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United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001
Monday, January 7, 2008
9:00 a.m.
United States v.
Dustin M. Hart No. 07-0247/AF (Appellee) (Appellant) (audio) Counsel for Appellant: Maj Shannon A. Bennett, USAF
Counsel for Appellee: Capt Jason M. Kellhofer, USAFCase Summary: GCM conviction of possession, use and distribution of controlled substances. Granted issue questions whether the charge and specifications should be dismissed for a lack of personal jurisdiction.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
Followed by:
United States v.
Michael C. Miller No. 07-5004/AF (Appellee) (Appellant) (audio part 1, pt 2) Counsel for Appellant: Capt Jamie L. Mendelson, USAF
Counsel for Appellee: Dwight H. Sullivan, Esq.Case Summary: At trial, the military judge granted a defense motion to suppress the results of the urinalysis and the subsequent statement of the accused. The government appealed the ruling of the military judge under Article 62, UCMJ, however, the Court of Criminal Appeals dismissed the appeal. The court concluded that the testimony supported the finding of the military judge that the accused’s urine sample was not taken pursuant to a valid inspection because the officer who issued the order did not have the authority to do so. The Judge Advocate General of the Air Force certified the issue of whether the military judge abused his discretion in granting the defense motion to suppress all evidence resulting from the urinalysis test.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
9:00 a.m.
United States v.
Tom K. Holbrook No. 07-0350/CG (Appellee) (Appellant) (audio) Counsel for Appellant: LCDR Necia L. Chambliss, USCGR
Counsel for Appellee: LCDR Patrick M. Flynn, USCGCase Summary: SPCM conviction of fraudulent enlistment, false official statement, damage to military property, reckless driving, use of marijuana and cocaine, wrongful introduction of marijuana and cocaine, distribution of cocaine and marijuana, leaving the scene of an accident, and communicating a threat. Granted issue questions whether Appellant’s plea to fraudulent enlistment (Charge I) was improvident because the military judge failed to elicit facts sufficient to establish that Appellant knew he lied about a material fact relevant to his qualifications for enlistment.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
Followed by:
United States v.
Anthony T. Hall No. 07-0384/MC (Appellee) (Appellant) (audio) Counsel for Appellant: Capt S. Babu Kaza, USMC
Counsel for Appellee: LT Timothy H. Delgado, JAGC, USNCase Summary: GCM conviction of maiming, and making a false official statement. Granted issues question: (1) whether the lower court erred in stating that Appellant had received a dishonorable discharge at trial, when the members sentenced him to a bad-conduct discharge, and the convening authority approved only a bad-conduct discharge; (2) whether the lower court erred in finding that the military judge’s decision to allow, over defense objection, a nonexpert NCIS agent to provide expert testimony to the members was harmless, where this was in violation of Military Rule of Evidence 701(c), and the Government has conceded that this testimony was both material to its case and was of high quality.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
9:00a.m.
United States v.
Brandon M. Dacus No. 07-0612/AR (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Patrick B. Grant, JA, USA
Counsel for Appellee: Capt W. Todd Kuchenthal, JA, USACase Summary: GCM conviction of aggravated assault and adultery. Granted issue questions whether the military judge abused his discretion by accepting Appellant’s guilty pleas to specifications 1 and 2 of Charge I, aggravated assault, where Appellant did not admit facts that objectively supported his pleas during the providence inquiry, and introduced evidence that is substantially inconsistent with his pleas during presentencing.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
Monday, January 14, 20089:00a.m.
United States v.
Christopher M. Upham No. 07-0322/CG (Appellee) (Appellant) (audio) Counsel for Appellant: Frank J. Spinner, Esq.
Counsel for Appellee: LT Ronald Seely, USCGCase Summary: GCM conviction of assault with a means or force likely to produce grievous bodily harm and conduct unbecoming an officer. Granted issues question: (1) whether the Coast Guard Court of Criminal Appeals erred in applying a Chapman-type harmless-error analysis as opposed to a structural-type error analysis after it concluded that the military judge committed an error of constitutional dimension when he instructed the members that a person who has engaged in uninformed and unprotected sexual intercourse while HIV positive has committed an offensive touching; and (2) whether, after the Coast Guard Court of Criminal Appeals set aside a conviction of the greater offense of aggravated assault, the Court was prohibited from affirming a conviction of the lesser included offense of assault consummated by a battery where both parties had affirmatively waived any instruction on the lesser included offense and the military judge did not instruct the members on the lesser included offense.
NOTE: Counsel for each side will be allotted 30 minutes to present oral argument in this case.
Followed by:
United States v.
Allen S. Harris No. 07-0508/MC (Appellee) (Appellant) (audio) Counsel for Appellant: LT Heather L. Cassidy, JAGC, USN
Counsel for Appellee: Maj James W. Weirick, USMCCase Summary: GCM conviction of assault and assault with a deadly weapon. Granted issue questions whether the lower Court erred by failing to award Appellant additional confinement credit or other meaningful relief due to the unduly rigorous brig conditions and the improper denial of necessary medical care.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
9:00 a.m.
United States v.
Rodger J. Day No. 07-0690/AF (Appellee) (Appellant) (no audio available) Counsel for Appellant: Capt Vicki A. Belleau, USAF
Counsel for Appellee: Maj Matthew S. Ward, USAFCase Summary: GCM conviction of making a false official statement, reckless endangerment, and obstruction of justice. Granted issue questions whether the evidence is legally insufficient to sustain Appellant’s conviction of Charge I and its specification, false official statement, Article 107, UCMJ, where the statements were not “official” statements.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
Followed by:
United States v.
Michael Rodriguez No. 07-0685/AF (Appellee) (Appellant) (audio) Counsel for Appellant: Capt Griffin S. Dunham, USAF
Counsel for Appellee: Capt Jason M. Kellhoffer, USAFCase Summary: GCM conviction of use of marijuana on divers occasions, and use of percocet. Granted issue questions since two of three alleged uses of marijuana were based on uncorroborated confessions and Appellant’s conviction for using marijuana on divers occasions was accordingly transformed into a single use conviction by the AFCCA, whether United States v. Seider and United States v. Walters prohibit affirming even a single use of marijuana because the members could have based their “on divers occasions” conviction on the two uncorroborated confessions and found Appellant not guilty of the alleged use now used by the AFCCA to affirm the specification.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
9:00 a.m.
United States v.
Christopher A. Greatting No. 07-0575/MC (Appellee) (Appellant) (audio) Counsel for Appellant: LCDR Kristina B. Reeves, JAGC, USN
Counsel for Appellee: Maj Brian K. Keller, USMCCase Summary: GCM conviction of conspiracy, violation of a general order, making a false official statement and false official records, and using marijuana. Granted issues question: (1) whether the military judge abused his discretion by failing to recuse himself after he presided over four companion cases and when he provided sentencing advice to the Staff Judge Advocate regarding the facts associated with Appellant’s court-martial; and (2) whether the lower court erred by failing to disapprove the bad-conduct discharge when such relief would have directly and reasonably remedied the violation of Appellant’s right to speedy post-trial processing.
NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.
Followed by:
United States v.
Gilbert T. Allende No. 06-0908/NA (Appellee) (Appellant) (audio) Counsel for Appellant: LT Kathleen L. Kadlec, JAGC, USN
Counsel for Appellee: Capt Geoffrey S. Shows, USMCCase Summary: GCM conviction of possession of a deadly weapon, larceny, and obtaining phone services by false pretenses. Granted issues question: (1) whether the lower court properly evaluated prejudice after it found that the trial counsel erroneously authenticated the record; (2) whether the lower court erred in finding no due process violation where 2,484 days elapsed between the adjournment of Appellant’s trial and completion of Article 66, UCMJ, review, including 734 days in panel.
NOTE: Counsel will be allotted 20 minutes to present oral argument in this case.
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