UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-112
Thursday, February 28, 2013
APPEALS
- SUMMARY DISPOSITIONS
No. 13-0143/AR. U.S. v. Tremayne J. JONES. CCA 20100702. On consideration of
the petition for grant of review of the decision of the Army Court of Criminal
Appeals, we agree with Appellant's personally asserted contention that there
was only one conspiracy to distribute marijuana. Appellant was convicted of two conspiracies
to distribute some amount of marijuana, but the trial evidence shows that there
was only one agreement between Appellant and his co-conspirator, then-SPC Valerie Guajardo, to distribute marijuana. Under these circumstances, the government
only proved one conspiracy. See United States v. Pereira, 53 M.J. 183 (C.A.A.F. 2000); United
States v. Reliford, 27 M.J.
176 (C.M.A. 1988) (summary disposition). Therefore, to conform
the pleadings to the proof, the conspiracy specification of Additional Charge I
should be consolidated with the conspiracy specification of Additional Charge
II to become a single specification within Additional Charge I. Although the conspiracy offenses are
consolidated, we are satisfied that Appellant suffered no prejudice as to his
sentence. Accordingly, it is ordered that
said petition is hereby granted on the following issue:
WHETHER A SINGLE
AGREEMENT TO COMMIT THE SAME CRIME ON MULTIPLE OCCASIONS IS LEGALLY SUFFICIENT
TO SUPPORT FINDINGS OF GUILTY ON TWO SEPARATE CONSPIRACY CHARGES.
The conspiracy specification of Additional
Charge I is consolidated with the conspiracy
specification of Additional Charge II to allege the following specification
under Additional Charge I:
ADDITIONAL CHARGE I: VIOLATION OF THE UCMJ,
ARTICLE 81.
THE SPECIFICATION: In that Specialist Tremayne
J. Jones, U.S. Army, did at or near Fort Huachuca, AZ, between on or about 1
October 2009 and on or about 21 October 2009, conspire with Specialist
Valerie C. Guajardo to commit an offense under the Uniform Code of Military
Justice, to wit: wrongful distribution of some amount of marijuana, a schedule
I controlled substance, and in order to effect the object of the conspiracy,
the said Specialist Tremayne J. Jones and Specialist
Valerie C. Guajardo, did wrongfully possess marijuana with the intent to
distribute the said controlled substance on or about 6 and 21 October 2009.
The decision of the Army Court of Criminal
Appeals is affirmed as to Charge I and its specification of possession with the
intent to distribute 138 pounds of marijuana, Additional Charge I and its
specification (consolidated), and Additional Charge III and its specification
of possession with intent to distribute some amount of marijuana on or about
6 October 2009, and the sentence. [See
also ORDERS GRANTING PETITION FOR REVIEW this date.]
No. 13-0198/AR. U.S. v. Jayson L. STEAR. CCA 20100419. On consideration of the petition for grant of
review of the decision of the United States Army
Court of Criminal Appeals, it is ordered that said
petition is hereby granted, and that the
decision of the United States Army Court of Criminal Appeals is affirmed.* [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]
* It is directed that the promulgating order
be corrected to change the plea to Charge IV (redesignated
as Charge II) from "None Entered" to "Not Guilty" and the finding from "None
Entered" to "Guilty."
ORDERS
GRANTING PETITION FOR REVIEW
No. 13-0143/AR. U.S. v. Tremayne
J. JONES. CCA 20100702.
[See also APPEALS-SUMMARY DISPOSITIONS this date.]
No. 13-0198/AR. U.S. v. Jayson L. STEAR. CCA 20100419.
[See also APPEALS-SUMMARY DISPOSITIONS this date.]
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0250/AR. U.S. v. Jesse G. CATINO. CCA 20120018.
No. 13-0251/AF. U.S. v. Stoney
B. OSBORNE. CCA 37909.
No. 13-0254/AR. U.S. v. Zachary T. SWAIM. CCA 20120105.
No. 13-0255/AR. U.S. v. Steven A. WOODY II. CCA 20120056.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0321/NA. U.S. v. Christopher R.
MORGAN. CCA 201200141.
PETITIONS
FOR RECONSIDERATION DENIED
No. 13-0006/NA. U.S. v. Brian L. BRIMEYER. CCA 201100141. On consideration of the motion for reconsideration of this Court's order issued
on December 7, 2012, it is ordered that said motion is hereby granted, and that
said petition for reconsideration is hereby denied.
INTERLOCUTORY
ORDERS
No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 200800827.
No. 12-0448/MC. U.S. v. Jonathan E. LONSFORD. CCA 201100022.
No. 12-5003/MC. U.S. v. Leslie D. PORTER. CCA 201100188.
No. 13-0260/NA. U.S. v. Jay D. WYLIE. CCA 201200088.
On
consideration of the motions filed by Captain Michael D. Berry to withdraw as
appellate defense counsel, it appears that the Judge Advocate General has
assigned another counsel to represent Appellant's and that the new attorney has
assumed the representation of said Appellant's.
Accordingly, it is ordered that said motions are hereby granted.
No. 13-0270/MC. U.S. v. Bryan B. HARRIS. CCA 201200274. Appellant's
third motion to extend time to file the supplement to the petition for grant of
review granted to March 14, 2013.
No. 13-0318/AR. U.S. v. Robert E. MCCLASKEY. CCA 20100853.
Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to March 18,
2013.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-111
Wednesday, February
27, 2013
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0319/AR. U.S. v. Lemanuel
A. SANTANA. CCA 20120746.
No. 13-0320/AR. U.S. v. Jessie A. RUIZ. CCA 20111051.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-110
Tuesday, February 26,
2013
HEARINGS
No. 12-0524/AR. U.S. v. Bruce L. Kelly. CCA 20090809.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0150/MC. U.S. v. Michael S. JACQUEZ. CCA 201200201.
No. 13-0179/AR. U.S. v. Joe SOTELO. CCA 20110267.
No. 13-0188/AR. U.S. v. Jeremy L. SHIELDS. CCA 20101035.
No. 13-0220/AR. U.S. v. Jacob M. LAFATA. CCA 20110124.
No. 13-0223/AR. U.S. v. Dnetric J.
WILLIAMS. CCA
20100833.
No. 13-0246/AR. U.S. v. Jorge A. QUEVEDO. CCA 20120224.
No.
13-0247/AR. U.S. v. Christopher P.
KILBURN. CCA 20100917.
No. 13-0248/AR. U.S. v. Cory J. ORCUTT. CCA 20120325.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0317/AR. U.S. v. Brian J. RIEF. CCA 20120515.
No. 13-0318/AR. U.S. v. Robert E.
MCCLASKEY. CCA
20100853.
INTERLOCUTORY
ORDERS
No.
11-0537/MC. U.S. v. Christopher M.
HARRIS. CCA 201000341. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to March 18, 2013.
No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172.
Appellant's motion to file corrected
brief on the specified issue granted.
No. 13-0274/AF. U.S. v. Steven J. DIMATTEO. CCA 37552.
Appellant's motion to file a corrected
table of contents granted.
No.
13-0312/AR. U.S. v. Erik A. HOLLINGSWORTHMATA.
CCA
20100752. Appellant's motion to
extend time to file the supplement to the petition for grant of review granted
to March 12, 2013.
No.
13-0313/AR. U.S. v. Michael W.
PLEASANT, Jr. CCA 20100781. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to March 18, 2013.
No. 13-0314/NA. U.S. v. Edmund L. GREENE. CCA 201200105. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 18, 2013.
No. 13-5003/AR. U.S. v. Justin P. SWIFT. CCA 20100196. Appellant's motion to extend time to file a
brief granted, up to and including
March 6, 2013, and absent
extraordinary circumstances, no further extension of time will be granted in
this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-109
Monday, February 25, 2013
ORDERS
GRANTING PETITION FOR REVIEW
No. 13-0205/AR. U.S. v. Justin C. QUINN. CCA 20110159.
Review granted on the following issue:
WHETHER APPELLANT'S
CONVICTION UNDER ARTICLE 120(k), UCMJ, FOR ENGAGING
IN SEXUAL RELATIONS IN THE PRESENCE OF OTHERS VIOLATES THE DUE PROCESS CLAUSE
OF THE FIFTH AMENDMENT IN LIGHT OF LAWRENCE v. TEXAS, 539 U.S. 558 (2003).
No briefs will be
filed under Rule 25.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
11-0537/MC. U.S. v. Christopher M.
HARRIS. CCA 201000341.*
No.
13-0310/AR. U.S. v. George L. RIVAS. CCA 20120175.
No. 13-0311/AR. U.S. v. Patrick T. WILLBARGER. CCA 20091026.
No.
13-0312/AR. U.S. v. Erik A. HOLLINGSWORTHMATA.
CCA
20100752.
No.
13-0313/AR. U.S. v. Michael W.
PLEASANT, Jr. CCA 20100781.
No. 13-0314/NA. U.S. v. Edmund L. GREENE. CCA 201200105.
No.
13-0315/AR. U.S. v. Kenneth R.
UNDERWOOD, Jr. CCA 20120284.
No.
13-0316/AR. U.S. v. Keith D. KERRIGAN. CCA 20111083.
MISCELLANEOUS
DOCKET - FILINGS
Misc. No. 13-8027/AF. United States, Respondent v. William C. SUMMERFIELD,
Petitioner. CCA 2013-06. Notice is hereby given that a motion to stay
proceedings was filed by Petitioner on this date.
Misc. No. 13-8028/NA. Joseph M. MANCILLAS,
Petitioner v. Navy-Marine Corps Court of Criminal Appeals, Respondent. Notice is hereby given that a petition for
extraordinary relief in the nature of a writ of mandamus was filed under Rule
27(a) on this date.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
No. 13-8027/AF. United States, Respondent v. William C. SUMMERFIELD,
Petitioner. CCA 2013-06. On consideration of Petitioner's motion to
stay trial proceedings and Respondent's opposition, it is ordered that said
motion to stay is denied without prejudice.
INTERLOCUTORY
ORDERS
No. 12-8027/AR. Center for Constitutional
Rights, et al, Appellants v. United States, and Colonel Denise Lind, Military
Judge, Appellees. CCA 20120514. On
February 14, 2013, the Court denied the motions filed by Guardian News and
Media LLC for leave to file memorandum as Amicus Curiae out of time, and for
leave to file declaration of Ed Pilkington.
It is, by the Court, this date, ordered that said order is hereby
rescinded.
MANDATES
ISSUED
No. 12-0414/AR. U.S. v. David G. SPICER,
Jr. CCA 20090608.
* Third petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-108
Friday, February 22,
2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0091/AR. U.S. v. Alexander LOYA. CCA 20090770.
No. 13-0200/NA. U.S. v. Zane M. MASON. CCA 201200310.
No. 13-0239/AF. U.S. v. Dustin A. DREES. CCA 37942.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0308/AR. U.S. v. Kasey L. GOAD. CCA 20120171.
No. 13-0309/AF. U.S. v. Anthony J. DEVLIN. CCA S31858.
INTERLOCUTORY
ORDERS
No. 13-0270/MC. U.S. v. Bryan B. HARRIS. CCA 201200274. Appellant's
second motion to extend time
to file the supplement to the petition for grant of review granted, up to and including February 28, 2013,
and absent extraordinary
circumstances, no further extension of time will be granted in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-107
Thursday, February
21, 2013
APPEALS
- SUMMARY DISPOSITIONS
No. 12-0597/AR. U.S. v. Reginald D. HOLSEY. CCA 20100479. On further consideration of the granted issue, 71 M.J. 398 (C.A.A.F. 2012) (order
granting review), the briefs of the parties, and oral argument, we note that
both parties agree that the military judge abused his discretion by rejecting
Appellant's guilty plea to unauthorized absence based on the mere possibility
that a necessity defense existed in this case.
Assuming, without deciding, that the military judge did abuse his
discretion, we conclude that this error did not materially prejudice
Appellant's substantial rights. Article 59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a) (2006). Even if the military judge had accepted
Appellant's guilty plea to unauthorized absence, the Government charged, was
prepared to move forward on, and did in fact prove the greater offense of
desertion. Furthermore, Appellant's
attempt to plead guilty to unauthorized absence, his cooperation with the
Government in returning to his unit, and his acceptance of responsibility were
all matters in mitigation before the military judge for sentencing
purposes. Accordingly, it is ordered
that the decision of the United States Army Court of Criminal Appeals is
affirmed.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0134/AF. U.S. v. Gustavo A. ABADIA. CCA 37682.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0307/AR. U.S. v. Christopher C.
GILL. CCA 20110722.
INTERLOCUTORY
ORDERS
No. 12-0524/AR. U.S. v. Bruce L. KELLY. CCA 20090809. On
consideration of the motions filed by Professor Paul Bennett, University of
Arizona, James E. Rogers College of Law, to appear pro hac
vice as counsel of record for Amici Curiae, to allow
law student Michelle Behan to appear on behalf of the Amici
Curiae and present oral argument, of law student David Potts to appear on brief
as Amicus Curiae, of law student Matthew Randle to appear on brief as Amicus
Curiae, to allow law student Michelle Behan to appear on behalf of the Amici Curiae, to file Amicus Curiae brief, and for leave to
file Amicus Curiae supplemental brief, it
is ordered that said motions are hereby granted, and that the Amicus Curiae will be allotted 10 minutes to
present oral argument.
No. 13-0007/AR. U.S. v. Walter S. COLEMAN.
CCA
20100417.
No. 13-5002/CG. U.S. v. Wilson MEDINA.
CCA
1325.
In view of the existence of a vacant position
on the Court, notice is hereby given that the Chief Judge has called upon
Senior Judge Walter T. Cox III to perform judicial duties in the
above-referenced cases, and that Senior Judge Walter T. Cox III has consented
to perform judicial duties in said cases under Article 142(e)(1)(A)(ii),
Uniform Code of Military Justice, 10 U.S.C.
§ 942(e)(1)(A)(ii)(2006).
No. 13-0025/MC. U.S. v. Allen J. SOLOMON. CCA 201100582. In view
of the existence of a vacant position on the Court, notice is hereby given that
the Chief Judge has called upon Senior Judge Andrew S. Effron to perform
judicial duties in the above-referenced case, and that Senior Judge Andrew S.
Effron has consented to perform judicial duties in said case under Article
142(e)(1)(A)(ii), Uniform
Code of Military Justice, 10 U.S.C.
§ 942(e)(1)(A)(ii)(2006).
No. 13-0091/AR. U.S. v. Alexander LOYA. CCA 20090770.
Appellant's motion to consider matters pursuant
to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and
suspend Rule 21A(c) is denied.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-106
Wednesday, February
20, 2013
ORDERS
GRANTING PETITION FOR REVIEW
No. 12-0229/AR. U.S. v. Roger S. DANES. CCA 20091072.
Review granted on the following issue:
WHETHER THE
GOVERNMENT'S FAILURE TO ALLEGE ANY OF THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ, IN SPECIFICATIONS 2, 4, AND 6 OF CHARGE III REQUIRES
THIS COURT TO SET ASIDE THOSE SPECIFICATIONS.
No briefs will be filed
under Rule 25.
No. 12-0336/AR. U.S. v. Christopher L.
COVINGTON. CCA 20090877. Review granted on
the following issue:
WHETHER THE
GOVERNMENT'S FAILURE TO ALLEGE ANY OF THE TERMINAL ELEMENTS OF ARTICLE 134, UCMJ, IN SPECIFICATIONS 1, 2, AND 3 OF CHARGE IV REQUIRES
THIS COURT TO SET ASIDE THOSE SPECIFICATIONS.
No briefs will be
filed under Rule 25.
No. 13-0116/AR. U.S. v. Travis L. SMITH. CCA 20101040. Review granted on the following issue:
WHETHER THE
GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT OF A CONTESTED ARTICLE 134,
UCMJ, OFFENSE AMOUNTED TO PLAIN ERROR THAT RESULTED
IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL CONSTITUTIONAL RIGHT TO NOTICE
UNDER THE TOTALITY OF THE CIRCUMSTANCES.
No briefs will be
filed under Rule 25.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 12-0557/AR. U.S. v. Mac D. WARNER. CCA 20100398.
No. 13-0131/AR. U.S. v. Evan R. BROWN. CCA 20100022.
No. 13-0216/AR. U.S. v. Steward S. MOLENS. CCA 20100185.
No. 13-0233/AF. U.S. v. Pilar
GRIJALVA, III.
CCA
S32051.
No. 13-0234/AF. U.S. v. Zachary D. BRISSEY. CCA S32042.
No. 13-0236/AR. U.S. v. Luke E. SALDIVAR. CCA 20120111.
No. 13-0237/AR. U.S. v. Terry F. DOAN. CCA 20110810.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0123/AR. U.S. v. Bryant K. MARSH. CCA 20080382.*
No.
12-0448/MC. U.S. v. Jonathan E. LONSFORD. CCA 201100022.*
INTERLOCUTORY
ORDERS
No. 13-0134/AF. U.S. v. Gustavo A. ABADIA. CCA 37682.
Appellee's
motion to strike Appellant's attachment of facts outside the record but
included in reply and supplement is granted.
No. 13-0163/AR. U.S. v. Willie J. SMITH,
Jr. CCA 20100637. Appellant's motion to file the supplement to
the petition for grant of review out of time is granted.
No. 13-0297/NA. U.S. v. Stetson O. HOLMES. CCA 201100602. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 11, 2013.
No. 13-0300/AR. U.S. v. John H. ROGAN. CCA 20110650. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 11, 2013.
____________________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-105
Tuesday, February 19,
2013
HEARINGS
No. 12-0555/NA. U.S. v. Heather D. LUBICH. CCA 201100378.
No. 13-0016/AR. U.S. v. Daniel GASKINS. CCA 20080132.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0224/AR. U.S. v. Robert M. WEBB. CCA 20110300.
No. 13-0227/AR. U.S. v. Nathaniel C.
BURKHART. CCA
20120230.
No. 13-0228/AR. U.S. v. Domingo A. SOSA. CCA 20120197.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0296/AR. U.S. v. Lando C. KELLY. CCA 20111137.
No. 13-0297/NA. U.S. v. Stetson O. HOLMES. CCA 201100602.
No. 13-0298/AR. U.S. v. Stephan N. SMITH. CCA 20120226.
No. 13-0299/AF. U.S. v. Timothy B. HELMS. CCA S31923.
No. 13-0300/AR. U.S. v. John H. ROGAN. CCA 20110650.
No. 13-0301/AR. U.S. v. Corey M. LUEHRING. CCA 20120077.
No.
13-0302/AF. U.S. v. Christopher E.
BECHTHOLD. CCA S31913.
No. 13-0303/AR. U.S. v. Marcus D. PRICE. CCA 20120495.
No. 13-0304/AF. U.S. v. Clayton P. PAYNE. CCA 37793.
No. 13-0305/AF. U.S. v. Shawn D. HENDERSON. CCA 37874.
No. 13-0306/AF. U.S. v. Andrew M. MONTELONGO. CCA S31882.
MISCELLANEOUS
DOCKET - FILINGS
Misc. No. 13-8024/AR. Gregory ROBERTSON, Appellant v. United
States, Appellee.
CCA
20050565. Notice is hereby given
that a petition for extraordinary relief in the nature of a writ of habeas
corpus, which the Court construes as writ-appeal petition under Rule 27(b), was
filed on this date. Appellee will file
an answer on or before March 1, 2013.
Misc. No. 13-8025/AR. Maurice K. ROBINS, Petitioner v. United
States, Respondent. Notice is hereby
given that a petition for extraordinary relief in the nature of a writ of
habeas corpus was filed under Rule 27(a) on this date.
Misc. No. 13-8026/AF. Patrick CARTER, Appellant
v. Norman Presecan, Commander, United States Navy, in his official capacity, as
Commanding Officer, United States Naval Consolidated Brig, Miramar, California
and the United States, Appellees. Notice is hereby given that a writ-appeal petition
for review of the decision of the United States Air Force Court of Criminal
Appeals on application for extraordinary relief was filed under Rule 27(b) on
this date. Appellee will file an answer
on or before March 1, 2013.
INTERLOCUTORY
ORDERS
No. 12-0693/AR. U.S. v. Bradley O. TEMPLE. CCA 20090883. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to March 7, 2013.
No. 13-0294/AR. U.S. v. Michael T. GLAD. CCA 20110066. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to March 7, 2013.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-104
Friday, February 15,
2013
PETITIONS
FOR GRANT OF REVIEW FILED
No. 12-0693/AR. U.S. v. Bradley O. TEMPLE. CCA 20090883.*
No. 13-0293/AF. U.S. v. Christopher W.
GIBSON. CCA S31967.
No. 13-0294/AR. U.S. v. Michael T. GLAD. CCA 20110066.
No. 13-0295/AR. U.S. v. Leslie BEASLEY. CCA 20110616.
______________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-103
Thursday, February
14, 2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 11-0467/AR. U.S. v. Arthur R. YOUNG,
Jr. CCA 20090092.
No. 13-0199/AR. U.S. v. Jacquen
L. BRATCHER. CCA 20120533.
No. 13-0203/NA. U.S. v. Lucas D. WYLIE. CCA 201200123.
No. 13-0217/AR. U.S. v. Bryant C.
WHITESIDE. CCA 20120048.
No. 13-0218/AR. U.S. v. Robert L. BOYD. CCA 20110129.
No. 13-0219/AR. U.S. v. Derek K. CONVER. CCA 20111071.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
Misc. No. 13-8023/AF. In re James W. RICHARDS,
Petitioner. CCA
2012-14. On consideration of the writ-appeal petition, and the motion
for a stay of proceedings below, it is ordered
that said writ-appeal
petition is hereby denied without prejudice, and that said motion is hereby
denied as moot.
INTERLOCUTORY
ORDERS
No. 12-8027/AR. Center for Constitutional
Rights, et al, Appellant v. United States, and Colonel Denise Lind, Military
Judge, Appellees. CCA 20120514. On
consideration of the motions filed by Guardian News and Media LLC for leave to
file memorandum as Amicus Curiae out of time, and for leave to file declaration
of Ed Pilkington, it is ordered that said motions are hereby denied.
No. 13-0253/AR. U.S. v. Kallai
Q. SWANSON. CCA 20110702. Appellant's motion to amend the appendix is
granted.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-102
Tuesday, February 12,
2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 09-0079/AR. U.S. v. James T. MURPHY. CCA 19872873.
No. 13-0182/AR. U.S. v. Alvaro ALEMAN. CCA 20110004.
No. 13-0214/AR. U.S. v. Steven M. SERVATIUS. CCA 20120502.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0290/AR. U.S. v. Lakaryl
Q. WATERS. CCA 20100026.
No. 13-0291/AF. U.S. v. Dantejio
T. TAFT. CCA S32056.
No. 13-0292/AF. U.S. v. Terrell A. PEARSON. CCA 37735.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
INTERLOCUTORY
ORDERS
No. 11-0431/AR. U.S. v. Clyde E. CALLWOOD. CCA 20080577.
Appellant's motion to extend time to
file the supplement to the petition for grant of review granted, but
only up to and including February 28, 2013, and absent extraordinary circumstances, no further extension of time
will be granted in this case.
No. 12-0377/AR. U.S. v. Randy A. GIDDENS. CCA 20090598.
Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to March 1,
2013.
No. 13-0025/MC. U.S. v. Allen J. SOLOMON. CCA 201100582. Appellant's
motion for leave to file a corrected brief and Appellant's motion to file a
redacted joint appendix are granted.
No. 13-0061/AR. U.S. v. Ted C. SQUIRE. CCA 20091106. Appellant's
motion to extend time to file a brief granted, up to and including
February 21, 2013, and absent
extraordinary circumstances, no further extension of time will be granted in
this case.
No. 13-0240/AR. U.S. v. Bradley G. HOWARD. CCA 20110109. Appellant's
second motion to extend time
to file the supplement to the petition for grant of review granted, up to and including February 26, 2013,
and absent extraordinary
circumstances, no further extension of time will be granted in this case.
No. 13-0283/AF. U.S. v. Timothy L. MERRITT. CCA 37608. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 28, 2013.
No. 13-0287/AR. U.S. v. Jeremiah J. REED. CCA 20110878. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to March 1, 2013.
No. 13-0290/AR. U.S. v. Lakaryl
Q. WATERS. CCA 20100026. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to February 22, 2013.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-101
Monday, February 11,
2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0210/AR. U.S. v. Nikki L. PARKER. CCA 20110804.
No. 13-0211/AR. U.S. v. Alysia
D. REED. CCA 20120189.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 12-0377/AR. U.S. v. Randy A. GIDDENS. CCA 20090598.*
No. 13-0284/AF. U.S. v. Vincent J.
GALLEGOS. CCA S31966.
No. 13-0285/AF. U.S. v. Desiree A. NEWENHAM. CCA S32054.
No. 13-0286/AF. U.S. v. Nathan L. SETTLES. CCA S32059.
No. 13-0287/AR. U.S. v. Jeremiah J. REED. CCA 20110878.
No. 13-0288/AF. U.S. v. Clifton H. ROBBINS. CCA 37753.
No. 13-0289/AF. U.S. v. Glen R. GLOVER. CCA 38012.
MISCELLANEOUS
DOCKET - FILINGS
Misc. No. 13-8023/AF. In re James W. RICHARDS. CCA 2012-14. Notice is hereby given that a writ-appeal
petition for review of the decision of the United States Air Force Court of Criminal
Appeals on application for extraordinary relief in the nature of mandamus or in
the alternative prohibition was filed under Rule 27(b) on this date.
________________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-100
Friday, February 8,
2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0121/MC. U.S. v. Kenneth BELCHER. CCA 201200079.
No. 13-0135/AR. U.S. v. Marius St. GERARD. CCA 20100506.
No. 13-0209/AF. U.S. v. Douglas E. SMITH. CCA 37863.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0280/AR. U.S. v. Anthony M. RABY. CCA 20110395.
No. 13-0281/AF. U.S. v. Andrew H. BAKER. CCA S31928.
No. 13-0282/AF. U.S. v. Steven W. FORD, Jr. CCA 37934.
No. 13-0283/AF. U.S. v. Timothy L. MERRITT. CCA 37608.
No. 13-6003/AF. U.S. v. Brendan D. PARK. CCA 2012-11.
INTERLOCUTORY
ORDERS
No. 13-0129/NA. U.S. v. Marcus R. SMITH. CCA 201100433. GCMCO) 01-10
dated 10 February 2010 and GCMCO 01N-10, dated 1
March 2011. GCMCO
01-10 detailed 12 officer members, none of whom appeared at trial. GCMCO 01N-10
detailed 10 officer and enlisted members, each of whom
appeared and were sworn. That order also
relieved, for this case only, one officer member and two enlisted members who
had been previously detailed by GCMCO 01K-10, dated
30 December 2010. The only orders
included in the record are 01-10 and 01N-10.
The record does not account for the absence of the members detailed by GCMCO 01-10. Accordingly, it is ordered that Appellee file an answer addressing the following specified
issue:
Whether
Appellant was materially prejudiced where 12 detailed members were absent.
Appellee's answer shall be
filed with the Court within 20 days of the date of this order. Appellant may file a reply within 5 days
after the filing of the answer.*
__________________________________
* It is noted that the military judge neglected to order certain
portions of the record sealed under
MRE 513.
Accordingly, the Clerk is directed to seal pages 201-33.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-099
Thursday, February 7,
2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0147/AR. U.S. v. John F. MULLINGS. CCA 20100925.
No. 13-0176/AR. U.S. v. Aaron S. MARLOW. CCA 20120067.
No. 13-0181/AR. U.S. v. Douglas W. SHEVLIN. CCA 20110577.
No. 13-0195/AF. U.S. v. Austin W. HANSKNECHT. CCA S31865.
No. 13-0207/AF. U.S. v. Adam V. HARRIS. CCA S32049.
No. 13-0208/AF. U.S. v. Jason L. KEPHART. CCA 37923.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0279/AR. U.S. v. Adam C. WINFIELD. CCA 20110675.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-098
Wednesday, February
6, 2013
ORDERS
GRANTING PETITION FOR REVIEW
No. 13-5001/AR. U.S. v. Nicholas R. SCHELL. CCA 20110264. Review granted on the following issue:
WHETHER THE MILITARY
JUDGE'S FAILURE TO DISCUSS WITH CROSS-APPELLANT THAT THE OFFENSE OF ATTEMPTED ENTICEMENT
OF A MINOR REQUIRES A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THE UNDERLYING
SUBSTANTIVE OFFENSE PROVIDES A SUBSTANTIAL BASIS IN LAW TO QUESTION
CROSS-APPELLANT'S PLEA.
Briefs will be filed
under Rule 25.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0079/NA. U.S. v. Steve MOYA. CCA 201100444.
No. 13-0153/AF. U.S. v. Brandon W. MCCLANNAHAN. CCA 37770.
No. 13-0175/NA. U.S. v. Ryan G. DESIERTO. CCA 201200046.
INTERLOCUTORY
ORDERS
No. 10-5004/AF. U.S. v. Ryan D. HUMPHRIES. CCA 37491. Appellee/Cross-Appellant's motion to extend time to file
the supplement to the petition for grant of review granted to February 25, 2013.
No. 12-0070/AF. U.S. v. Erica N. PERRY. CCA 37676. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 25, 2013.
No. 13-0271/AF. U.S. v. Trevor L. BAGLEY. CCA S31876. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 25, 2013.
No. 13-0272/AR. U.S. v. Curtis M. JACKSON. CCA 20110597. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 19, 2013.
No. 13-0273/AF. U.S. v. Christopher D.
WALTERS. CCA 37873. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to February 25, 2013.
No. 13-0274/AF. U.S. v. Steven J. DIMATTEO. CCA 37552.
Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to February 25,
2013.
No. 13-0276/AR. U.S. v. James V. TAYLOR. CCA 20120387. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 22, 2013.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-097
Tuesday, February 5,
2013
ORDERS
GRANTING PETITION FOR REVIEW
No. 12-0616/AR. U.S. v. Timothy E. BENNITT. CCA 20100172. Review granted on the following specified issue:
In
Specification 2 of Charge I Appellant is charged with
unlawfully killing Leah King while aiding and abetting Ms. King's wrongful use
of Oxymorphone, which is alleged to be an "offense"
directly affecting the person of Ms. King.
Must Ms. King's use of Oxymorphone be an
"offense" to be legally sufficient to support the finding of guilty under
Article 119(b)(2)?
Briefs will be filed on
the specified issue under Rule 25.
No. 13-0013/AR. U.S. v. Paul R. JASPER. CCA 20100112. Review granted on the following issues:
I. WHETHER THE MILITARY JUDGE ERRED WHEN HE
ALLOWED THE ACCUSER TO RECLAIM A REGULATORY PRIVILEGE AFTER PREVIOUSLY WAIVING
THAT PRIVILEGE AND DISCLOSING THAT THE ACCUSER ADMITTED FABRICATING SOME OF THE
ALLEGATIONS AGAINST APPELLANT.
II.
WHETHER THE ARMY COURT ERRED WHEN IT
CREATED A CONSTITUTIONAL "KNOWING" ELEMENT TO MILITARY RULE OF EVIDENCE
510(a) REQUIRING A PRIVILEGE HOLDER TO BE INFORMED OF THE REGULATORY PRIVILEGE
IN ORDER FOR THE DISCLOSURE TO BE DEEMED VOLUNTARY.
III. WHETHER THE
GOVERNMENT'S FAILURE TO ALLEGE THE TERMINAL ELEMENT
IN SPECIFICATION 1 OF CHARGE II AND THE SPECIFICATIONS OF THE ADDITIONAL CHARGE
RESULTED IN MATERIAL PREJUDICE TO APPELLANT'S SUBSTANTIAL RIGHT TO NOTICE.
IV. WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL
MEMBERS THAT IN ORDER TO FIND APPELLANT GUILTY OF POSSESSION OF CHILD
PORNOGRAPHY IN VIOLATION OF ARTICLE 134, CLAUSE 1 AND 2, THE IMAGES MUST BE OF
A CHILD UNDER THE AGE OF EIGHTEEN, INSTEAD OF UNDER THE AGE OF SIXTEEN AS THE UCMJ DEFINES CHILD.
Briefs will be filed
under rule 25.
No. 13-0124/MC. U.S. v. William C. DALTON. CCA 201100521. Review granted on the following issue:
IN UNITED STATES
v. JONES, THIS COURT RETURNED TO THE STRICT ELEMENTS TEST FOR DETERMINING
THE EXISTENCE OF LESSER-INCLUDED OFFENSES.
MURDER AND VOLUNTARY MANSLAUGHTER REQUIRE THE INTENT TO KILL OR INFLICT
GREAT BODILY HARM, BUT INVOLUNTARY MANSLAUGHTER REQUIRES CULPABLE
NEGLIGENCE. UNDER JONES, IS
VOLUNTARY MANSLAUGHTER A LESSER-INCLUDED OFFENSE OF EITHER MURDER OR VOLUNTARY
MANSLAUGHTER?
Briefs will be filed
under Rule 25.
CERTIFICATES
FOR REVIEW FILED
No. 13-5004/CG. U.S., Appellant v. Justin R. WHITAKER, Appellee. CCA 1366.
Notice is hereby given that a certificate for review of the decision of
the United States Coast Guard Court of Criminal Appeals was filed under Rule 22
on the following issue:
WHETHER THE COAST
GUARD COURT OF CRIMINAL APPEALS ERRED BY APPLYING THE PROVIDENCY
REQUIREMENTS OF HARTMAN IN A CASE WHERE THE FACTS ELICITED DURING THE PROVIDENCY INQUIRY REVEALED THAT THE SEXUAL ACTIVITY FELL
OUTSIDE OF THE CONSTITUTIONAL PROTECTIONS BOUNDED BY LAWRENCE v. TEXAS
BECAUSE IT INVOLVED A SLEEPING VICTIM.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 11-0640/AR. U.S. v. Robert L.
MCCULLOUGH. CCA 20090206.
No. 13-0204/AR. U.S. v. Travis W. OTT. CCA 20111089.
No. 13-0206/AR. U.S. v. Manuel E. OLMOTORRES. CCA 20111103.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 11-0475/AR. U.S. v. Robert L. CONRADY. CCA 20080534.
No. 13-0278/AF. U.S. v. Michael D. REED. CCA 37775.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
Misc. No. 13-8019/AF. U.S. v. John C. CALHOUN.
CCA
2012-01. On consideration of the motion filed by Appellant for an
enlargement of time to file a writ-appeal petition, it is
ordered that said motion is hereby granted to February 11, 2013.
MISCELLANEOUS
DOCKET - FILINGS
Misc. No. 13-8022/NA. Jeremy G. BOYER, Appellant v. Commandant,
United States Disciplinary Barracks, Fort Leavenworth, Kansas, and United
States, Appellees.
Notice is hereby given that a writ-appeal petition for
review of the decision of the United States Navy-Marine Corps Court of Criminal
Appeals on application for extraordinary relief in the nature of a writ of
habeas corpus was filed under Rule 27(b) on this date.
INTERLOCUTORY
ORDERS
No. 13-0268/MC. U.S. v. Samuel PACHECO, Jr. CCA 201200366. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 21, 2013.
No. 13-0269/MC. U.S. v. Joshua W. TIGER. CCA 201200284. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 21, 2013.
No. 13-0270/MC. U.S. v. Bryan B. HARRIS. CCA 201200274. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 21, 2013.
No. 13-8017/AF. In
Re Matthew J. SOUSA, Petitoner.On consideration of the petition for extraordinary
relief in the nature of a writ of mandamus, it is ordered that the United States show cause on or before
February 15, 2013, why the requested relief should not be granted.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-096
Monday, February 4, 2013
CERTIFICATES
FOR REVIEW FILED
No. 10-5004/AF. U.S., Appellant
v. Ryan D. HUMPHRIES, Appellee. CCA
37491.
Notice is hereby given that a certificate for review of the decision of
the United States Air Force Court of Criminal Appeals was filed under Rule 22
on the following issue:
WHETHER
THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN FINDING APPELLEE'S
SENTENCE INAPPROPRIATELY SEVERE UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
10-5004/AF. U.S. v. Ryan D. HUMPHRIES. CCA
37491.*
No.
12-0070/AF. U.S. v. Erica N. PERRY. CCA
37676.*
No.
13-0271/AF. U.S. v. Trevor L. BAGLEY. CCA
S31876.
No.
13-0272/AR. U.S. v. Curtis M. JACKSON. CCA
20110597.
No.
13-0273/AF. U.S. v. Christopher D. WALTERS. CCA
37873.
No.
13-0274/AF. U.S. v. Steven J. DIMATTEO. CCA
37552.
No.
13-0275/AR. U.S. v. Francisco J. GAMBOATERAN. CCA 20111072.
No.
13-0276/AR. U.S. v. James V. TAYLOR. CCA
20120387.
No.
13-0277/AF. U.S. v. Christopher P. HUIE. CCA
37779.
MISCELLANEOUS
DOCKET FILINGS
No. 13-8022/MC. Jeremy G. BOYER, Appellant v. Commandant,
United States Disciplinary Barracks, Fort Leavenworth, Kansas, and United
States, Appellees. Notice is hereby given that a writ-appeal petition for review of the decision of the United
States Navy-Marine Corps Court of Criminal Appeals on application for
extraordinary relief in the nature of a writ of habeas corpus was filed under
Rule 27(b) on this date.
INTERLOCUTORY
ORDERS
No. 12-0524/AR. U.S.
v. Bruce L. KELLY. CCA
20090809.
On consideration of the pleadings and record, it is ordered that both
parties will file briefs on or before February 14, 2013, on the following
specified issue:
WHETHER THE
EXAMINATION OF THE CONTENTS OF APPELLANT'S COMPUTER WAS AN UNLAWFUL INSPECTION
UNDER M.R.E.
313(b).
_______________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-095
Friday, February 1,
2013
PETITIONS
FOR GRANT OF REVIEW - OTHER SUMMARY DISPOSITIONS
No. 13-0231/AF. U.S. v. Andrew J. THOMPSON. CCA S32019. On
consideration of Appellee's
motion to dismiss the petition for grant of review, it is
ordered that said motion is hereby granted without prejudice.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0268/MC. U.S. v. Samuel PACHECO, Jr. CCA 201200366.
No. 13-0269/MC. U.S. v. Joshua W. TIGER. CCA 201200284.
No. 13-0270/MC. U.S. v. Bryan B. HARRIS. CCA 201200274.
INTERLOCUTORY
ORDERS
No. 13-0267/MC. U.S. v. Justin D. TANNER. CCA 201200250. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to February 20, 2013.
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