UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
October 29, 2021
Petitions for Grant of Review Filed
No.
22-0022/AR. U.S. v. Gianni D. Delgado. CCA 20200570.
No.
22-0023/AR. U.S. v. Michael L. McClure. CCA 20190623.
No.
22-0024/MC. U.S. v. Adam K. Davis. CCA 202000073.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Thursday,
October 28, 2021
Petitions for Grant of Review Filed
No.
22-0020/AR. U.S. v. Nihan G. Johnnie. CCA 20200490.
No.
22-0021/AF. U.S. v. David A. Tellor, Jr. CCA 39770.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
October 27, 2021
Interlocutory Orders
No.
21-0183/NA. U.S. v. Frantz Beauge. CCA 201900197. On consideration of the
motions filed by Patient/Victim C.G. to file an amicus curiae brief, to
intervene, and to present oral argument as amicus curiae, it is ordered that
the motion to file an amicus curiae brief is granted, and the motions to
intervene and to present oral argument as amicus curiae are denied.
No.
21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. Appellant's motion
for leave to file a redacted brief and a brief under seal is granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
October 26, 2021
Petition for Grant of Review Filed
No.
22-0019/AF. U.S. v. Ryan J. Michalec. CCA 39771.
Petitions for Grant of Review Denied
No.
21-0324/AR. U.S. v. David T. Burgin. CCA 20200204.
No.
21-0326/NA. U.S. v. Kenneth Olaya. CCA 201900211.
No.
21-0346/AR. U.S. v. Samuel W. Lester. CCA 20190345.
Petition for Grant of Review - Summary
Disposition
No. 21-0318/AR. U.S. v. Sven M. Council.
CCA 20190321.
On consideration of Appellant's motion to exceed page limits and the petition
for grant of review of the decision of the United States Army Court of Criminal
Appeals, it is ordered that said motion is granted, and that said petition is
granted on the following issue:
DID
THE ARMY COURT OF CRIMINAL APPEALS ABUSE ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION FOR A STAY AND TO ORDER A SANITY BOARD PURSUANT TO R.C.M.
1203 AND 706?
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 that court for proceedings in accordance with Rule for Courts-Martial
(R.C.M.) 1203(e)(5). That court may first order affidavits from all appellate
defense counsel concerning Appellant's mental capacity to cooperate with
counsel in appellate proceedings, but in any event shall order an R.C.M. 706
inquiry into Appellant's mental capacity at trial and on appeal and his mental
responsibility for his offenses. If there are further proceedings, Articles 66
and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866, 867 (2018),
respectively, shall apply.
Interlocutory Order
No.
21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. Appellant's motion
to file the joint appendix under seal is granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Monday,
October 25, 2021
Interlocutory Order
No.
21-0350/MC. U.S. v. Lascelles F. Chambers. CCA
201900341. Appellant's motion to submit matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), is granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
October 22, 2021
Interlocutory Orders
No.
21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. Appellant's second
motion to extend time to file a brief is granted to November 1, 2021.
No.
22-0018/AF. U.S. v. Jamie L. Brown. CCA S39728. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
November 15, 2021.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Thursday,
October 21, 2021
Petition for Grant of Review Filed
No.
22-0018/AF. U.S. v. Jamie L. Brown. CCA S39728.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
October 20, 2021
Petition for Grant of Review Denied
No.
21-0330/MC. U.S. v. Dylan R. Spykerman. CCA 202000043.
Interlocutory Order
No.
22-0016/AF. U.S. v. James S. Silvernail, Jr. CCA 39618. Appellant's motion to
extend time to file the supplement to the petition for grant of review is
granted to November 9, 2021
Hearings
No.
21-0089/MC. U.S. v. Jonathan Quezada. CCA 201900115.
No.
21-0149/NA. U.S. v. Paul E. Cooper. CCA 201500039.
No.
21-0150/NA. U.S. v. Paul E. Cooper. CCA 201500039.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
October 19, 2021
Petitions for Grant of Review Filed
No.
22-0016/AF. U.S. v. James S. Silvernail, Jr. CCA 39618.
No.
22-0017/AF. U.S. v. Jaquelin Mena. CCA S32643.
Petitions for Grant of Review Denied
No.
21-0322/AR. U.S. v. Payton K. Cork. CCA 20200418.
No.
21-0338/AR. U.S. v. Shane M. Kriete. CCA 20200500.
Appeal — Summary Disposition
No. 21-0059/MC. U.S. v. Bradley M. Metz.
CCA 201900089.
On further consideration of the granted issue, 81 M.J. 148 (C.A.A.F. 2021), the
briefs of the parties, and oral argument, we answer the issue in the
affirmative. Accordingly, it is ordered that the decision of the United States
Navy-Marine Corps Court of Criminal Appeals is set aside, and the record of
trial is returned to the Judge Advocate General of the Navy for remand to that
court to conduct the three-pronged approach of Brown v. Illinois, 422 U.S. 590 (1975) in examining the effects of
an unlawful apprehension upon a subsequent search. See United States v. Conklin, 63 M.J. 333, 338 (C.A.A.F. 2006); United States v. Khamsouk, 57 M.J. 282,
290-91 (C.A.A.F. 2002). On remand, the Court of Criminal Appeals may order
affidavits or a factfinding hearing, if necessary. See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).
Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2018), shall apply.
Interlocutory Orders
No.
21-0368/NA. U.S. v. William D. O'Bryan. CCA 202000035. Appellant's motion for
leave to file matters pursuant to United
States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), is granted.
No.
22-0001/NA. U.S. v. Marvin J. Masa. CCA 201800314. Appellant's second motion to
extend time to file the supplement to the petition for grant of review is
granted to November 9, 2021.
No.
22-0015/AR. U.S. v. Michael J. Guinn. CCA 20170500. Appellant's motion to
extend time to file the supplement to the petition for grant of review is
granted to November 8, 2021.
Hearings
No.
21-0086/AR. U.S. v. Ronald C. Givens. CCA 20190132.
No.
21-0120/AR. U.S. v. Michael P. Whiteeyes. CCA 20190221.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Monday,
October 18, 2021
Petitions for Grant of Review Filed
No.
22-0014/AF. U.S. v. Michael S. Butler. CCA 39802.
No.
22-0015/AR. U.S. v. Michael J. Guinn. CCA 20170500.
Interlocutory Orders
No.
21-0219/AR. U.S. v. Conner B. Hiser. CCA 20190325.
Appellee's motion to examine sealed material is granted.
No.
22-0014/AF. U.S. v. Michael S. Butler. CCA 39802. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
November 8, 2021.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
October 15, 2021
Petitions for Grant of Review Denied
No.
21-0339/AF. U.S. v. Khalil R. Norman. CCA S32608.
No.
21-0340/MC. U.S. v. Mitchell R. Nobis. CCA 202100010.
No.
21-0351/AR. U.S. v. Devon S. Ross. CCA 20200286.
Interlocutory Order
No.
22-0013/NA. U.S. v. Micole A. Daugherty. CCA
202000133. Appellant's motion to extend time to file the supplement to the
petition for grant of review is granted to November 3, 2021.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Thursday,
October 14, 2021
Petitions for Grant of Review Filed
No.
22-0012/AF. U.S. v. Justin J. Bailey. CCA 39935.
No.
22-0013/NA. U.S. v. Micole A. Daugherty. CCA
202000133.
Petition for Grant of Review Denied
No.
21-0321/AR. U.S. v. Levi M. Alton. CCA 20190199.
Interlocutory Order
No.
21-0369/NA. U.S. v. Jared T. Norton. CCA 202000046. Appellant's second motion
to extend time to file the supplement to the petition for grant of review is
granted to November 2, 2021.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
October 13, 2021
Petitions for Grant of Review Filed
No.
22-0010/NA. U.S. v. Cameron M. Gattis. CCA 202000252.
No.
22-0011/NA. U.S. v. Justin J. Sullivan. CCA 202100124.
Petitions for Grant of Review Denied
No.
21-0292/MC. U.S. v. Mason R. Terwilliger. CCA 201900292.
No.
21-0323/NA. U.S. v. Chevaux Dawkins. CCA 201800057.
No.
21-0329/AR. U.S. v. Jacob A. Strickland. CCA 20200167.
No.
21-0332/AF. U.S. v. Nicholas D. Walker. CCA 39745.
Interlocutory Orders
No.
22-0007/AF. U.S. v. Jordan R. Muller. CCA 39323. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
November 2, 2021.
No.
22-0008/AF. U.S. v. Norbert A. King II. CCA 39583. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
November 2, 2021.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
October 12, 2021
Petitions for Grant of Review Filed
No.
22-0007/AF. U.S. v. Jordan R. Muller. CCA 39323.
No.
22-0008/AF. U.S. v. Norbert A. King II. CCA 39583.
Miscellaneous Docket - Filing
No.
22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and
Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA
20210409. Notice is 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 in the nature of writ of mandamus was filed under Rule
27(b) on this date.
Miscellaneous Docket - Summary
Disposition
No. 21-0336/AF. In re David H. Juillerat. CCA 34205. On consideration of the petition for
extraordinary relief in the nature of writ of error coram
nobis, habeas corpus, mandamus, and request for
clarification, it is ordered that the petition is denied.
Appeals - Summary Dispositions
No. 20-0358/AR. U.S. v. Carlos Muniz,
Jr. CCA 20200092.
On consideration of Appellant's petition for reconsideration and on further
consideration of the granted issue, 80 M.J. 401 (C.A.A.F. 2020), we conclude
that because Appellant was found guilty of at least one offense that occurred
prior to January 1, 2019, the convening authority erred in taking "no
action" on the sentence. However, because the charges were referred in
this case after January 1, 2019, this error was procedural, and the United
States Army Court of Criminal Appeals had jurisdiction to review Appellant's
case. See United States v.
Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the
record of trial, we determine that the procedural error did not materially
prejudice a substantial right. Accordingly, it is ordered that the petition for
reconsideration is granted, that the Order in this case of June 29, 201 is
vacated, and the judgment of the United States Army Court of Criminal Appeals
is affirmed.
No. 21-0040/AR. U.S. v. Leshan Jones. CCA 20190254. On further
consideration of the granted issue, 80 M.J. 458 (C.A.A.F. 2020), we conclude
that because Appellant was found guilty of at least one offense that occurred
prior to January 1, 2019, the convening authority erred in taking "no action"
on the sentence. However, because the charges were referred in this case after
January 1, 2019, this error was procedural, and the United States Army Court of
Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81
M.J. __, (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we
determine that the procedural error did not materially prejudice a substantial
right. Accordingly, it is ordered that the judgment of the United States Army
Court of Criminal Appeals is affirmed.
No. 21-0078/AR. U.S. v. Montana J.
Miller. CCA 20190597.
On consideration of Appellant's motion to file the petition for reconsideration
out of time, the petition for reconsideration and on further consideration of
the granted issue (81 M.J. 50 (C.A.A.F. 2021)), we conclude that because
Appellant was found guilty of at least one offense that occurred prior to
January 1, 2019, the convening authority erred in taking "no action"
on the sentence. However, because the charges were referred in this case after
January 1, 2019, this error was procedural, and the United States Army Court of
Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81
M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we
determine that the procedural error did not materially prejudice a substantial
right. Accordingly, it is ordered that the motion to file a petition for
reconsideration out of time is granted, that the petition for reconsideration
is granted, that the Order in this case of June 29, 2021 is vacated, and the
judgment of the United States Army Court of Criminal Appeals is affirmed.
No. 21-0126/AF. U.S. v. James A. Aumont. CCA 39673. On further consideration of the granted
issue, 81 M.J. 158 (C.A.A.F. 2021), we conclude that because Appellant was
found guilty of at least one offense that occurred prior to January 1, 2019,
the convening authority erred in taking "no action" on the sentence.
However, because the charges were referred in this case after January 1, 2019,
this error was procedural, and the United States Air Force Court of Criminal
Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7,
2021). In light of this Court's recent decision in Brubaker-Escobar, we deem it appropriate to remand this case to the
Court of Criminal Appeals so that the lower court may directly address the
issue of whether the procedural error materially prejudiced a substantial right
of Appellant. Accordingly, it is ordered that the record of trial is returned
to The Judge Advocate General of the Air Force for remand to the United States
Air Force Court of Criminal Appeals for a determination of whether the
procedural error materially prejudiced a substantial right of Appellant.
No. 21-0134/AR. U.S. v. Luis E. Ramirez.
CCA 20190367.
On consideration of Appellant's petition for reconsideration and on further
consideration of the granted issue, 81 M.J. 239 (C.A.A.F. 2021), we conclude
that because Appellant was found guilty of at least one offense that occurred
prior to January 1, 2019, the convening authority erred in taking "no
action" on the sentence. However, because the charges were referred in
this case after January 1, 2019, this error was procedural, and the United
States Army Court of Criminal Appeals had jurisdiction to review Appellant's
case. See United States v.
Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the
record of trial, we determine that the procedural error did not materially
prejudice a substantial right. Accordingly, it is ordered that the petition for
reconsideration is granted, that the Order in this case of June 29, 2021 is
vacated and the judgment of the United States Army Court of Criminal Appeals is
affirmed.
No. 21-0201/AR. U.S. v. Adrian L.
Ingram, Jr. CCA 20190610. On consideration of Appellant's petition for
reconsideration and on further consideration of the granted issue, 81 M.J. ___
(C.A.A.F. May 4, 2021), we conclude that because Appellant was found guilty of
at least one offense that occurred prior to January 1, 2019, the convening
authority erred in taking "no action" on the sentence. However,
because the charges were referred in this case after January 1, 2019, this error
was procedural, and the United States Army Court of Criminal Appeals had
jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7,
2021). Having reviewed the record of trial, we determine that the procedural
error did not materially prejudice a substantial right. Accordingly, it is
ordered that the petition for reconsideration is granted, that the Order in
this case of June 29, 2021 is vacated, and the judgment of the United States
Army Court of Criminal Appeals is affirmed.
No. 21-0234/AR. U.S. v. Logan T. Kyle.
CCA 20190372.
On further consideration of the granted issue, 81 M.J. ___ (C.A.A.F. June 4,
2021), we conclude that because Appellant was found guilty of at least one
offense that occurred prior to January 1, 2019, the convening authority erred
in taking "no action" on the sentence. However, because the charges
were referred in this case after January 1, 2019, this error was procedural,
and the United States Army Court of Criminal Appeals had jurisdiction to review
Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F.
Sept. 7, 2021). Having reviewed the record of trial, we determine that the
procedural error did not materially prejudice a substantial right. Accordingly,
it is ordered that the judgment of the United States Army Court of Criminal
Appeals is affirmed.
Interlocutory Orders
No.
22-0005/AR. U.S. v. Derrick J. Thornton. CCA 20200404. Appellant's motion to
extend time to file the supplement to the petition for grant of review is
granted to November 1, 2021.
No.
22-0006/AF. U.S. v. Danber S. Albarda.
CCA 39734. Appellant's motion to extend time to file the supplement to the
petition for grant of review is granted to November 1, 2021.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
October 8, 2021
Petition for Grant of Review Filed
No.
22-0006/AF. U.S. v. Danber S. Albarda.
CCA 39734.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
October 6, 2021
Petitions for Grant of Review Filed
No.
22-0004/AR. U.S. v. Jacob A. Quintana. CCA 20200515.
No.
22-0005/AR. U.S. v. Derrick J. Thornton. CCA 20200404.
Hearings
No.
21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089.
No.
21-0069/AF. U.S. v. Jerard Simmons. CCA 39342.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
October 5, 2021
Petition for Grant of Review Filed
No.
22-0003/AR. U.S. v. Justin M. Smith. CCA 20200680.
Petition for Grant of Review Denied
No.
21-0320/AR. U.S. v. Javanta M. RaspberryBennett. CCA 20200043.
Hearings
No.
21-0004/MC. U.S. v. Julian D. Schmidt. CCA 201900043.
No.
21-0052/NA. U.S. v. Virginia S. Moratalla. CCA 201900073.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Monday,
October 4, 2021
Petition for Grant of
Review Filed
No.
22-0002/AR. U.S. v. Michael S. Cotham. CCA 20210023.
Petitions for Grant of
Review Denied
No.
21-0310/AR. U.S. v. Christopher D. Brown. CCA 20200488.
No.
21-0347/AR. U.S. v. Christopher S. Stevick. CCA 20200577.
Interlocutory Orders
No.
21-0205/AF. U.S. v. Dylan S. Hale. CCA 39724. Appellant's motion to suspend the
Court's Rules is denied.
No.
21-0216/NA. U.S. v. Joseph R. Nelson. CCA 201900239. Appellant's second motion
to extend time to file a brief and the joint appendix is granted, but only up
to and including October 18, 2021, and absent extraordinary circumstances, no
further extension of time will be granted in this case.
No.
21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. Appellant's motion
to extend time to file a brief is granted to October 28, 2021.
No.
22-0001/NA. U.S. v. Marvin J. Masa. CCA 201800314. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
October 25, 2021.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
October 1, 2021
Petition for Grant of Review Filed
No.
22-0001/NA. U.S. v. Marvin J. Masa. CCA 201800314.
Interlocutory Order
No.
21-0354/AF. U.S. v. Jamal X. Washington. CCA 39761. On consideration of
Appellant's petition for grant of review of the decision of the United States
Air Force Court of Criminal Appeals, and Appellee's motion to dismiss the
petition, it is noted that the Court of Criminal Appeals affirmed some findings
of guilt and set aside other 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) (2018), 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 motion to dismiss is
denied as moot.
Mandate Issued
No.
21-0236/NA. U.S. v. Craig R. Becker. CCA 201900342.
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