| Coast Guard Court of Criminal Appeals | UNITED STATES V BAILEY (UNPUBLISHED) | Appellant was tried by general court-martial composed of members with enlisted representation. Contrary to his pleas, Appellant was convicted of three specifications of sexual assault and one specification of abusive sexual contact, all in violation of Article 120, Uniform Code of Military Justice (UCMJ). The members sentenced Appellant to confinement for eighteen months, reduction to E-1, a dishonorable discharge, and forfeiture of all pay and allowances. The Convening Authority approved the sentence as adjudged.
This is our second review of this case. In our first review, we affirmed the findings and the sentence. The United States Court of Appeals for the Armed Forces (CAAF) granted a petition for review and affirmed our decision as to findings but reversed as to sentence. United States v. Bailey, 71 M.J. 11, 16 (C.A.A.F. 2017). CAAF noted that although we had affirmed the sentence as approved—which included forfeiture of all pay and allowances—we failed to reference the forfeitures when reciting the sentence in our opening paragraph. CAAF concluded that our opinion was thus ambiguous and ordered the record remanded for clarification. Id. at 15–16.
Our omission of reference to forfeiture of pay and allowances was a scrivener's error. We now clarify by affirming the entire approved sentence, including forfeiture of all pay and allowances. | Docket No. 1428 | Coast Guard Court of Criminal Appeals | 2/5/2018 | 2/5/2018 | | 2/6/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V SUMMERS (UNPUBLISHED) | Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of indecent visual recording and one specification of distribution of an indecent visual recording, in violation of Article 120c, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to reduction to E-1, confinement for six months, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged. The pretrial agreement did not affect the sentence.
Before this Court, without admitting that the findings and sentence are correct in law and fact, Appellant has submitted this case on its merits as to any and all errors. | Docket No. 1449 | Coast Guard Court of Criminal Appeals | 2/8/2018 | 2/8/2018 | | 2/12/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V RUFF 2018 W.L. 4268537 | This is a Government appeal under Article 62, Uniform Code of Military Justice (UCMJ). Appellee was charged with possession of child pornography, among other things. The alleged child pornography was found on Appellee’s mobile phone by a police officer who had arrested him for driving under the influence of alcohol. Appellee filed a motion to suppress the images found on his phone. On 28 November 2017, the military judge granted the suppression motion.
The Government gave notice of appeal of the ruling on 29 November 2017, and filed the record of trial with this Court on 21 December 2017. The Government filed its appeal brief on 10 January 2018. Appellee filed his brief on 30 January 2018.
The Government argues that the military judge erred in granting Appellee’s motion to suppress. We disagree and affirm the military judge’s ruling. | Docket No. 001-62-18 | Coast Guard Court of Criminal Appeals | 2/15/2018 | 2/15/2018 | | 2/21/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V CLIFFT 77 MJ 712 | A general court-martial of members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of false official statement in violation of Article 107, Uniform Code of Military Justice (UCMJ); one specification of sexual assault in violation of Article 120, UCMJ; and two specifications of assault and battery in violation of Article 128, UCMJ. The members sentenced Appellant to confinement for four years, reduction to pay grade E-1, forfeiture of all pay and allowances, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged.
Appellant now asserts the following:
1. The record is incomplete and: (a) the trial counsel erred by attempting to complete an otherwise incomplete record; (b) the staff judge advocate failed to adequately address allegations in clemency matters of an incomplete record; and (c) because the record was incomplete, the convening authority erred by approving a sentence greater than that available at a special court-martial.
2. The military judge erred in his instructions regarding consent and trial defense counsel were ineffective for failing to ask for a correct instruction.
3. The military judge erred by permitting what amounted to a substantial variance between the charged offense and the verdict.1
4. The military judge erred by allowing “profiling evidence,” including uncharged misconduct.
5. The evidence of sexual assault is legally and factually insufficient.
6. The military judge erred by denying in-camera review of mental health records.
7. The military judge erred by denying a challenge for cause of one of the members. | Docket No. 1446 | Coast Guard Court of Criminal Appeals | 3/12/2018 | 3/12/2018 | | 3/19/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V FISHER 2018 W.L. 4267286 | Appellant was tried by general court-martial, military judge alone. Contrary to his pleas, Appellant was convicted of one specification of sexual assault, in violation of Article 120, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for six months, reduction to E-1, and a bad-conduct discharge. At a post-trial Article 39(a), UCMJ, session, acknowledging the mandatory minimum sentence of a dishonorable discharge, the military judge sentenced Appellant to a dishonorable discharge, reduction to E-1, and confinement for ninety days. The Convening Authority approved the sentence as adjudged.
Before this court, Appellant has assigned the following errors:
I. The evidence is not factually and legally sufficient to support the finding of guilty to the sole specification.
II. Article 120(b)(3), UCMJ, is unconstitutionally vague because it fails to define what level of impairment renders a person incapable of consenting.
III. The military judge erred by excluding evidence pursuant to M.R.E. 412 when that evidence was constitutionally required.
After due consideration of the credibility of the evidence, we conclude that the evidence is legally sufficient, and we are convinced beyond a reasonable doubt of Appellant’s guilt. Accordingly, we summarily reject the first assignment. We discuss the other issues and affirm. | Docket No. 1444 | Coast Guard Court of Criminal Appeals | 3/8/2018 | 3/8/2018 | | 3/19/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V SHERMOT 77 MJ 742 | A military judge sitting alone as a general court-martial convicted Appellant, contrary to his pleas, of one specification of sexual assault in violation of Article 120, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for one year and dismissal, which the Convening Authority approved.
Appellant now asserts that: (1) the specification’s use of the disjunctive—that Appellant knew or reasonably should have known the complaining witness was incapable of consenting—rendered the verdict ambiguous and deprived Appellant of constitutional due process; and (2) the evidence is factually insufficient to sustain his conviction.
We disagree and affirm. | Docket No. 1447 | Coast Guard Court of Criminal Appeals | 4/11/2018 | 4/11/2018 | | 4/16/2018 |
| Coast Guard Court of Criminal Appeals | ORDER REESE V. U.S. PETITION FOR WRIT OF ERROR CORAM NOBIS 78 MJ 527 | Petitioner seeks a writ of error coram nobis premised on his counsel’s failure to file a timely petition for review with the United States Court of Appeals for the Armed Forces (CAAF). While this error, if true, is of a fundamental character, he fails to establish that relief from this court is appropriate.
Background
Petitioner was convicted in 2014 by a general court-martial of three specifications of false official statements; four specifications of wrongful use, possession, or distribution of marijuana; one specification of sexual abuse of a child; and one specification of conduct of a nature to bring discredit upon the armed forces, in violation of Articles 107, 112a, 120b, and 134, Uniform Code of Military Justice (UCMJ). The Convening Authority approved the adjudged sentence of confinement for five years, reduction to E-1, and a dishonorable discharge.
On our first review, we affirmed the findings and sentence. United States v. Reese, No. 1422, slip op. at 7 (C.G. Ct. Crim. App. Aug. 22, 2016) (unpub.) (Reese I). Reviewing our decision, however, the CAAF reversed our decision as to the findings of guilty to the specifications under Article 120b and Article 134 and the sentence. It dismissed those two specifications, affirmed the remainder, and remanded the case to us “to either reassess the sentence based on the affirmed findings or order a sentence rehearing.” United States v. Reese, 76 M.J. 297, 303 (C.A.A.F. 2017) (Reese II). On our second review, we concluded we were able to reassess the sentence and affirmed only so much as included confinement for three months, | MISC. DOCKET NO. 001-18 | Coast Guard Court of Criminal Appeals | 5/4/2018 | 5/4/2018 | | 5/8/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V SCHWARTZ OPINION (UNPUBLISHED) | A general court-martial, military judge alone, convicted Appellant, pursuant to his pleas, of one specification of sexual abuse of a child and three specifications of assault consummated by a battery upon a child under 16 years, in violation of Articles 120b and 128, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant on 17 February 2017 to confinement for four years, reduction to E-1, and a dishonorable discharge. The Convening Authority approved the sentence, but pursuant to a pretrial agreement, suspended all confinement in excess of thirty months.
Without admitting that the findings and sentence are correct in law and fact, Appellant submits this case to us on its merits without assigning error. | Docket No. 1455 | Coast Guard Court of Criminal Appeals | 5/22/2018 | 5/22/2018 | | 6/6/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V RODRIGUEZ 2018 W.L. 3130849 | A military judge sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual abuse of a child and adultery in violation of Articles 120b and 134, Uniform Code of Military Justice (UCMJ). On 21 September 2016, the military judge sentenced Appellant to reduction to E-1, confinement for eighteen months, and a bad-conduct discharge. On 27 February 2017, the Convening Authority disapproved the reduction and waived automatic forfeitures for a period of six months but otherwise approved the sentence.
Appellant raises four assignments of error: (1) the military judge abused his discretion by admitting evidence that Appellant had a “foot fetish”; (2) the evidence of sexual abuse of a child is legally and factually insufficient; (3) the Staff Judge Advocate misadvised the convening authority about his authority in taking action; and (4) Appellant was prejudiced by unreasonable post-trial delay.1 We disagree and affirm. | Docket No. 1450 | Coast Guard Court of Criminal Appeals | 6/27/2018 | 6/27/2018 | | 6/27/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. GOODELL OPINION 78 MJ 585 | A military judge sitting as a special court-martial convicted Appellant, pursuant his pleas, of four specifications of failure to obey a lawful order, three specifications of false official statements, one specification of stalking, two specifications of extortion, two specifications of assault consummated by battery, and one specification of obstructing justice, in violation of Articles 92, 107, 120a, 127, 128, and 134, Uniform Code of Military Justice (UCMJ). The military judge adjudged a sentence of reduction to pay grade E-1, confinement for one year, and a bad-conduct discharge, which the Convening Authority approved. While there was a pretrial agreement, it had no impact on the sentence.
Before us, Appellant asserts that:
(1) He had no duty to obey the military protective orders (MPOs) that he pleaded guilty to violating because they lacked a military purpose and unjustifiably deprived him of personal rights; and
(2) A subsequent MPO issued after trial: (a) subjected him to unlawful punishment; (b) constituted unlawful command influence; and (c) denied him the benefit of his pretrial agreement by subjecting him to punishment beyond that agreed upon.1
We disagree and affirm | Docket No. 1458 | Coast Guard Court of Criminal Appeals | 9/10/2018 | 9/10/2018 | | 9/12/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V LIVINGSTONE 78 M.J. 619 | Members sitting as a general court-martial convicted Appellant, contrary to his pleas, of two specifications of sexual assault, one specification of extortion (which the military judge later conditionally dismissed), and two specifications of conduct unbecoming an officer and a gentleman in violation of Articles 120, 127, and 133, Uniform Code of Military Justice (UCMJ). The members sentenced Appellant to dismissal and confinement for eight years, which the Convening Authority approved.
Appellant now asserts the following:
(1) The evidence was factually insufficient to support one of his two sexual assault convictions;
(2) The military judge abused his discretion when ruling on the admissibility of evidence under Military Rule of Evidence (M.R.E.) 412;
(3) The evidence was legally and factually insufficient to support both convictions for conduct unbecoming an officer and a gentleman;
(4) The military judge reversibly erred by failing to instruct on mens rea with regard to the conduct unbecoming charges;
(5) The prosecutor committed misconduct when she undertook a discovery obligation she would not normally have and failed to exercise due diligence in executing that obligation, to Appellant’s prejudice; and
(6) Participation by a Special Victims’ Counsel amounted to private counsel providing unauthorized assistance to the trial counsel, to Appellant’s prejudice. | Docket No. 1448 | Coast Guard Court of Criminal Appeals | 10/5/2018 | 10/5/2018 | | 10/15/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V PICCININNO 2018 W.L. 5492517 | A military judge sitting as a general court-martial convicted Appellant, pursuant to his pleas, of possession of child pornography under Article 134, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for sixteen months, reduction to pay grade E-1, and a bad-conduct discharge. The Convening Authority approved the sentence but, pursuant to a pretrial agreement, suspended all confinement in excess of 120 days.
Appellant raises two issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) the court-martial lacked personal jurisdiction over him; and (2) his plea to possessing child pornography was improvident. We disagree.
Jurisdiction
While it is undisputed that Appellant, a Coast Guard reservist, was serving on active duty and thus subject to the UCMJ at the time of the offense, Appellant avers the court-martial lacked jurisdiction at the time of trial for two reasons: (1) the orders recalling him to active duty cited the incorrect statutory authority; and (2) he was improperly retained in the individual ready reserve (IRR). | Docket No. 1454 | Coast Guard Court of Criminal Appeals | 10/30/2018 | 10/30/2018 | | 10/30/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. HERNANDEZ 78 MJ 643 | A military judge sitting as a special court-martial convicted Appellant, pursuant to his pleas, of three specifications of assault consummated by battery in violation of Article 128, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for eight months, reduction to pay grade E-1, and a bad-conduct discharge. Although there was a pretrial agreement, it did not affect the sentence, which the Convening Authority approved.
Appellant asserts that his three convictions under Article 128 were multiplicious.1 We agree and thus consolidate the specifications and reassess the sentence. This moots Appellant’s remaining assertions of unreasonable multiplication of charges and sentence severity. | Docket No. 1452 | Coast Guard Court of Criminal Appeals | 10/31/2018 | 10/31/2018 | | 11/5/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. ROGERS 78 M.J. 813 | A general court-martial of members with enlisted representation convicted Appellant, contrary to his pleas, of two specifications of obstructing justice and one specification of violating 18 U.S.C. § 499 by willfully allowing another person to have his military identification card, in violation of Article 134, Uniform Code of Military Justice (UCMJ).1 The members sentenced Appellant to reduction to pay grade E-1 and a bad-conduct discharge, which the Convening Authority approved.
Appellant raises the following assignments of error: (1) the identification card specification fails to state an offense under clause 3 of Article 134; (2) the identification card specification fails to state an offense under clause 2 of Article 134; (3) Appellant lacked notice that letting another person temporarily hold his military identification card was criminal conduct; (4) the clause 3 of Article 134 offense alleged in the identification card specification is preempted by the enumerated Article 134 offense of wrongful loan or disposition of a military identification card; (5) evidence that Appellant violated 18 U.S.C. § 499 was legally and factually insufficient; (6) the military judge erred in failing to provide the members with instructions on all the elements of 18 U.S.C. § 499; (7) evidence that Appellant obstructed justice is legally and factually insufficient; (8) the military judge erred in ruling that the two specifications for obstruction of justice were not multiplicious; and (9) the military judge erred in ruling that the two specifications for obstruction of justice were not an unreasonable multiplication of charges. We heard oral argument on the legal sufficiency of the evidence supporting the obstruction of justice convictions. | Docket No. 1391 | Coast Guard Court of Criminal Appeals | 2/21/2019 | 2/21/2019 | | 2/22/2019 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. PACHECO (2019 WL 2053617) | A military judge sitting as a special court-martial convicted Appellant, contrary to his pleas, of a single specification of abusive sexual contact in violation of Article 120, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to reduction to pay grade E-1, confinement for forty-five days, and a bad-conduct discharge, which the convening authority approved.
Appellant asserts three errors: (1) the convening authority’s improper selection of potential court-martial members coerced Appellant into electing trial by military judge; (2) the evidence is legally and factually insufficient to support his conviction; and (3) his sentence is inappropriately severe.2 We disagree and affirm.
Background
Gunner’s Mate Third Class (GM3) J.D. was at a bar during a port call in Kodiak, Alaska, dancing with a friend when she felt a hand reach into the back of her pants and touch her buttocks skin-to-skin. She momentarily froze, but then turned to see Appellant immediately behind her, looking at her and smiling. She looked at him and said words to the effect of, “If you ever touch me again, I’ll f---in’ knock your teeth out.” (R.1AUG at 99.) She then walked back to her seat, turned around, and saw Appellant also turning toward her, still smiling at her. One of GM3 J.D.’s shipmates asked her what that was all about; she responded that Appellant had “just stuck his hands down the back of my pants and I need to go.” (Id. at 100.) | Docket No. 1460 | Coast Guard Court of Criminal Appeals | 5/6/2019 | 5/6/2019 | | 5/7/2019 |