Title: Appellate Court Document - Order 3
Release Date: 2015-03-10
Text: ' f
UNITED STATES ARMY COURT OF CRIMINAL APPEALS
KRAUSS, CAMPANELLA, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
Private First Class BRADLEY E. MANNING (nka CHELSEA E. MANNING),
United States Army, Ap~ellant
A military judge sitting as a general court-martial convicted appellant of
various violations of Articles 92 and 134 of the Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 892, 934 (2006). On 21 August 2013, the
military judge sentenced appellant to a dishonorable discharge, confinement for
35 years, forfeiture of all pay and allowances, and reduction to the grade of E-1.
The convening authority approved the adjudged sentence and credited appellant with
1,293 days against the sentence to confinement.
On 16 March 2012, pursuant to the authority granted under Military Rule of
· Evidence' [hereinafter Mil. R. Evid.] 505, the trial court's "general supervisory
authority," and "to protect the national security," the military judge issued a
"Protective Order for Classified Information" (Appellate Exhibit XXXII).
On 26 February 2013, the military judge issued an order for "Storage of
Appellate Exhibits Not Accompanying the Record of Trial" (Appellate Exhibit D).
On 20 August 2013, the miiitary judge issued an "Omnibus Seal Order"
applicable to various exhibits (Appellate Exhibit D,CLXVI).
On 17 January 2014, the military judge issued an "Omnibus Seal Order"
applicable to certain portions of the transcribed proceedings (Appellate Exhibit
The trial involved a significant amount of classifie_d evidence, ex parte
hearings, and sealed materials.
This case is now before the Court for review under Article 66, UCMJ.
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NOW, THEREFORE, IT IS HEREBY ORDERED:
1. The appellate proceedings in this case ~ill involve information that has been
, classified in the interest of national security'. The storage, handling, and control of
this information will require special security precautions mandated by statute,
executive order, and regulation, and access to which requires the appropriate
security clearance and a "need-to-kn~w." Under Executive Order [hereinafter Exec.
Order] 13526, "need-to-know" means "a determination within the executive branch,
in accordance with directives issued pursuant to this [executive] order, that a
prospective recipient requires access to specific classified information in order to "'
perform or assist in a lawful and authorized government function."
2. Pursuant to the authority granted under Mil. R. Evid. 505; the general
supervisory authority of this court; and to protect the national security, it is further
a. Purpose. The purpose of this Order is to establish the procedures that must be'
followed by appellant; all government appellate counsel ·of record; all defense
appellate counsel of-record; all other counsel involved in the case; all judges and
other personnel of the U.S. Army Court of Criminal Appeals; all personnel of the
Office of the Clerk of Court, U.S. Army Court of Criminal Appeals; and all other
individuals who receive access to, or are otherwise in possession of, classified
documents or information from this case. For purposes of this Order, unless
specified otherwise, "defense appellate couns~l of record" includes both military and
civilian appellate defense counsel of record.
b. Application. The procedures set forth in this Order and Mil. R. Evid. 505 shall
apply to all appellate aspects of this case, and may be modified from time to time by
further order of this Court acting under Mil. R. Evid. 505 and our inherent
supervisory authority of the case.
c. Definitions. The following definitions apply for the terms used in this Order.
(1) As used herein, the terms "classified national security information and
documents," "classified information," and "classified documents" refer to:
(a) Any classified document or information, which has been classified by
any Executive Branch agency in the interests of national security or pursuant to
Exec. Order 13526 or its predecessor Orders as "CONFIDENTIAL," "SECRET," or
"TOP SECRET," or is additionally controlled as "SENSITIVE COMPARTMENTED
INFORMATION (SCI)," "ALTERNATIVE COMPENSATORY CO:t-ITROL
MEASURES (ACCM)," or "SPECIAL ACCESS PROGRAM (SAP)";
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(b) Any document or information, regardless of its physical form or
characteristics, now or formerly i~ the possession of a private party, which has been
derived from United States government information that has been classified by the
United States pursuant to Exec. Order 13526 or its predecessor Orders as
"CONFIDENTIAL," "SECRET," or "TOP SECRET," or additionally controlled as
"SENSITIVE COMPARTMENTED INFORMATION (SCI)," "ALTERNATIVE
COMPENSATORY CONTROL MEASURES (ACCM)," or "SPECIAL ACCESS
(c) Any other classified information, in any form, known or previously
known to appellant or defen,se appellate counsel of record;
(d) Any document and information, including n'on-written, aurally
acquired information, which appellant or defense appellate counsel of record have
been notified in orally.or in writing that such document may be classified; or,
(e) Any information, regardless of place or origin and including
"foreign government information," as that term is defined in Exec. Order 13526, that
could reasonably be believed to contain classified information; and
(f) Any information obtained from any agency, department, or other
governmental entity, including a member of the intelligence community, as defined
in 50 U.S.C. § 3003 (formerly§ 401a) (2012), that could reasonably be believed to
contain classified information.
(2) As used herein, the words "documents" or "information" shall include,
but are not lii;nited to, all written, printed, or electronic matter of any kind, formal or
informal, including originals, conforming copies and non-conforming copies
(whether different from the original by reason of notation made on such copies or
otherwise), and further include, but are not limited to:
(a) Papers, correspondence, memoranda, notes, letters, reports,
summaries, photographs, maps, charts and graphs, inter-office and intra,..office
communications, notations of any sort concerning conversations, meetings, or other
communications, bulletins, cables, telexes, telecopies, teletypes, telegrams, and
telefacsimiles, invoices, accountings, worksheets, and drafts, alterations,
modifications, and changes and amendments of any kind to the forgoing;
(b) Graphic or oral records or representations of any kind, including,
but not limited to, photographs, maps, charts, graphs, microfiche, microfilm,
videotapes, sound recordings of any kind, and motion pictures;
(c) Electronic, mechanical, or electric records of any kind, including,
but not limited to, tapes, cassettes, disks, recordings, films, typewriter ribbons, word
processing or other computer tapes or disks, hard drives, and all manner of
electronic data processing storage; and
(d) Information acquired aurally, or in any other manner not detailed in
paragraphs 2(c)(2)(a) through 2(c)(2)(c), above.
(3) As used herein, "Access to classified information" means having access
to, reviewing, reading, learning, or otherwise coming to know, obtaining, or
possessing in any manner any classified information.
( 4) As used herein, "government facility'' shall mean a United States
government building that is approved for handling and storage of classified
(5) As used herein, the "court security officer" is Mr. Jay R: Prather
(H~adquarters, U.S. Army Intelligence and Security Command). He is responsible
for supervising security arrangements necessary to support government and defense
appellate counsel and their detailed security officials; personnel from the U.S. Army
Court of Criminal Appeals; and personnel from the Clerk of Court, U.S. Army Court
of Criminal Appeals in their access to classified information containe4 in the record
of trial. He is also responsible for protecting from unauthorized disclosure any
classified documents or information filed with the U.S. Army Court of Criminal
Appeals in connection with this case.
d. Public Domain. Information in the public domain is ordinarily not
classified. However, if classified information is reported in the press or otherwise
enters the public domain, the information does not lose its classified status merely
because it is in the public domain. Classified information reported in the press or
otherwise in the public domain must be considered classified and subject to the
provisions of Mil. R. Evid. 505 and this Order. Acdordingly, any attempt by
appellant or defense appellate counsel to have classified information that has been
reported in the public domain confirmed or denied in any appellate proceeding
before this court in this case shall be governed by Mil. R. E:vid. 505 and all
provisions of this Order.
e. Government Appellate Counsel. The court has been advised that all
government appellate counsel of record detailed to this case have the requisite
security clearances to be granted acces~ (as determined to be necessary by the
appropriate original classification authority) to the classified documents and
information relating to this case. All references to government appellate counsel of
record, as used in this Order, refer only to the government appellate counsel listed in
Appendix B of this Order.
f. Protection of Classified Information. The court orders that, in order to
protect the classified documents and information involved in this case, no person,
except all judges and other personnel of the U.S. Army Court of Criminal Appeals,
all personnel of the Office of the Clerk of Court, the court security officer,
appropriately appointed United States Government personnel from the originating
agencies, United States Government personnel appropriately appointed or detailed to
assist those previously listed, and government and defense appellate counsel of
record directly involved with this case, shall have access to any classified documents
and information unless that person shall first have:
Signed the Memorandum of Understanding in Appendix A of this Order, agreeing·to
comply with the terms of this Order. The signed Memorandum of Understanding
shall be filed with the U.S. Army Court of Criminal Appeals and will be added to the
appellate record. The substitution, departure, or removal of defense appellate
counsel of record or detailed government appellate counsel for any reason shall not
release that person from the provisions of this Order or the Memorandum of
Understanding executed in connection with this Order.
g. Defense Appellate Counsel and Defense Security Official. Subject to other
provisions of this Order, defense appellate counsel of record and a detailed defense
security official shall be given access to the classified documents and information
that was provided to the defense counsel during the trial proceedings, if requested,
provided they possess the requisite clearance. This Order shall apply to any
substituted defe:11se appellate counsel or defense security officials in the event any of
them discontinue their involvement in this case, provided they meet all
requirements under this Order. Any additional person whose assistance defense
appellate counsel of record reasonably requires may only have access to classified
information and documents after obtaining approval from the Deputy Chief of Staff
for Intelligence, United States Army, pursuant to Army Regulation 380-67,
Personnel Security Program, paragraph 3-23(f). Such requests for approval shall be
routed through the Office of the Judge Advocate General, and notice of such
requests shall be provided to the Clerk of Court and the government appellate
division. The government appellate division shall have the opportunity to object to
and litigate the appropriateness of any disclosures of classified information to
additional defense personnel under Mil. R. Evid. 505.
h. 'Appellant. Subject to other provisions of this Order, appellant shall be given
access to the classified documents contained in the record of trial in accordance with
previous determinations by the requisite original classification authorities or the
military judge in this case, as applicable. The appellant ·shall not be provided access
to any information stored "off site" as described in 2(1) below. Prior to being
granted access to any classified information contained in the record of trial,
appellant must sign a Standard Form 312 ("Classified Information Nondisclosure
Agreement") as well as the Memorandum of Understanding in Appendix A.
i. Security Clearances. Unless already holding an appropriate security clearance
granted by the Department of Defense necessary for any access to classified
documents and information, all personnel seeking access to classified information in
support of this case shall complete a Standard Form 86 ("Security Investigation
Date for Sensitive Position"), attached releases, and fingerprint documents, to be
submitted to the United States Army Legal Services Agency (USALSA). _USALSA
shall take all reasonable steps to process all security clearance applications.
j. Area of Review. Government appellate counsel of record and defense
appellate counsel of record shall discuss, store, review, and otherwise handle
classified documents and information only in an approved government facility.
Subject to other provisions of this Order, government appellate counsel and defense
appellate counsel shall prepare any and all pleadings, documents, or other
substantive communications containing classified information, in an approved
government facility. Government appellate counsel shall ensure the government
facility will be outfitted with any secure office equipment requested by defense
appellate counsel that is reasonable and necessary to the preparation of the
appellant's defense in this case. The court security officer detailed to this case shall
establish procedures to ensure that the government facilities are maintained and
operated in the most efficient manner consistent with the protection of classified
documents· and information.
k. Procedures for Handling of Classified Information. Government appellate
counsel and defense appellat\e counsel shall have access to classified documents and
information only as follows:
( 1) All classified documents and information in the record of trial shall be
stored, maintained, and u_sed only in an approved government facility, as outlined in
(2) Subject to the other provisions and restrictions of this order, government
appellate counsel and defense appellate counsel, provided they possess the requisite
clearance, shall have free access to the classified documents and information
contained in the record of trial and made available to them in the government
facility, and shall be allowed to take notes and prepare documents with respect to
those materials and store any notes of documents containing classified information
in th.e government facility.
(3) No person, including any government or defense appellate counsel, shall
copy or reproduce any classified documents and information in any form taken from
the record of trial, except under the direct and on-site supervision of the court
security officer detailed to this case. Government and defense appellate counsel
shall be provided a dedicated government security subject matter expert to serve.as a
MANNING -ARMY 20130739
· security official for the purpose of assisting them with the handling of classified
information associated with this case.
( 4) Documents, pleadings, and substantive communications prepared by
government or defense appellate counsel that contain classified information shall be
transcribed, recorded, typed, duplicated, copied, or otherwise prepared only by
· persons who have received an appropriate approval for access to the classified
documents and information, and shall only be done in the government facility in
accordance with the procedures approved by the court security officer. All such
documents and any associated materials (such as notes, drafts, copies, typewriter
ribbons, magnetic recordings, and exhibits) containing classified documents shall
remain within the government facility.
(5) Government appellate counsel and defense appellate counsel shall not
discuss classified documents and information except within the government facility.
Government appellate counsel and defense appellate counsel shall not discuss or
attempt to discuss classified documents or information over any standard commercial
telephone instrument or office intercommunicati~n system, including, but not limited
to, telephone, electronic mail (e-mail),, and the internet.
(6) Defense appellate counsel shall not disclose, without prior approval by
government appellate counsel in the first instance or by this court upon notice and
opportunity to be heard by the government appellate counsel, the contents of any
classified documents or information to any person, except the court, court personnel,
and government appellate counsel.
Government appellate counsel shall be given an opportunity to be heard by
this court in response to any request by defense appellate counsel for .disclosure to a
person not named in this Order. If preparation of appellant's appeal requires that
classified documents or information be disclosed to persons not named in this Order,
then, upon approval of the court, government appellate counsel shall promptly seek
to obtain security clearances for them at the request of defense appellate counsel.
\Defense appellate counsel shall provide government appellate counsel with
the names of any intended recipient(s) and notice of the specific classified
information that is expected to be disclosed or elicited pursuant to Mil. R. Evid.
505(i). Notice shall be provided in writing, no less than ten duty days to allow
government appellate counsel to file any objection, if any, under Mil. R. Evid. 505
with the court. At all times that defense appellate counsel discloses classified
information under this subparagraph, it shall be done within the government facility
and upon the initial disclosure, the detailed defense security official shall be present
t9 assist in compliance with this subparagraph.
(7) If government appellate counsel advises defense appellate counsel, in
writing, that certain classified documents or information may not be disclosed to
appellant, then defense appellate counsel shall not disclose such information or
documents to appellant without prior concurrence of government appellate counsel,'
and absent such concurrence, approval by the court. The Government shall be given
an opportunity to be heard in response to any defense appellate counsel request for
disclosure of classified information to appellant, by following the same procedures
outlined in (6) above.
1. Procedures for Handling of Classified Information for "Documents Off-Site."
Government appellate counsel and defense appellate counsel shall have access to
classified documents and information stored off-site only as follows:
( 1) Exhibits designated as "Documents Off-Site" in Appellate Exhibit D shall
be the only classified documents and information that will not be stored with the
record of trial at the U.S. Army Court of Criminal Appeals Office of the Clerk of
Court. "Documents Off-Site" shall be stored in a dedicated, two-drawer safe ("CIA
safe") located in the Litigation Division of the Central Intelligence Agency as
.described in Appellate Exhibit D (marked as Appellate Exhibit 500).
(2) Transcripts of ex parte classified sessions on motion of trial counsel rthat
are classified above the "SECRET" level, including "TOP SECRET," "SENSITIVE
COMPARTMENTED INFORMATION (SCI)," and "SPECIAL ACCESS
PROGRAMS (SAP)," will not accompany the record of trial to be stored with the
Office of the Clerk of Court. Those transcripts shall be stored in the CIA safe as
described in Appellate Exhibit D.
(3) The safe combination shall be stored by the following controlled billets:
(1) the Deputy Chief in the Litigation Division of the Central Intelligence Agency;
(2) the Special Assistant in the Litigation Division of the Central Intelligence
Agency; and (3) the Area Security Officer within the Office of the. General Counsel
of the Centr~J Intelligence Agency.
(4) In addition to those billets set forth in paragraph 2(1)(3) above, the
following controlled billets shall have access to the contents of the CIA safe, subject
to those persons possessing the proper security clearances and read-on requirements:
(1) Clerk of Court, U.S. Army·Court of Criminal Appeals (ACCA); (2) Chief Deputy
Clerk of Court, ACCA; (3) ACCA military judges detailed to this case; (4) ACCA
commissioner(s) detail~d to this case; (5) the court security officer;(6) Mr. David A.
Mayfield (Office of the Judge Advocate General, Headquarters, Department of the
Army); and a person designated by a person in the billets set forth in this paragraph
to assist. No person designated in the billets set forth in this paragraph or paragraph
2(1)(3) shall be authorized to open the envelopes containing classified information
stored at the CIA, unless an ACCA military judge detailed to this case orders
(5) The Office of the Clerk of Court, the United States A~my Legal Services
Agency, and the Central Intelligence Agency shall be responsible for ensuring those
persons in the billets set forth in paragraphs 2(1)(3) and 2(1)( 4 ), above, possess and
maintain proper security clearances and are properly read-on. The requisite security
clearance is TS-SCI and the necessary read-on requirements are Special Intelligence
(SI), Talent Keyhole (TK),- GAMMA (G), and HUMINT Control System (HCS).
Some of the sealed Appellate Exhibits contain ACCM and SAP material that will
require additional read-on requirements, if those exhibits are ever ordered to be
(6) The Office of the Clerk of Court shall be responsible for conducting a
periodic review of the envelopes containing the sealed Appellate Exhibits at the CIA
safe for the sole purpose pf confirming their contfoued proper storage. Persons
conducting review (who may include non-Clerk of Court personnel designated by the
Clerk of Court) shall account for each Exhibit and memorialize their review with the
a memorandum of review, and by marking his/her initials with the date o(_his/her
review on the envelope of each sealed exhibit whose proper storage was confirmed.
The review shall occur at the Central Intelligence Agency and shall occur, at a
minimum, once every three months.
(7) Should detailed ACCA appellate judges request access to the contents of
any "Documents Off-Site," the Office of the CJerk of Court shall notify the
applicable government organization(s), and provide a by-name list, including,
cle~rance status, of those who will be reviewing such records. Only properly cleared
appellate court judges may review "Documents Off-Site," and such review may only.
take place at the Central Intelligence Agency. The Office of the Clerk of Court and
the U.S. Army Legal Services Agency are responsible for ensuring the appellate
court judges have and maintain proper security clearances, and are properly read-on.
(8) "Off-Site Documents" are stored solely for appellate review. Upon
completion of the appellate process, the Office of the Clerk of Court shall notify the
Office of the General Counsel for each organization and coordinate with.those
organizations to ensure such material is properly discarded or returned to the
appropriate agency, as necessary.
m. Ex Parte Classified Documents. Appellant, appellate defense counsel, and
members of the appellate defense team shall not have access to classified
information sealed based on it being submitted ex parte. Appellant, appellate
defense counsel, and members of the appellate defense team shall not have access to
any ex pa rte classified documents, to include both ex parte classified documents
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locateg within "Documents Off-Site" as w~ll as ex parte classified documents
located at the Office of the Clerk of Court.
n. Filings with the Court. The following rules apply with respect to filings.
(1) Filings with the court shall be uncla~sified whenever possible. If the
government appellate counsel or defense appellate counsel determine that classified
information must be included with a filing, then they shall place such information in
a separate appendix and properly mark the classified portion, while ensuring any
title or other administrative information remains unclassified. Until further notice
of this court, any pleading appendix, document, or other substantive communication
filed by government appellate counsel or defense appellate counsel that contains
classified information or information reasonably believed to be classified shall be
filed with the court through the court security officer by approved courier or through
SIPRNET email. The date and time of receipt by the court security officer shall be
considered the date and time of the filing. At the time of making a submission to the
court security officer, government appellate counsel and defense appellate counsel
shall notify the court and any other required party via unclassified electronic
communication. This unclassifed communication shall include a title of the
classified document, which does not disclose any potentially classified information.
The court security officer shall promptly deliver to the court (and opposing appellate
counsel, unless the filing is ex parte) any filing by either government appellate
counsel or defense appellate counsel that contains classified information.
(2) If the court requires government appellate counsel to brief an issue, and
a reasonable response requires disclosure of classified information previously
submitted to the 'military judge or this court ex parte or classified information not
contained within the record of trial, then the government appellate counsel shall
submit ex parte the same in a classified appendix through the procedures outlined in
2(n)(l) above; however the court security officer shall not disclose the contents to
the defense appellate counsel.
(3) The coµrt security officer shall promptly examine any pleading or other
document filed with this court to determine whether the pleading or document
contains classified information.
o. Violations of this Order. Any unauthorized disclosure of classified
information may constitute violations of the Uniform Code of Military Justice as
well as criminal laws of the United States, including, but not limited to, the
provisions of Sections 641, 793, 794, 7,98, 952, and 1924 (Title 18 of the United
States Code) and Sections 3121 (formerly Section 421) and 783 ('I;itle 50 of the
United States Code). Attorneys who violate this Order may be reported to their state
bar asso~iation. In addition, any violation of the terms of this Order shall be
immediately brought to the attention of this court and m~y result in a charge of
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contempt of court and possible referral for criminal prosecution or other sanction.
Persons subject to this Order are advised that direct or indirect unauthorized
disclosure, retention, or negligent handling of classified documents or information
could cause se~ious damage, and in some cases., exceptionally grave damage, to the
national security of the United States, or may be used to the advantage of a foreign
nation or non-state actors against the interests of the United States.
p. Property of the United States. All classified documents and information in
this case now and generated in this case in the future are and shall remain the
property of the United States. The notes, summaries, and other documents prepared
by government and defense appellate counsel that do or may contain classified
information shall remain at all times in the government facility under the guidance
of the detailed court security officer. At the conclusion of appellate review of this
case, all such notes, summaries, and other documents shall be destroyed by the court
security officer(s) in the presence of government and defense appellate counsel.
q. Further Protective Order. Nothing in this Order shall preclude the United
States from seeking a further protective order or amendment to the present order in
the interest of protecting the national security.
r. Subsequent Action. A copy of this Order shall be issued forthwith to
appellant's defense appellate counsel of record, who shall be responsible for
advising the appellant and defense appellate team members of the contents of this
Order. The defense appellate counsel of record and government appellate counsel of
record to be provided access to this classified information shall execute the
Memorandum of Understanding appended to this Order, and shall file executed
originals with the court, the detailed court security officer(s), and the opposing
party. The execution and filing of the Memorandum of Understanding is a condition
precedent for government appellate counsel, defense appellate counsel, defense
appellate team members, and any other person working for the defense appellate
team to have access to classified information.
3. Nothing in this Order shall be construed to authorize government appellate
counsel access to any of appella~t' s privileged attorney-client information.
DATE: 2 January 2015
FOR THE COURT:
Acting Clerk of Court
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APPENDIX A - MEMORANDUM OF UNDERSTANDING
UNITED ST ATES, Appellee
Private First Class BRADLEY E. MANNING
United States Army, Appellant
1. Having familiarized myself with the applicable laws and regulations, I
understand that I have already received and/or may be the future recipient of
information and documents which pertain to the national security of the United
States and which are the property of the United States, and that such information and
documents, together with the methods of collecting such information, are classified
according to security standards set by the United States government.·
2. I agree that I shall never divulge, publish, or reveal, either by word, conduct, or
any other means, such classified information or docum~nts unless specifically
authorized in writing to do so by an authorized representative of the United States
government, ot as authorized by the Court pursuant to Military Rule of Evidence
505, the Appellate Protective Order entered in the above-captioned case, or as
otherwise .ordered by this Court.
3. I agree that this Memorandum of Understanding and any other non-disclosure
agreement signed by me in connection with this case will remain forever binding on
4. I have received, read, and understand the Appellate Protective Order entered by
the United States Army Court of Criminal Appeals in the above-captioned case, and
I agree to comply with the provisions contained therein.
5. I declare under penalty of perjury under the laws of the United States that
foregoing is true and correct to the best of my knowledge, information, and belief.
NAME: -------------------DATE and PLACE OF BIRTH:-------------------------
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APPENDIX B - DETAILED APPELLATE COUNSEL
UNITED STATES, Appellee
Private First Class BRADLEY E. MANNING, nka CHELSEA E. MANNING),
United States Army, Appellant
As of 2 January 2015, the following comprises the appellate counsel of record in the
above captioned case's appeal before the U.S. Army Court of Criminal Appeals.
Defense Appellate Counsel:
1. Ms. Nancy Hollander (Freedman Boyd Hollander Goldberg Urias & Ward P.A.)
2. Mr. Vincent J. Ward (Freedman Boyd Hollander Goldberg Urias & Ward P.A.)
3. Captain James D. Hammond, J A (Defense Appellate Division)
Government Appellate Counsel:
1. Captain Daniel M. Goldberg, JA