UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
April 30, 2019
Petition for Grant of Review Denied
No. 19-0190/NA. U.S. v. Fabian X. Moreno.
CCA
20180277.
Interlocutory Orders
No. 19-0277/MC. U.S. v. Raymond W. Begay. CCA 201800332. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to May 20, 2019.
No. 19-0279/AR. U.S. v. Nicholas A. Yancey. CCA 20120393. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to May 20, 2019.
Special Docket Matter
No. 30926. In
the matter of James W. Richards IV. It appearing that the above-named
attorney is a member of the Bar of this Court and has been suspended from the
practice of law by the state of Texas, that, pursuant to Rule 15(b), Rules of
Practice and Procedure, United States Court of Appeals for the Armed Forces,
said attorney was suspended from the practice of law before the Court and was
directed to show cause why he should not be disbarred, that said attorney has
failed to show cause, and considering the misconduct giving rise to his
suspension, it is ordered that James W. Richards IV is disbarred from the practice
of law before this Court.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Monday,
April 29, 2019
Petitions for Grant of Review Filed
No. 19-0277/MC. U.S. v. Raymond W. Begay. CCA 201800332.
No. 19-0278/AR. U.S. v. Ke'aira
S. Conley.
CCA
20170560.
No. 19-0279/AR. U.S. v. Nicholas A. Yancey. CCA 20120393.
No. 19-0280/AR. U.S. v. Matthew M. How. CCA 22180461.
Petitions for Grant of Review Denied
No. 19-0208/AF. U.S. v. Robert J.
Hernandez. CCA 39346.
No. 19-0219/AR. U.S. v. Roslyn D. Tart. CCA 20180283.
No. 19-0228/AF. U.S. v. Michelle M.
Rodgers. CCA S32533.
Order Granting Petition for Review
No. 19-0143/AR. U.S.
v. Corey N. Wall. CCA 20160235. 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 granted on the following specified issue:
WHETHER,
AFTER SETTING ASIDE THE SENTENCE AND ORDERING A REMAND, A SERVICE COURT OF
CRIMINAL APPEALS IS AUTHORIZED TO REASSESS THE SENTENCE AND LIMIT THE LAWFUL SENTENCE
THE CONVENING AUTHORITY MAY APPROVE.
Briefs
will be filed under C.A.A.F. R. 25.
Interlocutory Orders
No. 18-0308/AR. U.S. v. Cedric L. McDonald. CCA 20160339. Appellant's
motion to extend time to file a petition for reconsideration is granted to May
1, 2019.
No. 19-0245/AR. U.S. v. Erik J. Burris. CCA 20150047. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to May 14, 2019.
No. 19-0272/AR. U.S. v. Christopher G. Pacheco. CCA 20170177. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to May 17, 2019.
No. 19-0274/AR. U.S. v. Hector Hernandezaviles. CCA
20170131 Appellant's motion to extend time to file the supplement to the
petition for grant of review is granted to May 16, 2019.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
April 26, 2019
Petitions for Grant of Review Filed
No. 19-0270/AR. U.S. v. Anthony J. Pearce. CCA 20170396.
No. 19-0271/AR. U.S. v. Jay G. Guerrero. CCA 20180384.
No. 19-0272/AR. U.S. v. Christopher G. Pacheco. CCA 20170177.
No. 19-0273/AR. U.S. v. Jordan J. Carroll. CCA 20180147.
No. 19-0274/AR. U.S. v. Hector Hernandezaviles. CCA 20170131.
No. 19-0275/AR. U.S. v. Adam C. Lautenschlager. CCA 20180154.
No. 19-0276/AR. U.S. v. Dalton C. Czaiczynski. CCA 20170309.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Thursday,
April 25, 2019
Petitions for Grant of Review Filed
No. 19-0268/AF. U.S. v. Jacob Cook.
CCA 39367.
No. 19-0269/AF. U.S. v. Daniel J. Postell. CCA 39340.
Petitions for Grant of Review Denied
No. 19-0169/AR. U.S. v. Matthew X. Guerrero. CCA 20170612.
No. 19-0207/AR. U.S. v. Delbrico
J. Robinson.
CCA
20180215.
No. 19-0217/AF. U.S. v. Zacarie J. Tanner. CCA 39301.
No. 19-0222/MC. U.S. v. Tyler J. Goodlin. CCA 201800159.
Interlocutory Orders
No. 19-0197/AF. U.S. v. Ralph J. Hyppolite II. CCA 39358. Appellant/Cross-Appellee's
motion to dismiss the certificate for review is denied.
No. 19-0267/AR. U.S. v. Trumaine
Harrison.
CCA
20180268. Appellant's motion to extend time to file the supplement to the
petition for grant of review is granted to May 16, 2019.
No. 19-0269/AF. U.S. v. Daniel J. Postell. CCA 39340. Appellant's motion to extend time to file the
supplement to the petition for grant of review is granted to May 15, 2019.
Petition for Reconsideration Denied
No. 19-0103/AR. U.S. v. Terence K. Taylor, Jr. CCA 20160744. Appellant's petition for reconsideration of
this Court's order issued March 29, 2019 is denied.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
April 24, 2019
Petition for Grant of Review Filed
No. 19-0267/AR. U.S. v. Trumaine
Harrison.
CCA
20180268.
Petitions for Grant of Review Denied
No. 19-0142/AR. U.S. v. Andrewio
B. Fennell.
CCA
20170060.
No. 19-0172/NA. U.S. v. Bryan P. Watson.
CCA
201800236.
No. 19-0210/AR. U.S. v. Dasheen M. Perry. CCA 20180274.
No. 19-0214/AF. U.S. v. Romel A. Alberson. CCA S32525.
No. 19-0220/AR. U.S. v. Jose Morales. CCA 20170401.
Interlocutory Orders
No. 19-0234/AR. U.S. v. Jordan T. Rodriguez. CCA 20160787. Appellant's
second motion to extend time to file the supplement to the petition for grant
of review is granted to May 12, 2019.
No. 19-0254/AR. U.S. v. Christian R. Martin. CCA 20160336. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to May 22, 2019.
No. 19-0260/AR. U.S. v. Latrevius
L. White.
CCA
20180278. Appellant's motion to extend time to file the supplement to the
petition for grant of review is granted to May 13, 2019.
No. 19-0261/CG. U.S. v. Matthew A. Rogers.
CCA 1391.
Appellant's motion to extend time to file the supplement to the petition for
grant of review is granted to May 14, 2019.
No. 19-0262/AR. U.S. v. Quantrell
L. Anderson.
CCA
20170158. Appellant's motion to extend time to file the supplement to
the petition for grant of review is granted to May 14, 2019.
Hearings
No. 18-0350/CG. U.S. v. Michael R.
Rodriguez. CCA 1450.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
April 23, 2019
Petitions for Grant of Review Filed
No. 19-0263/AR. U.S. v. Sean W. Cornelison. CCA 20160733.
No. 19-0264/AR. U.S. v. Christian J. Corona. CCA 20180049.
No. 19-0265/AR. U.S. v. Kevin L. Smith. CCA 20180190.
No. 19-0266/AR. U.S. v. Gerald D. Arno. CCA 20180699. Notice is
hereby given that a petition for grant of review of the decision of the United
States Army Court of Criminal Appeals on appeal by the United States under
Article 62, Uniform Code of Military Justice, 10 U.S.C.
§ 862, and a supplement to said petition were filed under Rules 20 and 21 on
this 23rd day of April, 2019. A motion to stay the proceedings of the
court-martial was filed contemporaneously with the petition and the supplement
and is pending before the Court. Appellee will file
an answer under Rule 21(c)(1) on or before May 3,
2019, and is at liberty to answer the motion under Rule 30(b).
Hearings
No. 18-0347/AR. U.S. v. Michael J. Gonzales. CCA 20130849.
No. 18-0359/AR. U.S. v. Michael L. Haynes, Jr. CCA 20160817.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Monday,
April 22, 2019
Petitions for Grant of Review Filed
No. 19-0260/AR. U.S. v. Latrevius
L. White.
CCA
20180278.
No. 19-0261/CG. U.S. v. Matthew A. Rogers.
CCA 1391.
No. 19-0262/AR. U.S. v. Quantrell
L. Anderson.
CCA
20170158.
Interlocutory Orders
No. 18-0273/AR. U.S.
v. Norman R. Stout. CCA 20120592. On consideration of the briefs of the parties on the
issue granted on August 6, 2018, and oral argument held on December 4, 2018, it
is ordered that the parties file supplemental briefs on the following
additional issues:
I. WHETHER UNITED STATES v. BROWN, 4 C.M.A. 683, 16 C.M.R. 257 (1954),
IS NOT CONTROLLING IN THIS CASE BECAUSE THE DECISION PREDATES THE PROMULGATION
OF THE APPLICABLE VERSION OF R.C.M. 603(d).
II. WHETHER THE APPLICABLE VERSION OF R.C.M. 603(d) IS CONTRARY TO AND INCONSISTENT WITH THE APPLICABLE
VERSION OF ARTICLE 34(c), UCMJ, AND THEREFORE VOID TO
THE EXTENT IT PROHIBITS MAJOR CHANGES, BEFORE REFERRAL, TO CHARGES AND
SPECIFICATIONS THAT WERE AMENDED TO "CONFORM TO THE SUBSTANCE OF THE
EVIDENCE CONTAINED IN THE REPORT OF THE INVESTIGATING OFFICER." ARTICLE 34(c), UCMJ, 10 U.S.C. § 834(c) (2012).
The
briefs of the parties shall be filed concurrently within 15 days of the date of
this order.
No. 18-0317/AR. U.S. v. Bradley E. Manning (nka Chelsea E. Manning). CCA 20130739. Appellant's motion
to file a reply brief out of time is granted.
No. 19-0233/AR. U.S. v. Mikel K.W. Tillman. CCA 20160449. Appellant's second motion to extend time to file
the supplement to the petition for grant of review is granted to May 7, 2019.
No. 19-0242/NA. U. S. v. James D. Inchaurregui.
CCA
201700194. Appellant's second motion to extend time to file the
supplement to the petition for grant of review is granted to May 15, 2019.
No. 19-0257/AF. U.S. v. Nathan E. Scott.
CCA 39309.
Appellant's motion to extend time to file the supplement to the petition for
grant of review is granted to May 13, 2019.
No. 19-0258/AR. U.S. v. Luis A. Izquierdoolea. CCA 20180398. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to May 9, 2019.
No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to May 10, 2019.
Petition for Reconsideration Denied
No. 19-0123/AR. U.S. v. Lawrence P. Muscat. CCA 20160534. Appellant's
petition for reconsideration of this Court's order issued March 29, 2019 is
denied.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
April 19, 2019
Petitions for Grant of Review Filed
No. 19-0257/AF. U.S. v. Nathan E. Scott.
CCA 39309.
No. 19-0258/AR. U.S. v. Luis A. Izquierdoolea. CCA 20180398.
No. 19-0259/AR. U.S. v. Robert S. Avery. CCA 20140202.
Interlocutory Orders
No. 19-0236/AR. U.S. v. Travis Hernandez. CCA 20160558. Appellant's
second motion to extend time to file the supplement to the petition for grant
of review is granted to April 26, 2019.
No. 19-0255/AR. U.S. v. Darralyn
S. Cody.
CCA
20170472. Appellant's motion to extend time to file the supplement to
the petition for grant of review is granted to May 9, 2019.
No. 19-0256/AR. U.S. v. Joseph N. Brooks. CCA 20180140. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to May 8, 2019.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Thursday,
April 18, 2019
Petitions for Grant of Review Filed
No. 19-0255/AR. U.S. v. Darralyn
S. Cody.
CCA
20170472.
No. 19-0256/AR. U.S. v. Joseph N. Brooks. CCA 20180140.
Miscellaneous Docket - Summary
Disposition
No. 19-0053/AR. Nidal
M. Hasan, Petitioner v. United States Army Court of
Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. Appellate defense counsel petitioned
this Court for extraordinary relief in the nature of a writ of mandamus,
seeking access to matters that were sealed by the military judge at trial as
being privileged between Major Hasan and his standby
counsel.[1] In two decisions, the United States Army Court of Criminal Appeals denied
appellate defense counsel access to these sealed privileged materials because
appellate defense counsel admitted that Major Hasan
had not authorized them to review those documents. United States v. Hasan,
No. ARMY 20130781 (A. Ct. Crim. App. July 6, 2018)
(order); United States v. Hasan, No. ARMY 20130781 (A.
Ct. Crim. App. Oct. 16, 2018) (order).
To
prevail on a writ of mandamus, the petitioner must show that: "(1) there is no
other adequate means to attain relief; (2) the right to issuance of the writ is
clear and indisputable; and (3) the issuance of the writ is appropriate under
the circumstances." Hasan v. Gross, 71 M.J.
416, 418 (C.A.A.F. 2012) (citing Cheney v. United States Dist. Court for D.C., 542 U.S. 367, 380-81
(2004)). Appellate defense counsel failed to establish (2).
We
find unpersuasive appellate defense counsel's argument that issuance of the
writ is clear and indisputable under Rule for Courts-Martial 1103A. Although
that rule does not except attorney-client privileged material from its ambit,
neither does it include it. On consideration of the petition and the briefs of
the parties, as appellate defense counsel failed to establish a clear and
indisputable right to the writ it is ordered that the petition is denied.
[1]
Although captioned as Hasan v. United States Army Court of Criminal
Appeals, it appears that Major Hasan has not
authorized this petition, as he has not waived his attorney-client privilege to
these materials.
Orders Granting Petitions for Review
No. 19-0086/NA. U.S. v. Pedro M. Bess, Jr. CCA 201300311. On consideration of
Appellant's petition for grant of review of the decision of the United States
Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition
is granted on the following issues:
I. WHETHER THE CONVENING AUTHORITY'S SELECTION
OF MEMBERS VIOLATED THE EQUAL PROTECTION REQUIREMENTS OF THE FIFTH AMENDMENT.
II. WHETHER THE CONVENING AUTHORITY'S SELECTION
OF MEMBERS CONSTITUTED UNLAWFUL COMMAND INFLUENCE.
III. WHETHER THE LOWER COURT ERRED IN AFFIRMING
THE MILITARY JUDGE'S DENIAL OF APPELLANT'S MOTION TO PRODUCE EVIDENCE OF THE
RACIAL MAKEUP OF POTENTIAL MEMBERS
Briefs
will be filed under C.A.A.F. R. 25.
No. 19-0139/AR. U.S.
v. Alan S. Guardado. CCA 20140014. On consideration of
Appellant's petition for grant of review of the decision of the United States
Army Court of Criminal Appeals, it is ordered that said petition is granted on
the following issue:
WHETHER
THE MILITARY JUDGE ABUSED HIS DISCRETION BY FAILING TO GRANT APPELLANT ARTICLE
13, UCMJ, CREDIT IN CONSEQUENCE OF THE HOWELL v.
UNITED STATES, 75 M.J. 386 (C.A.A.F.
2016) VIOLATION PRESENT HERE.
Briefs
will be filed under C.A.A.F. R. 25.
Interlocutory Order
No. 18-0359/AR. U.S. v. Michael L. Haynes, Jr. CCA 20160817. Appellant's motion to file a reply brief out
of time is granted.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
April 17, 2019
Petition for Grant of Review Filed
No. 19-0254/AR. U.S. v. Christian
R. Martin.
CCA
20160336.
Petitions for Grant of Review Denied
No. 19-0106/AF. U.S. v. Marcus A. Mancini.
CCA 38783.
No. 19-0153/AF. U.S. v. Nicholas V.
Linton. CCA 39229.
No. 19-0168/AF. U.S. v. Patrick D. Moore.
CCA
S32477.
No. 19-0199/AR. U.S. v. Alan F. Laguna. CCA 20170378.
Petition for Grant of Review - Summary
Disposition
No. 19-0224/AR. U.S.
v. David S. Lancaster. CCA 20180597. 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 granted, and the decision of the United States Army
Court of Criminal Appeals is affirmed.*
* It is directed that the
promulgating order be corrected to accurately reflect that no reprimand was
adjudged.
Interlocutory Orders
No. 19-0172/NA. U.S. v. Bryan P. Watson.
CCA
201800236. Appellant's motion to file the supplement to the petition for
grant of review out of time, and motion to attach documents are granted.
No. 19-0191/AR. U.S. v. Francisco C. Lara. CCA 20170025. Appellant's
motion to submit matters pursuant to United
States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) is granted.
Petition for Reconsideration Denied
No. 19-0077/AR. U.S. v. Billy J. Smith, Jr. CCA 20160049. Appellant's petition for reconsideration of
this Court's order issued March 18, 2019 is denied.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
April 16, 2019
Petitions for Grant of Review Denied
No. 19-0160/AR. U.S. v. Tevin
J. Long.
CCA
20170252.
No. 19-0175/AR. U.S. v. Christopher E. Monge. CCA 20170295.
No. 19-0186/AR. U.S. v. Alexis S. Perry. CCA 20170043.
No. 19-0194/AF. U.S. v. Timothy R. Kirklin. CCA S32505.
No. 19-0200/AR. U.S. v. Dorian A. Jacobs. CCA 20180361.
Petitions for Grant of Review -
Summary Dispositions
No. 19-0085/CG. U.S. v. Anthony J. Livingstone.
CCA 1448. On consideration of the petition for
grant of review of the decision of the United States Coast Guard Court of
Criminal Appeals, it is ordered that said petition be, and the same is granted,
and the decision of the United States Coast Guard Court of Criminal Appeals is
affirmed.*
* It is directed that the
promulgating order be corrected to accurately reflect that the Guilty finding
to Specification 2 of Charge II should be footnoted to reflect that it was
later conditionally dismissed by the military judge after findings as an
unreasonable multiplication of charges with Specification 2 of Charge III.
No. 19-0201/AR. U.S.
v. Alexander E. Denson. CCA 20150137. 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 granted, and the decision of the United States Army Court
of Criminal Appeals is affirmed.*
* It is directed that the
promulgating order be corrected to accurately reflect that Additional Charge
III was a violation of Article 134, UCMJ, vice
Article 128, UCMJ.
Interlocutory Orders
No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329. Appellant's motion
to extend time to file the supplement to the petition for grant of review is
granted to May 6, 2019.
No. 19-0253/AR. U.S. v. Christopher A. Ocasio-Rivera. CCA 20180167. Appellant's motion to extend time to file the
supplement to the petition for grant of review is granted to May 6, 2019.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Monday,
April 15, 2019
Petitions for Grant of Review Filed
No. 19-0252/AR. U.S. v. Tyler Washington. CCA 20170329.
No. 19-0253/AR. U.S. v. Christopher A. Ocasio-Rivera. CCA 20180167.
Interlocutory Orders
No. 19-0240/NA. U.S. v. Hugo J. Spinoza.
CCA
201700236. On consideration of Appellant's second motion to extend time
to file the supplement to the petition for grant of review, it is ordered that
the motion is granted to May 2, 2019.
No. 19-0249/AR. U.S. v. Andrew W. Bowhall. CCA 20170357. On
consideration of Appellant's motion to extend time to file the supplement to
the petition for grant of review, it is ordered that the motion is granted to
May 6, 2019.
No. 19-0250/AR. U.S. v. Ray A. Iglesias. CCA 20170063. On
consideration of Appellant's motion to extend time to file the supplement to
the petition for grant of review, it is ordered that the motion is granted to
May 6, 2019.
No. 19-0251/AR. U.S. v. Olanrewaju
O. Dairo. CCA 20170175. On consideration of Appellant's motion to extend
time to file the supplement to the petition for grant of review, it is ordered
that the motion is hereby granted to May 6, 2019.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
April 12, 2019
Petitions for Grant of Review Filed
No. 19-0247/AR. U.S. v. Ryan F. Barrett. CCA 20170354.
No. 19-0248/AR. U.S. v. Carmelo Angel-Neri. CCA 20170658.
No. 19-0249/AR. U.S. v. Andrew W. Bowhall. CCA 20170357.
No. 19-0250/AR. U.S. v. Ray A. Iglesias. CCA 20170063.
No. 19-0251/AR. U.S. v. Olanrewaju
O. Dairo. CCA 20170175.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
April 10, 2019
Interlocutory Order
No. 19-0186/AR. U.S. v. Alexis S. Perry. CCA 20170043. Appellant's
motion to submit matters pursuant to United
States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) is granted.
Hearing
No. 18-0364/AR. U.S. v. Michael E. Harris. CCA 20170100.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
April 9, 2019
Interlocutory Orders
No. 19-0155/AR. U.S. v. Daniel I. Avila. CCA
20160200. Appellant's motion to submit matters pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982) is granted.
No. 19-0213/AR. U.S. v. Kory K. Mayers. CCA
20170314. Appellant's motion to file a portion of the supplement to the
petition for grant of review under seal is granted.
No. 19-0215/AR. U.S. v. Erick A. Navarro. CCA
20160673. Appellant's motion for leave to file a supplemental appendix
to the supplement to the petition for grant of review under seal is granted.
No. 19-0242/NA. U. S. v. James D. Inchaurregui. CCA 201700194. Appellant's motion to extend time to file the
supplement to the petition for grant of review is granted to April 29, 2019.
No. 19-0243/AR. U.S. v. Steven J. Furgerson. CCA 20170239. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to April 29, 2019.
No. 19-0244/AF. U.S. v. Joseph D. Roman.
CCA 39381.
Appellant's motion to extend time to file the supplement to the petition for
grant of review is granted to April 29, 2019.
No. 19-0245/AR. U.S. v. Erik J. Burris. CCA 20150047. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to April 29, 2019.
Hearing
No. 18-0362/AR. U.S. v. Nicholas L. Frost.
CCA 20160171.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Monday,
April 8, 2019
Petitions for Grant of Review Filed
No. 19-0245/AR. U.S. v. Erik J. Burris. CCA 20150047.
No. 19-0246/AR. U.S. v. Samuel R. Wiles. CCA 20170246.
Petitions for Grant of Review Denied
No. 19-0146/AF. U.S. v. James L. Donoho. CCA 39242.
No. 19-0165/AR. U.S. v. Timothy R. Brown. CCA 20180056.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Friday,
April 5, 2019
Petitions for Grant of Review Filed
No. 19-0243/AR. U.S. v. Steven J. Furgerson. CCA 20170239.
No. 19-0244/AF. U.S. v. Joseph D. Roman.
CCA 39381.
Interlocutory Orders
No. 19-0240/NA. U.S. v. Hugo J. Spinoza.
CCA
201700236. Appellant's motion to extend time to file the supplement to
the petition for grant of review is granted to April 25, 2019.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Thursday,
April 4, 2019
Petitions for Grant of Review Filed
No. 19-0241/AF. U.S. v. Jonathan C. Goergen. CCA S32516.
No. 19-0242/NA. U.S. v. James Inchaurregui. CCA 201700194.
Petitions for Grant of Review Denied
No. 19-0094/AR. U.S. v. Carl L. Campbell. CCA 20160215.
No. 19-0161/AR. U.S. v. Robert L. Atkinson, Jr. CCA 20160634.
No. 19-0187/AF. U.S. v. William H. Abel.
CCA 39362.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Wednesday,
April 3, 2019
Petitions for Grant of Review Filed
No.
19-0239/AR. U.S. v. Kelvin D. Smothers. CCA 20170316.
No. 19-0240/NA. U.S. v. Hugo J. Spinoza.
CCA
201700236.
Miscellaneous Docket - Summary
Disposition
No. 19-0052/AF. U.S. v. Richard D. Collins. CCA 39296. Upon consideration of Appellant's
motion to stay this Court's order of March 12, 2019, affirming the decision of
the United States Air Force Court of Criminal Appeals or to extend the time to
comply with that order, Appellee's answer, and Appellee's petition for extraordinary relief in the nature
of a writ of mandamus or in the alternative, a writ of habeas corpus, we note
that Appellee is still confined despite the sole
charge having been dismissed by the lower court. We also note that Appellant
has not petitioned for reconsideration of this Court's order. In that context,
and where there is no further action to be taken by the President or the
Secretary, the Judge Advocate General of the Air Force "shall instruct the
convening authority to take action in accordance with" the decision of the
lower court and the order of this Court. Article 67(e),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(e) (2012). Finally, this Court has
jurisdiction to entertain the petition and issue the writ of habeas corpus
because the case is before us on direct review and appellate review is not yet
complete under Article 57(c)(l)(B)(iii)(I), UCMJ (as amended by the Military Justice Act of 2016, the
legislatively designated short title for Division E-Uniform Code of Military
Justice Reform of the National Defense Authorization Act for Fiscal Year 2017).
National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 5302(a), 130 Stat. 2000, 2922-23 (2016)
(effective date Jan. 1, 2019). Accordingly, it is ordered that Appellant's
motion to stay or extend time is denied, and Appellee's
petition for a writ of habeas corpus is granted.
All
rights, privileges, and property of which Appellee
has been deprived are hereby ordered restored. The Judge Advocate General shall
direct the immediate release of Appellee from confinement.
Interlocutory Orders
No. 19-0237/AF. U.S. v. Vincell D. Shadricks. CCA 39351.
Appellant's motion to extend time to file the supplement to the petition for
grant of review is granted to April 23, 2019.
No. 19-0238/AR. U.S. v. Adam J. Myer. CCA 20160490. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to April 22, 2019.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Tuesday,
April 2, 2019
Petitions for Grant of Review Filed
No. 19-0237/AF. U.S. v. Vincell D. Shadricks. CCA 39351.
No. 19-0238/AR. U.S. v. Adam J. Myer. CCA 20160490.
Petition for Grant of Review - Summary
Disposition
No. 19-0144/MC. U.S.
v. Nhubu C. Chikaka. CCA 201400251. On consideration of
Appellant's petition for grant of review of the decision of the United States
Navy-Marine Corps Court of Criminal Appeals, we note that there is an
unresolved ambiguity in the lower court's decision. Upon sentence reassessment,
the lower court stated that Appellant's offenses "included sexual assault." United
States v. Chikaka, No. 201400251, slip op. at 7 (N-M. Ct. Crim. App. Nov. 15, 2018). Because
Appellant was not convicted of sexual assault, it is unclear whether that
offense was improperly considered as part of that court's sentence
reassessment.
As
the decision of the court below is not free from ambiguity, it should be
clarified on remand. See United States v. Kosek,
41 M.J. 60, 64 (C.M.A.
1994) ("The appropriate remedy for incomplete or ambiguous rulings is a remand
for clarification."); see also United States v. Israel, 75 M.J. 314 (C.A.A.F. 2016) (summary
disposition); United States v. Mohamed, 67 M.J.
202 (C.A.A.F. 2008) (summary disposition).
Accordingly, it is ordered that said petition is hereby granted. The decision
of the United States Navy-Marine Corps Court of Criminal Appeals is set aside. The
record of trial is returned to the Judge Advocate General of the Navy for
remand to that court for further review consistent with this order. Thereafter,
Article 67, Uniform Code of Military Justice, 10 U.S.C.
§ 867 (2012), shall apply.
Miscellaneous Docket - Summary
Dispositions
No. 19-0054/AR. Nidal
M. Hasan, Petitioner v. United States Army Court of
Criminal Appeals, Respondent and United States, Real Party in Interest. CCA 20130781. On consideration of the petition for
extraordinary relief in the nature of a writ of mandamus, the briefs of the
parties, and oral argument, we note that we have the authority to issue
extraordinary writs in aid of our jurisdiction pursuant to the All Writs Act
(AWA), 28 U.S.C. § 1651(a) (2012). United
States v. Denedo, 556 U.S. 904, 911 (2009).
In this death penalty case, we conclude that we have the jurisdiction to issue
the requested writ. See In re Mohammad, 866 F.3d 473, 475 (D.C.
Cir. 2017) (noting that federal courts of appeals may issue writ under AWA now
to protect exercise of its appellate jurisdiction later); see also
Article 67(a)(1), Uniform Code of Military Justice, 10
U.S.C. § 867(a)(1) (2012) (providing jurisdiction for
this Court over all cases in which the sentence, as affirmed by a Court of
Criminal Appeals, extends to death). However, before we may issue a writ of
mandamus, three conditions must be satisfied: (1) the petitioner must
demonstrate that there are no other adequate alternative means to obtain the
desired relief, thus ensuring that the writ is not used as a substitute for the
regular appeals process; (2) the petitioner must demonstrate a clear and indisputable
right to the writ; and (3) this Court must be convinced, given the
circumstances, that the issuance of the writ is warranted. Cheney
v. United States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004).
In this case, Petitioner has failed to demonstrate that he cannot obtain relief
through alternative means. He may still make an administrative request to
remedy the alleged source of bias, and of course, he is entitled to raise this
issue in the ordinary course of appellate review. Further, Petitioner has
failed to demonstrate a clear and indisputable right to the writ as the harm he
asserts is entirely speculative at this stage of the proceedings. Therefore, we
decline to exercise our authority under the AWA. Accordingly, it is ordered that
the petition is denied without prejudice to Petitioner's right to raise the
issue asserted during the normal course of appellate review.
No. 19-0185/AR. Shaquille Craig,
Appellant v. Mark A. Bridges, Colonel, Military Judge, United States Army, Appellee and United States, Real Party in Interest. CCA 20180632. On consideration of the writ-appeal
petition, it is ordered that the writ-appeal petition is denied.
No. 19-0195/AR.
Richard J. Ramsey, Appellant v. United States, Appellee. CCA 20190001. On consideration of
the writ-appeal petition, it is ordered that the writ-appeal petition is denied.
No. 19-0223/AF. Humphrey Daniels III, Petitioner v. Carl Brobst, Commander, Commanding Officer, Naval Consolidated
Brig, Charleston, United States Navy, Respondent, United States Air Force Court
of Criminal Appeals, Respondent and United States of America, Real Party in
Interest.
On consideration of the petition for extraordinary relief in the nature of a
writ of habeas corpus, mandamus, and declaratory judgment, it is ordered that
the petition is denied.
Order Granting Petition for Review
No. 19-0104/AR. U.S.
v. Nicholas E. Davis. CCA 20160069. On consideration of Appellant's petition for grant of
review of the decision of the United States Army Court of Criminal Appeals, it
is ordered that said petition is granted on the following personally asserted
issue:
WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE PANEL
THAT A NEGLIGENT MENS REA WAS SUFFICIENT FOR THE
OFFENSE OF INDECENT VISUAL RECORDING AND THE DEFENSE OF MISTAKE OF FACT AS TO
CONSENT.
No
briefs will be filed under C.A.A.F. R. 25.
Interlocutory Orders
No. 19-0233/AR. U.S. v. Mikel K.W. Tillman. CCA 20160449. Appellant's motion to extend time to file the
supplement to the petition for grant of review is granted to April 22, 2019.
No. 19-0234/AR. U.S. v. Jordan T. Rodriguez. CCA 20160787. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to April 22, 2019.
No. 19-0236/AR. U.S. v. Travis Hernandez. CCA 20160558. Appellant's
motion to extend time to file the supplement to the petition for grant of
review is granted to April 22, 2019.
UNITED
STATES COURT OF APPEALS FOR THE ARMED FORCES
DAILY
JOURNAL
Monday,
April 1, 2019
Petitions for Grant of Review Filed
No. 19-0233/AR. U.S. v. Mikel K.W. Tillman. CCA 20160449.
No. 19-0234/AR. U.S. v. Jordan T. Rodriguez. CCA 20160787.
No. 19-0235/AR. U.S. v. Tony S. Springer. CCA 20170662.
No. 19-0236/AR. U.S. v. Travis Hernandez. CCA 20160558.
Petition for Grant of Review - Summary
Disposition
No. 19-0209/AR. U.S.
v. Steven E. Hill. CCA 20120979. Upon consideration of the pro se matter construed by the
Court as a petition for grant of review under Rule 20 and what is styled as a
petition for the appointment of counsel, it is ordered that the petition for
grant of review is dismissed without prejudice to Appellant's seeking
collateral relief in an appropriate forum, and the petition for the appointment
of counsel is denied.
Interlocutory Orders
No. 19-0203/AR. U.S. v. Kevin W. Beer. CCA 20160659. Appellant's
second motion to extend time to file the supplement to the petition for grant
of review is granted to April 11, 2019.
No. 19-0231/AF. U.S. v. Jesse L. Brazell. CCA 39325. Appellant's motion to extend time to file the
supplement to the petition for grant of review is granted to April 22, 2019.
No. 19-0232/AF. U.S. v. Jaime R. Rodriguez.
CCA 38519.
Appellant's motion to extend time to file the supplement to the petition for
grant of review is granted to April 22, 2019.
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