appellate review.

 

Interlocutory Orders

 

No. 18-0217/MC. U.S. v. Caleb J. Frasure. CCA 201700030. Appellee's motion to file a 10-day letter out of time is denied.

 

No. 18-0310/MC. U.S. v. Edwin A. Ehlers. CCA 2000800190. Appellant's motion to extend time to file a petition for grant of review is granted to August 17, 2018.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, July 17, 2018

 

Interlocutory Orders

 

No. 18-0207/NA. U.S. v. James R. Freeman. CCA 201700043. Appellee's motion to file a 10-day letter out of time is denied.

 

No. 18-0251/NA. U.S. v. Austin T. Greening. CCA 201700040. Appellant's motion to supplement the supplement to the petition for grant of review is granted.

 

No. 18-0255/AF. U.S. v. Micah J. Carroll. CCA 39160. Appellant's motion for leave to file Issue II of the supplement to the petition for grant of review under seal is granted.

 

No. 18-0276/AF. U.S. v. Bradley D. Hintz. CCA 39136. Appellant's motion to attach documents is denied.

 

Petitions for Reconsideration Denied

 

No. 17-0553/AF. U.S. v. Ryan A. Hardy. CCA 38937. Appellant's petition for reconsideration of the Court's decision, United States v. Hardy, 77 M.J. __ (C.A.A.F. 2018) is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, July 12, 2018

 

Interlocutory Orders

 

No. 18-0162/AF. U.S. v. James M. Hale. CCA 39101. Appellee's motion to file a supplemental joint appendix is granted.

 

No. 18-0226/AF. U.S. v. Frank M. Vargas. CCA 38991. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, Appellant's motion to stay trial proceedings, and Appellee's motion to dismiss the petition, it is noted that the Court of Criminal Appeals set aside the findings of guilt and the sentence and authorized a rehearing. Under Article 67(c), Uniform Code of Military Justice, 10 U.S.C. 867(c) (2012), this Court has jurisdiction to consider the petition. However, given the possibility of a rehearing, the petition is not ripe for review at this time. Accordingly, it is ordered that the petition for grant of review is denied without prejudice to Appellant's right to raise the matters asserted during the normal course of appellate review, and the motions to dismiss and to stay trial proceedings are denied as moot.

 

No. 18-0258/NA. U.S. v. Joseph J. Vargo. CCA 201700310. Appellant's motion to withdraw the petition for grant of review is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, July 11, 2018

 

Petitions for Grant of Review Denied

 

No. 18-0257/AR. U.S. v. Jason A. Schnelle. CCA 20160405.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, July 10, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0309/AR. U.S. v. Jessica A. Barton. CCA 20170476.

 

Interlocutory Orders

 

No. 18-0307/AF. U.S. v. Paul R. Schweitzer. CCA 39212. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 30, 2018.

 

No. 18-0308/AR. U.S. v. Cedric L. McDonald. CCA 20160339. Appellant's motion to extend time to file the supplement to the petition for grant of review granted to July 31, 2018.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, July 9, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0308/AR. U.S. v. Cedric L. McDonald. CCA 20160339.

 

Petitions for Grant of Review Denied

 

No. 18-0249/AR. U.S. v. John P. Key. CCA 20170030.

No. 18-0265/AF. U.S. v. Michael E. Tostado. CCA S32474.

No. 18-0268/AR. U.S. v. Robert G. Burmeister. CCA 20170065.

No. 18-0271/AR. U.S. v. Marcus Vinicius B. Goncalves. CCA 20170563.

 

Orders Granting Petition for Review

 

No. 18-0201/AR. U.S. v. Anthony M. Bodoh. CCA 20150218. 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 MILITARY JUDGE PLAINLY ERRED BY ALLOWING THE TRIAL COUNSEL TO MISSTATE THE LAW AND ARGUE THAT THE PANEL SHOULD BASE ITS VERDICT ON SHARP TRAINING.

 

Briefs will be filed under Rule 25.

 

Mandates Issued

 

No. 18-0133/AR. U.S. v. James B. Hendrix. CCA 20170439.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, July 5, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0305/AR. U.S. v. Michael C. Gleason. CCA 20150379.

No. 18-0306/AR. U.S. v. Lyndon T. Walker. CCA 20170285.

No. 18-0307/AF. U.S. v. Paul R. Schweitzer. CCA 39212.

 

Petitions for Grant of Review Denied

 

No. 18-0227/NA. U.S. v. Khoi V. Pham. CCA 201600313.

No. 18-0230/AR. U.S. v. Jonathon M. Witcher. CCA 20160114.

No. 18-0237/AF. U.S. v. Matthew J.T. Pacheco. CCA S32441.

 

Miscellaneous Docket - Summary Dispositions

 

No. 18-0248/CG. Shane E. Reese, Appellant v. United States, Appellee. CCA 0324. On consideration of the writ-appeal petition, it is ordered that the writ-appeal is denied.

 

Interlocutory Orders

 

No. 18-0243/NA. Joshua G. Anderson, Appellant v. United States, Appellee. CCA 201200499. Appellant's motion for an enlargement of time to file a reply is denied as moot.

 

No. 18-0277/AF. U.S. v. Jared M. Bard. CCA 38766. Appellant's second motion to extend time to file the supplement to the petition for grant of review granted to July 20, 2018.

 

No. 18-0282/NA. United States, Appellee/Cross-Appellant v. Paul E. Cooper, Appellant/Cross-Appellee. CCA 201500039. Appellant/Cross-Appellee's motion to extend time to file a brief granted to July 13, 2018.

 

Mandates Issued

 

No. 17-0480/NA. U.S. v. Raiden J. Andrews. CCA 201600208.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, July 3, 2018

 

Petitions for Grant of Review Filed

 

No. 18-0304/NA. U.S. v. Lamar Forbes. CCA 201600357.



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