New Grants and Summary Dispositions

Cases that have been decided will be removed from this page at the end of the term.

Thursday, September 30, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 03-0518/MC. U.S. v. Teon E. JACKSON. CCA 200001671. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of our recent decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that said petition is granted on the following issue:

WHETHER THE LOWER COURT'S VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT'S ARGUMENT AS THE COURT'S OPINION CONSTITUTES AN ABUSE OF DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.

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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

No. 03-0538/MC. U.S. v. Nathan T. OTTO. CCA 200001460. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of our recent decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that said petition is granted on the following issue:

WHETHER THE LOWER COURT'S VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT'S ANSWER BRIEF AS THAT COURT'S OPINION CONSTITUTES AN ABUSE OF DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.

No. 03-0588/NA. U.S. v. Antoinette VANDERBILT. CCA 200000487. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of our recent decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that said petition is granted on the following issue:

No. 03-0591/NA. U.S. v. Thomas N. CREAM. CCA 200200962. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of our recent decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that said petition is granted on the following issue:

No. 04-0069/MC. U.S. v. David Y. OWENS. CCA 200200427. On further consideration of this case, and in light of our decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that 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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

No. 04-0219/MC. U.S. v. Scipio J. WILLIAMS. CCA 200101854. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of our recent decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that said petition is granted on the following issue:

No. 04-0350/MC. U.S. v. Whitman D. WALLACE. CCA 200001148. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of our recent decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that said petition is granted on the following issue:

No. 04-0372/MC. U.S. v. Jeremy D. THOMPSON. CCA 200101956. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of our recent decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that said petition is granted on the following issue:

No. 04-0442/AF. U.S. v. Christopher P. MOFFEIT. CCA 35159. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT'S CONVICTION FOR RECEIVING AND POSSESSING CHILD PORNOGRAPHY UNDER 18 U.S.C. § 2252A MUST BE SET ASIDE.

The decision of the United States Air Force Court of Criminal Appeals as to Specifications 1 and 2 of the Charge and the sentence is reversed, but is affirmed in all other respects. The findings of guilty of Specifications 1 and 2 of the Charge and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may either dismiss Specifications 1 and 2 of the Charge and reassess the sentence based on the affirmed guilty findings or order a rehearing.

CRAWFORD, Chief Judge (dissenting): I dissent from the order setting aside Specifications 1 and 2 of the Charge for the reasons set forth in my separate opinion in United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003) (Crawford, C.J., dissenting).

No. 04-0464/AF. U.S. v. Tracy L. DAVIDSON. CCA 34911. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 04-0491/AR. U.S. v. Fabian G. PEREZ. CCA 20011030. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of our decision in United States v. Lajaunie, ___ M.J. ___ (Daily Journal July 21, 2004), it is ordered that said petition is granted on the following specified issue:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER ARTICLE 66(c), UCMJ, BY AFFIRMING A SENTENCE THAT WAS NOT CORRECT IN LAW AND FACT AND WAS GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING AUTHORITY.

The decision of the United States Army Court of Criminal Appeals and the convening authority’s action are set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to a convening authority for a new action in light of this Court’s decision in United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002).

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my dissenting opinion in United States v. Lajaunie, ___ M.J. ___ (Daily Journal July 21, 2004) (Crawford, C.J., dissenting).

No. 04-0509/AF. U.S. v. Robert L. SEITTER. CCA 34973. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of our decision in United States v. Lajaunie, ___ M.J. ___ (Daily Journal July 21, 2004), it is ordered that said petition is granted on the following issue:

WHETHER THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER ARTICLE 66(c) UCMJ, BY AFFIRMING A SENTENCE THAT WAS NOT CORRECT IN LAW AND FACT AND WAS GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING AUTHORITY.

The decision of the United States Air Force Court of Criminal Appeals and the convening authority’s action are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to a convening authority for a new action in light of this Court’s decision in United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002).

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my dissenting opinion in United States v. Lajaunie, ___ M.J. ___ (Daily Journal July 21, 2004) (Crawford, C.J., dissenting).

Wednesday, September 29, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 03-0403/NA. U.S. v. Robert F. BRINTON. CCA 200001971. On further consideration of this case, and in light of our decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that 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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

No. 03-0515/NA. U.S. v. Thomas J. SCHNABLE. CCA 9900852. On further consideration of this case, and in light of our decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that 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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

No. 03-0578/NA. U.S. v. Jeffrey B. MAZER. CCA 200001655. On further consideration of this case, and in light of our decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that 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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

No. 03-0613/MC. U.S. v. Jimmie L. GETER. CCA 9901433. On further consideration of this case, and in light of our decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that 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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

No. 04-0067/MC. U.S. v. Timothy T. RYAN. CCA 9900374. On further consideration of this case, and in light of our decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that 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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

No. 04-0090/MC. U.S. v. Eric W. SELL. CCA 200200458. On further consideration of this case, and in light of our decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that 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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

No. 04-0177/NA. U.S. v. John M. LYDY. CCA 200200005. On further consideration of this case, and in light of our decision in United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004), it is ordered that 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 a new review pursuant to Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), before a panel comprised of judges who have not previously participated in this case.

Monday, September 20, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 02-0065/AF. U.S. v. Ryan W. DAVIS. CCA 33877. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decisions in United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004), and United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted on the following issues:

WHETHER PROSECUTION UNDER ARTICLE 125 VIOLATES SUBSTANTIVE DUE PROCESS BY UNFAIRLY INFRINGING ON SERVICEMEMBERS’ FUNDAMENTAL RIGHT TO PRIVACY. ALSO WHETHER PROSECUTION UNDER ARTICLE 125 FOR PRIVATE CONSENSUAL NON-COMMERCIAL SODOMY VIOLATES A STATUTORILY ESTABLISHED ZONE OF PRIVACY WITHOUT A COMPELLING GOVERNMENT INTEREST.

WHETHER APPELLANT'S PLEA OF GUILTY TO POSSESSING AND TRANSPORTING CHILD PORNOGRAPHY UNDER 18 U.S.C. § 2252A IS IMPROVIDENT BECAUSE CONVICTION UNDER SAID STATUTE VIOLATES THE FIRST AMENDMENT’S GUARANTEE OF FREE SPEECH AND BECAUSE THE PHRASES “APPEARS TO BE” AND “CONVEYS THE IMPRESSION” IN THE STATUTE MAKE IT UNCONSTITUTIONALLY VAGUE AND OVERBROAD.

In terms of Appellant’s challenge to his conviction for possessing and distributing child pornography, it is ordered that specifications 1 and 2 of Charge III are amended to read as follows:

In that SECOND LIEUTENANT RYAN W. DAVIS, United States Air Force, Detachment 1, 325^th Fighter Wing, Pensacola Naval Air Station, Pensacola, Florida, did at or near Pensacola, Florida, on or about 15 December 1997, knowingly possess images of child pornography ~~that had been transported in interstate commerce; in violation of Title 18, United States Code, § 2252A(a)(5)(B)~~.

In that SECOND LIEUTENANT RYAN W. DAVIS, United States Air Force, Detachment 1, 325^th Fighter Wing, Pensacola Naval Air Station, Pensacola, Florida, did in the continental United States between on or about 16 October 1997 and on or about 16 October 1997, knowingly distribute by computer child pornography ~~that had been transported in interstate commerce; in violation of Title 18, United States Code, § 2252A(a)(2)(A)~~.

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to Charge III and its specifications as amended, as well as to the remaining Charges, specifications, and the sentence.

No. 02-0233/AF.

U.S.

v. Dale P. KEYSER. CCA 34252. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decisions in United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004), and United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted on the following issue:

WHETHER, IN LIGHT OF ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 234 (2002), THE APPELLANT’S GUILTY PLEA IS IMPROVIDENT.

Specification 1 of the Charge is amended to read as follows:

In that TECHNICAL SERGEANT DALE P. KEYSER, United States Air Force, 93rd Maintenance Squadron, Robins Air Force Base, Georgia, did, at Robins Air Force Base, Georgia, on or about 16 April 1999, knowingly receive child pornography ~~that had been mailed, shipped, or transported in interstate or foreign commerce by any means including computer, in violation of Title 18, United States Code, § 2252(a)(2)(A)~~.

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to the Charge and specification 1 as amended, as well as to the sentence.

No. 02-0844/AF.

U.S.

v. Jason P. APPELDORN. CCA 34942. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decisions in United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004), and United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted on the following issue:

WHETHER THE FINDINGS OF GUILTY IN THIS CASE CAN BE AFFIRMED IN LIGHT OF ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 234 (2002).

Specifications 1 and 2 of the Charge are amended to read as follows:

In that AIRMAN FIRST CLASS JASON PATRICK APPELDORN, United States Air Force, 90th Transportation Squadron, did, at or near Francis E. Warren Air Force Base, Wyoming, on divers occasions between on or about 1 July 2000 and on or about 31 August 2000, knowingly receive twenty-two computer images of child pornography ~~that were transported in interstate commerce, in violation of Title 18, United States Code, § 2252(a)(2)(A)~~.

In that AIRMAN FIRST CLASS JASON PATRICK APPELDORN, United States Air Force, 90th Transportation Squadron, did, at or near Francis E. Warren Air Force Base, Wyoming, on or about 4 January 2001, knowingly possess nineteen pages of printed computer images of child pornography ~~that were transported in interstate commerce, in violation of Title 18, United States Code, § 2252(a)(5)(B)~~.

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to the Charge and its specifications as amended, as well as to the sentence.

No. 04-0188/AF.

U.S.

v. Daniel W. HONZIK. CCA 34667. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted on the following issue:

WHETHER APPELLANT’S CONVICTION FOR POSSESSING CHILD PORNOGRAPHY UJNDER 18 U.S.C. § 2252A IS VOID BECAUSE APPELLANT CANNOT BE CONVICTED OF POSSESSING IMAGES THAT “APPEAR TO BE” OR “CONVEY THE IMPRESSION OF BEING” MINORS AND BECAUSE THE GOVERNMENT DID NOT PRESENT PROOF BEYOND A REASONABLE DOUBT THAT THE ALLEGED PERSONS DEPICTED IN THE IMAGES WERE ACTUAL CHILDREN.

The decision of the United States Air Force Court of Criminal Appeals as to specification 1 of Charge I and the sentence is reversed, but is affirmed in all other respects. The finding of guilty of specification 1 of Charge I and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That court may either dismiss specification 1 of Charge I and reassess the sentence based on the affirmed guilty findings or order a rehearing.

CRAWFORD, Chief Judge (concurring in part, dissenting in part): I would affirm the findings of specification 1 of Charge I based on my dissent in United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003) (Crawford, C.J. dissenting). Thus, I would affirm the sentence.

Wednesday, September 15, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-5005/NA. U.S. v. Todd R. FORBES. CCA 9901454. Review granted on the following modified issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN ADDRESSING THE ISSUE OF FACTUAL AND LEGAL SUFFICIENCY OF THE EVIDENCE IN LIGHT OF ITS DECISION TO REVERSE ON AN INSTRUCTIONAL ERROR TO THE MEMBERS.

It is further ordered by the Court that the hearing notice dated July 21, 2004, setting this case for oral argument is hereby vacated. The case will be set for oral argument at a later date.

Monday, September 13, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 98-0783/NA. U.S. v. Michael W. FRICKE. CCA 199601293. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is granted and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

Thursday, September 09, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 01-0786/AF. U.S. v. Manuel MARMOLEJO. CCA 33950. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed. The six-month waiver of mandatory forfeitures will commence on the date of the initial convening authority’s action, January 6, 2000, as opposed to the date of the subsequent action, December 3, 2003.

No. 03-0092/AR.

U.S.

v. Daniel C. HAGUE-CAMPBELL. CCA 20000735. On further consideration of the issues granted review by this Court on March 19, 2003, 58 M.J. 209-10 (C.A.A.F. 2003), and in light of this Court’s decisions in United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) and United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that the specification of Charge I is amended to read as follows:

In that Private First Class Daniel C. Hague-Campbell, U.S. Army, Headquarters Company, United States Army Garrison, Ft. Wainwright, Alaska, did at Fort Wainwright, Alaska knowingly receive and distribute child pornography ~~that has been mailed, or shipped or transported in interstate or foreign commerce by means of a computer~~ on divers occasions between 1 October 1999 and 31 March 2000 ~~in violation of Title 18, United States Code, § 2252(a)(2)(A)~~.

The decision of the United States Army Court of Criminal Appeals is affirmed as to Charge I and its specification as amended, as well as to the remaining charge and its specification and the sentence.

No. 03-0441/NA. U.S. v. Jeremy ESCOLAR. CCA 200001531. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), we note Appellant pled guilty to specification 2 of the Charge that alleged a violation of Section 2252A of Title 18, United States Code, portions of which were subsequently declared unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The military judge’s plea inquiry made no reference to those portions, however, and focused Appellant on the portions of the statute subsequently held to be constitutional. Appellant’s responses were directed toward the portions of the statute subsequently held to be constitutional, and there is no substantial basis in law and fact for questioning the providence of his guilty plea. O’Connor, 58 M.J. at 454. Accordingly, said petition is granted and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

No. 03-0467/AR. U.S. v. John D. TYNES. CCA 9901093. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN UPHOLDING APPELLANT'S CONVICTION UNDER THE CHILD PORNOGRAPHY PREVENTION ACT, 18 U.S.C. § 2251, et seq., DESPITE THE SUPREME COURT'S PRONOUNCEMENT THAT THE CPPA DEFINITION OF CHILD PORNOGRAPHY IS UNCONSTITUTIONAL, ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 234 (2002), AND THIS COURT'S DECISION THAT ASHCROFT v. FREE SPEECH COALITION REQUIRES PROOF THAT ACTUAL MINORS WERE USED IN PRODUCING THE PORNOGRAPHIC IMAGES. See UNITED STATES v. O'CONNOR, 58 M.J. 450 (2003).

The decision of the United States Army Court of Criminal Appeals as to specifications 7 and 8 of Charge II and the sentence is reversed, but is affirmed in all other respects.

The findings of guilty of specifications 7 and 8 of Charge II and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That Court may either dismiss specifications 7 and 8 of Charge II and reassess the sentence based on the affirmed guilty findings or order a rehearing.

CRAWFORD, Chief Judge (concurring in part and dissenting in part): I would affirm the findings of specifications 7 and 8 of Charge II based on my dissent in United States v. O’Connor, 58 M.J. 450, 455-59 (C.A.A.F. 2003). Thus, I would also affirm the sentence.

No. 04-0157/AF. U.S. v. Frank SANCHEZ Jr. CCA 34940. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted on the following issue:

WHETHER APPELLANT'S CONVICTION FOR POSSESSING CHILD PORNOGRAPHY IN VIOLATION OF TITLE 18, UNITED STATES CODE SECTION 2252A(a)(5)(A), MUST BE SET ASIDE IN LIGHT OF THE SUPREME COURT'S DECISION IN ASHCROFT v. FREE SPEECH COALITION

The decision of the United States Air Force Court of Criminal Appeals as to the Additional Charge and its specification and the sentence is reversed, but is affirmed in all other respects. The finding of guilty of the Additional Charge and its specification and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the Court of Criminal Appeals. That Court may either dismiss the Additional Charge and its specification and reassess the sentence based on the affirmed guilty findings or order a rehearing.

CRAWFORD, Chief Judge (concurring in part and dissenting in part): I would affirm the Additional Charge and its specification based on my dissent in United States v. O’Connor, 58 M.J. 450, 455-59 (C.A.A.F. 2003). Thus, I would also affirm the sentence.

No. 04-0226/AF. U.S. v. Jay C. JENSEN. CCA 35164. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s decisions in United States v. Mason, 60 M.J. 15 (C.A.A.F. 2004) and United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted on the following issue:

WHETHER APPELLANT'S PLEA OF GUILTY TO AN OFFENSE UNDER 18 U.S.C. § 2252A WAS INVOLUNTARY BECAUSE HE HAD AN INCOMPLETE UNDERSTANDING OF THE OFFENSE WHEN THE MILITARY JUDGE EXPLAINED THE OFFENSE USING THE UNCONSTITUTIONALLY VAGUE AND OVERBROAD DEFINITIONS OF CHILD PORNOGRAPHY CONTAINED IN 18 U.S.C. § 2256.

Specification 9 of Charge II is amended to read as follows:

In that TECHNICAL SERGEANT JAY C. JENSEN, United States Air Force, 319^th Aircraft Generation Squadron, did, within the continental United States, on divers occasions, between on or about 20 August 1997 and on or about 2 April 2001, knowingly possess materials that contained an image of child pornography; that was mailed, shipped or transported in interstate or foreign commerce by any means, including computer, or were produced using materials mailed, shipped or transported in interstate or foreign commerce by any means, including computer, in violation of Title 18, United States Code, § 2252A(a)(5)(B).

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to Charge II and Specification 9 as amended, as well as to the remaining charges and their specifications and the sentence.

No. 04-0261/AF.

U.S.

v. Michael C. BUTLER. CCA 35472. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s decisions in United States v. Irvin, 60 M.J. 23 (C.A.A.F. 2004) and United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0540/AF.

U.S.

v. Michael A. BARRIER. CCA S30160. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF THE APPELLANT WHEN, OVER DEFENSE OBJECTION, HE GAVE THE “FRIEDMANN INSTRUCTION.”

Friday, September 03, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 04-0431/AF. U.S. v. David T. WILSON. CCA S30467. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for a bad-conduct discharge, confinement for 6 months, forfeiture of $767.00 pay per month for 6 months, and reduction to E-1.

Thursday, September 02, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0568/AR. U.S. v. Jacqueline BILLINGS. CCA 9900122. Review granted on the following issue:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN UPHOLDING THE MILITARY JUDGE'S DECISION TO (1) ACCEPT A JEWELER CALLED BY THE GOVERNMENT AS AN EXPERT IN "CARTIER WATCH IDENTIFICATION;" (2) ALLOW THAT JEWELER TO IDENTIFY A WATCH IN A PICTURE AS SOLID GOLD (RATHER THAN GOLD PLATE); AND (3) ALLOW THAT JEWELER TO TESTIFY THAT THE WATCH IN ONE PICTURE IS THE SAME STYLE AS THE WATCH IN A DIFFERENT PICTURE.

No. 04-0465/AF. U.S. v. Terry A. FLETCHER. CCA 34945. Review granted on the following issue:

WHETHER THE CIRCUIT TRIAL COUNSEL'S FINDINGS ARGUMENT WAS IMPROPER AND MATERIALLY PREJUDICED APPELLANT'S SUBSTANTIAL RIGHTS.

Thursday, August 19, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 00-0679/AR. U.S. v. Jermain J. BEST. CCA 9701222. Review granted on the following issue:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THERE WAS NO ACTUAL CONFLICT OF INTEREST INVOLVING MEMBERS OF APPELLANT'S SANITY BOARD SUFFICIENT TO UNDERMINE THE RELIABILITY OF THE SANITY BOARD'S FINDINGS.

Wednesday, August 18, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0392/AF. U.S. v. Sean W. GRIGGS. CCA 34739. Review granted on the following issues:

I. WHETHER THE UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS PREJUDICIALLY ERRED IN HOLDING THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION IN APPLYING R.C.M. 1101(b)(5)(D) TO DEFENSE SENTENCING EVIDENCE.

II. WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUPPORT APPELLANT'S CONVICTION TO SPECIFICATIONS 1 AND 2 OF THE CHARGE WHERE THE EVIDENCE DID NOT DEMONSTRATE THAT THE SUBSTANCE USED AND DISTRIBUTED WAS ILLEGAL.

Tuesday, August 17, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0359/AR. U.S. v. Justin S. SHELTON. CCA 9901201. Review granted on the following issue raised by appellate defense counsel:

I. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN UPHOLDING THE RULING OF THE MILITARY JUDGE THAT DENIED THE DEFENSE MOTION TO SUPPRESS ANY EVIDENCE OBTAINED AS A RESULT OF COMMUNICATIONS BETWEEN APPELLANT AND HIS PASTOR.

And the following issue specified by the Court:

II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS APPLIED THE CORRECT APPELLATE TEST FOR DETERMINING MATERIALITY WITH RESPECT TO THE ERRONEOUS NONDISCLOSURE OF DISCOVERABLE EVIDENCE. SEE UNITED STATES V. ROBERTS, 59 M.J. 323 (C.A.A.F. 2004).

No. 04-5002/AF. United States, Appellant and Cross-Appellee, v. Mario L. CARTER, Appellee and Cross-Appellant. CCA 35027. Review granted on the following issue:

WHETHER APPELLEE/CROSS-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS DEFENSE COUNSEL FAILED TO OBJECT TO TRIAL COUNSEL'S REPEATED ARGUMENT THAT THE EVIDENCE WAS "UNCONTROVERTED" AND "UNCONTRADICTED" AND TOLD THE COURT MEMBERS THAT APPELLANT HAD AN "ABSOLUTE RIGHT NOT TO TESTIFY AND INCRIMINATE HIMSELF."

Monday, August 16, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 02-0212/AF.

U.S.

v. Lawrence E. JOSEY. CCA 33745. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

Thursday, August 12, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0178/AR. U.S. v. Jacques SAINTAUDE, Jr. CCA 9801647. Review granted on the following issues:

I. WHETHER APPELLANT WAS DEPRIVED OF HIS RIGHT TO CONFLICT-FREE COUNSEL WHEN ALL FIVE OF HIS COUNSEL LABORED UNDER MENTALLY-COMPETING PERSONAL INTERESTS.

II. WHETHER APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL ON THE MERITS WHEN HIS COUNSEL FAILED TO PREPARE AND EXECUTE A REASONABLE DEFENSE STRATEGY, INCLUDING FAILURE TO USE CRITICAL IMPEACHMENT EVIDENCE, AND WHEN HIS MILITARY COUNSEL FAILED TO ADVISE APPELLANT THAT HE BELIEVED THAT CIVILIAN COUNSEL WAS INCOMPETENT, INEFFECTIVE, AND UNPROFESSIONAL.

Friday, August 06, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 04-0534/AR. U.S. v. Roger L. HAMPTON. CCA 20021295. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Army Court of Criminal Appeals is affirmed.

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0480/AF. U.S. v. Michael J. SONEGO. CCA S30216. Review granted on the following issue:

WHETHER APPELLANT IS ENTITLED TO AN IMPARTIAL SENTENCE REHEARING WHERE, DURING VOIR DIRE, A PANEL MEMBER FAILED TO DISCLOSE HIS BELIEF THAT EVERY SERVICEMEMBER WHO USES DRUGS SHOULD GET A PUNITIVE DISCHARGE.

Thursday, July 22, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 02-0060/MC. U.S. v. Anthony L. JONES. CCA 200100066. On further consideration of the petition for grant of review, and the previously specified issue, and in light of United States v. Tardif, 59 M.J. 394 (C.A.A.F. 2004) (summary disposition), the Court further specifies the following additional issue:

DID THE LOWER COURT ERR WHEN IT CONCLUDED THAT APPELLANT'S CLAIM OF PREJUDICE FROM UNREASONABLE POST-TRIAL DELAY (LOSS OF AN EMPLOYMENT OPPORTUNITY SUPPORTED BY THREE UNREBUTTED DECLARATIONS) WAS “TOO SPECULATIVE,” AND DENIED RELIEF?

Wednesday, July 21, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 04-0168/AF. U.S. v. Timothy J. LAJAUNIE. CCA 35104. On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, we note that the convening authority took action on this case before we announced our decision in United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002). In his action, the convening authority purported to waive the automatic forfeitures imposed under Article 58b, Uniform Code of Military Justice, 10 U.S.C. § 858b (2000), without modifying the adjudged forfeiture of all pay and allowances. The Air Force Court of Criminal Appeals concluded that the convening authority’s action was “technically incorrect” because it did not comply with our guidance in Emminizer. The Air Force Court nevertheless held that “there [wa]s no cause to remand the case for a new action or to disapprove forfeitures.”

Appellant asserts that he is prejudiced by the action’s irregularity because it subjects him to possible recoupment of the forfeitures that were paid to his wife. Appellant cites a Defense Department regulation concerning collection of forfeitures that were erroneously paid. Dep’t of Defense, Directive 7000.14-R, Department of Defense Financial Management Regulation, at Volume 7A, chapter 48 (February 2001). The Government argues that such recoupment is discretionary and the possibility of any resulting prejudice is “speculative,” but nevertheless acknowledges that “the government has the authority to recoup the funds.” The Government, however, maintains that “Appellant’s dependents,” rather than Appellant himself, “would be liable for any recoupment.”

We conclude that Appellant has made a “colorable showing of possible prejudice” arising from the action’s irregularity. See United States v. Chatman, 46 M.J. 321, 324 (C.A.A.F. 1997).

Accordingly, said petition is granted on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER ARTICLE 66(c), UCMJ, BY AFFIRMING A SENTENCE THAT IT ACKNOWLEDGED WAS NOT “TECHNICALLY” CORRECT IN LAW AND FACT AND WAS GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING AUTHORITY.

II. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED WHEN ASSESSING PREJUDICE UNDER ARTICLE 59, UCMJ, WHERE IT DID NOT CONSIDER PREJUDICE THAT WILL OCCUR BY OPERATION OF REGULATION WHEN APPELLANT RECEIVES HIS FINAL ACCOUNTING OF PAY.

That the decision of the United States Air Force Court of Criminal Appeals and the convening authority’s action are set aside; and,

That the record of trial is returned to the Judge Advocate General of the Air Force for remand to a convening authority for a new action consistent with this Court’s decision in Emminizer.

CRAWFORD, Chief Judge (dissenting): Both the UCMJ and the principle of judicial economy require me to dissent in this case. Article 60(c)(2), UCMJ, 10 U.S.C. § 860(c)(2) (2000), grants the convening authority “sole discretion” in deciding the appropriate action on sentences. Pursuant both to this statute and Article 58b, UCMJ, 10 U.S.C. § 858b (2000), the convening authority permitted Appellant’s dependents to be paid Appellant’s pay and allowances for six months after the action. Appellant now complains that because the convening authority’s clemency action contained a technical deficiency that could theoretically work to Appellant’s detriment sometime in the future, he is entitled to a new action. In agreeing, the Court not only takes an overly technical view, but eschews a more efficient disposition, ignores the substantial prejudice test of Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), and gratuitously applies an unnecessarily paternalistic standard that will, presumably, be applied henceforth to scrivener’s errors in the actions of all convening authorities.

For these reasons, I respectfully dissent.

A. Theoretical Prejudice

The Court is being overly technical when it requires the convening authority to take additional action on adjudged forfeitures before there may be a waiver and the payment of waived forfeitures to Appellant’s dependents. There is no evidence that Appellant’s dependents did not receive the waived forfeitures. There is no prejudice to Appellant or his family members based on the action taken in this case by the Court of Criminal Appeals. Even if, as Appellant alleges, Department of Defense guidance permits recoupment of improperly waived forfeitures from his dependents, such action is entirely speculative, rendering the Court’s “remedy” prospective, rather than curative. In order for the possible prejudice alleged by Appellant to exist, some parsimonious fiscal officer of the government would have to (1) scrutinize United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002), apply it to these facts, and decide that, because the convening authority didn’t say the magic words, the waived forfeitures were “an erroneous payment”;¹ (2) disregard both the convening authority’s intention to waive the mandatory forfeiture of pay and allowances . . . for the benefit of appellant’s dependents”;² and (3) initiate an involuntary collection of the “erroneous payment,” even though there was a perfectly lawful basis for the waived forfeitures to have been paid.

Emminizer is not inconsistent with the view I take. In Emminizer, the Court held that the appellant was prejudiced because the convening authority did not waive the adjudged forfeitures because of the misadvice by the staff judge advocate (SJA). Appellant was clearly prejudiced in that case by the SJA’s action in not spelling out the alternatives that would have allowed a waiver of the forfeitures and payments to the appellant’s dependents. Here, there was no prejudice because there was a waiver of forfeitures.

B. A Simpler Cure

Even assuming error and prejudice, judicial economy demands that we cure the error in our decretal paragraph, or direct that a service court do so, rather than burdening SJAs and convening authorities with execution and review of new actions to cure trivial errors. The convening authority plainly intended to direct payment of the full measure of Appellant’s pay and allowances to his dependents for six months. To achieve that end, the convening authority could either have disapproved or suspended adjudged forfeitures, with either action having the same effect today. Knowing that, and assuming both error and prejudice, we should simply disapprove adjudged forfeitures. We have not hesitated in the past to cure errors arising from imposition of forfeitures pursuant to Article 58b, and we need not do so now.³

C. Unnecessary Legal Test

The order unnecessarily and unwisely expands the applicability of a low threshold test for prejudice previously applied only to errors relating to fairness in the process of recommending and approving an appropriate, clement sentence. The majority’s application, without explanation, of the “colorable showing of possible prejudice”⁴ test to administrative or typographical errors in a convening authority’s action, ignores the Article 59(a) test that there must be error that “materially prejudices the substantial rights of the accused.” The majority’s action is tantamount to chumming for a fish that may be bigger than your boat.

_{-----------------------}

¹ DoD Financial Management Regulation, February 2001, at Volume 7A, Chapter 48, paragraph 480105.

² United States v. Lajaunie, ACM 35104 (A.F.Ct.Crim. App. 2003).

³ United States v. Gorski, 47 M.J. 370 (C.A.A.F. 1997).

⁴ United States v. Chatman, 46 M.J. 321 (C.A.A.F. 1997).

_{------------------------}

No. 04-0113/AF. U.S. v. Rodriguez L. MEDINA. CCA 34783. On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s order in United States v. Lajaunie, ___ M.J. ___ (C.A.A.F. 2004), said petition is granted on the following issues:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER ARTICLE 66(c), UCMJ, BY AFFIRMING A SENTENCE THAT IT ACKNOWLEDGED WAS NOT "TECHNICALLY" CORRECT IN LAW AND FACT AND WAS GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING AUTHORITY.

That the decision of the United States Air Force Court of Criminal Appeals and the convening authority’s action are set aside; and

That the record of trial is returned to the Judge Advocate General of the Air Force for remand to a convening authority for a new action consistent with this Court’s decision in United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002).

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my dissenting opinion in United States v. Lajaunie, ___ M.J. ___ (C.A.A.F. 2004)(Crawford, C.J., dissenting).

No. 04-0169/AF. U.S. v. Gregory L. PARKER. CCA 34430. On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s order in United States v. Lajaunie, __ M.J. ___ (C.A.A.F. 2004), said petition is granted on the following issues:

That the decision of the Air Force Court of Criminal Appeals and the convening authority’s action are set aside; and

That the record of trial is returned to the Judge Advocate General of the Air Force for remand to a convening authority for a new action in light of this Court’s decision in United States v. Emminizer, 56 M.J. 441 (C.A.A.F. 2002).

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my dissenting opinion in United States v. Lajaunie, ___ M.J. ___ (C.A.A.F. 2004)(Crawford, C. J., dissenting).

No. 04-0310/AF. U.S. v. Michael A. VAN BIBBER. CCA S30119. On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s order in United States v. Lajaunie, __ M.J. ___ (C.A.A.F. 2004), said petition is granted on the following issue:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS EXCEEDED ITS AUTHORITY UNDER ARTICLE 66(c) UCMJ, BY AFFIRMING A SENTENCE THAT WAS NOT CORRECT IN LAW AND FACT AND WAS GREATER THAN THAT INTENDED TO BE APPROVED BY THE CONVENING AUTHORITY.

That the decision of the Air Force Court of Criminal Appeals and the convening authority’s action are set aside; and

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my dissenting opinion in United States v. Lajaunie, ___ M.J. ___ (C.A.A.F. 2004)(Crawford, C. J., dissenting).

No. 04-0311/AF. U.S. v. Delvin J. BARNES. CCA 35048. On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s order in United States v. Lajaunie, __ M.J. ___ (C.A.A.F. 2004), said petition is granted on the following issue:

That the decision of the Air Force Court of Criminal Appeals and the convening authority’s action are set aside; and

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my dissenting opinion in United States v. Lajaunie, ___ M.J. ___ (C.A.A.F. 2004)(Crawford, C. J., dissenting).

No. 04-0312/AF. U.S. v. Ronald W. WENSLEY. CCA 35116. On consideration of Appellant’s petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and in light of this Court’s order in United States v. Lajaunie, __ M.J. ___ (C.A.A.F. 2004), said petition is granted on the following issue:

That the decision of the Air Force Court of Criminal Appeals and the convening authority’s action are set aside; and

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my dissenting opinion in United States v. Lajaunie, ___ M.J. ___ (C.A.A.F. 2004)(Crawford, C. J., dissenting).

Tuesday, July 20, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 04-0318/AR. U.S. v. Ronald E. V. LAYTON. CCA 20010270. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is hereby granted and the decision of the United States Army Court of Criminal Appeals is affirmed.

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0238/AF. U.S. v. John C. HARRIS. CCA 34918. Review granted on the following issue:

WHETHER APPELLANT SHOULD BE GRANTED A NEW TRIAL BECAUSE HE SUFFERED FROM A SEVERE MENTAL DISEASE AT THE TIME OF HIS OFFENSES THAT RENDERED HIM UNABLE TO APPRECIATE THE NATURE AND QUALITY OF THE WRONGFULNESS OF HIS ACTIONS.

No. 04-0348/AR. U.S. v. Justin L. BROOKS. CCA 20000901. Review granted on the following issue:

WHETHER APPELLANT'S CONVICTION FOR ATTEMPTING TO PERSUADE AN INDIVIDUAL UNDER THE AGE OF EIGHTEEN YEARS TO ENGAGE IN AN ACT OF CRIMINAL SEXUAL MISCONDUCT (SPECIFICATION 2 OF CHARGE I) IS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE WHERE THERE IS NO EVIDENCE THAT ANY PERSON UNDER EIGHTEEN YEARS OF AGE, OR A PERSON PRETENDING TO BE UNDER EIGHTEEN YEARS OF AGE, WAS EVER PERSUADED, INDUCED, ENTICED, OR COERCED TO ENGAGE IN AN ACT OF CRIMINAL SEXUAL MISCONDUCT.

Thursday, July 15, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 04-0338/AR. U.S. v. Erik G. KING. CCA 20021298. On consideration of Appellant’s petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted on the following issue personally raised by Appellant and modified by the Court:

WHETHER FURTHER FACTFINDING IS NECESSARY WHERE:

(1) APPELLANT HAS ALLEGED THAT HIS TRIAL DEFENSE COUNSEL:

(A) DISCOURAGED HIM FROM ENTERING INTO A PRETRIAL AGREEMENT THAT INCLUDED A 24-MONTH CAP ON CONFINEMENT; (B) ENCOURAGED HIM TO INSTEAD PLEAD GUILTY WITHOUT THE BENEFIT OF A PRETRIAL AGREEMENT; AND (C) GAVE HIM A PERSONAL GUARANTEE THAT THE MILITARY JUDGE WOULD NOT IMPOSE MORE THAN EIGHT MONTHS OF CONFINEMENT;

(2) THE MILITARY JUDGE SENTENCED APPELLANT TO CONFINEMENT FOR THREE YEARS, A BAD-CONDUCT DISCHARGE, AND REDUCTION TO PAY GRADE E-1; AND

(3) THE CONVENING AUTHORITY APPROVED THE SENTENCE AS ADJUDGED.

The decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court to obtain an affidavit from the trial defense counsel responding to Appellant’s allegation of ineffective assistance of counsel. In the course of conducting its new review under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c) (2000), the Court of Criminal Appeals shall review the trial defense counsel’s affidavit and any other relevant matters. See

United States

v. Ginn, 47 M.J. 236 (C.A.A.F. 1997). Thereafter, Article 67, UCMJ, 10 U.S.C. § 867 (2000), shall apply.

Wednesday, July 07, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0646/AR. U.S. v. Michael S. FARLEY. CCA 20001079. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN FINDING THAT APPELLANT'S DECISION TO PLEAD GUILTY AT TRIAL WAIVED HIS FIFTH AND SIXTH AMENDMENT RIGHTS RETROACTIVELY WITH RESPECT TO INTERVIEWS CONDUCTED WHILE IN PRETRIAL CONFINEMENT AND LATER USED DURING THE SENTENCING PHASE OF HIS TRIAL.

Tuesday, June 29, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 02-0593/AF. U.S. v. Kenneth L. KNIGHT. CCA 34473. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 02-0772/NA. U.S. v. Clyde E. RICHARDSON. CCA 200000047. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that said petition is granted on the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRONEOUSLY SUSTAINED APPELLANT’S CONVICTIONS UNDER 18 U.S.C. § 2252 AS HIS PLEAS WERE IMPROVIDENT IN LIGHT OF THE SUPREME COURT’S RECENT HOLDING IN ASHCROFT v. FREE SPEECH COALITION.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals as to Specification 3 of the Charge and the sentence is reversed, but is affirmed in all other respects. The finding of guilty of Specification 3 of the Charge and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy for remand to the Court of Criminal Appeals. That Court may either dismiss Specification 3 of the Charge and reassess the sentence based on the affirmed guilty findings or order a rehearing.

CRAWFORD, Chief Judge (concurring in part, dissenting in part): As to Appellant’s conviction for violating 18 U.S.C. § 2252A [Specification 3], I dissent for the reasons set forth in Sections A and B of my separate opinion in United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003) (Crawford, C.J., dissenting). As to Appellant’s conviction for violating 18 U.S.C. § 2252 [Specifications 1 and 2], I concur.

No. 02-0827/AF. U.S. v. Troy S. LOWRANCE. CCA 34996. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that said petition is granted on the following issue:

WHETHER THE MILITARY JUDGE COMMITTED PREJUDICIAL LEGAL ERROR WHEN HE PROVIDED AN INCOMPLETE DEFINITION OF “CHILD PORNOGRAPHY” WHILE INSTRUCTING APPELLANT ON THE ELEMENTS TO THE OFFENSES AND WHETHER APPELLANT’S GUILTY PLEA TO KNOWINGLY POSSESSING AND TRANSPORTING CHILD PORNOGRAPHY MUST BE SET ASIDE.

No. 03-0255/MC. U.S. v. Christopher L. KITCHEN. CCA 200100456. On consideration of the issue granted review by this Court on July 9, 2003, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

No. 03-0465/AR. U.S. v. Chad E. COOK. CCA 01-0939. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT’S GUILTY PLEA UNDER THE CHILD PORNOGRAPHY ACT CONSTITUTED A KNOWING AND INTELLIGENT WAIVER OF HIS DUE PROCESS RIGHTS WHEN NEITHER THE APPELLANT NOR THE MILITARY JUDGE UNDERSTOOD WHAT BEHAVIOR WAS PROSCRIBED BY THE ACT.

Appellant pleaded guilty to violating 18 U.S.C. § 2252A (2000), portions of which were subsequently held to be unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The military judge’s plea inquiry made no reference to those portions, however, and focused Appellant’s attention on the portions of the statute subsequently held to be constitutional. Appellant’s responses were directed towards the portions of the statute subsequently held to be constitutional, and there is no substantial basis in law and fact for questioning the providence of his guilty plea. O’Connor, 58 M.J. at 454. The decision of the United States Army Court of Criminal Appeals is affirmed.

No. 03-0605/NA. U.S. v. Allen L. DOOLEY. CCA 99-1020. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that said petition is granted on the following issue:

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED IN AFFIRMING APPELLANT’S CONVICTION BASED ON OVERBROAD AND UNCONSTITUTIONAL DEFINITIONS OF CHILD PORNOGRAPHY.

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed and the findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy for further action consistent with this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003) A rehearing may be ordered.

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my separate opinion in United States v. Thompson, 57 M.J. 319 (C.A.A.F. 2002) (Crawford, C.J., dissenting), and Section A of my separate opinion in United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003)(Crawford, C.J., dissenting).

No. 03-0632/AR. U.S. v. Jeremy L. KLOBERDANZ. CCA 20020999. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that said petition is granted. Appellant pled guilty to violating 18 U.S.C. § 2252A (2000), portions of which were held to be unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The military judge’s plea inquiry made no reference to those portions and did not otherwise discuss the issue of constitutionality, but instead focused Appellant’s attention on the portions of the statute held to be constitutional in Free Speech Coalition. Appellant’s responses were directed towards the portions of the statute held to be constitutional in Free Speech Coalition and he also stipulated as to the “actual” character of the images of child pornography at issue. O’Connor, 58 M.J. at 454. There is no substantial basis in law and fact for questioning the providence of Appellant’s guilty plea, and the decision of the United States Army Court of Criminal Appeals is affirmed.

No. 03-0661/MC. U.S. v. Villamor B. HABON. CCA 200200750. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed. It is further directed that the promulgating order be corrected to include a summary of the specifications on which Appellant was arraigned as required by R.C.M. 1114(c)(1).

No. 04-0014/NA. U.S. v. James A. HENSON. CCA 200100964. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted. Appellant pleaded guilty under Specification 6 of Charge II to violating 18 U.S.C. § 2252A (2000), portions of which were subsequently held to be unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The military judge’s plea inquiry made no reference to those portions, however, and focused Appellant on the portions of the statute subsequently held to be constitutional. Appellant’s responses were directed towards the portions of the statute subsequently held to be constitutional, and there is no substantial basis in law and fact for questioning the providence of his guilty plea. O’Connor, 58 M.J. at 454. The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

It is further directed that Specification 7 of Charge II on the promulgating order be corrected to reflect “18 United States Code § 2252(a)(2).”

No. 04-0162/AR. U.S. v. Kevin B. JERSHUN. CCA 20020571. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted. Appellant pleaded guilty to violating 18 U.S.C. § 2252A (2000), portions of which were held to be unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The military judge’s plea inquiry made no reference to those portions and did not otherwise discuss the issue of constitutionality, but instead focused Appellant’s attention on the portions of the statute held to be constitutional in Free Speech Coalition. Appellant’s responses were directed toward the portions of the statute held to be constitutional in Free Speech Coalition and he also stipulated as to the “actual” character of the images of child pornography at issue. O’Connor, 58 M.J. at 454. There is no substantial basis in law and fact for questioning the providence of Appellant’s guilty plea, and the decision of the United States Army Court of Criminal Appeals is affirmed.

No. 04-0189/AR. U.S. v. Lee E. MOON. CCA 20020175. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), said petition is granted. Appellant pleaded guilty to violating 18 U.S.C. § 2252A (2000), portions of which were held to be unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). The military judge’s plea inquiry made no reference to those portions and did not otherwise discuss the issue of constitutionality, but instead focused Appellant’s attention on the portions of the statute held to be constitutional in Free Speech Coalition. Appellant’s responses were directed toward the portions of the statute held to be constitutional in Free Speech Coalition and he also stipulated as to the “actual” character of the images of child pornography at issue. O’Connor, 58 M.J. at 454. There is no substantial basis in law and fact for questioning the providence of Appellant’s guilty plea, and the decision of the United States Army Court of Criminal Appeals is affirmed.

No. 04-0211/AF. U.S. v. Jerry J. DROEDER. CCA 35100. On consideration of Appellant’s petition for grant of review, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that said petition is granted on the following issue:

WHETHER APPELLANT’S PLEA OF GUILTY TO OFFENSES UNDER 18 U.S.C. § 2252A WAS IMPROVIDENT BECAUSE HE HAD AN INCOMPLETE UNDERSTANDING OF THE OFFENSES WHEN THE MILITARY JUDGE EXPLAINED THE OFFENSES USING THE UNCONSTITUTIONALLY VAGUE AND OVERBROAD DEFINITIONS OF CHILD PORNOGRAPHY CONTAINED IN 18 U.S.C. § 2256.

The decision of the United States Air Force Court of Criminal Appeals is reversed, and the findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further action consistent with this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003) A rehearing may be ordered.

CRAWFORD, Chief Judge (dissenting): As to Appellant’s conviction for violating 18 U.S.C. § 2252A (2000), I dissent for the reasons set forth in Sections A, B, and C of my separate opinion in United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003)(Crawford, C.J., dissenting).

CERTIFICATES FOR REVIEW FILED

No. 04-5006/AR. U.S. v. William J. KREUTZER. CCA 9601044. The Judge Advocate General, United States Army, requests that action be taken with respect to the following issue:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT FOUND DENIAL OF A MITIGATION SPECIALIST TO BE PREJUDICIAL ERROR FOR FINDINGS WHEN THE SAME OPINION ALSO FOUND THAT ALL EVIDENCE THE MITIGATION SPECIALIST WOULD HAVE DISCOVERED DID NOT HAVE A REASONABLE PROBABILITY OF PRODUCING A DIFFERENT RESULT.

Thursday, June 24, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 98-0497/NA. U.S. v. Charles W. DAVIS. CCA 9600585. Review granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS CORRECTLY DETERMINED AFTER THE DUBAY HEARING THAT APPELLANT WAS NOT DENIED HIS SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL DURING SENTENCING.

No. 04-0218/MC. U.S. v. Paul A. RICHARDSON. CCA 200101917. Review granted on the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE MILITARY JUDGE DID NOT ABUSE HIS DISCRETION DURING VOIR DIRE BY APPLYING AN "ACTUAL BIAS" STANDARD TO DENY THE DEFENSE'S THREE "IMPLIED BIAS" CHALLENGES AND BY PREVENTING THE DEFENSE FROM FULLY DEVELOPING THE FACTS TO SUPPORT THE CHALLENGES TO MEMBERS WHO WERE OR HAD BEEN TRIAL COUNSEL'S CLIENTS.

Monday, June 21, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0250/AR. U.S. v. Jonathan G. SCALO. CCA 20020624. Review granted on the following issue specified by the Court:

WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT THE STAFF JUDGE ADVOCATE'S FAILURE TO ADVISE THE CONVENING AUTHORITY OF THE NATURE AND DURATION OF APPELLANT'S PRETRIAL RESTRAINT DID NOT CONSTITUTE PREJUDICIAL ERROR.

Thursday, June 17, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0119/AF. U.S. v. Anthony W. WARNER. CCA 34716. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT'S MOTION FOR APPROPRIATE RELIEF SEEKING A FULLY COMPETENT EXPERT CONSULTANT.

II. WHETHER THE GOVERNMENT VIOLATED ARTICLE 46, RULE FOR COURTS-MARTIAL 703, AND THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION BY ALLOWING THE ASSISTANT TRIAL COUNSEL TO SELECT THE DEFENSE EXPERT CONSULTANT AND PROVIDE ADVERSE EX PARTE ADVICE TO THE CONVENING AUTHORITY CONCERNING THE DEFENSE REQUEST FOR AN EXPERT CONSULTANT.

No. 04-0284/AF. U.S. v. Allan P. JAMES. CCA 34863. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ERRED TO THE PREJUDICE OF APPELLANT'S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BY REFUSING TO PERMIT DEFENSE COUNSEL TO EXPLORE THE POTENTIAL BIAS OF PROSECUTION WITNESSES ARISING FROM PROMISES BY THE GOVERNMENT TO LIMIT PUNISHMENT OF THE WITNESSES IN EXCHANGE FOR COOPERATION WITH THE GOVERNMENT IN THE PROSECUTION OF APPELLANT.

II. WHETHER THE MILITARY JUDGE ERRED IN GRANTING THE PROSECUTION'S CHALLENGE FOR CAUSE (OVER DEFENSE OBJECTION) AGAINST A COURT MEMBER.

Tuesday, June 15, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0177/NA. U.S. v. John M. LYDY. CCA 200200005. Review granted on the following issue:

No. 04-0295/AR. U.S. v. Eric MCNUTT. CCA 20020022. Review granted on the following issues:

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN HOLDING THAT THERE WAS NO EVIDENCE OF EXTRANEOUS PREJUDICIAL INFORMATION IMPROPERLY BROUGHT TO THE ATTENTION OF THE SENTENCING AUTHORITY AND NO BASIS FOR IMPEACHING APPELLANT'S SENTENCE UNDER MIL.R.EVID. 606(b).

II. WHETHER THE MILITARY JUDGE ERRED IN CONSIDERING THE COLLATERAL ADMINISTRATIVE EFFECT OF THE ARMY REGIONAL CORRECTIONAL FACILITIES' POLICY OF GRANTING A SERVICE MEMBER FIVE DAYS OF CONFINEMENT CREDIT PER MONTH FOR SENTENCES WHICH INCLUDE LESS THAN TWELVE MONTHS OF CONFINEMENT IN ADJUDGING APPELLANT'S SENTENCE.

No. 04-0382/AF. U.S. v. Patrick A. MIZGALA. CCA 34822. Review granted on the following issues:

I. WHETHER APPELLANT'S ARTICLE 10, UCMJ, RIGHT TO A SPEEDY TRIAL WAS WAIVED BY AN UNCONDITIONAL GUILTY PLEA IF THE GOVERNMENT DID NOT BRING APPELLANT TO TRIAL WITH REASONABLE DILIGENCE, TRIAL DEFENSE COUNSEL LITIGATED THE MATTER AT TRIAL, AND APPELLANT DID NOT AFFIRMATIVELY WAIVE HIS RIGHT TO A SPEEDY TRIAL.

II. WHETHER APPELLANT'S ARTICLE 10, UCMJ, RIGHT TO A SPEEDY TRIAL WAS VIOLATED IF THE GOVERNMENT DID NOT BRING APPELLANT TO TRIAL WITH REASONABLE DILIGENCE.

Thursday, June 10, 2004

CERTIFICATES FOR REVIEW FILED

No. 04-5005/NA. United States, Appellant, v. Todd R. FORBES, Appellee. CCA 9901454. The Judge Advocate General, United States Navy, requests that action be taken with respect to the following issues:

I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THE MILITARY JUDGE COMMITTED REVERSIBLE ERROR BY GIVING THE STANDARD INSTRUCTION ON APPELLEE’S SILENCE OVER APPELLEE’S OBJECTION WHEN THE MILITARY JUDGE BELIEVED THE INSTRUCTION WAS NECESSARY TO PREVENT THE MEMBERS FROM QUESTIONING APPELLEE’S SILENCE AND HOLDING IT AGAINST HIM.

II. SHOULD THE COURT FIND THE MILITARY JUDGE DID ERR, WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED WHEN IT HELD THERE WAS A PRESUMPTION OF PREJUDICE FOR THIS INSTRUCTIONAL ERROR, REQUIRING AUTOMATIC REVERSAL UNLESS THE GOVERNMENT REBUTS THE PRESUMPTION BY A PREPONDERANCE OF THE EVIDENCE.

Wednesday, June 09, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 01-0403/AF. U.S. v. Barry V. O’CONNOR. CCA 33671. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, said petition is granted and the decision of the United States Air Force Court of Criminal Appeals is affirmed.

No. 02-0801/AR.

U.S.

v. Ann M. BRENNAN. CCA 20000401. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted and the decision of the United States Army Court of Criminal Appeals is affirmed.1/

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0217/AF. U.S. v. Richard ISRAEL, Jr. CCA 34877. Review granted on the following issue:

WHETHER APPELLANT WAS DENIED MEANINGFUL CROSS-EXAMINATION OF KEY GOVERNMENT WITNESSES IN VIOLATION OF THE SIXTH AMENDMENT WHERE THE MILITARY JUDGE PREVENTED TRIAL DEFENSE COUNSEL FROM CONFRONTING THE WITNESSES WITH MATERIAL IMPEACHMENT EVIDENCE.

No. 04-0240/AR. U.S. v. Bartholomew M. BERRY. CCA 20000960. Review granted on the following issue:

WHETHER THE MILITARY JUDGE ERRED IN ADMITTING EVIDENCE OF UNCHARGED HOMOSEXUAL ACTS BETWEEN APPELLANT WHEN HE WAS THIRTEEN YEARS OLD, AND A SIX-YEAR-OLD BOY, EIGHT YEARS BEFORE THE CHARGED OFFENSE OF FORCIBLE SODOMY WITH AN ADULT SOLDIER.

No. 04-0340/MC. U.S. v. Michael D. BAIER. CCA 02-0476. Review granted on the following issue:

WHETHER THE COURT OF CRIMINAL APPEALS, IN RELYING ON UNITED STATES V. ROJAS, 15 M.J. 902 (N-M.C.M.R. 1983) AND UNITED STATES V. USRY, 9 M.J. 701 (N-M.C.M.R. 1980), APPLIED THE CORRECT LEGAL STANDARD IN REVIEWING APPELLANT'S SENTENCE APPROPRIATENESS ARGUMENT.

1/ Judge Gierke did not participate.

Tuesday, June 08, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0081/AF. U.S. v. Mathew P. SCHEURER. CCA 34866. Review granted on the following issues raised by appellate defense counsel:

I. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS IMPROPERLY CONDUCTED ITS APPELLATE REVIEW UNDER ARTICLE 66(C), UCMJ, BY CONSIDERING EVIDENCE OUTSIDE THE RECORD IN VIOLATION OF UNITED STATES v. HOLT, 58 M.J. 227 (C.A.A.F. 2003).

II. WHETHER THE MILITARY JUDGE IMPROPERLY DEPRIVED APPELLANT OF HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION BY ADMITTING AN ACCOMPLICE'S STATEMENTS WITHOUT REQUIRING THAT ALL REFERNCES TO APPELLANT BE REDACTED.

III. WHETHER THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUSTAIN APPELLANT'S CONVICTION UNDER ARTICLE 111, UCMJ, WHERE THE PROSECUTION DID NOT PRESENT EVIDENCE THAT APPELLANT PHYSICALLY CONTROLLED A VEHICLE WHILE IMPAIRED.

And the following issue specified by the Court:

IV. WHETHER, IN LIGHT OF UNITED STATES v. WALTERS, 58 M.J. 391 (C.A.A.F. 2003), THE FINDINGS OF GUILTY TO SPECIFICATIONS 3 AND 5 OF THE ORIGINAL CHARGE AND ADDITIONAL CHARGE I AND ITS SUPPORTING SPECIFICATION MAY BE AFFIRMED ON APPEAL WHERE THE FACT FINDER EXCEPTED THE PHRASE "ON DIVERS OCCASIONS" AND SUBSTITUTED NOTHING IN ITS PLACE.

Monday, May 24, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 03-0645/AR. U.S. v. Joshua O. BYNUM. CCA 20001020. On consideration of the granted issue in this case, 59 M.J. 399 (C.A.A.F. 2004), and in light of this Court’s decision in United States v. Quick, 50 M.J. 383 (C.A.A.F. 2004), it is ordered that the decision of the United States Army Court of Criminal Appeals is affirmed.

Monday, May 17, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 04-0101/AR. U.S. v. Adrian L. NICHOLS. CCA 200010735. On further consideration of the granted issue, 59 M.J. 346 (C.A.A.F. 2004), the decision of the United States Army Court of Criminal Appeals is affirmed.

Thursday, May 13, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0208/AR. U.S. v. Keith L. WILLIAMS, Jr. CCA 20020327. Review granted on the following issue modified by the Court:

WHETHER THE TRIAL COUNSEL AND STAFF JUDGE ADVOCATE UNLAWFULLY BREACHED THE PRETRIAL AGREEMENT BECAUSE APPELLANT WAS NOT AFFORDED A REASONABLE OPPORTUNITY TO COMPLY WITH THE RESTITUTION PROVISION AFTER HE WAS GIVEN NOTICE OF THE AMOUNT OF SAID RESTITUTION AND BECAUSE THE CONVENING AUTHORITY DID NOT PERSONALLY MAKE THE DECISION TO WITHDRAW.

Wednesday, May 12, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0655/MC. U.S. v. Keith W. STROTHER. CCA 200000050. Review granted on the following issue:

WHETHER THE LOWER COURT ERRED IN UPHOLDING THE MILITARY JUDGE'S DENIAL OF A DEFENSE MOTION TO REMOVE THE TRIAL COUNSEL, WHO HAD ACTED AS THE CASE INVESTIGATOR AND COMMAND LEGAL ADVISOR, WHILE IN THE POSITION OF STAFF JUDGE ADVOCATE.

No. 03-0694/AR. U.S. v. Darrell L. SHELTON. CCA 9900816. Review granted on the following issue raised by appellate defense counsel:

I. WHETHER APPELLANT'S FIFTH AMENDMENT RIGHT TO DUE PROCESS AND SIXTH AMENDMENT RIGHT TO COMPULSORY PROCESS WERE VIOLATED WHEN THE MILITARY JUDGE REFUSED TO ORDER PRODUCTION OF WITNESSES WHO WERE NECESSARY AND MATERIAL TO THE DEFENSE.

And the following issue specified by the Court:

II. WHETHER THE SPECIFICATION UNDER CHARGE I OF WHICH APPELLANT WAS CONVICTED, CONSPIRACY TO COMMIT UNPREMEDITATED MURDER, STATES AN OFFENSE UNDER THE UNIFORM CODE OF MILITARY JUSTICE.

No. 04-0241/AF. U.S. v. Gregory S. MOSES. CCA S30336. Review granted on the following issue:

WHETHER APPELLANT'S PLEA OF GUILTY TO VIOLATING ARTICLE 125, UCMJ, BY ENGAGING IN CONSENSUAL SODOMY WITH SOMEONE HE BELIEVED WAS 16 AT THE TIME OF THE OFFENSE (CHARGE I AND ITS SPECIFICATION) MUST BE RENDERED IMPROVIDENT IN LIGHT OF THE UNITED STATES SUPREME COURT'S HOLDING IN LAWRENCE V. TEXAS, 123 S.CT. 2472 (2003).

Thursday, May 06, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0216/AF. U.S. v. Carl L. KEY. CCA 34965. Review granted on the following issue:

WHETHER APPELLANT IS ENTITLED TO POST-TRIAL DISCOVERY IN ORDER TO DETERMINE WHETHER HE IS ENTITLED TO A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE THAT THE PRIMARY PROSECUTION WITNESS WAS PAID BY THE AIR FORCE OFFICE OF SPECIAL INVESTIGATIONS FOR HER TESTIMONY.

Friday, April 30, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 03-0412/AF. U.S. v. Barry L. HAMILTON. CCA 35053. On _{consideration of
Appellant's petition for grant of
review of the decision of the United States Air Force Court of Criminal
Appeals, and in light of this Court's decision in United States v.
O'Connor,
58 M.J. 450 (C.A.A.F. 2003), said petition is granted on the following
issue:}

_{WHETHER APPELLANT'S GUILTY
PLEAS TO THE CHARGE AND ITS SPECIFICATION MUST BE SET ASIDE BECAUSE HIS
PLEAS
TO POSSESSING CHILD PORNOGRAPHY UNDER 18 U.S.C. § 2252A WERE BASED
ON A
DEFINITION OF CHILD PORNOGRAPHY THAT HAS BEEN PARTIALLY INVALIDATED BY
THE
UNITED STATES SUPREME COURT.}

_{The decision
of the United States Air Force Court of Criminal Appeals is reversed
and the
findings of guilty and the sentence are set aside.
The record of trial is returned to the Judge
Advocate General of the Air Force for further action consistent with
this Court's
decision in United States v. O'Connor, 58 M.J. 450 (C.A.A.F.
2003). A rehearing may be ordered. [See also ORDERS GRANTING PETITION FOR REVIEW
this date.]}

_{CRAWFORD, Chief Judge (dissenting):}

_{I dissent
for the reasons set forth in Sections A and B of my separate opinion in
United
States v. O'Connor, 58 M.J. 450, 455-57 (C.A.A.F. 2003) (Crawford,
C.J.,
dissenting).}

No. 03-0500/AR. U.S. v. Thomas E. CARLSON. CCA 9901060. On _{consideration of
Appellant's petition for grant of
review of the decision of the United States Army Court of Criminal
Appeals, and
in light of this Court's decision in United States v. O'Connor,
58 M.J.
450 (C.A.A.F. 2003), said petition is granted on the following issues:}

_{I. WHETHER THE FINDINGS OF GUILTY OF
SPECIFICATIONS 3, 4 AND 6 OF THE CHARGE CAN BE AFFIRMED IN LIGHT OF ASHCROFT
v. FREE SPEECH COALITION, 535}_U.S._{234 (2002) AND UNITED
STATES v. O’CONNOR, 58 M.J. 450 (C.A.A.F. 2003).}

_{II. WHETHER THE
ARMY COURT OF CRIMINAL
APPEALS ERRED WHEN IT FOUND THAT EACH OF THE IMAGES IN QUESTION WAS A
"VISUAL DEPICTION OF A REAL MINOR ENGAGED IN SEXUALLY EXPLICIT CONDUCT
WITHIN THE MEANING OF 18 U.S.C. § 2256(8)(A)" WHEN THERE WAS NO
FACTUAL
BASIS FOR ITS FINDING.}

_{Regarding
Issue II, the Court of Criminal Appeals erred in "find[ing]"
that any of the images at issue were visual depictions of a "real
minor" for purposes of 18 U.S.C. § 2256(8)(A).
The scope of the lower court's factfinding
authority under Article 66(c), UCMJ, 10 U.S.C.
§ 866(c), does not extend to making a "finding of fact" of that
nature in the context of a guilty plea, where no aspect of either the
plea
colloquy or the stipulation of fact is directed toward the character of
the
images as depicting "real" or "virtual" minors.}

_{Therefore, the decision of the United States Army Court of
Criminal
Appeals is reversed as to Specifications 3, 4, and 6 of the Charge and
the
sentence, but is affirmed in all other respects. The
findings as to Specifications 3, 4, and 6
of the Charge and the sentence are set aside.
The record of trial is returned to the Judge Advocate General of
the
Army for remand to a convening authority for a rehearing on
Specifications 3,
4, and 6 of the Charge and the sentence.
If a rehearing on Specifications 3, 4, and 6 is deemed
impracticable,
the specifications may be dismissed and a rehearing on sentence alone
will be
conducted. Thereafter, Articles 66 and
67, UCMJ, 10 U.S.C. § 866 and 867, will apply.
[See also ORDERS GRANTING PETITION FOR REVIEW this date.]}

CRAWFORD, Chief Judge (dissenting): I would dissent as to Issue I based on sections A and B of my dissent in United States v. O'Connor, 58 M.J. 450, 455-57 (C.A.A.F. 2003). I also dissent on Issue II because the Court of Criminal Appeals properly applied its factfinding power under Article 66(c), UCMJ.

Thursday, April 29, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0647/AR. U.S. v. Ray T. LEAK. CCA 20000356. Review granted on the following issue raised by appellate defense counsel:

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED BY CONVICTING APPELLANT OF THE GREATER OFFENSE OF MALTREATMENT AND ITS LESSER-INCLUDED OFFENSE OF A VIOLATION OF A SIMPLE DISORDER BASED ON THE SAME FACTS.

And the following issues specified by the Court:

II. WHETHER THIS COURT HAS JURISDICTION TO ACT WITH RESPECT TO A FINDING SET ASIDE BY A COURT OF CRIMINAL APPEALS AS FACTUALLY INSUFFICIENT? SEE ARTICLE 67(c), 10 U.S.C. § 867(c) (2000).

III. WHETHER A COURT OF CRIMINAL APPEALS’ FINDING OF FACTUAL INSUFFICIENCY PRECLUDES REINSTATEMENT OF THE AFFECTED FINDING OF GUILTY ON DOUBLE JEOPARDY GROUNDS? SEE UNITED STATES V. RILEY, 55 M.J. 185, 188 (C.A.A.F. 2001); UNITED STATES v. CRIDERS, 22 C.M.A. 108, 111, 46 C.M.R. 108, 111 (1973).

No. 04-0042/AR. U.S. v. Shapour MEGHDADI. CCA 20000029. Review granted on the following issue raised by appellate defense counsel:

I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT DENIED APPELLANT’S REQUEST FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE AND FRAUD ON THE TRIAL COURT.

And the following issues specified by the Court:

II. WHETHER APPELLANT’S FAILURE TO FILE THE PETITION FOR NEW TRIAL WITHIN THE TWO-YEAR PERIOD ESTABLISHED BY ARTICLE 73 DEPRIVED THE ARMY COURT OF CRIMINAL APPEALS OF JURISDICTION TO CONSIDER THE PETITION.

III. WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED APPELLANT’S MOTION FOR A POST-TRIAL ARTICLE 39(a) SESSION TO CONSIDER WHETHER APPELLANT SHOULD BE GRANTED A NEW TRIAL IN LIGHT OF CLAIMS OF NEWLY DISCOVERED EVIDENCE AND FRAUD ON THE COURT.

No. 04-0145/AF. U.S. v. Andrea L. REEVES. CCA 34730. Review granted on the following issue raised by appellate defense counsel and modified by the Court:

I. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT A CONVICTION FOR OBSTRUCTION OF JUSTICE WHERE: (1) APPELLANT HAD BEEN ENGAGED IN AN IMPROPER RELATIONSHIP WITH A JUNIOR ENLISTED MEMBER; (2) APPELLANT ADVISED THE JUNIOR ENLISTED MEMBER NOT TO SPEAK WITH LAW ENFORCEMENT PERSONNEL; (3) ALTHOUGH NOT ALLEGED IN THE SPECIFICATION, APPELLANT ALSO ADVISED THE JUNIOR ENLISTED MEMBER TO CONSULT WITH MILITARY DEFENSE COUNSEL; AND (4) ALTHOUGH NOT ALLEGED IN THE SPECIFICATION, APPELLANT SENT THE JUNIOR ENLISTED MEMBER $200 TO ASSIST HER WITH FINANCIAL DIFFICULTIES.

And the following issue specified by the Court:

II. WHETHER, AS A MATTER OF LAW, APPELLANT MAY BE FOUND GUILTY OF OBSTRUCTION OF JUSTICE WHERE: (1) APPELLANT HAD BEEN ENGAGED IN AN IMPROPER RELATIONSHIP WITH A JUNIOR ENLISTED MEMBER; (2) APPELLANT ADVISED THE JUNIOR ENLISTED MEMBER NOT TO SPEAK WITH LAW ENFORCEMENT PERSONNEL; (3) ALTHOUGH NOT ALLEGED IN THE SPECIFICATION, APPELLANT ALSO ADVISED THE JUNIOR ENLISTED MEMBER TO CONSULT WITH MILITARY DEFENSE COUNSEL; AND (4) ALTHOUGH NOT ALLEGED IN THE SPECIFICATION, APPELLANT SENT THE JUNIOR ENLISTED MEMBER $200 TO ASSIST HER WITH FINANCIAL DIFFICULTIES.

No. 04-0191/AR. U.S. v. Mark G. SARAZINE. CCA 20020321. Review granted on the following issue:

WHETHER APPELLANT IS ENTITLED TO TWENTY-EIGHT DAYS CREDIT AGAINST HIS TWELVE-YEAR SENTENCE FOR THE PERIOD OF PRETRIAL CONFINEMENT HE SERVED AT THE JEFFERSON COUNTY JAIL FOR THE SAME CHARGES FOR WHICH HE WAS ULTIMATELY CONVICTED AND SENTENCED. UNITED STATES V. ALLEN, 17 M.J. 126 (C.M.A. 1984); 18 U.S.C. § 3585.

No. 03-0582/NA.

U.S.

v. Robert J. HARDING. CCA 200000981. On consideration of the granted issue, 59 M.J. 223 (C.A.A.F. 2003), and in light of this Court’s decision in United States v. Kahmann, 59 M.J. 309 (C.A.A.F. 2004), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

No. 04-0066/MC.

U.S.

v. Wesley R. RUNIONS. CCA 200102075. On consideration of the granted issue, 59 M.J. 265 (C.A.A.F. 2004), and in light of this Court’s decision in United States v. Kahmann, 59 M.J. 309 (C.A.A.F. 2004), the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

No. 03-0678/AR.

U.S.

v. John H. STEBBINS. CCA 20000497. Review granted on the following issues:

II. WHETHER THE MILITARY JUDGE IMPROPERLY IMPOSED A SENTENCE THAT INCLUDED A $75,000 FINE WHERE APPELLANT WAS NOT UNJUSTLY ENRICHED BY HIS CRIMES.

No. 03-5004/CG.

U.S.

v. Sean M. TARDIF. CCA 1141. On consideration of the certified issue, 59 M.J. 17 (C.A.A.F. 2003), and in light of our previous decision in this case, 57 M.J. 219 (C.A.A.F. 2002), the certified issue is answered in the negative. Accordingly, it is ordered that the decision of the United States Coast Guard Court of Criminal Appeals, 58 M.J. 714 (C.G. Ct. Crim. App. 2003), is affirmed, except for that part of the decision that purports to affirm total forfeitures for a period of more than 24 months.

We note that upon remand, the Coast Guard Court purported to affirm “only so much of the sentence approved below as provides for a dishonorable discharge, confinement for 19 months, with credit previously granted under United States v. Allen, [17 M.J. 126 (C.M.A. 1984),] forfeiture of all pay and allowances, and reduction to paygrade E-1.” 58 M.J. at 715. While the members adjudged total forfeitures, the convening authority limited his approval of the monetary portion of the sentence to “total forfeitures for 24 months.” See Commander, Eighth Coast Guard District, General Court-Martial Order No. 1-00 (June 9, 2000).

First, I dissent for the reasons set forth in my separate opinion in United States v. Tardif, 57 M.J. 219, 225-28 (C.A.A.F. 2002)(Crawford, C.J., dissenting). In that dissent, I expressed my view that we must read Article 66(c), Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 866(c) (2000), in conjunction with Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000), and that such a reading indicates the improbability that “if Congress was asked, it would grant the authority to the Courts of Criminal Appeals to reduce sentences because of post-trial delay, even though an appellant was not prejudiced.” Id. at 227. I reiterate this point today.

The Courts of Criminal Appeals may not reduce sentences for post-trial delay without a showing of prejudice. Certainly, the Sixth Amendment to the Constitution guarantees “the right to a speedy and public trial” – a right which “is ‘fundamental’ and is imposed by the Due Process Clause of the [Fifth Amendment].” Barker v. Wingo, 407

U.S.

514, 515 (1972). An accused is guaranteed this right throughout the pretrial, trial, and appellate stages of all criminal proceedings. See

United States

v. Tucker, 9 C.M.A. 587, 589, 26 C.M.R. 367, 369 (1958). Nevertheless, an accused is entitled to relief for delay only where there has been “egregious or intentional tactical delay and actual prejudice.”

United States

v. Reed, 41 M.J. 449, 452 (C.A.A.F. 1995). Accordingly, “[u]nless there has been a substantial violation of an appellant’s rights, the Courts of Criminal Appeals may not use their supervisory authority to grant further relief to the appellant.” Tardif, 57 M.J. at 225 (Crawford, C.J., dissenting) (citing United States v. Hastings, 461

U.S.

499, 505 (1983)). By holding otherwise, the majority has overstepped its authority and essentially created an equitable power in the courts below.

This Court has affirmed the lower court’s determination to grant Appellant sentence relief for “unexplained and unreasonable” post-trial delay without requiring that Appellant show prejudice. On remand, the lower court reduced the confinement portion of the sentence from 24 months to 19 months otherwise approving the sentence. Thus, I also write separately today to illustrate the danger of departing from statutory requirements and legal norms regarding the necessity of demonstrating prejudice. To that end, I ask: If we are going to empower the lower courts to grant sentence relief for all “unexplained and unreasonable” delay, without regard to a showing of prejudice, where do we draw the line? What are the standards to determine that, first, there has been a “delay” in the post-trial processing of a case, and, second, that the delay has been “unreasonable and unexplained?” If we leave that determination to each lower court, are we not opening the door to a non-uniform application across the services? Do we apply those standards –- or any standards –- to the appellate process as well?

The majority empowered the lower court to grant Appellant sentence relief in the instant case based on the lower court’s determination that the time which elapsed between the end of trial until the forwarding of the case for appellate review constituted “unexplained and unreasonable” post-trial delay.

We also know that many appellants may endure considerable periods of time in the post-trial processing of their cases while undergoing appellate review. At what point in each case is this period of time rightfully considered a “delay,” and if so, is it an “unexplained and unreasonable” delay? Because this Court fails to require a showing of prejudice, and simply allows sentence relief for all “unexplained and unreasonable” delay, are the appellate courts not bound to evaluate the periods of time they impose on appellants during the appellate process? Or do we apply a different measuring standard to the appellate process? I fear we have started down a slippery slope by opening the door to granting relief without a showing of prejudice.

I believe these questions underscore the wisdom of Congress in requiring a showing of prejudice pursuant to Article 59(a) before authorizing courts to grant relief. Courts are well-equipped to deal with issues of material prejudice to substantial rights. They are not equipped, and indeed are not authorized under the UCMJ, to deal with administrative case processing problems that should be addressed by the military departments.

Thursday, January 29, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0613/MC. U.S. v. Jimmie L. GETER. CCA 9901433. Review granted on the following issues:

I. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN DENYING APPELLANT'S MOTION TO SUPPRESS PERSONAL E-MAIL MESSAGES THAT WERE DOWNLOADED FROM A GOVERNMENT SERVER AND HAD BEEN SENT TO ONE INTENDED RECIPIENT.

II. WHETHER SPECIFICATION 1 OF CHARGE II FAILS TO STATE AN OFFENSE BECAUSE THE AGREEMENT OF TWO PERSONS IS NECESSARY FOR THE COMPLETION OF THE SUBSTANTIVE CRIME OF DISTRIBUTION OF MARIJUANA AND THERE IS NO INGREDIENT IN THE CONSPIRACY TO DISTRIBUTE WHICH IS NOT PRESENT IN THE COMPLETED CRIME.

III. WHETHER THE LOWER COURT'S VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT'S ANSWER BRIEF AS THAT COURT'S OPINION CONSTITUTES AN ABUSE OF DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.

Friday, January 23, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0066/MC.

U.S.

v. Wesley R. RUNIONS. CCA 200102075. Review granted on the following issue:

WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY ADMITTING RECORDS OF TWO PRIOR NONJUDICIAL PUNISHMENTS DURING PRESENTENCING WITHOUT EVIDENCE OF COMPLIANCE WITH UNITED STATES v. BOOKER.

Thursday, January 22, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 03-0515/NA. U.S. v. Thomas J. SCHNABLE. CCA 9900852. Review granted on the following issue specified by the Court:

Wednesday, January 21, 2004

APPEALS – SUMMARY DISPOSITIONS

No. 02-0100/AF. U.S. v. Raymond B. HARRISON. CCA 34172. On consideration of Appellant’s motion for leave to file petition for reconsideration out of time and petition for reconsideration out of time and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that Appellant’s motion for leave to file petition for reconsideration out of time and petition for reconsideration out of time are granted; that the order of the Court dated February 26, 2002, is hereby vacated; and that review is granted on the following issue:

WHETHER THE STATUTORY LANGUAGE OF 18 U.S.C. 2252A IS UNCONSTITUTIONALLY OVERBROAD ON ITS FACE AND AS APPLIED TO APPELLANT.

That the decision of the United States Air Force Court of Criminal Appeals is reversed and the findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further action consistent with this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003). A rehearing may be ordered.

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in Sections A and B of my separate opinion in United States v. O’Connor, 58 M.J. 450, 455-457 (C.A.A.F. 2003) (Crawford, C.J., dissenting).

No. 02-0257/AF. U.S. v. James E. STOOPS. CCA 34491. On consideration of Appellant’s petition for reconsideration of the order denying review and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that Appellant’s petition for reconsideration of the order denying review is granted; that the order of the Court dated April 12, 2002, is hereby vacated; and that review is granted on the following issue:

WHETHER APPELLANT’S GUILTY PLEA MUST BE SET ASIDE BECAUSE HIS PLEA WAS EXPRESSLY CONTINGENT ON THE ASSUMPTION THAT THE DEFINITION OF CHILD PORNOGRAPHY CONTAINED IN 18 U.S.C. 2256(8) WOULD BE UPHELD.

That the decision of the United States Air Force Court of Criminal Appeals is reversed and the finding of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further action consistent with this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003). A rehearing may be ordered.

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in Section B of my separate opinion in United States v. O’Connor, 58 M.J. 450, 456 (C.A.A.F. 2003) (Crawford, C.J., dissenting).

No. 02-0304/AR. U.S. v. Jason L. MATHEWS. CCA 20000136. On consideration of Appellant’s petition for grant of review and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that the petition is granted on the following issue:

WHETHER APPELLANT'S PLEA OF GUILTY TO POSSESSION OF CHILD PORNOGRAPHY UNDER THE CHILD PORNOGRAPHY PREVENTION ACT MAY STAND WHEN THE MILITARY JUDGE'S DEFINITION OF CHILD PORNOGRAPHY INCLUDED COMPUTER-GENERATED IMAGES, A DEFINITION THAT THE SUPREME COURT FOUND UNCONSTITUTIONAL. ASHCROFT v. FREE SPEECH COALITION, 535 U.S. 234 (2002).

That the decision of the United States Army Court of Criminal Appeals is reversed and the finding of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army for further action consistent with this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003). A rehearing may be ordered.

CRAWFORD, Chief Judge (dissenting): I dissent for the reasons set forth in my separate opinion in United States v. O’Connor, 58 M.J. 450, 455 (C.A.A.F. 2003) (Crawford, C.J., dissenting).

Tuesday, January 20, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 02-0617/AR. U.S. v. Martin C. DUNCAN. CCA 20010182. On consideration of the issue granted review by this Court on December 31, 2002, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that the decision of the United States Army Court of Criminal Appeals is reversed and the findings of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army for further action consistent with this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003). A rehearing may be ordered.

No. 03-0071/AF. U.S. v. Joseph W. LEE. CCA S29894. On consideration of the issue granted review by this Court on January 24, 2003, and in light of this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003), it is ordered that the decision of the United States Air Force Court of Criminal Appeals is reversed and the finding of guilty and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further action consistent with this Court’s decision in United States v. O’Connor, 58 M.J. 450 (C.A.A.F. 2003). A rehearing may be ordered.

Tuesday, January 13, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 04-0015/MC. U.S. v. Joseph W. RUSSELL. CCA 200300651. On consideration of Appellant’s petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, said petition is granted and the decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed as to findings and only so much of the sentence as provides for a bad-conduct discharge and confinement for 90 days.

Friday, January 09, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 01-0827/AR. U.S. v. Chad D. BENNER. CCA 9801777. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, said petition is granted and the decision of the United States Army Court of Criminal Appeals is affirmed.

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0090/MC. U.S. v. Eric W. SELL. CCA 200200458. Review granted on the following issue specified by the Court:

Wednesday, January 07, 2004

ORDERS GRANTING PETITION FOR REVIEW

No. 04-0067/MC. U.S. v. Timothy T. RYAN. CCA 9900374. Review granted on the following issue specified by the Court:

WHETHER THE LOWER COURT'S VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT'S ANSWER BRIEF [OF NOVEMBER 1, 1999] AS THAT COURT'S OPINION CONSTITUTES AN ABUSE OF DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.

No. 04-0069/MC. U.S. v. David Y. OWENS. CCA 200200427. Review granted on the following issues specified by the Court:

I. WHETHER THE COURT OF CRIMINAL APPEALS, IN RELYING ON UNITED STATES v. ROJAS, 15 M.J. 902 (N.M.C.M.R. 1983) AND UNITED STATES v. USRY, 9 M.J. 701 (N.M.C.M.R. 1980), APPLIED THE CORRECT LEGAL STANDARD IN REVIEWING APPELLANT'S SENTENCE APPROPRIATENESS ARGUMENT.

II. WHETHER THE LOWER COURT'S VERBATIM REPLICATION OF SUBSTANTIAL PORTIONS OF THE GOVERNMENT'S ANSWER BRIEF AS THAT COURT'S OPINION CONSTITUTES AN ABUSE OF DISCRETION, NEGATES ANY APPEARANCE OF JUDICIAL IMPARTIALITY AND SUBSTANTIALLY UNDERMINES THE INTEGRITY OF THE OPINION.

No. 04-0140/AR. U.S. v. Steven E. ASBURY. CCA 20030367. Review granted on the following issue specified by the Court:

WHETHER APPELLANT'S CONVICTION FOR VIOLATING ARTICLE 125 BY ENGAGING IN CONSENSUAL SODOMY MUST BE SET ASIDE IN LIGHT OF THE UNITED STATES SUPREME COURT'S HOLDING IN LAWRENCE v. TEXAS, 123 S. CT. 2472 (2003).

Monday, January 05, 2004

APPEALS - SUMMARY DISPOSITIONS

No. 02-5001/CG. United States, Appellant, v. Marlon D. HUTCHISON, Appellee. CCA 1090. The prior history of this case before our Court is set forth at 57 M.J. 231 (C.A.A.F. 2002). Following a general court-martial, the convening authority approved the sentence adjudged at trial -- a bad-conduct discharge, confinement for 28 months, and reduction to the lowest enlisted grade. During its initial review, the Court of Criminal Appeals approved only that part of the sentence extending to confinement pursuant to its statutory responsibility to review the sentence under Article 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c). 55 M.J. 574 (C.G. Ct. Crim. App. 2001), aff’d en banc, 56 M.J. 684. The General Counsel of the Department of Transportation certified the case to our Court for review of issues related to the lower court's action on the sentence.

Article 66(c) provides that a Court of Criminal Appeals “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record, should be approved.” In our review, we observed that the lower court’s opinion raised the possibility that the court had viewed state court proceedings in a separate, but related case against Appellee as inappropriate. We further noted that the lower court’s opinion raised the possibility that the court had "sought to lessen the punishment from those [state court] proceedings," as opposed to confining itself to its statutory responsibility of "considering whether the military sentence is inappropriate" in light of all the circumstances in the record, including the state court conviction. We emphasized that the legal issue in the case was not what sentence we would have approved, but whether the lower court abused its discretion in modifying the sentence. In that context, we "remand[ed] the case to the court below for a de novo review of [Appellee's] military sentence under Article 66(c)." 57 M.J. at 234.

On remand, the judges of the court below in various opinions speculated as to whether our Court had ordered that court to "clarif[y]" its initial opinion, 58 M.J. 744, 745 (C.G. Ct. Crim. App. 2003)(en banc); whether it was necessary, as a predicate to conducting the de novo review of Appellee's sentence that we had ordered, that the court on remand determine it had committed legal error during its initial review of the sentence, 58 M.J. at 746; and whether a remand for a de novo review requires a determination by our Court that there was a legal error in the case. In the end, however, the court below conducted the required de novo review, and reinstated the full sentence approved by the convening authority, including a bad-conduct discharge, confinement for 28 months, and reduction to the lowest enlisted grade. 58 M.J. at 746-47.

Appellee now has requested that this Court review the following issues:

I. whether THIS COURT HAS THE AUTHORITY TO REVIEW A SERVICE COURT'S GRANT OF RELIEF PURSUANT TO ITS SENTENCE APPROPRIATENESS AUTHORITY.

ii. WHETHER THIS COURT HAS THE AUTHORITY TO VACATE A LOWER COURT'S DECISION ABSENT ANY FINDING OF LEGAL ERROR.

III. WHETHER THIS COURT HAS THE AUTHORITY TO ORDER A SERVICE COURT TO CONDUCT A DE NOVO REVIEW OF SENTENCE APPROPRIATENESS ABSENT ANY FINDING OF LEGAL ERROR.

These issues misapprehend our earlier decision. Although we used the word “clarification” at the outset of our earlier decision, 57 M.J. at 232, the opinion expressly states: “The issue before our Court is not whether we would have reached the same result [as the court below], but whether the Court of Criminal Appeals abused its discretion in doing so.” Our remand for a de novo review reflected our conclusion that the Court of Criminal Appeals committed an error of law by abusing its discretion in its initial review of this case. The authority of our Court to review the sentence appropriateness decisions of the Courts of Criminal Appeals for abuse of discretion is well-established, as is our authority to order a de novo review when the lower court has erred as a matter of law. See, e.g., United States v. Tardif, 57 M.J. 219, 223-24 (C.A.A.F. 2002); United States v. Brock, 46 M.J. 11, 13 (C.A.A.F. 1997); United States v. Dukes, 5 M.J. 71, 73-74 (C.M.A. 1978). Upon remand, the court conducted an appropriate de novo review in accordance with our remand, which was based upon our determination that there had been an error of law.

Accordingly, it is ordered that the decision of the Court of Criminal Appeals on remand is affirmed.1/

___

1/ Appellee’s pending motion to file a reply to the Government’s answer to Appellee’e supplement to his petition is granted.

Friday, December 19, 2003