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NEW GRANTS AND SUMMARY DISPOSITIONS      
(Last Updated 10/13/21)

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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.




Wednesday, September 29, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0319/AF. In re Damien G. Kawai. On consideration of the petition for extraordinary relief in the nature of a motion for compassionate release and reduction in sentence pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), it is ordered that the petition is dismissed for lack of jurisdiction.




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

Petition for Grant of Review - Summary Disposition

 

No. 21-0155/AR. U.S. v. Omar A. Hernandez. CCA 20160217. 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 Specification 4 of Charge III in the promulgating order dated 18 November 2016 be corrected by deleting the words "cause sexual commit" and substituting the words "commit sexual contact."

 

Miscellaneous Docket - Summary Disposition

 

No. 21-0327/AR. Ramon M. Marrero, Appellant v. United States, Appellee. CCA 20210358. 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. 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.




Thursday, August 26, 2021

Interlocutory Order

 

No. 20-0359/NA. U.S. v. Salvador Jacinto. CCA 201800325. On consideration of Appellant's and Appellee's motion to file petitions for reconsideration of this Court's decision, United States v. Jacinto, 81 M.J. __, (C.A.A.F. July 15, 2021), and the motion from Protect Our Defenders as amicus curiae filed in support of Appellee's petition for reconsideration, it is ordered that the motion of Protect Our Defenders to file an amicus curiae memorandum is denied, that Appellee's petition for reconsideration is denied, that Appellant's petition for reconsideration is denied in part and granted in part, and that pursuant to the granted portion: that footnote 13 of the subject opinion is modified to read, "Because of the standard of review, any medical or psychiatric records that were generated after the convening authority's action are not relevant for appellate review of the granted issues."




Tuesday, August 24, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0331/MC. In re Jasper Casey. On consideration of the petition for extraordinary relief in the nature of writ of mandamus and prohibition, Petitioner's motion for an emergency stay of the Navy-Marine Corps Court of Criminal Appeals order, and Respondent's motion to return the joint appendix, it is ordered that motion for an emergency stay of the Navy-Marine Corps Court of Criminal Appeals order is denied, that the petition for extraordinary relief is denied, and the motion to return the joint appendix is denied as moot.




Tuesday, August 10, 2021

Appeals - Summary Dispositions

 

No. 21-0130/AF. U.S. v. Clayton W. Turner. CCA 39706. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. March 15, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.

 

No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. On further consideration of the granted issues (81 M.J. __ (C.A.A.F. April 14, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), we note that in its sentence appropriateness review, the United States Air Force Court of Criminal Appeals erred in failing to consider additional information about Appellant's post-trial confinement conditions even though Appellant had raised the matter in his clemency response to the convening authority. Appellate courts may "consider affidavits and gather additional facts through a DuBay hearing when doing so is necessary for resolving issues raised by materials in the record." United States v. Jessie, 79 M.J. 437, 444 (C.A.A.F. 2020). In United States v. Tyler, 81 M.J. 108 (C.A.A.F. 2021), we held that either party may comment on properly admitted unsworn victim statements. Therefore, the military judge did not plainly err in permitting trial counsel to present argument based on the victim's unsworn statement. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence, and the record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, shall apply.

 

No. 21-0146/AF. U.S. v. Cory J. Frantz. CCA 39657. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. March 23, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 21-0243/AF. U.S. v. Derrick O. Williams. CCA 39746. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. June 25, 2021)), and in view of United States v. Willman, 81 M.J. __ (C.A.A.F. July 21, 2021), accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

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 29, 2021

Petitions for Grant of Review - Summary Dispositions

 

No. 21-0293/NA. U.S. v. Michael T. Lamore. CCA 201900315. On consideration of Appellant's 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 and that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

 

* The Acting Clerk of the Court is ordered to seal pages 242-76 and 288-90 and AE XXIII, AE XXIV, and AE XLI of the record of trial (Military Rule of Evidence 412 matters).

 

No. 21-0306/AR. U.S. v. James M. Madden. CCA 20200205. 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 hereby granted and the decision of the United States Army Court of Criminal Appeals is affirmed.*

 

* It is directed that the Statement of Trial Results Findings Worksheet be corrected by substituting the word "groin" for the word "buttocks" in Specification 1 of Charge II and substituting the word "buttocks" for the word "groin" in Specification 2 of Charge II.




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.




Wednesday, July 14, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0287/AF. U.S. v. Ralph J. Hyppolite II. CCA 2021-02. On consideration of the writ-appeal petition, it is ordered that the petition is dismissed for lack of jurisdiction.




Tuesday, July 6, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0296/AR. In re Erik D. Jenkins. On consideration of the petition for extraordinary relief in the nature of writ of mandamus, it is ordered that the petition is denied.




Tuesday, June 29, 2021

Petition for Grant of Review - Summary Disposition

 

No. 21-0258/AR. U.S. v. James L. Dongarra III. CCA 20200633. 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 Judgment of the Court and Convening Authority Action be corrected by changing the statement "The automatic forfeiture of all pay and allowances per month to be waived for a period of six months, to be paid to the accused's spouse, Mrs. A.D." to "The automatic forfeiture of two-thirds pay per month to be waived for a period of six months, to be paid to the accused's spouse, Mrs. A.D."

 

Appeals - Summary Dispositions

 

No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. On further consideration of the granted issue (80 M.J. 401 (C.A.A.F. 2020)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, 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. June 4, 2021). Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0062/AR. U.S. v. Fernando Quinones-Colon, Jr. CCA 20200093. On further consideration of the granted issue (80 M.J. 466 (C.A.A.F. 2020)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, 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. June 4, 2021). Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0066/AR. U.S. v. Alan D. Ross. CCA 20190537. On further consideration of the granted issue (81 M.J. 66 (C.A.A.F. 2021)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, 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. June 4, 2021). 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 further consideration of the granted issue (81 M.J. 50 (C.A.A.F. 2021)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, 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. June 4, 2021). Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0134/AR. U.S. v. Luis E. Ramirez. CCA 20190367. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. Apr. 23, 2021)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, 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. June 4, 2021). Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0140/AR. U.S. v. Jonathan D. Davenport. CCA 20200190. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. Mar. 15, 2021)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, 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. June 4, 2021). Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.

 

No. 21-0184/AR. U.S. v. Joseph P. Popp. CCA 20190333. On further consideration of the granted issue (81 M.J. __ (C.A.A.F. Apr. 7, 2021)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, 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. June 4, 2021). Accordingly, it is ordered that 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 further consideration of the granted issue (81 M.J. __ (C.A.A.F. May 4, 2021)), and because the charges were not preferred in this case until after January 1, 2019, we conclude that the convening authority did not err in taking "no action" on the sentence, 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. June 4, 2021). Accordingly, it is ordered that the judgment of the United States Army Court of Criminal Appeals is affirmed.




Friday, June 25, 2021

Order Granting Petition for Review

 

No. 21-0243/AF. U.S. v. Derrick O. Williams. CCA 39746. 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 BY FAILING TO CONSIDER APPELLANT'S ERRONEOUS DEPRIVATION OF PAY WHILE SERVING HARD LABOR WITHOUT CONFINEMENT, PROPERLY RAISED AS AN EIGHTH AMENDMENT VIOLATION, WHEN ASSESSING SENTENCE APPROPRIATENESS.

 

No briefs will be filed under Rule 25.




Tuesday, June 8, 2021

Petition for Grant of Review - Summary Disposition

 

No. 21-0246/AR. U.S. v. Stephen S. Lee. CCA 20180001. Appellee's motion to dismiss the petition for grant of review for lack of jurisdiction is granted.

 

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, June 4, 2021

Order Granting Petition for Review

 

No. 21-0234/AR. U.S. v. Logan T. Kyle. CCA 20190372. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF CRIMINAL APPEALS OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No briefs will be filed under Rule 25.




Tuesday, June 1, 2021

Petition for Grant of Review - Summary Disposition

 

No. 21-0196/AF. U.S. v. Ryan J. Michalec. CCA 39771. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the members adjudged a sentence of a dishonorable discharge, confinement for 20 years, forfeiture of all pay and allowances, and reduction to pay grade E-3. The record also shows that as a matter of clemency, the convening authority approved the adjudged sentence, without modification, but deferred adjudged forfeitures until action and waived automatic forfeitures in favor of Appellant's dependents. In its summary of the convening authority's action, the lower court correctly noted the deferral and waiver but incorrectly stated that the convening authority disapproved the adjudged forfeitures. It then affirmed the sentence (adding a footnote to change "total forfeitures" in the CMO to "forfeiture of all pay and allowances").

 

Appellant has not asserted any error by the lower court in this respect, nor has he complained that his dependents did not receive the money attributable to the deferred and waived forfeitures. However, it is unclear whether the forfeiture of all pay and allowances was affirmed. Under Article 67(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(c) (2018), this Court can only act with respect to the findings and sentence as affirmed by a court of criminal appeals. If the affirmed sentence is ambiguous, the appropriate remedy is a remand for clarification. United States v. Kosek, 41 M.J. 60, 65 (C.M.A. 1994) ("The appropriate remedy for incomplete or ambiguous rulings is a remand for clarification."). Accordingly, because of the ambiguity as to the affirmed sentence, it is ordered that said petition is granted on the following specified issue:

 

WHETHER THE DECISION OF THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS IS AMBIGUOUS AS TO WHETHER THE AFFIRMED SENTENCE INCLUDED FORFEITURE OF ALL PAY AND ALLOWANCES.

 

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but set aside as to sentence. 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 clarification as to the affirmed sentence. Thereafter Article 67, UCMJ, shall apply.




Thursday, May 27, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0254/AR. In re David J. Rudometkin. CCA 20180058. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that the petition is denied without prejudice to Petitioner's right to raise the matters asserted during the course of normal appellate review.




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.




Wednesday, May 12, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0198/AF. Charles B. Justice, Appellant v. United States, Appellee. CCA 2021-01. On consideration of the writ-appeal petition, it is ordered that the petition is denied without prejudice to raising the issue during the course of normal appellate review, and the request for oral argument is denied as moot.




Tuesday, May 4, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0187/AF. In re Evan L. Wescott. CCA 39936. On consideration of the petition for extraordinary relief in the nature of a writ of prohibition or, in the alternative, a writ of mandamus, it is ordered that the petition is denied.

 

Order Granting Petition for Review

 

No. 21-0201/AR. U.S. v. Adrian L. Ingram, Jr. CCA 20190610. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No briefs will be filed under Rule 25.




Monday, April 26, 2021

Petitions for Grant of Review - Summary Dispositions

 

No. 21-0129/NA. U.S. v. Kenneth Olaya. CCA 201900211. Upon consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is noted that the court below acted on the findings, but did not expressly act to affirm or set aside the sentence. This has resulted in having a case before us for review that does not have a complete decision on the findings and the sentence by the Court of Criminal Appeals. Under Article 67(c), Uniform Code of Military Justice, 10 U.S.C. § 867(c) (2018), this Court can only act with respect to the findings and sentence as affirmed or set aside by a court of criminal appeals. If the action on the sentence is ambiguous, the appropriate remedy is a remand for clarification. Accordingly, it is ordered that the record of trial is returned to the Judge Advocate General of the Navy for remand to the United States Navy-Marine Corps Court of Criminal Appeals for clarification of the affirmed sentence.

 

No. 21-0195/AR. U.S. v. Andy L. Owens. CCA 20190754. 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 Statement of Trial Results be corrected by deleting the words 'arouse or gratify the sexual desire of any person' in Specification 1 of the Charge, and substituting therefor the words 'harass, humiliate, or degrade Private J**** D******'.




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. 21-0134/AR. U.S. v. Luis E. Ramirez. CCA 20190367. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No 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

Miscellaneous Docket - Summary Disposition

 

No. 21-0225/AF. In re United States, Petitioner. Christina M. Jimenez, Respondent. Matthew C. Harrington, Real Party in Interest. CCA 2020-02. On consideration of the petition for extraordinary relief in the nature of writ of mandamus, and the motions filed by Special Victim Counsel Program, Department of the Air Force, to appear pro hac vice and to file a brief as amicus curiae, it is ordered that the motions are granted, and the petition is denied.

 

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.




Wednesday, April 14, 2021

Order Granting Petition for Review

 

No. 21-0135/AF. U.S. v. D'Andre M. Johnson. CCA 39676. 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 MILITARY JUDGE PLAINLY ERRED BY PERMITTING TRIAL COUNSEL TO ARGUE FACTS NOT IN EVIDENCE.

 

II.  DURING CLEMENCY, APPELLANT DETAILED THE DEPLORABLE CONDITIONS OF HIS POST-TRIAL CONFINEMENT. ON APPEAL, HE PROVIDED SUPPLEMENTARY INFORMATION ON THESE CONDITIONS TO SUPPORT HIS CLAIMS OF CRUEL AND UNUSUAL PUNISHMENT AND TO SEEK SENTENCE RELIEF. DID THE LOWER COURT ERR WHEN IT DECIDED IT COULD NOT CONSIDER THIS SUPPLEMENTARY EVIDENCE FOR ITS SENTENCE APPROPRIATENESS REVIEW?

 

No briefs will be filed under Rule 25.




Monday, April 12, 2021

Petition for Grant of Review - Summary Disposition

 

No. 21-0138/NA. U.S. v. Calvin Halfacre. CCA 201900210. 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, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

 

* It is directed that the promulgating order be corrected to accurately reflect that Appellant pleaded guilty to each specification under Charge II excepting the language "was to the prejudice of good order and discipline in the armed forces and" in each specification and guilty to Charge II.

 

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.




Friday, April 9, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0207/AF. In re Tyler D. Coovert. v. U.S. CCA 39848. On consideration of the petition for extraordinary relief in the nature of writ of prohibition or, in the alternative, a writ of mandamus, it is ordered that the petition is denied.

 




Wednesday, April 7, 2021

Order Granting Petition for Review

 

No. 21-0184/AR. U.S. v. Joseph P. Popp. CCA 20190333. 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 ARMY COURT OF CRIMINAL APPEALS HAD JURISDICTION WHERE THE CONVENING AUTHORITY ELECTED TO TAKE NO ACTION ON THE SENTENCE FOR A SPECIFICATION ALLEGING THE COMMISSION OF AN OFFENSE BEFORE JANUARY 1, 2019.

 

No briefs will be filed under Rule 25.




Monday, April 5, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0186/NA. In re Alan D. Dorrbecker. CCA 201700347. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus, it is ordered that the petition is dismissed for lack of jurisdiction.




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.

 

Orders Granting Petition for Review

 

No. 21-0089/MC. U.S. v. Jonathan Quezada. CCA 201900115. 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:

 

THE MILITARY JUDGE INSTRUCTED MEMBERS THAT THEY COULD CONSIDER THE FACT THAT APPELLANT MADE THE FALSE OFFICIAL STATEMENT WITH WHICH HE WAS CHARGED AS EVIDENCE THAT HE WAS GUILTY OF ANOTHER CHARGED OFFENSE. DID THIS INSTRUCTION VIOLATE APPELLANT'S RIGHT TO A PRESUMPTION OF INNOCENCE UNDER UNITED STATES v. HILLS, 75 M.J. 350 (2016)?

 

Briefs will be filed under Rule 25.

 

No. 21-0146/AF. U.S. v. Cory J. Frantz. CCA 39657. 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 LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c), UCMJ.

 

No briefs will be filed under Rule 25.




Monday, March 15, 2021

Orders Granting Petition for Review

 

No. 21-0052/NA. U.S. v. Virginia S. Moratalla. CCA 201900073. 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 APPELLANT'S GUILTY PLEA TO BANK FRAUD UNDER 18 U.S.C. §1344 WAS IMPROVIDENT.

 

Briefs will be filed under Rule 25.

 

No. 21-0130/AF. U.S. v. Clayton W. Turner. CCA 39706. 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 LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c), UCMJ.

 

No briefs will be filed under Rule 25.

 

No. 21-0140/AR. U.S. v. Jonathan D. Davenport. CCA 20200190. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No briefs will be filed under Rule 25.

 

Interlocutory Order

 

No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618. On further consideration of the briefs filed by the parties and oral argument, it is ordered that Appellant shall, within 14 days, file a supplemental brief addressing the following issue specified by the Court:

 

WHETHER SECTION 6(b) OF EXECUTIVE ORDER 13,825 OF MARCH 1, 2018 WAS A LAWFUL EXERCISE OF THE AUTHORITY DELEGATED TO THE PRESIDENT BY SECTION 5542(c)(1) OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2017 OR BY ANY OTHER LAW.

 

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.




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.




Thursday, March 4, 2021

Order Granting Petition for Review

 

No. 21-0126/AF. U.S. v. James A. Aumont. CCA 39673. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE AIR FORCE COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No briefs will be filed under Rule 25.




Monday, March 1, 2021

Order Granting Petition for Review

 

No. 21-0111/AR. U.S. v. Jesse M. Thompson. CCA 20180519. 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 IS ENTITLED TO RELIEF UNDER R.C.M. 914.

 

Briefs will be filed under Rule 25.




Monday, February 22, 2021

Orders Granting Petition for Review

 

No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. 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:

 

THE ADMISSIBILITY OF EVIDENCE SEIZED AFTER AN ILLEGAL APPREHENSION IS GOVERNED BY BROWN v. ILLINOIS, 422 U.S. 590 (1975). DID THE LOWER COURT ERR BY FAILING TO APPLY BROWN DESPITE FINDING APPELLANT WAS ILLEGALLY APPREHENDED?

 

Briefs will be filed under Rule 25.

 

No. 21-0085/AR. U.S. v. John T. Long. CCA 20150160. 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 THE ARMY COURT ERRED IN CONCLUDING THE IMPERMISSIBLE USE OF CHARGED SEXUAL MISCONDUCT AS PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT.

 

II.  WHETHER APPELLANT'S CONVICTION FOR RAPE OF A CHILD WAS LEGALLY SUFFICIENT WHERE THE GOVERNMENT PRESENTED NO EVIDENCE OF THE CHARGED SEXUAL ACT.

 

III. WHETHER THE ARMY COURT ABUSED ITS DISCRETION IN REASSESSING THE SENTENCE.

 

Briefs will be filed under Rule 25.




Friday, February 19, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0148/AR. Eric D. Barnes, Petitioner v. United States, Respondent. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus in the form of clemency, it is ordered that the petition is dismissed.




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.




Monday, February 8, 2021

Certificate for Review Filed

 

No. 21-0150/NA. United States, Appellee/Cross-Appellant v. Paul E. Cooper, Appellant/Cross-Appellee. CCA 201500039. Notice is 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.

 

DID THE LOWER COURT ERR APPLYING UNITED STATES V. CHIN, 75 M.J. 220 (C.A.A.F. 2016), (A) AS A PREREQUISITE TO CONSIDERING INEFFECTIVE ASSISTANCE OF COUNSEL, AND (B) TO DISREGARD THE KNOWING, VOLUNTARY, AND R.C.M. 905 WAIVERS, OF INDIVIDUAL MILITARY COUNSEL?

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 10th day of March 2021.




Tuesday, February 2, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0091/AR. Robert B. Bergdahl, Appellant v. United States, Appellee. CCA 20200588. On consideration of the writ-appeal petition, it is ordered that the petition is denied.




Thursday, January 28, 2021

Certificate for Review Filed

 

No. 21-0137/AF. United States, Appellant v. Robert J. Hernandez, Appellee. CCA 39606. Notice is given that a certificate for review of the decision of the United States Air Force Court of Criminal Appeals was filed under Rule 22 on this date on the following issues:

 

WHETHER APPELLEE WAIVED A CHALLENGE TO THE SEARCH AUTHORIZATION FOR HIS URINE ON THE BASIS OF KNOWING AND INTENTIONAL FALSITY OR RECKLESS DISREGARD FOR THE TRUTH.

 

WHETHER THE MILITARY JUDGE PROPERLY ADMITTED EVIDENCE OF APPELLEE'S URINALYSIS.

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 1st day of March, 2021.




Wednesday, January 27, 2021

Appeal — Summary Disposition

 

No. 21-0133/AF. U.S. v. Soren G. Gere. CCA 2020-06. On consideration of the petition for new trial accompanied by a motion to extend time to file a supplement to the petition for new trial, filed by counsel on January 25, 2021, which was docketed under Docket No. 21-0133/AF, and the order granting Appellant's motion to extend time to file the supplement to the petition for new trial issued on January 26, 2021, it is ordered that the order granting Appellant's motion is hereby vacated, and that Docket No. 21-0133/AR is rescinded immediately and will not be assigned to any case in the future.

 

Order Granting Petition for Review

 

No. 21-0066/AR. U.S. v. Alan D. Ross. CCA 20190537. On consideration of the motion to file a supplement exceeding the page and word 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 the petition is granted on the following assigned issue:

 

WHETHER THE ARMY COURT OF CRIMINAL APPEALS HAD JURISDICTION WHERE THE CONVENING AUTHORITY ELECTED TO TAKE NO ACTION ON THE SENTENCE FOR A SPECIFICATION ALLEGING THE COMMISSION OF AN OFFENSE BEFORE JANUARY 1, 2019.

 

No briefs will be filed under Rule 25.




Monday, January 25, 2021

Miscellaneous Docket - Summary Dispositions

 

No. 19-0363/AF. Humphrey Daniels III, Petitioner v. Carl Brobst, Commander, Commanding Officer, Naval Consolidated Brig Charleston, United States Navy, Respondent. CCA 39407. On consideration of the petition for extraordinary relief in the nature of a writ of habeas corpus and declaratory judgment and the motions for an expedited decision and the motion to supplement the record, it is ordered that the motions are denied, and the petition for extraordinary relief is denied.

 

No. 19-0372/NA. Shannon L. Best, v. Caroline Horton, Colonel, United States Army, in her official capacity as Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas and United States, Appellees. CCA 201600134. On consideration of the writ-appeal petition in light of United States v. Briggs, 141 S. Ct. 467 (2020), it is ordered that said petition is denied.

 

No. 19-0438/AF. Richard D. Collins, Petitioner v. Matthew Donovan, Acting Secretary of the Air Force, Jeffrey A. Rockwell, Lieutenant General, United States Air Force Judge Advocate General, James A. Jacobson, Major General, United States Air Force, Commander, Air Force District of Washington, and United States, Respondents. CCA 39296. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that petition is denied.

 

Appeals - Summary Dispositions

 

No. 16-0711/AF. U.S. v. Michael J.D. Briggs. CCA 38730. Upon remand from the Supreme Court of the United States, 141 S. Ct. 467 (2020), and on further consideration of the granted issues, 78 M.J. 106 (C.A.A.F. 2018), it is ordered that this Court's decision of February 22, 2019, 78 M.J. 289 (C.A.A.F. 2019), is vacated, and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

 

No. 19-0052/AF. United States, Appellant v. Richard D. Collins, Appellee. CCA 39296. Upon remand from the Supreme Court of the United States, 141 S. Ct. 467 (2020), and on further consideration of the certified issues, 78 M.J. 190 (C.A.A.F. 2018), in light of United States v. Briggs, 141 S. Ct. 467 (2020), it is ordered that the Court's decisions of March 12, 2019, 78 M.J. 415 (C.A.A.F. 2019), and April 3, 2019, 79 M.J. 31 (C.A.A.F. 2019), are vacated, that the certified issues are moot, that the decision of the United States Air Force Court of Criminal Appeals, 78 M.J. 530 (A.F. Ct. Crim. App. 2018), is reversed, and the record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.

 

No. 19-0345/AF. United States, Appellant v. Humphrey Daniels III, Appellee. CCA 39407. Upon remand from the Supreme Court of the United States, 141 S. Ct. 467 (2020), and on further consideration of the certified issue, 78 M.J. 190 (C.A.A.F. 2018), in light of United States v. Briggs, 141 S. Ct. 467 (2020), it is ordered that this Court's decision of July 22, 2019, 79 M.J. 199 (C.A.A.F. 2019), is vacated, and the certified issue is moot, that the decision of the United States Air Force Court of Criminal Appeals, No. ACM 39407, 2019 CCA LEXIS 261, 2019 WL 2560041 (A.F. Ct. Crim. App. Jun. 18, 2019)(unpublished)), is reversed as to Charge II and its Specification, and, the record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2012). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.




Thursday, January 14, 2021

Petition for Grant of Review - Summary Disposition

 

No. 21-0070/MC. U.S. v. Tomas Rocha, Jr. CCA 201900078. 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, and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.*

 

* It is noted that the decision of the Court of Criminal Appeals and the Report of Result of Trial incorrectly state that Appellant was convicted of two specifications of sexual assault. Appellant was actually convicted of two specifications of abusive sexual contact under Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (2012 & Supp. IV 2017).

 

Order Granting Petition for Review

 

No. 20-0359/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.  A MILITARY JUDGE MAY GRANT A CONTINUANCE FOR REASONABLE CAUSE AS OFTEN AS MAY APPEAR JUST. DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY DENYING APPELLANT'S FIRST CONTINUANCE REQUEST AFTER THE GOVERNMENT DISCLOSED ONLY DAYS BEFORE TRIAL THE COMPLAINING WITNESS LIKELY SUFFERED FROM A PSYCHOTIC CONDITION?

 

II. THE FIFTH AND SIXTH AMENDMENTS GUARANTEE AN ACCUSED THE RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE. DID THE MILITARY JUDGE ABUSE HIS DISCRETION BY DENYING THE DEFENSE MOTION FOR IN CAMERA REVIEW OF THE COMPLAINING WITNESS'S MENTAL HEALTH RECORDS?

 

Briefs will be filed under Rule 25.




Tuesday, January 12, 2021

Miscellaneous Docket - Summary Disposition

 

No. 21-0056/AR. Charles G. Willenbring, Appellant v. Secretary of the Army, Ryan D. Mitchell, et al., United States Army, Appellee and United States, Real Party in Interest. CCA 20200430. On consideration of the writ-appeal petition, it is ordered that the petition is denied.




Friday, January 8, 2021

Order Granting Petition for Review

 

No. 21-0078/AR. U.S. v. Montana J. Miller. CCA 20190597. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No briefs will be filed under Rule 25.




Thursday, January 7, 2021

Petition for Grant of Review - Summary Disposition

 

No. 21-0107/AR. U.S. v. Nidal M. Hasan. CCA 20130781. Appellant's motion to dismiss the pro se petition for grant of review without prejudice is granted.




Wednesday, December 30, 2020

Order Granting Petition for Review

 

No. 21-0025/AF. U.S. v. Matthew C. Harrington. CCA 2020-02. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), it is ordered that said petition is granted on the following issue:

 

APPELLANT'S CONVICTION WAS SET ASIDE DUE TO THE ORIGINAL TRIAL JUDGE'S FAILURE TO ALLOW THE DEFENSE TO INTRODUCE EXCULPATORY EVIDENCE ABOUT THE COMPLAINING WITNESS'S BEHAVIOR RIGHT BEFORE THE ALLEGED SEXUAL ASSAULT. THE EXCULPATORY EVIDENCE IS NO LONGER AVAILABLE AFTER A GOVERNMENT DELAY IN BRINGING THE CASE TO A REHEARING. DID THE AIR FORCE COURT ERR BY OVERRULING THE MILITARY JUDGE'S DECISION TO DISMISS THE CHARGE FOR A SPEEDY TRIAL VIOLATION?

 

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




Tuesday, December 29, 2020

Mandatory Review Case Filed

 

No. 21-0107/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 1st day of March, 2021.




Monday, December 21, 2020

Order Granting Petition for Review

 

No. 21-0030/AF. U.S. v. Kalab D. Willman. CCA 39642. 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 LOWER COURT ERRED WHEN IT RULED THAT IT COULD NOT CONSIDER EVIDENCE OUTSIDE THE RECORD TO DETERMINE SENTENCE APPROPRIATENESS UNDER ARTICLE 66(c).

 

Briefs will be filed under Rule 25.

 




Wednesday, December 16, 2020

Order Granting Petition for Review

 

No. 21-0062/AR. U.S. v. Fernando Quinones-Colon, Jr. CCA 20200093. 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 CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No briefs will be filed under Rule 25.




Tuesday, December 8, 2020

Interlocutory Order

 

No. 20-0217/NA/No. 20-0327/NA. United States, Appellee/Cross-Appellant v. Stephen A. Begani, Appellant/Cross-Appellee. CCA 201800082. On consideration of the motion to file an out-of-time petition for reconsideration and the petition for reconsideration, it is ordered that said motion to file an out-of-time petition for reconsideration is granted, and the petition for reconsideration is granted on the following issue:

 

WHETHER FLEET RESERVISTS HAVE A SUFFICIENT CURRENT CONNECTION TO THE MILITARY FOR CONGRESS TO SUBJECT THEM TO CONSTANT UCMJ JURISDICTION.

 

Briefs will be filed under Rule 25.*

 

* Judge Sparks is recused and did not participate.




Thursday, December 3, 2020

Order Granting Petition for Review

 

No. 20-0366/AR. U.S. v. Thomas M. Adams. CCA 20130693. 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 2016 AMENDMENTS TO ARTICLE 43, UCMJ, RETROACTIVELY MADE THE STATUTE OF LIMITATIONS FIVE YEARS FOR INDECENT LIBERTIES AND SODOMY OFFENSES CHARGED UNDER ARTICLES 134 AND 125, UCMJ, RESPECTIVELY.

 

Briefs will be filed under Rule 25.




Tuesday, December 1, 2020

Orders Granting Petition for Review

 

No. 20-0195/AR. U.S. v. Jeremy N. Navarette. CCA 20160786. 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 Army Court erroneously denied appellant's request for a post-trial R.C.M. 706 Inquiry by requirING a heightened threshold showing under R.C.M. 1203.

 

Briefs will be filed under Rule 25.

 

No. 21-0017/AR. U.S. v. Clovis H. Castro. CCA 20190408. 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 IN ACCEPTING APPELLANT'S GUILTY PLEA TO SPECIFICATION 1 OF CHARGE II ("STEAL GAS, OF A VALUE LESS THAN $500, THE PROPERTY OF THE GENERAL SERVICES ADMINISTRATION").

 

Briefs will be filed under Rule 25.

 

No. 21-0040/AR. U.S. v. Leshan Jones. CCA 20190254. 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 specified issue:

 

WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No briefs will be filed under Rule 25.




Monday, November 16, 2020

Order Granting Petition for Review

 

No. 20-0358/AR. U.S. v. Carlos Muniz, Jr. CCA 20200092. 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 specified issue:

 

WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

No briefs will be filed under Rule 25.




Thursday, November 12, 2020

Miscellaneous Docket - Summary Disposition

 

No. 21-0037/AR. In re Richard J. Ramsey, Petitioner. CCA 20190001. On consideration of the petition for extraordinary relief in the nature of writ of habeas corpus, it is ordered that the petition is denied.




Friday, November 6, 2020

Appeal - Summary Disposition

 

No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. On further consideration of the granted issues and the briefs of the parties, we conclude that Appellant forfeited his challenge to the constitutionality of Rule for Courts-Martial (R.C.M.) 912(f)(4) and that Appellant has not established plain error. We have determined that Appellant did not waive his constitutional challenge to R.C.M. 912(f)(4) by intentionally relinquishing a known right. We do not consider the possibility that the constitutional challenge was waived by operation of law under R.C.M. 905(e) or any other R.C.M. provision because the Government has not made this argument. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is hereby affirmed.




Tuesday, November 3, 2020

Certificate for Review Filed

 

No. 21-0042/AR. U.S. v. Danny L. McPherson. CCA 20180214. 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 issue:

 

DID THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERR WHEN IT DISMISSED THE SPECIFICATIONS IN CHARGE I ON THE GROUNDS THAT THE STATUTE OF LIMITATIONS HAD EXPIRED?

 

Appellant will file a brief under Rule 22(b) in support of said certificate on or before the 3rd day of December, 2020.




Monday, November 2, 2020

Miscellaneous Docket - Summary Dispositions

 

No. 21-0003/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party In Interest. CCA 20200436. On consideration of the petition for extraordinary relief in the nature of a writ of prohibition, it is ordered that the petition is denied without prejudice to Petitioner's right to raise the matters asserted during the normal course of appellate review.

 

No. 21-0015/AR. Nidal M. Hasan, Petitioner v. United States Army Court of Criminal Appeals, Respondent and United States, Real Party In Interest. CCA 20130781. On consideration of the petition for extraordinary relief in the nature of a writ of mandamus, it is ordered that the petition is denied without prejudice to Petitioner's right to raise the matters asserted during the normal course of appellate review.




Friday, October 30, 2020

Order Granting Petition for Review

 

No. 20-0345/AR. U.S. v. Jacob L. Brubaker-Escobar. CCA 20190618. 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 personally asserted issue:

 

WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE AS A RESULT OF THE STAFF JUDGE ADVOCATE'S ERRONEOUS ADVICE DEPRIVED THE ARMY COURT OF JURISDICTION UNDER ARTICLE 66, UCMJ.

 

Briefs will be filed under Rule 25.




Wednesday, October 28, 2020

Petition for Grant of Review - Summary Disposition

 

No. 20-0301/MC. U.S. v. Guillermo Cabrera. CCA 201800327. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, the motion to remand for factfinding, and the motion to supplement the record, it is ordered that said petition is granted on the following issues:

 

AFTER GOVERNMENT DISCOVERY VIOLATIONS RESULTED IN A MISTRIAL, WAS APPELLANT'S SECOND TRIAL PROHIBITED BY RULE FOR COURTS-MARTIAL 915(c)(2)(A) AND THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT?

 

DID LTCOL KASPRZYK'S SUBSTANTIVE PARTICIPATION IN APPELLANT'S CASE WHILE SIMULTANEOUSLY ALLEGEDLY APPLYING FOR EMPLOYMENT TO SERVE AS THE PROSECUTION'S EXPERT ADVISOR UNDERMINE THE PUBLIC'S CONFIDENCE IN THE JUDICIAL PROCESS?

 

WERE THE TRIAL AND APPELLATE DEFENSE COUNSEL INEFFECTIVE WHERE THEY FAILED TO FILE A MOTION TO COMPEL THE GOVERNMENT TO PRODUCE REQUESTED DISCOVERY REGARDING LTCOL KASPRZYK'S ALLEGED CONFLICT OF INTEREST AND FAILED TO RAISE THE ISSUE ON APPEAL?

 

That the motion to remand for factfinding is granted in part as noted below, that the motion to supplement the record is granted, and  the decision of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to that court for further appellate inquiry of the granted issues. The Court of Criminal Appeals will obtain affidavits from the trial defense counsel (military and civilian) and initial appellate defense counsel (military and civilian) that respond to Appellant's allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2012), the Court of Criminal Appeals shall review the granted issues in light of the affidavits and any other relevant matters. See United States v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). If the court determines that a factfinding hearing is necessary to resolve any of the granted issues, that court shall order a hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). Once the necessary information is obtained, the court will complete its Article 66(c), UCMJ, review. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2012), shall apply.




Monday, October 26, 2020

Interlocutory Order

 

No. 20-0252/AF. U.S. v. Rodney M. Tyler. CCA 39572. On further consideration of the granted issue, the record of trial, Appellant's brief, and the matters submitted in the Joint Appendix, a transcription of the following exhibit is required for the Court's consideration of the granted issue:

 

One (1) disc containing an audio/video recorded interview of M.L. conducted on March 10, 2017. The DVD is labeled Prosecution Exhibit 3.

 

Accordingly, it is ordered that the government produce a transcription of the matters contained in the exhibit identified above, and that the transcription be filed with this Court on or before the 23rd day of November, 2020.




Friday, October 23, 2020

Petition for New Trial - Summary Disposition

 

No. 20-0328/AF. Camen J. Scilluffo, Petitioner v. United States, Respondent. CCA 39539. On consideration of the petition for new trial, it is ordered that the petition is denied.




Tuesday, October 6, 2020

Miscellaneous Docket - Summary Disposition

 

No. 20-0372/AF. Paul D. Voorhees, Petitioner v. United States, Respondent. CCA 38836. On consideration of the petition for extraordinary relief in the nature of a writ of error coram nobis, it is ordered that the petition is denied.




Thursday, October 1, 2020

Order Granting Petition for Review

 

No. 20-0286/AF. U.S. v. Jacob M. Ozbirn. CCA 39556. 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 issue:

 

WHETHER THE EVIDENCE THAT APPELLANT ASKED FOR "NAKED PICTURES" FROM ADULTS PRETENDING TO BE MINORS IS LEGALLY SUFFICIENT TO SUSTAIN A CONVICTION FOR ATTEMPTED RECEIPT OF CHILD PORNOGRAPHY.

 

Briefs will be filed under Rule 25.




Tuesday, September 22, 2020

Orders Granting Petition for Review

 

No. 20-0252/AF. U.S. v. Rodney M. Tyler. CCA 39572. 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 WHEN HE PERMITTED TRIAL COUNSEL TO ARGUE FACTS NOT IN EVIDENCE; NAMELY, THE UNSWORN VICTIM IMPACT STATEMENTS WHICH WERE NOT ADMITTED AS EVIDENCE UNDER RULE FOR COURTS-MARTIAL 1001(b)(4).

 

Briefs will be filed under Rule 25.

 

No. 20-0340/AF. U.S. v. Eric R. Proctor. CCA S32554. 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:

 

AT AN ALL-CALL PRIOR TO APPELLANT'S COURT-MARTIAL, APPELLANT'S SQUADRON COMMANDER SOUGHT TO ADDRESS HIS "NCO PROBLEM" BY HIGHLIGHTING THE NEGATIVE CAREER IMPACTS SOMEONE COULD SUFFER IF THEY PROVIDED A CHARACTER LETTER FOR AN ACCUSED AIRMAN. DID THE AIR FORCE COURT ERR WHEN IT FOUND, BEYOND A REASONABLE DOUBT, THAT THIS UNLAWFUL COMMAND INFLUENCE DID NOT PLACE AN INTOLERABLE STRAIN ON THE PUBLIC'S PERCEPTION OF THE MILITARY JUSTICE SYSTEM?

 

Briefs will be filed under Rule 25.




Tuesday, August 25, 2020

Order Granting Petition for Review

 

No. 20-0289/AR. U.S. v. Kevin M. Furth. CCA 20180191. 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 RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS ERRONEOUSLY ADVISED THAT HIS PENDING RESIGNATION REQUEST, IF APPROVED, WOULD VACATE HIS GUILTY PLEA.

 

Briefs will be filed under Rule 25.




Monday, August 17, 2020

Order Granting Petition for Review

 

No. 20-0294/AF. U.S. v. Ryan M. Vanvalkenburgh. CCA 39571. 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 RULE FOR COURTS-MARTIAL (R.C.M.) 912(f)(4) VIOLATES A SERVICEMEMBER'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

 

II. WHETHER APPELLANT WAIVED, FORFEITED, OR PRESERVED A CHALLENGE TO THE CONSTITUTIONALITY OF R.C.M. 912(f)(4).

 

Briefs will be filed under Rule 25.




Monday, August 3, 2020

Certificate for Review Filed

 

No. 20-0342/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date.

 

DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXCLUDING THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ.




Tuesday, July 28, 2020

Order Granting Petition for Review

 

No. 20-0268/MC. U.S. v. Gregory S. Simpson. CCA 201800268. On consideration of Appellant's 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 IT IS LEGALLY IMPOSSIBLE FOR APPELLANT TO BE CONVICTED OF DISTRIBUTING INDECENT IMAGES TO HIMSELF UNDER ARTICLE 77, UCMJ, WHEN THE PLAIN LANGUAGE OF ARTICLE 120c(d)(5), UCMJ REQUIRES THE IMAGES BE DISTRIBUTED TO "ANOTHER."

 

Briefs will be filed under Rule 25.




Thursday, July 23, 2020

Certificate for Review Filed

 

No. 20-0327/NA. United States, Appellee/Cross-Appellant v. Stephen A. Begani, Appellant/Cross-Appellee. CCA 201800082. Notice is 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 issue:

 

WHETHER APPELLANT WAIVED OR FORFEITED THE RIGHT TO ASSERT THAT HIS COURT-MARTIAL VIOLATED HIS RIGHT TO EQUAL PROTECTION.

 

It is ordered that this case is hereby consolidated with United States v. Begani, Docket No. 20-0217/NA.

 

Appellant/Cross-Appellee shall file a combined brief on the granted and certified issues on or before August 24, 2020. The briefing schedule under Rule 19(b)(3) shall apply.




Wednesday, July 22, 2020

Certificate for Review Filed

 

No. 20-0325/AR. United States, Appellant v. Dashaun K. Henry, Appellee. CCA 20190688. Notice is given that a certificate for review of the decision of the United States Army Court of Criminal Appeals and supporting brief were filed under Rule 22 on this date.

 

DID THE MILITARY JUDGE ABUSE HIS DISCRETION IN EXCLUDING THE FOUR STATEMENTS ON WHICH THE PROSECUTION SOUGHT INTERLOCUTORY APPELLATE REVIEW, PURSUANT TO ARTICLE 62, UCMJ.

 

Appellee will file an answer under Rule 22(b) on or before the 3rd day of August, 2020.




Tuesday, July 14, 2020

Order Granting Petition for Review

 

No. 20-0262/AF. U.S. v. Kaleb S. Garcia. CCA 2019-07. On consideration of Appellant's petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2012), it is ordered that said petition is granted on the following issue:

 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING THAT THE MILITARY JUDGE ABUSED HER DISCRETION IN SUPPRESSING EVIDENCE OBTAINED AS A RESULT OF A SEARCH AND SEIZURE OF APPELLANT'S DNA.

 

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




Tuesday, July 7, 2020

Order Granting Petition for Review

 

No. 20-0267/AF. U.S. v. Ryan G. Uribe. CCA 39559. 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 LOWER COURT ERRED IN FINDING THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN DENYING A JOINT MOTION TO RECUSE.

 

Briefs will be filed under Rule 25.




Wednesday, July 1, 2020

Certificate for Review Filed

 

No. 20-0288/MC. United States, Appellant v. Michael J. Brown, Appellee. CCA 201900050. 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:

 

DID THE LOWER COURT ERR FINDING THAT IT HAD POTENTIAL JURISDICTION?

 

Appellee will file a brief under Rule 22(b) on or before the 9th day of July, 2020.




Monday, June 29, 2020

Order Granting Petition for Review

 

No. 20-0221/MC. U.S. v. Thomas E. Mader III. CCA 201800276. 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:

 

CONSENT IS A DEFENSE TO ASSAULT CONSUMMATED BY A BATTERY. THE LOWER COURT FOUND THAT EVEN THOUGH APPELLANT HAD MISTAKENLY BELIEVED OTHER MARINES CONSENTED, NO PERSON IN ANY SIMILAR CIRCUMSTANCES COULD EVER LAWFULLY CONSENT. DID THE LOWER COURT ERR?

 

Briefs will be filed under Rule 25.




Thursday, June 25, 2020

Order Granting Petition for Review

 

No. 20-0217/NA. U.S. v. Stephen A. Begani. CCA 201800082. 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 issue:

 

WHETHER ARTICLE 2, UCMJ, VIOLATES APPELLANT'S RIGHT TO EQUAL PROTECTION WHERE IT SUBJECTS THE CONDUCT OF ALL FLEET RESERVISTS TO CONSTANT UCMJ JURISDICTION, BUT DOES NOT SUBJECT RETIRED RESERVISTS TO SUCH JURISDICTION.

 

Briefs will be filed under Rule 25.




Friday, May 29, 2020

Order Granting Petition for Review

 

No. 20-0206/CG. U.S. v. Justin D. Steen. CCA 1464. 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:

 

MRE 404(b) PROTECTS THE ACCUSED'S RIGHT TO A FAIR TRIAL BY EXCLUDING PREJUDICIAL PROPENSITY EVIDENCE. THE MILITARY JUDGE ERRONEOUSLY ADMITTED PROPENSITY EVIDENCE AND INSTRUCTED THE MEMBERS TO CONSIDER EVIDENCE FOR AN IMPROPER PURPOSE. DID THIS ERROR PREJUDICE APPELLANT?

 

Briefs will be filed under Rule 25.




Tuesday, May 26, 2020

Orders Granting Petition for Review

 

No. 20-0142/CG. U.S. v. Koda M. Harpole. CCA 1420. 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 issues:

 

I.   WAS THE VICTIM ADVOCATE REQUIRED TO ADVISE APPELLANT OF HIS RIGHTS UNDER ARTICLE 31(b), UCMJ?

 

II.  WERE TRIAL DEFENSE COUNSEL INEFFECTIVE WHEN THEY FAILED TO MOVE TO SUPPRESS APPELLANT'S STATEMENT TO THE VICTIM ADVOCATE WHEN SUCH STATEMENT WAS TAKEN IN VIOLATION OF ARTICLE 31(b), UCMJ?

 

Briefs will be filed under Rule 25.

 

No. 20-0176/NA. U.S. v. Darrius D. Upshaw. CCA 201600053. 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.   WAS THE MILITARY JUDGE'S IMPROPER PROPENSITY INSTRUCTION, IN VIOLATION OF UNITED STATES v. HILLS, 75 M.J. 350 (C.A.A.F. 2016), HARMLESS ERROR BEYOND A REASONABLE DOUBT?

 

II.  WAS A RECUSED JUDGE'S SUBSTANTIVE PARTICIPATION IN APPELLANT'S CASE AFTER HE RECUSED HIMSELF HARMLESS ERROR?

 

Briefs will be filed under Rule 25.




Tuesday, April 21, 2020

Order Granting Petition for Review

 

No. 20-0168/AF. U.S. v. Kevin S. Chandler. CCA S32534. 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:

 

THE STAFF JUDGE ADVOCATE NEGOTIATED THE INCLUSION OF AGGRAVATING EVIDENCE IN A STIPULATION OF FACT. OVER DEFENSE OBJECTION, AND AFTER DISPUTING THE DEFENSE'S VERSION OF EVENTS, THE STAFF JUDGE ADVOCATE PROVIDED POST-TRIAL ADVICE TO THE CONVENING AUTHORITY. DID THE STAFF JUDGE ADVOCATE'S PRETRIAL CONDUCT WARRANT DISQUALIFICATION?

 

Briefs will be filed under Rule 25.




Wednesday, March 25, 2020

Order Granting Petition for Review

 

No. 20-0090/AR. U.S. v. Jesus D. Cardenas. CCA 20180416. 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 ARMY COURT, AFTER FINDING APPELLANT'S CONVICTIONS WERE MULTIPLICIOUS, ERRED IN PERMITTING THE GOVERNMENT TO CHOOSE WHICH OF THE APPELLANT'S CONVICTIONS TO DISMISS ON APPEAL.

 

Briefs will be filed under Rule 25.




Wednesday, February 5, 2020

Order Granting Petition for Review

 

No. 19-0449/AF. U.S. v. Ladarion D. Stanton. CCA 39161. 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:

 

THE CONVENING AUTHORITY AND APPELLANT ENTERED INTO AN AGREEMENT THAT APPELLANT WOULD BE ADMINISTRATIVELY DISCHARGED IN LIEU OF THE SENTENCE REHEARING AUTHORIZED BY THE LOWER COURT. THE CONVENING AUTHORITY THEN PROCEEDED WITH APPELLANT'S COURT-MARTIAL BY APPROVING A SENTENCE OF "NO PUNISHMENT" AND FORWARDING THIS CASE TO THE LOWER COURT FOR FURTHER APPELLATE REVIEW. SHOULD THIS CASE BE DISMISSED WITH PREJUDICE FOR BREACH OF A MATERIAL TERM OF APPELLANT'S PRETRIAL AGREEMENT WITH THE CONVENING AUTHORITY?

 

Briefs will be filed under Rule 25.




Tuesday, January 21, 2020

Orders Granting Petition for Review

 

No. 20-0006/NA. U.S. v. Matthew D. Norwood. CCA 201800038. 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 MILITARY JUDGE ERRED IN ADMITTING, OVER DEFENSE OBJECTION, THE ENTIRE VIDEO-RECORDED INTERVIEW OF THE COMPLAINING WITNESS UNDER MRE 801(d)(1)(B)(ii) AS A PRIOR CONSISTENT STATEMENT.

 

II.  WHETHER THE GOVERNMENT TRIAL COUNSEL'S ARGUMENTS AMOUNTED TO PROSECUTORIAL MISCONDUCT THAT WARRANTS RELIEF.

 

Briefs will be filed under Rule 25.

 

No. 20-0019/AF. U.S. v. Jared D. Bavender. CCA 39390. 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 WHEN HE DENIED THE DEFENSE MOTION TO SUPPRESS EVIDENCE LOCATED ON APPELLANT'S DIGITAL MEDIA.

 

Briefs will be filed under Rule 25.

 

No. 20-0033/AR. U.S. v. Thomas Ayala. CCA 20170336. 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 IN ADMITTING THE VICTIM'S PRIOR CONSISTENT STATEMENTS UNDER MIL. R. EVID. 801(d)(1)(B)(i) AND 801(d)(1)(B)(ii).

 

No briefs will be filed under Rule 25.




Tuesday, September 24, 2019

Order Granting Petition for Review

 

No. 19-0384/AR. U.S. v. Michael J. Guinn. CCA 20170500. 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 THE ARMY COURT CONDUCTED A VALID ARTICLE 66 REVIEW WHEN IT FAILED TO CONSIDER APPELLANT'S FIRST AND FIFTH AMENDMENT CLAIMS EVEN WHILE ENTERTAINING HIS EIGHTH AMENDMENT CLAIMS.

 

II.  WHETHER APPELLANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED BY A CONFINEMENT FACILITY POLICY THAT BARRED HIM FROM ALL FORMS OF COMMUNICATION WITH HIS MINOR CHILDREN WITHOUT AN INDIVIDUALIZED ASSESSMENT DEMONSTRATING THAT AN ABSOLUTE BAR WAS NECESSARY.

 

No briefs will be filed under Rule 25.


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