UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-058

Tuesday, December 31, 2002

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0617/AR. U.S. v. Martin C. DUNCAN II. CCA 20010182. Review granted on the following issue:

WHETHER APPELLANT'S PLEA TO SPECIFICATIONS 1 AND 2 OF THE CHARGE WAS IMPROVIDENT BECAUSE THE MILITARY JUDGE PROVIDED AN UNCONSTITUTIONALLY OVERBROAD DEFINITION OF CHILD PORNOGRAPHY AND DID NOT CONDUCT AN ADEQUATE PROVIDENCE INQUIRY, AS REQUIRED BY UNITED STATES V. CARE, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1960) AND ITS PROGENY.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0904/AF. U.S. v. John A. NICHOLS. CCA 34749.

No. 02-0951/AF. U.S. v. Jeremy C. COLLIER. CCA 35151.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-057
Monday, December 30, 2002

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0879/NA. U.S. v. William J. FELTHAM. CCA 9900966. Review granted on the following issue specified by the Court:

WHETHER THE LOWER COURT ERRED IN RULING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN ADMITTING THE VICTIM'S INCULPATORY STATEMENTS TO HIS ROOMMATE UNDER THE EXCITED UTTERANCE EXCEPTION TO THE RULE AGAINST HEARSAY.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 03-0017/AF. U.S. v. Kenyatta D. JACKSON. CCA 34468.

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0160/AR. U.S. v. Wayne C. CONLEY. CCA 9900183.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-056
Friday, December 27, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 98-0721/NA. U.S. v. Teresa S. MILEY. CCA 9600822.*/

No. 03-0156/AF. U.S. v. Russell B. JONES, II. CCA S30067.

No. 03-0157/AF. U.S. v. Matthew S. JOHNSON. CCA 35227.

No. 03-0158/AF. U.S. v. Khalid A. RASHID. CCA 35215.

No. 03-0159/AF. U.S. v. John P. RICE, Jr. CCA 35260.
________

*/ Second petition filed in this case.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-055
Thursday, December 26, 2002

CERTIFICATES FOR REVIEW FILED

No. 03-5001/CG. U.S. v. David D. RENDON. CCA 1168. The General Counsel, Department of Transportation, requests that action be taken with respect to the following issue:

DID THE COAST GUARD COURT OF CRIMINAL APPEALS ERR WHEN IT SUA SPONTE HELD THAT THE MILITARY JUDGE SHOULD HAVE GRANTED –- IN ADDITION TO THE MASON CREDIT AWARDED AT TRIAL –- R.C.M. 305(K) CREDIT BASED ON A VIOLATION OF R.C.M. 305(I) FOR A PERIOD OF PRETRIAL RESTRICTION TANTAMOUNT TO CONFINEMENT?

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-054
Tuesday, December 24, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0153/AR. U.S. v. Gary L. WOOD. CCA 20020411.

No. 03-0154/AR. U.S. v. Gregory D. DIXON, II. CCA 20020481.

No. 03-0155/AR. U.S. v. David M. DOMAN. CCA 20020351.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-053
Monday, December 23, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0145/AR. U.S. v. Dean W. BAKER. CCA 20001049.

No. 03-0146/AR. U.S. v. Benny HOFFMAN. CCA 20010650.

No. 03-0147/AR. U.S. v. Eric D. HARPER. CCA 20020354.

No. 03-0148/AR. U.S. v. Marilyn D. CALVIN. CCA 20000857.

No. 03-0149/AR. U.S. v. Marc D. BORJA. CCA 20000734.

No. 03-0150/AR. U.S. v. Miguel A. VASQUEZ-CRUZ. CCA 20010360.

No. 03-0151/MC. U.S. v. Fernando GARCIA. CCA 9901513.

No. 03-0152/NA. U.S. v. Thomas W. DOWTY. CCA 9901701.

INTERLOCUTORY ORDERS

No. 02-0513/AR. U.S. v. Juan F. DIAZ Jr. CCA 9900768. Appellee's motion to file brief out of time granted.

No. 02-0603/AR. U.S. v. Michael A. PAULING. CCA 9700685. Appellee's motion to extend time to file an answer to supplement to petition for grant of review granted but only up to and including January 9, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 02-0784/AR. U.S. v. Daniel J. SAUNDERS III. CCA 9900899. Appellant's motion to extend time to file final brief granted but only up to and including December 27, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-0089/NA. U.S. v. Christian W. CAUDLE. CCA 200201259. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 03-0090/NA. U.S. v. William V. LILLICH. CCA 200101237. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 03-0091/MC. U.S. v. Justin W. DOUGHMAN. CCA 200200413. Appellant's motion to extend time to file supplement to petition for grant of review out of time granted to January 21, 2003.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-052
Thursday, December 19, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0143/AR. U.S. v. Antwaine M. BETHEA. CCA 20000739.

No. 03-0144/AR. U.S. v. John W. CLAPP. CCA 20010960.

INTERLOCUTORY ORDERS

No. 03-0079/AR. U.S. v. Carlos M. CORDOVA. CCA 20010936. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 03-0092/AR. U.S. v. Daniel C. HAGUE-CAMPBELL. CCA 20000735. Appellant's motion to extend time to file supplement to petition for grant of review granted to January 21, 2003.

No. 03-0093/AR. U.S. v. Javier SANTOS. CCA 9900559. Appellant's motion to extend time to file supplement to petition for grant of review granted to January 21, 2003.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-051
Wednesday, December 18, 2002

RETURN OF RECORD FROM COURT OF CRIMINAL APPEALS

No. 01-0658/AF. U.S. v. Christopher B. WASHINGTON. CCA S29797. The record was returned to the Clerk’s Office in accordance with the earlier decision of this Court, 57 M.J. 394 (C.A.A.F. 2002), and has been referred to the Court for further consideration.

INTERLOCUTORY ORDERS

No. 03-0018/AR. U.S. v. James P. BORDEAUX. CCA 9901016. Appellant's second motion to extend time to file supplement to petition for grant of review granted but only up to and including January 6, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-0020/AR. U.S. v. Doerian H. JOHNSON. CCA 9801235. Appellant's second motion to extend time to file supplement to petition for grant of review granted but only up to and including January 6, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-0025/AR. U.S. v. Kenji M. MAPES. CCA 9900592. Appellant's second motion to extend time to file supplement to petition for grant of review granted but only up to and including December 20, 2002; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-0054/MC. U.S. v. Philip J. HANLEY. CCA 200101538. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 03-0081/NA. U.S. v. Luther A. GRANT. CCA 200201137. Appellant's motion to extend time to file supplement to petition for grant of review granted to January 16, 2003.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-050
Tuesday, December 17, 2002

APPEALS - SUMMARY DISPOSITIONS

No. 02-0048/AF. U.S. v. James A. SILLS. CCA 34323. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals in the above-entitled case, we note that in the exercise of discretion over cases involving error impacting on the sentence, the Courts of Criminal Appeals must determine whether to reassess the sentence or order a sentence rehearing under the principles that govern the correction of such errors. SeeUnited States v. Boone, 49 M.J. 187, 194 (C.A.A.F. 1998), citing United States v. Sales, 22 M.J. 305 (C.M.A. 1986), and its progeny (defining the criteria applicable to the exercise of such discretion). In the exercise of discretion, the Courts of Criminal Appeals must apply established criteria when determining whether such errors should be corrected through sentence reassessment or a sentence rehearing. In the present case, the Court of Criminal Appeals has twice failed to apply such criteria, 56 M.J. 556 (A.F. Ct. Crim. App. 2001) and 57 M.J. 606 (A.F. Ct. Crim. App. 2002). Under these circumstances, and in view of our prior remand, 56 M.J. 239 (C.A.A.F. 2002), which did not result in a sentence correction determination by the Court of Criminal Appeals under established criteria, we conclude that further consideration of the sentence should be undertaken at the trial level. See generally United States v. Maxwell, 45 M.J. 406, 426, 428 (C.A.A.F. 1996). Accordingly, it is ordered that the petition for grant of review is granted as to Issue I and is denied as to the remaining issues. The decision of the United States Air Force Court of Criminal Appeals is affirmed as to the findings of guilty on Charges I and V and their specifications and is reversed as to the sentence. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for forwarding to an appropriate convening authority. A rehearing on sentence based on the affirmed findings of guilty may be ordered. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0048/AF. U.S. v. James A. SILLS. CCA 34323. (See APPEALS – SUMMARY DISPOSITIONS this date.)

No. 02-0874/AF. U.S. v. Ricky L. WALTERS II. CCA 34575. Review granted on the following issues:

WHETHER THE AIR FORCE COURT ERRED IN AFFIRMING APPELLANT'S CONVICTION FOR WRONGFULLY USING ECSTASY WHERE THE FINDINGS OF THE COURT-MARTIAL WERE VAGUE AND AMBIGUOUS AND FAILED TO REFLECT WHAT FACTS CONSTITUTED THE OFFENSE.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0825/NA. U.S. v. William H. EPPERSON. CCA 200100687.

No. 02-0910/MC. U.S. v. Esau K. ROPERBROCKMAN. CCA 200100176.

No. 03-0009/AF. U.S. v. Rebecca A. PENCE. CCA S29962.

No. 03-0012/AF. U.S. v. Charles E. FRAVEL. CCA 34555.

No. 03-0016/AF. U.S. v. John A. CARRILLO. CCA 34876.

No. 03-0027/NA. U.S. v. Jose M. REGUEIRO. CCA 200200876.

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0142/NA. U.S. v. Richard S. WIBLE. CCA 9901603.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-049
Monday, December 16, 2002

APPEALS - SUMMARY DISPOSITIONS

No. 01-0887/AF. U.S. v. Miguel A. RODRIGUEZ-LOPEZ. CCA 33548. On further consideration of the granted issue in light of United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), we conclude that the decision of the lower court was based on correct standards of review contained in United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 02-0022/AF. U.S. v. John W. BALLENTINE Jr. CCA 33812. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0051/AF. U.S. v. Catherine N. WASHINGTON. CCA S29973. On further consideration of the granted issue in light of United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), we conclude that the decision of the lower court was based on correct standards of review contained in United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 02-0056/AF. U.S. v. Kerry J. NAZARIO. CCA 34221. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted; and that in light of United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), we conclude that the court below applied an incorrect standard of review in deciding the factual sufficiency of the evidence. See United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. 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). Thereafter, Article 67, UCMJ, will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0071/AF. U.S. v. Minguet PHILIDOR Jr. CCA 33644. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted; and that in light of United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), we conclude that the court below applied an incorrect standard of review in deciding the factual sufficiency of the evidence. See United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. 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). Thereafter, Article 67, UCMJ, will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0075/AF. U.S. v. Latonya D. SHATTEEN. CCA S29721. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0116/AF. U.S. v. Richard F. PERICAS. CCA 33825. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted; and that in light of United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), we conclude that the court below applied an incorrect standard of review in deciding the factual sufficiency of the evidence. See United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. 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). Thereafter, Article 67, UCMJ, will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0166/AF. U.S. v. Christopher B. MITCHELL. CCA 33601. On further consideration of the granted issue in light of United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), we conclude that the court below applied an incorrect standard of review in deciding the factual sufficiency of the evidence. See United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. 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). Thereafter, Article 67, UCMJ, will apply.

CRAWFORD, Chief Judge (dissenting): While the court below articulated different standards, it indicated it was "convinced of the appellant’s guilt beyond a reasonable doubt." To be seen in context, it stated:

Our superior court has determined the test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, we ourselves are convinced of the accused’s guilt beyond a reasonable doubt. Turner, 25 MJ at 325. Proof beyond a reasonable doubt does not require that the evidence be free from all conflict. United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986). Recently, we have suggested that this test for factual sufficiency conflicts with the test that Congress intended us to apply. See United States v. Washington, 54 M.J. 936 (A.F.Ct.Crim.App. 2001) (Congress specified we should affirm a finding of guilty if we determine it conforms to the weight of the evidence and that there has been no error of law that prejudiced the substantial rights of the accused); United States v. Nazario, ACM 34221 [56 M.J. 936 (A.F.Ct.Crim.App. 19 Oct 2001) (applying a preponderance of the evidence standard). In light of these guidelines, we now evaluate the appellant’s specific claims of error.

. . .

Under Jackson and Turner, we have considered the evidence in the light most favorable to the prosecution and have found all the essential elements beyond a reasonable doubt. We have also weighed the evidence in the record of trial and, after making allowances for not having personally observed the witnesses, we are convinced of the appellant’s guilt beyond a reasonable doubt. We reach the same result when analyzing for factual sufficiency by applying the "conforms to the weight of the evidence" standard.

Slip op. at 3, 5 (emphasis added). This last sentence does not take away from the fact the lower court applied Jackson, Turner, and the reasonable doubt standard. Thus, I would affirm.

No. 02-0180/AF. U.S. v. Philip E. FROST. CCA 33817. On further consideration of the granted issue in light of United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), we conclude that the decision of the lower court was based on correct standards of review contained in United States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 02-0185/AF. U.S. v. Fernando T. TELLO. CCA 34120. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0225/AF. U.S. v. Cecil A. COOK. CCA 34463. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted; and that in light of United States v. Washington, 57 M.J. 394 (C.A.A.F. 2002), and United States v. Sills, 56 M.J. 239 (C.A.A.F. 2002), we conclude that the court below applied an incorrect standard of review in deciding the factual sufficiency of the evidence. SeeUnited States v. Turner, 25 M.J. 324 (C.M.A. 1987). Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is set aside. 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). Thereafter, Article 67, UCMJ, will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0384/AF. U.S. v. Brandon T. COLVIN. CCA 34399. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0407/AF. U.S. v. Jerald D. TILTON. CCA 33816. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 02-0432/AF. U.S. v. Anton M. GANTT. CCA 34387. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted, and the decision of the United States Air Force Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0022/AF. U.S. v. John W. BALLENTINE Jr. CCA 33812. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0056/AF. U.S. v. Kerry J. NAZARIO. CCA 34221. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0071/AF. U.S. v. Minguet PHILIDOR Jr. CCA 33644. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0075/AF. U.S. v. Latonya D. SHATTEEN. CCA S29721. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0116/AF. U.S. v. Richard F. PERICAS. CCA 33825. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0185/AF. U.S. v. Fernando T. TELLO. CCA 34120. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0225/AF. U.S. v. Cecil A. COOK. CCA 34463. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0384/AF. U.S. v. Brandon T. COLVIN. CCA 34399. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0407/AF. U.S. v. Jerald D. TILTON. CCA 33816. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0432/AF. U.S. v. Anton M. GANTT. CCA 34387. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0140/AR. U.S. v. Tyrone MCFADDEN. CCA 9801671.

No. 03-0141/AF. U.S. v. Clifford MASON. CCA 34677.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-048
Friday, December 13, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0136/AR. U.S. v. Calvin N. GLOVER. CCA 9901132.

No. 03-0137/AF. U.S. v. David H. JUILLERAT. CCA 34205.

No. 03-0138/NA. U.S. v. Matthew T. BAUMGARTEN. CCA 200000389.

No. 03-0139/MC. U.S. v. James L. SMITH. CCA 200100147.

INTERLOCUTORY ORDERS

No. 03-0022/AF. U.S. v. Julian LATORRE. CCA 34670. Appellant's second motion to extend time to file supplement to petition for grant of review granted but only up to and including January 3, 2003; and absent extraordinary circumstances, no further extension of time will be granted in this case.

No. 03-0068/AR. U.S. v. Robert L. KORNEGAY Jr. CCA 20010078. Appellant's motion to file supplement to petition for grant of review out of time granted.

No. 03-0072/AF. U.S. v. Joshua P. LOVETT. CCA 33947. Appellant's motion to file brief in excess of fifty pages granted.

No. 03-0108/MC. U.S. v. William H. BETHEL. CCA 200200356. Appellant's motion to attach granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-047
Thursday, December 12, 2002

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0132/MC. U.S. v. Kevin W. WALKER. CCA 200100747.

No. 03-0133/NA. U.S. v. Nyle D. ANDERSON. CCA 200101685.

No. 03-0134/MC. U.S. v. Jeremy M. HODGEKIN. CCA 200201089.

No. 03-0135/MC. U.S. v. Alexander E. TOMASZEWICZ. CCA 200201050.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-046
Wednesday, December 11, 2002

HEARINGS

No. 02-0001/AR. U.S. v. Delmar G. SIMPSON. CCA 9700775.

No. 02-0318/AF. U.S. v. Michelle L. KASPER. CCA 34351.

No. 02-0554/AF. U.S. v. Michael L. MCMILLON. CCA 34518.

No. 02-0609/AR. U.S. v. David J. KAISER. CCA 9900485.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0920/AF. U.S. v. Tyler W. WEST. CCA 34520.

No. 03-0023/AF. U.S. v. Christina J. PUGH. CCA 35078.

No. 03-0035/AF. U.S. v. Brian D. BUCHAN. CCA 35086.

No. 03-0036/AF. U.S. v. Brian C. CROCKER. CCA 34797.

No. 03-0038/AF. U.S. v. Alexander D. FERGUSON. CCA 35173.

No. 03-0040/AF. U.S. v. Eduardo PUENTES. CCA 35012.

No. 03-0044/AF. U.S. v. Timothy A. WHEAT. CCA S30133.

No. 03-0050/AF. U.S. v. Melanie C. SKEENS. CCA 34800.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 03-8003/NA. United States, appellee, v. Peter J. SHADWELL, appellant. CCA 200201644. Writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b) on December 6, 2002 and placed on the docket this date.

INTERLOCUTORY ORDERS

No. 02-0233/AF. U.S. v. Dale P. KEYSER. CCA 34252. Appellant's motion for leave to file additional supplement to petition for grant of review out of time granted.

No. 02-0304/AR. U.S. v. Jason L. MATHEWS. CCA 20000136. Appellant's motion to file additional supplement to petition for grant of review granted.

No. 02-0944/AF. U.S. v. Eric P. MARCUM. CCA 34216. Appellant's motion to submit documents granted and appellee’s motion to strike denied.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-045
Tuesday, December 10, 2002

HEARINGS

No. 01-0718/AF. U.S. v. Christopher S. GOGAS. CCA 34210.

No. 02-0237/AF. U.S. v. James E. SPRINGER. CCA S29803.

No. 02-0526/AF. U.S. v. Daniel D. DAVIS. CCA S30020.

No. 02-0561/AF. U.S. v. Daniel A. DUGAN. CCA 34477.

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0498/AF. U.S. v. Daryl A. HAMMER. CCA 33663. Review granted on the following issues:

I. WHETHER THE AIR FORCE COURT ERRED WHEN IT RULED APPELLANT WAS NOT DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, DESPITE EVIDENCE OF HIS COUNSEL'S: (1) FAILING TO INTERVIEW WITNESSES, (2) FAILING TO CROSS-EXAMINE WITNESSES, (3) MISUNDERSTANDING THE PRE-TRIAL AGREEMENT, (4) IMPROPERLY STIPULATING TO ERRONEOUS AND INADMISSIBLE INFORMATION, (5) FAILING TO ENGAGE THE ASSISTANCE OF AN EXPERT WITNESS TO COUNTER THE MOST IMPORTANT EVIDENCE IN APPELLANT'S CASE, AND (6) PROCEEDING TO TRIAL DESPITE THE LACK OF PREPARATION.

II. WHETHER THE AIR FORCE COURT ERRED WHEN IT RESOLVED ESSENTIAL FACTUAL DISPUTES AGAINST APPELLANT WITHOUT ORDERING A DUBAY HEARING.

III. WHETHER THE AIR FORCE COURT ERRED WHEN IT REFUSED TO CONSIDER AN AFFIDAVIT FROM A FORENSIC PSYCHOLOGIST IN DETERMINING WHETHER APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

IV. WHETHER THE SUPREME COURT'S DECISION IN ASHCROFT v. FREE SPEECH COALITION MANDATES REVERSAL OF APPELLANT'S CONVICTION FOR POSSESSION OF CHILD PORNOGRAPHY.

PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0644/AR. U.S. v. Lawrence R. MACK. CCA 9900727.

No. 02-0775/AR. U.S. v. Kirk S. BYINGTON. CCA 9800128.

No. 02-0791/AR. U.S. v. Christina E. HENLEY. CCA 20000749.

No. 02-0923/AR. U.S. v. Gary J. STERLING. CCA 20000008.

No. 03-0003/MC. U.S. v. Darren P. LACHENEY. CCA 200101516.

No. 03-0005/AF. U.S. v. Douglas J. LAMOUNTAIN. CCA 34681.

No. 03-0010/AR. U.S. v. Lance C. MALONE. CCA 20010156.

No. 03-0019/AR. U.S. v. Michael P. YOCUM. CCA 20020062.

No. 03-0030/AR. U.S. v. Bryan BAKER. CCA 20000663.

No. 03-0033/AF. U.S. v. Garrick G. BATLEY. CCA 34944.

No. 03-0034/AF. U.S. v. Terrance R. BROOKS. CCA S30027.

No. 03-0041/AF. U.S. v. Heather L. PULCINI. CCA 34813.

No. 03-0042/AF. U.S. v. Kristen R. ROBERTS. CCA 34803.

No. 03-0043/AF. U.S. v. Scott S. SHEPHERD. CCA 34766.

No. 03-0058/AR. U.S. v. Llewellyn P. HANNIGAN III. CCA 20020184.

MISCELLANEOUS DOCKET - FILINGS

Misc. No. 03-8002/NA. United States, appellee, v. Joshua R. MCKEEL, appellant. CCA 200202328. Writ-appeal petition for review of the United States Navy-Marine Corps Court of Criminal Appeals decision on application for extraordinary relief was filed under Rule 27(b) on December 6, 2002 and placed on the docket this date.



 
 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-044
Monday, December 09, 2002

APPEALS - SUMMARY DISPOSITIONS

No. 02-0310/AR. U.S. v. Larry D. YOUNG. CCA 9501208. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Army Court of Criminal Appeals is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0310/AR. U.S. v. Larry D. YOUNG. CCA 9501208. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0837/AF. U.S. v. Thomas S. PIPKIN. CCA 34585. Review granted on the following issues:

WHETHER THE MILITARY JUDGE ERRED BY NOT GRANTING DEFENSE COUNSEL'S MOTION TO SUPPRESS APPELLANT'S WRITTEN AND ORAL STATEMENTS TO OSI WHEN OSI DID NOT TELL APPELLANT HE WAS UNDER INVESTIGATION FOR CONSPIRACY.
PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0780/AF. U.S. v. Charles E. BRISCOE. CCA S29917.

No. 02-0786/MC. U.S. v. Nicholas P. KYER. CCA 200200012.

No. 03-0002/NA. U.S. v. John R. WALKER. CCA 200100692.

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0129/AR. U.S. v. Dane A. RASMUSSEN Jr. CCA 20010905.

No. 03-0130/AR. U.S. v. Robert C. POTTER II. CCA 20010037.

No. 03-0131/AF. U.S. v. Austin R. WEBB. CCA 34598.



 
 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-043
Friday, December 06, 2002

APPEALS - SUMMARY DISPOSITIONS

No. 02-6003/MC. U.S. v. Stan J. STARR. CCA 200001253. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals pursuant to Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 862, we conclude that the military judge’s ruling was not subject to review under the provisions of Article 62(a)(1)(B), as his ruling did not exclude evidence that is substantial proof of a fact material in the proceeding, but instead required the government to produce additional evidence before permitting the expert testimony in question. Accordingly, it is ordered that the petition for grant of review is granted; that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed and set aside; that this action is without prejudice to the right of the United States to file a subsequent appeal under Article 62, UCMJ, if a subsequent ruling of the trial judge should hereafter satisfy the criteria of Article 62; that the Court reserves judgment on the questions as to whether, or in what manner, the Government is required under Ashcroft v. Free Speech Coalition, ___ U.S. ___, 122 S.Ct. 1389, 152 L.Ed. 2d 403 (2002), to offer "evidence that the photographs in question . . . are photographs of actual people"; that the order of the Court dated October 8, 2002, granting a motion staying further court-martial proceedings is vacated; and that the record of trial is returned to the Judge Advocate General of the Navy for remand to the court-martial for further proceedings. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

ORDERS GRANTING PETITION FOR REVIEW

No. 02-6003/MC. U.S. v. Stan J. STARR. CCA 200001253. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0128/AF. U.S. v. Gregory P. BANKER. CCA 34531.

INTERLOCUTORY ORDERS

No. 02-0001/AR. U.S. v. Delmar G. SIMPSON. CCA 9700775. Appellee's motion to file supplemental final brief granted.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-042
Thursday, December 05, 2002

INTERLOCUTORY ORDERS

No. 98-0146/AF. U.S. v. Leslie D. RILEY. CCA 32183. Appellant's motion to submit corrected page granted.

No. 02-0949/AR. U.S. v. Gregory G. RORIE. CCA 20000964. On consideration of the petition for grant of review and motion to abate the proceedings filed by appellate defense counsel in this Court on September 27, 2002, and it appearing that the decision of the United States Army Court of Criminal Appeals was released on June 28, 2002, and a copy of that decision was mailed by certified mail to appellant on July 5, 2002, after having been served on appellate defense counsel and it further appearing that appellant died on August 31, 2002, it is ordered that the appellate defense counsel shall file a brief on or before December 27, 2002, on the following issues:

I. WHETHER THE FILING OF A PETITION FOR GRANT OF REVIEW BY APPELLATE DEFENSE COUNSEL WAS SUFFICIENT TO CONFER JURISDICTION ON THIS COURT OR WHETHER JURISDICTION WAS RETAINED BY THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS.

II. IN THE EVENT THAT THIS COURT DOES HAVE JURISDICTION, WHETHER THE PROCEEDINGS SHOULD BE ABATED.

Appellate government counsel shall file an answer within 20 days of the filing of a brief by appellate defense counsel.

No. 02-0955/AR. U.S. v. Raphelito G. WELLINGTON. CCA 9900782. Appellant's motion to file brief in excess of fifty pages and motion to attach index and table of cases are granted.

No. 03-0060/AR. U.S. v. Ricky D. FERGUSON. CCA 20010455. Appellant's motion to extend time to file supplement to petition for grant of review granted to December 30, 2002.

No. 03-0063/CG. U.S. v. Douglas W. FARENCE. CCA 1161. Appellant's motion to extend time to file supplement to petition for grant of review granted to December 13, 2002.


UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-041
Tuesday, December 03, 2002

APPEALS - SUMMARY DISPOSITIONS

No. 02-0548/MC. U.S. v. Joseph J. YOUNG. CCA 200101410. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals in light of United States v. Tardif, 57 M.J. 219 (2002), said petition is granted. We conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c), to determine whether relief is warranted, and if so, what relief should be granted. Accordingly, it is ordered that 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 the Court of Criminal Appeals for further consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my separate opinion in United States v. Tardif, 57 M.J. 219, 225-28 (2002).

No. 02-0894/MC. U.S. v. Roland L. MANIBUSAN. CCA 200001512. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is hereby 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.]

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0548/MC. U.S. v. Joseph J. YOUNG. CCA 200101410. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0894/MC. U.S. v. Roland L. MANIBUSAN. CCA 200001512. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW DENIED

No. 02-0893/MC. U.S. v. Travis W. FLOOD. CCA 200001478.

No. 02-0919/AF. U.S. v. George GUTIERES. CCA 34450.

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0119/AR. U.S. v. Joshua F. SINNARD. CCA 20000494.

No. 03-0120/AR. U.S. v. Shamark R. ANDREWS. CCA 20000979.

No. 03-0121/AR. U.S. v. Ronald L. SMOYER II. CCA 9801599.

No. 03-0122/MC. U.S. v. Ramon S. BROWNE. CCA 200101578.

No. 03-0123/MC. U.S. v. Jason E. FLENNIKEN. CCA 200201338.

No. 03-0124/MC. U.S. v. Timothy M. MOSES. CCA 200201192.

No. 03-0125/MC. U.S. v. Anthony VELEZFRAGUADA. CCA 200200918.

No. 03-0126/MC. U.S. v. Branden W. DEWITT. CCA 200200395.

No. 03-0127/NA. U.S. v. Monte S. WRIGHT. CCA 200101659.



 
 

UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 03-040
Monday, December 02, 2002

APPEALS - SUMMARY DISPOSITIONS

No. 00-0486/CG. U.S. v. Lawrence BROWN. CCA 1105. On consideration of the decision of the United States Coast Guard Court of Criminal Appeals on remand, said petition is hereby granted and the decision of the United States Coast Guard Court of Criminal Appeals on remand is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

No. 01-0763/AF. U.S. v. Torian L. BROCKS. CCA 33891. On further consideration of the granted issue (56 M.J. 297), we hold that the claimed error was harmless. Accordingly, it is ordered that the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 02-0926/MC. U.S. v. Nathannael T. FRIAS. CCA 200100938. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals in light of United States v. Tardif, 57 M.J. 219 (2002), said petition is hereby denied as to Issue I, but granted as to Issue II. We conclude that a remand is necessary so that the court below can exercise its authority under Article 66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c), to determine whether relief is warranted, and if so, what relief should be granted. Accordingly, it is ordered that 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 the Court of Criminal Appeals for consideration in light of Tardif, supra. Thereafter, Article 67, UCMJ, 10 U.S.C. § 867, will apply. [See also ORDERS GRANTING PETITION FOR REVIEW this date.]

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my separate opinion in United States v. Tardif, 57 M.J. 219, 225-28 (2002).

ORDERS GRANTING PETITION FOR REVIEW

No. 00-0486/CG. U.S. v. Lawrence BROWN. CCA 1105. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

No. 02-0801/AR. U.S. v. Ann M. BRENNAN. CCA 20000401. Review granted on the following issues:

I. WHETHER APPELLANT SUFFERED CRUEL AND UNUSUAL PUNISHMENT, IN VIOLATION OF THE EIGHTH AMENDMENT AND ARTICLE 55, UCMJ, WHEN A GUARD AT THE MANNHEIM REGIONAL CONFINEMENT FACILITY ENGAGED IN CONDUCT INCOMPATIBLE "WITH THE EVOLVING STANDARDS OF DECENCY THAT MARK THE PROGRESS OF A MATURING SOCIETY" BY REPEATEDLY SEXUALLY ASSAULTING AND HARASSING HER.

II. WHETHER THE STAFF JUDGE ADVOCATE'S POST-TRIAL RECOMMENDATION PREJUDICED APPELLANT BY IGNORING DEFENSE COUNSEL'S ASSERTION OF LEGAL ERROR.

No. 02-0926/MC. U.S. v. Nathannael T. FRIAS. CCA 200100938. [See also APPEALS – SUMMARY DISPOSITIONS this date.]

PETITIONS FOR GRANT OF REVIEW FILED

No. 03-0115/NA. U.S. v. Stephen W. CANTER. CCA 9901547.

No. 03-0116/AF. U.S. v. Richard R. BOOTH. CCA 34780.

No. 03-0117/AF. U.S. v. Douglas W. PRICE. CCA S30012.

No. 03-0118/AR. U.S. v. David C. LONG. CCA 20020530.


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