UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, April 30, 2019

 

Petition for Grant of Review Denied

 

No. 19-0190/NA. U.S. v. Fabian X. Moreno. CCA 20180277.

 

Interlocutory Orders

 

No. 19-0277/MC. U.S. v. Raymond W. Begay. CCA 201800332. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 20, 2019.

 

No. 19-0279/AR. U.S. v. Nicholas A. Yancey. CCA 20120393. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 20, 2019.

 

Special Docket Matter

 

No. 30926. In the matter of James W. Richards IV. It appearing that the above-named attorney is a member of the Bar of this Court and has been suspended from the practice of law by the state of Texas, that, pursuant to Rule 15(b), Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, said attorney was suspended from the practice of law before the Court and was directed to show cause why he should not be disbarred, that said attorney has failed to show cause, and considering the misconduct giving rise to his suspension, it is ordered that James W. Richards IV is disbarred from the practice of law before this Court.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, April 29, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0277/MC. U.S. v. Raymond W. Begay. CCA 201800332.

No. 19-0278/AR. U.S. v. Ke'aira S. Conley. CCA 20170560.

No. 19-0279/AR. U.S. v. Nicholas A. Yancey. CCA 20120393.

No. 19-0280/AR. U.S. v. Matthew M. How. CCA 22180461.

 

Petitions for Grant of Review Denied

 

No. 19-0208/AF. U.S. v. Robert J. Hernandez. CCA 39346.

No. 19-0219/AR. U.S. v. Roslyn D. Tart. CCA 20180283.

No. 19-0228/AF. U.S. v. Michelle M. Rodgers. CCA S32533.

 

Order Granting Petition for Review

 

No. 19-0143/AR. U.S. v. Corey N. Wall. CCA 20160235. 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 on the following specified issue:

 

WHETHER, AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE THE CONVENING AUTHORITY MAY APPROVE.

 

Briefs will be filed under C.A.A.F. R. 25.

 

Interlocutory Orders

 

No. 18-0308/AR. U.S. v. Cedric L. McDonald. CCA 20160339. Appellant's motion to extend time to file a petition for reconsideration is granted to May 1, 2019.

 

No. 19-0245/AR. U.S. v. Erik J. Burris. CCA 20150047. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 14, 2019.

 

No. 19-0272/AR. U.S. v. Christopher G. Pacheco. CCA 20170177. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 17, 2019.

 

No. 19-0274/AR. U.S. v. Hector Hernandezaviles. CCA 20170131 Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 16, 2019.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, April 26, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0270/AR. U.S. v. Anthony J. Pearce. CCA 20170396.

No. 19-0271/AR. U.S. v. Jay G. Guerrero. CCA 20180384.

No. 19-0272/AR. U.S. v. Christopher G. Pacheco. CCA 20170177.

No. 19-0273/AR. U.S. v. Jordan J. Carroll. CCA 20180147.

No. 19-0274/AR. U.S. v. Hector Hernandezaviles. CCA 20170131.

No. 19-0275/AR. U.S. v. Adam C. Lautenschlager. CCA 20180154.

No. 19-0276/AR. U.S. v. Dalton C. Czaiczynski. CCA 20170309.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, April 25, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0268/AF. U.S. v. Jacob Cook. CCA 39367.

No. 19-0269/AF. U.S. v. Daniel J. Postell. CCA 39340.

 

Petitions for Grant of Review Denied

 

No. 19-0169/AR. U.S. v. Matthew X. Guerrero. CCA 20170612.

No. 19-0207/AR. U.S. v. Delbrico J. Robinson. CCA 20180215.

No. 19-0217/AF. U.S. v. Zacarie J. Tanner. CCA 39301.

No. 19-0222/MC. U.S. v. Tyler J. Goodlin. CCA 201800159.

 

Interlocutory Orders

 

No. 19-0197/AF. U.S. v. Ralph J. Hyppolite II. CCA 39358. Appellant/Cross-Appellee's motion to dismiss the certificate for review is denied.

 

No. 19-0267/AR. U.S. v. Trumaine Harrison. CCA 20180268. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 16, 2019.

 

No. 19-0269/AF. U.S. v. Daniel J. Postell. CCA 39340. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 15, 2019.

 

Petition for Reconsideration Denied

 

No. 19-0103/AR. U.S. v. Terence K. Taylor, Jr. CCA 20160744. Appellant's petition for reconsideration of this Court's order issued March 29, 2019 is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, April 24, 2019

 

Petition for Grant of Review Filed

 

No. 19-0267/AR. U.S. v. Trumaine Harrison. CCA 20180268.

 

Petitions for Grant of Review Denied

 

No. 19-0142/AR. U.S. v. Andrewio B. Fennell. CCA 20170060.

No. 19-0172/NA. U.S. v. Bryan P. Watson. CCA 201800236.

No. 19-0210/AR. U.S. v. Dasheen M. Perry. CCA 20180274.

No. 19-0214/AF. U.S. v. Romel A. Alberson. CCA S32525.

No. 19-0220/AR. U.S. v. Jose Morales. CCA 20170401.

 

Interlocutory Orders

 

No. 19-0234/AR. U.S. v. Jordan T. Rodriguez. CCA 20160787. Appellant's second motion to extend time to file the supplement to the petition for grant of review is granted to May 12, 2019.

 

No. 19-0254/AR. U.S. v. Christian R. Martin. CCA 20160336. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 22, 2019.

 

No. 19-0260/AR. U.S. v. Latrevius L. White. CCA 20180278. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 13, 2019.

 

No. 19-0261/CG. U.S. v. Matthew A. Rogers. CCA 1391. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 14, 2019.

 

No. 19-0262/AR. U.S. v. Quantrell L. Anderson. CCA 20170158. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 14, 2019.

 

Hearings

 

No. 18-0350/CG. U.S. v. Michael R. Rodriguez. CCA 1450.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, April 23, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0263/AR. U.S. v. Sean W. Cornelison. CCA 20160733.

No. 19-0264/AR. U.S. v. Christian J. Corona. CCA 20180049.

No. 19-0265/AR. U.S. v. Kevin L. Smith. CCA 20180190.

 

No. 19-0266/AR. U.S. v. Gerald D. Arno. CCA 20180699. Notice is hereby given that a petition for grant of 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, and a supplement to said petition were filed under Rules 20 and 21 on this 23rd day of April, 2019. A motion to stay the proceedings of the court-martial was filed contemporaneously with the petition and the supplement and is pending before the Court. Appellee will file an answer under Rule 21(c)(1) on or before May 3, 2019, and is at liberty to answer the motion under Rule 30(b).

 

Hearings

 

No. 18-0347/AR. U.S. v. Michael J. Gonzales. CCA 20130849.

No. 18-0359/AR. U.S. v. Michael L. Haynes, Jr. CCA 20160817.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, April 22, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0260/AR. U.S. v. Latrevius L. White. CCA 20180278.

No. 19-0261/CG. U.S. v. Matthew A. Rogers. CCA 1391.

No. 19-0262/AR. U.S. v. Quantrell L. Anderson. CCA 20170158.

 

Interlocutory Orders

 

No. 18-0273/AR. U.S. v. Norman R. Stout. CCA 20120592. On consideration of the briefs of the parties on the issue granted on August 6, 2018, and oral argument held on December 4, 2018, it is ordered that the parties file supplemental briefs on the following additional issues:

 

I. WHETHER UNITED STATES v. BROWN, 4 C.M.A. 683, 16 C.M.R. 257 (1954), IS NOT CONTROLLING IN THIS CASE BECAUSE THE DECISION PREDATES THE PROMULGATION OF THE APPLICABLE VERSION OF R.C.M. 603(d).

 

II. WHETHER THE APPLICABLE VERSION OF R.C.M. 603(d) IS CONTRARY TO AND INCONSISTENT WITH THE APPLICABLE VERSION OF ARTICLE 34(c), UCMJ, AND THEREFORE VOID TO THE EXTENT IT PROHIBITS MAJOR CHANGES, BEFORE REFERRAL, TO CHARGES AND SPECIFICATIONS THAT WERE AMENDED TO "CONFORM TO THE SUBSTANCE OF THE EVIDENCE CONTAINED IN THE REPORT OF THE INVESTIGATING OFFICER." ARTICLE 34(c), UCMJ, 10 U.S.C. 834(c) (2012).

 

The briefs of the parties shall be filed concurrently within 15 days of the date of this order.

 

No. 18-0317/AR. U.S. v. Bradley E. Manning (nka Chelsea E. Manning). CCA 20130739. Appellant's motion to file a reply brief out of time is granted.

 

No. 19-0233/AR. U.S. v. Mikel K.W. Tillman. CCA 20160449. Appellant's second motion to extend time to file the supplement to the petition for grant of review is granted to May 7, 2019.

 

No. 19-0242/NA. U. S. v. James D. Inchaurregui. CCA 201700194. Appellant's second motion to extend time to file the supplement to the petition for grant of review is granted to May 15, 2019.

 

No. 19-0257/AF. U.S. v. Nathan E. Scott. CCA 39309. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 13, 2019.

 

No. 19-0258/AR. U.S. v. Luis A. Izquierdoolea. CCA 20180398. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 9, 2019.

 

No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 10, 2019.

 

Petition for Reconsideration Denied

 

No. 19-0123/AR. U.S. v. Lawrence P. Muscat. CCA 20160534. Appellant's petition for reconsideration of this Court's order issued March 29, 2019 is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, April 19, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0257/AF. U.S. v. Nathan E. Scott. CCA 39309.

No. 19-0258/AR. U.S. v. Luis A. Izquierdoolea. CCA 20180398.

No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202.

 

Interlocutory Orders

 

No. 19-0236/AR. U.S. v. Travis Hernandez. CCA 20160558. Appellant's second motion to extend time to file the supplement to the petition for grant of review is granted to April 26, 2019.

 

No. 19-0255/AR. U.S. v. Darralyn S. Cody. CCA 20170472. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 9, 2019.

 

No. 19-0256/AR. U.S. v. Joseph N. Brooks. CCA 20180140. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 8, 2019.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, April 18, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0255/AR. U.S. v. Darralyn S. Cody. CCA 20170472.

No. 19-0256/AR. U.S. v. Joseph N. Brooks. CCA 20180140.

 

Miscellaneous Docket - Summary Disposition

 

No. 19-0053/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. Appellate defense counsel petitioned this Court for extraordinary relief in the nature of a writ of mandamus, seeking access to matters that were sealed by the military judge at trial as being privileged between Major Hasan and his standby counsel.[1] In two decisions, the United States Army Court of Criminal Appeals denied appellate defense counsel access to these sealed privileged materials because appellate defense counsel admitted that Major Hasan had not authorized them to review those documents. United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. July 6, 2018) (order); United States v. Hasan, No. ARMY 20130781 (A. Ct. Crim. App. Oct. 16, 2018) (order).

 

To prevail on a writ of mandamus, the petitioner must show that: "(1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances." Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004)). Appellate defense counsel failed to establish (2).

 

We find unpersuasive appellate defense counsel's argument that issuance of the writ is clear and indisputable under Rule for Courts-Martial 1103A. Although that rule does not except attorney-client privileged material from its ambit, neither does it include it. On consideration of the petition and the briefs of the parties, as appellate defense counsel failed to establish a clear and indisputable right to the writ it is ordered that the petition is denied.

 

[1] Although captioned as Hasan v. United States Army Court of Criminal Appeals, it appears that Major Hasan has not authorized this petition, as he has not waived his attorney-client privilege to these materials.

 

Orders Granting Petitions for Review

 

No. 19-0086/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. On consideration of Appellant's 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 granted on the following issues:

 

I. WHETHER THE CONVENING AUTHORITY'S SELECTION OF MEMBERS VIOLATED THE EQUAL PROTECTION REQUIREMENTS OF THE FIFTH AMENDMENT.

 

II. WHETHER THE CONVENING AUTHORITY'S SELECTION OF MEMBERS CONSTITUTED UNLAWFUL COMMAND INFLUENCE.

 

III. WHETHER THE LOWER COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DENIAL OF APPELLANT'S MOTION TO PRODUCE EVIDENCE OF THE RACIAL MAKEUP OF POTENTIAL MEMBERS

 

Briefs will be filed under C.A.A.F. R. 25.

 

No. 19-0139/AR. U.S. v. Alan S. Guardado. CCA 20140014. On consideration of Appellant's 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 on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT APPELLANT ARTICLE 13, UCMJ, CREDIT IN CONSEQUENCE OF THE HOWELL v. UNITED STATES, 75 M.J. 386 (C.A.A.F. 2016) VIOLATION PRESENT HERE.

 

Briefs will be filed under C.A.A.F. R. 25.

 

Interlocutory Order

 

No. 18-0359/AR. U.S. v. Michael L. Haynes, Jr. CCA 20160817. Appellant's motion to file a reply brief out of time is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, April 17, 2019

 

Petition for Grant of Review Filed

 

No. 19-0254/AR. U.S. v. Christian R. Martin. CCA 20160336.

 

Petitions for Grant of Review Denied

 

No. 19-0106/AF. U.S. v. Marcus A. Mancini. CCA 38783.

No. 19-0153/AF. U.S. v. Nicholas V. Linton. CCA 39229.

No. 19-0168/AF. U.S. v. Patrick D. Moore. CCA S32477.

No. 19-0199/AR. U.S. v. Alan F. Laguna. CCA 20170378.

 

Petition for Grant of Review - Summary Disposition

 

No. 19-0224/AR. U.S. v. David S. Lancaster. CCA 20180597. 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.*

 

* It is directed that the promulgating order be corrected to accurately reflect that no reprimand was adjudged.

 

Interlocutory Orders

 

No. 19-0172/NA. U.S. v. Bryan P. Watson. CCA 201800236. Appellant's motion to file the supplement to the petition for grant of review out of time, and motion to attach documents are granted.

 

No. 19-0191/AR. U.S. v. Francisco C. Lara. CCA 20170025. Appellant's motion to submit matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) is granted.

 

Petition for Reconsideration Denied

 

No. 19-0077/AR. U.S. v. Billy J. Smith, Jr. CCA 20160049. Appellant's petition for reconsideration of this Court's order issued March 18, 2019 is denied.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, April 16, 2019

 

Petitions for Grant of Review Denied

 

No. 19-0160/AR. U.S. v. Tevin J. Long. CCA 20170252.

No. 19-0175/AR. U.S. v. Christopher E. Monge. CCA 20170295.

No. 19-0186/AR. U.S. v. Alexis S. Perry. CCA 20170043.

No. 19-0194/AF. U.S. v. Timothy R. Kirklin. CCA S32505.

No. 19-0200/AR. U.S. v. Dorian A. Jacobs. CCA 20180361.

 

Petitions for Grant of Review - Summary Dispositions

 

No. 19-0085/CG. U.S. v. Anthony J. Livingstone. CCA 1448. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition be, and the same is granted, and the decision of the United States Coast Guard Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be corrected to accurately reflect that the Guilty finding to Specification 2 of Charge II should be footnoted to reflect that it was later conditionally dismissed by the military judge after findings as an unreasonable multiplication of charges with Specification 2 of Charge III.

 

No. 19-0201/AR. U.S. v. Alexander E. Denson. CCA 20150137. 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.*

 

* It is directed that the promulgating order be corrected to accurately reflect that Additional Charge III was a violation of Article 134, UCMJ, vice Article 128, UCMJ.

 

Interlocutory Orders

 

No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 6, 2019.

 

No. 19-0253/AR. U.S. v. Christopher A. Ocasio-Rivera. CCA 20180167. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to May 6, 2019.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, April 15, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329.

No. 19-0253/AR. U.S. v. Christopher A. Ocasio-Rivera. CCA 20180167.

 

Interlocutory Orders

 

No. 19-0240/NA. U.S. v. Hugo J. Spinoza. CCA 201700236. On consideration of Appellant's second motion to extend time to file the supplement to the petition for grant of review, it is ordered that the motion is granted to May 2, 2019.

 

No. 19-0249/AR. U.S. v. Andrew W. Bowhall. CCA 20170357. On consideration of Appellant's motion to extend time to file the supplement to the petition for grant of review, it is ordered that the motion is granted to May 6, 2019.

 

No. 19-0250/AR. U.S. v. Ray A. Iglesias. CCA 20170063. On consideration of Appellant's motion to extend time to file the supplement to the petition for grant of review, it is ordered that the motion is granted to May 6, 2019.

 

No. 19-0251/AR. U.S. v. Olanrewaju O. Dairo. CCA 20170175. On consideration of Appellant's motion to extend time to file the supplement to the petition for grant of review, it is ordered that the motion is hereby granted to May 6, 2019.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, April 12, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0247/AR. U.S. v. Ryan F. Barrett. CCA 20170354.

No. 19-0248/AR. U.S. v. Carmelo Angel-Neri. CCA 20170658.

No. 19-0249/AR. U.S. v. Andrew W. Bowhall. CCA 20170357.

No. 19-0250/AR. U.S. v. Ray A. Iglesias. CCA 20170063.

No. 19-0251/AR. U.S. v. Olanrewaju O. Dairo. CCA 20170175.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, April 10, 2019

 

Interlocutory Order

 

No. 19-0186/AR. U.S. v. Alexis S. Perry. CCA 20170043. Appellant's motion to submit matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) is granted.

 

Hearing

 

No. 18-0364/AR. U.S. v. Michael E. Harris. CCA 20170100.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, April 9, 2019

 

Interlocutory Orders

 

No. 19-0155/AR. U.S. v. Daniel I. Avila. CCA 20160200. Appellant's motion to submit matters pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) is granted.

 

No. 19-0213/AR. U.S. v. Kory K. Mayers. CCA 20170314. Appellant's motion to file a portion of the supplement to the petition for grant of review under seal is granted.

 

No. 19-0215/AR. U.S. v. Erick A. Navarro. CCA 20160673. Appellant's motion for leave to file a supplemental appendix to the supplement to the petition for grant of review under seal is granted.

 

No. 19-0242/NA. U. S. v. James D. Inchaurregui. CCA 201700194. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 29, 2019.

 

No. 19-0243/AR. U.S. v. Steven J. Furgerson. CCA 20170239. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 29, 2019.

 

No. 19-0244/AF. U.S. v. Joseph D. Roman. CCA 39381. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 29, 2019.

 

No. 19-0245/AR. U.S. v. Erik J. Burris. CCA 20150047. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 29, 2019.

 

Hearing

 

No. 18-0362/AR. U.S. v. Nicholas L. Frost. CCA 20160171.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, April 8, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0245/AR. U.S. v. Erik J. Burris. CCA 20150047.

No. 19-0246/AR. U.S. v. Samuel R. Wiles. CCA 20170246.

 

Petitions for Grant of Review Denied

 

No. 19-0146/AF. U.S. v. James L. Donoho. CCA 39242.

No. 19-0165/AR. U.S. v. Timothy R. Brown. CCA 20180056.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, April 5, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0243/AR. U.S. v. Steven J. Furgerson. CCA 20170239.

No. 19-0244/AF. U.S. v. Joseph D. Roman. CCA 39381.

 

Interlocutory Orders

 

No. 19-0240/NA. U.S. v. Hugo J. Spinoza. CCA 201700236. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 25, 2019.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, April 4, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0241/AF. U.S. v. Jonathan C. Goergen. CCA S32516.

No. 19-0242/NA. U.S. v. James Inchaurregui. CCA 201700194.

 

Petitions for Grant of Review Denied

 

No. 19-0094/AR. U.S. v. Carl L. Campbell. CCA 20160215.

No. 19-0161/AR. U.S. v. Robert L. Atkinson, Jr. CCA 20160634.

No. 19-0187/AF. U.S. v. William H. Abel. CCA 39362.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, April 3, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0239/AR. U.S. v. Kelvin D. Smothers. CCA 20170316.

No. 19-0240/NA. U.S. v. Hugo J. Spinoza. CCA 201700236.

 

Miscellaneous Docket - Summary Disposition

 

No. 19-0052/AF. U.S. v. Richard D. Collins. CCA 39296. Upon consideration of Appellant's motion to stay this Court's order of March 12, 2019, affirming the decision of the United States Air Force Court of Criminal Appeals or to extend the time to comply with that order, Appellee's answer, and Appellee's petition for extraordinary relief in the nature of a writ of mandamus or in the alternative, a writ of habeas corpus, we note that Appellee is still confined despite the sole charge having been dismissed by the lower court. We also note that Appellant has not petitioned for reconsideration of this Court's order. In that context, and where there is no further action to be taken by the President or the Secretary, the Judge Advocate General of the Air Force "shall instruct the convening authority to take action in accordance with" the decision of the lower court and the order of this Court. Article 67(e), Uniform Code of Military Justice (UCMJ), 10 U.S.C. 867(e) (2012). Finally, this Court has jurisdiction to entertain the petition and issue the writ of habeas corpus because the case is before us on direct review and appellate review is not yet complete under Article 57(c)(l)(B)(iii)(I), UCMJ (as amended by the Military Justice Act of 2016, the legislatively designated short title for Division E-Uniform Code of Military Justice Reform of the National Defense Authorization Act for Fiscal Year 2017). National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 5302(a), 130 Stat. 2000, 2922-23 (2016) (effective date Jan. 1, 2019). Accordingly, it is ordered that Appellant's motion to stay or extend time is denied, and Appellee's petition for a writ of habeas corpus is granted.

 

All rights, privileges, and property of which Appellee has been deprived are hereby ordered restored. The Judge Advocate General shall direct the immediate release of Appellee from confinement.

 

Interlocutory Orders

 

No. 19-0237/AF. U.S. v. Vincell D. Shadricks. CCA 39351. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 23, 2019.

 

No. 19-0238/AR. U.S. v. Adam J. Myer. CCA 20160490. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 22, 2019.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, April 2, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0237/AF. U.S. v. Vincell D. Shadricks. CCA 39351.

No. 19-0238/AR. U.S. v. Adam J. Myer. CCA 20160490.

 

Petition for Grant of Review - Summary Disposition

 

No. 19-0144/MC. U.S. v. Nhubu C. Chikaka. CCA 201400251. On consideration of Appellant's petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, we note that there is an unresolved ambiguity in the lower court's decision. Upon sentence reassessment, the lower court stated that Appellant's offenses "included sexual assault." United States v. Chikaka, No. 201400251, slip op. at 7 (N-M. Ct. Crim. App. Nov. 15, 2018). Because Appellant was not convicted of sexual assault, it is unclear whether that offense was improperly considered as part of that court's sentence reassessment.

 

As the decision of the court below is not free from ambiguity, it should be clarified on remand. See United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994) ("The appropriate remedy for incomplete or ambiguous rulings is a remand for clarification."); see also United States v. Israel, 75 M.J. 314 (C.A.A.F. 2016) (summary disposition); United States v. Mohamed, 67 M.J. 202 (C.A.A.F. 2008) (summary disposition). Accordingly, it is ordered that said petition is hereby granted. The decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further review consistent with this order. Thereafter, Article 67, Uniform Code of Military Justice, 10 U.S.C. 867 (2012), shall apply.

 

Miscellaneous Docket - Summary Dispositions

 

No. 19-0054/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, the briefs of the parties, and oral argument, we note that we have the authority to issue extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act (AWA), 28 U.S.C. 1651(a) (2012). United States v. Denedo, 556 U.S. 904, 911 (2009). In this death penalty case, we conclude that we have the jurisdiction to issue the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now to protect exercise of its appellate jurisdiction later); see also Article 67(a)(1), Uniform Code of Military Justice, 10 U.S.C. 867(a)(1) (2012) (providing jurisdiction for this Court over all cases in which the sentence, as affirmed by a Court of Criminal Appeals, extends to death). However, before we may issue a writ of mandamus, three conditions must be satisfied: (1) the petitioner must demonstrate that there are no other adequate alternative means to obtain the desired relief, thus ensuring that the writ is not used as a substitute for the regular appeals process; (2) the petitioner must demonstrate a clear and indisputable right to the writ; and (3) this Court must be convinced, given the circumstances, that the issuance of the writ is warranted. Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004). In this case, Petitioner has failed to demonstrate that he cannot obtain relief through alternative means. He may still make an administrative request to remedy the alleged source of bias, and of course, he is entitled to raise this issue in the ordinary course of appellate review. Further, Petitioner has failed to demonstrate a clear and indisputable right to the writ as the harm he asserts is entirely speculative at this stage of the proceedings. Therefore, we decline to exercise our authority under the AWA. Accordingly, it is ordered that the petition is denied without prejudice to Petitioner's right to raise the issue asserted during the normal course of appellate review.

 

No. 19-0185/AR. Shaquille Craig, Appellant v. Mark A. Bridges, Colonel, Military Judge, United States Army, Appellee and United States, Real Party in Interest. CCA 20180632. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

 

No. 19-0195/AR. Richard J. Ramsey, Appellant v. United States, Appellee. CCA 20190001. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.

 

No. 19-0223/AF. Humphrey Daniels III, Petitioner v. Carl Brobst, Commander, Commanding Officer, Naval Consolidated Brig, Charleston, United States Navy, Respondent, United States Air Force Court of Criminal Appeals, Respondent and United States of America, Real Party in Interest. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, mandamus, and declaratory judgment, it is ordered that the petition is denied.

 

Order Granting Petition for Review

 

No. 19-0104/AR. U.S. v. Nicholas E. Davis. CCA 20160069. On consideration of Appellant's 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 on the following personally asserted issue:

 

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL THAT A NEGLIGENT MENS REA WAS SUFFICIENT FOR THE OFFENSE OF INDECENT VISUAL RECORDING AND THE DEFENSE OF MISTAKE OF FACT AS TO CONSENT.

 

No briefs will be filed under C.A.A.F. R. 25.

 

Interlocutory Orders

 

No. 19-0233/AR. U.S. v. Mikel K.W. Tillman. CCA 20160449. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 22, 2019.

 

No. 19-0234/AR. U.S. v. Jordan T. Rodriguez. CCA 20160787. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 22, 2019.

 

No. 19-0236/AR. U.S. v. Travis Hernandez. CCA 20160558. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 22, 2019.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, April 1, 2019

 

Petitions for Grant of Review Filed

 

No. 19-0233/AR. U.S. v. Mikel K.W. Tillman. CCA 20160449.

No. 19-0234/AR. U.S. v. Jordan T. Rodriguez. CCA 20160787.

No. 19-0235/AR. U.S. v. Tony S. Springer. CCA 20170662.

No. 19-0236/AR. U.S. v. Travis Hernandez. CCA 20160558.

 

Petition for Grant of Review - Summary Disposition

 

No. 19-0209/AR. U.S. v. Steven E. Hill. CCA 20120979. Upon consideration of the pro se matter construed by the Court as a petition for grant of review under Rule 20 and what is styled as a petition for the appointment of counsel, it is ordered that the petition for grant of review is dismissed without prejudice to Appellant's seeking collateral relief in an appropriate forum, and the petition for the appointment of counsel is denied.

 

Interlocutory Orders

 

No. 19-0203/AR. U.S. v. Kevin W. Beer. CCA 20160659. Appellant's second motion to extend time to file the supplement to the petition for grant of review is granted to April 11, 2019.

 

No. 19-0231/AF. U.S. v. Jesse L. Brazell. CCA 39325. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 22, 2019.

 

No. 19-0232/AF. U.S. v. Jaime R. Rodriguez. CCA 38519. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to April 22, 2019.



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