| Coast Guard Court of Criminal Appeals | UNITED STATES V SCHWARTZ OPINION (UNPUBLISHED) | A general court-martial, military judge alone, convicted Appellant, pursuant to his pleas, of one specification of sexual abuse of a child and three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 |
| 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 | 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 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 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 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 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 MATHEWS - UNPLISHED | 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 willfully disobeying a superior commissioned officer, in violation of Article 90, Uniform Code of Military Justice (UCMJ); one specification of assault and battery, in violation of Article 128, UCMJ; and one specification of obstructing justice, in violation of Article 134, UCMJ. The military judge sentenced Appellant to reduction to E-1, confinement for sixty days, and a bad-conduct discharge. The Convening Authority approved only so much of the sentence extending to reduction to E-1, confinement for forty-three days and a bad-conduct discharge and suspended the bad-conduct discharge, in accordance with the pretrial agreement. | Docket No. 1451 | Coast Guard Court of Criminal Appeals | 12/11/2017 | 12/11/2017 | | 12/11/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V SAPP - UNPUBLISHED | 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 two specifications of attempted larceny, in violation of Article 80, Uniform Code of Military Justice (UCMJ); one specification of conspiring to commit larceny, in violation of Article 81, UCMJ; one specification of unauthorized absence, in violation of Article 86, UCMJ; one specification of larceny, in violation of Article 121, UCMJ; one specification of housebreaking, in violation of Article 130, UCMJ; and one specification of obstruction of justice, in violation of Article 134, UCMJ. The military judge sentenced Appellant to confinement for ninety days, reduction to E-1, and a bad-conduct discharge. The Convening Authority approved the sentence, and suspended for six months the bad-conduct discharge, reduction below E-2, and confinement in excess of fifty days, pursuant to the pretrial agreement. | Docket No. 1318 | Coast Guard Court of Criminal Appeals | 6/7/2010 | 6/7/2010 | | 10/30/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V NETZEL - UNPUBLISHED | 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 one specification of possession of child pornography, and one specification of violating 18 U.S.C. 1470 by attempting to transfer obscene material in interstate commerce to a minor, both in violation of Article 134, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for fifteen months, reduction to E-1, and a dishonorable discharge. The Convening Authority approved the sentence as adjudged. The pretrial agreement did not affect the sentence. | Docket No. 1327 | Coast Guard Court of Criminal Appeals | 6/9/2010 | 6/9/2010 | | 10/30/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V DALY - 69 MJ 549 | This is a Government appeal under Article 62, Uniform Code of Military Justice (UCMJ). On 5 March 2010, the military judge dismissed the single charge under Article 134, UCMJ, and its four specifications. The Government requested reconsideration on17 March 2010, which the military judge summarily denied on 26 March 2010. The Government gave notice of appeal on 29 March 2010. On 17 May 2010, the Government filed with this Court the record of trial, which had been authenticated on 2 May 2010. The Government filed its brief on 7 June 2010. | Docket No. 001-62-10 | Coast Guard Court of Criminal Appeals | 6/14/2010 | 6/14/2010 | | 10/30/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V NEWBY - UNPUBLISHED | 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 one specification of dereliction of duty, in violation of Article 92, Uniform Code of Military Justice (UCMJ); two specifications of assault, in violation of Article 128, UCMJ; and one specification of making a false official statement, in violation of Article 107, UCMJ. The military judge sentenced Appellant to confinement for sixty days, restriction for forty-five days, reduction to pay grade E-2, forfeiture of fifty dollars per month for twelve months, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged except for the restriction, but suspended the bad-conduct discharge for six months pursuant to the pretrial agreement. | Docket No. 1316 | Coast Guard Court of Criminal Appeals | 7/14/2010 | 7/14/2010 | | 10/30/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V OWENS - UNPUBLISHED | 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 one specification of conspiracy to commit larceny, in violation of Article 81, Uniform Code of Military Justice (UCMJ), and one specification of larceny, in violation of Article 121, UCMJ. The military judge sentenced Appellant to confinement for forty-five days, reduction to E-3, and a bad-conduct discharge. The Convening Authority approved the sentence as adjudged. The pretrial agreement did not affect the sentence. | Docket No. 1333 | Coast Guard Court of Criminal Appeals | 8/13/2010 | 8/13/2010 | | 10/30/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V CRUZ - UNPUBLISHED | 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 twenty specifications of larceny, in violation of Article 121, UCMJ. The military judge sentenced Appellant to confinement for 120 days, reduction to E-1, a $2,500.00 fine, and a bad-conduct discharge. Pursuant to the pretrial agreement, the Convening Authority disapproved confinement in excess of ninety days and the $2,500.00 fine, and otherwise approved the sentence as adjudged. | Docket No. 1331 | Coast Guard Court of Criminal Appeals | 8/19/2010 | 8/19/2010 | | 10/30/2017 |