YOU ARE HERE: HOME > HEARING CALENDAR > SEPTEMBER 2011 TERM > DECEMBER 2011

United States Court of Appeals
for the Armed Forces
450 E Street, Northwest Washington D.C. 20442-0001

---

Monday, December 12, 2011

9:30 a.m.

United States v.	Michael D. King, Jr.	No. 11-0583/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Bow Bottomly, USMC (brief)
Counsel for Appellee:  Maj Paul M. Ervasti, USMC (brief)

Case Summary:  GCM conviction of indecent acts with a child and aggravated assault. Granted issue questions whether Specification 5 of Charge I alleging an indecent act under Article 120 (k), UCMJ, failed to state an offense where the indecent act alleged was Appellant orally requesting during a Skype internet conversation that a child under the age of 16 years expose her breasts so that he could view them utilizing the web camera.

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

Followed by:

United States v.	Alexander M. Watson	No. 11-0523/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Major Jeffrey R. Liebenguth, USMC (brief)
                                  ----------------------------------------- (reply brief)
Counsel for Appellee: Capt Robert E. Eckert, USMC (brief)

Case Summary:  GCM conviction of fraudulent enlistment, AWOL, communicating a threat, possessing a loaded firearm with the intent to murder, indecent language and possession of child pornography. Granted issues question (1) whether Appellant's guilty plea to fraudulent enlistment was provident; and (2) whether an Article 134 clause 1 or 2 Specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court's holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court's recent opinions in Medina, Miller, and Jones.

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

---

Tuesday, December 13, 2011

9:30 a.m.

United States v.	Darrian S. Nealy	No. 11-0615/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Kristin B. McGrory, JA, USA (brief)
                                    ----------------------------------------- (reply brief)
Counsel for Appellee: Capt Kenneth W. Borgnino, JA, USA (brief)

Case Summary:  GCM conviction of disobeying an order, assault with a deadly weapon, using provoking speech, and communicating a threat. Granted issues question (1) whether Appellant's conviction of using provoking speech as a lesser included offense can be sustained when Appellant was charged with communicating a threat. See United States v. Jones, 68 M. J. 465 (C.A.A.F. 2010); and (2) whether an Article 134 clause 1 or 2 Specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court's holdings in the United States v. Resendiz-Ponce and Russell v. United States, and this Court's recent opinions in Medina, Miller, and Jones.

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

Followed by:

United States v.	Anthony P. Ballan	No. 11-0413/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: LT Toren G. E. Mushovic, JAGC, USN (brief)
                             --------------------------------------------- (reply brief)
Counsel for Appellee:  Capt Samuel C. Moore, USMC (brief)

Case Summary: GCM conviction of indecent acts with a child, sodomy with a child and indecent acts with another. Granted issues question (1) whether an Article 134 clause 1 or 2 Specification that fails to expressly allege either potential terminal element states an offense under the Supreme Court's holdings in United States v. Resendiz-Ponce and Russell v. United States, and this Court's recent opinions in Medina, Miller, and Jones; and (2) although the crime of indecent acts with a child to which Appellant pleaded guilty was not a lesser included offense of the charged crime of rape of a child and thus had not been formally referred to trial by court-martial by the convening authority, whether Appellant waived such irregularity by pleading guilty under a pretrial agreement to indecent acts with a child in violation of Article 134, where neither the pretrial agreement nor Appellant's plea at arraignment expressly set forth either potential terminal element for an Article 134 clause 1 or 2 Specification, but both elements were discussed and admitted during the providence inquiry.

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