UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-194
Friday, June 28, 2013
APPEALS -
SUMMARY DISPOSITIONS
No. 09-0441/AF. U.S. v. Joshua C. BLAZIER. CCA 36988.
On
further consideration of the granted issue, 71 M.J.
459 (C.A.A.F. 2012), and in view of United States
v. Tearman, 72 M.J. 54
(C.A.A.F. 2013), it is ordered
that the decision of the United States Air Force Court of Criminal Appeals is
hereby affirmed.
No. 10-0319/MC. U.S. v. Nathan M. ROBINSON. CCA 200800827. On further consideration of the granted issue, 71 M.J. 358 (C.A.A.F. 2012), and in
view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is
ordered that the decision of the United States Navy-Marine Corps Court of
Criminal Appeals is hereby affirmed.
No. 10-0685/AF. U.S. v. Kenneth J. BURTON,
Jr. CCA S31632. On further
consideration of the granted issue, 71 M.J. 454 (C.A.A.F. 2012), and in view of
United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is ordered that
the decision of the United States Air Force Court of Criminal Appeals is hereby
affirmed.
No. 11-0019/AF. U.S. v. Shannon L. DOLLAR. CCA S31607. On further consideration of the granted issue, 71 M.J.
450 (C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54
(C.A.A.F. 2013), it is ordered that the decision of the United States Air Force
Court of Criminal Appeals is hereby affirmed.
No. 11-0497/MC. U.S. v. Desmond J. HORTON. CCA 201000481. On further consideration of the granted issue, 71 M.J. 359
(C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54
(C.A.A.F. 2013), it is ordered that the decision of the United States
Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.
No. 11-0563/MC. U.S. v. Anthony J. SANDERS. CCA 201000522. On further consideration of the granted issue, 71 M.J. 324
(C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54
(C.A.A.F. 2013), it is ordered that the decision of the United States
Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.
No. 12-0396/MC. U.S. v. Jason A. LUNSFORD, Jr. CCA 201100511. On further consideration of the granted issue, 71 M.J. 314
(C.A.A.F. 2012), and in view of United States v. Tearman, 72 M.J. 54
(C.A.A.F. 2013), it is ordered that the decision of the United States
Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.
No. 12-0450/MC. U.S. v. Jonathan M.
KILARSKI. CCA 201100329.
On
further consideration of the granted issue, 71 M.J. 334 (C.A.A.F. 2012), and in
view of United States v. Tearman, 72 M.J. 54 (C.A.A.F. 2013), it is
ordered that the decision of the United States Navy-Marine Corps Court of
Criminal Appeals is hereby affirmed.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0438/AF. U.S. v. Dewey K. CLAWSON. CCA 37723.
No. 13-0515/AF. U.S. v. Brandon L. BAILEY. CCA 37746.
No. 13-0520/AR. U.S. v. James L. JONES. CCA 20111054.
No. 13-0521/AR. U.S. v. Bryan J. THERIOT. CCA 20120037.
No. 13-0530/AF. U.S. v. Rickey L. COOK,
Jr. CCA S32102.
No. 13-0534/AR. U.S. v. Dequan
D. EDWARDS. CCA 20120936.
No. 13-0538/AR. U.S. v. Obed
NOEL. CCA 20110441.
No. 13-0541/AR. U.S. v. Nicholas S. WHITE. CCA 20110750.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0600/AF. U.S. v. Jovon
R. BRANCH. CCA S32064.
No. 13-0601/AF. U.S. v. Korey
J. TALKINGTON.
CCA
37785.
No. 13-0602/AR. U.S. v. Thomas C. FLESHER. CCA 20120236.
No. 13-0603/AR. U.S. v. Anthony J. MARINO. CCA 20120107.
No. 13-0604/AR. U.S. v. Davuale
B. WILLIAMS. CCA 20110227.
No. 13-0605/MC. U.S. v. Hector Y. APARCIO. CCA 201200408.
No. 13-0606/AR. U.S. v. Christopher
MILLENDER. CCA 20100680.
No. 13-0607/AF. U.S. v. Matthew J. SOUSA. CCA 37889.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-193
Thursday, June 27,
2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0388/AR. U.S. v. Zakaria
H. LOUTFI.
CCA
20100489.
No. 13-0462/AR. U.S. v. Michael A.
WILLIAMSON. CCA 20110881.
No. 13-0482/AR. U.S. v. Charles L. SMITH. CCA 20101013.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0597/AR. U.S. v. Bobby E. SHORT. CCA 20120160.
No. 13-0598/AR. U.S. v. Kenley
D. ROBERTSON. CCA 20120302.
No. 13-0599/AR. U.S. v. Michael D. HUDSON. CCA 20120524.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
Misc. No. 13-8035/MC. George W. PRICE v. U.S. CCA 201000193. On
consideration of the writ-appeal petition, it is ordered that said petition is
hereby denied.
INTERLOCUTORY
ORDERS
No. 13-0338/AF. U.S. v. Dalton S. DUGEN. CCA 37708.
Appellee's
motion for leave to file a waiver letter out of time granted.
No. 13-0518/AF. U.S. v. Jordan C. PASSUT. CCA 37755.
No. 13-0581/AF. U.S. v. Jason K. PENDERGAST. CCA 38047.
No. 13-0590/AF. U.S. v. Leslie A. TORRANCE. CCA 37544.
No. 13-5005/AF. U.S. v. Patrick CARTER. CCA 37715.
On consideration of
the motions filed by Dwight H. Sullivan, Esq., for leave to withdraw as
appellate defense counsel in each of the above cases, it appears that the Judge
Advocate General has assigned another counsel to represent the Appellants and
that the new counsel have assumed representation of said Appellants. Accordingly, it is ordered that said motions
are hereby granted.
No. 13-0591/NA. U.S. v. Kenan
H. BELTON. CCA 201200292. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to July 16, 2013.
No. 13-0593/AR. U.S. v. Osborn F. EDWARDS. CCA 20100399. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to July 16, 2013.
No. 13-0594/AR. U.S. v. Alice M. ROOSA. CCA 20100879.
Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to July 16,
2013.
No. 13-0595/AF. U.S. v. Phillip T.
BURLEIGH. CCA 37652. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to July 16, 2013.
No. 13-7001/AR. U.S. v. Hasan
K. AKBAR. CCA 20050514. Appellant's motion to compel discovery of
government possessed documents is hereby denied as moot.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-192
Wednesday, June 26,
2013
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0591/NA. U.S. v. Kenan
H. BELTON. CCA 201200292.
No. 13-0592/AR. U.S. v. Jason R. SEJKORA. CCA 20110721.
No. 13-0593/AR. U.S. v. Osborn F. EDWARDS. CCA 20100399.
No. 13-0594/AR. U.S. v. Alice M. ROOSA. CCA 20100879.
No. 13-0595/AF. U.S. v. Phillip T.
BURLEIGH. CCA 37652.
No. 13-0596/AR. U.S. v. Christopher R.
MCCLENDON. CCA 20110468.
No. 13-6004/AF. U.S. v. Samuel A. WICKS. CCA 2013-08.
INTERLOCUTORY
ORDERS
No. 13-0548/AR. U.S. v. Detric
A. KELLY. CCA 20110138. Appellant's second motion to extend time to file the supplement to the
petition for grant of review granted, up
to and including July 15, 2013, and absent extraordinary circumstances, no further extension of time
will be granted in this case.
No. 13-0588/AR. U.S. v. John P. FIGUEROA. CCA 20110951. Appellant's
motion to extend time to file the supplement to the petition for grant of review
granted to July 15, 2013.
No. 13-0589/AR. U.S. v. Daudre
L. LEE. CCA 20120334. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to July 15, 2013.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 13-191
Tuesday, June 25,
2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
13-0472/AR. U.S. v. Matthew S. HARVEY. CCA 20110710.
No. 13-0477/AR. U.S. v. Jack L. HARVEY. CCA 20120582.
No. 13-0483/AR. U.S. v. James J. SAYAH. CCA 20110312.
No. 13-0526/AR. U.S. v. Emily W. BUSCH. CCA 20100977.
No. 13-0528/AR. U.S. v. Charles W.
FAIRBAIRN. CCA 20110011.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0589/AR. U.S. v. Daudre
L. LEE. CCA 20120334.
No. 13-0590/AF. U.S. v. Leslie A. TORRANCE. CCA 37544.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-190
Monday, June 24, 2013
APPEALS -
SUMMARY DISPOSITIONS
No. 13-0465/AR. U.S. v. Aaron J. DELANEY. CCA 20110145. 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.*
* It is directed that the promulgating order of 18 July 2011 be
corrected as follows. First, the recitation of the Specification of Charge I
shall be corrected to replace the phrase "rape or aggravated sexual assault"
with the phrase "rape and aggravated sexual assault." Second, the recitation of
Specification 1 of Charge II shall be corrected to replace the phrase
"strength, power, or restraint" with the phrase "strength, power, and
restraint." Third, the recitation of Specification 2 of Charge II shall be
corrected to replace the phrase "substantially incapacitated or substantially
incapable of appraising the nature of the sexual act or substantially incapable
of declining participation in the sexual act or substantially incapable of
communicating unwillingness to engage in the sexual act" with the phrase "substantially
incapacitated and substantially incapable of appraising the nature of the
sexual act and substantially incapable of declining participation in the sexual
act and substantially incapable of communicating unwillingness to engage in the
sexual act." Finally, the Specification of Charge III shall be corrected to
reflect that Appellant entered a plea of "Not Guilty" to the Specification, not
a plea of "Guilty." [See also ORDERS
GRANTING PETITION FOR REVIEW this date.]
ORDERS
GRANTING PETITION FOR REVIEW
No. 13-0465/AR. U.S. v. Aaron J. DELANEY. CCA 20110145. [See also APPEALS – SUMMARY
DISPOSITIONS this date.]
CERTIFICATES
FOR REVIEW FILED
No. 13-5008/AF. U.S. v. Alejandro V. ARRIAGA. CCA 37439.
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 issues:
I. WHETHER
APPELLEE SATISFIED HIS BURDEN TO DEMONSTRATE THAT THE
DEFECTIVE SPECIFICATION UNDER ARTICLE 134, UCMJ,
MATERIALLY PREJUDICED HIS SUBSTANTIAL RIGHTS WHEN HE WAS PROVIDED ACTUAL NOTICE
OF THE TERMINAL ELEMENT THROUGH AN ARTICLE 32 REPORT RECEIVED PRIOR TO TRIAL.
II. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS APPLIED AN ERRONEOUS STANDARD OF LAW WHEN EVALUATING WHETHER THE
DEFECTIVE SPECIFICATION UNDER ARTICLE 134, UCMJ,
MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS
BY FAILING TO CONSIDER WHETHER THE EVIDENCE ON THE MISSING ELEMENT WAS
"OVERWHELMING AND ESSENTIALLY UNCONTROVERTED" AND BY FINDING NOTICE OF THE
MISSING ELEMENT WAS NOT EXTANT IN THE RECORD.
III. WHETHER THIS HONORABLE COURT SHOULD APPLY THE
FOURTH PRONG OF THE PLAIN ERROR ANALYSIS AS ARTICULATED BY THE UNITED STATES
SUPREME COURT IN UNITED STATES V. OLANO, 507
U.S. 725 (1993), WHEN ASSESSING WHETHER THE DEFECTIVE SPECIFICATION UNDER
ARTICLE 134, UCMJ, MATERIALLY PREJUDICED APPELLEE'S SUBSTANTIAL RIGHTS IN THIS CASE.
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0471/AR. U.S. v. Van E. BUSH. CCA 20110724.
No. 13-0511/AF. U.S. v. Bryan W. HEARN. CCA 37867.
No. 13-0514/NA. U.S. v. Matthew A.
WILLIAMS. CCA 201200386.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0586/AR. U.S. v. Michael S. KELLAM. CCA 20120518.
No. 13-0587/AR. U.S. v. Dean A. MURRIETTA. CCA 20120493.
No. 13-0588/AR. U.S. v. John P. FIGUEROA. CCA 20110951.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-189
Friday, June 21, 2013
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0583/AR. U.S. v. Carlos J. CAMACHO. CCA 20120428.
No. 13-0584/AR. U.S. v. Clyde W. ANTHONY. CCA 20120955.
No. 13-0585/AR. U.S. v. Steven J.
MCDERMOTT. CCA 20120671.
MANDATES
ISSUED
No. 13-0013/AR. U.S. v. Paul R. JASPER. CCA 20100112.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-188
Thursday, June 20,
2013
ORDERS
GRANTING PETITION FOR REVIEW
No. 13-0345/AF. U.S. v. Robert M. PAYNE. CCA 37594.
Review granted on the following issue:
WHETHER
THE MILITARY JUDGE IMPROPERLY INSTRUCTED THE MEMBERS OF THE ELEMENTS FOR
CREATION OF CHILD PORNOGRAPHY.
Briefs will be filed
under Rule 25.
No. 13-0348/AR. U.S. v. Amanda M. MOSS.
CCA 20110337. Review granted on the following issues:
I. WHETHER
APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL WHERE THE DEFENSE COUNSEL MADE AN UNSWORN STATEMENT ON HER BEHALF WHEN
SHE WAS TRIED IN ABSENTIA AND THERE IS NO EVIDENCE THAT SHE
CONSENTED TO THE UNSWORN STATEMENT.
II. WHETHER APPELLANT WAS DEPRIVED OF HER
RIGHT TO CONFLICT-FREE COUNSEL WHEN HER DEFENSE COUNSEL MADE AN UNSWORN STATEMENT
WITHOUT HER CONSENT AND SUBSEQUENTLY INVOKED HIS FIFTH AMENDMENT RIGHTS AND FAILED
TO ASSERT THAT APPELLANT WAS PREJUDICED.
III. WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR WHEN HE ALLOWED THE DEFENSE COUNSEL TO MAKE AN UNSWORN STATEMENT ON
BEHALF OF APPELLANT WHEN SHE WAS TRIED IN ABSENTIA.
IV. WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION WHEN HE FOUND THAT THERE WAS NO PREJUDICE WHEN THE DEFENSE COUNSEL
READ AN UNSWORN STATEMENT WITHOUT APPELLANT'S CONSENT AND THEN FAILED TO
INSTRUCT THE PANEL TO DISREGARD THE UNSWORN STATEMENT AND SERGEANT FIRST CLASS
M'S REBUTTAL TESTIMONY.
Briefs will be filed
under Rule 25.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0582/AR. U.S. v. Jason K. SAN
NICOLAS. CCA
20111117.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 13-8030/NA. Audley G. EVANS v. U.S. CCA 200600806. On
consideration of Appellee's motion to dismiss the
writ-appeal for lack of jurisdiction, it is ordered that said motion is hereby
granted.
Misc.
No. 13-8039/AF. Travis A. SCHMIDT v.
The Air Force Court of Criminal Appeals and United States of
America. CCA
38220. On consideration of the
petition for extraordinary relief in the nature of a writ of error coram nobis,
it is ordered that said petition is hereby denied without prejudice to
re-filing the petition before the United States Air Force Court of Criminal
Appeals. See C.A.A.F. R. 4(b)(1) (stating that "[a]bsent good
cause, no [petition for extraordinary relief] shall be filed unless relief has
first been sought in the appropriate Court of Criminal Appeals. Original writs are rarely granted.").
Misc.
No. 13-8041/AF. Andre G. GNASH v.
The Air Force Court of Criminal Appeals and The United
States of America. On consideration of
the petition for extraordinary relief in the nature of a writ of error coram
nobis, it is ordered that said petition is hereby denied without prejudice to
re-filing the petition before the United States Air Force Court of Criminal
Appeals. See C.A.A.F. R. 4(b)(1).
INTERLOCUTORY
ORDERS
Nos.
13-0353/AF and 13-5007/AF. U.S. v. Laurence H. FINCH.
CCA 38081. On consideration of the motion filed
by Dwight H. Sullivan, Esq., for leave to withdraw as appellate defense
counsel, it appears that the Judge Advocate General has assigned another
counsel to represent Appellant and that the new counsel has assumed
representation of said Appellant.
Accordingly, it is ordered that said motion is hereby granted.
No. 13-7001/AR. U.S. v. Hasan K. AKBAR. CCA 20050514. It is ordered that the briefs of the Appellant
and the Appellee, and the reply of Appellant, if any, may be filed
electronically, but should counsel file said pleadings in a paper format, such
pleadings shall conform in all respects to the requirements of Rule 37(a),
Rules of Practice and Procedure, with the additional requirement that they be
printed on 3-hole pre-punched paper.
Additionally, the joint appendix shall be printed on 3-hole pre-punched
paper and otherwise comply in all respects with Rule 24(f)(2). The briefs and the reply, if any, shall be
divided into the following parts:
Part A shall set
forth systemic issues and case-specific issues raised before the Court of
Criminal Appeals but not previously decided by this Court;
Part B shall set
forth all issues not raised before the court below;
Part C shall set
forth systemic issues previously decided by this Court but raised
to avoid waiver; these issues may be listed without argument as an exception to
Rule 24(a), but must cite pertinent authority to support the position taken.
All exhibits cited in
the pleadings filed before this Court shall be included in the Joint Appendix.*
*
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 for the purposes of this Order and any matters related
thereto, and that Senior Judge Effron has consented to perform such 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).
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-187
Wednesday, June 19, 2013
APPEALS -
SUMMARY DISPOSITIONS
No. 13-0205/AR. U.S. v. Justin C. QUINN. CCA 20110159. On further consideration of the granted
issue, 72 M.J. 95 (C.A.A.F.
2013), and in view of Lawrence v. Texas, 539 U.S. 558 (2003), and United
States v. Elhelou, __ M.J.
__ (C.A.A.F. 2013) (summary disposition), it is
ordered that the decision of the United States Army Court of Criminal Appeals
is affirmed.*
* STUCKY, Judge (dissenting):
I respectfully
dissent from the summary disposition of this case. See United States
v. Elhelou, __ M.J. __
(C.A.A.F. 2013) (Stucky, J., dissenting).
No. 13-0235/AR. U.S. v. Waseem
ELHELOU.
CCA
20110246. On further consideration of the granted
issues, 72 M.J. 253 (C.A.A.F.
2013), we conclude that there is no substantial basis in law or fact to
question the providence of Appellant's pleas.
During the plea colloquy, the military judge sufficiently explained to
Appellant that private, consensual, sexual activity, absent an aggravating
factor, is not punishable as an indecent act, but that "open and notorious"
sexual activity is punishable as an indecent act, in violation of Article
120(k), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920(k) (2006 & Supp. I
2007), repealed by National Defense Authorization Act for Fiscal Year
2012, Pub. L. No. 112-81, § 541(a)(6), 125
Stat. 1298, 1406 (2011). Appellant then
admitted sufficient facts to establish that his conduct amounted to "open and
notorious" sexual activity: that he
engaged in sexual conduct with a fellow servicemember
while in the presence of additional servicemembers in
an unlocked barracks room of two other servicemembers
who were reasonably likely to observe the sexual activity because they could
have returned at any time. The dialogue
between the military judge and Appellant amply demonstrates that Appellant
understood why his conduct was subject to criminal sanction. See Lawrence v. Texas, 539 U.S.
558 (2003); United States v. Hartman, 69 M.J.
467 (C.A.A.F. 2011); see also United
States v. Medina, 72 M.J. 148 (C.A.A.F. 2013); United States v. Goings, 72 M.J. 202 (C.A.A.F. 2013). Accordingly, it is ordered that the decision
of the United States Army Court of Criminal Appeals is affirmed.*
* STUCKY, Judge
(dissenting):
Appellant stands
convicted, pursuant to his pleas, of two specifications of indecent acts for
engaging in sexual intercourse with a female soldier and placing his penis in
her mouth while in the presence of other soldiers who were also engaging in
sexual conduct with the same female in violation of Article 120(k), Uniform
Code of Military Justice (UCMJ), 10 U.S.C. § 920(k) (Supp. I 2007). Citing this Court's recent opinion in United
States v. Goings, 72 M.J. 202 (C.A.A.F. 2013), the majority affirms Appellant's
convictions on the grounds that his plea was provident because the military
judge sufficiently explained the difference between private, consensual, sexual
activity and "open and notorious" sexual activity that is punishable as an
indecent act, and Appellant admitted sufficient facts to establish that his
conduct amounted to "open and notorious" sexual activity. United States v. Elhelou,
__ M.J. __ (C.A.A.F. 2013)
(summary disposition).
During the
plea inquiry, the military judge informed Appellant that "Article 120, UCMJ, is not intended to regulate the wholly private,
consensual, sexual activities of individuals," and that in the "absence of
aggravating circumstances" such conduct is "not punishable as an indecent
act." Appellant did not admit to
engaging in non-consensual or "public" conduct for the two specifications at
issue. Rather, he admitted that his conduct
was not protected under Lawrence v. Texas, 539 U.S. 558 (2003), because
it was indecent, specifically, because it was "open and notorious."
I
was concerned, in Goings, with using "open and notorious," as defined by
this Court, as a standard for indecency under Article 134, UCMJ,
10 U.S.C. § 934 (2006), and am even more concerned
with using it under Article 120, UCMJ, which was not
designed to address military-specific offenses. See Goings,
72 M.J. at 213-14 (Stucky, J., dissenting). However, even assuming the "open and
notorious" standard is a viable metric to determine indecency under Article
120, UCMJ, after Lawrence, I am not convinced
that engaging in sexual activity in the consensual presence of another
individual or individuals, an unlocked door, the involvement of other servicemembers, or the fact that someone may have walked in
on the activity, but did not, necessarily renders conduct indecent.1
I believe
this Court needs to address, in a non-summary fashion: (1) the tension between this Court's definition
of "indecency," specifically the "open and notorious" standard, and the liberty
interest identified in Lawrence -- especially now that the offense has
moved from Article 134 to Article 120; and (2) what military-specific factors,
if any, render conduct indecent such that it is outside the protections of Lawrence. Given the above, I respectfully dissent.
______________________________________
1
I agree that, depending on the circumstances, such conduct may rise to
the level of "public conduct" and fall outside the protections of Lawrence,
or may constitute an offense under another provision of the UCMJ. See Goings,
72 M.J. at 212-14 & nn.7, 13 (Stucky, J.,
dissenting).
No. 13-0240/AR. U.S. v. Bradley G. HOWARD. CCA 20110109. On further consideration of the granted
issue, 72 M.J. 259 (C.A.A.F.
2013), we conclude that the issue was forfeited, rather than waived. See United States v. Goings, 72 M.J. 202 (C.A.A.F.
2013). We also conclude that the conduct
in question -- which involved a fellow servicemember,
and occurred while in the presence of two additional servicemembers
in the unlocked barracks room of two other servicemembers
who were reasonably likely to unintentionally observe the sexual activity --
was not plainly "private" under Lawrence v. Texas, 539 U.S. 558 (2003), see
United States v. Elhelou, __ M.J. __ (C.A.A.F. 2013) (summary
disposition), and therefore the failure of the military judge to raise a Lawrence
issue sua sponte
was not plain error. Accordingly, it is ordered that the decision of the United
States Army Court of Criminal Appeals is affirmed.*
* STUCKY, Judge
(dissenting):
I respectfully
dissent from the summary disposition of this case. See United States v. Elhelou, __ M.J. __ (C.A.A.F. 2013) (Stucky, J., dissenting); see also United
States v. Goings, 72 M.J. 202, 214-14 & n.7 (C.A.A.F. 2013) (Stucky, J., dissenting) (discussing the
conception of "private" conduct under Lawrence v. Texas, 539 U.S. 558
(2003)).
PETITIONS
FOR GRANT OF REVIEW DENIED
No. 13-0455/AR. U.S. v. Steven A. WILLIAMS. CCA 20110632.
PETITIONS
FOR GRANT OF REVIEW FILED
No. 13-0581/AF. U.S. v. Jason K. PENDERGAST. CCA 38047.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
Misc. No. 13-8032/MC. Bradley A. MORALES, Appellant v. Colonel Eric
Belcher, in his official capacity as Commandant, United States Disciplinary
Barracks, Fort Leavenworth, Kansas and the United States. CCA 201000057. On
consideration of the writ-appeal petition, it is ordered that said writ-appeal
petition is hereby denied.
Misc. No. 13-8034/AF. In re Dennis D. KELLER,
Petitioner. On consideration of
the petition for extraordinary relief in the nature of a writ of habeas corpus
or, in the alternative, a writ of mandamus, it is ordered that said petition is
hereby denied without prejudice.
INTERLOCUTORY
ORDERS
No. 13-0329/AR. U.S. v. Slade MCKIM-BURWELL.
CCA
20120719. Appellant's motion to
extend time to file a brief granted, but
only up to and including July 8, 2013, and absent extraordinary circumstances,
no further extension of time will be granted in this case.
No. 13-0408/MC. U.S. v. Don W. BAILEY. CCA 201200370. On
consideration of Appellant's motion to attach documents and Appellee's
motion to file a 10-day answer letter out of time, it is ordered that
Appellant's motion to attach documents is hereby granted, and that Appellee's motion to file a 10-day letter out of time is
hereby denied.
No. 13-0435/AR. U.S. v. Gary D. WARNER. CCA 20120499.
Appellant's motion to extend time to file a brief granted, but only up to and including July 8,
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. 13-186
Tuesday,
June 18, 2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
13-0265/NA. U.S. v. Decker B. JORDAN. CCA 201100621.
No.
13-0312/AR. U.S. v. Erik A. HOLLINGSWORTHMATA.
CCA
20100752.
No.
13-0369/AR. U.S. v. Corey A. MOORE. CCA 20110149.
No.
13-0396/AF. U.S. v. Jarrod T. LUTES. CCA 37665.
No.
13-0468/AR. U.S. v. Daniel M. NORIEGA. CCA 20110596.
No.
13-0507/AR. U.S. v. Justin M. RANDAZZO. CCA 20120588.
No.
13-0508/AF. U.S. v. Timothy M. SPRADER. CCA S32086.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0575/AR. U.S. v. Shawn W. POTTS. CCA 20120546.
No.
13-0576/AR. U.S. v. Ricky A. WALLS. CCA 20110501.
No.
13-0577/AR. U.S. v. Steven R. SMALLEY. CCA 20120738.
No.
13-0578/AR. U.S. v. Phillip P. GOBERT. CCA 20110941.
No.
13-0579/AF. U.S. v. Justin O. ILLING. CCA S31808.
No.
13-0580/AR. U.S. v. Burt A. LANCASTER. CCA 20120386.
MISCELLANEOUS
DOCKET - SUMMARY DISPOSITIONS
Misc.
No. 13-8040/AF. Coren D. FAISON v. U.S. On
consideration of the petition for extraordinary relief in the nature of a writ
of habeas corpus, it is ordered that said petition is hereby denied.
INTERLOCUTORY
ORDERS
No.
13-0231/AF. U.S. v. Andrew J. THOMPSON. CCA S32019. Appellant's
motion to withdraw the petition for grant of review without prejudice is hereby
denied without prejudice to filing a subsequent motion that complies with Rule
21(f).
No.
13-0499/AF. U.S. v. Benny BROCKINGTON,
III. CCA S32089. Appellant's motion to withdraw the petition
for grant of review without prejudice is hereby denied without prejudice to
filing a subsequent motion that complies with Rule 21(f).
No.
13-0504/AF. U.S. v. Matthew B. MCKEEVER. CCA 38026.
Appellant's motion to withdraw the
petition for grant of review without prejudice is hereby denied without
prejudice to filing a subsequent motion that complies with Rule 21(f).
No.
13-0509/AF. U.S. v. Benjamin J.
SIZEMORE. CCA 38020. Appellant's motion to withdraw the petition
for grant of review without prejudice is hereby denied without prejudice to
filing a subsequent motion that complies with Rule 21(f).
No.
13-0532/AR. U.S. v. Christopher R.
WHITFIELD. CCA 20100002. Appellant's second motion to extend time to file the supplement to the
petition for grant of review granted, up
to and including July 1, 2013, and absent extraordinary circumstances, no
further extension of time will be granted in this case.
No.
13-0544/AR. U.S. v. Johnny F. PROTHRO. CCA 20110331.
Appellant's second motion to extend time to file the supplement to the
petition for grant of review granted, but
only up to and including July 3, 2013, and absent extraordinary circumstances,
no further extension of time will be granted in this case.
No.
13-0565/AR. U.S. v. Christopher R.
KEARNS. CCA 20110348. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to July 3, 2013.
No.
13-0571/AR. U.S. v. Nolan R. MOGG. CCA 20100943.
Appellant's motion to extend time to
file the supplement to the petition for grant of review granted to July 8, 2013.
No.
13-0573/AR. U.S. v. Calvin J.
DAVENPORT. CCA 20081102. Appellant's motion to extend time to file the
supplement to the petition for grant of review granted to July 8, 2013.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-185
Monday, June 17, 2013
CERTIFICATES
FOR REVIEW FILED
No. 13-5007/AF. U.S.
v. Laurence H. FINCH.
CCA
38081.
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
this date on the following issue:
IF THE COURT FINDS THAT THE SPECIFICATIONS
SUFFICIENTLY ALLEGED THAT THE VISUAL DEPICTIONS WERE OF ACTUAL MINORS BUT THAT
THE MILITARY JUDGE'S DEFINITIONS WERE INCONSISTENT WITH THE ALLEGED
SPECIFICATIONS, WHAT IS THE APPROPRIATE REMEDY, IF ANY, TO BE GIVEN?
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
13-0486/AF. U.S. v. Sean M. JOHNSTON. CCA
S32080.
No.
13-0494/AR. U.S. v. Thomas J. ROWLANDS,
Jr. CCA
20120145.
No.
13-0497/AR. U.S. v. William J. PISER. CCA 20110723.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
10-0649/AF. U.S. v. Dean E. THOMPSON. CCA
37380.*
No.
13-0568/AR. U.S. v. Brian L. KIMBERLING. CCA
20111169.
No.
13-0569/AR. U.S. v. Fermin
R. MEDINA. CCA
20110947.
No.
13-0570/AF. U.S. v. Steven A. DANYLO. CCA
37916.
No.
13-0571/AR. U.S. v. Nolan R. MOGG. CCA
20100943.
No.
13-0572/AR. U.S. v. Donnie K. STEVENS, Jr. CCA
20100708.
No.
13-0573/AR. U.S. v. Calvin J. DAVENPORT. CCA
20081102.
No.
13-0574/NA. U.S. v. Dearon L. MAYBERRY. CCA
201200269.
_______________________________
* Third petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-184
Friday, June 14, 2013
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0561/NA. U.S. v. Jason L. NIX. CCA
201300061.
No.
13-0562/AR. U.S. v. Bud A. MITCHELL. CCA
20120683.
No.
13-0563/AR. U.S. v. David W. BROWN. CCA
20101043.
No.
13-0564/AR. U.S. v. Brent T. MAUPIN. CCA
20120476.
No.
13-0565/AR. U.S. v. Christopher R. KEARNS. CCA
20110348.
No.
13-0566/AF. U.S. v. Sean C. BOGDONAS. CCA
37725.
No.
13-0567/AR. U.S. v. Alexei L. SUND. CCA
20120641.
INTERLOCUTORY
ORDERS
No.
11-0280/AR. U.S. v. Douglas K. WINCKELMANN. CCA
20070243. Appellee's
motion to extend time to file a brief granted, up to and including
June 21, 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. 13-183
Thursday, June 13, 2013
APPEALS -
SUMMARY DISPOSITIONS
No. 10-5004/AF. U.S.
v. Ryan D. HUMPHRIES.
CCA
37491.
On further consideration of the granted issue, 72 M.J.
___ (C.A.A.F.
2013), and in view of United States v. Castellano,
72 M.J.
217 (C.A.A.F.
2013), it is ordered that the decision of the United States Air Force Court of
Criminal Appeals is reversed. The
findings of guilty to the Additional Charge and its specification and the
sentence are set aside. The record is
returned to the Judge Advocate General of the Air Force. A rehearing on the affected charge and the
sentence is authorized.*
* On February 4, 2013, the Judge Advocate General
of the Air Force certified 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.
In light of the above order, we dismiss the
certified issue as moot.
No. 12-0331/AR. U.S.
v. Jamil V. WILLIAMS. CCA
20090619.
On further consideration of the granted issue, 71 M.J.
454 (C.A.A.F.
2012), and in view of United States v. Castellano,
72 M.J.
217 (C.A.A.F.
2013), it is ordered that the decision of the United States Army Court of
Criminal Appeals is reversed as to Charge II and its specification and the
sentence. The findings of guilty to
Charge II and its specification are set aside.
The remaining findings are affirmed.
The record is returned to the Judge Advocate General of the Army for
remand to the Court of Criminal Appeals.
That court may either dismiss Charge II and its
specification and reassess the sentence based on the
affirmed findings, or it may order a rehearing on the affected charge and the
sentence.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0556/AR. U.S. v. Kevin J. WEEDEN. CCA
20120623.
No.
13-0557/AR. U.S. v. Travis F. CARDEN. CCA
20120947.
No.
13-0558/AR. U.S. v. Tyrone L. KIRK. CCA
20121049.
No.
13-0559/AR. U.S. v. Steven D. PATTERSON. CCA
20120927.
No.
13-0560/AF. U.S. v. Matthew J. MANGAN. CCA
38223.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-182
Wednesday, June 12, 2013
PETITIONS
FOR RECONSIDERATION DENIED
No. 13-0357/AR. U.S. v. Bob L. WHITFIELD. CCA 20100774. On consideration of Appellant's petition for reconsideration of this Court's order issued on April 30, 2013, it is ordered that said petition for reconsideration is hereby denied.
INTERLOCUTORY
ORDERS
No.
12-0428/MC. U.S. v. Stephen J. MCGUIRE. CCA
201000611. Appellee's
motion to extend time to file a brief granted, up to and including
July 1, 2013, and absent
extraordinary circumstances, no further extension of time will be granted in
this case.
No.
13-0525/AR. U.S. v. Matthew D. BELL. CCA
20100266.
Appellant's second
motion to extend time to file a supplement to the petition for grant of review
granted, up to and including July 1, 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. 13-181
Tuesday, June 11, 2013
HEARINGS
No.
13-5006/AF. LRM
v. KASTENBERG. CCA
2013-05.
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
13-0484/AR. U.S. v. Eric E. TAYLOR. CCA
20120958.
No.
13-0485/AR. U.S. v. Christopher A. HARGEST. CCA
20111052.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0554/AR. U.S. v. Trevor R. CHANEY. CCA
20110799.
No.
13-0555/AR. U.S. v. Andrew H. HOLMES. CCA
20110838.
MISCELLANEOUS
DOCKET - FILINGS
Misc.
No. 13-8040/AF. Coren
D. FAISON, Petitioner v. United States, Respondent. Notice is hereby given that a motion to
vacate which this Court construes as 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. 13-8041/AF. Andre G. GNASH,
Petitioner v. The Air Force Court of Criminal Appeals and The
United States of America, Respondents.
Notice is hereby given that a petition for extraordinary relief in the
nature of a writ of error coram nobis
was filed under Rule 27(a) on this date.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-180
Monday, June 10, 2013
APPEALS -
SUMMARY DISPOSITIONS
No. 13-0321/NA. U.S.
v. Christopher R. MORGAN.
CCA
201200141.
On consideration of the petition for grant of review of the decision of
the United States Navy-Marine Corps Court of Criminal Appeals, we conclude that
the aggravated sexual assault specification alleging the insertion of
Appellant's finger into VM's vagina by causing bodily
harm (specification 3 of Charge I) is a lesser included offense of the rape
specification alleging the insertion of Appellant's finger into VM's vagina by using force (specification 1 of Charge
I). United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010). We also conclude that the aggravated sexual
assault specification alleging the insertion of Appellant's penis into VM's vagina by causing bodily harm (specification 4 of
Charge I) is a lesser included offense of the rape specification alleging the
insertion of Appellant's penis into VM's vagina by
force (specification 2 of Charge I). Id. The aggravated sexual assault specifications
therefore are impermissibly multiplicious of the rape
specifications. United States v. Palagar, 56 M.J. 294,
296 (C.A.A.F. 2002); see also Brown v. Ohio,
432 U.S. 161, 165-69 (1977). Thus,
we dismiss the two aggravated sexual assault specifications. See United States v. Leak,
61 M.J. 234, 249 (C.A.A.F.
2005); Palagar, 56 M.J.
at 297. However, because the military
judge merged the rape and aggravated sexual assault specifications as one
offense for sentencing purposes and instructed the panel that it could only
sentence Appellant for one rape offense, we are convinced that he was not
prejudiced for sentencing by the multiplicity.
See Palagar, 56 M.J. at 297. Accordingly, it is ordered that the petition
is granted on the following issue:
WHETHER
APPELLANT WAS SUBJECTED TO MULTIPLICITY WHEN THE GOVERNMENT CHARGED HIM WITH
RAPE AND AGGRAVATED SEXUAL ASSAULT BY CAUSING BODILY HARM FOR THE SAME ACTS.
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is reversed as to specifications 3 and 4 of
Charge I, but is affirmed in all other respects. The findings of guilty as to specifications 3
and 4 of Charge I are set aside and those specifications are dismissed.
[See also ORDERS GRANTING PETITION FOR REVIEW this date.]
ORDERS
GRANTING PETITION FOR REVIEW
No. 13-0321/NA. U.S.
v. Christopher R. MORGAN.
CCA
201200141.
[See
also APPEALS – SUMMARY DISPOSITIONS this date.]
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0553/AR. U.S. v. John C. KING. CCA
20120136.
INTERLOCUTORY
ORDERS
No.
07-0725/MC. U.S. v. Jonathan E. LEE. CCA
200600543.
Appellant's motion to extend time to file the supplement to the petition
for grant of review granted to June 26, 2013.
No.
13-0549/CG. U.S. v. David N. SHANNON. CCA
1358. Appellant's
motion to extend time to file the supplement to the petition for grant of
review granted to June 26, 2013.
No.
12-0617/MC. U.S. v. Hugo I. VALENTIN. CCA
201000683.
No.
13-0196/MC. U.S. v. Brian P. HICKERSON. CCA
201100111.
No.
13-0213/MC. U.S. v. Daniel W. SANDERS. CCA
201200202.
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.
13-0332/MC. U.S. v. Chad J. BATCHELDER. CCA
201200180.
No.
13-0352/MC. U.S. v. Michael A. ARNOLD. CCA
201200382.
No.
13-0408/MC. U.S. v. Don W. BAILEY. CCA
201200370.
No.
13-0467/MC. U.S. v. Wilson M. SABERON. CCA
201200103.
On
consideration of the motions filed by Lieutenant Kevin S. Quencer in each
of the cases listed above for leave to withdraw as appellate defense counsel,
it appears that the Judge Advocate General has assigned another counsel to
represent the Appellants and that the new counsel have assumed representation
of said Appellants. Accordingly, it is
ordered that said motions are hereby granted.
MANDATES
ISSUED
No.
11-0547/AR. U.S. v. Ivan D. GOINGS. CCA
20080602.
No.
12-0516/AF. U.S. v. Michael S. TUNSTALL. CCA
37592.
No.
12-0524/AR. U.S. v. Bruce L. KELLY. CCA
20090809.
No.
12-0684/MC. U.S. v. Antonio M. CASTELLANO. CCA
201100248.
No.
13-0016/AR. U.S. v. Daniel GASKINS. CCA
20080132.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-179
Friday, June 7, 2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
13-0380/AR. U.S. v. Joshua D. SEGUIN. CCA
20110063.
No.
13-0392/AR. U.S. v. Kenneth F. PAPALEO II. CCA
20110977.
No.
13-0430/NA. U.S. v. Joshua P. JACKSON. CCA
201200418.
No.
13-0478/AR. U.S. v. James A. WEBB. CCA
20120454.
No.
13-0479/AR. U.S. v. Steven M. FALCONE. CCA
20110297.
No.
13-0480/AR. U.S. v. Martin R. DURAN, Jr. CCA
20120049.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0550/AF. U.S. v. Joshuah X. CARPENTER. CCA
S32069.
No.
13-0551/AR. U.S. v. Carlos I. VELASQUEZ. CCA
20110296.
No.
13-0552/AF. U.S. v. Edward L. DIAS II. CCA
S31987.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-178
Thursday, June 6, 2013
PETITIONS
FOR GRANT OF REVIEW FILED
No.
07-0725/MC. U.S. v. Jonathan E. LEE. CCA
200600543.*
No.
13-0549/CG. U.S. v. David N. SHANNON. CCA
1358.
MISCELLANEOUS
DOCKET - FILINGS
No.
13-8039/AF. Travis A. SCHMIDT, Petitioner v. The
Air Force Court of Criminal Appeals and United States of America, Respondents. CCA
38220. Notice is
hereby given that a petition for extraordinary relief in the nature of a writ
of error coram
nobis
was filed under Rule 27(a) on this date.
INTERLOCUTORY
ORDERS
No.
13-0443/AR. U.S. v. Dustin R. HOGAN. CCA
20110172. On
consideration of Appellant's motion to file additional matters pursuant to United
States v. Grostefon,
12 M.J.
431 (C.M.A.
1982), it is ordered that said motion is hereby denied. Appellant shall submit Grostefon
matters in compliance with the 15-page limit of CAAF
Rule 21A(a)
on or before June 21, 2013.
No.
13-0548/AR. U.S. v. Detric A. KELLY. CCA
20110138.
Appellant's motion to extend time to file the supplement to the petition
for grant of review granted to June 25, 2013.
No.
13-5006/AF. Airman First Class LRM,
USAF,
Appellant v. Lieutenant Colonel Joshua E. Kastenberg,
USAF,
Military Judge, Appellee, and Airman First Class
Nicholas E. Daniels, USAF,
Real Party In Interest. CCA
2013-05. On consideration of the
motion filed by Protect Our Defenders to supplement the record, and the motion
filed by the Real Party in Interest to file a declaration, it is ordered that
said motions are hereby denied.
_______________________________
* Second petition filed in this case.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No.13-177
Wednesday, June 5, 2013
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0547/AR. U.S. v. Vivek BHATTI. CCA
20121044.
No.
13-0548/AR. U.S. v. Detric A. KELLY. CCA
20110138.
INTERLOCUTORY
ORDERS
No.
13-0490/AR. U.S. v. Brandon J. RYLES. CCA
20110095.
Appellant's second
motion to extend time to file the supplement to the petition for grant of
review granted, up to and including June 18, 2013, and absent extraordinary circumstances, no further extension of time
will be granted in this case.
No.
13-0493/AR. U.S. v. Benito NIEVESPABON. CCA
20100626.
Appellant's second
motion to extend time to file the supplement granted, up to and including June 17, 2013, and absent extraordinary circumstances, no
further extension of time will be granted in this case.
No. 13-5006/AF. Airman First Class LRM,
USAF, Appellant v. Lieutenant Colonel Joshua E. Kastenberg,
USAF, Military Judge, Appellee and
Airman First Class Nicholas E. Daniels, USAF, Real Party in Interest. On consideration of the motion filed by
Protect Our Defenders for leave to file an Amicus Curiae brief in support of
Appellant, it is ordered that said motion is hereby granted.
No. 13-5006/AF. Airman First Class LRM,
USAF, Appellant v. Lieutenant Colonel Joshua E. Kastenberg,
USAF, Military Judge, Appellee and
Airman First Class Nicholas E. Daniels, USAF, Real Party in Interest. On
consideration of the motion for leave to file a reply of Amicus Curiae
Appellate Defense Division for the Navy-Marine Corps to proposed brief of
Amicus Curiae Protect Our Defenders and the motion to correct errata in the
motion for leave to file a reply of Amicus Curiae Appellate Defense Division
for the Navy-Marine Corps to proposed brief of Amicus Curiae Protect Our
Defenders, it is ordered that said motions are hereby denied.
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
DAILY JOURNAL
No. 13-176
Tuesday, June 4, 2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
10-0483/AR. U.S. v. David C. ELLERBROCK. CCA
20070925.
No.
13-0433/AF. U.S. v. Daniel W. NORTHERN, Jr. CCA
37984.
No.
13-0473/AF. U.S. v. Joey T. HILL. CCA
38178.
No.
13-0474/AR. U.S. v. John R. MORTENSEN. CCA
20120143.
No.
13-0475/AR. U.S. v. Ian M. KEANEY. CCA
20120721.
UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
No. 13-175
Monday, June 3, 2013
PETITIONS
FOR GRANT OF REVIEW DENIED
No.
13-0335/MC. U.S. v. Joel C. MILLER. CCA
201200184.
No.
13-0371/NA. U.S. v. James B. HALL, Jr. CCA
201200219.
No.
13-0401/MC. U.S. v. Michael J. FOSTER. CCA
201200235.
No.
13-0422/AR. U.S. v. Andrew W. HAGA. CCA
20110362.
PETITIONS
FOR GRANT OF REVIEW FILED
No.
13-0546/AR. U.S. v. Ronald A. JOHNSON. CCA
20120395.
INTERLOCUTORY
ORDERS
No.
13-5006/AF. Airman First Class LRM,
USAF, Appellant v. Lieutenant Colonel Joshua E. KASTENBERG,
USAF, Military Judge, Appellee, and
Airman First Class Nicholas E. DANIELS, USAF, Real Party In Interest. CCA
2013-05. On
consideration of the motions filed by the National Crime Victim Law Institute
for leave to participate as Amicus Curiae in support of Petitioner's brief and
for leave to appear pro hac vice; the
motion filed by the United States Air Force Trial Defense Division for leave to
file an Amicus Curiae brief in support of Appellee
and Real Party in Interest; and the motion filed by the United States Marine
Corps Defense Services Organization for leave to file an Amicus Curiae brief in
support of Appellee
and Real Party In Interest, said motions are hereby granted.
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