| Coast Guard Court of Criminal Appeals | UNITED STATES V. LOPEZ (UNPUBLISHED) | A military judge sitting as a special court-martial convicted Appellant, contrary to his pleas, of two specifications of indecent recording, in violation of Article 120c, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for three months, reduction to E-1, and a bad-conduct discharge. The convening authority (CA) disapproved one month of confinement. Judgment was entered accordingly.
Appellant raises four assignments of error (AOEs):
I. The Government’s failure to execute the CA’s action reducing Appellant’s period of confinement violated his Fifth Amendment right to due process.
II. The trial counsel committed prosecutorial misconduct by failing to communicate the convening authority’s action to the confinement facility.
III. The Deputy Judge Advocate General (DJAG) of the Coast Guard engaged in unlawful command influence by seeking to have the Coast Guard Investigative Service (CGIS) close its investigation into a formal Inspector General (IG) complaint about Appellant’s illegal post-trial confinement, obstructing both Appellant and this Court from uncovering direct evidence about the trial counsel’s misconduct, which has negatively affected the fair handling of this case.
IV. This Court erred by denying Appellant’s motion to compel production of direct statements and evidence relating to his illegal confinement, hindering his ability to identify and fully support claims of error before this Court.
Decision
Only so much of the sentence as provides for confinement for two months and a bad-conduct discharge is approved. Appellant shall be paid 26 days of pay and allowances at the E-4 rate. We determine that the findings and sentence, as modified, 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 modified, are affirmed. | Docket No. 1487 | Coast Guard Court of Criminal Appeals | 7/11/2024 | 7/11/2024 | | 7/11/2024 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V TRUITT (84 M.J. 721) | A military judge, sitting as a special court-martial, convicted Appellant of four specifications of violating a lawful general order in violation of Article 92, Uniform Code of Military Justice (UCMJ). One specification was for violating ALCOAST Commandant’s Notice (ACN) 003/20, dated 7 January 2020, by sexually harassing SN SA. The remaining three specifications were for violating the Coast Guard Standards of Ethical Conduct Manual, COMDTINST M5370.8B, para. 7 (1 March 2002), by directing her subordinates to use official time for acts outside their official duties and to use government property for other than authorized purposes. The military judge sentenced Appellant to reduction to E-5 and a letter of reprimand. Judgment was entered accordingly.
Appellant now raises four assignments of error (AOEs), paraphrased as follows:
I. The specification alleging sexual harassment in violation of a lawful general order fails to state an offense;
II. The evidence is legally and factually insufficient to support Appellant’s conviction for sexual harassment in violation of a lawful general order;
III. The specifications alleging violation of the Standards of Ethical Conduct Manual fail to state an offense, and the evidence is legally and factually insufficient to support those guilty findings; and
IV. Appellant was denied the right to trial by a panel of members at a special court-martial in violation of the Due Process Clause of the Fifth Amendment. | Docket No. 1488 | Coast Guard Court of Criminal Appeals | 7/2/2024 | 7/2/2024 | | 7/2/2024 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V HADLEY (MERITS) | Per curiam:
A military judge sitting as a general court-martial convicted Appellant, consistent with his pleas entered in accordance with a plea agreement, of one specification of abusive sexual contact, in violation of Article 120, Uniform Code of Military Justice (UCMJ). Appellant was sentenced to confinement for four months, reduction to E-1, and bad-conduct discharge. 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.
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. 1492 | Coast Guard Court of Criminal Appeals | 3/20/2024 | 3/20/2024 | | 3/20/2024 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. RICHARD (84 M.J. 586) | A general court-martial of members with enlisted representation convicted Appellant, contrary to her pleas, of one specification of involuntary manslaughter of a child, in violation of Article 119, Uniform Code of Military Justice (UCMJ). Appellant was sentenced to confinement for six years, a dishonorable discharge, and reduction to E-1. Judgment was entered accordingly.
We conclude that the specification failed to provide adequate notice of the act(s) or omission(s) on which the involuntary manslaughter conviction was based and that this error was not harmless beyond a reasonable doubt. Accordingly, we reverse and do not reach Appellant’s remaining assignments of error. | Docket No. 1484 | Coast Guard Court of Criminal Appeals | 3/5/2024 | 3/5/2024 | | 3/19/2024 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. CHOCK (84 M.J. 578) | A military judge sitting as a special court-martial convicted Appellant, consistent with his pleas entered in accordance with a plea agreement, of one specification of abusive sexual contact, in violation of Article 120, Uniform Code of Military Justice (UCMJ). Appellant was sentenced to confinement for ten months and reduction to E-1. Judgment was entered accordingly.
Before this Court, Appellant has assigned as error that his due process right to timely appellate review was violated when the Government delayed providing notice of his right to appeal and ultimately took 213 days to transmit his record of trial to this Court.
These delays bespeak a lack of institutional diligence and are unreasonable, warranting some relief. The Government unquestionably has responsibility for required post-trial processing, including sufficient knowledge and supervision to accomplish it in a timely manner. This includes responsibility for correctly assembling the ROT and attachments. As we noted in United States v. Woods, No. 1481, 2023 WL 7555387 at *4 (C.G. Ct. Crim. App. Nov. 15, 2023) (unpublished), both quality and timeliness of records have been suffering in recent years, and improvement to post-trial processing is important to the integrity and perception of military justice in the Coast Guard. We look forward to such improvement, which we are aware is being pursued.
We will disapprove one month of Appellant’s sentence to confinement.
Decision
We determine that the findings are correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty are affirmed. Only so much of the sentence as provides for confinement for nine months and reduction to E-1 is affirmed. | Docket No. 1490 | Coast Guard Court of Criminal Appeals | 2/20/2024 | 2/20/2024 | | 2/27/2024 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. ROSE (MERITS) | Per curiam:
A special court-martial consisting of a military judge alone under Article 16(c)(2), Uniform Code of Military Justice (UCMJ), convicted Appellant, consistent with his pleas entered in accordance with a plea agreement, of one specification of negligent dereliction of duty in violation of Article 92, UCMJ. Appellant was sentenced to reduction to E-5 and a punitive letter of reprimand. 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.
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. 1489 | Coast Guard Court of Criminal Appeals | 12/19/2023 | 12/19/2023 | | 1/10/2024 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V JAMES D (2023 WL 7557349) | A military judge sitting as a general court-martial convicted Appellant, consistent with his pleas entered in accordance with a plea agreement, of three specifications of possession of child pornography and one specification of distribution of child pornography in violation of Article 134, Uniform Code of Military Justice (UCMJ). Appellant was sentenced to confinement for six years, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge. Judgment was entered accordingly.
Appellant asserts that: (1) he suffered illegal pretrial punishment; (2) his counsel were ineffective for failing to address or request credit for pretrial confinement conditions; and (3) he is entitled to relief for unreasonable post-trial delay. We conclude there was no prejudicial error and affirm.
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. 1485 | Coast Guard Court of Criminal Appeals | 11/15/2023 | 11/15/2023 | | 11/15/2023 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V WOODS (2023 WL 7555387) | A military judge sitting as a general court-martial convicted Appellant, consistent with his pleas entered in accordance with a plea agreement, of three specifications of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice (UCMJ). Appellant was sentenced to confinement for nine months and dismissal. Judgment was entered accordingly.
Appellant asserts that: (1) the court-martial lacked jurisdiction over him; and (2) he was denied his right to speedy post-trial processing. We conclude the court-martial had personal jurisdiction, but we grant partial relief for unreasonable post-trial delay.
Decision
Only so much of the sentence as provides for confinement for eight months and a dismissal is approved. We determine that the findings and sentence, as modified, 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 modified, are affirmed. | Docket No. 1481 | Coast Guard Court of Criminal Appeals | 11/15/2023 | 11/15/2023 | | 11/15/2023 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V SHULTZ (2023 WL 6140828) | Appellant was tried by special court-martial composed of military judge alone. Pursuant to his pleas of guilty, entered in accordance with a pretrial agreement, Appellant was convicted of one specification of false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ), and one specification of extramarital sexual conduct, in violation of Article 134, UCMJ. The court sentenced Appellant to reduction to E-3 and a bad-conduct discharge. The convening authority suspended reduction in grade beyond reduction to E-5. Thereafter, judgment was entered.
This specification is intended to allege what was formerly called adultery, that is, sexual intercourse between two persons, at least one of whom is married to someone else. However, it does not allege that either person was married. It is therefore an inadequate specification. United States v. King, 34 M.J. 95, 97 (C.M.A. 1992).
Only so much of the sentence as provides for reduction to E-5 and a bad-conduct discharge is affirmed. We determine that the findings and sentence, as modified, 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 modified, are affirmed. | Docket No. 1486 | Coast Guard Court of Criminal Appeals | 9/20/2023 | 9/20/2023 | | 9/20/2023 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V SAPP (2023 WL 5440570) | Appellant was tried by general court-martial composed of officers. Contrary to his pleas, Appellant was convicted of one specification of assault consummated by a battery, in violation of Article 128, Uniform Code of Military Justice (UCMJ); and one specification of conduct unbecoming an officer by providing false information on an application for a concealed handgun permit, in violation of Article 133, UCMJ. The court sentenced Appellant to forfeiture of $3,920 per month for three months, 60 days restriction, and a punitive letter of reprimand. Judgment was entered accordingly.
Before this Court, Appellant has assigned the following errors:
I. The evidence is legally insufficient to prove that Appellant knowingly provided false information when his incomplete concealed handgun permit application was improperly filed by the Arlington County Circuit Court before he had signed it or attested that the information in the application was correct and complete under the penalty of perjury.
2
II. The military judge abused his discretion when he permitted Ms. JB to provide an unsworn victim impact statement during presentencing proceedings in violation of R.C.M. 1001(c) when she was not the victim of an offense of which appellant was found guilty.
We determine that the findings and sentence are correct in law 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. 001-69-23 | Coast Guard Court of Criminal Appeals | 8/23/2023 | 8/23/2023 | | 8/23/2023 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V GRIJALVA (83 M.J. 669) | Appellant was tried by general court-martial including enlisted members. Contrary to his pleas, Appellant was convicted of one specification of false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ); one specification of obstructing justice, in violation of Article 131b, UCMJ; and one specification of wrongfully broadcasting an intimate visual image, one specification of accessing a computer application without authority and with intent to defraud, one specification of using without authority a means of identification of another person, and one specification of creating a profile on a computer application with intent to defraud, in violation of Article 134, UCMJ. The court sentenced Appellant to confinement for three months, reduction to E-3, and a bad-conduct discharge. Judgment was entered accordingly.
We determine that the findings are correct in law and fact and, on the basis of the entire record, should be approved. Accordingly, the findings of guilty are affirmed. Only so much of the sentence as provides for confinement for two months, reduction to E-3 and a bad-conduct discharge is affirmed. | Docket No. 1482 | Coast Guard Court of Criminal Appeals | 5/9/2023 | 5/9/2023 | | 5/10/2023 |
| Coast Guard Court of Criminal Appeals | IN RE Y.B. PETITION ORDER (83 M.J. 501) | In the pending general court-martial of United States v. Fink, the military judge ruled that Seaman (SN) G.C. may testify that he had a sexual encounter with Petitioner a few months prior to the accused’s alleged assault of Petitioner. The prior alleged encounter has no connection to the charged sexual assault other than to contradict statements made by Petitioner. Petitioner asks this Court to issue a writ of mandamus requiring the military judge to exclude this evidence under Military Rule of Evidence (M.R.E.) 412, Manual for Courts-Martial, United States (2019 ed.). We conclude Petitioner is entitled to relief and grant the writ. | MISC. DOCKET NO. 001-23 | Coast Guard Court of Criminal Appeals | 11/22/2022 | 11/22/2022 | | 12/1/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V ARMITAGE (2022 WL 4127212) | A general court-martial of members including enlisted members convicted Appellant, contrary to his pleas, of one specification each of sexual assault and abusive sexual contact, in violation of Article 120, Uniform Code of Military Justice (UCMJ). The court sentenced Appellant to a dishonorable discharge, reduction to E-1, hard labor without confinement for two months, and restriction for two months. The Convening Authority approved the sentence. Judgment was entered accordingly.
Before this Court, Appellant has assigned five errors (paraphrased):
(1) The evidence for the two specifications of which Appellant was found guilty is neither legally nor factually sufficient.
(2) The prosecutor erred by inserting himself into the argument to the members and by making improper statements concerning Appellant’s failure to testify.
(3) Appellant’s due process right to timely appellate review was violated.
(4) The military judge erred by giving the “Talkington” instruction to the members.
(5) Article 52, UCMJ, is unconstitutional because it allows for non-unanimous findings of guilt. Failure to instruct the members that any finding of guilty requires a unanimous vote was error. | Docket No. 1478 | Coast Guard Court of Criminal Appeals | 9/12/2022 | 9/12/2022 | | 9/12/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. FLORES 2 - 82 M.J. 737 | A general court-martial of members with enlisted representation convicted Appellant, contrary to his pleas, of one specification of abusive sexual contact and one specification of obstructing justice, in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ) (2016). The members sentenced Appellant to confinement for ten months, reduction to E-1, and a dishonorable discharge. The convening authority approved the sentence, and judgment was entered accordingly.
Appellant raises eight assignments of error, paraphrased as follows:
(1) There is legally and factually insufficient evidence supporting Appellant’s conviction for abusive sexual contact.
(2) There was a material variance between what Appellant was charged with—abusive sexual contact by causing bodily harm—and the evidence presented at trial—abusive sexual contact of a person incapable of consenting due to impairment by alcohol—that violated his due process right to not be convicted of an offense with which he was not charged.
(3) The military judge erred in instructing the members to consider the complaining witness’s level of intoxication in determining whether she was “competent” to consent, because her “competence” was not an issue to be decided by the court.1
(4) The trial counsel committed improper argument by misstating the law on consent.
(5) The military judge erred in permitting expert testimony on “clusters of symptoms” experienced by “victims” of “sexual trauma,” and the “statistics” of sexual assault cases that involve alcohol.
(6) Appellant’s trial defense counsel were ineffective for failing to cross-examine the complaining witness about her prior testimony at Appellant’s previous court-martial, or to otherwise introduce her prior testimony.
(7) This Court should grant relief for excessive post-trial delay.
(8) There is legally and factually insufficient evidence supporting Appellant’s conviction for obstructing justice. | Docket No. 1474 | Coast Guard Court of Criminal Appeals | 8/11/2022 | 8/11/2022 | | 8/12/2022 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V BROWN (82 M.J. 702) | A military judge sitting as a special court-martial convicted Appellant, contrary to his pleas, of three specifications of disrespect toward a petty officer and one specification of violation of a lawful general order prohibiting sexual harassment, in violation of Articles 91 and 92, Uniform Code of Military Justice (UCMJ). The court sentenced Appellant to reduction to E-4, a reprimand, and restriction for thirty days. The convening authority approved the sentence. Judgment was entered accordingly. Approving Appellant’s timely application, the Judge Advocate General, U.S. Coast Guard, sent the case to this Court pursuant to Article 69(d), UCMJ.
The findings of guilty to Specification 2 of Charge II and to Charge II are set aside. Specification 2 of Charge II and Charge II are dismissed with prejudice. Only so much of the sentence as provides for reduction to E-6, a reprimand, and restriction for thirty days is approved. The current reprimand, which references the sexual harassment conviction, is set aside. A revised reprimand shall be substituted. We determine that the remaining findings and the reassessed sentence are correct in law and, on the basis of the entire record, should be approved. Accordingly, the remaining findings of guilty and the sentence, as reassessed, are affirmed. | Docket No. 001-69-21 | Coast Guard Court of Criminal Appeals | 6/6/2022 | 6/6/2022 | | 6/8/2022 |