UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, February 28,
2023
Petitions for Grant of Review Filed
No.
23-0116/AR. U.S. v. Gloverstukes. CCA 20220597.
No.
23-0117/AR. U.S. v. Jonathan B. Wainionpa. CCA
20210436.
Miscellaneous Docket - Summary
Disposition
No.
23-0073/AF. A.L., Appellant v. United States, Appellee, & Theodore J.
Slusher, Captain, United States Air Force, Real Party in Interest CCA 2022-12. On consideration of
the 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 a writ of mandamus, it is ordered that the petition is hereby denied
in part and granted in part; that Appellant's request for the trial counsel to
destroy the medical records that he obtained from her military treatment
facility is denied; and that Appellant's request for the military judge to
conduct an in camera review of all her medical and Family Advocacy Program
records in order to determine their relevancy and to adjudicate any claims of
privilege is granted.
In
issuing this order, the Court expresses no opinion on the legality of the means by which the Government obtained Petitioner's
records.
Interlocutory Orders
No.
23-0061/CG. James D. Fink, Appellant v. Y.B., Aviation Maintenance Technician,
Third Class, U.S. Coast Guard & United States, Appellees. CCA 001-23. On
consideration of Appellant's motions for leave to file the writ-appeal petition
under seal, for leave to file a reply under seal, for leave to file
supplemental appendices under seal, and to file supplemental appendices, it is
ordered that the motions are hereby granted.
No.
23-0061/CG. James D. Fink, Appellant v. Y.B., Aviation Maintenance Technician,
Third Class, U.S. Coast Guard & United States, Appellees. CCA 001-23. On
consideration of the Government's motion to file an answer to the writ-appeal
under seal, it is ordered that the motion is hereby granted.
No.
23-0061/CG. James D. Fink, Appellant v. Y.B., Aviation Maintenance Technician,
Third Class, U.S. Coast Guard & United States, Appellees. CCA 001-23. On
consideration of the motion filed by Special Victims' Counsel for leave to file
AMT3 Y.B.'s answer to the writ-appeal under seal, it is ordered that the motion
is hereby granted.
No.
23-0116/AR. United States v. Kvien Gloverstukes. CCA 20220597. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
March 20, 2023.
No.
21-0312/NA. United States v. Wendell E. Mellette, Jr. CCA 201900305. On
consideration of Patient/Victim S.S.'s renewed motion for a stay of proceedings
pending a decision on her petition for a writ of certiorari filed in the United
States Supreme Court, it is ordered that said motion is hereby dismissed for
lack of jurisdiction.1
1 Appellant is correct that the decretal
paragraph in United States v. Mellette, 82 M.J. 374, 381 (C.A.A.F.
2022), refers to the "record" being returned to the Judge Advocate General of
the Navy for remand to the lower court for further proceedings. Although that
statement, viewed in isolation, might support Patient/Victim S.S.'s belief that
this Court retained jurisdiction over this case, when viewed in the context of
the entire opinion, this Court did not retain jurisdiction. At the beginning of
the opinion, the Court expressly "set aside" the CCA's opinion and returned the
"case" to the Judge Advocate General of the Navy for further proceedings. Id.
at 375. In the "Remedy" section of the opinion, the Court ordered the CCA: (1)
to "order a DuBay hearing for the purpose of
obtaining any records that were responsive to Appellant's original motion to
compel and determining whether those records should have been provided to
Appellant prior to his court-martial"; and (2) to "determine whether the military
judge's original denial of Appellant's motion to compel materially prejudiced
Appellant's defense pursuant to its authority under Article 66, UCMJ." Id.
at 381. The Court then stated that: "Following these proceedings, Article 67,
UCMJ, 10 U.S.C. § 867 (2012), shall apply." Id. Finally, the Court did
not order the record returned to this Court for further review upon completion
of the DuBay hearing.
No.
20-0359/NA. United States v. Salvador Jacinto. CCA 201800325. On consideration
of Intervenor E.B.'s motion for a stay of proceedings pending the filing of her
petition for writ of certiorari, it is ordered that said motion to stay is
hereby dismissed for lack of jurisdiction.1
1 Although the decretal paragraph in United
States v. Jacinto, 81 M.J. 350, 355 (C.A.A.F. 2021), refers to returning
the record to the Judge Advocate General of the Navy, it is clear from the
express language in the opinion that the entire case was remanded.
Specifically: (1) we vacated the decision of the lower court in part; (2) we
set aside the lower court's decision with respect to certain specifications and
the sentence; (3) we stated that "the lower court shall reexamine the military
judge's continuance and in camera review rulings" and that court should "determine
whether [any erroneous] denial of either motion materially prejudiced
Appellant," id.; (4) we held that "Article 67, UCMJ, … shall apply"
after these proceedings, id.; and (5) we did not order the record
returned to this Court for further review upon completion of factfinding.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, February 27,
2023
Miscellaneous Docket - Filing
No.
23-0115/AR. U.S. v. Nicholas A. Shaw. CCA 20230003. Notice is given that a
writ-appeal petition for review of the decision of the United States Army Court
of Criminal Appeals on application for extraordinary relief was filed under
Rule 27(b).
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, February 24,
2023
Order Granting Petition for Review
No.
23-0061/CG. James D. Fink v. Y.B. & U.S. CCA 001-23. On consideration of
the writ-appeal petition for review of the decision of the United States Coast
Guard Court of Criminal Appeals on application for extraordinary relief, it is
ordered that said petition is hereby granted on the following issue:
WHETHER
THIS COURT HAS JURISDICTION TO REVIEW A WRIT-APPEAL PETITION FILED BY AN
ACCUSED TO REVIEW THE DECISION OF A COURT OF CRIMINAL APPEALS ON A PETITION FOR
EXTRAORDINARY RELIEF FILED UNDER ARTICLE 6b, UCMJ.
Within
10 days, each Appellee shall file a brief addressing the arguments in
Appellant's writ-appeal petition that Article 67(a)(3), UCMJ, provides this
Court jurisdiction, and that the amendment of Article 67(c), UCMJ, in the
National Defense Authorization Act of 2017 requires this Court to reconsider
its holding in Randolph v. HV, 76 M.J. 27 (C.A.A.F. 2017). Appellant may file
an answer no later than 5 days after the filing of the Appellees' briefs.
The
Court reserves judgment on whether it will grant review of the other assigned
issues in the writ-appeal petition.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, February 23,
2023
Petition for Grant of Review Filed
No.
23-0114/AR. U.S. v. Nelson O. Rodriguez. CCA 20210213.
Order Granting Petition for Review
No.
23-0021/NA. U.S. v. Nixon Keago. CCA 202100008. On consideration of
the 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 hereby granted on the following issue:
DID
THE MILITARY JUDGE ERR BY DENYING THREE ACTUAL AND IMPLIED BIAS CHALLENGES FOR
CAUSE AGAINST THREE MEMBERS?
Briefs
will be filed under Rule 25.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, February 22,
2023
Order Granting Petition for Review
No.
23-0010/NA. U.S. v. Eric S. Gilmet. CCA 202200061. On consideration of
the petition for grant of review of the decision of the United States
Navy-Marine Corps Court of Criminal Appeals on appeal by the United States
under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 (2018), it
is ordered that said petition is hereby granted on the following issue:
WHETHER
THE MILITARY JUDGE ERRED WHEN HE FOUND THE GOVERNMENT FAILED TO PROVE THAT
UNLAWFUL COMMAND INFLUENCE (1) WOULD NOT AFFECT THE PROCEEDINGS BEYOND A
REASONABLE DOUBT, AND (2) HAS NOT PLACED AN INTOLERABLE STRAIN ON THE PUBLIC'S
PERCEPTION OF THE MILITARY JUSTICE SYSTEM.
Pursuant
to C.A.A.F. R. 19(a)(7)(A), no further pleadings will be filed.
Interlocutory Orders
No.
23-0010/NA. U.S. v. Eric S. Gilmet. CCA 202200061. On
consideration of the motion filed by the United States Army and Air Force
Defense Appellate Divisions for leave to file an amicus brief, it is ordered
that the motion is hereby granted.
No.
23-0100/NA. U.S. v. Jose A. Martinez. CCA 202100206. Appellant's second motion
to extend time to file the supplement to the petition for grant of review is
granted to March 3, 2023.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, February 21,
2023
Petition for Grant of Review Filed
No.
23-0113/AF. U.S. v. Jesse J. Massey. CCA 40017.
Hearings
No.
22-0279/MC. U.S. v. Ethan R. Shields. CCA 202100061.
No.
22-0282/AR. U.S. v. Ashraf S. Warda. CCA 20200644.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, February 16,
2023
Mandate Issued
No.
22-0129/AR. U.S. v. Nicholas R. St. Jean. CCA 20190663.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, February 15,
2023
Petitions for Grant of Review Denied
No.
23-0032/AF. U.S. v. Tucker L. Binegar. CCA S32625.
No.
23-0041/AF. U.S. v. Ian J.B. Cadavona. CCA 40129.
No.
23-0042/AF. U.S. v. Jackson J. McClenney. CCA S32712.
No.
23-0043/AF. U.S. v. Nicholas G. Howell. CCA 39949.
Petitions for Reconsideration Denied
No.
22-0253/AF. U.S. v. Deric W. Prescott. CCA 2022-03. Appellant's petition for
reconsideration of this Court's order issued November 8, 2022, is denied.
No.
22-0256/AF. U.S. v. Deric W. Prescott. CCA 39931. Appellant's petition for
reconsideration of this Court's order issued November 8, 2022, is denied.
No.
23-0020/AR. Alexander Loya, Appellant v. United States, Appellee. CCA 20220468.
Appellant's petition for reconsideration of this Court's order issued December
9, 2022, is denied.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, February 14,
2023
Petitions for Grant of Review Filed
No.
23-0111/AR. U.S. v. Wyatt A. Conrady. CCA 20220184.
No.
23-0112/AR. U.S. v. Jeremiah R. Pierce. CCA 20220337.
Petitions for Grant of Review Denied
No.
22-0278/NA. U.S. v. Dashawn Q. Nichol. CCA 201800286.
No.
22-0288/NA. U.S. v. Yusef R. Ali. CCA 202100261.
No.
22-0293/NA. U.S. v. Jason S. Doyle. CCA 201900190R.
No.
22-0295/NA. U.S. v. Joshua B. Spears. CCA 202100034.
No.
23-0033/CG. U.S. v. Cory A. Armitage. CCA 1478.
No.
23-0074/AR. U.S. v. Patrick W. Deless. CCA 20220317.
Interlocutory Orders
No.
23-0092/AR. U.S. v. Mariano Cerrud. CCA 20210185. Appellant's second motion to
extend time to file the supplement to the petition for grant of review is
granted to February 27, 2023.
No.
23-0109/NA. U.S. v. Jordan A. Jones. CCA 202100129. Appellant's motion to
extend time to file the supplement to the petition for grant of review is
granted to March 6, 2023.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Monday, February 13,
2023
Petition for Grant of Review Filed
No.
23-0110/AF. U.S. v. Michael G. Reimers. CCA 40141.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, February 10,
2023
Petitions for Grant of Review Filed
No.
23-0107/AR. U.S. v. Ladonies P. Strong. CCA 20200391.
No.
23-0108/AR. U.S. v. Robert S. Brugh. CCA 20210097.
No.
23-0109/NA. U.S. v. Jordan A. Jones. CCA 202100129.
Interlocutory Order
No.
23-0104/AF. M.W. v. U.S. CCA 2022-15. On consideration of Appellant's motion to
stay court-martial proceedings pending disposition of her writ-appeal petition,
it is ordered that the motion is granted* pending disposition of Appellant's
writ-appeal petition.
*Judge
Maggs dissents. Judge Maggs would deny the stay without prejudice to the filing
of a new motion to stay after the military judge rules.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, February 9,
2023
Petition for Grant of Review Filed
No.
23-0106/NA. U.S. v. Gasper Moreno, Jr. CCA 202100161.
Interlocutory Orders
No.
23-0058/AF. U.S. v. Won-Jun Kim. CCA 40057. Appellant's motion to submit
matters pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A.) is granted.
No.
23-0103/AF. U.S. v. Nigel G. Berry. CCA 40170. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
March 1, 2023.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, February 8,
2023
Petitions for Grant of Review Filed
No.
23-0103/AF. U.S. v. Nigel G. Berry. CCA 40170.
No.
23-0105/NA. U.S. v. Kevin L. Johnson, Jr. CCA 202100183.
Miscellaneous Docket - Filing
No.
23-0104/AF. M.W., Appellant v. United States, Appellee and Marshall R.
Robinson, Staff Sergeant, United States Air Force, Real Party In Interest. CCA
2022-15. Notice is 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 a writ of
mandamus was filed under Rule 27(b) on this date.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Tuesday, February 7,
2023
Petition for Grant of Review Filed
No.
23-0102/AR. U.S. v. Giovanni M. MaysonetDiaz. CCA 20210273.
Hearings
No.
22-0234/AR. U.S. v. Byunggu Kim. CCA 20200689.
No.
22-0276/AF. U.S. v. Mellodee L. Behunin. CCA S32684.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Friday, February 3,
2023
Interlocutory Orders
No.
21-0193/AR. U.S. v. Nidal M. Hasan. CCA 20130781. On consideration of the joint
motion for additional time to present oral argument and Appellant's motion to
broadcast oral argument audio, it is ordered that the motions are granted. Each
side will be allotted an additional 20 minutes to present oral argument.
No.
23-0101/AF. U.S. v. Allan L. Brown. CCA 40066. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
February 23, 2023.
Mandate Issued
No.
22-0277/NA. U.S. v. Adam M. Pyron. CCA 201900296R.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Thursday, February 2,
2023
Petition for Grant of Review Filed
No.
23-0101/AF. U.S. v. Allan L. Brown. CCA 40066.
UNITED STATES COURT OF
APPEALS FOR THE ARMED FORCES
DAILY JOURNAL
Wednesday, February 1,
2023
Petition for Grant of Review Denied
No.
23-0003/AF. U.S. v. Terry J. Taylor II. CCA 40086.
Interlocutory Orders
No.
23-0098/AR. U.S. v. Hayden R. Elder. CCA 20210330. Appellant's motion to extend
time to file the supplement to the petition for grant of review is granted to
March 8, 2023.
No.
23-0100/NA. U.S. v. Jose A. Martinez. CCA 202100206. Appellant's motion to
extend time to file the supplement to the petition for grant of review is
granted to February 21, 2023.
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