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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, April 2, 2013

9:30 a.m.:

United States v.	Timothy E. Bennitt	No. 12-0616/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Jacob D. Bashore, JA, USA (brief)                     ---------------------------------- (specified issue brief)
Counsel for Appellee:  Capt Kenneth W. Borgnino, JA, USA (brief)
                    -------------------------- (specified issue response brief)

Case Summary: GCM conviction of involuntary manslaughter and distribution and use of oxymorphone and marijuana. Granted issue questions whether Appellant's conviction for involuntary manslaughter under Article 119(b)(2), UCMJ, is legally sufficient because 1) in accordance with United States v. Sargent, 18 M.J. 331 (C.M.A. 1982), Appellant's distribution of oxymorphone was not a crime directly affecting the person under Article 119(b)(2), and 2) even if so, Congress did not intend for Article 119(b)(2) to cover Appellant's misconduct. The specified issue states that in Specification 2 of Charge I, Appellant is charged with unlawfully killing Leah King while aiding and abetting Ms. King's wrongful use of oxymorphone, which is alleged to be an "offense" directly affecting the person of Ms. King. This issue asks must Ms. King's use of oxymorphone be an "offense" to be legally sufficient to support the finding of guilty under Article 119(b)(2)?

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

Followed by:

United States v.	Joseph B. Salyer	No. 13-0186/MC
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: LT David C. Dziengowski, JAGC, USN (brief)                                          ---------------------------------- (reply brief)
Counsel for Appellee: Capt Samuel C. Moore, USMC (brief)

Case Summary: GCM conviction for possession and distribution of child pornography. The granted issue is: Under United States v. Lewis, 63 M.J. 405 (C.A.A.F. 2006), a case is dismissed with prejudice when unlawful command influence results in the recusal of a military judge. Here, the military judge recused himself because he found that the Government's actions made it impossible for him to remain on the case. The Government complained to his supervisor about a ruling, accessed his service record without permission, and with this information, moved for his recusal. Should this case be dismissed with prejudice?

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

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Wednesday, April 3, 2013

9:30 a.m.:

United States v.	Ted C. Squire	No. 13-0061/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: William E. Cassara, Esq. (brief)
Counsel for Appellee:  Capt Edward J. Whitford, JA, USA (brief)

Case Summary: GCM conviction of rape of a child. Granted issue questions whether the Appellant was denied his Sixth Amendment right to confront his accuser when the military judge permitted testimonial hearsay in the form of SL's statement to a physician.

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

Followed by:

United States v.	Maurice S. Wilson	No. 13-0096/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Capt Brandon H. Iriye, JA, USA (brief)
Counsel for Appellee:  Capt Kenneth W. Borgnino, JA, USA (brief)

Case Summary: GCM conviction of distribution of heroin, violation of a lawful order, and introduction of a controlled substance with the intent to distribute. Granted issue questions whether Appellant was denied his right to a speedy trial in violation of Article 10, UCMJ, when the Government failed to act with reasonable diligence in bringing him to trial.

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

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Monday, April 15, 2013

9:30 a.m.:

United States v.	Nicholas R. Schell	No. 13-5001/AR
(Appellant/ Cross-Appellee)	(Appellee/ Cross-Appellant)	(audio)

Counsel for Appellant/Cross-Appellee: Maj Daniel D. Maurer, JA, USA                       -------------------------------- (brief) (Cross-Appellee brief)
Counsel for Appellee/Cross-Appellant: Capt Brandon H. Iriye, JA, USA                      -------------------------------- (brief) (Cross-Appellant brief)

Case Summary:  GCM conviction of attempted indecent language, attempted indecent act and attempted persuasion, inducement or enticement of a minor. The Army Court of Criminal Appeals set aside the conviction of attempted persuasion, inducement or enticement of a minor and affirmed the other convictions. The Judge Advocate General of the Army certified two issues questioning 1) whether the Court of Criminal Appeals erred when it held that the intent element of attempted persuasion, inducement, or enticement requires that the accused intend that the minor ultimately engage in illegal sexual activity as a result of the persuasion, inducement, or enticement, and 2) whether the accused’s unsworn statement during the sentencing phase of the trial was inconsistent with his guilty plea. On a cross-petition, the Court granted review of an issue questioning whether the military judge’s failure to discuss with the accused that the offense of attempted enticement of a minor requires a substantial step toward the commission of the underlying substantive offense provides a substantial basis in law to question the accused’s plea.

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

Followed by:

United States v.	Paul R. Jasper	No. 13-0013/AR
(Appellee)	(Appellant)	(audio)

Counsel for Appellant: Maj Jacob D. Bashore, JA, USA (brief)
Counsel for Appellee: Capt T. Campbell Warner, JA, USA (brief)

Case Summary:  GCM conviction of indecent conduct; indecent acts; possession and receipt of child pornography; persuasion, inducement and enticement of a minor to engage in sexually explicit conduct; and obstruction of justice. The granted issues question: 1) whether the military judge erred when he allowed the accuser to reclaim a regulatory privilege after previously waiving that privilege and disclosing that the accuser admitted fabricating some of the allegations against the Appellant, 2) whether the Court of Criminal Appeals erred when it created a constitutional “knowing” element to MRE 510(a) requiring a privilege holder to be informed of the regulatory privilege in order for the disclosure to be deemed voluntary, 3) whether the Government’s failure to allege the terminal element in Specification 1 of Charge II and the specifications of the Additional Charge resulted in material prejudice to Appellant’s substantial right to notice, and 4) whether the military judge erred in instructing the members that in order to find Appellant guilty of possession of child pornography in violation of Article 134, Clause 1 and 2, the images must be of a child under the age of 18, instead of under the age of 16 as the UCMJ defines child.

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