UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, January 31,
2023
Petition for Grant of Review Filed
No.
23-0100/NA. U.S. v. Jose A. Martinez. CCA 202100206.
Petitions for Grant of Review Denied
No.
23-0044/AR. U.S. v. Jeremy D. Davies. CCA 20210641.
No.
23-0056/AR. U.S. v. Justin A. Bridges-Thompson. CCA 20220009.
No.
23-0060/AR. U.S. v. Teitus A. Tanihu. CCA 20210634.
Petition for Grant of Review - Summary
Disposition
No.
23-0067/MC. U.S. v. Gunnar I. Naughton. CCA 202100285. On consideration of
the petition for grant of review of the decision of the United States
Navy-Marine Corps Court of Criminal Appeals, we note that the military judge
adjudged a sentence of a bad-conduct discharge, confinement for a total of 16 months,
forfeiture of all pay and allowances, and reduction to pay grade E-1. The
record also shows that the convening authority approved the adjudged sentence,
without modification. In listing the adjudged sentence in its per curiam
opinion, the lower court incorrectly stated that the adjudged sentence included
confinement for 14 months, vice 16 months. It then affirmed the sentence.
Appellant
has not asserted any error by the lower court in this respect. However, it is
unclear whether confinement for 16 months or 14 months was affirmed. Under
Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c)
(2018), this Court can only act with respect to the findings and sentence as
affirmed by a court of criminal appeals. If the affirmed sentence is ambiguous,
the appropriate remedy is a remand for clarification. United States v. Kosek,
41 M.J. 60, 65 (C.M.A. 1994) ("The appropriate remedy for incomplete or
ambiguous rulings is a remand for clarification."). Accordingly, because of the
ambiguity as to the affirmed sentence, it is ordered that said petition is
hereby granted on the following specified issue:
WHETHER
THE DECISION OF THE UNITED STATES NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS
IS AMBIGUOUS AS TO WHETHER THE AFFIRMED SENTENCE INCLUDED CONFINEMENT FOR 16
MONTHS OR 14 MONTHS.
The
decision of the United States Navy-Marine Corps Court of Criminal Appeals is
affirmed as to findings but set aside as to sentence. The record of trial is
returned to The Judge Advocate General of the Navy for remand to the United
States Navy-Marine Corps Court of Criminal Appeals for clarification as to the
affirmed sentence. Thereafter Article 67, UCMJ, shall apply.
Interlocutory Orders
No.
23-0090/AR. U.S. v. Samuel H. Zimmer. CCA 20200671. Appellant's motion to
extend time to file the supplement to the petition for the grant of review is
granted to February 28, 2023.
No.
23-0099/AF. U.S. v. Lonnie E. Sanders III. CCA S32714. Appellant's motion to
extend time to file the supplement to the petition for the grant of review is
granted to February 21, 2023.
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
person is, this 31st day of January, 2023, hereby appointed as a member of the
Rules Advisory Committee, effective February 1, 2023, to serve the remainder of
Ms. Audrey B. Critchley's term expiring on September 30, 2024:
Mr. John P. Taitt, Esq.
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.
To
expire on September 30, 2025:
Prof. Alan B. Morrison (Chair)
Ms. Michelle Lindo McCluer, Esq.
Ms. Carol K. Joyce, Esq.
The
Clerk of the Court is a member of the Committee and serves as its Reporter.
The
Court expresses its deep appreciation to Ms. Critchley for her many years of
distinguished service as a member of the Rules Advisory Committee.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, January 30,
2023
Petition for Grant of Review Filed
No.
23-0099/AF. U.S. v. Lonnie E. Sanders III. CCA S32714.
Orders Granting Petition for Review
No.
22-0294/MC. U.S. v. Eric N. Vance. CCA 202100024. On consideration of
the petition for grant of review of the decision of the United States Army
Court of Criminal Appeal, it is ordered that said petition is hereby granted on
the following issue:
WHETHER
APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A UNANIMOUS VERDICT.
No
briefs will be filed under Rule 25.
No.
23-0050/AR. U.S. v. Cory M. Garrett. CCA 20210298. 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:
DID
THE MILITARY JUDGE DENY APPELLANT'S FIFTH AMENDMENT RIGHT TO A UNANIMOUS
VERDICT?
No
briefs will be filed under Rule 25.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, January 27,
2023
Petition for Grant of Review Filed
No.
23-0098/AR. U.S. v. Hayden R. Elder. CCA 20210330.
Petition for Grant of Review Denied
No.
23-0069/AR. U.S. v. Khaleed D. Barrett. CCA 20210639.
Interlocutory Order
No.
23-0081/NA. U.S. v. Aaren D. Painter. CCA 202200098.
Appellant's motion to withdraw the petition for grant of review is granted, and
the petition is withdrawn.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, January 26,
2023
Petition for Grant of Review Filed
No.
23-0097/MC. U.S. v. Jose G. Gomezvillalobos. CCA 202100215.
Interlocutory Orders
No.
20-0359/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of
Intervenor E.B.'s motion for a permanent stay of the order of the lower court,
motion for a hearing, and motion to file under seal Appendix C of the motion
for a permanent stay, it is ordered that said motion to stay is hereby
dismissed and that the Court's order issued December 22, 2022, temporarily
staying the lower court's order is hereby vacated. This Court lacks
jurisdiction over this matter because in United States v. Jacinto, 81
M.J. 350, 355 (C.A.A.F. 2021), the Court remanded both the record and the case
to the United States Navy-Marine Corps Court of Criminal Appeals and because a
writ petition is not before the Court. That said motion for a hearing is denied
as moot; and that said motion to file under seal Appendix C of the motion for a
permanent stay is denied as moot.
No.
23-0005/CG. U.S. v. Solomon R. Flores. CCA 1474. On consideration of
Appellant's motion to attach DAC-IPAD transcript, it is ordered that the motion
is denied.
No.
23-0027/AF. U.S. v. James T. Cunningham. CCA 40093. On consideration of
Appellant's motion to expedite or postpone oral argument, dated January 12,
2023, with a suggestion that the hearing be set for some time in March 2023, it
is noted that on January 18, 2023, a Hearing Notice was issued scheduling the
hearing for March 29, 2023. Accordingly, it is ordered that the motion is
denied as moot.
No.
23-0070/AR. U.S. v. Moises Ortega. CCA 20220119. On consideration of
Appellant's motion to withdraw the petition for grant of review, it is ordered
that the motion is granted; and that the petition is withdrawn.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, January 25,
2023
Petitions for Grant of Review Filed
No.
23-0095/AR. U.S. v. David J. Kremer. CCA 20210431.
No.
23-0096/AR. U.S. v. Justin D. Munoz. CCA 20210338.
Interlocutory Order
No.
23-0086/AF. U.S. v. Jamal X. Washington. CCA 2022-14. Appellant's motion to
extend time to file a reply to the response to the writ-appeal petition is
granted to February 2, 2023.
Hearing
No.
22-0237/AF. U.S. v. Caleb A.C. Smith. CCA 40013.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, January 24,
2023
Interlocutory Orders
No.
23-0092/AR. U.S. v. Mariano Cerrud. CCA 20210185.
Appellant's motion to extend time to file the supplement to the petition for grant
of review is granted to February 13, 2023.
No.
23-0093/AF. U.S. v. Jeremy T. Todd. CCA S32701. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
February 13, 2023.
No.
23-0094/AF. U.S. v. Javohn I. Journigan.
CCA S33716. Appellant's motion to extend time to file the supplement to the
petition for grant of review is granted to February 13, 2023.
Hearings
No.
22-0249/CG. U.S. v. Fernando M. Brown. CCA 001-69-21.
No.
22-0254/AR. U.S. v. Andrew D. Steele. CCA 20170303.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, January 23,
2023
Petitions for Grant of Review Filed
No.
23-0093/AF. U.S. v. Jeremy T. Todd. CCA S32701.
No.
23-0094/AF. U.S. v. Javohn I. Journigan. CCA S33716.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, January 20,
2023
Petition for Grant of Review Filed
No.
23-0092/AR. U.S. v. Mariano Cerrud. CCA 20210185.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, January 19,
2023
Petitions for Grant of Review Filed
No.
23-0090/AR. U.S. v. Samuel H. Zimmer. CCA 20200671.
No.
23-0091/AR. U.S. v. Utumea F. Galu. CCA 20220015.
Interlocutory Order
No.
23-0088/AR. U.S. v. Jacob B. Fuller. CCA 20200729. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
February 8, 2023.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, January 18,
2023
Petition for Grant of Review Denied
No.
23-0062/MC. U.S. v. Devan C. Un. CCA 202200102.
Interlocutory Orders
No.
22-0279/MC. U.S. v. Ethan R. Shields. CCA 202100061. Appellee's motion to
extend time to file a brief is granted to February 3, 2023.
No.
23-0087/AR. U.S. v. Dylan B. Oerman. CCA 20210355.
Appellant's motion to extend time to file the supplement to the petition for
grant of is granted to February 7, 2023.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, January 17,
2023
Petition for Grant of Review Filed
No.
23-0089/AR. U.S. v. Mark A. Polizzi. CCA 20210613.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, January 13,
2023
Petitions for Grant of Review Filed
No.
23-0087/AR. U.S. v. Dylan B. Oerman. CCA 20210355.
No.
23-0088/AR. U.S. v. Jacob B. Fuller. CCA 20200729.
Interlocutory Orders
No.
22-0282/AR. U.S. v. Ashraf S. Warda. CCA 20200644. On consideration of the
motion filed by the National Association of Criminal Defense Lawyers for leave
to file an amicus brief in support of Appellant, it is ordered that the motion
is granted.
No.
23-0027/AF. U.S. v. James T. Cunningham. CCA 40093. Appellant's motion for
leave to file portions of the joint appendix under seal is granted.
No.
23-0076/AF. U.S. v. Lucio Salamanca. CCA S32695. Appellant's second motion to extend
time to file the supplement to the petition for grant of review is granted to
February 2, 2023.
No.
23-0082/AR. U.S. v. Willis A. Grant. CCA 20200645. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
February 2, 2023.
No.
23-0083/AF. U.S. v. John K. Brassil-Kruger. CCA
40223. Appellant's motion to extend time to file the supplement to the petition
for grant of review is granted to February 2, 2023.
No.
23-0084/AF. U.S. v. Joshua D. McCameron. CCA 40089.
Appellant's motion to extend time to file the supplement to the petition for
grant of review is granted to February 2, 2023.
No.
23-0085/AF. U.S. v. Jonel H. Guihama.
CCA 40039. Appellant's motion to extend time to file the supplement to the petition
for grant of review is granted to February 2, 2023.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, January 12,
2023
Petitions for Grant of Review Filed
No.
23-0083/AF. U.S. v. John K. Brassil-Kruger. CCA 40223.
No.
23-0084/AF. U.S. v. Joshua D. McCameron. CCA 40089.
No.
23-0085/AF. U.S. v. Jonel H. Guihama. CCA 40039.
Petition for Grant of Review Denied
No.
23-0048/AR. U.S. v. Anthony A. Lilore. CCA 20210642.
Miscellaneous Docket - Filing
No.
23-0086/AF. U.S. v. Jamal X. Washington. CCA 2022-14. Notice is hereby 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 12th day of January, 2023.
Order Granting Petition for Review
No.
23-0001/AR. U.S. v. Cameron M. Mays. CCA 20200623. 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 OFFENSE OF INDECENT VIEWING UNDER ARTICLE 120c, UCMJ, INCLUDES VIEWING A
VISUAL IMAGE OF THE PRIVATE AREA OF ANOTHER PERSON.
Briefs
will be filed under Rule 25.
Interlocutory Orders
No.
22-0234/AR. U.S. v. Byunggu Kim. CCA 20200689. Appellant's motion to extend
time to file a reply brief is granted to January 23, 2023.
No.
23-0066/AF. U.S. v. Alexander L. Driskill. CCA 39889. Appellant's second motion
to extend time to file the supplement to the petition for grant of review is
granted to February 10, 2023.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, January 11,
2023
Petition for Grant of Review Filed
No.
23-0082/AR. U.S. v. Willis A. Grant. CCA 20200645.
Interlocutory Orders
No.
21-0193/AR. U.S. v. Nidal M. Hasan. CCA 20130781. The pleadings have been
received in this case and oral argument will be heard on March 28, 2023.
Appellant and Appellee are directed to seek agreement on the issues to be heard
at oral argument and to so advise the Court on or before January 23, 2023. If
agreement cannot be reached, the parties will so advise the Court by the same
date, identifying the issues agreed upon and in dispute, and the Court will
resolve any differences. Ordinarily, C.A.A.F. R. 40(b)(3) allots 20 minutes per
side to present oral argument. Given the nature of this case on mandatory
review, the Rule is hereby suspended and each side is
allotted 60 minutes. Any motion for time beyond 60 minutes must be filed on or
before January 23, 2023.
No.
23-0057/AF. U.S. v. Jennesis V. Dominguez-Garcia. CCA
S3269S. On consideration of Appellant's petition for grant of review of the
decision of the United States Air Force Court of Criminal Appeals, Appellee's
motion to dismiss the petition, and Appellant's motion to extend time to file
the supplement to the petition for grant of review, it is noted that the Court
of Criminal Appeals affirmed the findings of guilt but set aside 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 course of normal appellate
review, and the motion to dismiss the petition for grant of review and the
motion to extend time to file the supplement to the petition for grant of
review are denied as moot.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, January 10,
2023
Interlocutory Orders
No.
21-0193/AR. U.S. v. Nidal M. Hasan. CCA 20130781. Appellant's motions to file a
reply brief under seal, for leave to file a reply brief in excess of page
limitations, and for leave to file a second supplemental joint appendix are
granted.
No.
22-0065/NA. U.S. v. Willie C. Jeter. CCA 201700248. Appellee's motion to return
Appellant's supplemental brief is denied.
No.
23-0055/MC. U.S. v. Travonte D. Williams. CCA 202100094. Appellant's third
motion to extend time to file the supplement to the petition for grant of
review, is granted, but only up to and including January 17, 2023, and absent
extraordinary circumstances, no further extension of time will be granted in
this case.
No.
23-0081/NA. U.S. v. Aaren D. Painter. CCA 202200098. Appellant's motion to
extend time to file the supplement to the petition for grant of review is
granted to January 30, 2023.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, January 9, 2023
Petitions for Grant of Review Filed
No.
23-0078/AR. U.S. v. Sun T. Xiong. CCA 20210579.
No.
23-0079/AF. U.S. v. Kevin M. Rosales Gomez. CCA S32713.
No.
23-0080/AR. U.S. v. Anthony R. Ramirez. CCA 20210376.
No.
23-0081/NA. U.S. v. Aaren D. Painter. CCA 202200098.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, January 6, 2023
Petition for Grant of Review Filed
No.
23-0077/AF. U.S. v. Daesha R. Heard. CCA 40159.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, January 3,
2023
Petition for Grant of Review Denied
No.
23-0025/AF. U.S. v. Jared J. Baird. CCA 40050.
Interlocutory Orders
No.
23-0063/AR. U.S. v. Kevin S. Miles. CCA 20210227. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
January 23, 2023.
No.
23-0076/AF. U.S. v. Lucio Salamanca. CCA S32695. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
January 23, 2023.
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