Interesting CAAF remand

No.

08-0707/AF.

U.S.

v. Calvin J. WHEELER Jr.

CCA 36796.On consideration of the petition for grant of

review of the decision of the United States Air Force Court of Criminal

Appeals, it is noted that the Court of Criminal Appeals has not had the

opportunity to complete its review of this case under Article 66(c),

Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 866(c) (2000), after the

convening

authority took action on October 3, 2008.SeeBoudreaux v.

U.S.

Navy-Marine Corps

C.M.R.,

28 M.J. 181 (C.M.A. 1989).Accordingly,

it is, ordered that said petition is hereby granted on the following

issue:

APPELLANT WAS

CONVICTED OF

RAPE AND ADULTERY BASED ON A SINGLE ACT OF SEXUAL INTERCOURSE. DURING THE COURT-MARTIAL, THE PROSECUTION'S

EXPERT PSYCHOLOGIST PROVIDED HUMAN LIE DETECTOR TESTIMONY THAT

BOLSTERED THE

ALLEGED VICTIM'S RAPE ACCUSATION. BASED

ON THIS TESTIMONY, THE AIR FORCE COURT OF CRIMINAL APPEALS SET ASIDE

THE RAPE

CONVICTION. HOWEVER, IT AFFIRMED THE

ADULTERY CONVICTION. DID THE COURT ERR

SINCE THE MEMBERS MUST HAVE BASED THEIR ADULTERY CONVICTION ON THE

FORCE AND CONSENT FINDINGS OF RAPE THAT WERE SET ASIDE?

The record of

trial is

returned to the Judge Advocate General of the Air Force for remand to

the Air

Force Court of Criminal Appeals for consideration of the granted issue

and

completion of its Article 66(c), UCMJ, review.Thereafter, Article 67, UCMJ, 10 U.S.C. § 867

(2000), shall apply.