| Coast Guard Court of Criminal Appeals | ORDER - In re Tucker Petition 2019 WL 5280525 | Petitioner is in pretrial confinement and seeks a writ of habeas corpus directing his release from pretrial confinement, asserting that the Commanding Officers who ordered him into pretrial confinement, and persisted upon request for reconsideration, abused their discretion.
Facts
On 28 August 2019, charges were preferred against Petitioner stemming from an incident involving the death of a shipmate that occurred on 26 January 2019. Petitioner was, at the time of the incident, assigned to Coast Guard Cutter DOUGLAS MUNRO, which was on a port call in Dutch Harbor, Alaska. The charges include murder, manslaughter, assault, and maiming, as well as violation of an order, false official statement, and obstructing justice. | MISC. DOCKET NO. 003-19 | Coast Guard Court of Criminal Appeals | 10/18/2019 | 10/18/2019 | | 10/23/2019 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V HARPOLE (2ND) OPINION 79 M.J. 737 | general court-martial of officer and enlisted members convicted Appellant, contrary to his pleas, of one specification of false official statement, two specifications of sexual assault, and one specification of housebreaking, in violation of Articles 107, 120, and 130, UCMJ. The military judge conditionally dismissed one of the sexual assault specifications pending appellate review. The members sentenced Appellant to confinement for seven years, reduction to E-1, and a dishonorable discharge, which the Convening Authority approved.
This is our second time considering this case. A panel of this Court initially affirmed the findings and sentence. United States v. Harpole, No. 1420 (C.G.Ct.Crim.App. Nov. 10, 2016) (unpub.). The United States Court of Appeals for the Armed Forces (CAAF) set aside that decision and remanded so that a military judge could conduct fact-finding on Appellant’s claim that his counsel were ineffective for failing to seek suppression of his statement to a victim advocate on Article 31(b), UCMJ, grounds. The CAAF directed that at the conclusion of the hearing, the record of trial and the military judge’s findings of fact and conclusions of law be
returned to us “for further review in accordance with Article 66, UCMJ.” United States v. Harpole, 77 M.J. 231, 238 (C.A.A.F. 018).
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. 1420 | Coast Guard Court of Criminal Appeals | 12/18/2019 | 12/18/2019 | | 12/19/2019 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V ANGEL (2019 WL 6795622) | 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 sexual assault of a child in violation of Article 120b, Uniform Code of Military Justice (UCMJ) and one specification of wrongful possession of child pornography in violation of Article 134, UCMJ. The military judge sentenced Appellant to confinement for five years, reduction to E-1, and a dishonorable discharge. The Convening Authority approved the sentence, but suspended confinement in excess of fifty months in accordance with the pretrial agreement.
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.
We see an ambiguity in the suspension language of the Convening Authority’s Action, particularly as it diverges from the language of the pretrial agreement. We also see a separate problem in the military judge’s discussion of the pretrial agreement’s suspension terms.
Decision
The Convening Authority’s action is set aside. The record of trial is returned to the Judge Advocate General for remand to the Convening Authority, who shall withdraw the original action and substitute a corrected action. The record shall then be returned to this court for review under Article 66(c), UCMJ. | Docket No. 1467 | Coast Guard Court of Criminal Appeals | 12/13/2019 | 12/13/2019 | | 12/19/2019 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. STEEN (UNPUBLISHED) (2020 WL 808380) | A special court-martial of officer and enlisted members convicted Appellant, contrary to his pleas, of wrongful introduction and distribution of marijuana, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). The members sentenced Appellant to confinement for fifteen days, reduction to E-1, and a bad-conduct discharge, which the Convening Authority approved.
Appellant raises two assignments of error: (1) the military judge abused his discretion by admitting evidence of uncharged misconduct under Military Rule of Evidence (M.R.E.) 404(b), Manual for Courts-Martial, United States (2016 ed.); and (2) the evidence was factually insufficient to support the convictions. We agree that the military judge’s admission of evidence under M.R.E. 404(b) was erroneous, but conclude it was harmless. We reject the second issue summarily, as we are convinced of Appellant’s guilt beyond a reasonable doubt. | Docket No. 1464 | Coast Guard Court of Criminal Appeals | 1/15/2020 | 1/15/2020 | | 1/22/2020 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V BRADDOCK (UNPUBLISHED) | Per curiam:
A military judge sitting alone as a special court-martial convicted Appellant, consistent with his pleas, of four specifications of distribution of marijuana, one specification of use of marijuana, and one specification of assault consummated by a battery, in violation of Articles 112a and 128, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for nine months, reduction to pay grade E-1, and a bad-conduct discharge, which the Convening Authority approved. There was a pretrial agreement, but it had no impact on the sentence.
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant personally asserts that his sentence to a bad conduct discharge is inappropriately severe. We disagree. Reviewing de novo and considering this particular accused and his offenses, see United States v.Olsen, 79 M.J. 682, 691 (C.G. Ct. Crim. App. 2019), we conclude that Appellant’s sentence is appropriate and should be approved. See Article 66(c), UCMJ. | Docket No. 1468 | Coast Guard Court of Criminal Appeals | 3/20/2020 | 3/20/2020 | | 3/25/2020 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V GOODELL (II) OPINION ( 79 M.J. 825 ) | A military judge sitting as a general court-martial convicted Appellant, consistent with his pleas, of one specification of conspiracy to commit aggravated assault and one specification of solicitation to commit an offense, in violation of Articles 81 and 134, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for two years and a bad-conduct discharge. The Convening Authority approved the sentence, but, pursuant to a pretrial agreement, suspended all confinement in excess of eleven months.
Appellant raises six assignments of error: (1) whether the Convening Authority properly ordered a rehearing without setting aside the findings already made on the charges against Appellant; (2) whether the Convening Authority properly ordered a rehearing where no summarized record was prepared and authenticated by the detailed military judge; (3) whether the Convening Authority properly ordered a rehearing where the adjudged sentence included a dishonorable discharge or confinement for more than six months; (4) whether Appellant’s guilty plea was voluntary where it was obtained through a promise to relax an order prohibiting communication with his son; (5) whether the terms in the pretrial agreement regulating Appellant’s future parental visitation with his son are void; and (6) whether this Court may affirm a sentence where a prior conviction was admitted as evidence in sentencing but was later set aside. | Docket No. 1466 | Coast Guard Court of Criminal Appeals | 3/13/2020 | 3/13/2020 | | 3/25/2020 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V GUZMAN2 (79 M.J. 856) | 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.
This is our second time reviewing this case. During our first review, Appellant raised the following issues: (1) whether the military judge abused his discretion by excluding evidence under Military Rule of Evidence (M.R.E.) 412, Manual for Courts-Martial (MCM), United States (2016 ed.); (2) whether the military judge erred by failing to instruct the members that they could not convict Appellant of both of two specifications charged in the alternative; (3) whether Appellant’s convictions for sexual assault by bodily harm and sexual assault of a person incapable of consenting constitute an unreasonable multiplication of charges; (4) whether the addendum to the Staff Judge Advocate’s (SJA’s) recommendation was deficient; (5) whether the evidence supporting the conviction for sexual assault by bodily harm is factually insufficient; and (6) whether the evidence supporting the conviction for sexual assault of a person incapable of consenting is factually insufficient (raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982)). We granted relief on the fourth issue pertaining to the SJA’s recommendation and, without reaching the remaining issues, remanded for new post-trial processing. United States v. Guzman, No. 1461, 2019 WL 2865998, at *2 (C.G. Ct. Crim. App. July 2, 2019). | Docket No. 1461 | Coast Guard Court of Criminal Appeals | 5/7/2020 | 5/7/2020 | | 5/11/2020 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V FLORES (80 M.J. 501) | After a General Court-Martial of officer members returned a verdict against Appellee, the military judge declared a mistrial. The Government appeals. We consider three questions:
(1) whether Article 62, Uniform Code of Military Justice (UCMJ), confers jurisdiction over appeals of mistrial declarations;
(2) whether Appellee waived his opportunity for a mistrial by declining to request one pre-verdict; and
(3) whether the military judge abused his discretion by declaring a mistrial.
We conclude that we have jurisdiction, that Appellee did not waive his opportunity for a mistrial, and that the military judge did not abuse his discretion in declaring one. We thus deny the Government’s appeal.
Background
The impetus for the mistrial was that evidence that had been the subject of extensive litigation and expressly ruled inadmissible was, nonetheless, inadvertently provided to the members as they retired to deliberate on findings. Appellee was charged with abusive sexual contact of two shipmates, assault consummated by battery of one of them, and obstructing justice, in violation of Articles 120, 128, and 134, UCMJ.1 Prior to trial, the Government provided notice under Military Rule of Evidence (M.R.E.) 404(b), Manual for Courts-Martial (MCM), United States (2019 ed.), that it intended to introduce evidence that a third, non-participating witness, Fireman (FN) A.J., alleged that Appellee sexually assaulted her as well. After the Defense moved to suppress the evidence, the Government responded that the evidence was needed to prove obstruction of justice because it was the investigation into FN A.J.’s allegation that Appellee allegedly obstructed. | Docket No. 001-62-20 | Coast Guard Court of Criminal Appeals | 6/1/2020 | 6/1/2020 | | 6/2/2020 |
| 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. 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 |