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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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Tuesday, January 10, 2012

9:30 a.m.

United States v.	Scott M. Dease	No. 12-6001/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Nathan A. White, USAF (supplement)
Counsel for Appellee:  Capt Joseph J. Kubler, USAF (answer)

Case Summary:  GCM prosecution for wrongful use and possession of intoxicating substances other than alcohol, operating a vehicle while under the influence of cocaine, wrongful use of cocaine and wrongful use of spice. At trial, the military judge granted a defense motion to suppress the results of a urinalysis test. The prosecution appealed under Article 62, UCMJ, and the Air Force Court of Criminal Appeals reversed. Granted issue questions whether the Air Force Court of Criminal Appeals erred by finding that Appellant had abandoned his urine and had no expectation of privacy where he consented to the seizure of his urine and then revoked consent prior to the search of Appellant's urine.

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

Followed by:

United States v.	Kody T. Weeks	No. 11-0526/AF
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Maj Daniel E. Schoeni, USAF (brief) (reply brief)
Counsel for Appellee: Maj Scott C. Jansen, USAF (brief)

Case Summary:  GCM conviction of larceny, forgery, and disobeying a no-contact order. Granted issue questions whether Appellant's guilty plea to forgery is improvident because Appellant did not falsely make or alter a signature or writing.

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

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Wednesday, January 11, 2012

9:30 a.m.

United States v.	Nicholas S. Stewart	No. 11-0440/MC
(Appellee)	(Appellant)	(audio)

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

Case Summary:  GCM conviction of aggravated sexual assault. Granted issues question (1) under United States v. Prather, is it legally possible for the prosecution to disprove an affirmative defense beyond a reasonable doubt once the military judge has determined that the defense has been proved by a preponderance of the evidence and, if not, is the military judge required to enter a finding of not guilty in such a case under RCM 917; (2) whether the Navy-Marine Corps Court of Criminal Appeals erred in finding the evidence factually sufficient beyond a reasonable doubt to sustain Appellant's conviction under Specification 2 because in doing so it violated the Prather legal-impossibility principle and impermissibly found as facts allegations that he was found not guilty of in Specification 1; and (3) whether the military judge committed prejudicial error by requiring the defense to present evidence on the defense of consent at an Article 39 (a) session prior to trial.

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

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Tuesday, January 24, 2012

9:30 a.m.

United States v.	Christopher A. Barberi	No. 11-0462/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: William E. Cassara, Esq. (brief) (reply brief)
Counsel for Appellee:  Capt Stephen E. Latino, JA, USA (brief)

Case Summary:  GCM conviction of sodomy and possession of child pornography. Granted issue questions whether the general verdict of guilt rested on conduct that was constitutionally protected, in that at least one of the six images presented to the members was not child pornography..

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

Followed by:

United States v.	Willie A. Bradley	No. 11-0399/NA
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Maj Jeffrey R. Liebenguth, USMC (brief)             -----------------------------------------(reply brief)
Counsel for Appellee:  Capt Samuel C. Moore, USMC (brief)

Case Summary:  GCM conviction of aggravated assault and reckless endangerment. Granted issues question 1) In Bradley I, this Court ruled that its application of waiver to Appellant's disqualification-of-trial-counsel claim did not render his pleas improvident where there was no ineffective assistance of counsel (IAC) claim and only a possibility that he believed the disqualification claim was preserved for appeal. On remand, Appellant claimed IAC and presented evidence that he did believe his disqualification issue was preserved. Did NMCCA err in holding that it was bound by this Court's ruling that Appellant's pleas were provident? 2) Appellant's civilian counsel erroneously advised him that his denied motion to disqualify trial counsel from further participation in the case was preserved for appeal despite unconditional pleas. Did NMCCA err in finding that civilian counsel's erroneous advice was reasonable, and therefore not deficient? and 3) On remand, did NMCCA violate the law of the case doctrine by finding that even if the trial judge erred by not disqualifying trial counsel – which the Bradley I Court found he had – Appellant was not prejudiced – which the Bradley I Court found he was?

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