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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001

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Monday, October 16, 2006 (audio--all cases)

9:00 a.m.

United States v.	Timothy J. Pena	No. 06-0091/AF
(Appellee)	(Appellant)

Counsel for Appellant: Capt Vicki A. Belleau, USAF
Counsel for Appellee: Capt Jefferson E. McBride, USAF

Case Summary: GCM conviction of adultery, indecent exposure, indecent assault, indecent language, and attempt to commit an indecent assault. Granted issues question: (I) whether the Appellant was improperly placed on excess appellate leave and denied pay and allowances in violation of Article 76a, UCMJ, when his sentence to confinement was not completed or remitted and he was forced to fulfill conditions of mandatory supervision upon his release from confinement; (II) whether the Air Force Clemency and Parole Board increased the severity of Appellant’s sentence in violation of Article 55, UCMJ, and the Eighth Amendment when it forced Appellant to fulfill conditions of mandatory supervision that are not authorized by the UCMJ; (III) whether the imposition of conditions of mandatory supervision on Appellant violates the due process clause because the military judge did not announce a period of mandatory supervised release or any of its conditions as part of the sentence; and (IV) whether Appellant’s pleas of guilty are improvident because the military judge did not inform Appellant prior to accepting his pleas that he could be additionally punished in unspecified ways.

10:00 a.m.

United States v.	Joseph W. Lee	No. 03-0071/AF
(Appellee)	(Appellant)

Counsel for Appellant: Maj John N. Page III, USAF
Counsel for Appellee: Capt Kimani R. Eason, USAF

Case Summary: SPCM conviction of possessing child pornography. Granted issue questions whether the military judge abused his discretion when he denied the defense request for an expert consultant in the field of forensic computer examination.

11:00 a.m.

United States v.	Vangle S. Hardison	No. 06-0064/NA
(Appellee)	(Appellant)

Counsel for Appellant: Capt Rolando R. Sanchez, USMC
Counsel for Appellee: LT Justin E. Dunlap, JAGC, USN

Case Summary: SPCM conviction of using marijuana. Granted issue questions whether the Navy-Marine Corps Court of Criminal Appeals erred by concluding that the military judge had not committed plain error by admitting evidence of Appellant’s preservice drug use and a service waiver for that drug use.

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.

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Tuesday, October 17, 2006 (audio--all cases)

9:00 a.m.

United States v.	Jermaine M. Clay	No. 05-0779/MC
(Appellee)	(Appellant)

Counsel for Appellant: LT Richard H. McWilliams, JAGC, USNR
Counsel for Appellee: Maj Wilbur Lee, USMC

Case Summary: GCM conviction of rape and indecent assault. Granted issue questions whether the military judge abused his discretion when he denied the defense challenge for cause against Colonel [J], a member detailed to the court-martial panel, who demonstrated a draconian and inelastic attitude toward sentencing.

10:00 a.m.

United States v.	John C. McAllister	No. 00-0252/AR
(Appellee)	(Appellant)

Counsel for Appellant: David P. Sheldon, Esquire
Counsel for Appellee: Capt Larry W. Downend, JA, USA

Case Summary: GCM conviction of disobeying an officer and unpremeditated murder. Granted issue questions whether Appellant’s right to present his defense was violated when he was prevented from employing and utilizing a necessary DNA expert at his trial and whether that error was harmless.

11:00 a.m.

United States v.	John E. Crafter	No. 06-0116/AF
(Appellee)	(Appellant)

Counsel for Appellant: Maj Patrick E. Neighbors, USAFR
Counsel for Appellee: Maj Jin-Hwa Lee Frazier, USAF

Case Summary: GCM conviction of dereliction of duty, accepting money for favors in violation of a regulation, and making a false official statement. Granted issue questions whether Specification 2 of Charge I fails to state an offense because Appellant’s conduct alleged therein does not violate the specified regulation.

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.

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Wednesday, October 18, 2006 (audio--all cases)

9:00 a.m.

United States v.	James E. Rankin	No. 06-0119/NA
(Appellee)	(Appellant)

Counsel for Appellant: LT Brian L. Mizer, JAGC, USN
Counsel for Appellee: LT Craig A. Poulson, JAGC, USNR

Case Summary: SPCM conviction of unauthorized absence. Granted issue questions whether the business records admitted into evidence over defense objection were testimonial hearsay.

10:00 a.m.

United States v.	Kevin L. Simon	No. 05-0563/MC
(Appellee)	(Appellant)

Counsel for Appellant: LT Richard H. McWilliams, JAGC, USNR
Counsel for Appellee: LT Jessica M. Hudson, JAGC, USN

Case Summary: SPCM conviction of willfully disobeying a superior commissioned officer. Granted issues question: (I) whether error occurred in Appellant’s case when Appellant lacks the mental capacity to understand and cooperate intelligently in appellate proceedings pursuant to Rule for Courts-Martial 1203 (c)(5) and when no inquiry was made into whether Appellant was capable to assist in his defense pursuant to Rule for Courts-Martial 706; (II) whether Appellant was denied his Sixth Amendment right to effective assistance of counsel when his initial appellate defense counsel failed to establish contact with the client, failed to reasonably investigate his case, and failed to raise the issue of post-trial delay at the lower court; and (III) whether the unreasonable delay caused by the Government’s gross negligence in fulfilling the non-discretionary and mechanical task of forwarding a record of trial for appellate review violated the Appellant’s right to a speedy post-trial review.

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Tuesday, October 24, 2006 (audio--all cases)

9:00 a.m.

United States v.	Keith M. Terry	No. 06-0314/AF
(Appellee)	(Appellant)

Counsel for Appellant: Maj Sandra K. Whittington, USAF
Counsel for Appellee: Capt Kimani R. Eason, USAF

Case Summary: GCM conviction of disobeying a no-contact order and rape. Granted issues question: (I) whether the military judge abused her discretion in denying two challenges for cause; and (II) whether the military judge abused her discretion by giving a constructive force instruction over objection.

10:00 a.m.

United States v.	Kirk V. Briggs	No. 06-0178/AF
(Appellee)	(Appellant)

Counsel for Appellant: Capt Timothy M. Cox, USAF
Counsel for Appellee: LtCol Robert V. Combs, USAF

Case Summary: GCM conviction of larceny and selling military property. Granted issue questions whether the military judge erred in denying Appellant’s challenge for cause against Captain H.

NOTE: Counsel for each side will be allowed 15 minutes to present oral argument in this case.

10:30 a.m.

United States v.	Jose A. Cossio	No. 06-6005/AF
(Appellee)	(Appellant)

Counsel for Appellant: Lt Col Robert V. Combs, USAF
Counsel for Appellee: Capt John S. Fredland, USAF

Case Summary: GCM prosecution for violation of a lawful general regulation, disrespect to a superior commissioned officer, failure to obey a lawful order, wrongfully solicit computer network user identification and password information, and knowingly and falsely pretend to be an employee acting under the authority of department of the U.S. Pursuant to defense motion, the military judge dismissed the charges for lack of speedy trial. The government appealed under Article 62, UCMJ, and the Air Force Court of Criminal Appeals reversed the decision of the Military Judge. Granted issue questions: whether the military judge erred in granting Appellant’s motion to dismiss based on a denial of his right to a speedy trial under Article 10, UCMJ.

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Wednesday, October 25, 2006 (audio--all cases)

9:00 a.m.

United States v.	David D. Tate	No. 06-0291/NA
(Appellee)	(Appellant)

Counsel for Appellant: LT Brian L. Mizer, JAGC, USN
Counsel for Appellee: Maj Brian K. Keller, USMC

Case Summary: GCM conviction of premeditated murder, adultery, conspiracy to commit obstruction of justice, making a false official statement, obstruction of justice, and sodomy. Granted issue questions whether the pretrial agreement violated Rule for Courts-Martial 705(c) by denying Appellant the post-trial right to seek clemency and parole.

10:00 a.m.

United States v.	Richard C. Foster	No. 06-0238/NA
(Appellee)	(Appellant)

Counsel for Appellant: Capt Jeffrey S. Stephens, USMC
Counsel for Appellee: Maj Kevin C. Harris, USMC

Case Summary: GCM conviction of indecent acts with a child and communicating a threat. Granted issue questions whether the Navy-Marine Corps Court of Criminal Appeals erred to the substantial prejudice of Appellant when it ruled that the military judge did not become a partisan advocate for the Government, and that the military judge’s treatment of the defense expert did not deny Appellant’s right to present a defense.