| Coast Guard Court of Criminal Appeals | UNITED STATES V. WEISER (80 M.J. 635) | A general court-martial of members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of sexual assault, one specification of indecent recording, two specifications of broadcasting an indecent recording, and four specifications of indecent conduct, in violation of Articles 120, Article 120c, and Article 134, Uniform Code of Military Justice (UCMJ) (2016). The members sentenced Appellant to confinement for four years, reduction to E-1, and a dishonorable discharge, which the Convening Authority approved.
On appeal, Appellant asserts that:
(1) He was deprived of due process because he was charged with violating Article 120, UCMJ, under a bodily harm theory, but prosecuted and convicted under the theory that the putative victim was incapable of consenting due to alcohol impairment;
(2) Appellant was deprived of effective assistance of counsel when his trial defense counsel failed to obtain expert assistance;
(3) The military judge abused her discretion by excluding evidence under Military Rule of Evidence (M.R.E.) 412, Manual for Courts-Martial (MCM), United States (2016 ed.);
(4) Appellant’s conviction under Article 120, UCMJ, is factually and legally insufficient; and
(5) The marital relationship between the original staff judge advocate and the chief of military justice created an appearance of unlawful command influence. | Docket No. 1469 | Coast Guard Court of Criminal Appeals | 9/21/2020 | 9/21/2020 | | 9/21/2020 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V LEAL (2) (81 M.J. 613) | Upon return of the case, the Convening Authority referred two specifications to a special court-martial (Leal II) based on the same underlying conduct: one alleging assault consummated
by a battery in violation of Article 128, UCMJ, and one alleging maltreatment in violation of Article 93, UCMJ. A panel of officer and enlisted members acquitted Appellant of assault, but convicted him, contrary to his pleas, of maltreatment. The members sentenced Appellant to reduction to E-5 and restriction for fifteen days, which the Convening Authority approved.
Appellant now raises three issues for our consideration:
1) Whether the military judge violated Appellant’s Fifth and Sixth Amendment rights by not allowing his counsel to examine the members during a post-trial session under Article 39(a), UCMJ;
2) Whether the military judge failed to develop an adequate record into alleged unlawful command influence during deliberations and abused her discretion by denying a motion for mistrial; and
3) Whether Appellant is entitled to relief for unreasonable post-trial delay
We find no merit in the first issue, but we agree with Appellant that there is an inadequate record into whether unlawful command influence tainted deliberations and that unreasonable post-trial delay warrants relief. Based on both errors and the circumstances of this particular case, we set aside the findings and sentence. | Docket No. 1470 | Coast Guard Court of Criminal Appeals | 5/3/2021 | 5/3/2021 | | 5/4/2021 |
| Coast Guard Court of Criminal Appeals | ORDER IN RE VARGAS PETITION (PER CURIAM) | Petitioner, an accused at a special court-martial convened by the Commanding Officer, Coast Guard Base, Kodiak, Alaska, seeks a writ of mandamus directing the military judge to dismiss the charges based on improper referral, and requests a stay of further proceedings while this Court considers the matter. We conclude that Petitioner has failed to show either that she has “no other adequate means to attain the relief [s]he desires” or that her “right to issuance of the writ is clear and indisputable.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380–81 (2004) (internal quotation marks and citations omitted).
Accordingly, it is, by the Court, this 15th day of October, 2021,
ORDERED:
That the request for a stay of proceedings is denied; that the Petition for Extraordinary Relief is denied, without prejudice to Petitioner’s right to raise the issues therein in the course of normal review under the Uniform Code of Military Justice. | MISC. DOCKET NO. 001-21 | Coast Guard Court of Criminal Appeals | 10/15/2021 | 10/15/2021 | | 10/18/2021 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V THOMAS (MERITS) | Per curiam:
Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of three specifications of indecent conduct, in violation of Article 134, Uniform Code of Military Justice (UCMJ). The court sentenced Appellant to a bad-conduct discharge and confinement for five months. The Convening Authority approved the sentence, and suspended confinement in excess of 120 days in accordance with the pretrial agreement. Judgment was entered accordingly.
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. 1476 | Coast Guard Court of Criminal Appeals | 12/10/2021 | | | 12/13/2021 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V TUCKER 82 M.J. 553 | A military judge sitting as a general court-martial convicted Appellant of violating a lawful general order, making a false official statement, and committing an unenumerated, general disorder involving death of another in violation of Articles 92, 107, and 134, UCMJ. Also consistent with his pleas, the military judge found Appellant not guilty of involuntary manslaughter and negligent homicide under Articles 119 and 134, UCMJ. The military judge, however, found Appellant guilty of involuntary manslaughter’s lesser-included offense of assault consummated by a battery under Article 128, UCMJ. The military judge sentenced Appellant to reduction to E-1, a bad-conduct discharge, and confinement for fourteen months. Judgment was entered accordingly. | Docket No. 1472 | Coast Guard Court of Criminal Appeals | 4/7/2022 | 4/7/2022 | | 4/8/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES v ANDERSON (UNPUBLISHED) | Appellant was tried by special court-martial, military judge alone. Pursuant to her pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of eight specifications of presenting a false claim for approval and payment, in violation of Article 124, Uniform Code of Military Justice (UCMJ). The court sentenced Appellant to a bad-conduct discharge and reduction to E-2. The Convening Authority approved the sentence. Judgment was entered accordingly.
Before this Court, Appellant has assigned as error that Appellant’s due process rights were violated by excessive and unexplained post-trial delay.
Appellant asserts that the ninety days between the convening authority’s action and docketing of the case with this Court was presumptively unreasonable under United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006) because it exceeded thirty days, and deprived her of her right to speedy post-trial review. We apply the conclusion we reached in United States v. Tucker, __ M.J. __ , slip op. at 26 (C.G.Ct.Crim.App. 7 Apr 2022): that Moreno’s use of the convening authority’s action as a terminal benchmark prior to docketing has been superseded by statute and regulation. As in Tucker, there was no presumptively unreasonable delay in this case. Further, even under a full due-process analysis, Appellant was not deprived of due process. | Docket No. 1477 | Coast Guard Court of Criminal Appeals | 4/11/2022 | 4/11/2022 | | 4/12/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V BRZYSKI (MERITS) | Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a plea agreement, Appellant was convicted of seven specifications of indecent recording, in violation of Article 120c, Uniform Code of Military Justice (UCMJ). The court sentenced Appellant to a bad-conduct discharge, reduction to E-1, and confinement for ten months. The convening authority approved the sentence. Judgment was entered accordingly.
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.
Decision
We determine that the findings and sentence are correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed. | Docket No. 1479 | Coast Guard Court of Criminal Appeals | 5/13/2022 | 5/13/2022 | | 5/13/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V BROWN (82 M.J. 702) | A military judge sitting as a special court-martial convicted Appellant, contrary to his pleas, of three specifications of disrespect toward a petty officer and one specification of violation of a lawful general order prohibiting sexual harassment, in violation of Articles 91 and 92, Uniform Code of Military Justice (UCMJ). The court sentenced Appellant to reduction to E-4, a reprimand, and restriction for thirty days. The convening authority approved the sentence. Judgment was entered accordingly. Approving Appellant’s timely application, the Judge Advocate General, U.S. Coast Guard, sent the case to this Court pursuant to Article 69(d), UCMJ.
The findings of guilty to Specification 2 of Charge II and to Charge II are set aside. Specification 2 of Charge II and Charge II are dismissed with prejudice. Only so much of the sentence as provides for reduction to E-6, a reprimand, and restriction for thirty days is approved. The current reprimand, which references the sexual harassment conviction, is set aside. A revised reprimand shall be substituted. We determine that the remaining findings and the reassessed sentence are correct in law and, on the basis of the entire record, should be approved. Accordingly, the remaining findings of guilty and the sentence, as reassessed, are affirmed. | Docket No. 001-69-21 | Coast Guard Court of Criminal Appeals | 6/6/2022 | 6/6/2022 | | 6/8/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. FLORES 2 - 82 M.J. 737 | A general court-martial of members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of abusive sexual contact and one specification of obstructing justice, in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ) (2016). The members sentenced Appellant to confinement for ten months, reduction to E-1, and a dishonorable discharge. The convening authority approved the sentence, and judgment was entered accordingly.
Appellant raises eight assignments of error, paraphrased as follows:
(1) There is legally and factually insufficient evidence supporting Appellant’s conviction for abusive sexual contact.
(2) There was a material variance between what Appellant was charged with—abusive sexual contact by causing bodily harm—and the evidence presented at trial—abusive sexual contact of a person incapable of consenting due to impairment by alcohol—that violated his due process right to not be convicted of an offense with which he was not charged.
(3) The military judge erred in instructing the members to consider the complaining witness’s level of intoxication in determining whether she was “competent” to consent, because her “competence” was not an issue to be decided by the court.1
(4) The trial counsel committed improper argument by misstating the law on consent.
(5) The military judge erred in permitting expert testimony on “clusters of symptoms” experienced by “victims” of “sexual trauma,” and the “statistics” of sexual assault cases that involve alcohol.
(6) Appellant’s trial defense counsel were ineffective for failing to cross-examine the complaining witness about her prior testimony at Appellant’s previous court-martial, or to otherwise introduce her prior testimony.
(7) This Court should grant relief for excessive post-trial delay.
(8) There is legally and factually insufficient evidence supporting Appellant’s conviction for obstructing justice. | Docket No. 1474 | Coast Guard Court of Criminal Appeals | 8/11/2022 | 8/11/2022 | | 8/12/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V ARMITAGE (2022 WL 4127212) | A general court-martial of members including enlisted members convicted Appellant, contrary to his pleas, of one specification each of sexual assault and abusive sexual contact, in violation of Article 120, Uniform Code of Military Justice (UCMJ). The court sentenced Appellant to a dishonorable discharge, reduction to E-1, hard labor without confinement for two months, and restriction for two months. The Convening Authority approved the sentence. Judgment was entered accordingly.
Before this Court, Appellant has assigned five errors (paraphrased):
(1) The evidence for the two specifications of which Appellant was found guilty is neither legally nor factually sufficient.
(2) The prosecutor erred by inserting himself into the argument to the members and by making improper statements concerning Appellant’s failure to testify.
(3) Appellant’s due process right to timely appellate review was violated.
(4) The military judge erred by giving the “Talkington” instruction to the members.
(5) Article 52, UCMJ, is unconstitutional because it allows for non-unanimous findings of guilt. Failure to instruct the members that any finding of guilty requires a unanimous vote was error. | Docket No. 1478 | Coast Guard Court of Criminal Appeals | 9/12/2022 | 9/12/2022 | | 9/12/2022 |
| Coast Guard Court of Criminal Appeals | IN RE Y.B. PETITION ORDER (83 M.J. 501) | In the pending general court-martial of United States v. Fink, the military judge ruled that Seaman (SN) G.C. may testify that he had a sexual encounter with Petitioner a few months prior to the accused’s alleged assault of Petitioner. The prior alleged encounter has no connection to the charged sexual assault other than to contradict statements made by Petitioner. Petitioner asks this Court to issue a writ of mandamus requiring the military judge to exclude this evidence under Military Rule of Evidence (M.R.E.) 412, Manual for Courts-Martial, United States (2019 ed.). We conclude Petitioner is entitled to relief and grant the writ. | MISC. DOCKET NO. 001-23 | Coast Guard Court of Criminal Appeals | 11/22/2022 | 11/22/2022 | | 12/1/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V GRIJALVA (83 M.J. 669) | Appellant was tried by general court-martial including enlisted members. Contrary to his pleas, Appellant was convicted of one specification of false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ); one specification of obstructing justice, in violation of Article 131b, UCMJ; and one specification of wrongfully broadcasting an intimate visual image, one specification of accessing a computer application without authority and with intent to defraud, one specification of using without authority a means of identification of another person, and one specification of creating a profile on a computer application with intent to defraud, in violation of Article 134, UCMJ. The court sentenced Appellant to confinement for three months, reduction to E-3, and a bad-conduct discharge. Judgment was entered accordingly.
We determine that the findings are correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty are affirmed. Only so much of the sentence as provides for confinement for two months, reduction to E-3 and a bad-conduct discharge is affirmed. | Docket No. 1482 | Coast Guard Court of Criminal Appeals | 5/9/2023 | 5/9/2023 | | 5/10/2023 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V SAPP (2023 WL 5440570) | Appellant was tried by general court-martial composed of officers. Contrary to his pleas, Appellant was convicted of one specification of assault consummated by a battery, in violation of Article 128, Uniform Code of Military Justice (UCMJ); and one specification of conduct unbecoming an officer by providing false information on an application for a concealed handgun permit, in violation of Article 133, UCMJ. The court sentenced Appellant to forfeiture of $3,920 per month for three months, 60 days restriction, and a punitive letter of reprimand. Judgment was entered accordingly.
Before this Court, Appellant has assigned the following errors:
I. The evidence is legally insufficient to prove that Appellant knowingly provided false information when his incomplete concealed handgun permit application was improperly filed by the Arlington County Circuit Court before he had signed it or attested that the information in the application was correct and complete under the penalty of perjury.
2
II. The military judge abused his discretion when he permitted Ms. JB to provide an unsworn victim impact statement during presentencing proceedings in violation of R.C.M. 1001(c) when she was not the victim of an offense of which appellant was found guilty.
We determine that the findings and sentence are correct in law and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as approved below, are affirmed. | Docket No. 001-69-23 | Coast Guard Court of Criminal Appeals | 8/23/2023 | 8/23/2023 | | 8/23/2023 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V SHULTZ (2023 WL 6140828) | Appellant was tried by special court-martial composed of military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ), and one specification of extramarital sexual conduct, in violation of Article 134, UCMJ. The court sentenced Appellant to reduction to E-3 and a bad-conduct discharge. The convening authority suspended reduction in grade beyond reduction to E-5. Thereafter, judgment was entered.
This specification is intended to allege what was formerly called adultery, that is, sexual intercourse between two persons, at least one of whom is married to someone else. However, it does not allege that either person was married. It is therefore an inadequate specification. United States v. King, 34 M.J. 95, 97 (C.M.A. 1992).
Only so much of the sentence as provides for reduction to E-5 and a bad-conduct discharge is affirmed. We determine that the findings and sentence, as modified, are correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as modified, are affirmed. | Docket No. 1486 | Coast Guard Court of Criminal Appeals | 9/20/2023 | 9/20/2023 | | 9/20/2023 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V WOODS (2023 WL 7555387) | A military judge sitting as a general court-martial convicted Appellant, consistent with his pleas entered in accordance with a plea agreement, of three specifications of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice (UCMJ). Appellant was sentenced to confinement for nine months and dismissal. Judgment was entered accordingly.
Appellant asserts that: (1) the court-martial lacked jurisdiction over him; and (2) he was denied his right to speedy post-trial processing. We conclude the court-martial had personal jurisdiction, but we grant partial relief for unreasonable post-trial delay.
Decision
Only so much of the sentence as provides for confinement for eight months and a dismissal is approved. We determine that the findings and sentence, as modified, are correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty and the sentence, as modified, are affirmed. | Docket No. 1481 | Coast Guard Court of Criminal Appeals | 11/15/2023 | 11/15/2023 | | 11/15/2023 |