| Coast Guard Court of Criminal Appeals | UNITED STATES V STIREWALT - 58 MJ 552 | This represents the second occasion for this Court to review this case pursuant to Article 66, Uniform Code of Military Justice (UCMJ), and the third time it has been before us. Because of the case’s unusual procedural history, a brief recitation of its background is provided.
On 17 June 1997, Appellant was convicted of the following offenses by a general court-martial composed of officer and enlisted members: four specifications of maltreatment by sexual harassment, one specification of rape, one specification of forcible sodomy, three specifications of assault consummated by a battery, four specifications of adultery, and four specifications of indecent assault, in violation of Articles 93, 120, 125, 128, and 134 of the UCMJ, respectively. Prior to sentencing, the original military judge dismissed two specifications of maltreatment, two specifications of assault consummated by a battery, and one specification of adultery as multiplicious. The members sentenced Appellant to reduction to paygrade E-1, forfeiture of all pay and allowances, confinement for ten years, and a dishonorable discharge. On 29 October 1997, the convening authority approved the findings and sentence and ordered it executed with the exception of the dishonorable discharge. For a detailed recitation of the facts underlying the aforementioned charges, see United States v. Stirewalt, 53 M.J. 582 (C.G. Ct. Crim. App. 2000). | Docket No. 1089 | Coast Guard Court of Criminal Appeals | 3/11/2003 | 3/11/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V FREEMAN - PER CURIAM | Appellant was tried by special court-martial, judge alone. Pursuant to his guilty pleas, entered in accordance with a pretrial agreement, he was convicted of the following offenses: one specification of conspiracy with Coast Guard Fireman Apprentice James R. Frye to commit larceny of $600 from a Coast Guard shipmate, in violation of Article 81, Uniform Code of Military Justice (UCMJ); one specification of larceny of a shipmate's Automated Teller Machine (ATM) card, and two specifications of larceny of $100 from that shipmate, in violation of Article 121, UCMJ. The military judge sentenced Appellant to a bad conduct discharge (BCD), confinement for four months, and a fine of $300. The convening authority approved the BCD, the fine of $300, and a reduced period of confinement of 75 days, which was within the terms of the pretrial agreement. Before this Court, Appellant has assigned three errors, all of which are rejected as described below. | Docket No. 1174 | Coast Guard Court of Criminal Appeals | 3/20/2003 | 3/20/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V FRYE - PER CURIAM | Appellant was tried by special court-martial, judge alone. Pursuant to his guilty pleas, entered in accordance with a pretrial agreement, he was convicted of the following offenses: one specification of conspiracy with Coast Guard Seaman Recruit Aaron M. Freeman to commit larceny of $600 from a Coast Guard shipmate, in violation of Article 81, Uniform Code of Military Justice (UCMJ); one specification of wrongful appropriation of a shipmate's Automated Teller Machine (ATM) card, and one specification of larceny of $400 from that shipmate, in violation of Article 121, UCMJ. The military judge sentenced Appellant to a bad conduct discharge (BCD), confinement for 100 days, and a fine of $200. The convening authority approved the BCD, the fine of $200, and a reduced period of confinement of 75 days, which was within the terms of the pretrial agreement. Before this Court, Appellant has assigned two errors both of which are rejected as described below. | Docket No. 1173 | Coast Guard Court of Criminal Appeals | 3/20/2003 | 3/20/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V MEEK - 58 MJ 579 | Appellant was tried by special court-martial, military judge alone. He was charged with one specification of desertion in violation of Article 85, Uniform Code of Military Justice (UCMJ); one specification of missing movement by design in violation of Article 87, UCMJ; and one specification of wrongful use of marijuana in violation of Article 112a, UCMJ. Pursuant to a pretrial agreement, Appellant pled not guilty to desertion, and entered pleas of guilty to the lesser included offense of unauthorized absence terminated by apprehension in violation of Article 86, UCMJ and to the charges and specifications of missing movement by design and illegal drug use. According to a stipulation of fact and the Care1 inquiry during the trial, Appellant failed to return to USCGC BOUTWELL after a period of authorized leave, and remained absent from 18 February 2001 until 24 March 2001, when he was apprehended in Arkansas by local authorities. While absent, he missed USCGC BOUTWELL’s scheduled movement from Golfito, Costa Rica to Alameda, California and used marijuana. The military judge accepted Appellant’s pleas, and sentenced Appellant to 75 days confinement, reduction to paygrade E-1, and a bad conduct discharge. The military judge, with concurrence of both the trial counsel and trial defense counsel, determined that Appellant was entitled to credit for 53 days of pretrial confinement under United States v. Allen, 17 M.J. 126 (C.M.A. 1984). The convening authority disapproved the findings of guilt to the charge and specification of unauthorized absence, approved the remaining findings, and approved the sentence as adjudged, but suspended all confinement in excess of 60 days for a period of 12 months as provided under the pre-trial agreement. | Docket No. 1176 | Coast Guard Court of Criminal Appeals | 3/27/2003 | 3/27/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V OSUNA - 58 MJ 879 | The record in this case was first acted upon by this Court on 28 November 2001 in a decision which affirmed the findings of guilty, and returned the record for a new convening authority’s action on the sentence. That sentence action has been completed by the convening authority, and has resulted in his reducing the earlier approved dishonorable discharge to a bad conduct discharge, and approval again of the remaining adjudged sentence of confinement for three months and reduction to paygrade E-1. Before this Court, Appellant has reasserted an error assigned by him earlier, that the evidence of record is insufficient to support a finding of guilt beyond a reasonable doubt for two specifications alleging maltreatment of a Seaman Apprentice (SA) under his authority as an Honor Guard trainee.2 This assignment was rejected by two of the three judges on this panel during our first review of the case, with a determination that the findings of guilty were both legally and factually sufficient. As the third member of the panel, I dissented from this view, finding the two specifications of maltreatment not proven beyond a reasonable doubt. Now, Appellant asks us to revisit the majority’s decision in this regard. In so doing, he notes that the question of what extent a service court is bound by its previous factual findings is presently pending before the United States Court of Appeals for the Armed Forces in the case of United States v. Riley, 57 M.J. 157 (C.A.A.F. 2002). | Docket No. 1122 | Coast Guard Court of Criminal Appeals | 4/9/2003 | 4/9/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V PINTOS - 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, he was found guilty of one specification of desertion in violation of Article 85, Uniform Code of Military Justice (UCMJ). The judge sentenced Appellant to a bad conduct discharge (BCD), confinement for ninety days, and reduction to paygrade E-1. The convening authority approved the adjudged sentence, but suspended all confinement not already served for twelve months from the date sentence was announced, and credited Appellant with sixty-three days of pretrial confinement in accordance with United States v. Allen, 17 M.J. 126 (C.M.A. 1984). This had the effect of releasing Appellant from confinement on the day sentence was announced. | Docket No. 1175 | Coast Guard Court of Criminal Appeals | 4/25/2003 | 4/25/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V TARDIF - 58 MJ 714 | On 26 March 2001, when we first reviewed this case, this Court set aside a twelve day unauthorized absence conviction and dismissed that charge and specification,. We affirmed the remaining findings of guilty of assaulting a child under 16 years of age and the approved sentence of a dishonorable discharge, confinement for two years, forfeiture of all pay and allowances, and reduction to paygrade E-1. On 25 April 2001, this Court reconsidered and reaffirmed that decision, and, in addition, ordered confinement credit pursuant to United States v. Allen, 17 M.J. 126 (C.A.A.F. 1984) for twelve days of incarceration by civil authorities, which had formed the basis for the earlier unauthorized absence charge. In separate opinions to both of those decisions, I concurred with all but the affirming of two years confinement. Following United States v. Collazo, 53 M.J. 721 (A. Ct. Crim. App. 2000), I would have reduced the confinement to 21 months based on a delay of 115 days in forwarding the record for review by this Court after the convening authority had acted. | Docket No. 1141 | Coast Guard Court of Criminal Appeals | 5/14/2003 | 5/14/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V BULLA - 58 MJ 715 | 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 found guilty of the following offenses: two specifications of unauthorized absence in violation of Article 86, Uniform Code of Military Justice (UCMJ); one specification of wrongful use of cocaine, in violation of Article 112(a), UCMJ; and one specification of wrongful appropriation of military property in violation of Article 121, UCMJ. Appellant was sentenced to a bad conduct discharge (BCD), confinement for forty-nine days, reduction to paygrade E-1, and forfeiture of two-thirds pay for two months. With respect to the adjudged sentence, the pretrial agreement allowed approval of all elements, requiring only that the convening authority suspend the BCD for a period of twelve months from the date of the convening authority’s action. Additionally, however, the pretrial agreement included a misconduct provision that permitted the convening authority, among other things, to disregard the sentence limiting part of the pretrial agreement if the Appellant committed a violation of the UCMJ between the time the sentence was announced at her court-martial and the time the convening authority acted on the sentence. | Docket No. 1171 | Coast Guard Court of Criminal Appeals | 5/16/2003 | 5/16/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V HUTCHISON - 58 MJ 744 | A panel of this Court first decided this case on 27 June 2001, and affirmed findings of guilty and twenty-eight months confinement. However, after considering, among other things, Appellant’s subsequent conviction and punishment by state authorities for the same acts underlying the court-martial offenses, it disapproved that portion of the sentence providing for a bad conduct discharge and reduction to paygrade E-1. Upon request by the Government, the Court sitting as a whole reconsidered and reaffirmed that decision, but limited its decision to legal issues relating to the Court’s consideration of the state proceeding. Finding no error contributing to the sentence action, the Court expressly refrained from reviewing the court-martial sentence again, noting that at least one of our higher court’s judges, former Chief Judge Everett, believed it was not in our power to reconsider en banc a panel’s determination of sentence appropriateness. Thereafter, pursuant to Article 67(a)(2), the Judge Advocate General (JAG) ordered the case sent to the Court of Appeals for the Armed Forces. The JAG certified four issues for review.4 On 30 August 2002, that Court remanded the record to us for clarification in order to determine whether this Court abused our discretion by seeking to lessen the effect of the punishment from the state court proceedings, rather than properly exercising our Article 66, UCMJ, authority by taking into account the conviction and punishment by state authorities in considering whether the military sentence was appropriate. Our superior court specifically directed us to provide that clarification in the form of a de novo review of sentence appropriateness under Article 66(c), UCMJ. We were further instructed to then return the record directly to the Court of Appeals of the Armed Forces in order to allow them to complete their review under Article 67, UCMJ. United States v. Hutchison, 57 M.J. 231, 234 (C.A.A.F. 2002). | Docket No. 1090 | Coast Guard Court of Criminal Appeals | 6/3/2003 | 6/3/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V REDLINSKI - 59 MJ 562 | On 30 October 2001, this Court issued a decision in this case, United States v. Redlinski, 56 M.J. 508, 521 (C.G. Ct. Crim. App. 2001), which was appealed to the Court of Appeals for the Armed Forces. On 21 February 2003, that Court reversed as to Specification 2 of the Charge and as to the sentence, but affirmed in all other respects. United States v. Redlinski, 58 M.J. 117 (2003). After setting aside the finding of guilty of Specification 2 of the Charge and the sentence, the Court remanded the record with direction that this Court could either dismiss Specification 2 of the Charge and reassess the sentence, or we could order a rehearing. | Docket No. 1116 | Coast Guard Court of Criminal Appeals | 6/24/2003 | 6/24/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V HUDSON - 58 MJ 830 | UNITED STATES V HUDSON - 58 MJ 830
Appellant was tried by special court-martial, military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, he was convicted of one specification of wrongful possession of Oxycondone Hydrochloride (OxyContin), a schedule II controlled substance, and one specification of wrongful use of OxyContin, in violation of Article 112a of the Uniform Code of Military Justice (UCMJ); one specification of unauthorized absence for two days, in violation of Article 86, UCMJ; one specification of failure to obey a lawful order by wrongfully possessing four bottles of liquor in his barracks room, in violation of Article 92, UCMJ; one specification of wrongful appropriation of military property of a value in excess of $100, in violation of Article 121,UCMJ; and one specification of breaking restriction when he commenced his unauthorized absence, in violation of Article 134, UCMJ. | Docket No. 1159 | Coast Guard Court of Criminal Appeals | 6/30/2003 | 6/30/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V Drews - Per Curiam | 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 found guilty of the following offenses: one specification of violating a lawful general order, in violation of Article 92 of the Uniform Code of Military Justice (UCMJ); two specifications of sodomy with a child, in violation of Article 125, UCMJ; and one specification of wrongful solicitation to commit an indecent act, two specifications of an indecent act upon a child, and two specifications of indecent liberties with a child, in violation of Article 134, UCMJ.
Appellant was sentenced to a bad conduct discharge, confinement for seven years, and reduction to pay grade E-1. The Convening Authority approved the sentence but, in accordance with the pretrial agreement, suspended execution of the confinement in excess of fifty-five months for a period of fifty-five months from the date the sentence was adjudged. 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. The Government, having examined the record, submits that the findings and sentence are correct in fact and law. | Docket No. 1181 | Coast Guard Court of Criminal Appeals | 7/16/2003 | 7/16/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V DATZ - 59 MJ 510 | Appellant was tried by a general court-martial composed of officer and enlisted members. Contrary to his pleas of not guilty, he was convicted of the following offenses: one specification of striking a Petty Officer and one specification of treating a Petty Officer with contempt in violation of Article 91, Uniform Code of Military Justice (UCMJ); three specifications of dereliction of duty and one specification of violating a lawful general regulation in violation of Article 92, UCMJ; one specification of rape in violation of Article 120, UCMJ; and one specification of unlawful entry in violation of Article 134, UCMJ. The members sentenced Appellant to reduction to pay grade E-3 and confinement for three months. The convening authority approved the sentence as adjudged, and the Acting Judge Advocate General of the Coast Guard referred the record to this Court pursuant to Article 69(d), UCMJ. | Docket No. 001-69-01 | Coast Guard Court of Criminal Appeals | 8/6/2003 | 8/6/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V LIBECAP - 59 MJ 561 | On 30 August 2002, this Court affirmed the findings of guilty in this case, but set aside that portion of the Convening Authority’s action relating to the sentence, due to an improper provision in the pretrial agreement requiring Appellant to request a bad conduct discharge (BCD). United States v. Libecap, 57 M.J. 611, 618 (C.G. Ct. Crim. App. 2002). The record was returned to the Convening Authority who was authorized to disapprove the adjudged sentence of a BCD, confinement for six months, forfeiture of $1,134.00 pay per month for six months, and reduction to E-1, and order a sentence rehearing, or he could approve either the sentence previously approved, minus the BCD, or a lesser sentence without the BCD. The Convening Authority chose to disapprove the sentence and order a sentence rehearing. Consistent with our decision, the original pretrial agreement remained in effect absent the improper provision. At the rehearing before a judge alone, the military judge imposed a BCD, confinement for 125 days, and reduction to E-1. The Convening Authority approved only so much of the sentence as provides for a BCD, confinement for 100 days, and reduction to E-1, with credit given for 100 days confinement previously served following the original sentence. The Convening Authority also expressly waived, in favor of Appellant’s dependent, any forfeitures arising by operation of Article 58b, UCMJ. 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. 1154 | Coast Guard Court of Criminal Appeals | 8/15/2003 | 8/15/2003 | | 10/5/2017 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V ISAAC - 59 MJ 537.PDF | Appellant was tried by general court-martial, military judge alone. Pursuant to a pretrial agreement, Appellant entered pleas of guilty to one specification of simple assault in violation of Article 128, Uniform Code of Military Justice (UCMJ) as a lesser included offense of a charge and specification of indecent assault under Article 134, UCMJ, and to three specifications of conduct unbecoming an officer and a gentleman in violation of Article 133, UCMJ. The simple assault involved Appellant’s acts toward a female fireman (E-3) who was asleep in a female berthing area aboard USCGC MUNRO (WHEC 724) in the early morning hours during a port call in Kodiak, Alaska. The Article 133, UCMJ, violations involved Appellant “forcefully” (sic) picking up and spinning a female petty officer (E-4), “forcefully” (sic) picking up and carrying a female seaman apprentice (E-2) approximately thirty feet, and “forcefully” (sic) picking up and carrying a female petty officer (E-5) on his shoulder. The latter three acts occurred during port calls in Mazatlan, Mexico and San Diego, California. At the time of each of the offenses, Appellant was assigned as operations officer, third-highest ranking officer, on board USCGC MUNRO, a high endurance cutter with a mixed-gender crew of approximately 160. The military judge accepted Appellant’s pleas, entered findings of guilty, and sentenced Appellant to a reprimand and dismissal from the service. The Government, as required by the pretrial agreement, withdrew a number of other charges and did not attempt to prove the charge of indecent assault to which Appellant pled not guilty. The Convening Authority approved the sentence as adjudged. The pretrial agreement required disapproval of fines or forfeitures of over $5,000 and all confinement, but allowed approval of a dismissal, lesser forms of restraint, and other lawful punishments. | Docket No. 1179 | Coast Guard Court of Criminal Appeals | 8/19/2003 | 8/19/2003 | | 10/5/2017 |