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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, September 21, 2009

9:30 a.m.

United States v.	Raymond L. Neal	No. 09-5004/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: LT Dillon J. Ambrose, JAGC, USN
Counsel for Appellee: Maj Elizabeth A. Harvey, USMC

Case Summary: At trial, the military judge granted a defense motion to dismiss the sole charge of aggravated sexual contact by using force under the revised Article 120, UCMJ. The government appealed the ruling of the military judge under Article 62, UCMJ. The Court of Criminal Appeals reversed the ruling of the military judge in a number of respects and granted the government’s appeal. The Judge Advocate General of the Navy certified the following issues: (1) whether the Navy-Marine Corps Court of Criminal Appeals erred in finding that it had jurisdiction over this Article 62, UCMJ, appeal, where the appeal was taken after the case was adjourned and the members dismissed; (2) despite the language of Article 120(r), UCMJ, whether the Navy-Marine Corps Court of Criminal Appeals correctly held that the Article does not prohibit the accused from introducing evidence of consent in order to negate an element of the offense; (3) concerning the affirmative defense set forth in Article 120(t)(16), whether the Navy-Marine Corps Court of Criminal Appeals correctly held that Congress constitutionally allocated, to the accused, the burden of proving consent by a preponderance of the evidence; (4) whether the Navy-Marine Corps Court of Criminal Appeals correctly held that “lack of consent” is not an implicit element of Article 120 crimes, including the charged offense, given the definition of “force” in Article 120(t)(5), and thus Article 120, UCMJ, does not unconstitutionally shift the burden to the accused to “disprove an element of the offense;” (5) whether the Navy-Marine Corps Court of Criminal Appeals correctly held that the evidence triggered the affirmative defense of consent as defined in Article 120(t)(16), UCMJ, despite the fact that the Appellant failed to acknowledge the objective acts of the alleged offense; and (6) whether the final two sentences of Article 120(t)(16), UCMJ, which allows for consideration as to whether the government has disproved the affirmative defense of consent beyond a reasonable doubt, after the accused has proved the defense by a preponderance of the evidence, create a legally impossible burden allocation.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.

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Tuesday, September 22, 2009

9:30 a.m.

United States v.	Ryan G. Anderson	No. 08-0344/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Eugene Fidell, Esq.
Counsel for Appellee: Capt Stephanie R. Cooper, JA, USA

Case Summary: GCM conviction of attempting to give intelligence to the enemy, communicating with Al Qaeda, attempting to aid enemy, and providing information to the enemy. Granted issues question: (1) should the military judge have dismissed Charge III as preempted, multiplicious, and an unreasonable multiplication of charges; and the additional charge as multiplicious with Charge I, Specification 1, and an unreasonable multiplication of charges with Charge I, Specification 2?; and (2) was Appellant afforded a fair trial even though his request for a forensic psychiatrist was denied and the government thereafter availed itself of a forensic psychiatrist and attacked the qualifications of the very expert it did make available to the defense?

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.

Followed by:

United States v.	Neil S. Lubasky	No. 09-0043/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: William E. Cassara, Esq.
Counsel for Appellee: Maj Terersa T. Phelps, JA, USA

Case Summary: GCM conviction of larceny and conduct unbecoming of an officer. Granted issues question: (1) whether Appellant committed larcenies of M.S.’S property by engaging in the unauthorized use of her credit, debit, and ATM cards; and (2) whether a variance as to ownership in larceny cases is fatal if there is legally sufficient evidence that Appellant still committed a larceny of property.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.

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Wednesday, September 23, 2009

9:30 a.m.

United States v.	Brandon T. Rose	No. 09-5003/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Maj Michael A. Burnat, USAF
Counsel for Appellee: Capt Coretta E. Gray, USAF

Case Summary: GCM conviction of attempted larceny, violation of a lawful order, drunk driving, forgery, housebreaking, and obstructing justice. Granted issues question: (1) whether the Air Force court of criminal appeals erred in denying the United States’ request that the court order an affidavit from Appellee’s original military defense counsel; and (2) whether an “impression” left by civilian defense counsel that Appellee may not have to register as a sex offender amounted to an affirmative misrepresentation and led to Appellee receiving ineffective assistance of counsel.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.

Followed by:

United States v.	Willie A. Bradley	No. 09-5002/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: LT Timothy H. Delgado, JAGC, USN
Counsel for Appellee: LT Brian D. Korn, JAGC, USN

Case Summary: GCM conviction of assault with means likely to cause death or grievous bodily injury, more specifically, assault with a dangerous weapon, and engaging in wrongful and reckless conduct by discharging a loaded firearm at a vehicle. Granted issue questions whether Appellee waived the issue of the disqualification of the trial counsel by his unconditional guilty pleas.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument in this case.