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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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Wednesday, April 6, 2011

2:00 p.m.

United States v.	David J. Phillips	No. 11-0148/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: LT Michael R. Torrisi, JAGC, USN
Counsel for Appellee: Capt Robert Eckert, USMC

Case Summary: GCM conviction of larceny and possession of child pornography.  Granted issues question 1) whether, in a prosecution for possession of child pornography under Clause 2 of Article 134, UCMJ, the Government must prove that the charged conduct was of a nature to bring discredit upon the Armed Forces, and did the lower court’s holding that possession of child pornography by a uniformed member of the Armed Forces is per se service discrediting violate the fundamental tenet of criminal law that the Government must prove every element of an offense beyond a reasonable doubt, and 2) whether the evidence is legally sufficient to sustain Appellant’s conviction for possession of child pornography under Clause 2 of Article 134, UCMJ, where Appellant’s conduct took place in private, was not discovered by any member of the public or military, and was investigated by two Department of Defense employees who specialize in investigating crimes committed by service members.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.  This case will be heard at the University of the Pacific, McGeorge School of Law,  3200 Fifth Avenue, Sacramento, California, as part of Project Outreach.

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Thursday, April 7, 2011

4:00 p.m.

United States v.	Harley T. Lusk	No. 11-0166/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant:Capt Phillip T. Korman, USAF
Counsel for Appellee: Gerald R. Bruce, Esq.

Case Summary: SPCM conviction of wrongful use of cocaine.  Granted issues question: 1) whether the military judge erred in admitting Dr. Smith’s testimony of AFIP drug test result under Mil.R.Evid. 703 in violation of the Confrontation Clause; 2) whether the AFCCA erred in finding that the military judge’s failure to give a limiting instruction regarding admission of the AFIP retest result was harmless beyond a reasonable doubt; and 3) whether the AFCCA erred, after finding testimonial evidence had been improperly admitted at trial, by concluding that the trial error was harmless beyond a reasonable doubt.  A specified issue questions whether the defense counsel’s failure to object to the AFDTL drug testing report waived or forfeited the Confrontation Clause issue with respect to that report, and if the issue was forfeited, whether the admission of that report constituted plain error, and if the admission constituted plain error, whether the admission was harmless.  See United States v. Campos , 67 M.J. 330 (C.A.A.F. 2009); United States v. Harcrow, 66 M.J. 154 (C.A.A.F. 2008).

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.  This case will be heard at the Stanford University School of Law, 559 Nathan Abbott Way, Stanford, California, as part of Project Outreach.

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Thursday, April 21, 2011

9:00 a.m.

United States v.	Shawn R. Hull	No. 11-0131/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Maj Darrin K. Johns, USAF
Counsel for Appellee: Capt Joseph J. Kubler, USAF

Case Summary: GCM conviction of rape, adultery, and dereliction of duty.  Granted issue questions whether the staff judge advocate erred in advising the convening authority, pursuant to RCM 1106, that no new trial was warranted, and whether the convening authority erred by failing to order a new trial despite the staff judge advocate’s acknowledgement that Appellant had presented new evidence that fell within the parameters of RCM 1210.

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

Followed by:

United States v.	Daniel A. Zarbatany, Jr.	No. 11-0165/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Major Reggie D. Yager, USAF
Counsel for Appellee: Capt Scott C. Jansen, USAF

Case Summary: GCM conviction of absence from place of duty, use of cocaine and marijuana. Granted issues question: 1) whether the AFCCA erred in finding that illegal confinement credit, awarded pursuant to Article 13, UCMJ, cannot be applied towards a punitive discharge; and 2) whether the  AFCCA erred by failing to give meaningful relief where Appellant had 445 days of illegal pretrial confinement credit in excess of his approved sentence to confinement.

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