| 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 | 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. 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 | 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 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. 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 | 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. 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 | UNITED STATES V MARTINEZROQUE (MERITS) | A military judge sitting as a general court-martial convicted Appellant, pursuant to his pleas, entered in accordance with a pretrial agreement, of one specification of false official statements, in violation of Article 107, Uniform Code of Military Justice (UCMJ), and one specification of indecent language, in violation of Article 134, UCMJ. The military judge sentenced Appellant to reduction to E-1, confinement for twelve months, and a bad-conduct discharge, which the Convening Authority approved. | Docket No. 1465 | Coast Guard Court of Criminal Appeals | 10/4/2019 | 10/4/2019 | | 10/7/2019 |
| 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 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 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. 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 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 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 |