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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001
Wednesday, October 15, 2008
9:00 a.m.
United States v.
Linwood W. Burton, Jr No. 07-0848/AF (Appellee) (Appellant) (audio) Counsel for Appellant: Mary T. Hall, Esq.
Counsel for Appellee: Maj Donna S. Rueppell, USAFCase Summary: GCM conviction of rape, sodomy, and indecent acts. Granted issues question: (1) whether the trial counsel engaged in improper argument when he argued that Appellant demonstrated a propensity to engage in sexual assault; and (2) assuming arguendo that it was not improper for trial counsel to argue that Appellant had the propensity to commit sexual assaults, whether the military judge erred by failing to give an additional instruction on the use of propensity evidence.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case
Followed by:
United States v.
Daniel J. Brown No. 08-0260/AF (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Lance J. Wood, USAF
Counsel for Appellee: Maj Matthew S. Ward, USAFCase Summary: GCM conviction of possession of child pornography. Granted issue questions whether the evidence on the element of service-discrediting conduct was legally sufficient when: (1) the sexually explicit content at issue involved virtual minors; (2) the images of virtual minors were viewed on Appellant’s privately-owned computer, and (3) Appellant’s activity was known only to law enforcement personnel involved in the investigation. See U.S. v. Mason, 60 M.J. 15 (2004), and U.S. v. O’Connor, 58 M.J. 450 (2003).
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case
9:00 a.m.
United States v.
Brendan C. Forney No. 05-0647/NA (Appellee) (Appellant) (audio) Counsel for Appellant: Eugene R. Fidell, Esq.
Counsel for Appellee: LT Elliot W. Oxman, JAGC, USNCase Summary: GCM conviction of conduct unbecoming an officer and a gentleman, and possessing child pornography. Granted issue questions whether Appellant’s Article 133 conviction can be sustained even though he pleaded not guilty and the Specification on which he was tried expressly rested on a statute that the Supreme Court has found unconstitutional.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
9:30 a.m.
United States v.
Edward S. Macomber No. 08-0072/AF (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Tiaundra D. Sorrell, USAF
Counsel for Appellee: Capt Coretta E. Gray, USAFCase Summary: GCM conviction of receiving and possessing child pornography. Granted issue questions whether the military judge erred in denying Appellant’s motion to suppress because the military magistrate had no probable cause to issue the search.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case. This case will be heard at Washburn University School of Law, Topeka, Kansas, as part of Project Outreach.
3:00 p.m.
United States v.
Christopher R. Miller No. 08-0307/AF (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Tiaundra Sorrell, USAF
Counsel for Appellee: Col Gerald R. Bruce, USAFCase Summary: GCM conviction of attempted indecent liberties and attempted indecent language with a child. Granted issue questions whether Appellant’s conviction of attempted indecent liberties with a child is legally sufficient when Appellant was never in the physical presence of the purported child, but was convicted on the basis of his sending her a contemporaneous video of his performing a solitary sexual act via the Internet.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case. This case will be heard at Fort Riley, Kansas, as part of Project Outreach.
9:00 a.m.
United States v.
Julian R. Yanger No. 08-5006/CG (Appellee) (Appellant) (audio) Counsel for Appellant: LCDR Brian K. Koshulsky, USCG
Counsel for Appellee: LT Robert M. Pirone, USCGCase Summary: GCM conviction of wrongful use of cocaine and involuntary manslaughter. Certified issue questions whether the Coast Guard Court of Criminal Appeals erred by finding that the accused raised sufficient facts during the plea inquiry requiring the military judge to explain self-defense.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
Followed by:
United States v.
Michael C. Dipaola No. 08-0200/NA (Appellee) (Appellant) (audio) Counsel for Appellant: Capt S. B. Kaza, USMC
Counsel for Appellee: LT Derek D. Butler, JAGC, USNCase Summary: GCM conviction of making a false official statement, and indecent assault. Granted issue questions whether the military judge erred when he refused to instruct the members on the defense of mistake of fact as to Specification 2 of Charge II (indecent assault).
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
9:00 a.m.
Dwight J. Loving v.
United States No. 06-8006/AR (Petitioner) (Respondent) (audio) Counsel for Petitioner: Teresa L. Norris, Esq.
Counsel for Respondent: Capt Adam Kazin, JA, U.S. ArmyCase Summary: This is a capital case that this Court affirmed on direct appeal. The Supreme Court of the United States granted certiorari and affirmed this Court’s decision. Petitioner filed a petition for extraordinary relief in the nature of a writ of habeas corpus. This Court returned the record to the Judge Advocate General of the Army for remand to the convening authority to order a DuBay hearing. The record of that proceeding and the findings of fact and conclusions of law of the DuBay judge have been returned to the Court. The Court ordered counsel to brief and argue (1) whether the record of the DuBay hearing should be returned to the Judge Advocate General of the Army for remand to the convening authority and/or the Army Court of Criminal Appeals for review prior to review by this Court, and (2) whether Petitioner’s writ of habeas corpus should issue in view of the findings and fact and conclusions of law entered by the military judge in the DuBay proceeding on the question of whether the trial defense team conducted a reasonable investigation into potential evidence in mitigation and provided effective assistance of counsel at sentencing.
NOTE: Counsel for each side will be allotted 30 minutes to present oral argument in this case.
Followed by:
United States v.
Demetrius R. Crudup No. 08-0392/AR (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Jeremy Stephens, JA, U.S. Army
Counsel for Appellee: Capt James L. Ndiaye, JA, U.S. ArmyCase Summary: GCM conviction of assault, resisting apprehension, making a false official statement, and making a false official record. Granted issue questions whether, after finding a proper Sixth Amendment Confrontation Clause violation in the admission of P.C.’s statements, the Army court erred when it held the error was nonetheless harmless.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
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