PETITIONS FOR GRANT OF REVIEW FILED
No. 98-0174/AF. U.S. v. Albert M. BROUILLETTE. CCA 32527.*/
No. 98-0838/AF. U.S. v. Raymond BESEMER, Jr. CCA 33030.
No. 98-0839/AF. U.S. v. David B. GIVANS. CCA 32995.
No. 98-0840/AF. U.S. v. William C. MILLER, Jr. CCA 32720.
No. 98-0841/AF. U.S. v. Todd E. PAYNE. CCA S29504.
No. 98-0842/AF. U.S. v. Michael A. TORRES. CCA 32621.
No. 98-0488/AR. U.S. v. Lawrence P. ROCKWOOD, II. CCA 9500872. Appellant’s motion to exceed page limitations granted.
No. 98-0497/NA. U.S. v. Charles W. DAVIS. CCA 96-0585. Appellant’s third motion to extend time to file supplement to petition for grant of review granted to July 29, 1998.
No. 98-0639/AF. U.S. v. Michael A. REED. CCA 32500. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to July 31, 1998.
No. 98-0679/AR. U.S. v. Carlos V. DIAZ-DUPREY. CCA 9600181. Appellant’s second motion to extend time to file supplement to petition for grant of review granted but only to August 12, 1998.
No. 98-0750/NA. U.S. v. Edwin H. SMITH. CCA 97-0225. To July 29, 1998.
No. 98-0773/AR. U.S. v. Dexter G. HOWARD. CCA 9700204. To August 13, 1998.
In each of the above two cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to the date indicated.
No. 96-1399/AF. U.S. v. Kevin P. RUSSELL. CCA 31730.
No. 97-0202/AF. U.S. v. Maurice C. BRIGGS. CCA 31858.
No. 97-0562/AR. U.S. v. Troy
M. WILLARD. CCA 9501598.
___________
*/ Second
petition filed in same case.
PETITIONS FOR GRANT OF REVIEW FILED
No. 98-0843/AR. U.S. v. Raymond M. CRUZ, Jr. CCA 9701356.
No. 98-0844/AR. U.S. v. Patrick G. GALL. CCA 9701497.
No. 98-0845/AR. U.S. v. Curt F. WARD. CCA 9600700.
Misc. No. 98-8020/NA. Todd R. FORBES, appellant, v. Captain D. A. D’ALESIO, Judge Advocate General’s Corps, United States Navy, Military Judge, and the United States of America, appellees. CCA 98-00782. Wtit-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals’ denial of petition for extraordinary relief and brief filed under Rule 27(b). Appellees will file answer on or before the 22nd day of July 1998.
No. 98-0232/AR. U.S. v. Kurt M. BERTIE. CCA 9600846. Appellant’s motion to extend time to file final brief granted to August 13, 1998.
No. 98-0755/MC. U.S. v. Robert NEGRIN. CCA 97-0100. To July 31, 1998.
No. 98-0756/MC. U.S. v. Michael L. ROWEN. CCA 97-0264. To July 31, 1998.
No. 98-0757/NA. U.S. v. Donnell J. PALMORE. CCA 97-1529. To August 3, 1998.
In each of
the above three cases, appellant’s motion to extend time to file supplement
to petition for grant of review granted to the date indicated.
PETITIONS FOR GRANT OF REVIEW FILED
No. 98-0172/AF. U.S. v. Grady A. JIMERSON. CCA 32746.*/
No. 98-0846/AR. U.S. v. Juan W. BUCK. CCA 9600177.
No. 98-0847/AR. U.S. v. Martez L. HENDERSON. CCA 9501435.
No. 98-0848/AR. U.S. v. Lafrantz D. ONEAL. CCA 9601611.
No. 98-0849/MC. U.S. v. John G. JOHANNESEN. CCA 97-1847.
No. 98-0850/NA. U.S. v. Titus D. THOMAS. CCA 97-0963.
No. 98-0851/NA. U.S. v. Eric E. HARRISON. CCA 97-2204.
No. 98-0852/MC. U.S. v. David B. SCHAMBER. CCA 97-2025.
No. 98-0853/AF. U.S. v. Brett P. SANCHEZ. CCA 33143.
No. 98-0865/AR. U.S. v. Richard
A. IGLESIAS. CCA 9600230.
_________
*/ Second
petition filed in same case.
PETITIONS FOR GRANT OF REVIEW FILED
No. 98-0854/AR. U.S. v. Charles A. EDEKI. CCA 9601834.
No. 98-0855/AR. U.S. v. David R. FORD. CCA 9601467.
INTERLOCUTORY ORDERS
No. 97-1061/CG. U.S. v. Frank J. DIRE. CCA 1077. Appellant’s fourth motion to extend time to file final brief granted but only to July 24, 1998; and no more extensions of time will be granted in this case.
No. 98-5015/AF. U.S. v. Darrell
J. EVANS. CCA 32626. Cross-appellant’s motion to extend time to file supplement
to cross-petition for grant of review granted to July 24, 1998.
APPEALS - SUMMARY DISPOSITIONS
No. 97-0812/NA. U.S. v. Carl C. PEVEHOUSE. CCA 95-0802. On further consideration of the granted and specified issues, __ MJ __ (Daily Journal Sept. 23, 1997), in light of United States v. Jones, 39 MJ 315 (CMA 1994), we hold that the Court of Criminal Appeals did not abuse its discretion by reassessing appellant’s sentence and affirming the sentence originally adjudged by the trial court. Accordingly, the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.
No. 98-0020/AF. U.S. v. Bryan M. KACZOROWSKI. CCA 32199.*/
No. 98-0022/AF. U.S. v. Shymeka E. HALL. CCA 32502.*/
No. 98-0030/AF. U.S. v. Bryan S. MAIFEA. CCA S29305.*/
No. 98-0856/AF. U.S. v. Wilbert M. ABRIL. CCA 32856.
No. 98-0857/AF. U.S. v. Brad ARNOLD. CCA S29491.
No. 98-0858/AF. U.S. v. Lewis J. BANKS, Jr. CCA 33163.
No. 98-0859/AF. U.S. v. Guillermo GARZA. CCA 33028.
No. 98-0860/AF. U.S. v. Carl W. GONZALEZ. CCA 32832.
No. 98-0861/AF. U.S. v. Damon R. HICKS. CCA S29354.
No. 98-0862/AF. U.S. v. Carey J. JONES. CCA S29344.
No. 68037/CG. U.S. v. Dorin C. TOWNSEND. CCA 981.
No. 97-1164/CG. U.S. v. Orison S. ACEVEDO. CCA 1066.
No. 97-5004/CG. U.S. v. Todd C. PADGETT. CCA 1060.
No. 98-0034/CG. U.S. v. Scott L. GILBERT. CCA 1067.
In each of the above four cases, motion filed by Lieutenant Richard R. Beyer to withdraw as appellate counsel granted.
No. 97-7001/AF. U.S. v. Jose F.S. SIMOY. CCA 30496. Appellee’s motions to file supplemental citation of authority and to split oral argument and appellant’s motion to file supplemental citations of authority granted.
No. 98-0265/NA. U.S. v. Darrin L. SHORT. CCA 95-1617. Appellant’s motion to extend time to file reply brief granted to July 10, 1998.
No. 98-0309/MC. U.S. v. Aaron S. VOORHEES. CCA 97-0831. To August 17, 1998.
No. 98-0431/NA. U.S. v. Stephanie K. FEE. CCA 97-0382. To August 10, 1998.
In each of the above two cases, appellant’s motion to extend time to file final brief granted to the date indicated.
No. 98-0752/AR. U.S. v. John M. McCLAIN, Jr. CCA 9501831. Appellant’s motion to extend time to file supplement to petition for grant of review granted to August 3, 1998
No. 98-0859/AF. U.S. v. Guillermo GARZA. CCA 33028.
No. 98-0860/AF. U.S. v. Carl W. GONZALEZ. CCA 32832.
No. 98-0862/AF. U.S. v. Carey J. JONES. CCA S29344.
In each of the above three cases, the petition for grant of review was offered for filing under Rule 20, together with appellant’s motion to file the same out of time. Appellee will file an answer to appellant’s motion on or before the 15th day of July, 1998. Further action on the petition shall be held in abeyance pending the Court’s final action on the motion.
No. 98-5016/AF. U.S. v. Lawrence
M. HANLON, II. CCA 32650. Cross-appellant’s motion to extend time to file
supplement to cross-petition for grant of review granted to July 27, 1998.
________
*/ Second
petition filed in same case.
ORDERS GRANTING PETITION FOR REVIEW
No. 97-1137/AF. U.S. v. Dudley S. ANDERSON. CCA 31996. Review granted on the following issues:
II. WHETHER APPELLANT WAS SUBSTANTIALLY PREJUDICED BY THE TESTIMONY OF THE GOVERNMENT EXPERT WITNESS, WHICH IMPERMISSIBLY BOLSTERED THE CREDIBILITY OF THE GOVERNMENT WITNESSES ACCUSING APPELLANT, BY CONCLUDING THAT THEY WERE TRUTHFUL AND GAVE THEIR ALLEGATIONS A "STAMP OF SCIENTIFIC LEGITIMACY" AS WELL AS IMPERMISSIBLY "PROFILING" APPELLANT AS A CHILD SEXUAL ABUSER.
III. WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL ERROR BY INSTRUCTING THE MEMBERS THAT PRIOR STATEMENTS COULD BE CONSIDERED AS SUBSTANTIVE EVIDENCE WHEN THEY DID NOT MEET THE EXPRESS REQUIREMENTS OF MIL.R.EVID. 801(d)(1)(B) AND UNITED STATES V. MCCASKEY, 30 MJ 188 (CMA 1990).
II. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE MEMBERS THEY COULD CONVICT APPELLANT OF BOTH OBSTRUCTION OF JUSTICE AND THE LESSER INCLUDED OFFENSE OF SOLICITATION TO OBSTRUCT JUSTICE.
No. 98-0391/AF U.S. v. Brian A. GIRARDIN. CCA S29415.
There is an old story about Justice Oliver Wendell Holmes, Jr., when he was departing a Boston Bar farewell dinner on the evening before he was to leave for Washington to take his seat on the U.S. Supreme Court. Someone yelled out to the departing Holmes:
I cannot judge the cost of benefits of this program; such matters are beyond my ken and the record in this case. All I can see is an increasing number of cases where the card has been misused. For example, in this case, a 23-year-old Senior Airman received 3 months in jail and is saddled with a federal conviction for the rest of his life as a result of his misuse of this American Express program.
I concur with the legal finding that appellant committed a crime in misusing his American Express credit card for his personal use while not on temporary government travel. Thus, I concur with the denial of the petition. However, the record contains some disturbing facts about the American Express Card Program. The record shows that a 23-year-old airman with an 18-year-old wife and two children (ages 2 and 3) had financial difficulties, and that the command knew about the situation and counseled appellant 7 months before the card misuse.
With the above factual situation in mind, I am troubled by my reading of the record in this case and by seeing the following statement by appellant:
MJ: Very well.
UNSWORN STATEMENT
(Presented by the accused)
* * *
I never asked to have this credit card. I did not have any credit card before this and I did not want the American Express card. The Air Force told me that I had to have it. They gave me what seemed like unlimited access to money. My squadron told me not to use it except for official business, then said I would be responsible for any charges on the card. The Air Force has not lost any money because of my use of the American Express card. This, however, does not excuse my misconduct. I accept full responsibility for my actions and understand the seriousness of my unauthorized use of the American Express card. Please, however, consider my family when you sentence me. And I ask that you please do not sentence me to a bad-conduct discharge.
Perhaps a change in the credit card program or more leadership by commanders or a more active military program to identify and educate financially troubled service persons could have prevented this crime. There is no excuse for appellant. He committed a crime. I am sure that the Department of Defense continues to focus on the credit card system and to see if a crime like this one can be prevented in the future. Opportunity often creates a thief or an abuser of a government program.
Personally, I know the leaders in the Department of Defense have recognized the problem and are working on cutting down the opportunity to abuse the American Express system. For example, some commanders hold credit cards for junior enlisted personnel in the company or squadron safe until an official need actually occurs and require a turn-in of the card immediately after the period of use. As I have stated at the beginning of this opinion, appellant was properly tried and on appeal he presents no good cause for this Court to grant his petition. Accordingly, I join my fellow judges in denying this petition.
No. 98-0863/NA. U.S. v. Wilmor F. ORDILLAS. CCA 97-1195.
No. 98-0864/MC. U.S. v. Christopher L. BRIDGEMAN. CCA 97-1789.
No. 97-1061/CG. U.S. v. Frank J. DIRE. CCA 1077. Motion filed by Lieutenant Richard R. Beyer to withdraw as appellate counsel granted.
No. 97-1164/CG. U.S. v. Orison S. ACEVEDO. CCA 1066.
No. 98-0034/CG. U.S. v. Scott L. GILBERT. CCA 1067.
In each of the above two cases, appellee’s motion to extend time to file answer to final brief granted to August 6, 1998.
No. 98-0078/AR. U.S. v. Ervin M. GRAVES. CCA 9401271.
No. 98-0775/AR. U.S. v. Shaun M. SMITH. CCA 9600300.
No. 98-0780/AF. U.S. v. Dennis A. JOHNSON. CCA S29453.
No. 98-0764/AR. U.S. v. Trevor D. GORDON. CCA 9700390. To August 7, 1998.
No. 98-0834/AR. U.S. v. Tony A. SOFTLEY. CCA 9700967. To August 31, 1998.
In each of the above five cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to August 10, 1998, unless otherwise indicated.
No. 98-0093/NA. U.S. v. Fernando L. FLORES-GALARZA. CCA 94-0948. Appellant’s motions to file petition for reconsideration out of time and to attach documents denied.
No. 98-0298/AF. U.S. v. Steven W. CRUM. CCA 32686. Appellant’s motions to submit documents and to file reply to Government's answer to the appellant's supplement to petition for grant of review out of time denied.
Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0356/AR. U.S. v. Juana L. SMITH. CCA 9601110. Appellant’s motion to supplement supplement to petition for grant of review granted.
Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0388/AR. U.S. v. Derek C. ARMON. CCA 9601892. Appellant’s motion to extend time to file final brief granted to August 13, 1998.
No. 98-0511/MC. U.S. v. Andrea N. LACY. CCA 97-0667. Motion filed by Lieutenant Albert L. Di Giulio to withdraw as appellate counsel granted.
No. 98-0658/NA. U.S. v. Darrell
J. MUIRHEAD. CCA 96-1211. Appellant’s second motion to extend time
to file supplement to petition for grant of review granted to July 15,
1998.
APPEALS - SUMMARY DISPOSITIONS
No. 97-0219/AR. U.S. v. Rodrick E. DENTON, Jr. CCA 9501968. On further consideration of the granted issue, 46 MJ 419-20 (1997), we find that the granted issue was neither raised nor litigated at trial and is therefore deemed waived. See para. 5(c)(8), Part IV, and RCM 1003(c)(1)(C), Manual for Courts-Martial, United States (1995 ed.); cf. United States v. Stottlemire, 28 MJ 477 (CMA 1989); see also generally United States v. Teters, 37 MJ 370 (CMA 1993). Therefore, the decision of the United States Army Court of Criminal Appeals is affirmed.
EFFRON, Judge (concurring in the result):
I agree that the issue was waived. See United States v. Lloyd, 46 MJ 19 (1997).
No. 98-0203/MC. U.S. v. Rodney L. WIGGINS. CCA 95-1489.
No. 98-0204/AR. U.S. v. Jeffery A. BROWN. CCA 9600764.
Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0334/AR. U.S. v. Timothy M. YOHMAN. CCA 9701171.
Judge SULLIVAN would grant the following issue:
No. 98-0322/AR. U.S. v. Frederick J.B. JONES. CCA 9700692. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in the above-entitled case in light of United States v. Gorski, 47 MJ 370 (1997), 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 consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), and the addition of Article 58b, UCMJ, 10 USC § 858b, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996), affect the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.
I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).
Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0333/AR. U.S. v. Paul S. WORRELL. CCA 9601261. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in the above-entitled case in light of United States v. Gorski, 47 MJ 370 (1997), it is ordered that 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 consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462 (1996), affects the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.
I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).
Judge Effron did not participate in this decision. See United States v. Gorski, No. 97-0034, MJ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0866/AF. U.S. v. Rebecca L. FRANKLIN. CCA 32976.
No. 98-0867/AF. U.S. v. Montrell N. JACKSON. CCA 32888.
No. 98-0868/MC. U.S. v. Douglas R. BEARDEN. CCA 97-2134.
No. 98-0869/NA. U.S. v. Kenneth J. BURTON. CCA 97-0578.
No. 98-0870/MC. U.S. v. Clifton T. COOPER. CCA 97-1038.
No. 98-0871/NA. U.S. v. Mark A. JONES. CCA 96-2339.
No. 98-0872/NA. U.S. v. Darrel W. LEVITCH. CCA 96-2141.
No. 98-0873/MC. U.S. v. Bryan R. WRIGHT. CCA 97-0662.
No. 98-0865/AR. U.S. v. Richard
A. IGLESIAS. CCA 9600230. Appellant’s motion to file petition for grant
of review out of time granted.
PETITIONS FOR GRANT OF REVIEW FILED
No. 98-0874/AF. U.S. v. Gary D. CUNDIFF. CCA 32817.
No. 98-0875/AF. U.S. v. Brandon P. GROVES. CCA S29331.
No. 98-0876/AF. U.S. v. Ronale D. JOHNSON. CCA S29359.
No. 98-0877/AF. U.S. v. Shane P. MILLER. CCA 32833.
No. 98-0878/MC. U.S. v. Derek A. ACKLEY. CCA 97-0239.
No. 98-0879/NA. U.S. v. Mark D. BOYCE. CCA 97-1189.
No. 98-0880/MC. U.S. v. Jesse R. GROFF. CCA 97-1814.
No. 98-0881/AR. U.S. v. Ralph V. GILCREASE. CCA 9601734.
No. 98-0882/AR. U.S. v. Jeremy J. WILLIAMS. CCA 9601126.
No. 97-0180/AR. U.S. v. Billy W. BRANSFORD. CCA 9402076. Appellant’s motions to file untimely petition for reconsideration (pro se), to file brief in excess of page limit, and to suspend the copies to be filed denied.
No. 97-7001/AF. U.S. v. Jose F.S. SIMOY. CCA 30496. Appellant’s motions to split oral argument and for permission to display video granted.
No. 98-0306/MC. U.S. v. Kenneth
R. WATT. CCA 96-1587. Appellant’s motion to extend time to file final brief
granted, but only up to and includingAugust3,
1998.
HEARINGS
No. 97-7001/AF. U.S. v. Jose F.S. SIMOY. CCA 30496.
PETITIONS FOR GRANT OF REVIEW FILED
No. 98-0883/MC. U.S. v. Grant K. FUKUDA. CCA 97-1924.
No. 98-0884/MC. U.S. v. Shawn L. WILLIAMS. CCA 98-0085.
No. 98-0885/AR. U.S. v. Brian P. GRAML. CCA 9602000.
No. 98-0886/AR. U.S. v. Morris W. ROBERTS, Jr. CCA 9800591.
No. 98-0306/MC. U.S. v. Kenneth
R. WATT. CCA 96-1587. Motion filed by Lieutenant Jeffrey K. Van Nest to
withdraw as appellate counsel granted.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 98-0408/MC. U.S. v. Jason R. CRAWFORD. CCA 97-1563.
No. 98-0462/AF. U.S. v. John T. BAUER. CCA 32669.
No. 98-0268/NA. U.S. v. Johnny JACKSON. CCA 97-0560.
On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals in the above-entitled case in light of United States v. Gorski, 47 MJ 370 (1997), 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 consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), and the addition of Article 58b, UCMJ, 10 USC § 858b, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996), affect the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.
Judge Effron
did not participate in this decision. See United States v. Gorski,
__ MJ ____ (Daily Journal September 8, 1997). This is without prejudice
to his future participation in this case should it subsequently be presented
to this Court in a manner that does not require determination of the application
of the ExPostFacto Clause of the United States Constitution to the
amendments to Title 10, United States Code, made by the National Defense
Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63
(1996).
PETITIONS FOR GRANT OF REVIEW DENIED
No. 98-0407/NA. U.S. v. Dante S. CRAIG. CCA 97-0892.
No. 98-0470/AF. U.S. v. Robert R. GILLESPIE. CCA 32466.
No. 98-0482/MC. U.S. v. Robert C. AUSTGEN. CCA 97-1303.
No. 98-0491/AR. U.S. v. Ronald J. LUSTER. CCA 9502198.
No. 98-0531/AR. U.S. v. Robert L. HENDRICKS. CCA 9700356.
No. 98-0535/AF. U.S. v. Daniel R. FREZZA. CCA 32470.
No. 98-0539/AR. U.S. v. Nathan J. ALLEN. CCA 9701415.
No. 98-0579/AR. U.S. v. Lezabbein L. HARRIS. CCA 9701341.
No. 98-0611/AF. U.S. v. Derek N. DURHAM. CCA 32927.
No. 98-0620/NA. U.S. v. Jeffrey A.K. TROMBLEY. CCA 97-1119.
No. 98-0623/AF. U.S. v. Sonia F. DELOS SANTOS. CCA 32913.
No. 98-0633/NA. U.S. v. Howard W. TABOR. CCA 97-1521.
No. 98-0634/MC. U.S. v. Carlos I. EGUSQUIZAESKENAZI. CCA 97-1116.
No. 98-0638/AF. U.S. v. Jose L. RENSENDEZ, Jr. CCA S29246.
No. 98-0648/AF. U.S. v. Marcel MENDEZ. CCA 33011.
No. 98-0652/AR. U.S. v. Enmanuel GONZALEZ. CCA 9701564.
No. 98-0655/AR. U.S. v. Michael J. PEPON. CCA 9701610.
No. 98-0668/AF. U.S. v. Michael A. LEMIRE. CCA S29440.
No. 98-0669/AF. U.S. v. Jason A. ORTIZ. CCA 32916.
No. 98-0687/AF. U.S. v. Michael D. HAYES. CCA 32942.
No. 98-0693/AF. U.S. v. Jacob E. PRITCHARD. CCA 32780.
No. 98-0715/AF. U.S. v. Edward D. HARVIEUX. CCA S29470.
No. 98-0717/AF. U.S. v. Daniel G. GARRISON. CCA S29403.
No. 98-0719/MC. U.S. v. Timothy J. RYAN, Jr. CCA 97-0867.
No. 98-0722/AF. U.S. v. Mark A. SOMMERFELDT. CCA 32810.
No. 98-0728/AF. U.S. v. Joseph A. CRUZAN. CCA 32941.
No. 98-0729/MC. U.S. v. Daniel C. DAVILA, Jr. CCA 96-2458.
No. 98-0731/AR. U.S. v. Raymond B. JONES. CCA 9700370.
No. 98-0735/AF. U.S. v. Comenzo D. FULLER. CCA 32910.
No. 98-0742/AF. U.S. v. David W. ENG. CCA S29488.
No. 98-0748/AF. U.S. v. Ronald LAW. CCA 32920.
No. 98-0749/AF. U.S. v. Christopher T. YARBROUGH. CCA S29454.
No. 98-0751/NA. U.S. v. Darvin A. BALLARD. CCA 97-2141.
No. 98-0754/AF. U.S. v. Erick U. TURLA. CCA S29437.
No. 98-0760/AF. U.S. v. Dennis WILLIAMS. CCA 33017.
No. 98-0767/AF. U.S. v. Drake M. CRUZ. CCA S29414.
No. 98-0790/AR. U.S. v. Jimmie L. DUBOSE, Jr. CCA 9701331.
No. 98-0807/AF. U.S. v. Sampson C. GAYLER, II. CCA 33007.
No. 98-0887/NA. U.S. v. Ronald E. PHILLIPS. CCA 96-2444.
No. 98-0888/MC. U.S. v. Michael E. REIST. CCA 97-1294.
No. 98-0889/MC. U.S. v. Luis A. BAEZ. CCA 96-1337.
No. 98-0763/AF. U.S. v. Dewayne E. HICKS CCA S29481. Appellant’s motion to file corrected page granted.
No. 98-0511/MC. U.S. v. Andrea N. LACY. CCA 97-0667. To August 17, 1998.
No. 98-0810/AR. U.S. v. Nathan D. LOONEY. CCA 9500433. To August 21, 1998.
No. 98-0822/AR. U.S. v. Grady D. GLOVER. CCA 9600736. To August 27, 1998.
No. 98-0825/MC. U.S. v. Shanard R. MCDANIELS. CCA 97-0570. To August 26, 1998.
In each of
the above four cases, appellant’s motion to extend time to file supplement
to petition for grant of review granted to the date indicated.
ORDERS GRANTING PETITION FOR REVIEW
No. 98-0210/AR. U.S. v. Thomas G. BARRON. CCA 9501189. Review granted on the following issues raised by appellate defense counsel:
II. WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE ACCUSED WHEN HE FAILED TO GRANT THE DEFENSE MOTION TO COMPEL DISCOVERY OF DOCTOR COOPER'S NOTES AND BASIS FOR HER OPINION PRIOR TO DIRECT AND CROSS-EXAMINATION.
II. WHETHER SEPARATELY CHARGING WRONGFUL POSSESSION (CHARGE II, SPECIFICATION 2) AND WRONGFUL DISTRIBUTION (CHARGE II, SPECIFICATION 3) OF THE SAME AMOUNT OF MARIJUANA AT THE SAME TIME AND PLACE WHERE THE POSSESSION CONSISTED SOLELY OF THE TIME IT TOOK TO COMPLETE THE DISTRIBUTION CONSTITUTES AN UNREASONABLE MULTIPLICATION OF CHARGES.
No. 98-0578/AR. U.S. v. Craig L. BLASINGAME. CCA 9701369.
No. 98-0583/MC. U.S. v. Alex M. TOPP. CCA 96-2569.
No. 98-0584/MC. U.S. v. Jeremy J. VILLA. CCA 97-0184.
No. 98-0597/AR. U.S. v. David E. OTTINGER. CCA 9701511.
No. 98-0598/AR. U.S. v. Darrin R. MCCLAIN. CCA 9701168.
No. 98-0601/MC. U.S. v. Michael C. HENSLEY. CCA 97-0888.
No. 98-0605/AR. U.S. v. Alonza DAVIS. CCA 9601151.
No. 98-0608/NA. U.S. v. Jonathan A. MASTERSON. CCA 96-2085.
No. 98-0615/AR. U.S. v. Lorenzo BROOKS, Jr. CCA 9701470.
No. 98-0618/NA. U.S. v. Renardo L. HOLLEN. CCA 97-0399.
No. 98-0622/NA. U.S. v. Steve C. KELLY, Jr. CCA 96-1417.
No. 98-0624/AF. U.S. v. Ruben ESTRADA, Jr. CCA 32874.
No. 98-0629/MC. U.S. v. Gene J. CORTEZ. CCA 97-2112.
No. 98-0630/MC. U.S. v. Robert M. GLASSMAN. CCA 97-1147.
No. 98-0631/MC. U.S. v. Michael E. STAFFORD. CCA 97-0839.
No. 98-0640/AF. U.S. v. Zane I. MCBRIDE. CCA 32709.
No. 98-0642/AR. U.S. v. James R. BRYANT. CCA 98-0642.
No. 98-0643/AR. U.S. v. Dominic SANTOS. CCA 9701773.
No. 98-0644/AR. U.S. v. Gregory P. GEIST. CCA 9701515.
No. 98-0647/AF. U.S. v. David A. BRIERS. CCA 33031.
No. 98-0653/AR. U.S. v. Emmitt GOODE, III. CCA 9701996.
No. 98-0654/AR. U.S. v. Van S. JUSTICE. CCA 9701368.
No. 98-0663/MC. U.S. v. Corey D. ZIMMERMAN. CCA 97-0973.
No. 98-0664/AF. U.S. v. Jamie L. CERMINARA. CCA 32578.
No. 98-0670/AR. U.S. v. Jared W. SHEFFIELD. CCA 9601912.
No. 98-0673/AR. U.S. v. Jason R. BECK. CCA 9701412.
No. 98-0676/AF. U.S. v. David P. MASON, Jr. CCA S29433.
No. 98-0677/MC. U.S. v. James A. KOEHLER, Jr.. CCA 97-0764.
No. 98-0682/NA. U.S. v. Craig D. BAZILE. CCA 97-0902.
No. 98-0695/AF. U.S. v. Dexter F. TAYLOR. CCA 33000.
No. 98-0696/AF. U.S. v. Jerome W. THOMAS, Jr. CCA 32722.
No. 98-0699/MC. U.S. v. Corey L. CARTER. CCA 97-2119.
No. 98-0700/MC. U.S. v. Ramon O. FERRELL. CCA 97-1668.
No. 98-0701/NA. U.S. v. Jose MUNIZ, III. CCA 97-1870.
No. 98-0706/AF. U.S. v. Jose C. CANTABRANA. CCA 33082.
No. 98-0707/AF. U.S. v. Patrick K. HARRIS. CCA 32944.
No. 98-0709/AF. U.S. v. Richard O. RUSSELL. CCA S29461.
No. 98-0711/AF. U.S. v. Jeffrey T. SHEPHARD. CCA S29451.
No. 98-0720/NA. U.S. v. Tommy D. BRANCH, Jr. CCA 97-2164.
No. 98-0724/AF. U.S. v. Jeremy M. KIDD. CCA S29459.
No. 98-0726/AF. U.S. v. Matthew P. HEKKERS. CCA 33012.
No. 98-0732/AR. U.S. v. Christopher M. NOWELS. CCA 9701536.
No. 98-0734/AF. U.S. v. Jeffrey S. CLARK. CCA 32924.
No. 98-0741/MC. U.S. v. Michael A. DAVIS. CCA 96-1299.
No. 98-0743/AF. U.S. v. Derek J. GONZALES. CCA 32955.
No. 98-0747/AF. U.S. v. Brian A. FISH. CCA 32891.
No. 98-0753/AF. U.S. v. Roger D. ARNOLD. CCA S29523.
No. 98-0771/AR. U.S. v. Randall J. DOWNEY. CCA 9700554.
No. 98-0774/AR. U.S. v. Vernon R. SCOTT, Jr. CCA 9601958.
No. 97-0988/AR. U.S. v. Martin H. PELECH. CCA 9601153. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in the above-entitled case in light of United States v. Gorski, 47 MJ 370 (1997), 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 consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462 (1996), affects the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.
Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the ExPostFacto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0890/NA. U.S. v. Danny R. ALLEN. CCA 97-1121.
No. 98-0891/MC. U.S. v. Luis F. EGUIA. CCA 96-2501.
No. 98-0892/NA. U.S. v. James A. GARDIN. CCA 97-0801.
No. 98-0893/NA. U.S. v. Kyle J. MARSHALL. CCA 97-1778.
No. 98-0894/AF. U.S. v. Daniel C. CASTRO. CCA S29505.
No. 98-0895/AF. U.S. v. Joseph E. ROGERS, Jr. CCA S29471.
No. 98-0896/AF. U.S. v. Charles W. WILSON. CCA S29507.
No. 98-0795/NA. U.S. v. Craig
D. BROWNFIELD. CCA 93-1483. Appellant’s motion to extend time to file supplement
to petition for grant of review granted to August 19, 1998.
ORDERS GRANTING PETITION FOR REVIEW
No. 98-0594/AF. U.S. v. Dirk J. THOMPSON. CCA 32630. Review granted on the following issue:
No. 98-0014/AF. U.S. v. James R. NEELEY. CCA S29342.*/
No. 98-0897/NA. U.S. v. Lashawn D. BEASLEY. CCA 97-2227.
No. 98-0898/MC. U.S. v. Kevin J. FLYNN. CCA 96-1519.
No. 98-0899/MC. U.S. v. Michael D. FORD. CCA 97-1915.
No. 98-0900/MC. U.S. v. Michael G. NASH. CCA 96-1736.
No. 98-0901/MC. U.S. v. Eric A. RAMIREZ. CCA 96-2400.
No. 98-0902/NA. U.S. v. Clifford L. STRAWDER. CCA 98-0108.
No. 98-0903/AF. U.S. v. Catherine L. OVERHOLT. CCA 32737.
No. 98-0904/AR. U.S. v. Folaina JEFFERSON. CCA 9701195.
No. 98-0905/AR. U.S. v. Andre O. CHISM. CCA 9700395.
No. 98-0906/AR. U.S. v. Ricky L. BRIDGES. CCA 9700157.
No. 98-0907/AR. U.S. v. Clifton L. EDWARDS. CCA 9800543.
No. 98-0908/AR. U.S. v. Lora A. TIRADO. CCA 9701742.
No. 98-0909/AR. U.S. v. Tamaaiga F. SAGIAO. CCA 9701648.
Misc. No. 98-8016/NA. Dell R. VANDERSCHUIT, petitioner, v. UNITED STATES, respondent. CCA 97-1203. On further consideration of the above styled case and the respondent’s motion to attach documents, it appears that the relief requested by the petitioner has been granted. Accordingly, the respondent’s motion to attach documents is granted; the order of the Court dated April 29th, 1998, staying the proceedings pending before the United States Navy-Marine Corps Court of Criminal Appeals is vacated; and the petition for extraordinary relief is denied as moot.
No. 98-0037/MC. U.S. v. Kevin M. HOLT . CCA 94-2003. Appellant’s petition for reconsideration denied.
No. 98-0712/AF. U.S. v. Sharon W. WRIGHT. CCA 32089. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to August 14, 1998.
No. 98-0793/AF. U.S. v. Erin L. KINSELLA. CCA 32680. To August 14, 1998.
No. 98-0811/AR. U.S. v. Ezell MCCALPINE, Jr. CCA 9701508. To August 21, 1998.
In each of
the above two cases, appellant’s motion to extend time to file supplement
to petition for grant of review granted to the date indicated.
___________
*/ Second
petition filed in same case.
PETITIONS FOR GRANT OF REVIEW FILED
No. 98-0910/MC. U.S. v. Felix G. FOGG. CCA 96-1958.
No. 98-0911/NA. U.S. v. Michael R. HARVILLE. CCA 97-1666.
No. 98-0912/NA. U.S. v. Brian T. NONNENMACHER. CCA 98-0161.
No. 98-0913/NA. U.S. v. Cody J. SUNDERS. CCA 97-0799.
No. 98-0037/MC. U.S. v. Kevin M. HOLT. CCA 94-2003. Appellant’s motion to extend time to file reply to appellee’s answer to supplement to petition for grant of review granted to August 3, 1998.
No. 98-0109/AF. U.S. v. Jeffrey R. RICHTER. CCA 32106. Appellee’s third motion to extend time to file answer to final brief granted to August 19, 1998.
No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 96-0822. Appellant’s second motion to extend time to file supplement to petition for grant of review granted to July 29, 1998.
No. 98-0802/MC. U.S. v. Christohper M. BYARS. CCA 96-2164. To August 19, 1998.
No. 98-0828/NA. U.S. v. Cortney A. RILEY. CCA 97-0631. To August 25, 1998.
In each of
the above two cases, appellant’s motion to extend time to file supplement
to petition for grant of review granted to the date indicated.
APPEALS - SUMMARY DISPOSITIONS
No. 98-0063/AF. U.S. v. Esteban LUGO. CCA S29350. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we hold that although the case was submitted without specific assignment of error, our consideration of the record of trial leads us to conclude that it was improper to charge appellant with two different larcenies involving articles that were contemporaneously taken by him during the course of single illegal entry and that these two specifications should have been consolidated for charging purposes, see para. 46c(1)(h)(ii), Manual for Courts-Martial, United States (1995 ed.). However, we are satisfied that appellant was not prejudiced as to sentence. Accordingly, the petition is granted; the specifications of the Charge and the Additional Charge are consolidated into the following single specification:
No. 98-0063/AF. U.S. v. Esteban LUGO. CCA S29350. [See also APPEALS - SUMMARY DISPOSITIONS this date.]
No. 98-5031/CG. United States, appellant, v. Jason R. GAMMONS, appellee. CCA 1078. The General Counsel, Department of Transportation, requests that action be taken with respect of the following issues:
(A) THE NJP WAS USED AS AN AGGRAVATING CIRCUMSTANCE OF A LATER SIMILAR CRIME FOR WHICH THE ACCUSED WAS CONVICTED;
(B) THE DEFENSE STATED THAT IT HAD NO OBJECTION TO THE TRIAL COUNSEL’S USE OF THE NJP; AND
(C) UNDER THE CIRCUMSTANCES THE INTRODUCTION OF THE RECORD OF NJP WAS THE EQUIVALENT OF AN INTRODUCTION BY THE DEFENSE?
II. DID THE COAST GUARD COURT OF CRIMINAL APPEALS ERR IN ORDERING EXPUNGEMENT OF A RECORD OF NONJUDICAL PUNISHMENT FROM GAMMONS’ MILITARY RECORD AND RESTORATION OF ALL RIGHTS, PRIVILEGES, AND PROPERTY PRIOR TO REHEARING OF THE SENTENCE?
No. 98-0515/AR. U.S. v. Edward A. PORTER. CCA 9601313.
No. 98-0619/MC. U.S. v. Arthur W. SHELTON. CCA 97-1102.
No. 98-0651/AR. U.S. v. Yusef D. BROWER. CCA 9700177.
No. 98-0680/AR. U.S. v. Anthony W. BORNEMAN. CCA 9600172.
No. 98-0733/MC. U.S. v. Daniel P. GLEESON. CCA 96-0743.
No. 98-0739/AF. U.S. v. Michael P. SPRAGUE. CCA 32791.
No. 98-0759/AF. U.S. v. Raymond L. JACKSON. CCA S29497.
No. 98-0761/MC. U.S. v. Mark A. NAPIER. CCA 98-0198.
No. 98-0763/AF. U.S. v. Dewayne E. HICKS. CCA S29481.
No. 98-0766/AF. U.S. v. Timothy L. ANYS, Jr. CCA S29484.
No. 98-0770/MC. U.S. v. Clinton R. WILSON. CCA 97-1391.
No. 98-0776/AR. U.S. v. Antoine WATTS. CCA 9701005.
No. 98-0813/AF. U.S. v. David C. YAWMAN. CCA 33114.
No. 98-0838/AF. U.S. v. Raymond BESEMER, Jr. CCA 33030.
No. 98-0914/AR. U.S. v. Monty J. HARRIS. CCA 9401997.
No. 98-0915/AR. U.S. v. Thilenius NAPIER. CCA 9601347.
No. 98-0916/AR. U.S. v. Paul J. TIRADO. CCA 9600943.
No. 98-0917/AF. U.S. v. Terry L. ODHAM. CCA 32931.
No. 98-0918/AF. U.S. v. John T. BAUER. CCA 32561.
No. 98-0919/AF. U.S. v. James A. WEBSTER. CCA S29509.
No. 98-0920/MC. U.S. v. Douglas D. DOMINGUEZ. CCA 97-0040.
No. 98-0921/MC. U.S. v. Shawn E. NELTNER. CCA 98-0004.
No. 98-0922/MC. U.S. v. Karen D. WATKINS. CCA 97-1428.
No. 98-0656/AR. U.S. v. Patrick B. ROLLE. CCA 9601336. Appellant’s motions to file additional issue and argument to appellant's supplement to petition for grant of review and to file out of time on behalf of appellant granted.
Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 97-0216/AR. U.S. v. Keith D. PRICE. CCA 9401505.
No. 97-0910/AR. U.S. v. Brian M. LIGHT. CCA 9500318.
Misc. No. 97-8029/AR. Charles
G. WILLENBRING, appellant, v. Colonel Joseph A. NEURAUTER, Military Judge,
and the United States Army, appellees. CCA 9701127.
PETITIONS FOR GRANT OF REVIEW FILED
No. 97-0047/AR. U.S. v. Andrew G. AULL. CCA 9402074.*/
No. 98-0923/AR. U.S. v. Casey V. SINGLETON. CCA 9601353.
No. 98-0924/NA. U.S. v. Osben CLARK. CCA 97-1710.
No. 98-0925/MC. U.S. v. Richard DUDLEY. CCA 97-1941.
No. 96-1257/AF. U.S. v. Adrian R. SIMMONS. CCA 31429.
No. 97-0023/NA. U.S. v. Brian R. PERRY. CCA 95-0143.
No. 97-0525/MC. U.S. v. Charles
A. CAMPOS. CCA 95-2050.
_____________
*/ Second
petition filed in same case.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS
No. 98-0389/AR. U.S. v. James O. WRIGHT. CCA 9601769. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals in the above entitled case in light of United States v. Gorski, 47 MJ 370 (1997), 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 consideration of whether the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC § 857(a), and the addition of Article 58b, UCMJ, 10 USC § 858b, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996), affect the sentence in this case. Following these proceedings, Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.
I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).
Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0088/AF. U.S. v. Herold S. OSBORNE. CCA 32479.*/
No. 98-0926/AF. U.S. v. Leon A. BROWN, Jr. CCA S29541.
No. 98-0927/AF. U.S. v. Richard A. NIGHTINGALE. CCA 32658.
No. 96-1198/AF. U.S. v. Edward L. MITCHELL. CCA 31421. On further consideration of this case, appellant may file response to appellee’s Answer to Order on or before August 21, 1998.
No. 98-0586/AR. U.S. v. Charles A. SEDGWICK. CCA 9600543. On further consideration of appellee’s motion to dismiss appellant’s petition for grant of review and appellant’s supplement to the petition for grant of review as untimely filed with the Court, it appears appellee has failed to allege in said motion that the requirements for service of the decision of the United States Army Court of Criminal Appeals on appellant as set forth in Article 67(b), Uniform Code of Military Justice, 10 USC § 867(b), have been completed. Accordingly, said motion is denied without prejudice to appellee’s right to renew the motion, accompanied by reference to appropriate documentation.
No. 95-0328/AF. U.S. v. Charles D. JACOBS. CCA 30368.
No. 97-0425/MC. U.S. v. Richard
VELEZ, Jr. CCA 94-0959.
____________
*/ Second
petition filed in same case.
APPEALS - SUMMARY DISPOSITIONS
No. 98-0613/MC. U.S. v. Mitchell M. DUERSON. CCA 96-2581. The petition is granted and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]
No. 98-0595/AR. U.S. v. Jonathan E. SIDWELL. CCA 9601596. Review granted on the following issue:
No. 98-0617/AR. U.S. v. Thomas D. MORRISON. CCA 9600461. Review granted on the following issues raised by appellate defense counsel:
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY PROHIBITING APPELLANT FROM PRESENTING ONE OF HIS FEW VIABLE DEFENSES TO THE PANEL: THAT THERE EXISTED TWO POSSIBLE SOURCES OF THE SEXUAL ABUSE OF LL, HIMSELF AND HIS FATHER, AND THAT LL'S ALLEGATIONS ARE NOT INCONSISTENT WITH ACTUAL ABUSE FROM ONLY ONE OF THE TWO RELATIVES.
IV. WHETHER THE TRIAL DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE TO APPELLANT BY NOT PRESENTING EVIDENCE OF APPELLANT'S RESTITUTION ON SENTENCING.
II. WHETHER APPELLANT'S PLEA OF GUILTY TO MISPRISION OF A SERIOUS OFFENSE WAS IMPROVIDENT WHERE THE AUTHORITIES HAD IMMEDIATE KNOWLEDGE OF THE OFFENSE, AND, THEREFORE, IF APPELLANT CONCEALED ANYTHING, IT WAS MERELY THE IDENTITY OF THE PERPETRATOR.
No. 98-0298/AF. U.S. v. Steven W. CRUM. CCA 32686.
Judge Effron did not participate in this decision. See United States v. Gorski, __ MJ ____ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0534/AR. U.S. v. Edward
L. WORTHINGTON. CCA 9601109. On consideration of the petition for grant
of review of the decision of the United States Army Court of Criminal Appeals
in the above-entitled case in light of United States v. Gorski,
47 MJ 370 (1997), 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 consideration of whether
the amendment to Article 57(a), Uniform Code of Military Justice, 10 USC
§ 857(a), made by the National Defense Authorization Act for Fiscal
Year
1996, Pub.L.No. 104-106, 110
Stat. 462 (1996), affects the sentence in this case. Following these proceedings,
Article 67(a), UCMJ, 10 USC § 867(a)(1994), will apply.
I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).
Judge Effron did not participate in this decision. See United States v. Gorski, ___ MJ ___ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0928/AR. U.S. v. David P. GUTHRIE. CCA 9700236.
No. 98-0929/AR. U.S. v. Elbert D. TRUNELL. CCA 9701211.
No. 98-0930/AF. U.S. v. Sean S. BAILEY. CCA 33177.
No. 98-0931/AF. U.S. v. Robert R. HUFF. CCA 33184.
No. 98-0932/AF. U.S. v. John M. BRUNER. CCA 33021.
No. 98-0933/AR. U.S. v. Michael J. EDWARDS. CCA 9701372.
No. 98-0934/NA. U.S. v. Alden D. SULLIVAN. CCA 97-0572.
No. 98-0935/NA. U.S. v. Michael W. HANCOCK. CCA 98-0297.
No. 98-0936/MC. U.S. v. Michael L. COX. CCA 97-2185.
No. 98-0251/MC. U.S. v. Timothy A. BROWN. CCA 96-1443. Appellee’s motion to correct errata granted.
No. 98-0439/AR. U.S. v. Clevell S. ROSEBORO, II. CCA 9600788. On consideration of appellant’s motion to file appellate exhibits E-K and the concession by counsel representing the United States that appellant is entitled to restoration of pay and allowances which were unlawfully taken from him contrary to the decision of this Court in United States v. Gorski, 47 MJ 370 (1997), and it appearing that such pay and allowances have not been restored, it is ordered that appellant’s motion is granted; and that the United States show cause, if cause there be, on or before August 7, 1998, why such restoration has not been made to appellant.
Judicial activism is a dangerous thing. It’s unsettling for both sides in a matter before a court because it adds uncertainty to the expected, stable, and orderly process of a court. Corporal Clevell S. Roseboro II filed a petition for grant of review in this Court. Later his attorneys filed a motion to file appellate exhibits E-K with this Court in support of the previously filed petition for grant of review. If our Court were to process Roseboro’s case in an orderly manner, Roseboro could expect from our Court: (i) a decision on the motion to file exhibits; and (ii) a decision on whether the Court will grant or deny Roseboro’s two issues that he has petitioned our Court to hear.
Instead of this expected orderly process of this case, our Court (acting with the force of the judicial branch behind it) has ordered sua sponte the United States to show cause why Roseboro has not received some pay (amount uncertain) that Roseboro may be entitled to as a result of our opinion in United States v. Gorksi, 47 MJ 370 (1997), from last year. To this extraordinary action of our Court, I cannot agree. I want Roseboro to get his due but I want the judicial process to be properly used to accomplish that goal. I am unpersuaded by "the end justifies the means" argument in my Brother’s concurring opinion. (See infra at 6.)
In my separate opinion in Gorski, 47 MJ at 376 (concurring in part and in the result), apparently I did understand the impact of Gorski and I predicted trouble "by the majority’s overreaching use of this opinion [Gorski] to [administratively] resolve the over 150 pending cases" which involve the Gorski issue. Now this Court is attempting to fulfill my prediction. Instead of functioning as a court of law and making a judicial decision on cases in controversy, it now attempts to become "a ‘problem solving’ adjunct to the Department of Defense." 47 MJ at 376. I seriously question the power of our Court to perform this function or otherwise act as an adjunct branch of the United States Court of Federal Claims to determine pay cases. See generallyUnited States Navy-Marine Corps Court of Military Review v. Cheney, 29 MJ 98 (CMA 1989).
To resolve the instant matter and as a reasonable alternative to this Court’s show cause order, I would vote to grant appellant’s pending petition for grant of review on Issue II which asks whether the Army court has established fair and reasonable procedures for judicial relief under United States v. Gorski, 47 MJ 370 (1997). See United States v. Messner, No. 9600694, ___ MJ ___, (3) (Army Ct.Crim.App. April 20, 1998), and United States v. Roberson, No. 9600765 (Army Ct.Crim.App. April 2, 1998) (unpub.). That assigned issue states:
WHETHER IN DETERMINING WHETHER TO AFFORD RELIEF TO APPELLANT FOR SUFFERING AN EX POST FACTO APPLICATION OF ARTICLES 57(a) and 58b, UCMJ, THE ARMY COURT OF CRIMINAL APPEALS HAS ESTABLISHED AN INAPPROPRIATELY HARSH BURDEN ON APPELLANT TO ASSERT AND DEMONSTRATE THAT ILLEGAL FORFEITURES WERE ACTUALLY TAKEN, THAT APPELLANT SOUGHT ADMINISTRATIVE RESTORATION OF FORFEITURES, THAT ADMINISTRATIVE RESTORATION WAS WRONGFULLY DENIED, OR THAT APPELLANT WAS ENTITLED TO JUDICIAL RELIEF IN A SPECIFIED DOLLAR AMOUNT.
If an appellant has not had the court below review his or her Gorski issue and that appellant is now in our Court petitioning for review, we should send the case back to "the Judge Advocate General to return the record to the Court of Criminal Appeals for further review." Art. 67(e), UCMJ, 10 USC § 867(e) (1994). This is how I would handle the Gorski-related cases. This is the expected orderly way a court functioning as an appellate court should handle all the cases impacted by Gorski.*
COX, Chief Judge (concurring):
I appreciate the thoughtful observations of my esteemed colleague. However, I write to make two comments.
First, Judge Sullivan presents himself as the champion of Roseboro’s interests, yet he would require him and others adversely affected by the error we recognized in United States v. Gorski, 47 MJ 370 (1997), to wait for an indeterminate period before the possibility of relief reaches fruition. But the reality is that the judge he paints as unconcerned about those persons would provide them with the possibility of relief many months and even years before Judge Sullivan would. I am thus hard pressed to imagine what a fifth pair of eyes would accord to Roseboro that the majority of just three have not already made available to him much sooner than far later!
Second, there appears to be a notion in the Army Finance Office that they are not bound by the decisions of this Court when it comes to the validity of the execution of forfeitures imposed by a court-martial. WRONG! They should know that the decisions of this Court on constitutional issues (as our Gorski decision was) say what the law in the military is until overruled by an Article III court and nobody else. As a matter of information, our Gorski decision is now final in every sense and is due to be obeyed.
Litigation on this issue has gone on long enough. The principles of law are resolved. The only thing left is for someone with some common sense to sit down and figure out what is owed the soldiers and pay them.
Judge Effron did not participate in this action. See United States v. Gorski, No. 97-0034, ___ MJ ___ (Daily Journal September 8, 1997)). This is without prejudice to his future participation in this case should it subsequently be presented to the Court in a manner that does not require determination of the application of the Ex Post Facto Clause to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0585/AR. U.S. v. Forrest D. LANCHBURY. CCA 9601577. Appellee’s motion to file out of time a letter response to supplement to petition for grant of review granted.
No. 98-0783/NA. U.S. v. Michael W. FRICKE. CCA 96-1293. Appellant’s motions to extend time to file supplement to petition for grant of review and to file out of time granted. Supplement shall be filed on or before August 13, 1998.
No. 98-0799/AR. U.S. v. Curtis MITCHELL. CCA 9700813. Appellant’s motion to extend time to file supplement to petition for grant of review granted to August 20, 1998.
No. 98-0801/NA. U.S. v. Kristi C. HURDA. CCA 97-0648.
No. 98-0812/MC. U.S. v. Mario GARCIAMENDEZ. CCA 97-0051.
In each of the above two cases, motion filed by Lieutenant Jeffrey K. Van Nest to withdraw as appellate counsel granted.
No. 98-0823/AR. U.S. v. Brian K. HETHERINGTON. CCA 9701337. Appellant’s motion to extend time to file supplement to petition for grant of review granted but only to August 27, 1998.
No. 97-0142/AR. U.S. v. Jerrel W. HUGHES, Jr. CCA 9401652.
No. 97-0789/NA. U.S. v. Jason
T. RUFFIN. CCA 95-1373.
______________
*/ I am troubled by the fact that only four not five judges in this Court are available to handle most of the now-200 Gorski trailers that are decided either at the petition stage or by order of the Court without oral argument. There is a statute which would allow the Chief Judge of this Court to use a senior judge of this Court or to request the services of an Article III judge in this type of situation where our Court is undermanned. Art. 142(e) & (f), UCMJ, 10 USC § 942(e) & (f). I do appreciate the fact that the Chief Judge has utilized the statute in the six-seven cases that have reached the oral-argument stage of proceedings in our Court. However, the stubborn fact remains that an appellant (with a Gorski issue and one or more other issues) who is looking for a grant of his or her petition is facing four judges instead of five judges, a decided disadvantage.
It only takes two votes to grant a petition in our Court and the history of our Court is replete with examples of one judge influencing the outcome of a case in the following type of scenario:
1. one judge spots
a worthy issue in a petition and votes to grant;
2. that vote to
grant is joined by the vote of another judge who gives it as a courtesy
vote or is persuaded by the lead judge’s reasons expressed individually
or at conference;
3. with two votes
the case is granted and set for oral argument; and
4. at oral argument,
appellant’s counsel convinces three or more judges to give his client relief
and wins the case.
At the bottom line, the lack
of a fifth pair of judicial eyes could result in an appellant’s not receiving
full justice at this Court. This troubles me.
APPEALS - SUMMARY DISPOSITIONS
No. 98-0449/MC. U.S. v. Isaac GAINOUS. CCA 97-0182. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals in the above entitled case in light of United States v. Gorski, 47 MJ 370 (1997), and the Government’s concession of error with regard to the assigned issue, the petition for grant of review is granted on the issue raised by appellate defense counsel; and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. Collection of any forfeitures, and execution of the reduction in grade prior to the date of the convening authority’s action, are hereby declared to be without legal effect. Any forfeitures already collected from appellant, and any pay withheld because of the illegal reduction in grade, will be restored. The record of trial is returned to the Judge Advocate General of the Navy for appropriate action.
I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).
Judge Effron did not participate in this decision. See United States v. Gorski, ___ MJ ___ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996). [See also ORDERS GRANTING PETITION FOR REVIEW this date.]
No. 98-0449/MC. U.S. v. Isaac GAINOUS. CCA 97-0182. [See also APPEALS - SUMMARY DISPOSITIONS this date.]
No. 98-0440/AR. U.S. v. John
H.I. WARNER. CCA 9601510. On consideration of the petition for grant
of review of the
decision of the United States Army Court of
Criminal Appeals in the above entitled case in light of United States
v. Gorski, 47 MJ 370 (1997), 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
consideration of whether the amendment to Article 57(a), Uniform Code of
Military Justice, 10 USC § 857(a), made by the National Defense Authorization
Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462 (1996), affects
the sentence in this case. Following these proceedings, Article 67(a),
UCMJ, 10 USC § 867(a)(1994), will apply.
I concur. See my separate opinion in United States v. Gorski, 47 MJ 370, 376 (1997).
Judge Effron did not participate in this decision. See United States v. Gorski, ___ MJ ___ (Daily Journal September 8, 1997). This is without prejudice to his future participation in this case should it subsequently be presented to this Court in a manner that does not require determination of the application of the Ex Post Facto Clause of the United States Constitution to the amendments to Title 10, United States Code, made by the National Defense Authorization Act for Fiscal Year 1996, Pub.L.No. 104-106, 110 Stat. 462-63 (1996).
No. 98-0937/MC. U.S. v. Raymond B. WILLIAMS. CCA 97-1442.
No. 98-0938/AR. U.S. v. Benjamin T. FIELD. CCA 9701710.
No. 98-0939/AR. U.S. v. Scott A. SPANGLER. CCA 9700489.
No. 98-0940/AR. U.S. v. Michael D. SPRIGGS. CCA 9601685.
No. 98-0801/NA. U.S. v. Kristi C. HURDA. CCA 97-0648. To August 19, 1998.
No. 98-0812/MC. U.S. v. Mario GARCIAMENDEZ. CCA 97-0051. To August 21, 1998.
In each of the above two cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to the date indicated.
No. 98-0835/MC. U.S. v. Walter
HALL, Jr. CCA 96-1526. Appellant’s motion to extend time to file supplement
to petition for grant of review granted to August 21, 1998; motion filed
by Lieutenant Jeffrey K. Van Nest to withdraw as appellate counsel granted.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS
No. 98-0862/AF. U.S. v. Carey J. JONES. CCA S29344. On consideration of appellant’s motion to file petition for grant of review out of time and it appearing appellant has assigned no issue in the supplement thereto, said motion is hereby denied. United States v. Sumpter, 22 MJ 33 (CMA 1986).
No. 97-0020/AR. U.S. v. Calvin C. FOWLER. CCA 9500396.*/
No. 98-0941/MC. U.S. v. Nathan J. WOOD. CCA 97-1836.
No. 98-0942/MC. U.S. v. Rafael A. RUIZ-GARCIA. CCA 97-0630.
No. 98-0943/AF. U.S. v. Jason M. MCCARTHY. CCA 33156.
No. 98-0944/AF. U.S. v. Vanessa L. GREEN. CCA 32739.
No. 98-0945/AR. U.S. v. Paul J. BRADEN. CCA 9701059.
No. 98-0946/AR. U.S. v. Charles G. KNIGHT. CCA 9700322.
No. 98-0947/AR. U.S. v. Jason L. ROCK. CCA 9700192.
No. 97-1061/CG. U.S. v. Frank J. DIRE. CCA 1077. Motion filed by newly assigned appellate defense counsel to extend time to file final brief, it appearing that said counsel’s final brief was mailed to the Court and postmarked July 24, 1998, denied as moot.
No. 98-0325/AF. U.S. v. Rodney D. HALFORD. CCA 32280. Appellee’s motion to extend time to file answer to final brief granted to August 27, 1998.
No. 98-0650/AF. U.S. v. Glen R. THORPE. CCA 32589. Appellant’s motions to submit declaration and to substitute original declaration granted.
No. 98-0750/NA. U.S. v. Edwin
H. SMITH. CCA 97-0225. Appellant’s second motion to extend time
to file supplement to petition for grant of review granted to August 31,
1998.
______________
*/ Second
petition filed in same case.
ORDERS GRANTING PETITION FOR REVIEW
No. 96-1241/AF. U.S. v. Johnnie M. TAYLOR. CCA 31574. Review granted on the following issue:
II. WHETHER THE MILITARY JUDGE ERRED IN ALLOWING THE TRIAL COUNSEL TO ELICIT THE OPINION OF A NCIS SPECIAL AGENT REGARDING THE TRUTHFULNESS OF APPELLANT'S SWORN STATEMENT.
III. WHETHER THE MILITARY JUDGE ERRED BY DENYING TRIAL DEFENSE COUNSEL'S CHALLENGE FOR CAUSE AGAINST SSGT BUMGARDNER AND BY GRANTING THE GOVERNMENT'S CHALLENGE TO 1stLT HANKS OVER DEFENSE OBJECTION.
IV. WHETHER THE MILITARY JUDGE ERRED WHEN HE ALLOWED INTO EVIDENCE A POEM WRITTEN BY APPELLANT AND TESTIMONY REFERRING TO MAGAZINE PHOTOGRAPHS IN APPELLANT'S ROOM.
II. WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT WHEN HE DENIED THE DEFENSE REQUEST TO GIVE AN INSTRUCTION ON VOLUNTARY INTOXICATION.
No. 98-0338/MC. U.S. v. James E. ATKINSON. CCA 96-2197.
No. 98-0473/AF. U.S. v. Brandon T. SOILEAU. CCA 32548.
No. 98-0476/AR. U.S. v. Arthur P. CRETER, III. CCA 9700450.
No. 98-0507/MC. U.S. v. Brian H. ANDERSON. CCA 96-2058.
No. 98-0509/MC. U.S. v. Jonathan D. DANIELS. CCA 97-0024.
No. 98-0510/NA. U.S. v. Charles O. FULLARD. CCA 96-1566.
No. 98-0517/AR. U.S. v. Albert R. VANCE, III. CCA 9700787.
No. 98-0521/NA. U.S. v. Jonathan S. TORRE. CCA 96-2345.
No. 98-0525/MC. U.S. v. Robert A. JONES. CCA 96-1685.
No. 98-0556/AF. U.S. v. Janie C. PENA. CCA 32372.
No. 98-0570/MC. U.S. v. Mark A. BENJAMIN. CCA 96-2115.
No. 98-0590/AF. U.S. v. Michael F. GREANEY, Jr. CCA 32697.
No. 98-0593/AF. U.S. v. Lillie A. RENCHER. CCA 32655.
No. 98-0600/MC. U.S. v. Andrew M. WARFUEL. CCA 97-0176.
No. 98-0637/MC. U.S. v. Jack W. DRIEVER. CCA 96-2423.
No. 98-0649/AF. U.S. v. Jesus A. OCHOA. CCA 32508.
No. 98-0678/AR. U.S. v. Patrick J. GIRUP. CCA 9601629.
No. 98-0705/AF. U.S. v. Carey C. CAMPBELL, III. CCA 32819.
No. 98-0713/AF. U.S. v. John A. KUZNAR. CCA 32531.
No. 98-0714/AF. U.S. v. Darrin K. JAMES. CCA S29341.
No. 98-0718/MC. U.S. v. German GONZALEZ. CCA 96-1377.
No. 98-0737/AF. U.S. v. Albert C. MOORE. CCA 32295.
No. 98-0821/AR. U.S. v. David L. HAGER. CCA 9701751.
No. 98-0948/AR. U.S. v. David
G. GARCIA. CCA 9501367.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 98-0172/AF. U.S. v. Grady A. JIMERSON. CCA 32746.
No. 98-0596/AR. U.S. v. Paul T. ANDERSON. CCA 9701463.
No. 98-0610/AF. U.S. v. Jeff W. CROCKER, Jr. CCA S29362.
No. 98-0659/MC. U.S. v. David S. NEWTON. CCA 96-1815.
No. 98-0667/AF. U.S. v. John D. HANDY. CCA 32935.
No. 98-0716/AF. U.S. v. Terrence D. CHILDS. CCA 32597.
No. 98-0723/AF. U.S. v. Rodney D. MABRY. CCA 32777.
No. 98-0736/AF. U.S. v. Davied HILL. CCA S29448.
No. 98-0746/AF. U.S. v. Melvin L. ALDRIDGE. CCA S29455.
No. 98-0777/AF. U.S. v. Melvin L. ALDRIDGE. CCA S29442.
No. 98-0779/AF. U.S. v. John G. HAVRILESKO, Jr. CCA 32900.
No. 98-0782/NA. U.S. v. Rory D. SMITH. CCA 97-1810.
No. 98-0785/AF. U.S. v. David I. JOHNSON. CCA S29475.
No. 98-0786/AF. U.S. v. Jennifer L. PLANK. CCA S29480.
No. 98-0791/AR. U.S. v. Louis S. BARBER, Jr. CCA 9700969.
No. 98-0794/AR. U.S. v. Robert G. JAMES. CCA 9701141.
No. 98-0949/NA. U.S. v. Timothy R. DOTY. CCA 97-0745.
No. 98-0950/AF. U.S. v. Noel Y. SEGURA. CCA S29534.
No. 98-0951/AF. U.S. v. David J. LEWIS. CCA 32871.
No. 98-0952/AF. U.S. v. Billy LEE, Jr. CCA 32794.
No. 98-0953/AF. U.S. v. Jason C. BRADLEY. CCA 33049.
No. 98-0954/AF. U.S. v. Clayton B. AGNEW. CCA S29401.
No. 97-1193/NA. U.S. v. James P. NICHOLSON. CCA 95-2157. Appellant’s motion to cite supplemental authority granted.
No. 98-0842/AF. U.S. v. Michael A. TORRES. CCA 32621. To August 31, 1998.
No. 98-0847/AR. U.S. v. Martez L. HENDERSON. CCA 9501435. To September 8, 1998.
In each of the above two cases, appellant’s motion to extend time to file supplement to petition for grant of review granted to the date indicated.
No. 96-1380/AF. U.S. v. Harry L. JEFFERY, Jr. CCA 31708.
No. 97-0270/AF. U.S. v. Douglas
R. BRITT. CCA 31804.