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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 27, 2010

9:30 a.m.

United States v.	Joshua C. Blazier	No. 09-0441/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Maj Marla J. Gillman, USAF
Counsel for Appellee: Gerald R. Bruce, Esq.

Case Summary: GCM conviction of dereliction of duty and wrongful use of controlled substances. On October 29, 2009, this Court granted Appellant’s petition for review on the issue of whether, in light of Crawford v. Washington, 541 U.S. 36 (2004), Appellant was denied meaningful cross-examination of government witnesses in violation of his Sixth Amendment right of confrontation when the military judge did not compel the government to produce essential Brooks Lab officials who handled Appellant’s urine samples and instead allowed the expert toxicologist to testify to non-admissible hearsay. See Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009). On March 23, 2010, this Court issued an opinion holding that the drug testing reports contained testimonial evidence, United States v. Blazier, 68 M.J. 439 (C.A.A.F. 2010), and ordered further briefing on the issues of (1) whether the Confrontation Clause was nevertheless satisfied by testimony from Dr. Papa; See, e.g., Pendergrass v. Indiana, 913 N.E.2d 703, 707–08 (Ind. 2009). But see, e.g., State v. Locklear, 363 N.C. 438, 681 S.E.2d 293, 304–05 (2009); or (2) if Dr. Papa’s testimony did not itself satisfy the Confrontation Clause, whether the introduction of testimonial evidence nevertheless harmless beyond a reasonable doubt under the circumstances of this case if he was qualified as, and testified as, an expert under M.R.E. 703 (noting that “[i]f of a type reasonable relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the expert relied] need not be admissible in evidence in order for the opinion or inference to be admitted”); Compare, e.g., United States v. Turner, 591 F.3d 928, 933–34 (7th Cir. 2010), and United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008), with United States v. Meija, 545 F.3d 179, 197–98 (2d Cir. 2008).

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

Followed by:

United States v.	Dennis R. Savard	No. 10-0334/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Dwight H. Sullivan, Esq.
Counsel for Appellee: Maj Coretta E. Gray, USAF

Case Summary: GCM conviction of making false official statements and larceny of military property. Granted issue questions whether the military judge erred by denying two written defense motions without holding defense-requested Article 39(a) sessions despite R.C.M. 905(h), which provides that “upon request, either party is entitled to an Article 39(a) session to present oral argument or have an evidentiary hearing concerning the disposition of written motions.”

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

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Tuesday, September 28, 2010

9:30 a.m.

United States v.	Jose Medina	No. 10-0262/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Michael D. Berry, USMC
Counsel for Appellee: CDR Paul D. Bunge, JAGC, USN

Case Summary: GCM conviction of willful dereliction of duty, aggravated sexual assault, and assault consummated by battery. Granted issue questions whether the lower court erred in holding that Article 120(c)(2), UCMJ, is not facially unconstitutional.

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

Followed by:

United States v.	Stephen A. Prather	No. 10-0345/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Maj David P. Bennett, USAFR
Counsel for Appellee: Capt Naomi Porterfield, USAF

Case Summary: GCM conviction of aggravated sexual assault and adultery. Granted issue questions whether the elimination of the element of lack of consent combined with the shifting of the burden to prove consent, by a preponderance of the evidence, to the accused in order to raise an affirmative defense to aggravated sexual assault under Article 120, UCMJ, where Appellant allegedly engaged in sexual intercourse with a person who was substantially incapacitated, is a violation of Appellant’s right to due process under the 5th Amendment of the U.S. Constitution.

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