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NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 5/6/22)

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Thursday, May 5, 2022

Order Granting Petition for Review

 

No. 22-0129/AR. U.S. v. Nicholas R. St. Jean. CCA 20190663. 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 MILTIARY JUDGE ERRED BY EXCLUDING EVIDENCE UNDER MIL. R. EVID. 412 AND BY PREVENTING THE DEFENSE FROM PRESENTING EVIDENCE OF PARTICIPATION AND CONSENT DURING THE RES GESTAE OF THE CHARGED SEXUAL ASSAULT.

 

Briefs will be filed under Rule 25.




Tuesday, May 3, 2022

Order Granting Petition for Review

 

No. 22-0065/NA. U.S. v. Willie C. Jeter. CCA 201700248. 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 CONVENING AUTHORITY VIOLATE APPELLANT'S EQUAL PROTECTION RIGHTS, OVER DEFENSE OBJECTION, WHEN HE CONVENED AN ALL-WHITE PANEL USING A RACIALLY NONNEUTRAL MEMBER SELECTION PROCESS AND PROVIDED NO EXPLANATION FOR THE MONOCHROMATIC RESULT BEYOND A NAKED AFFIRMATION OF GOOD FAITH IN SPITE OF A DEFENSE OBJECTION?

 

Briefs will be filed under Rule 25.




Tuesday, March 22, 2022

Miscellaneous Docket - Summary Disposition

 

No. 22-0125/NA. Joshua G. Anderson, Appellant v. United States, Appellee. CCA 201200499. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is dismissed for lack of jurisdiction.

 

Order Granting Petition for Review

 

No. 22-0008/AF. U.S. v. Norbert A. King II. CCA 39583. 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:

 

WAS APPELLANT'S COURT-MARTIAL IMPROPERLY CONSTITUTED BECAUSE THE CONVENING AUTHORITY EXCUSED A MEMBER AFTER THE COURT-MARTIAL WAS ASSEMBLED WITHOUT ESTABLISHING GOOD CAUSE ON THE RECORD FOR EXCUSING HIM?

 

Briefs will be filed under Rule 25.




Friday, March 18, 2022

Miscellaneous Docket - Summary Disposition

 

No. 22-0124/AR. Joshua R. Sickels v. U.S. CCA 20220025. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is dismissed for lack of jurisdiction.




Thursday, March 17, 2022

Petition for Grant of Review - Summary Disposition

 

No. 22-0119/AR. U.S. v. Patrick A. Kenneh. CCA 20210383. 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 LOWER COURT APPROVED AN UNLAWFUL SENTENCE TO FORFEITURES OF $1,320 PAY PER MONTH FOR FIVE MONTHS, WHICH EXCEEDED THE MAXIMUM FORFEITURES ALLOWED FOR APPELLANT'S REDUCED PAY GRADE OF $1,190 PAY PER MONTH.

 

The decision of the United States Army Court of Criminal Appeals is affirmed as to findings and to only so much of the sentence as provides for forfeiture of $1,190 pay per month for five months, reduction to pay grade E-1, confinement for five months, and a bad-conduct discharge. See Article 19(a), Uniform Code of Military Justice, 10 U.S.C. § 819(a) (2018) and Rule for Courts-Martial 1003(b)(2).

 

Miscellaneous Docket - Summary Disposition

 

No. 22-0120/NA. Decker B. Jordan v. U.S. CCA 201100621. On consideration of the writ-appeal petition and the motion to file the writ-appeal petition out of time, it is ordered that the writ-appeal petition is dismissed for lack of jurisdiction, and the motion to file the writ-appeal petition is denied as moot.




Monday, March 14, 2022

Orders Granting Petition for Review

 

No. 22-0098/AF. U.S. v. Chase M. Thompson. CCA 40019. 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:

 

DID THE COURT OF CRIMINAL APPEALS ERR BY REQUIRING THAT APPELLANT INTRODUCE DIRECT EVIDENCE OF HIS SUBJECTIVE BELIEF TO MEET HIS BURDEN FOR A REASONABLE MISTAKE OF FACT DEFENSE?

 

Briefs will be filed under Rule 25.

 

No. 22-0100/AF. U.S. v. Sean W. Harrington. CCA 39825. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, it ordered that said petition is granted on the following issues:

 

I.    WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT APPELLANT'S CONVICTION FOR COMMUNICATING A THREAT.

 

II.   DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY REFUSING TO INSTRUCT THE MEMBERS OF THE MAXIMUM CONFINEMENT FOR EACH OFFENSE, WHICH ULTIMATELY RESULTED IN AN EXCESSIVE 14-YEAR SENTENCE?

 

III.  WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN ALLOWING THE VICTIM'S PARENTS TO TAKE THE WITNESS STAND AND DELIVER UNSWORN STATEMENTS IN QUESTION-AND-ANSWER FORMAT WITH TRIAL COUNSEL.

 

Briefs will be filed under Rule 25.




Wednesday, March 9, 2022

Petition for Grant of Review - Summary Disposition

 

No. 22-0037/AR. U.S. v. Matthew D. Lemire. CCA 20190129. 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, and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be corrected to delete the requirement that Appellant register as a sex offender.




Thursday, February 24, 2022

Order Granting Petition for Review

 

No. 22-0091/AF. U.S. v. Javon C. Richard. CCA 39918. 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 EVIDENCE OF PREJUDICE TO GOOD ORDER AND DISCIPLINE FOR THE ARTICLE 134, UCMJ, OFFENSES WAS LEGALLY SUFFICIENT.

 

Briefs will be filed under Rule 25.




Wednesday, February 23, 2022

Order Granting Petition for Review

 

No. 21-0325/AR. U.S. v. Leeroy M. Sigrah. CCA 20190556. 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'S DENIAL OF APPELLANT'S R.C.M. 914 MOTIONS MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS.

 

Briefs will be filed under Rule 25.




Friday, February 11, 2022

Order Granting Petition for Review

 

No. 22-0066/AR. U.S. v. Ethen D. Black. CCA 20210310. On consideration of the petition for grant of review of the decision of the United States Army 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:

 

WHETHER THE ARMY COURT ERRED IN ITS ABUSE OF DISCRETION ANALYSIS BY (1) CREATING A NOVEL TEST FOR COMMON AUTHORITY, (2) FAILING TO GIVE DEFERENCE TO THE MILITARY JUDGE'S FINDINGS, (3) COMPARING A MODERN CELL PHONE TO A TRADITIONAL "CONTAINER," AND (4) FINDING ERROR BASED ON A DIFFERENCE OF OPINION.

 

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




Monday, February 7, 2022

Orders Granting Petition for Review

 

No. 21-0357/AF. U.S. v. Manuel Palacios Cueto. CCA 39815. 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 TRIAL DEFENSE COUNSEL WERE INEFFECTIVE.

 

II.   WHETHER TRIAL COUNSEL COMMITTED PROSECUTORIAL MISCONDUCT WHEN THEY STATED THAT THEY REPRESENTED "THE PURSUIT OF JUSTICE" AND ARGUED JUSTICE WOULD ONLY BE SERVED IF APPELLANT WAS CONVICTED AND ADJUDGED A SUFFICIENT PUNISHMENT.

 

Briefs will be filed under Rule 25.

 

No. 22-0052/AR. U.S. v. Samuel B. Badders. CCA 20200735. On consideration of the petition for grant of review of the decision of the United States Army 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:

 

WHETHER THE ARMY COURT HAD JURISDICTION OVER THIS GOVERNMENT APPEAL OF THE MILITARY JUDGE'S POST-TRIAL ORDER GRANTING A MISTRIAL.

 

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




Thursday, February 3, 2022

Certificate for Review Filed

 

No. 22-0105/AR. United States, Appellant v. David J. Rudometkin, Appellee. CCA 20180058. 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:

 

WHETHER THE ARMY COURT ERRED BY NOT PROPERLY CONSIDERING THE MILITARY JUDGE'S POST-TRIAL 39(a) PROCEEDINGS RELATING TO APPELLANT'S REQUEST FOR MISTRIAL.

 

WHETHER THE MILITARY JUDGE CLEARLY ABUSED HIS DISCRETION WHEN HE DID NOT GRANT A MISTRIAL AND FOUND THAT RELIEF WAS NOT WARRANTED UNDER LILJEBERG v. HEALTH SERVICES ACQUISITION CORP., 486 U.S. 847 (1988).

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 7th of March, 2022.




Tuesday, January 18, 2022

Order Granting Petition for Review

 

No. 22-0023/AR. U.S. v. Michael L. McClure. CCA 20190623. 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 WHEN HE DENIED DEFENSE'S MOTION FOR ACCESS TO JS'S MENTAL HEALTH RECORDS UNDER M.R.E. 510 AND 513 AND REFUSED TO REVIEW THE MENTAL HEALTH RECORDS IN CAMERA TO ASSESS WHETHER A CONSTITUTIONAL BASIS JUSTIFIED THE RELEASE OF THE RECORDS TO THE DEFENSE.

 

No briefs will be filed under Rule 25.




Thursday, January 13, 2022

Interlocutory Order

 

No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. On consideration of the petition for grant of review and the pleadings, it is ordered that said petition is granted on the following additional issue:

 

WHETHER THE COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT THE VICTIM WAIVED THE PSYCHOTHERAPIST- PATIENT PRIVILEGE.

 

Briefs on this additional issue will be filed by Appellee, Appellant, and Amici Curiae on or before January 26, 2022.




Wednesday, January 5, 2022

Miscellaneous Docket - Summary Disposition

 

No. 22-0070/AF. In Re Jose A. Cossio, Jr. On consideration of the petition for extraordinary relief in the nature of writ of error coram nobis and mandamus, and Petitioner's motions to correct errata, to appoint counsel, and to stay the proceedings, it is ordered that the motion to correct errata is granted, that the motions to appoint counsel and to stay the proceedings are denied, and the petition is denied.




Thursday, December 16, 2021

Miscellaneous Docket - Summary Disposition

 

No. 22-0038/AF. H.K., Appellant v. Lieutenant Colonel Colin P. Eichenberger, Military Judge, United States Air Force, Appellee and Technical Sergeant Lee B. Broome, USAF, Real Party in Interest. CCA 2017-07. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.




Tuesday, November 30, 2021

Order Granting Petition for Review

 

No. 21-0341/AF. U.S. v. Daniel A. Bench. CCA 39797. 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 LYING TO A WITNESS ABOUT APPELLANT'S PRESENCE IN THE COURTROOM TO SECURE TESTIMONY MATERIALLY PREJUDICES APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

 

Briefs will be filed under Rule 25.




Tuesday, November 23, 2021

Order Granting Petition for Review

 

No. 21-0360/AF. U.S. v. Brandon M. Horne. CCA 39717. 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 CONDUCT OF THE TRIAL COUNSEL AND SPECIAL VICTIM'S COUNSEL CREATED AN INTOLERABLE STRAIN ON THE PUBLIC'S PERCEPTION OF THE MILITARY JUSTICE SYSTEM.

 

Briefs will be filed under Rule 25.




Monday, November 8, 2021

Miscellaneous Docket - Summary Disposition

 

No. 22-0009/AR. AV2, Appellant v. John H. Cook, Colonel, U.S. Army, Appellee and Clinton Murray, Master Sergeant, U.S. Army, Real Party in Interest. CCA 20210409. On consideration of the writ-appeal petition, it is ordered that the writ-appeal petition is denied.




Tuesday, October 26, 2021

Petition for Grant of Review - Summary Disposition

 

No. 21-0318/AR. U.S. v. Sven M. Council. CCA 20190321. On consideration of Appellant's motion to exceed page limits and the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said motion is granted, and that said petition is granted on the following issue:

 

DID THE ARMY COURT OF CRIMINAL APPEALS ABUSE ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION FOR A STAY AND TO ORDER A SANITY BOARD PURSUANT TO R.C.M. 1203 AND 706?

 

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to The Judge Advocate General of the Army for remand to that court for proceedings in accordance with Rule for Courts-Martial (R.C.M.) 1203(e)(5). That court may first order affidavits from all appellate defense counsel concerning Appellant's mental capacity to cooperate with counsel in appellate proceedings, but in any event shall order an R.C.M. 706 inquiry into Appellant's mental capacity at trial and on appeal and his mental responsibility for his offenses. If there are further proceedings, Articles 66 and 67, Uniform Code of Military Justice, 10 U.S.C. §§ 866, 867 (2018), respectively, shall apply.




Tuesday, October 19, 2021

Appeal - Summary Disposition

 

No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. On further consideration of the granted issue, 81 M.J. 148 (C.A.A.F. 2021), the briefs of the parties, and oral argument, we answer the issue in the affirmative. Accordingly, it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside, and the record of trial is returned to the Judge Advocate General of the Navy for remand to that court to conduct the three-pronged approach of Brown v. Illinois, 422 U.S. 590 (1975) in examining the effects of an unlawful apprehension upon a subsequent search. See United States v. Conklin, 63 M.J. 333, 338 (C.A.A.F. 2006); United States v. Khamsouk, 57 M.J. 282, 290-91 (C.A.A.F. 2002). On remand, the Court of Criminal Appeals may order affidavits or a factfinding hearing, if necessary. See United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2018), shall apply.




Tuesday, October 12, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0336/AF. In re David H. Juillerat. CCA 34205. On consideration of the petition for extraordinary relief in the nature of writ of error coram nobis, habeas corpus, mandamus, and request for clarification, it is ordered that the petition is denied.

 

Appeals - Summary Dispositions

 

No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. On consideration of Appellant's petition for reconsideration and on further consideration of the granted issue, 80 M.J. 401 (C.A.A.F. 2020), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we determine that the procedural error did not materially prejudice a substantial right. Accordingly, it is ordered that the petition for reconsideration is granted, that the Order in this case of June 29, 201 is vacated, and the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0040/AR. U.S. v. Leshan Jones. CCA 20190254. On further consideration of the granted issue, 80 M.J. 458 (C.A.A.F. 2020), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __, (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we determine that the procedural error did not materially prejudice a substantial right. Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0078/AR. U.S. v. Montana J. Miller. CCA 20190597. On consideration of Appellant's motion to file the petition for reconsideration out of time, the petition for reconsideration and on further consideration of the granted issue (81 M.J. 50 (C.A.A.F. 2021)), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we determine that the procedural error did not materially prejudice a substantial right. Accordingly, it is ordered that the motion to file a petition for reconsideration out of time is granted, that the petition for reconsideration is granted, that the Order in this case of June 29, 2021 is vacated, and the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0126/AF. U.S. v. James A. Aumont. CCA 39673. On further consideration of the granted issue, 81 M.J. 158 (C.A.A.F. 2021), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Air Force Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). In light of this Court's recent decision in Brubaker-Escobar, we deem it appropriate to remand this case to the Court of Criminal Appeals so that the lower court may directly address the issue of whether the procedural error materially prejudiced a substantial right of Appellant. Accordingly, it is ordered that the record of trial is returned to The Judge Advocate General of the Air Force for remand to the United States Air Force Court of Criminal Appeals for a determination of whether the procedural error materially prejudiced a substantial right of Appellant.

 

No. 21-0134/AR. U.S. v. Luis E. Ramirez. CCA 20190367. On consideration of Appellant's petition for reconsideration and on further consideration of the granted issue, 81 M.J. 239 (C.A.A.F. 2021), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we determine that the procedural error did not materially prejudice a substantial right. Accordingly, it is ordered that the petition for reconsideration is granted, that the Order in this case of June 29, 2021 is vacated and the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0201/AR. U.S. v. Adrian L. Ingram, Jr. CCA 20190610. On consideration of Appellant's petition for reconsideration and on further consideration of the granted issue, 81 M.J. ___ (C.A.A.F. May 4, 2021), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we determine that the procedural error did not materially prejudice a substantial right. Accordingly, it is ordered that the petition for reconsideration is granted, that the Order in this case of June 29, 2021 is vacated, and the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0234/AR. U.S. v. Logan T. Kyle. CCA 20190372. On further consideration of the granted issue, 81 M.J. ___ (C.A.A.F. June 4, 2021), we conclude that because Appellant was found guilty of at least one offense that occurred prior to January 1, 2019, the convening authority erred in taking "no action" on the sentence. However, because the charges were referred in this case after January 1, 2019, this error was procedural, and the United States Army Court of Criminal Appeals had jurisdiction to review Appellant's case. See United States v. Brubaker-Escobar, 81 M.J. __ (C.A.A.F. Sept. 7, 2021). Having reviewed the record of trial, we determine that the procedural error did not materially prejudice a substantial right. Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.




Tuesday, September 7, 2021

Order Granting Petition for Review

 

No. 21-0312/NA. U.S. v. Wendell E. Mellette, Jr. CCA 201900305. 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.  M.R.E. 513 EXTENDS THE PYSCHOTHERAPIST-PATIENT PRIVILEGE TO A "CONFIDENTIAL COMMUNICATION" BETWEEN PATIENT AND PSYCHOTHERAPIST OR ASSISTANT. DID THE LOWER COURT ERR BY CONCLUDING DIAGNOSES AND TREATMENT ARE ALSO SUBJECT TO THE PRIVILEGE, INVOKING THE ABSURDITY DOCTRINE?

 

II. DID THE NMCCA DEPART FROM SUPREME COURT AND CAAF PRECEDENT BY NOT REVIEWING THE EVIDENCE AT ISSUE—DIAGNOSES AND TREATMENT, INCLUDING PRESCRIPTIONS—IN CONCLUDING: (1) THE MENTAL HEALTH EVIDENCE WAS BOTH PREJUDICIAL AND NON-PREJUDICIAL; AND (2) FAILURE TO PRODUCE IT WAS HARMLESS BEYOND A REASONABLE DOUBT WHERE THE UNKNOWN EVIDENCE COULD HAVE NEGATED THE EVIDENCE THE NMCCA CLAIMED TO BE "OVERWHELMING" EVIDENCE?

 

Briefs will be filed under Rule 25.




Tuesday, August 31, 2021

Order Granting Petition for Review

 

No. 21-0304/MC. U.S. v. Christopher J. Nelson. CCA 202000108. 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 AND THE COURT BELOW ERR IN FINDING THAT APPELLANT VOLUNTARILY PROVIDED HIS SMART PHONE PASSCODE TO LAW ENFORCEMENT WHEN THE LAW ENFORCEMENT OFFICIAL CONDUCTING THE INTERROGATION ASSERTED THAT HE POSSESSED A SEARCH AUTHORIZATION FOR THE PHONE AND APPELLANT ONLY PROVIDED HIS PASSCODE BECAUSE APPELLANT BELIEVED HE HAD "NO CHOICE?"

 

Briefs will be filed under Rule 25.




Tuesday, August 10, 2021

Order Granting Petition for Review

 

No. 21-0216/NA. U.S. v. Joseph R. Nelson. CCA 201900239. 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:

 

ARTICLE 31(d), UCMJ REQUIRES SUPPRESSION OF STATEMENTS TAKEN IN VIOLATION OF ARTICLE 31(b). AFTER THE MILITARY JUDGE DETERMINED THAT NCIS AGENTS VIOLATED ARTICLE 31(b) BECAUSE THEIR RIGHTS ADVISEMENT DID NOT PROPERLY ORIENT APPELLANT TO THE NATURE OF THE SUSPECTED MISCONDUCT, DID THE MILITARY JUDGE ERR BY ONLY SUPPRESSING THE STATEMENT AS IT RELATED TO ONE SPECIFIC OFFENSE, BUT THEN ALLOWING THE EVIDENCE TO BE ADMITTED FOR THE REMAINDER OF THE OFFENSES?

 

Briefs will be filed under Rule 25.




Thursday, August 5, 2021

Order Granting Petition for Review

 

No. 21-0235/AR. U.S. v. David C. Tate. CCA 20180477. 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 TRANSCRIPT OF APPELLANT'S TRIAL IS SUBSTANTIALLY VERBATIM.

 

Briefs will be filed under Rule 25.




Thursday, July 15, 2021

Order Granting Petition for Review

 

No. 21-0245/AF. U.S. v. Isaiah L. Edwards. CCA 39696. 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 MILITARY JUDGE ABUSED HIS DISCRETION BY ALLOWING THE VICTIM TO PRESENT AS AN IMPACT STATEMENT A VIDEO—PRODUCED BY THE TRIAL COUNSEL—THAT INCLUDED PHOTOS AND BACKGROUND MUSIC.

 

Briefs will be filed under Rule 25.




Tuesday, June 8, 2021

Order Granting Petition for Review

 

No. 21-0149/NA. United States, Appellee/Cross-Appellant v. Paul E. Cooper, Appellant/Cross-Appellee. CCA 201500039. 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 hereby granted on the following issues:

 

I.  AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO HAVE HIS COUNSEL MAKE A PROPER ARGUMENT ON THE EVIDENCE AND APPLICABLE LAW IN HIS FAVOR. DID THE MILITARY JUDGE ABUSE HIS DISCRETION WHEN HE ALLOWED THE MEMBERS TO RECALL THE COMPLAINING WITNESS AFTER DELIBERATIONS BUT REFUSED THE DEFENSE REQUEST TO PRESENT A RENEWED CLOSING SUMMATION ON HER NEW TESTIMONY? DID THE LOWER COURT ERR BY REFUSING TO CONSIDER THIS ISSUE?

 

II. AN APPELLANT HAS THE RIGHT TO EFFECTIVE REPRESENTATION BY APPELLATE COUNSEL. WERE APPELLATE COUNSEL INEFFECTIVE WHERE: (1) COUNSEL FAILED TO ASSIGN AS ERROR THE MILITARY JUDGE'S DENIAL OF A RENEWED CLOSING ARGUMENT DESPITE DEFENSE COUNSEL'S OBJECTION AT TRIAL; (2) THIS COURT DECIDED UNITED STATES v. BESS, 75 M.J. 70 (C.A.A.F. 2016), ONE MONTH BEFORE COUNSEL FILED A SUPPLEMENTAL BRIEF RAISING ASSIGNMENTS OF ERROR BEFORE THE LOWER COURT; AND (3) THE LOWER COURT REFUSED TO CONSIDER THE ISSUE WHEN IT WAS RAISED DURING A LATER REMAND TO THAT COURT?

 

Briefs will be filed under Rule 25.




Friday, May 21, 2021

Order Granting Petition for Review

 

No. 21-0236/NA. U.S. v. Craig R. Becker. CCA 201900342. 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 hereby granted on the following issue:

 

WHETHER THE LOWER COURT ERRED IN ITS ABUSE OF DISCRETION ANALYSIS BY FAILING TO GIVE THE TRIAL JUDGE'S FINDINGS OF FACT DEFERENCE, SUBSTITUTING ITS OWN DISCRETION FOR THE MILITARY JUDGE'S, AND ENGAGING IN FACT-FINDING BEYOND THE SCOPE OF ARTICLE 62 REVIEW.




Tuesday, May 18, 2021

Order Granting Petition for Review

 

No. 21-0219/AR. U.S. v. Conner B. Hiser. CCA 20190325. 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 HER DISCRETION BY ACCEPTING APPELLANT'S GUILTY PLEA TO A VIOLATION OF ARTICLE 117a, UCMJ, WHEN APPELLANT POSTED INTIMATE VIDEOS OF A PERSON UNDER CIRCUMSTANCES WHERE THE PERSON WAS NOT READILY IDENTIFIABLE AND THERE WAS NO REASONABLE CONNECTION TO THE MILITARY ENVIRONMENT.

 

Briefs will be filed under Rule 25.




Friday, May 14, 2021

Order Granting Petition for Review

 

No. 21-0183/NA. U.S. v. Frantz Beauge. CCA 201900197. 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 LOWER COURT CREATE AN UNREASONABLY BROAD SCOPE OF THE PSYCHOTHERAPIST-PATIENT PRIVILEGE BY AFFIRMING THE MILITARY JUDGE'S DENIAL OF DISCOVERY, DENYING REMAND FOR IN CAMERA REVIEW, AND DENYING APPELLANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL?

 

Briefs will be filed under Rule 25.




Friday, April 23, 2021

Orders Granting Petition for Review

 

No. 21-0004/MC. U.S. v. Julian D. Schmidt. CCA 201900043. 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.   WHETHER THE PHRASE "IN THE PRESENCE OF" USED TO DEFINE THE TERM "LEWD ACT" IN ARTICLE 120b(h)(5)(D) REQUIRES THE CHILD TO BE AWARE OF THE LEWD ACT OR MERELY THAT THE ACCUSED BE AWARE OF THE CHILD'S PRESENCE.

 

II.  WHETHER APPELLANT AFFIRMATIVELY WAIVED ANY OBJECTION TO THE MILITARY JUDGE'S INSTRUCTIONS AND THE FAILURE TO INSTRUCT ON THE AFFIRMATIVE DEFENSE OF MISTAKE OF FACT.

 

III. WHETHER, HAVING ASSUMED DEFICIENT PERFORMANCE BY COUNSEL, THE LOWER COURT ERRED IN FINDING NO PREJUDICE.

 

Briefs will be filed under Rule 25.

 

No. 21-0179/AR. U.S. v. Xavier L. Anderson. CCA 20180447. 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 DUE PROCESS RIGHT TO A SPEEDY POST-TRIAL REVIEW HAS BEEN DENIED.

 

Briefs will be filed under Rule 25.




Monday, April 19, 2021

Orders Granting Petition for Review

 

No. 21-0069/AF. U.S. v. Jerard Simmons. CCA 39342. 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 MILITARY JUDGE ERRED IN ALLOWING THE GOVERNMENT TO MAKE A MAJOR CHANGE TO A SPECIFICATION, OVER DEFENSE OBJECTION – ALMOST TRIPLING THE CHARGED TIME FRAME – AFTER THE COMPLAINING WITNESS'S TESTIMONY DID NOT SUPPORT THE OFFENSE AS ORIGINALLY CHARGED AND THE PROSECUTION HAD RESTED ITS CASE.

 

Briefs will be filed under Rule 25.*

 

* The Clerk of the Court is ordered to seal pages 11-14 of the record of trial (Military Rule of Evidence 412 hearing).

 

No. 21-0158/AR. U.S. v. Floyd C. Guyton, Jr. CCA 20180103. 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.  WHETHER APPELLANT WAS DENIED THE RIGHT TO A SPEEDY TRIAL UNDER RCM 707 AND THE SIXTH AMENDMENT TO THE CONSTITUTION.

 

II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED BY PURPORTING TO AFFIRM "FORFEITURE OF ALL PAY AND ALLOWANCES" WHERE THE CONVENING AUTHORITY DISAPPROVED SUCH PUNISHMENT. SEE ARTICLE 66(c), UCMJ.

 

Briefs will be filed under Rule 25 on Issue I only.




Monday, April 12, 2021

Certificate for Review Filed

 

No. 21-0222/NA. U.S. v. Chase T. Miller. CCA 201900234. 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 this date on the following issues:

 

DID THE LOWER COURT ERR IN FINDING THE CONVENING AUTHORITY ABUSED HIS DISCRETION UNDER R.C.M. 1109 BY ACTING AFTER APPELLEE SUBMITTED R.C.M. 1106 CLEMENCY MATTERS BUT BEFORE THE MILITARY JUDGE ISSUED HIS WRITTEN POST-TRIAL RULING?

 

DID THE LOWER COURT ERR IN FINDING THAT THE STAFF JUDGE ADVOCATE'S REVIEW WAS UNINFORMED UNDER R.C.M. 1109 WHERE THE REVIEW WAS COMPLETED AFTER APPELLEE SUBMITTED R.C.M. 1106 CLEMENCY MATTERS AND REVIEW OF THE MILITARY JUDGE'S POST-TRIAL RULING WAS NOT REQUIRED UNDER R.C.M. 1109?

 

DID THE LOWER COURT ERR IN FINDING THAT THE POST-ACTION WRITTEN RULING WAS A SUBSTANTIAL OMISSION WHERE THE RULING WAS NOT AN R.C.M. 1106 MATTER AND NOTHING IN THE NEW RULES REQUIRED THE CONVENING AUTHORITY TO CONSIDER THE RULING PRIOR TO TAKING ACTION UNDER R.C.M. 1109 EVEN IF INCLUDED IN THE RECORD OF TRIAL?

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 12th day of May, 2021.




Tuesday, March 23, 2021

Mandatory Review Case Filed

 

No. 21-0193/AR. U.S. v. Nidal M. Hasan. CCA 20130781. Notice is given that a case requiring mandatory review of the decision of the United States Army Court of Criminal Appeals in which the affirmed sentence extends to death was filed under Rule 23 on this date. Appellant will file a brief under Rule 23(b) on or before the 24th day of May, 2021.




Wednesday, March 10, 2021

Order Granting Petition for Review

 

No. 21-0120/AR. U.S. v. Michael P. Whiteeyes. CCA 20190221. 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 COMMITTED PREJUDICIAL ERROR BY ADMITTING APPELLANT'S STATEMENTS TO LAW ENFORCEMENT IN VIOLATION OF MILITARY RULE OF EVIDENCE 304(c).

 

Briefs will be filed under Rule 25.




Tuesday, February 16, 2021

Order Granting Petition for Review

 

No. 21-0086/AR. U.S. v. Ronald C. Givens. CCA 20190132. 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 IN DENYING THE DEFECTIVE PREFERRAL/UNLAWFUL COMMAND INFLUENCE MOTION ON PROCEDURAL GROUNDS.

 

Briefs will be filed under Rule 25.


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