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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001
Tuesday, December 2, 2008
9:00 a.m.
United States v.
Phillip R. Brown No. 08-0261/AR (Appellee) (Appellant) (audio) Counsel for Appellant: Lt Col Jonathan Potter, JA, USA
Counsel for Appellee: Capt Larry W. Downend, JA, USACase Summary: GCM conviction of rape, extortion, assault with a deadly weapon, indecent acts, adultery, making a false official statement, larceny, disobeying a no-contact order, and communicating a threat. Granted issue questions whether the phrase “with intent unlawfully to obtain an advantage, to wit: sexual relations,” in the specification of charge II states the offense of extortion in light of the provision in the Manual for Courts-Martial that provides that “an intent to make a person do an act against that person’s will is not, by itself, sufficient to constitute extortion.” See Manual for Courts-Martial, United States, Pt. IV, Para. 53.c. (94) (2005 Ed.).
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
Followed by:
United States v.
Chad M. McCracken No. 08-0440/MC (Appellee) (Appellant) (audio) Counsel for Appellant: LT Gregory W. Manz, JAGC, USN
Counsel for Appellee: Col Louis J. Puleo, USMCCase Summary: GCM conviction of indecent assault, adultery, and drunk and disorderly conduct. The Court of Criminal Appeals modified the guilty finding of indecent assault to indecent acts with another, and reduced the period of confinement from one year to six months. Granted issues question: (1) whether the lower court erred by affirming a lesser-included offense based on a theory of criminality not presented by the Government at trial; and (2) whether the lower court erred in reassessing Appellant’s sentence instead of remanding the case for a sentence rehearing.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
9:00 a.m.
United States v.
Matthew W. Gladue No. 08-0452/AF (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Tiffany M. Wagner, USAF
Counsel for Appellee: Capt Naomi N. Porterfield, USAFCase Summary: GCM conviction of wrongful transportation of a firearm, communicating threats, conspiracy to commit murder, impeding a trial, solicitation of murder, and attempted conspiracy to commit murder. Granted issue questions whether the lower court erred when it found that a provision in Appellant’s pretrial agreement to “waive all waivable motions” was an express waiver that bars Appellant from asserting any claims of multiplicity or multiplication of charges on appeal.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
Followed by:
United States v.
Eddie J. Roger No. 08-0518/AF (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Lance J. Wood, USAF
Counsel for Appellee: Col Gerald R. Bruce, USAFCase Summary: GCM conviction of cocaine use. Granted issue questions whether the military judge erred in denying Appellant’s motion to suppress his hair test results.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
9:00 a.m.
United States v.
Robert B. Clayton No. 08-0417/AR (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Kathleena R. Scarpato, JA, USA
Counsel for Appellee: Maj Dana E. Leavitt, JA, USACase Summary: GCM conviction of use and possession of marijuana with intent to distribute, obstruction of justice, reckless driving, assault, and fleeing apprehension. Granted issues question: (1) whether the civilian police drug seizure report in this case is a report setting forth “matters observed by police officers . . . acting in a law enforcement capacity, ” and, if so, whether it was properly admitted under M.R.E. 803 (6) (business record exception), when it would not be admissible under M.R.E. 803 (8) (public records exception). Compare, e.g., United States v. Oates, 560 F.2d 45, 77-78 (2d Cir. 1977) (holding that police records that would be inadmissible under the public exception against the accused would also be inadmissible under any other exception to the hearsay rule) with United States v. Hayes, 861 F.2d 1225, 1230 (10th Cir. 1988) (Holding that there is no limitation to the business record exception if the author of the proffered document testifies at trial; and (2) if the military judge abused her discretion in admitting the police drug seizure report, whether the error materially prejudiced Appellant’s substantial rights?
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
Followed by:
United States v.
Richard M. Dean No. 08-0431/AR (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Richard P. Pizur, JA, USA
Counsel for Appellee: Lt Col Francis C. Kiley, JA, USACase Summary: GCM conviction of arson, larceny unlawful entry, and burglary. Granted issue questions whether the military judge erred by permitting the convening authority to withdraw from his pretrial agreement with Appellant despite Appellant beginning performance of promises contained in the agreement.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
9:00 a.m.
United States v.
Kimberly L. Collier No. 08-0495/NA (Appellee) (Appellant) (audio) Counsel for Appellant: LT W.S. Stoebner, JAGC, USN
Counsel for Appellee: Col Louis J. Puleo, USMCCase Summary: SPCM conviction of larceny of military property, and obstruction of justice. Granted issue questions whether the military judge abused his discretion by excluding, pursuant to M.R.E. 403, relevant evidence of a prior homosexual relationship between Appellant and a central government witness offered by the defense to show bias and motive to misrepresent on the part of the government witness.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
Followed by:
United States v.
Juan J. Campos No. 08-0409/NA (Appellee) (Appellant) (audio) Counsel for Appellant: Maj Christian J. Broadston, USMC
Counsel for Appellee: LT Elliot W. Oxman, JAGC, USNCase Summary: GCM conviction of possession of child pornography, and receiving child pornography in violation of 18 U.S.C. § 2252A. Granted issue questions whether it was plain error for the military judge to admit at sentencing a stipulation of expert testimony pertaining to sex offender treatment in military correctional facilities where the expert, who did not personally evaluate Appellant, opined generally about minimal and optimal terms of confinement for a person detected of possessing child pornography.
NOTE: Counsel for each side will be allowed 20 minutes to present oral argument in this case.
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