DAILY
JOURNAL
No.
04-119
Wednesday, March
31, 2004
APPEALS - SUMMARY DISPOSITIONS
No. 04-0254/CG. U.S. v. David D.
RENDON.
CCA 1168.
On consideration of the petition for grant of
review of the decision of the United States Coast Guard Court of
Criminal
Appeals, said petition is granted and the decision of the United States
Coast
Guard Court of Criminal Appeals is affirmed.
[See also ORDERS GRANTING PETITION FOR REVIEW this date.]
ORDERS GRANTING PETITION FOR REVIEW
No.
04-0254/CG.
U.S. v. David D.
RENDON. CCA 1168. [See
also APPEALS -
SUMMARY DISPOSITIONS this date.]
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0400/NA.
U.S. v. Michael P.
HONAKER.
CCA 200301700.
No.
04-0401/MC.
U.S. v. Julian N.
PALACIOS.
CCA 200301281.
No.
04-0402/MC.
U.S. v. Ryan P.
MCALISTER.
CCA 200102096.
DAILY
JOURNAL
No.
04-118
Tuesday, March
30, 2004
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-5003/MC.
U.S. v. Esteven E. RODRIGUEZ.
CCA 200200740. On
consideration of the cross-petition for
grant of review of the decision of the United States Navy-Marine Corps
Court of
Criminal Appeals, it is ordered that the cross-petition is denied; and
that
oral argument on the certified question will be set.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0398/AR.
U.S. v. John POLIS II.
CCA 20030167.
No.
04-0399/AR.
U.S.
v. Michael J. PEED. CCA
20030614.
INTERLOCUTORY ORDERS
No.
04-0330/NA.
U.S. v. Amber C. BOYD.
CCA 200301254. Appellant's
motion to extend time to file
supplement to petition for grant of review granted to April 26, 2004.
DAILY
JOURNAL
No.
04-117
Monday, March 29,
2004
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0394/AR.
U.S. v. Quincy L. SMITH.
CCA 20020562.
No.
04-0395/AF.
U.S. v. Justin L.
OZBUN.
CCA S30210.
No.
04-0396/AF.
U.S. v. Christopher
D. CHASE.
CCA 35404.
No.
04-0397/MC.
U.S. v. Patrick O.
JONES.
CCA 200201229.
INTERLOCUTORY ORDERS
No.
04-8013/AR.
Dwight J. LOVING, Petitioner, v. United States,
Respondent. CCA
89001123. On consideration of the
Petition for Extraordinary Relief in the nature of a Writ of Error
Coram Nobis, filed on February 17, 2004, it
is ordered that Respondent show cause on or before April 28, 2004,
why the requested relief should not be granted.
Petitioner's motion to admit counsel pro
hac vice granted.
DAILY JOURNAL
No. 04-116
Friday, March 26,
2004
CERTIFICATES FOR REVIEW FILED
No. 04-5004/AR. U.S. v. Charles
E. SINGLETON.
CCA 20010376.
The Judge Advocate General, United States
Army, requests that action be taken with respect to the following
issues:
I.
WHETHER THE UNITED
STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN GRANTING THIRTY-THREE
DAYS OF
CONFINEMENT CREDIT AS RELIEF UNDER THIS COURT’S DECISION IN UNITED
STATES v.
WHEELUS, 49 M.J. 283 (C.A.A.F. 1998), ABSENT A CONCESSION OR
FINDING OF
LEGAL ERROR, WHERE THE FACTS IN THE RECORD (TRIAL AND POST-TRIAL
FILINGS)
CLEARLY EVIDENCE APPELLANT’S MENDACITY, AND IN LIGHT OF THIS COURT’S
DECISION
IN UNITED STATES v. FAGAN, 59 M.J. 238 (C.A.A.F. 2004).
II.
WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS
ERRED IN
FAILING TO RESOLVE ALL OF APPELLANT’S CLAIMS OF UNLAWFUL PRETRIAL
PUNISHMENT
UNDER THE FIRST AND FOURTH GINN FACTORS.
III.
WHETHER THE UNITED
STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN FAILING TO RECONSIDER
THEIR
NOVEMBER 13, 2003 OPINION IN LIGHT OF AFFIDAVITS SUBMITTED BY
APPELLANT’S TRIAL
DEFENSE TEAM, CAPTAIN OREN MCKNELLY AND CAPTAIN COLLEEN SWEENEY.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0390/AF.
U.S. v. Torri K.
RAYFORD.
CCA 35552.
No.
04-0391/AF.
U.S. v. Christopher
J. HANDORFF.
CCA 35596.
No.
04-0392/AF.
U.S. v. Sean W.
GRIGGS.
CCA 34739.
No.
04-0393/NA.
U.S. v. Castilo V.
MONTOYA.
CCA 200301513.
DAILY JOURNAL
No. 04-115
Thursday, March
25, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0388/AR.
U.S. v. Shayla R.
SCOTT.
CCA 20030238.
No.
04-0389/MC.
U.S. v. John P.
MARQUIS.
CCA 200301548.
DAILY JOURNAL
No. 04-114
Wednesday, March
24, 2004
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0129/AR.
U.S. v. Lamarion D.
SCOTT.
CCA 20020656.
No.
04-0253/AR.
U.S. v. William R.
RICKARD.
CCA 20030368.
No.
04-0257/AF.
U.S. v. Scott M.
ELLERBROEK.
CCA S30318.
No.
04-0274/AF.
U.S. v. Charles P.
BLEVINS.
CCA 35497.
No.
04-0276/AF.
U.S. v. William K.
BRADLEY.
CCA S30415.
No.
04-0277/MC.
U.S. v. Shaun P.
SHOWALTER.
CCA 200300751.
No.
04-0282/AF.
U.S. v. Corey P.
OLSEN.
CCA 35679.
No.
04-0287/AR.
U.S. v. Zachariah
WHITAKER.
CCA 20030592.
No.
04-0297/NA.
U.S. v. Travis L.
LONDON.
CCA 200301515.
No.
04-0301/AF.
U.S. v. Damion J.
CAMPBELL.
CCA 35019.
No.
04-0307/AR.
U.S. v. David N.
TURNBERG Jr.
CCA 20020339.
No.
04-0321/AR.
U.S. v. Steven M.
NUTT.
CCA 20021358.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0385/AR.
U.S. v. Gregorio Q.
CRUZ.
CCA 20010620.
No.
04-0386/AR.
U.S. v. Eric L.
GASPER.
CCA 20010801.
No.
04-0387/AR.
U.S. v. Benjamin
MOBLEY.
CCA 20011138.
INTERLOCUTORY ORDERS
No.
03-0433/CG.
U.S. v. Darrell R.
STIREWALT.
CCA 1089. Appellant's
motion to attach documents
granted.
No.
04-0256/MC.
U.S. v. Juan D.
PASTOR.
CCA 200200142. Appellant's
second motion to extend time to file supplement
to petition
for grant of review granted, but only
up to and including April 8, 2004; and absent
extraordinary circumstances, no further extension of time
will be granted in this case.
No.
04-0264/AR.
U.S. v. Michael B.
HAYS.
CCA 20001100. Appellant's
second motion to extend time to
file supplement to petition for grant of review granted, but
only up to and including April 8, 2004; and absent
extraordinary circumstances, no
further extension of time will be granted in this case.
No.
04-0318/AR.
U.S. v. Ronald E. V.
LAYTON.
CCA 20010270. Appellant's
motion to extend time to file
supplement to petition for grant of review granted to April 22, 2004.
No.
04-0320/AR.
U.S. v. Antonio B.
JONES.
CCA 20000836. Appellant's
motion to extend time to file
supplement to petition for grant of review granted to April 22, 2004.
No.
04-0338/AR.
U.S. v. Erik G. KING.
CCA 20021298. Appellant's
motion to attach corrected page
granted.
DAILY
JOURNAL
No.
04-113
Tuesday, March
23, 2004
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0046/AR.
U.S. v. Travis D.
WRIGHT.
CCA 20000916.
No.
04-0142/AR.
U.S. v. Joseph B.
VILLASENOR.
CCA 20020220.
No.
04-0160/AR.
U.S. v. Darrin L.
PRUDE.
CCA 20010119.
No.
04-0179/NA.
U.S. v. Harold R.
FINBERG.
CCA 200000076.
No.
04-0187/AF.
U.S. v. Jacquelyn C.
BUNTING.
CCA S30076.
No.
04-0196/NA.
U.S. v. Elliot C.
EDGERLYDUKE.
CCA 200201921.
No.
04-0224/AR.
U.S. v. James O.
WILEY Jr.
CCA 20020503.
No.
04-0272/AR.
U.S. v. Hugh G.
TESTER.
CCA 20000579.
No.
04-0273/CG.
U.S. v. Joseph P.
BURRIS III.
CCA 1180.
No.
04-0275/AF.
U.S. v. Reginald K.
PATTERSON.
CCA 35517.
No.
04-0302/AF.
U.S. v. Jerald S.
BOYKIN.
CCA S30055.
No.
04-0303/AR.
U.S. v. Michael S.
KNEASS.
CCA 20020532.
No.
04-0331/AR.
U.S. v. Philip W.
BYARD.
CCA 20030262.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0383/AR.
U.S. v. Eric R.
NORTON-ARAGON.
CCA 20030479.
No.
04-0384/AR.
U.S. v. Kevin D.
WHITE.
CCA 20030082.
DAILY
JOURNAL
No.
04-112
Monday, March 22,
2004
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0377/CG.
U.S. v. Jason L. FAY.
CCA 1189.
No.
04-0378/AR.
U.S. v. Gordon C.
KALEFF.
CCA 20020872.
No.
04-0379/AR.
U.S. v. Olufunsho M. LEDIJU.
CCA 20021059.
No.
04-0380/AR.
U.S. v. William A.
SMART.
CCA 20010914.
No.
04-0381/AR.
U.S. v. Cedric L.
AARON.
CCA 20000747.
No.
04-0382/AF.
U.S. v. Patrick A.
MIZGALA.
CCA 34822.
DAILY
JOURNAL
No.
04-111
Friday, March 19,
2004
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0371/AR.
U.S. v. Arturo A.
MORGAN.
CCA 20000928.
No.
04-0372/MC.
U.S. v. Jeremy D.
THOMPSON.
CCA 200101956.
No.
04-0373/AF.
U.S. v. Michael B.
JONES, Sr.
CCA 35513.
No.
04-0374/AF.
U.S. v. John P.
DAUGHERTY.
CCA 34819.
No.
04-0375/AF.
U.S. v. Josephine L.
LAGRIMAS.
CCA 35043.
No.
04-0376/AR.
U.S. v. Jovan F. M.
WILLIAMS.
CCA 20020289.
INTERLOCUTORY ORDERS
No.
04-0191/AR.
U.S. v. Mark G.
SARAZINE.
CCA 20020321. Appellant's
motion to attach documents to the
supplement to petition for grant of review granted.
No.
04-0313/AF.
U.S. v. George E.
ROLLINS.
CCA 34515. Appellant's
motion to extend time to file
supplement to petition for grant of review granted to April 21, 2004.
DAILY
JOURNAL
No.
04-110
Thursday, March
18, 2004
PETITIONS FOR GRANT OF
REVIEW FILED
No.
04-0370/AR.
U.S. v. Rodney T.
ALLEN.
CCA 20010021.
DAILY
JOURNAL
No.
04-109
Wednesday, March
17, 2004
HEARINGS
No.
03-0614/NA.
U.S. v. Joshua S.
DANIELS.
CCA 200001604.*/
ORDERS GRANTING PETITION FOR REVIEW
No. 03-0638/CG. U.S. v. William
E. DATZ.
CCA 001-69-01.
Review granted on the following issues:
I.
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUSTAIN A CHARGE OF RAPE
WHERE
THE VICTIM WAS AWAKE AND COHERENT YET TOTALLY PASSIVE, FAILED TO
REASONABLY
MANIFEST LACK OF CONSENT, AND THE ONLY
EVIDENCE OF
"FORCE" WAS MOVING HER LEG TO ACHIEVE PENETRATION.
II.
WHETHER THE MILITARY JUDGE ERRED BY ADMITTING TESTIMONY OF SUPPOSEDLY
INCRIMINATING NON-VERBAL GESTURES, WHERE THE INTERROGATOR COULDN'T
REMEMBER
WHAT QUESTIONS HE ASKED TO ELICIT THE GESTURES.
III.
WHETHER THE MILITARY JUDGE ERRED IN SUPPRESSING EVIDENCE OF THE RAPE
VICTIM'S
MOTIVE TO MISREPRESENT.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0365/AR.
U.S. v. Reginald C.
MAYS.
CCA 20020506.
No.
04-0366/AR.
U.S. v. Travis L.
RIDLEY.
CCA 20020081.
No.
04-0367/AR.
U.S. v. David W.
BEATTY.
CCA 20021390.
No.
04-0368/AF.
U.S. v. Marcus L.
WILLIAMS.
CCA 35122.
No.
04-0369/NA.
U.S. v. Donnell
WILLIAMS.
CCA 200202285.
MANDATES ISSUED
No.
00-0559/AF.
U.S. v. David E.
GILLEY.
CCA 32877.
____________
*/ Hearing
held at the Georgetown University,
Law Center, Washington, D.C., as part of the Court’s “Project Outreach”
Program.
DAILY
JOURNAL
No.
04-108
Tuesday, March
16, 2004
HEARINGS
No.
03-0691/MC.
U.S. v. Carson L. ALLEN.
CCA 9800849.
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0123/AR.
U.S. v. Ali SHARIF.
CCA 20021111.
No.
04-0258/AF.
U.S. v. Chivonn N. ANDERSON.
CCA 35514.
No.
04-0260/AF.
U.S. v. Mason A.
STAPLEY.
CCA 35097.
No.
04-0263/AF.
U.S. v. James D.
MALONEY.
CCA S30150.
No.
04-0269/MC.
U.S. v. Oscar
MALDONADO.
CCA 200301351.
INTERLOCUTORY ORDERS
No.
03-0389/NA.
U.S. v. Alvin N.
CUENTO.
CCA 200100281. Appellee's motion
to extend time to file answer to final brief granted up to and
including March 29, 2004;
and absent extraordinary
circumstances, no further extension of time will be granted in this case.
No.
04-0291/AR.
U.S. v. Arturo CANO.
CCA 20010086. Appellant's
motion to extend time to file
supplement to petition for grant of review granted to April 9, 2004.
No.
04-0292/AR.
U.S. v. Ryan J. VILMO.
CCA 20021105. Appellant's
motion to extend time to file
supplement to petition for grant of review granted to April 11, 2004.
No.
04-0295/AR.
U.S. v. Eric MCNUTT.
CCA 20020022. Appellant's
motion to extend time to file
supplement to petition for grant of review granted to April 14, 2004.
No.
04-0300/AF.
U.S. v. Donald R.
JOHNSON.
CCA 34777. Appellant's
motion to file brief in excess of
fifty pages granted.
DAILY
JOURNAL
No.
04-107
Monday, March 15,
2004
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0357/CG.
U.S. v. Crystal A.
KESSLER.
CCA 1190.
No.
04-0358/AR.
U.S. v. Carol K.
CLARK.
CCA 20030184.
No.
04-0359/AR.
U.S. v. Justin S.
SHELTON.
CCA 9901201.
No.
04-0360/AR.
U.S. v. Michael A.
SHEFFER.
CCA 20030470.
No.
04-0361/AF.
U.S. v. Casey S.
RUDOLPH.
CCA S30334.
No.
04-0362/AF.
U.S. v. Nicholas KUHN.
CCA S30472.
No.
04-0363/MC.
U.S. v. Kody P. ANDERSON.
CCA 200201272.
No.
04-0364/MC.
U.S. v. Jody M. SMITH.
CCA 200102167.
MISCELLANEOUS DOCKET - FILINGS
Misc.
No. 04-8015/NA.
United States, Appellee, v. Russell B. MULLINS, Appellant. CCA 200200988. 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).
DAILY
JOURNAL
No.
04-106
Friday, March 12,
2004
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0354/AF.
U.S. v. Craig W.
MACEY.
CCA 34821.
No.
04-0355/AF.
U.S. v. Brandon S.
SPANO.
CCA 34904.
No.
04-0356/AF.
U.S. v. Anthony C.
WILLIS.
CCA S30102.
DAILY
JOURNAL
No.
04-105
Thursday, March
11, 2004
APPEALS - SUMMARY DISPOSITIONS
No. 01-0738/AF. U.S. v. Amanda L.
GILBREATH.
CCA
34091. On consideration
of the
decision of the United States Air Force Court of Criminal Appeals, on
further
review, said petition is granted and the decision of the United States
Air
Force Court of Criminal Appeals, on further review, is affirmed. [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
ORDERS GRANTING PETITION FOR REVIEW
No. 01-0738/AF. U.S. v. Amanda L.
GILBREATH.
CCA
34091.
[See also APPEALS-SUMMARY
DISPOSITIONS this date.]
No. 04-0252/AR. U.S. v. Michael E.
BODKINS.
CCA
20010107.
Review granted on the following issues:
WHETHER THE ARMY
COURT OF
CRIMINAL APPEALS ABDICATED
ITS ARTICLE 66(C)
RESPONSIBILITY WHEN IT FOUND THAT THE
POST-TRIAL
PROCESSING OF
APPELLANT'S CASE WAS
UNREASONABLE,
UNEXPLAINED,
AND DILATORY, BUT REFUSED TO
CONSIDER THIS
ERROR IN
ANALYZING THE APPROPRIATENESS OF
APPELLANT'S
SENTENCE BECAUSE
IT RULED THAT THE ERROR
WAS
WAIVED.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0353/AR.
U.S. v.
Michelle R. WILLIAMS.
CCA
20030392.
INTERLOCUTORY ORDERS
No. 03-0691/MC.
U.S. v. Carson L. ALLEN.
CCA 9800849. Appellant's
motion for leave to file motion
to correct errata and motion to correct errata granted.
No. 04-0286/AR.
U.S. v. Robert
M. HOWARD-PINSON.
CCA 20010413. Appellant's
motion to extend time to file
supplement to the petition for grant of review granted to March 24, 2004.
No. 04-8012/NA.
U.S. v. Roscoe
DAVIS III.
CCA 200301710. On
consideration of the writ-appeal petition
filed in the above-styled case, it appearing that the United States
Navy-Marine
Corps Court of Criminal Appeals issued an order on October 9, 2003,
denying the
petition for extraordinary relief and Appellant mailed the writ-appeal
petition
to this Court on January 28, 2004, it is ordered that Appellant show
cause on
or before March 22, 2004, why his writ-appeal petition should not be
dismissed
as untimely pursuant to Rule 19(e), United States Court of Appeals for
the
Armed Forces Rules of Practice and Procedure.
DAILY
JOURNAL
No.
04-104
Wednesday, March
10, 2004
ORDERS GRANTING PETITION FOR REVIEW
No. 02-0938/AF. U.S. v. Andrew J.
BROZZO.
CCA
34542.
Review granted on the following issues raised
by appellate defense counsel:
I. WHETHER BRADY
v.
MARYLAND AND ARTICLE 46, UCMJ, REQUIRE THE GOVERNMENT TO DISCLOSE
EVIDENCE
OF A URINALYSIS “FALSE POSITIVE” FOR COCAINE WHERE APPELLANT WAS
CHARGED WITH
USE OF COCAINE; THE QUALITY CONTROL PROCESS COULD NOT DETERMINE THE
CAUSE OF
THE ERROR; THE LABORATORY MADE THE ERROR LESS THAN TWO MONTHS PRIOR TO
TESTING
APPELLANT'S SAMPLE; THE GOVERNMENT EXPERT WITNESS WORKED SUBSTANTIVELY
ON BOTH
TESTS; AND TRIAL COUNSEL DID NOT EXERCISE DUE DILIGENCE IN DISCLOSING
THE
ERROR.
II. WHETHER, IN
VIEW OF THE
CONCLUSION OF THE AIR FORCE COURT OF CRIMINAL APPEALS THAT TRIAL
DEFENSE
COUNSEL DID NOT EXERCISE REASONABLE DILIGENCE IN DISCOVERING THE
ERRONEOUS TEST
REPORT, APPELLANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. WHETHER THE
MILITARY
JUDGE ERRED BY GRANTING IN PART THE GOVERNMENT'S MOTION IN LIMINE. SEE UNITED STATES v. VAN HORN,
26 M.J. 434, 438 (C.M.A. 1988); AE VI; RECORD AT 66-69, 304-13.
No. 03-0645/AR. U.S. v. Joshua O.
BYNUM.
CCA
20001020.
Review granted on the following issue:
WHETHER
THE MILITARY JUDGE ERRED, ONCE TRIAL DEFENSE COUNSEL ARGUED FOR A
PUNITIVE
DISCHARGE, BY NOT CONDUCTING AN INQUIRY WITH APPELLANT, SUA SPONTE, TO
ENSURE
THAT THE APPELLANT APPROVED OF HIS TRIAL DEFENSE COUNSEL ARGUING FOR A
PUNITIVE
DISCHARGE.
PETITIONS FOR GRANT OF REVIEW DENIED
No. 04-0130/AR.
U.S. v. Roger
E. MEDFORD.
CCA 20030769.
No. 04-0200/AR.
U.S. v.
Anthony L. BOSE.
CCA 20000906.
No. 04-0233/AR.
U.S. v. Tracy
V. RYLEE.
CCA 20000852.
No. 04-0249/AR.
U.S. v.
William A. PHILLIPS, Jr.
CCA
20030659.
No. 04-0251/AR.
U.S. v. Jason
W. GARMAN.
CCA 20020199.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0352/AR.
U.S. v. Trenton T. HENDERSON.
CCA 20030900.
INTERLOCUTORY ORDERS
No. 04-0123/AR.
U.S. v. Ali
SHARIF.
CCA 20021111. Appellee's motion
to attach documents granted.
No. 04-0242/AF.
U.S. v.
Anthony E. CUTINO.
CCA S30239. Appellant's
motion to attach documents
granted.
No. 04-0265/AR.
U.S. v. Kimberly D. LOUDEN. CCA 20011108.
Appellant's motion to attach index granted.
DAILY
JOURNAL
No.
04-103
Tuesday, March
09, 2004
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0350/MC.
U.S. v.
Whitman D. WALLACE.
CCA
200001148.
No. 04-0351/AR.
U.S. v.
Matthew G. CONYERS.
CCA
20030023.
INTERLOCUTORY ORDERS
No. 03-0403/NA.
U.S. v. Robert
F. BRINTON.
CCA 200001971. It
is ordered that the Court's prior order of
January 12, 2004, ordering a
hearing in the
above-entitled action, is hereby vacated.
A decision as to whether to reschedule the case for oral
argument is
deferred until after the issuance of this Court’s decision in United
States
v. Jenkins.
No. 03-0578/NA.
U.S. v.
Jeffrey B. MAZER.
CCA 200001655. It
is ordered that the Court's prior order of
February 2, 2004, ordering a
hearing in the
above-entitled action, is hereby vacated.
A decision as to whether to reschedule the case for oral
argument is
deferred until after the issuance of this Court’s decision in United
States
v. Jenkins.
No. 03-0613/MC.
U.S. v. Jimmie
L. GETER.
CCA 9901433. It
is ordered that the Court's prior order of
February 20, 2004, ordering a
hearing in the
above-entitled action, is hereby vacated.
A decision as to whether to reschedule the case for oral
argument is
deferred until after the issuance of this Court’s decision in United
States
v. Jenkins.
No. 04-0069/MC.
U.S. v. David
Y. OWENS.
CCA 200200427. It
is ordered that the Court's prior order of
February 5, 2004, ordering a
hearing in the
above-entitled action, is hereby vacated.
A decision as to whether to reschedule the case for oral
argument is
deferred until after the issuance of this Court’s decision in United
States
v. Jenkins.
DAILY
JOURNAL
No.
04-102
Monday, March 08,
2004
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0347/AR.
U.S. v. Antonio
FLORES.
CCA 20030320.
No.
04-0348/AR.
U.S. v. Justin L.
BROOKS.
CCA 20000901.
No.
04-0349/MC.
U.S. v. Alan J.
WILSON.
CCA 200300215.
DAILY
JOURNAL
No.
04-101
Friday, March 05,
2004
PETITIONS FOR GRANT OF REVIEW DENIED
No.
04-0143/AR.
U.S. v. Kiyon H. HARVEY.
CCA 20030268.
No.
04-0262/AF.
U.S. v. Anthony A.
DEHOFF.
CCA S30186.
No.
04-0268/AR.
U.S. v. Richard P.
LEGG.
CCA 20030375.
No.
04-0270/MC.
U.S. v. John A.
SEAGRAVE.
CCA 200301214.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0341/AF.
U.S. v. Adam B. DAVIS.
CCA S30434.
No.
04-0342/AF.
U.S. v. Carlos M.
MAESTRI.
CCA S30289.
No.
04-0343/AF.
U.S. v. Generoso MANTOVANI.
CCA 35588.
No.
04-0344/AF.
U.S. v. Tyson J.
METZGER.
CCA 35663.
No.
04-0345/AF.
U.S. v. Christopher
J. SENTANCE.
CCA 34693.
No.
04-0346/AF.
U.S. v. Thomas J.
STUART, Jr.
CCA 35558.
INTERLOCUTORY ORDERS
No. 03-0490/NA.
U.S. v. Courtney D.
DAVIS.
CCA 9901170. On
consideration of the petition for grant of review of the decision of
the
United States Navy-Marine Corps Court of Criminal Appeals, we note that
substitute defense counsel personally asserted in his post-trial
clemency
submission dated July 2, 1999, that “the government offered a deal with
maximum
confinement at 18 months,” but Appellant’s “defense attorney never told
him
about the offer.” Such an allegation, if
true, may amount to ineffective assistance of counsel where Appellant
received
ten years’ confinement. See United States v. MacCulloch, 40 M.J. 236, 239 (C.M.A. 1994).
However, this Court has insufficient
information upon which to make a determination as to whether this
allegation has
any basis in fact. Accordingly, it is
ordered that appellate government and appellate defense
counsel obtain affidavits from those individuals with knowledge of the
events
in question and then submit briefs and the affidavits on whether this
Court should
specify an ineffective assistance of counsel issue; that Appellant will
file
his brief within 30 days of the date of this order; and that Appellee will file its brief within 30 days
thereafter.
DAILY
JOURNAL
No.
04-100
Thursday, March
04, 2004
PETITIONS FOR GRANT OF REVIEW DENIED
No.
03-0686/AR.
U.S. v. Ronald E.
DOBBELS.
CCA 9900384.
No.
04-0053/AR.
U.S. v. Joseph L.
REID.
CCA 20011077.
No.
04-0165/AR.
U.S. v. James A.
MCQUOID.
CCA 20030074.
No.
04-0193/AR.
U.S. v. Edward A.
GRANDBERRY.
CCA 20001082.
No.
04-0215/AF.
U.S. v. Jacob M.
FIRST.
CCA S30406.
No.
04-0229/AR.
U.S. v. Tanner B.
VOLKING.
CCA 20030628.
No.
04-0244/AR.
U.S. v. William F.
HENDERSON.
CCA 20021142.
No.
04-0247/AR.
U.S. v. Kenyon L.
MANLEY.
CCA 20030079.
No.
04-0259/AF.
U.S. v. Kiel G. RUSO.
CCA S30377.
PETITIONS FOR GRANT OF REVIEW FILED
No.
04-0337/AR.
U.S. v. Douglas R.
BUSCHBACH.
CCA 20020239.
No.
04-0338/AR.
U.S. v. Erik G. KING.
CCA 20021298.
No.
04-0339/NA.
U.S. v. Robert J.
CROSS.
CCA 200101055.
No.
04-0340/MC.
U.S. v. Michael D.
BAIER.
CCA 02-0476.
DAILY
JOURNAL
No.
04-099
Wednesday, March
03, 2004
HEARINGS
No. 03-0259/AR.
U.S. v. Arthur
MASON Jr.
CCA 9601811.
APPEALS - SUMMARY DISPOSITIONS
No.
03-5004/CG.
U.S. v. Sean M.
TARDIF.
CCA
1141.
On consideration of the certified issue, 59
M.J. 17 (C.A.A.F. 2003), and in light of our previous decision in this
case, 57
M.J. 219 (C.A.A.F. 2002), the certified issue is answered in the
negative. Accordingly, it is ordered that
the decision
of the United States Coast Guard Court of Criminal Appeals, 58 M.J. 714
(C.G.
Ct. Crim. App. 2003), is affirmed, except
for that
part of the decision that purports to affirm total forfeitures for a
period of
more than 24 months.
We note
that upon remand, the Coast Guard Court purported to affirm “only so
much of
the sentence approved below as provides for a dishonorable discharge,
confinement for 19 months, with credit previously granted under United
States v. Allen, [17 M.J. 126 (C.M.A. 1984),] forfeiture of all pay
and
allowances, and reduction to paygrade E-1.” 58 M.J. at 715. While the members adjudged total forfeitures,
the convening authority limited his approval of the monetary portion of
the
sentence to “total forfeitures for 24 months.”
See Commander, Eighth Coast Guard District, General
Court-Martial
Order No. 1-00 (June 9, 2000).
CRAWFORD,
Chief Judge (dissenting):
First, I dissent for the reasons set forth
in my separate opinion in United States v. Tardif, 57 M.J. 219,
225-28
(C.A.A.F. 2002)(Crawford, C.J., dissenting). In that dissent, I expressed my view that we
must read Article 66(c), Uniform Code of Military Justice [hereinafter
UCMJ],
10 U.S.C. § 866(c) (2000), in conjunction with Article 59(a), UCMJ, 10
U.S.C. §
859(a) (2000), and that such a reading indicates the improbability
that
“if Congress was asked, it would grant the authority to the Courts of
Criminal
Appeals to reduce sentences because of post-trial delay, even though an
appellant was not prejudiced.” Id. at 227.
I reiterate this point today.
The Courts of Criminal Appeals may not
reduce sentences for post-trial delay without a showing of prejudice. Certainly, the Sixth Amendment to the
Constitution guarantees “the right to a speedy and public trial” – a
right
which “is ‘fundamental’ and is imposed by the Due Process Clause of the
[Fifth
Amendment].” Barker
v. Wingo, 407 U.S. 514, 515
(1972).
An accused is guaranteed this right
throughout the pretrial, trial, and appellate stages of all criminal
proceedings. See United States v. Tucker, 9 C.M.A.
587, 589, 26 C.M.R. 367, 369 (1958). Nevertheless, an
accused is
entitled to relief for delay only where there has been “egregious or
intentional tactical delay and actual prejudice.” United States v. Reed, 41 M.J. 449,
452 (C.A.A.F.
1995).
Accordingly, “[u]nless
there has been a substantial violation of an appellant’s rights,
the Courts of Criminal Appeals may not use their supervisory authority
to grant
further relief to the appellant.” Tardif,
57 M.J. at 225 (Crawford, C.J., dissenting) (citing United States
v.
Hastings, 461 U.S. 499, 505 (1983)). By holding otherwise, the majority has
overstepped its authority and essentially created an equitable power in
the
courts below.
This Court has
affirmed the lower court’s
determination to grant Appellant sentence relief for “unexplained and
unreasonable” post-trial delay without requiring that Appellant
show
prejudice. On remand, the lower court
reduced the confinement portion of the sentence from 24 months to 19
months
otherwise approving the sentence. Thus,
I also write separately today to illustrate the danger of departing
from
statutory requirements and legal norms regarding the necessity of
demonstrating
prejudice. To that end, I ask: If we are
going to empower the lower courts to grant sentence relief for all
“unexplained
and unreasonable” delay, without regard to a showing of prejudice,
where do we
draw the line? What are the standards to determine that, first,
there has
been a “delay” in the post-trial processing of a case, and, second,
that the
delay has been “unreasonable and unexplained?”
If we leave that determination to each lower court, are we not
opening
the door to a non-uniform application across the services?
Do we apply those standards –- or any
standards –- to the appellate process as well?
The majority empowered the lower court to
grant Appellant sentence relief in the instant case based on the lower
court’s
determination that the time which elapsed between the end
of trial until the forwarding of the case for appellate review
constituted
“unexplained and unreasonable” post-trial delay.
We also know that many appellants may
endure considerable periods of time in the post-trial processing of
their cases
while undergoing appellate review. At
what point in each case is this period of time rightfully considered a
“delay,”
and if so, is it an “unexplained and unreasonable” delay?
Because this Court fails to require a showing
of prejudice, and simply allows sentence relief for all “unexplained
and
unreasonable” delay, are the appellate courts not bound to evaluate the
periods
of time they impose on appellants during the appellate process? Or do we apply a different measuring standard
to the appellate process? I fear we have
started down a slippery slope by opening the door to granting relief
without a
showing of prejudice.
I believe these questions underscore the
wisdom of Congress in requiring a showing of prejudice pursuant to
Article
59(a) before authorizing courts to grant relief. Courts
are well-equipped to deal with issues
of material prejudice to substantial rights.
They are not equipped, and indeed are not authorized under the
UCMJ, to
deal with administrative case processing problems that should be
addressed by
the military departments.
For these
reasons, I again respectfully dissent from
the lead opinion.
PETITIONS FOR GRANT OF REVIEW - OTHER SUMMARY
DISPOSITIONS
No. 04-0230/AR.
U.S. v. Steven
R. SMITH.
CCA 9102660.
PETITIONS FOR GRANT OF REVIEW FILED
No. 02-0801/AR.
U.S. v. Ann M.
BRENNAN.
CCA 20000401.*/
No. 04-0336/AF.
U.S. v.
Bradley K. RHODES.
CCA 34697.
INTERLOCUTORY ORDERS
No. 02-0593/AF.
U.S. v.
Kenneth L. KNIGHT.
CCA 34473. Appellant's
motion to add additional issue to
the supplement to petition for grant of review granted.
No. 03-0259/AR.
U.S. v. Arthur
MASON Jr.
CCA 9601811. Appellant's
motion to submit corrected brief
granted.
No. 03-0578/NA.
U.S. v.
Jeffrey B. MAZER.
CCA 200001655. Motion
filed by Lieutenant Lars C. Johnson
for leave to withdraw as counsel granted.
No. 04-0230/AR.
U.S. v. Steven
R. SMITH.
CCA . Appellant's
motion to withdraw petition for
grant of review granted and motion to extend time to file supplement to
petition for grant of review denied as moot; Appellee’s
motion to oppose petition for grant of review denied as moot and motion
to
attach documents granted.
_____________
*/ Second petition
filed in this
case.
DAILY
JOURNAL
No.
04-098
Tuesday, March
02, 2004
HEARINGS
No. 02-0849/AF.
U.S. v. Robert
L. MASON, Jr.
CCA 34394.
No. 03-0224/AF.
U.S. v. Kent
D. IRVIN.
CCA 34756.
No. 03-0473/NA.
U.S. v. Troy B.
JENKINS.
CCA 200101151.
No. 03-0561/AR.
U.S. v.
William A. BYRD.
CCA 9901101.
No. 04-0027/AR.
U.S. v.
Cameron T. FELDER.
CCA 20021011.
PETITIONS FOR GRANT OF REVIEW FILED
No. 04-0332/NA.
U.S. v. Blanca
E. CANO.
CCA 200202274.
No. 04-0333/MC.
U.S. v. Larry
J. WHITFIELD.
CCA 200300409.
No. 04-0334/MC.
U.S. v. Octavio R. MUNOZ.
CCA 200300549.
No. 04-0335/NA.
U.S. v. Moses
L. EAST.
CCA 200301491.
MANDATES ISSUED
No. 03-0072/AF.
U.S. v. Joshua
P. LOVETT.
CCA 33947.
No. 03-5002/AR.
U.S. v. Joshua
M. FAGAN.
CCA 20000891.