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NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 10/31/24)

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Tuesday, October 29, 2024

Appeal - Summary Disposition

 

No. 24-0122/AR. U.S. v. Matthew L. Coe. CCA 20220052. On further consideration of the granted issue, __ M.J. __ (C.A.A.F. 2024), and in light of United States v. Mendoza, __ M.J. __ (C.A.A.F. 2024), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record is returned to the Judge Advocate General of the United States Army for remand to the United States Army Court of Criminal Appeals for a new review under Article 66, 10 U.S.C. § 866, Uniform Code of Military Justice (Supp. III 2019- 2022).

 

Order Granting Petition for Review

 

No. 24-0209/AF. U.S. v. Kaye P. Donley. CCA 40350. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER THE GOVERNMENT CAN PROVE THAT 18 U.S.C. § 922 IS CONSTITUTIONAL AS APPLIED TO APPELLANT.

 

No briefs will be filed under C.A.A.F. R. 25.

 

Interlocutory Order

 

No. 24-0089/AF. U.S. v. Nikolas S. Casillas. CCA 40302. On further consideration of the briefs of the parties on the granted issues, __ M.J. __ (C.A.A.F. 2024), it is ordered that counsel for the parties shall file supplemental briefs discussing the effect of United States v. Mendoza, __ M.J. __ (C.A.A.F. 2024) on Issues I, II, and III. The briefs of the parties shall be filed concurrently within 30 days of the date of this order.




Thursday, October 24, 2024

Appeal - Summary Disposition

 

No. 23-0224/AF. U.S. v. Charles S. Nestor. CCA 40250. On further consideration of the granted issue, 84 M.J. 138 (C.A.A.F. 2023), and in view of United States v. Wells, __ M.J. __ (C.A.A.F. 2024), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.




Tuesday, October 22, 2024

Order Granting Petition for Review

 

No. 24-0158/MC. U.S. v. Dominic L. Ruiz. CCA 202300007. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN ADMITTING THE COMPLAINING WITNESS'S STATEMENT TO LAW ENFORCEMENT AS A PRIOR CONSISTENT STATEMENT UNDER M.R.E. 801(d)(1)(B)(ii).

 

Appellant will file a brief on or before November 12, 2024, Appellee will file an answer brief no later than 21 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 7 days after the filing of Appellee's answer brief.




Monday, October 21, 2024

Order Granting Petition for Review

 

No. 24-0146/AF. U.S. v. Leo J. Navarro Aguirre. CCA 40352. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I.  WHETHER APPELLANT'S CONVICTION FOR WRONGFUL AMBIEN USE IS LEGALLY SUFFICIENT WHEN: (1) HE HAD A VALID PRESCRIPTION FOR AMBIEN, AND (2) THE BASIS FOR HIS CONVICTION WAS A MEDICALLY-KNOWN SIDE EFFECT.

 

II.  WHETHER APPELLANT'S GUILTY PLEA FOR RECKLESS DRIVING WAS PROVIDENT WHEN HE TOOK HIS PRESCRIBED DOSE OF AMBIEN, FELL ASLEEP IN HIS BED, AND "THE NEXT THING [HE] REMEMBERED IS BEING BEHIND THE WHEEL OF [HIS] CAR."

 

On or before November 12, 2024, Appellant will file a brief, Appellee will file an answer brief no later than 21 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 7 days after the filing of Appellee's answer brief.




Thursday, October 17, 2024

Order Granting Petition for Review

 

No. 24-0182/AF. U.S. v. Tayari S. Vanzant. CCA 22004. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I.   WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS LACKED JURISDICTION TO REVIEW APPELLANT'S CASE.

 

II.  WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES AND THE AIR FORCE COURT OF CRIMINAL APPEALS HAVE JURISDICTION TO DIRECT MODIFICATION OF THE ERRONEOUS AND UNCONSTITUTIONAL FIREARM PROHIBITION UNDER 18 U.S.C. § 922 NOTED ON THE STAFF JUDGE ADVOCATE'S ENDORSEMENT TO THE ENTRY OF JUDGMENT.

 

On or before November 7, 2024, Appellant will file a brief on Issue I only, Appellee will file an answer brief no later than 21 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 7 days after the filing of Appellee's answer brief.




Wednesday, October 16, 2024

Order Granting Petition for Review

 

No. 24-0217/AR. U.S. v. Alex J. Secord. CCA 20210667. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I.   WHERE THE GOVERNMENT SEIZED AND HELD APPELLANT'S PHONE PURSUANT TO A NARROW SEARCH AUTHORIZATION, BUT COULD NOT ACCESS THE DATA WITHOUT APPELLANT'S PASSCODE, WAS THE DATA WITHIN THE POSSESSION, CUSTODY, OR CONTROL OF MILITARY AUTHORITIES FOR PURPOSES OF R.C.M. 701?

 

II.  DID THE MILITARY JUDGE ERR BY RULING APPELLANT COULD NOT ACCESS THE DATA WITHOUT SIMULTANEOUSLY PROVIDING THE GOVERNMENT WITH FULL ACCESS TO ALL HIS PERSONAL DATA?

 

III. IF THE MILITARY JUDGE ERRED, DID THE ERROR CONSTITUTE PREJUDICIAL ERROR?

 

Appellant will file a brief on or before November 6, 2024, Appellee will file an answer brief no later than 21 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 7 days after the filing of Appellee's answer brief.




Monday, October 7, 2024

Orders Granting Petition for Review

 

No. 24-0159/AR. U.S. v. Adalberto Brinkman-Coronel. CCA 20220225. On consideration of Appellant's petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION WHEN HE FAILED TO RECUSE HIMSELF FROM APPELLANT'S COURT-MARTIAL FOR THE APPEARANCE OF BIAS.

 

II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION WHEN HE DENIED THE MOTION TO SUPPRESS EVIDENCE DISCOVERED FROM THE SEARCH OF APPELLANT'S "VACUUM PHONE" AND ALL DERIVATIVE EVIDENCE.

 

On or before October 28, 2024, Appellant will file a brief, Appellee will file an answer brief no later than 21 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 7 days after the filing of Appellee's answer brief.

 

No. 24-0212/AF. U.S. v. Monica R. Arroyo. CCA 40321. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

DURING ITS SENTENCE SEVERITY ANALYSIS, THE AIR FORCE COURT CONSIDERED THE BENEFIT ENJOYED BY APPELLANT WHEN THE GOVERNMENT DISMISSED SPECIFICATIONS. DID THE AIR FORCE COURT ERR?

 

On or before October 28, 2024, Appellant will file a brief, Appellee will file an answer brief no later than 21 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 7 days after the filing of Appellee's answer brief.




Thursday, October 3, 2024

Miscellaneous Docket - Summary Disposition

 

No. 24-0168/AR. In re Kevin P. Newton, Petitioner. On consideration of the petition for extraordinary relief in the nature of writ of mandamus, it is ordered that the petition is dismissed for lack of jurisdiction.

 

Orders Granting Petition for Review

 

No. 24-0183/AF. U.S. v. Jennesis V. Dominguez-Garcia. CCA S32694. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER THERE IS JURISDICTION TO DIRECT CORRECTION OF THE ERRONEOUS AND UNCONSTITUTIONAL FIREARM PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

No briefs will be filed under C.A.A.F. R. 25.

 

No. 24-0219/AF. U.S. v. Brian W. Gubicza. CCA 40464. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER THE GOVERNMENT CAN PROVE THAT 18 U.S.C. § 922 IS CONSTITUTIONAL AS APPLIED TO APPELLANT WHEN HE WAS CONVICTED OF A NONVIOLENT OFFENSE.

 

No briefs will be filed under C.A.A.F. R. 25.




Wednesday, October 2, 2024

Interlocutory Order

 

No. 24-0144/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of a motion for reconsideration of this Court's order granting Appellant's motion to view and copy sealed documents, a motion for a written explanation of the denial of a motion to reject Appellant's motion to view and copy, and a motion to reject Appellant's brief due to lack of service, all filed by Mr. Peter Coote, Esq., representing E.B., the victim in this case, the Court notes the following:

 

1. The recently amended Rules of Practice and Procedure of this Court   clearly state that absent any statutory authority, victims and complainants are not recognized as parties before this Court. C.A.A.F. R. 8(c).

 

2.  However, "the Court may afford either a victim or a complainant, whether represented by counsel or not, the rights of service of a party and the right to file an amicus curiae brief." C.A.A.F. R. 8(c).

 

3.  Victims and complainants may move for leave to file an amicus curiae brief.  C.A.A.F. R. 26(b).

 

4.  Copies of all filings in this Court must be served on all counsel of record, to include victim or complainant's counsel and amicus curiae counsel, who entered an appearance at the Court of Criminal Appeals. C.A.A.F. R. 39(a).

 

5.  There is no statutory, regulatory, or judicial authority that provides for a victim or complainant in a court-martial to intervene as a non-party in a case filed in this Court.

 

6.  On August 15, 2024, Mr. Coote filed a formal notice of appearance in this Court on behalf of E.B., which filing was accepted on August 29, 2024.

 

7.  On August 29, 2024, this Court granted Appellant's motions to view and copy sealed material, to file a brief under seal, and to file the joint appendix under seal.

 

8.  Also on August 29, 2024, this Court denied Mr. Coote's motion to reject Appellant's motion to view and copy sealed material, without prejudice to filing a motion for leave to file an amicus curiae brief.

 

9.  On September 16, 2024, Appellant filed his brief under seal. In doing so, he failed to serve Mr. Coote with a copy of the brief.

 

Having considered all of the above, we conclude that E.B. is not a party to this case and may not intervene in this case. However, this Court has accepted Mr. Coote's notice of appearance and Mr. Coote is deemed a counsel of record. Therefore, Mr. Coote is entitled to be served with a copy of all filings in this case, including briefs of the parties.  Accordingly, it is ordered that Mr. Coote's motions for: (1) reconsideration of this Court's order granting Appellant's motion to view and copy sealed documents, (2) a written explanation of the denial of a motion to reject Appellant's motion to view and copy, and (3) a motion to reject Appellant's brief due to lack of service are hereby denied; that Appellant and Appellee will serve Mr. Coote with copies of their briefs and all other filings; and that Mr. Coote is granted leave to file an amicus curiae brief, all in accordance with the recently amended Rules of this Court.




Monday, September 30, 2024

Order Granting Petition for Review

 

No. 24-0208/AF. U.S. v. Michael A. Valentin-Andino. CCA 40185. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of Appellant's allegations that the Court of Criminal Appeals provided meaningless relief for unreasonable post-trial delay, it is ordered that said petition is granted on the following issues:

 

I. WHETHER "APPROPRIATE RELIEF" FOR EXCESSIVE POST-TRIAL DELAY UNDER ARTICLE 66(d)(2), UCMJ, ALSO REQUIRES "MEANINGFUL RELIEF".

 

II. WHETHER THE AIR FORCE COURT ERRED BY FAILING TO AWARD "MEANINGFUL RELIEF" DESPITE FINDING THAT RELIEF WAS WARRANTED PURSUANT TO ARTICLE 66(d)(2), UCMJ, AND UNITED STATES v. TARDIF, 57 M.J. 219 (C.A.A.F. 2002), FOR UNREASONABLE POST-TRIAL DELAY.

 

On or before October 30, 2024, Appellant will file a brief, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Friday, September 27, 2024

Order Granting Petition for Review

 

No. 24-0196/NA. U.S. v. Edmond A. Maebane III. CCA 202200228. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

DOES AN ACCUSED HAVE A SIXTH AMENDMENT RIGHT TO PRESENT EVIDENCE OF A RECORDED THIRD PARTY'S CONFESSION TO THE CRIME FOR WHICH THE ACCUSED IS ON TRIAL?

 

Appellant will file a brief on or before October 28, 2024, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Tuesday, September 24, 2024

Order Granting Petition for Review

 

No. 24-0004/SF. U.S. v. Devin W. Johnson. CCA 40257. On further consideration of the granted issues, 84 M.J. 343 (C.A.A.F. 2024), and in view of United States v. Williams, __ M.J. __ (C.A.A.F. Sept. 5, 2024), it is ordered that the grant of review of issues in the Court's order of March 29, 2024, is vacated, and said petition is granted on the following issues:

 

I.  WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION AND AUTHORITY TO DIRECT THE MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT. 

 

II.  WHETHER REVIEW BY THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT WOULD SATISFY THE COURT'S PRUDENTIAL CASE OR CONTROVERSY DOCTRINES.  SEE B.M. v. UNITED STATES, 84 M.J. 314, 317 (C.A.A.F. 2024) (DETAILING THIS COURT'S PRUDENTIAL CASE AND CONTROVERSY DOCTRINES).

 

III.  AS APPLIED TO APPELLANT, WHETHER 18 U.S.C. § 922 IS CONSTITUTIONAL IN LIGHT OF RECENT PRECEDENT FROM THE SUPREME COURT OF THE UNITED STATES. 

 

On or before October 24, 2024, Appellant will file a brief on Issues I and II only, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief. 




Friday, September 20, 2024

Order Granting Petition for Review

 

No. 24-0134/CG. U.S. v. Andrew J. Shafran. CCA 1480. On consideration of the petition for grant of review of the decision of the United States Coast Guard Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

DOES THE SPECIFICATION OF CHARGE II, ALLEGING A VIOLATION OF ARTICLE 134, UCMJ (PROVIDING SEVERAL ALCOHOLIC BEVERAGES TO A PERSON UNDER THE AGE OF 21), FAIL TO STATE AN OFFENSE BECAUSE IT FAILS TO ALLEGE WORDS OF CRIMINALITY?

 

Appellant will file a brief on or before October 21, 2024, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Thursday, September 19, 2024

Order Granting Petition for Review

 

No. 24-0104/AF. U.S. v. Bryce T. Roan. CCA 22033. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I.  WHETHER THE LOWER COURT'S ERRONEOUS RESOLUTION OF A QUESTION OF LAW -- FINDING THAT WITHHELD EVIDENCE WAS IMMATERIAL AND THERE WAS NO PREJUDICE TO APPELLANT -- VIOLATED BRADY v. MARYLAND, 373 U.S. 83 (1963).

 

II. WHETHER THE LOWER COURT'S ERRONEOUS RESOLUTION OF A QUESTION OF LAW -- FINDING THAT THE GOVERNMENT DID NOT VIOLATE APPELLANT'S RIGHTS UNDER RULE FOR COURTS-MARTIAL 701(A)(6) -- VIOLATED BINDING PRECEDENT SET BY THIS COURT.

 

Appellant will file a brief on or before October 21, 2024, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Thursday, September 12, 2024

Order Granting Petition for Review

 

No. 24-0189/AF. U.S. v. Logan A. McLeod. CCA 40374. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER THE COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO DECIDE WHETHER A CONVICTION IS FACTUALLY SUFFICIENT.

 

II. WHETHER APPELLANT'S CONVICTION FOR ATTEMPTED MURDER OF "SARAH" AND ATTEMPTED CONSPIRACIES TO RAPE AND KIDNAP AB ARE FACTUALLY AND LEGALLY SUFFICIENT.

 

III. WHETHER THE LOWER COURT ERRONEOUSLY INTERPRETED AND APPLIED THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(B), UCMJ.

 

No briefs will be filed under C.A.A.F. R. 25




Wednesday, September 11, 2024

Orders Granting Petition for Review

 

No. 24-0147/AR. U.S. v. Ryan C. Thomas. CCA 20210662. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT'S BATSON CHALLENGE.

 

Appellant will file a brief on or before October 11, 2024, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.

 

No. 24-0175/AF. U.S. v. Daniel R. Csiti. CCA 40386. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER THE COURT OF APPEALS FOR THE ARMED FORCES HAS STATUTORY AUTHORITY TO DECIDE WHETHER A CONVICTION IS FACTUALLY SUFFICIENT.

 

II. WHETHER APPELLANT'S CONVICTION FOR SEXUAL ASSAULT IS FACTUALLY AND LEGALLY INSUFFICIENT BECAUSE AH WAS CAPABLE OF CONSENTING – AND DID CONSENT – TO SEXUAL ACTIVITY WITH APPELLANT.

 

III. WHETHER THE LOWER COURT ERRONEOUSLY INTERPRETED AND APPLIED THE AMENDED FACTUAL SUFFICIENCY STANDARD UNDER ARTICLE 66(d)(1)(B), UCMJ.

 

Appellant will file a brief on or before October 11, 2024, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Wednesday, September 4, 2024

Order Granting Petition for Review

 

No. 24-0186/MC. U.S. v. Kyle A. Shelby. CCA 202200213. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it is ordered that said petition is granted on the following issue:

 

DID THE MILITARY JUDGE ERR WHEN HE DISMISSED CHARGE II WITH PREJUDICE AFTER "CONSIDERING THE INTERESTS OF JUSTICE, THE ACCUSED'S RIGHT TO A FAIR TRIAL, AND THE CUMULATIVE ERROR" OF THE GOVERNMENT?

 

Pursuant to C.A.A.F. R. 19(a)(7)(A), no further pleadings will be filed.




Tuesday, September 3, 2024

Order Granting Petition for Review

 

No. 24-0206/AF. U.S. v. Dennis A. George, Jr. CCA 40397. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I.  WHETHER APPELLANT'S CONVICTION FOR ATTEMPTED SEXUAL ASSAULT WAS LEGALLY INSUFFICIENT BECAUSE THE GOVERNMENT DID NOT PROVE THE ALLEGED OVERT ACT.

 

II.  WHETHER THE GOVERNMENT CAN PROVE THAT 18 U.S.C. § 922 IS CONSTITUTIONAL AS APPLIED TO APPELLANT WHEN HE WAS CONVICTED OF A NONVIOLENT OFFENSE.

 

III.  WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

On or before 3 October 2024, Appellant will file a brief on Issue I only, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Thursday, August 29, 2024

Order Granting Petition for Review

 

No. 24-0172/AR. U.S. v. Rodrigo L. Urieta. CCA 20220432. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY DENYING THE DEFENSE CHALLENGE FOR CAUSE AGAINST A MEMBER WHO BELIEVED A SOLDIER WHO HIRED A CIVILIAN DEFENSE COUNSEL DID NOT BELIEVE IN HIS DEFENSE.

 

Appellant will file a brief on or before September 30, 2024, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Tuesday, August 27, 2024

Interlocutory Order

 

No. 24-0156/AR. United States, Appellant v. Ross E. Downum, Appellee. CCA 20220575. On consideration of Appellant's motion to amend its certificate for review, Appellant's motion to supplement the record, and Appellee's motion for appellate discovery, the Court notes the following:

 

1. Article 67(a)(2), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2018), directs this Court to review the record in "all cases reviewed by a Court of Criminal Appeals which the Judge Advocate General, after appropriate notification to the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps, orders sent to the Court of Appeals for the Armed Forces for review." (Emphasis added.) Rule for Courts-Martial (R.C.M.) 1204(a)(2) implements Article 67(a)(2), UCMJ, with the same requirement of "appropriate notification." 

 

2. On April 30, 2024, according to representations that neither party disputes, the Chief of the Government Appellate Division, U.S. Army, sent a notice to the chiefs of the government appellate divisions of the other services informing them of the Army Judge Advocate General's intent to certify three issues to this Court pursuant to Article 67(a)(2), UCMJ.

 

3. On May 13, 2024, the Army Judge Advocate General signed a certificate for review in this Court requesting review of these issues. The certificate for review included the following statement: "Pursuant to Article 67(a)(2) the other Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps were notified of my consideration to certify the issues."

 

4. On May 15, 2024, again according to representations that neither party contests, Appellant learned that the service leadership of two services had not acquired actual knowledge of the certified issues as of May 13, 2024, the date on which the Army Judge Advocate General had signed the certificate for review. All the Judge Advocates General and the Staff Judge Advocate to the Commandant of the Marine Corps had been directly notified, and thus acquired actual knowledge, of the certified issues by May 20, 2024.

 

5. On May 22, 2024, Appellant moved to file an amended certificate for review. The text of the proffered amended certificate for review is identical to the certificate for review filed on May 13, 2024, but indicates that it was signed by the Judge Advocate General of the Army on May 20, 2024.

 

6. On May 28, 2024, Appellee filed an answer opposing Appellant's motion to amend the certificate for review and proposed further inquiry into whether the prerequisites for jurisdiction under Article 67(a)(2), UCMJ, had been met. On May 31, 2024, Appellant filed a reply to this answer in which it asserted that the prerequisites for jurisdiction had been met.

 

7. On June 14, 2024, this Court ordered supplemental briefing on several specified issues, including: "Are the requirements of 'appropriate notification' in Article 67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2) (2018) and Rule for Courts-Martial 1204(a)(2), satisfied by routing notification to the Government Appellate Division Chief of each respective service?"

 

8. Appellant argued in its supplemental brief that it had provided appropriate notification, asserting that sending notice through appropriate personnel satisfies the requirement of notifying the Judge Advocates General of the other services and the Staff Judge Advocate to the Commandant of the Marine Corps. Appellee argued in his supplemental brief that notice to the chiefs of the government appellate divisions of the other services was not "appropriate notice" because these chiefs "are not part of the offices of the judge advocates general." Appellee therefore requested this Court to dismiss the appeal.

 

Having received the supplemental briefing and considered these procedural steps, this Court reaches the following conclusions:

 

Appellee has not filed a separate motion to dismiss the certificate for review for lack of jurisdiction but has merely asked for that remedy in his pleadings. Ordinarily, motions must be filed separately before this Court and cannot be incorporated into other pleadings. C.A.A.F. R. 30(d). This Court, however, has an independent duty to determine whether it has jurisdiction even if the issue is not properly raised by the parties. M.W. v. United States, 83 M.J. 361, 363 (C.A.A.F. 2023) (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)). The Court therefore considers Appellee's request to dismiss the appeal in conjunction with our review of Appellant's motion to amend.

 

Article 67(a)(2), UCMJ, and R.C.M. 1204(a)(2) require a Judge Advocate General seeking to certify issues to this Court to provide "appropriate notification to" the senior leaders of the other services. The Court cannot equate "notification to" with "actual knowledge of" because these are well-recognized as distinct legal concepts. Compare Notification, Black's Law Dictionary 1280 (11th ed. 2019), with Knowledge, id. at 1043. In addition, if a requirement of actual knowledge of the certified issues were required, the qualifier "appropriate" would be rendered superfluous. The Court therefore interprets the phrase "appropriate notification to" simply to mean that the text of the proposed certified issues must be sent to addresses or through personnel that are appropriate for contacting the senior leaders of each of the other services.

 

In this case, Appellee argues that the notices were not sent to appropriate addresses or personnel when they were sent to the chiefs of the government appellate divisions of the other services. Appellee, however, has cited no statute, rule, or regulation requiring notification to be sent to a different address. Appellee has also cited nothing to indicate that the Judge Advocates General of the other services or the Staff Judge Advocate to the Commandant of the Marine Corps desired the Army Judge Advocate General to send notice to a different location. Accordingly, the Court has no basis for concluding that the notification in this case was not appropriate. The Court therefore rejects Appellee's request that the Court dismiss the certificate for review. The Court further has no need to address the other specified issues. And because the initial certificate for review correctly stated that appropriate notification had been sent, the Court also perceives no need for amending the certificate for review. Accordingly, it is ordered that Appellee's request to dismiss the appeal is denied, that Appellant's motion to file an amended certificate for review is denied, and Appellant's motion to supplement the record and Appellee's motion for appellate discovery are denied as moot. 




Thursday, August 15, 2024

Order Granting Petition for Review

 

No. 24-0138/MC. U.S. v. Juan I. Campos. CCA 202200246. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY ADMITTING AND CONSIDERING, OVER DEFENSE OBJECTION, ALLEGATIONS OF ADDITIONAL MISCONDUCT IN THE UNSWORN VICTIM IMPACT STATEMENT?

 

Appellant will file a brief on or before September 16, 2024; Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief; and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Friday, July 19, 2024

Order Granting Petition for Review

 

No. 24-0144/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. DID THE LOWER COURT FAIL TO COMPLY WITH THIS COURT'S REMAND ORDER?

 

II. DID APPELLANT SUFFER PREJUDICE FROM THE MILITARY JUDGE'S ERRONEOUS CONTINUANCE DENIAL?

 

Appellant will file a brief on or before August 19, 2024, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Thursday, July 18, 2024

Order Granting Petition for Review

 

No. 24-0124/NA. United States, Appellee/Cross-Appellant v. Jeremy W. Harborth, Appellant/Cross-Appellee. CCA 202200157. On consideration of Appellant/Cross-Appellee's petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and the Judge Advocate General's Certificate for Review, it is ordered that said petition is granted on the following issue:

 

WAS THE TRIAL DEFENSE COUNSEL INEFFECTIVE BY NOT SEEKING SUPPRESSION OF ALL EVIDENCE DERIVED FROM THE UNLAWFUL SEIZURE OF CHIEF HARBORTH'S PROPERTY?

 

Appellant/Cross-Appellee will file a brief on or before August 19, 2024, which shall address all of the issues included in the Certificate as well as the granted issue, and that Appellee/Cross-Appellant may file a reply brief no later than 10 days after the filing of Appellant/Cross-Appellee's brief.

 

[related case: U.S. v. Harborth, 24-0125/NA, certificate for review, 29 March 2024]




Monday, July 8, 2024

Order Granting Petition for Review

 

No. 24-0106/AF. U.S. v. DeQuayjan D. Jackson. CCA 40310. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

II. AS APPLIED TO APPELLANT, WHETHER THE GOVERNMENT CAN PROVE 18 U.S.C. § 922 IS CONSTITUTIONAL BY "DEMONSTRATING THAT IT IS CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" WHEN SHE WAS NOT CONVICTED OF A VIOLENT OFFENSE. (QUOTING NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC. v. BRUEN, 597 U.S. 1, 24 (2022).

 

No briefs will be filed under Rule 25.




Friday, June 14, 2024

Order Granting Petition for Review

 

No. 24-0089/AF. U.S. v. Nikolas S. Casillas. CCA 40302. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER ARTICLE 120(b)(2) AND (g)(7), UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. §§ 920(b)(2) AND (g)(7), ARE UNCONSTITUTIONALLY VAGUE BECAUSE THEY FAIL TO PUT DEFENDANTS ON FAIR NOTICE OF THE SPECIFIC CHARGE AGAINST THEM.

 

II. AS APPLIED, WHETHER ARTICLE 120(b)(2) AND (g)(7), UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. §§ 920(b)(2) AND (g)(7), GAVE APPELLANT CONSTITUTIONAL FAIR NOTICE WHEN THE MILITARY JUDGE DENIED DEFENSE COUNSEL'S REQUEST FOR A TAILORED JURY INSTRUCTION.

 

III. WHETHER APPELLANT'S CONVICTION FOR SEXUAL ASSAULT WITHOUT CONSENT WAS LEGALLY SUFFICIENT.

 

IV. IN A SEXUAL ASSAULT TRIAL, DID THE MILITARY JUDGE ABUSE HIS DISCRETION WHEN HE DENIED THE ACCUSED'S CHALLENGE FOR ACTUAL AND IMPLIED BIAS FOR A MEMBER WHOSE WIFE HAD BEEN RAPED.

 

V. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

VI. AS APPLIED TO APPELLANT, WHETHER THE GOVERNMENT CAN PROVE 18 U.S.C. § 922 IS CONSTITUTIONAL BY "DEMONSTRATING THAT IT IS CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" WHEN HE WAS NOT CONVICTED OF A VIOLENT OFFENSE. (quoting New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 24 (2022)).

 

On or before 15 July 2024, Appellant will file a brief on Issues I through IV only; Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.

 

Interlocutory Order

 

No. 24-0156/AR. U.S. v. Ross E. Downum. CCA 20220575. On consideration of Appellant's motion to amend the certificate for review, Appellee's answer, and Appellant's reply, it is ordered that Appellant shall, within 14 days of the date of this order, file a supplemental brief addressing the following issues specified by the Court:

 

(1) Are the requirements of "appropriate notification" in Article 67(a)(2), Uniform Code of Military Justice, 10 U.S.C. § 867(a)(2) (2018) and Rule for Courts-Martial 1204(a)(2), satisfied by routing notification to the Government Appellate Division Chief of each respective service?

 

(2) How may the Judge Advocate General demonstrate compliance with the notification requirements?

 

(3) Is non-compliance with the notification requirements a jurisdictional error?

 

(4) If non-compliance with the notification requirements is not a jurisdictional error, what are the consequences of non-compliance?

 

Appellee will file a supplemental answer within 14 days after the filing of Appellant's supplemental brief. Appellant may file a supplemental reply within 3 days after the filing of Appellant's supplemental answer. Absent extraordinary circumstances, no extensions of time will be granted.




Thursday, June 13, 2024

Order Granting Petition for Review

 

No. 24-0122/AR. U.S. v. Matthew L. Coe. CCA 20220052. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER APPELLANT'S CONVICTION IS LEGALLY SUFFICIENT BASED ON THE LOWER COURT'S STATUTORY INTERPRETATION OF ARTICLE 120(b)(2)(A).

 

No briefs will be filed under Rule 25.




Thursday, June 6, 2024

Order Granting Petition for Review

 

No. 24-0098/AF. U.S. v. Thomas M. Saul. CCA 40341. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER A GUILTY PLEA FOR WILLFUL DESTRUCTION OF PROPERTY UNDER ARTICLE 109, UCMJ, CAN BE PROVIDENT WHEN APPELLANT THRICE TOLD THE MILITARY JUDGE THAT HE "DID NOT INTEND TO DAMAGE THE [PROPERTY]" AND THAT HE WAS SURPRISED THERE WAS ACTUAL DAMAGE.

 

II. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

III. AS APPLIED TO APPELLANT, WHETHER THE GOVERNMENT CAN PROVE 18 U.S.C. §922 IS CONSTITUTIONAL BY "DEMONSTRATING THAT IT IS CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATIONS" WHEN HE WAS NOT CONVICTED OF A VIOLENT OFFENSE. (quoting New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 24 (2022)).

 

On or before July 8, 2024, Appellant will file a brief on Issue I only; Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief; and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.




Wednesday, May 15, 2024

Certificate for Review

 

No. 24-0156/AR. U.S. v. Ross E. Downum. CCA 20220575. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

 

I. WHETHER THE ARMY COURT ERRED IN CONDUCTING ITS LEGAL SUFFICIENCY ANALYSIS WHEN IT HELD THAT UNITED STATES V. CAMPBELL, 50 M.J. 154, 160 (C.A.A.F. 1999), REQUIRES NOT ONLY EXPERT TESTIMONY INTERPRETING URINALYSIS RESULTS BUT THE ADMISSION OF THE UNDERLYING PAPER URINALYSIS RESULTS AS WELL.

 

II. WHETHER THE ARMY COURT ERRED WHEN IT HELD THAT UNOBJECTED TO EXPERT TESTIMONY INTERPRETING THE URINALYSIS RESULTS LACKED RELEVANCE WITHOUT THE ADMISSION OF THE PAPER URINALYSIS RESULTS.

 

III. WHETHER THE ARMY COURT FAILED TO CONDUCT A PROPER FACTUAL SUFFICIENCY ANALYSIS UNDER ARTICLE 66(d)(1)(B).




Tuesday, May 14, 2024

Certificate for Review

 

No. 24-0152/AR. United States, Appellant, v. Tayron D. Davis, Appellee. CCA 20220272. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

 

I. WHETHER THE ARMY COURT ERRED IN FINDING THE REASSIGNMENT OF APPELLANT'S CASE RESULTED IN STRUCTURAL ERROR.

 

II. WHETHER THE ARMY COURT ERRED IN FINDING THE REASSIGNMENT OF APPELLANT'S CASE RESULTED IN PREJUDICE AND THUS DISMISSING THE CASE WITH PREJUDICE.




Tuesday, May 7, 2024

Orders Granting Petition for Review

 

No. 24-0096/AF. U.S. v. Jaquan Q. Greene-Watson. CCA 40293. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER THE AIR FORCE COURT ERRED IN AFFIRMING THE MILITARY JUDGE'S DECISION TO ADMIT EVIDENCE OF DOMESTIC VIOLENCE OCCURRING 17 MONTHS AFTER THE CHARGED OFFENSE TO SHOW A COMMON SCHEME OR PLAN UNDER MIL. R. EVID. 404(b)—USING A DIFFERENT RATIONALE THAN THE MILITARY JUDGE.

 

Appellant will file a brief on or before June 7, 2024, Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.

 

No. 24-0130/AF. U.S. v. Chase J. Stanford. CCA 40327. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

II. WHETHER 18 U.S.C. § 922 CAN CONSTITUTIONALLY APPLY TO APPELLANT, WHO STANDS CONVICTED OF NONVIOLENT OFFENSES, WHERE THE GOVERNMENT CANNOT DEMONSTRATE THAT BARRING HIS POSSESSION OF FIREARMS IS "CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" UNDER NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC. v. BRUEN, 597 U.S. 1, 24 (2022).




Friday, April 26, 2024

Order Granting Petition for Review

 

No. 24-0101/AF. U.S. v. Keen A. Fernandez. CCA 40290. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

II. AS APPLIED TO APPELLANT, WHETHER THE GOVERNMENT CAN PROVE 18 U.S.C. § 922 IS CONSTITUTIONAL BY "DEMONSTRATING THAT IT IS CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" WHEN HE WAS NOT CONVICTED OF A VIOLENT OFFENSE. (quoting New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 24 (2022)).

 

No briefs will be filed under Rule 25.




Friday, March 29, 2024

Certificate for Review

 

No. 24-0125/NA. U.S. v. Jeremy W. Harborth. CCA 202200157. Notice is hereby given that a certificate for review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 on the following issues:

 

I.  DID THE MILITARY JUDGE ERR BY (1) FINDING THE WARRANTLESS SEIZURE OF APPELLEE'S ELECTRONIC DEVICES WAS JUSTIFIED BY PROBABLE CAUSE, AND (2) NOT RULING ON LAW ENFORCEMENT'S RELIANCE ON ACTUAL AND APPARENT AUTHORITY?

 

II. DID THE LOWER COURT ERR IN RULING THAT LAW ENFORCEMENT COULD NOT RELY ON ACTUAL OR APPARENT AUTHORITY AND BY HOLDING THE DELAY IN SECURING A SEARCH AUTHORIZATION WAS UNREASONABLE, THEREBY SETTING ASIDE APPELLEE'S CONVICTIONS?

 

III. DID THE LOWER COURT ERR IN FAILING TO FIND THAT APPELLEE WAIVED OBJECTION TO THE DURATION OF THE SEIZURE, WHEN APPELLEE NEVER OBJECTED AT TRIAL TO THE DURATION OF THE SEIZURE, AND MIL. R. EVID. 311 STATES THAT OBJECTIONS NOT MADE AT TRIAL ARE WAIVED?

 

IV. DID THE LOWER COURT ERR IN FAILING TO FIRST DETERMINE WHETHER MS. HOTEL WAS A GOVERNMENT ACTOR, AND IF SO, DID MS. HOTEL'S ACTIONS CONSTITUTE GOVERNMENT ACTION, THUS IMPLICATING FOURTH AMENDMENT PROTECTION, WHEN SHE SEIZED APPELLEE'S OTHER DEVICES AND PROVIDED THEM TO HPD AND NCIS?

 

V. HAVING FOUND A REASONABLE PROBABILIY THAT A MOTION TO SUPPRESS THE RESULTS OF THE SEIZURE AND SEARCH OF APPELLEE'S IPHONE XS WOULD HAVE BEEN MERITORIOUS, DID THE NMCCA ERR IN NOT FINDING PREJUDICE FROM THE DEFENSE COUNSEL NOT MOVING TO SUPPRESS THIS EVIDENCE?

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 29th day of April, 2024.

 

[related case: U.S. v. Harborth, 24-0124/NA, order granting petition for review, 18 July 2024]

 

Orders Granting Petition for Review

 

No. 24-0004/SF. U.S. v. Devin W. Johnson. CCA 40257. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

II. AS APPLIED TO APPELLANT, WHETHER THE GOVERNMENT CAN PROVE 18 U.S.C. § 922 IS CONSTITUTIONAL BY "DEMONSTRATING THAT IT IS CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" WHEN APPELLANT WAS NOT CONVICTED OF A VIOLENT OFFENSE. (quoting New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022)).

 

No briefs will be filed under Rule 25.

 

[3/29/2024 order vacated by new grant order dated 24 September 2024]

 

No. 24-0111/AF. U.S. v. Matthew R. Denney. CCA 40360. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

 

I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

II. WHETHER 18 U.S.C. § 922 CAN CONSTITUTIONALLY APPLY TO APPELLANT, WHO STANDS CONVICTED OF A NONVIOLENT OFFENSE, WHERE THE GOVERNMENT CANNOT DEMONSTRATE THAT BARRING HIS POSSESSION OF FIREARMS IS "CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" UNDER NEW YORK STATE RIFLE & PISTOL ASSOCIATION, INC. v. BRUEN, 142 S. Ct. 2111, 2130 (2022).

 

No briefs will be filed under Rule 25.




Thursday, February 22, 2024

Order Granting Petition for Review

 

No. 24-0069/AF. U.S. v. Bradley D. Lampkins. CCA 40135. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is granted on the following issues:

 

I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

II. AS APPLIED TO APPELLANT, WHETHER THE GOVERNMENT CAN PROVE 18 U.S.C. § 922 IS CONSTITUTIONAL BY "DEMONSTRATING THAT IT IS CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" WHEN APPELLANT WAS NOT CONVICTED OF A VIOLENT OFFENSE. (quoting New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022)).

 

No briefs will be filed under Rule 25




Friday, February 16, 2024

Miscellaneous Docket - Summary Disposition

 

No. 24-0054/AR. Robert M. Lundsten, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party In Interest. CCA 20220260. On further consideration of the petition for extraordinary relief in the nature of a writ of mandamus, we conclude that United States Army Court of Criminal Appeals Rule of Appellate Procedure 6.9(d) conflicts with Rule for Courts-Martial 1113 and is therefore unenforceable. Accordingly, it is ordered that the petition is granted, and the stay of proceedings granted on January 11, 2024, is lifted.

 

Order Granting Petition for Review

 

No. 24-0049/AF. U.S. v. S'hun R. Maymi. CCA 40332. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is  granted on the following issues:

 

I. WHETHER THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES HAS JURISDICTION TO DIRECT MODIFICATION OF THE 18 U.S.C. § 922 PROHIBITION NOTED ON THE STAFF JUDGE ADVOCATE'S INDORSEMENT TO THE ENTRY OF JUDGMENT.

 

II. AS APPLIED TO APPELLANT, WHETHER THE GOVERNMENT CAN PROVE 18 U.S.C. § 922 IS CONSTITUTIONAL BY "DEMONSTRATING THAT IT IS CONSISTENT WITH THE NATION'S HISTORICAL TRADITION OF FIREARM REGULATION" WHEN APPELLANT WAS NOT CONVICTED OF A VIOLENT OFFENSE. (quoting New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022)).

 

No briefs will be filed under Rule 25.




Thursday, November 2, 2023

Order Granting Petition for Review

 

No. 23-0224/AF. U.S. v. Charles S. Nestor. CCA 40250. On consideration of the petition for grant of review of the decisions of the United States Air Force Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

 

WHETHER UNITED STATES v. PHILLIPS, 70 M.J. 161 (C.A.A.F. 2011), WAS WRONGLY DECIDED, AND UNDER A STARE DECISIS ANALYSIS, SHOULD BE OVERRULED. IF SO, SHOULD APPELLANT'S REMAINING CONVICTION BE SET ASIDE AND DISMISSED BECAUSE THE GOVERNMENT PROVIDED INSUFFICIENT EVIDENCE AS TO THE TERMINAL ELEMENT?

 

No briefs will be filed under Rule 25.




Tuesday, October 10, 2023

Order Granting Petition for Review

 

No. 23-0210/AR. U.S. v. Isac D. Mendoza. CCA 20210647. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

 

WHETHER APPELLANT'S CONVICTION FOR SEXUAL ASSAULT WITHOUT CONSENT WAS LEGALLY SUFFICIENT.

 

Appellant will file a brief on or before November 13, 2023; Appellee will file an answer brief no later than 30 days after the filing of Appellant's brief, and Appellant may file a reply brief no later than 10 days after the filing of Appellee's answer brief.


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