UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-059
Wednesday, November 30, 2011
APPEALS-SUMMARY
DISPOSITIONS
No. 12-0012/AF.
WHETHER AN ARTICLE 134 CLAUSE 1 OR 2
SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v.
RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S
OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
No. 12-0044/AF.
WHETHER THE SPECIFICATION FOR
FRATERNIZATION FAILS TO STATE AN OFFENSE BECAUSE IT ALLEGES A VIOLATION OF
ARTICLE 134 BUT FAILS TO ALLEGE ANY OF ARTICLE 134'S TERMINAL ELEMENTS.
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0090/AF.
WHETHER THE MILITARY JUDGE ERRED IN
DENYING APPELLANT'S MOTION TO DISMISS FOR FAILURE TO STATE AN OFFENSE, WHERE
THE SPECIFICATION OMITTED REFERENCE TO A REQUIRED ELEMENT UNDER STATE LAW
FOR A FINDING OF GUILTY FOR WRONGFUL
CONSUMPTION OF ALCOHOL WHILE UNDER AGE 21.
Briefs will be filed under Rule 25.
No. 12-0012/AF.
No. 12-0044/AF.
PETITIONS FOR GRANT OF REVIEW
DENIED
No. 12-0022/AR.
No. 12-0024/MC.
No. 12-0130/AR.
INTERLOCUTORY ORDERS
No. 12-0143/MC.
No. 12-0173/NA.
No. 12-0182/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-058
Tuesday, November 29, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 12-0185/AR. U.S.
v. Brandon L. MAULDIN. CCA 20100647.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-057
Monday, November 28, 2011
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0126/AR.
No. 12-0127/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0181/AF.
No. 12-0182/AR.
No. 12-0183/AR.
No. 12-0184/AR.
INTERLOCUTORY ORDERS
No. 12-0172/NA.
No. 12-0177/AR.
No. 12-0181/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-056
Wednesday, November 23, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No. 09-0043/AR.
No. 12-0174/AR.
No. 12-0175/AF.
No. 12-0176/AF.
No. 12-0177/AR.
No. 12-0178/AF.
No. 12-0179/AF.
No. 12-0180/MC.
________________________
* Second
petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-055
Tuesday, November 22, 2011
APPEALS
- SUMMARY DISPOSITIONS
No. 11-0361/AR.
WHETHER SPECIFICATION 2 OF CHARGE IV
FAILS TO STATE AN OFFENSE AS IT DOES NOT ALLEGE, EXPRESSLY OR BY NECESSARY
IMPLICATION, THE "TERMINAL ELEMENT" AS REQUIRED BY UNITED STATES
v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
The decision of the United States Army Court of Criminal
Appeals is vacated. The record of trial
is returned to the Judge Advocate General of the Army for remand to that court
for consideration of the granted issue in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
BAKER, Chief Judge (dissenting):
I dissent for the reasons stated in
my dissenting opinion in Fosler.
No. 12-0124/NA.
In accordance with the Uniform Code
of Military Justice, the Manual for Courts-Martial, applicable regulations, and
this action, the sentence is ordered executed.
Under Article 71(c)(1), UCMJ, a punitive discharge cannot be
ordered executed until, after the completion of direct appellate review, there
is a final judgment as to the legality of the proceedings. Thus, to the extent that the convening authority's
action purported to execute the dishonorable discharge, it was a nullity. To avoid any error in this regard, we again
suggest that the model "Forms for Action" in Manual for Courts-Martial,
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0361/AR.
No. 12-0124/NA.
PETITIONS FOR GRANT OF REVIEW
DENIED
No. 12-0102/AF.
No. 12-0121/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0169/AR.
No. 12-0170/AR.
No. 12-0171/AR.
No. 12-0172/NA.
No. 12-0173/NA.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-054
Monday, November 21, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0165/MC.
No. 12-0166/AR.
No. 12-0167/AR.
No. 12-0168/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-053
Friday, November 18, 2011
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-0008/AR.
I. WHETHER THE MILITARY JUDGE ERRED IN RULING
THAT THE COURT HAD JURISDICTION TO TRY APPELLANT AND THEREBY VIOLATED THE DUE
PROCESS CLAUSE OF THE FIFTH AND SIXTH AMENDMENTS BY REFUSING TO DISMISS THE
CHARGES AND SPECIFICATIONS.
II. WHETHER THE COURT-MARTIAL HAD JURISDICTION
OVER APPELLANT PURSUANT TO ARTICLE 2(a)(10), UNIFORM CODE OF MILITARY JUSTICE.
III. WHETHER AN ARTICLE 134 CLAUSE 1 OR 2
SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v.
RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S
OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
Briefs will be filed under Rule 25
on Issues I and II only.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0158/AR.
No. 12-0159/MC.
No. 12-0160/MC.
No. 12-0161/AR.
No. 12-0162/AR.
No. 12-0163/AR.
No. 12-0164/AR.
MISCELLANEOUS DOCKET -
SUMMARY DISPOSITIONS
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-052
Thursday, November 17, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0243/AR.
No. 12-0151/AF.
No. 12-0152/AF.
No. 12-0153/AF.
No. 12-0154/AF.
No. 12-0155/AF.
No. 12-0156/AR.
No. 12-0157/AF.
________________________
*
Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-051
Wednesday, November 16, 2011
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 12-0047/AR. U.S.
v. Allan J. MARQUARDT. CCA 20100059.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0150/AR. U.S.
v. Joshua C. HOWARD. CCA 20110156.
INTERLOCUTORY ORDERS
No. 12-0009/MC. U.S.
v. Brandon M. MAGNAN. CCA 201000414. No. 12-0096/NA. U.S. v. John CUMMINGS, Jr. CCA 201000623. On consideration of the
motions filed by Lieutenant Michael Hanzel for leave to withdraw as appellate
defense counsel, it appears that the Judge Advocate General has assigned other
counsel to represent Appellants and the new attorneys have assumed the
representation of said Appellants. Accordingly,
it is ordered that said motions are hereby granted.
No. 12-6001/AF. U.S.
v. Scott M. DEASE, Jr. CCA 2011-04. Appellant's motions to reply to answer and to
reply to opposition to motion to stay out of time are hereby denied as moot.
UNITED STATES COURT OF APPEALS FOR
THE ARMED FORCES
DAILY JOURNAL
No. 12-050
Tuesday, November 15, 2011
APPEALS-SUMMARY
DISPOSITIONS
No. 11-0675/AR.
I. WHETHER IN LIGHT OF THIS COURT'S RECENT DECISION IN UNITED
STATES v. FOSLER, THE SPECIFICATION OF THE CHARGE FAILED TO STATE AN
OFFENSE UNDER ARTICLE 134.
II. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN
HER TRIAL DEFENSE COUNSEL FAILED TO INFORM HER THAT SHE WOULD HAVE TO REGISTER
AS A SEX OFFENDER AFTER PLEADING GUILTY.
III. WHETHER APPELLANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY
BECAUSE APPELLANT DID NOT KNOW THAT AFTER PLEADING GUILTY SHE WOULD HAVE TO
REGISTER AS A SEX OFFENDER, AND THE MILITARY JUDGE ABUSED HER DISCRETION WHEN
SHE ACCEPTED APPELLANT'S UNKNOWING AND INVOLUNTARY PLEA WITHOUT ASKING THE
TRIAL DEFENSE COUNSEL IF SHE HAD INFORMED APPELLANT OF THE APPLICABLE SEX
OFFENDER REGISTER REQUIREMENTS.
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 further appellate inquiry and consideration of the granted issues. The Court of Criminal Appeals will obtain
affidavits from the trial defense counsel that respond to Appellant's
allegation of ineffective assistance of counsel. Under Article 66(c), Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 866(c) (2006), the Court of Criminal Appeals shall
review the ineffective assistance of counsel issue in light of the affidavits
and any other relevant matters. See
BAKER, Chief Judge (dissenting):
With respect to Issue I, I adhere to my dissent in Fosler,
where I specifically addressed the issue of kidnapping.
No. 12-0082/AF.
WHETHER AN ARTICLE 134 CLAUSE 1 OR 2
SPECIFICATION THAT FAILS TO EXPRESSLY ALLEGE EITHER POTENTIAL TERMINAL ELEMENT
STATES AN OFFENSE UNDER THE SUPREME COURT'S HOLDINGS IN UNITED STATES v.
RESENDIZ-PONCE AND RUSSELL v. UNITED STATES, AND THIS COURT'S
OPINION IN UNITED STATES v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
ORDERS GRANTING PETITION
FOR REVIEW
No. 11-0258/MC.
WHETHER, IN LIGHT OF UNITED
STATES v. MCMURRIN, 70 M.J. 15 (C.A.A.F. 2011), AND UNITED STATES v.
MORTON, 69 M.J. 12 (C.A.A.F. 2010),
APPELLANT'S GUILTY PLEA TO AN OFFENSE NOT NECESSARILY INCLUDED IN THE
CHARGED OFFENSE CAN BE AFFIRMED UNDER UNITED STATES v. WILKINS, 29 M.J.
421 (C.M.A. 1990).
Briefs will be filed under Rule 25.
No. 11-0675/AR.
No. 12-0082/AF.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0674/AF.
No. 12-0069/MC.
No. 12-0093/AF.
No. 12-0094/AF.
No. 12-0095/AR.
No. 12-0096/NA.
No. 12-0097/AF.
No. 12-0098/AF.
No. 12-0109/AF.
No. 12-0110/AF.
No. 12-0111/AF.
No. 12-0112/AF.
No. 12-0115/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0149/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-049
Monday, November 14, 2011
ORDERS GRANTING PETITION
FOR REVIEW
No. 12-6001/AF.
WHETHER THE AIR FORCE COURT OF
CRIMINAL APPEALS ERRED BY FINDING APPELLANT HAD ABANDONED HIS URINEAND THUS HAD
NO REASONABLE EXPECTATION OF PRIVACY WHERE APPELLANT CONSENTED TO THE SEIZURE
OF HISURINE AND THEN REVOKED CONSENT PRIOR TO THE SEARCH OF APPELLANT'S URINE.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0646/AR.
No. 12-0037/AR.
No. 12-0038/AR.
No. 12-0042/MC.
No. 12-0059/AR.
No. 12-0085/MC.
No. 12-0086/AF.
No. 12-0087/AF.
No. 12-0088/AR.
No. 12-0089/AF.
No. 12-0091/AF.
No. 12-0092/AF.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0145/AF.
No. 12-0146/NA.
No. 12-0147/MC.
No. 12-0148/AR.
INTERLOCUTORY ORDERS
No. 11-0675/AR.
No. 12-6001/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-048
Thursday, November 10, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0144/AR. U.S.
v. Brian F. JONES. CCA 20110103.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-047
Wednesday, November 9, 2011
INTERLOCUTORY ORDERS
No. 11-5005/MC. U.S.
v. Jeremy J. NASH. CCA 201000220. On consideration of the motion of the United States to attach page 857 of the
record of trial, and following examination of the original record of trial
which contains page 857, it is ordered that said motion
is hereby denied.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-046
Tuesday, November 8, 2011
APPEALS – SUMMARY
DISPOSITIONS
No. 12-0046/AR.
WHETHER THE SPECIFICATION OF CHARGE
II FAILS TO STATE AN OFFENSE AS IT DOES NOT ALLEGE EXPRESSLY OR BY NECESSARY
IMPLICATION, THE "TERMINAL ELEMENT" AS REQUIRED BY UNITED STATES
v. FOSLER, 70 M.J. 225 (C.A.A.F. 2011).
The decision of the United States Army Court of Criminal
Appeals is vacated. The record of trial
is returned to the Judge Advocate General of the Army for remand to that court
for consideration of the granted issue in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS
GRANTING PETITION FOR REVIEW this date.]
BAKER, Chief Judge (dissenting):
I adhere to my dissent in Fosler,
where I specifically addressed the issue of kidnapping.
No. 12-0057/AR.
WHETHER CHARGE III FAILED TO STATE
AN OFFENSE WHERE THE GOVERNMENT DID NOT ALLEGE APPELLANT'S CONDUCT WAS TO THE
PREJUDICE OF GOOD ORDER AND DISCIPLINE OR OF A NATURE TO BRING DISCREDIT UPON
THE ARMED FORCES.
The decision of the United States Army Court of Criminal
Appeals is vacated. The record of trial
is returned to the Judge Advocate General of the Army for remand to that court
for consideration of the granted issue in light of United States v. Fosler,
70 M.J. 225 (C.A.A.F. 2011). [See also ORDERS
GRANTING PETITION FOR REVIEW this date.]
BAKER, Chief Judge (dissenting):
I dissent for the reasons stated in
my dissenting opinion in Fosler.
ORDERS
GRANTING PETITION FOR REVIEW
No. 11-0399/NA.
I. IN BRADLEY I, THIS COURT RULED THAT ITS APPLICATION OF WAIVER
TO APPELLANT'S DISQUALIFICATION-OF-TRIAL-COUNSEL CLAIM DID NOT RENDER HIS PLEAS
IMPROVIDENT WHERE THERE WAS: (1) NO INEFFECTIVE ASSISTANCE OF COUNSEL (IAC)
CLAIM; AND (2) ONLY A POSSIBILITY THAT HE BELIEVED THE DISQUALIFICATION CLAIM
WAS PRESERVED FOR APPEAL. ON REMAND,
APPELLANT CLAIMED IAC AND PRESENTED EVIDENCE THAT HE DID BELIEVE HIS DISQUALIFICATION
ISSUE WAS PRESERVED. DID NMCCA ERR IN
HOLDING THAT IT WAS BOUND BY THIS COURT'S RULING THAT APPELLANT'S PLEAS WERE
PROVIDENT?
II. APPELLANT'S CIVILIAN COUNSEL ERRONEOUSLY
ADVISED HIM THAT HIS DENIED MOTION TO DISQUALIFY TRIAL COUNSEL FROM FURTHER
PARTICIPATION IN THE CASE WAS PRESERVED FOR APPEAL DESPITE UNCONDITIONAL
PLEAS. DID NMCCA ERR IN FINDING THAT
CIVILIAN COUNSEL'S ERRONEOUS ADVICE WAS REASONABLE, AND THEREFORE NOT
DEFICIENT?
III. ON REMAND, DID NMCCA VIOLATE THE LAW OF THE
CASE DOCTRINE BY FINDING THAT EVEN IF THE TRIAL JUDGE ERRED BY NOT DISQUALIFYING
TRIAL COUNSEL - WHICH THE BRADLEY I COURT FOUND HE HAD - APPELLANT WAS
NOT PREJUDICED - WHICH THE BRADLEY I COURT FOUND HE WAS?
Briefs will be filed under Rule 25.
No. 12-0046/AR.
No. 12-0057/AR.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0075/AF.
No. 12-0076/AF.
No. 12-0077/AR.
No. 12-0078/AF.
No. 12-0079/AF.
No. 12-0080/AF.
No. 12-0081/AF.
No. 12-0084/AF.
INTERLOCUTORY ORDERS
No. 09-0079/AR.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-045
Monday, November 7, 2011
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0068/AR.
No. 12-0074/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0143/MC.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-044
Friday, November 04, 2011
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0142/NA.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-043
Thursday, November 3, 2011
HEARINGS
No. 11-0396/MC.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 11-0648/NA.
No. 11-0677/AR.
No. 12-0045/NA.
No. 12-0072/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-042
Wednesday, November 2, 2011
HEARINGS
No. 11-5003/NA.
PETITIONS FOR GRANT OF
REVIEW DENIED
No. 12-0063/AR.
No. 12-0065/AR.
No. 12-0067/AR.
PETITIONS FOR GRANT OF
REVIEW FILED
No. 12-0138/AR.
No. 12-0139/AF.
No. 12-0140/AF.
No. 12-0141/AF.
UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 12-041
Tuesday, November 1, 2011
PETITIONS
FOR GRANT OF REVIEW FILED
No. 12-0136/AR.
No. 12-0137/AR.
INTERLOCUTORY ORDERS
No. 12-0015/AR.
No. 12-0134/AR.