| Coast Guard Court of Criminal Appeals | UNITED STATES V. OLSEN 79 M.J. 682 | A military judge sitting as a general court-martial convicted Appellant, consistent with his pleas, of one specification of attempting to violate a lawful general order and three specifications of violating a lawful general order, in violation of Articles 80 and 92, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for ninety days, reduction to E-1, and a bad-conduct discharge. Although there was a pretrial agreement, it did not affect the sentence and the Convening Authority approved the sentence as adjudged.
Before us, Appellant asserts that: (1) Charge I (attempted violation of a general order) and Charge II (violation of a general order) are multiplicious; (2) all charges and specifications constitute an unreasonable multiplication of charges; (3) the military judge erred by admitting
improper sentencing evidence; and (4) the sentence is inappropriately severe. We address each
but we find no prejudicial error and affirm. | Docket No. 1462 | Coast Guard Court of Criminal Appeals | 9/25/2019 | 9/25/2019 | | 9/25/2019 |
| Coast Guard Court of Criminal Appeals | IN RE A.H. PETITION - ORDER (79 M.J. 672) | Petitioner, an alleged crime victim under Article 6b, Uniform Code of Military Justice (UCMJ), seeks a writ of mandamus reversing a military judge’s order in the pending case of United States v. AMT3 Daniel Rankin without allowing Petitioner the right to move to quash or modify said subpoena; and a stay pending our decision on granting a writ.1 On 26 August 2019, we granted a stay for two days, and ordered Petitioner to provide certain documents from the trial proceedings to date; to address the question of whether a victim has a right to a second opportunity to raise objections that could have been raised earlier in a case where the victim has already submitted an objection; and to provide to this Court what Petitioner would submit to the military judge if the petition is granted. Petitioner filed a response to our order on 27 August 2019. | MISC. DOCKET NO. 002-19 | Coast Guard Court of Criminal Appeals | 8/28/2019 | 8/28/2019 | | 10/7/2019 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. GOODELL 79 M.J. 614: (on reconsid) | 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 E-1, confinement for one year, and a bad-conduct discharge, which the Convening Authority approved. The pretrial agreement had no impact on the sentence.
This Court affirmed the findings and sentence on 10 September 2018. On 10 October 2018, Appellant requested reconsideration, after learning that the military judge was serving as a prosecutor at the same time she presided over this case. We granted reconsideration on 30 October 2018, and ordered briefing. On 19 December 2018, after briefing by both parties, we ordered a post-trial hearing in accordance with United States v. DuBay, 37 C.M.R. 411 (C.M.A. 1967).
Following the post-trial hearing, Appellant assigned the following errors:
I. Appellant was denied due process when he was tried by a military judge who failed to disclose that she concurrently served as trial counsel in another court-martial.
II. The military judge was impermissibly detailed to preside over Appellant’s court-martial while she served as lead trial counsel in another court-martial.
III. Article 16’s requirement that the accused know the identity of the military judge when choosing to be tried by judge alone was not satisfied when Appellant did not know his judge was actively serving as a prosecutor.
We consider the first issue and reverse. We do not reach the remaining issues. Our opinion of 10 September 2018 is withdrawn and replaced with the present opinion. | Docket No.1458 | Coast Guard Court of Criminal Appeals | 7/3/2019 | 7/3/2019 | | 7/3/2019 |
| Coast Guard Court of Criminal Appeals | United States V GUZMAN 2019 WL 2865998 | A general court-martial composed of members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of making false official statements and two specifications of sexual assault (one of which the military judge conditionally dismissed), in violation of Articles 107 and 120, Uniform Code of Military Justice (UCMJ). Appellant was sentenced to confinement for four years, forfeiture of all pay and allowances, reduction to E-1, and a dishonorable discharge, which the Convening Authority approved.
Appellant raises several issues,1 but we reach only one: whether the Staff Judge Advocate’s (SJA’s) advice to the Convening Authority was deficient. We conclude it was and remand for new post-trial processing.
Article 60, UCMJ, previously conferred unfettered discretion on convening authorities to
modify findings and sentences, so long as there was no increase in severity. Article 60(c)(1),
UCMJ (1996); United States v. Nerad, 69 M.J. 138, 145 (C.A.A.F. 2010). That changed when
Congress amended Article 60 to provide that, subject to listed exceptions, convening authorities
“may not disapprove, commute, or suspend in whole or in part an adjudged sentence of
confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad
conduct discharge.” Pub.L. No. 113–66 (2013). This amendment became effective on 24 June
2014. For cases where either all offenses were committed prior to that date, or where some
offenses occurred before that date and some after (known as “straddling offenses cases”), the
pre-2014 version of Article 60 applies. Id.; Pub.L. No. 113–291 (2014). | Docket No. 1461 | Coast Guard Court of Criminal Appeals | 7/2/2019 | 7/2/2019 | | 7/3/2019 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. CORREA (MERITS) | Appellant was tried by general 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 failing to obey a lawful order by wrongfully possessing drug paraphernalia in government housing, in violation of Article 92, Uniform Code of Military Justice (UCMJ); two specifications of false official statements, in violation of Article 107, UCMJ; five specifications of distribution, possession with intent to distribute, introduction, and use of a controlled substance, in violation of Article 112a, UCMJ; and one specification of conduct of a nature to bring discredit upon the armed forces, in violation of Article 134, UCMJ. The military judge sentenced Appellant to confinement for twelve months, reduction to E-1, and a bad-conduct discharge. The Convening Authority approved the sentence. The pretrial agreement did not affect the sentence. | Docket No. 0368 | Coast Guard Court of Criminal Appeals | 5/15/2019 | 5/15/2019 | | 5/21/2019 |
| 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 |
| Coast Guard Court of Criminal Appeals | ORDER IN RE C. P-B PETITION 78 M.J. 824.PDF | Petitioner, an alleged crime victim under Article 6b, Uniform Code of Military Justice, seeks extraordinary relief in the nature of a writ of mandamus requiring the military judge in the case of United States v. EM1 Michael A. Badar to exclude certain evidence under Military Rule of Evidence (M.R.E.) 412, Manual for Courts-Martial, United States (2016 ed.). We conclude that relief is not warranted.
Background
The accused, EM1 Badar, is pending a general-court martial for, among other charges, sexually assaulting Petitioner and, in a separate incident, assaulting Ms. H.R. Trial defense counsel raised a motion in limine seeking a ruling on the admissibility of evidence under M.R.E. 412 of Petitioner’s alleged romantic and sexual relationship with Mr. S.T.
At a motions session, Mr. S.T. testified substantially as follows:
- Mr. S.T. met the accused and Petitioner, who were married and living together at the time, through a mutual social group. Mr. S.T. and Petitioner developed a close personal relationship that included working out together, eating lunch together, and frequent communication.
- Petitioner confided in Mr. S.T. that she was experiencing marital tensions with the accused and expressed fear of where she would live if the marriage ended. Mr. S.T. offered that she could use a spare bedroom in his home if it became necessary.
- Within their social group, rumors developed that Mr. S.T. and Petitioner had a sexual relationship. Although Mr. S.T. denied such rumors were true at that time, the rumors caused tensions within the social group and further tensions within Petitioner’s and the accused’s marriage, including the accused alleging that Petitioner was emotionally cheating on him. | MISC. DOCKET NO. 001-19 | Coast Guard Court of Criminal Appeals | 3/18/2019 | 3/18/2019 | | 8/25/2020 |
| 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. 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 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 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. 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 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 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 | 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 |