UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, September 30, 2022

 

Notice

 

In Re Rules Advisory Committee: Pursuant to Rule 45 of the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, the following persons are, this 30th day of September, 2022, hereby appointed as members of the Rules Advisory Committee, effective October 1, 2022, for a term expiring on September 30, 2025:

 

Prof. Alan B. Morrison (Chair)

Ms. Michelle Lindo McCluer, Esq.

Ms. Carol K. Joyce, Esp.

 

The following members, whose terms expire on the dates indicated below, remain on the Rules Advisory Committee:

 

To expire on September 30, 2023:

Mr. William A. DeCicco, Esq.

Ms. Rebecca S. Snyder, Esq.

Mr. Matthew G. Kaiser, Esq.

 

To expire on September 30, 2024:

Mr. Dwight H. Sullivan, Esq.

Mr. Thomas E. Booth, Esq.

Ms. Audrey B. Critchley, Esq.

 

The Clerk of the Court is an ex officio member of the Committee and serves as its Reporter.

 

The Court has appointed Professor Morrison as chairman of the Committee. The Court expresses its deep appreciation to Professor Steven H. Goldblatt for his many years of distinguished service as chairman of the Rules Advisory Committee.

 

Rules Changes

 

Upon careful consideration of certain proposed changes to the Rules of Practice and Procedure, United States Court of Appeals for the Armed Forces, which were presented to and reviewed by the Rules Advisory Committee of the United States Court of Appeals for the Armed Forces, and thereafter published in the Federal Register for comment, it is ordered that effective October 1, 2022, Rules 9(e), 21A, 30A(c), and 36(a) and new Rule 36B is promulgated as provided in the Attachment to this order (deletions appear with strikethrough and changes appear in bold typeface).

 

Rule 9(e) Clerk

 

(a) Location of Office. The Clerk's office shall be located at the courthouse at 450 E Street, Northwest, Washington, D.C. 20442-0001

 

(b) Oath of Office. Before entering upon the execution of his office, the Clerk shall take the oath or affirmation prescribed in 951 of Title 28, United States Code.

 

(c) Custodian of Records. The Clerk shall serve as custodian of the records of the Court and shall not permit any documents relative to a case to be taken from the courthouse except by order of a judge of the Court.

 

(d) Disposition of Procedural Matters. Notwithstanding the provisions of Rule 6, the Clerk, on behalf of the Court, may entertain and act on any motion seeking an enlargement of time not to exceed 30 days, leave to withdraw as counsel, or permission to file pleadings or other papers relative to a matter pending before the Court, provided such motion is not opposed and such action does not substantially affect the rights of the parties or the ultimate decision in the case. The order of the Clerk shall be deemed the order of the Court.

 

(e) Hours. The Clerk's office shall maintain regular operating hours be open from 8:00 a.m. to 5:00 p.m. every day except Saturdays, Sundays, and legal holidays, or as otherwise ordered by the Court. See Rule 36(a). The Court is always open for filing of pleadings and other papers. A pleading or other paper may be filed at any time outside of normal operating hours of the Clerk's office by delivery to Court security personnel on duty in the front lobby of the courthouse or by electronically filing in accordance with the "Guidelines for Electronic Filings of Pleadings" available on the Court's website. Pleadings will be deemed filed on the date and time delivered to Court security personnel or filed electronically. Court security personnel will notify the Clerk of the filing in accordance with procedures established provided by the Clerk.

 

Rule 21A Submissions Under United States v. Grostefon

 

(a) Issues raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), shall be presented in a separate Appendix to the supplement not to exceed 15 pages.

 

(b) Grostefon issues shall be identified by counsel with particularity and, where pertinent, references to the record of trial must be to the specific page in the record. Grostefon issues shall be presented substantially in the following form:

 

APPENDIX

 

Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), appellant, through appellate defense counsel, personally requests that this Court consider the following matters:

 

[List issues and any argument for each issue.]

 

(c) Grostefon issues raised within 30 days of the filing of the supplement under Rule 19(a)(5)(c) are subject to and included within the 15-page limit in Rule 21A(a). An appellee's answer to Grostefon issues may be filed no later than 20 days after the filing of such issues.

 

Rule 30A(c) Factfinding

 

(a) General. The Court will normally not consider any facts outside of the record established at the trial and the Court of Criminal Appeals. Requests to consider factual material that is not contained in the record shall be presented by a motion to supplement the record filed pursuant to Rule 30. The motion shall include statements explaining why the matter was not raised previously at trial or before the Court of Criminal Appeals and why it is appropriate to be considered for the first time in this Court. Motions filed pursuant to this rule will be granted only for good cause shown.

 

(b) Judicial Notice. In an appropriate case, the Court may take judicial notice of an indisputable adjudicative fact.

 

(c) Remand for Factfinding. If an issue concerning an unresolved material fact may affect the Court's resolution of the case, a party may request, or the Court may sua sponte order, a remand of the case or the record to the Court of Criminal Appeals. If the record is remanded, the Court retains jurisdiction over the case. See Article 66(f)(3), UCMJ, 10 USC 866(f)(3) (2018). If the case is remanded, the Court does not retain jurisdiction, and a new petition for grant of review or certificate for review will be necessary if a party seeks review of the proceedings conducted on remand.

 

(d) Stipulation by the Parties. If an issue concerning an unresolved material fact may affect the Court's resolution of the case, the parties may stipulate to a factual matter, subject to the Court's approval.

 

(e) Other Means. Where it is impracticable to remand a case to the Court of Criminal Appeals, the Court may order other means to develop relevant facts, including the appointment of a special master to hold hearings, if necessary, and to make such recommendations to the Court as are deemed appropriate.

 

Rule 36(a) Filing of Pleadings

 

(a) In General. Pleadings or other papers relative to a case shall be filed in the Clerk's office, 450 E Street, Northwest, Washington, D.C. 20442-001, either in person, by mail, by third-party commercial carrier, or by electronic filing. See Rule 37(b)(2). Documents submitted online must conform to the "Guidelines for Electronic Filings of Pleadings" available on the Court's website.

 

(b) Filing in Person. If a pleading or other paper is filed in person, such filing shall consist of delivery to a member of the Clerk's office during normal business hours. See Rule 9(e).

 

(c) Filing by Mail. If a pleading or other paper is filed by mail, such filing shall consist of depositing the pleading or other paper with the United States Postal Service, with no less than first-class postage prepaid, properly addressed to the Clerk's office. If a pleading or other paper is filed through a third-party commercial carrier, such filing shall consist of delivery to the commercial carrier for delivery within 3 calendar days.

 

(d) Time of Filing. Pleadings or other papers shall be deemed to have been filed on the date they are delivered to the Clerk's office under subsection (b) or on the date they are mailed or delivered to a commercial carrier under subsection (c). See Rules 37(b)(1) and 39(e).

 

(e) Non-Compliant Pleadings. If any pleading or other paper is not filed or offered for filing in compliance with these rules or an order of the Court, the Court may issue an order to show cause, dismiss the proceeding, or return the proffered pleading or paper on its own motion or the motion of a party. See Rule 37(b)(1).

 

Rule 36B Citations to Primary Authorities

 

Any reference to the Uniform Code of Military Justice or the Manual for Courts-Martial, United States, in any pleading or other paper filed with the Court, shall cite the relevant version of the statute, rule, or other provision, by date of edition.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, September 29, 2022

 

Miscellaneous Docket - Filing

 

No. 22-0299/AF. U.S. v. Steven M. Chapman. CCA 35564. Notice is given that a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.

 

Interlocutory Order

 

No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. On consideration of Patient/Victim S.S.'s motion for a stay pending petition for writ of certiorari and motion for a written opinion, it is ordered that the motion for a stay pending petition for writ of certiorari is denied and that the motion for a written opinion is denied.

 

Mandate Issued

 

No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, September 28, 2022

 

Petition for Grant of Review Filed

 

No. 22-0297/AR. U.S. v. Denzel J. Isales. CCA 20210109.

 

Petitions for Grant of Review Denied

 

No. 22-0235/AF. U.S. v. Nathaniel A. Jackson. CCA 40067.

No. 22-0238/AF. U.S. v. Jerard Simmons. CCA 39342.

No. 22-0247/NA. U.S. v. Anthony D. Stith. CCA 202100335.

No. 22-0267/MC. U.S. v. Kirk A. Kostrzewski. CCA 202100332.

No. 22-0269/AR. U.S. v. Jacob D. McCormick. CCA 20210449.

 

Miscellaneous Docket - Filing

 

No. 22-0298/AF. U.S. v. Robert A. Condon. CCA 38765. Notice is given that a writ-appeal petition for review of the decision of the United States Air Force Court of Criminal Appeals on application for extraordinary relief was filed under Rule 27(b) on this date.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 27, 2022

 

Order Granting Petition for Review

 

No. 22-0233/AR. U.S. v. Margarito Miramontes. CCA 20200476. 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 issue:

 

WHETHER THE MILITARY JUDGE ERRED WHEN DENYING APPELLANT'S MOTION REQUESTING THAT A CONVICTION IN HIS CASE BE UNANIMOUS.

 

No briefs will be filed under Rule 25.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, September 26, 2022

 

Petition for Grant of Review Filed

 

No. 22-0296/AR. U.S. v. Joseph D. Kjos. CCA 20210489.

 

Interlocutory Orders

 

No. 22-0271/AR. U.S. v. Clifton M. Shepherd. CCA 20210406. Appellant's motion to withdraw the petition for grant of review is granted, and the petition for grant of review is withdrawn.

 

No. 22-0293/NA. U.S. v. Jason S. Doyle. CCA 201900190R. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 17, 2022.

 

No. 22-0294/MC. U.S. v. Eric N. Vance. CCA 202100024. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 17, 2022.

 

No. 22-0296/AR. U.S. v. Joseph D. Kjos. CCA 20210489. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 17, 2022.

 

Mandate Issued

 

No. 22-0091/AF. U.S. v. Javon C. Richard. CCA 39918.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, September 23, 2022

 

Petitions for Grant of Review Filed

 

No. 22-0292/NA. U.S. v. James R. Piersol. CCA 202200028.

No. 22-0293/NA. U.S. v. Jason S. Doyle. CCA 201900190R.

No. 22-0294/MC. U.S. v. Eric N. Vance. CCA 202100024.

No. 22-0295/NA. U.S. v. Joshua B. Spears. CCA 202100034.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, September 22, 2022

 

Petition for Grant of Review Filed

 

No. 22-0291/MC. U.S. v. Jose A. Cabrera. CCA 202100085.

 

Petition for Grant of Review - Summary Disposition

 

No. 22-0197/AR. U.S. v. Charles E. Robinson III. CCA 20170536. 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 the petition is dismissed for lack of jurisdiction.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, September 21, 2022

 

Petitions for Grant of Review Filed

 

No. 22-0289/AF. U.S. v. Craig M. Geier. CCA S32679.

No. 22-0290/AF. U.S. v. Lucero Pacheco. CCA S32697.

 

Notices

 

No. 22-0123/AF. U.S. v. Travis D. Pullings. CCA 39948. In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Scott W. Stucky to perform judicial duties in the above-referenced case, and that Senior Judge Stucky has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2018).

 

No. 22-0129/AR. U.S. v. Nicholas R. St. Jean. CCA 20190663. In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Scott W. Stucky to perform judicial duties in the above-referenced case, and that Senior Judge Stucky has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2018).

 

No. 22-0170/AF. U.S. v. William C. McAlhaney. CCA 39979. In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Scott W. Stucky to perform judicial duties in the above-referenced case, and that Senior Judge Stucky has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2018).




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 20, 2022

 

Interlocutory Orders

 

No. 22-0287/AR. U.S. v. Randy P. French. CCA 20200145. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 11, 2022.

 

No. 22-0288/NA. U.S. v. Yusef R. Ali. CCA 202100261. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 11, 2022.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, September 19, 2022

 

Petitions for Grant of Review Filed

 

No. 22-0286/AR. U.S. v. Juan C. Chavez, Jr. CCA 20210100.

No. 22-0287/AR. U.S. v. Randy P. French. CCA 20200145.

No. 22-0288/NA. U.S. v. Yusef R. Ali. CCA 202100261.

 

Petitions for Grant of Review Denied

 

No. 22-0241/MC. U.S. v. Michael R. Pichardo. CCA 202100185.

No. 22-0263/AR. U.S. v. Eric M. Torness. CCA 20210198.

 

Interlocutory Orders

 

No. 22-0235/AF. U.S. v. Nathaniel A. Jackson. CCA 40067. Appellant's motion to supplement the record is granted.

 

No. 22-0283/NA. U.S. v. Chase T. Miller. CCA 201900234. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 11, 2022.

 

No. 22-0284/AR. U.S. v. Brian C. Docilet. CCA 20200358. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 11, 2022.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, September 16, 2022

 

Petitions for Grant of Review Filed

 

No. 22-0283/NA. U.S. v. Chase T. Miller. CCA 201900234.

No. 22-0284/AR. U.S. v. Brian C. Docilet. CCA 20200358.

No. 22-0285/AR. U.S. v. Josiah E. Johnson. CCA 20210513.

 

Interlocutory Orders

 

No. 22-0280/AF. U.S. v. D'Andre M. Johnson. CCA 39676. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 6, 2022.

 

No. 22-0281/AR. U.S. v. Chance K.J. Harris. CCA 20210133. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 6, 2022.

 

No. 22-0282/AR. U.S. v. Ashraf S. Warda. CCA 20200644. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 6, 2022.

 

Mandate Issued

 

No. 21-0325/AR. U.S. v. Leeroy M. Sigrah. CCA 20190556.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, September 15, 2022

 

Petitions for Grant of Review Filed

 

No. 22-0279/MC. U.S. v. Ethan R. Shields. CCA 202100061.

No. 22-0280/AF. U.S. v. D'Andre M. Johnson. CCA 39676.

No. 22-0281/AR. U.S. v. Chance K.J. Harris. CCA 20210133.

No. 22-0282/AR. U.S. v. Ashraf S. Warda. CCA 20200644.

 

Petition for Grant of Review Denied

 

No. 22-0143/AR. U.S. v. Hector L. Lopez, Jr. CCA 20200642.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, September 14, 2022

 

Petition for Grant of Review Filed

 

No. 22-0278/NA. U.S. v. Dashawn Q. Nichol. CCA 201800286.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 13, 2022

 

Petitions for Grant of Review Denied

 

No. 22-0221/MC. U.S. v. Rivelino P. Rivero. CCA 202100106.

No. 22-0255/AR. U.S. v. Symone T. Brown. CCA 20210208.

No. 22-0257/AR. U.S. v. Richard Z. Banzali. CCA 20210316.

 

Petitions for Grant of Review - Summary Dispositions

 

No. 22-0172/AR. U.S. v. Michael L. Lewis. CCA 20190200. 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 the petition is dismissed for lack of jurisdiction.

 

No. 22-0230/AR. U.S. v. Tristen D. Willey. CCA 20210631. Appellant's motion to withdraw the petition for grant of review is granted, and the order of this Court dated August 26, 2022, is vacated.

 

Interlocutory Orders

 

No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. On consideration of Patient/Victim S.S.'s renewed motion to intervene, petition for clarification, petition for reconsideration, and motion to file a substituted petition for reconsideration, it is ordered that the motion to intervene is denied, and the petition for clarification, petition for reconsideration, and motion to file a substituted petition for reconsideration are dismissed for lack of jurisdiction.

 

No. 22-0018/AF. U.S. v. Jamie L. Brown. CCA S39728. Appellant's motion to file out of time a second petition for reconsideration of the Court's order issued January 5, 2022 is denied.

 

No. 22-0193/AF. U.S. v. Anthony A. Anderson. CCA 39969. On consideration of the motions filed by the National Association of Criminal Lawyers for leave to file an amicus curiae brief in support of Appellant and for leave to file a corrected amicus curiae brief, it is ordered that the motions are granted.

 

No. 22-0277/NA. U.S. v. Adam M. Pyron. CCA 201900296R. Appellant's motion to extend time to file the supplement to the petition for grant of review is granted to October 3, 2022




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Monday, September 12, 2022

 

Petitions for Grant of Review Filed

 

No. 22-0276/AF. U.S. v. Mellodee L. Behunin. CCA S32684.

No. 22-0277/NA. U.S. v. Adam M. Pyron. CCA 201900296R.

 

Interlocutory Order

 

No. 22-0065/NA. U.S. v. Willie C. Jeter. CCA 201700248. Appellant's motion to extend time to file a reply brief is granted to September 15, 2022.

 

Mandate Issued

 

No. 22-0066/AR. U.S. v. Ethen D. Black. CCA 20210310.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Friday, September 9, 2022

 

Petitions for Grant of Review Filed

 

No. 22-0274/AR. U.S. v. Noah M. Hoefs. CCA 20200558.

No. 22-0275/AF. U.S. v. Nicholas J. Velasquez. CCA 40056.

 

Notices

 

No. 22-0123/AF. U.S. v. Travis D. Pullings. CCA 39948. In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Walter T. Cox to perform judicial duties in the above-referenced case, and that Senior Judge Cox has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2018).

 

No. 22-0129/AR. U.S. v. Nicholas R. St. Jean. CCA 20190663. In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge has called upon Senior Judge Walter T. Cox to perform judicial duties in the above-referenced case, and that Senior Judge Cox has consented to perform judicial duties in said case under Article 142(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2018).

 

No. 22- 0170/AF. U.S. v. William C. McAlhaney. CCA 39979. In view of the existence of a vacant position on the Court, notice is hereby given that the Chief Judge called upon Senior Judge Walter T. Cox to perform judicial duties in the above referenced case, and that Senior Judge Cox has consented to perform judicial duties in said case under Article 142<(e)(1)(A)(ii), Uniform Code of Military Justice, 10 U.S.C. 942(e)(1)(A)(ii) (2018).




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, September 8, 2022

 

Petitions for Grant of Review Denied

 

No. 22-0223/AR. U.S. v. Sylvio A. Soler. CCA 20210017.

No. 22-0248/AF. U.S. v. Terrance Little II. CCA 40121.

No. 22-0252/AR. U.S. v. Cory D. Randolph. CCA 20210456.

 

Interlocutory Order

 

No. 21-0193/AR. U.S. v. Nidal M. Hasan. CCA 20130781. Appellee's third motion to extend time to file a brief is granted to October 19, 2022.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Wednesday, September 7, 2022

 

Interlocutory Order

 

No. 22-0090/AF. U.S. v. Andrew P. Witt. CCA 36785. Appellee's motion to submit a supplemental joint appendix is granted.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Tuesday, September 6, 2022

 

Petition for Grant of Review Filed

 

No. 22-0273/AR. U.S. v. Cody B. Saylor. CCA 20210477.




UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

DAILY JOURNAL

Thursday, September 1, 2022

 

Petitions for Grant of Review Denied

 

No. 22-0219/AF. U.S. v. Gregory A. Halter, Jr. CCA S32666.

No. 22-0243/AR. U.S. v. Robert J. Comingo. CCA 20190309.

No. 22-0245/NA. U.S. v. Suzette A. Prado. CCA 202100303.

 

Mandate Issued

 

No. 22-0105/AR. U.S. v. David J. Rudometkin. CCA 20180058.



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