| Coast Guard Court of Criminal Appeals | UNITED STATES V. STEEN (UNPUBLISHED) (2020 WL 808380) | A special court-martial of officer and enlisted members convicted Appellant, contrary to his pleas, of wrongful introduction and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 TAYLOR (2024 WL 4656849) | 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 failure to obey a lawful general regulation, in violation of Article 92, UCMJ. Appellant was sentenced to reduction to E-5 and restriction for 30 days. The convening authority disapproved the restriction,1 leaving only the reduction to E-5. Judgment was entered accordingly.
Before this Court, Appellant has assigned as error that Appellant’s due process right to timely appellate review was violated when the government delayed providing notice of his right to appeal and ultimately took more than a year to transmit his record of trial to this court. The delay is largely attributable to the loss of the record of trial.
Post-Trial Delay: Due Process
Appellant asserts his right to due process was violated because 460 days elapsed from the date he had the right of direct appeal until his record of trial was transmitted to this Court, including 373 days that are attributable to the Government. We disagree. | Docket No. 1503 | Coast Guard Court of Criminal Appeals | 11/4/2024 | 11/4/2024 | | 11/5/2024 |
| 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 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. HERNANDEZ 78 MJ 643 | A military judge sitting as a special court-martial convicted Appellant, pursuant to his pleas, of three specifications of assault consummated by battery in violation of Article 128, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for eight months, reduction to pay grade E-1, and a bad-conduct discharge. Although there was a pretrial agreement, it did not affect the sentence, which the Convening Authority approved.
Appellant asserts that his three convictions under Article 128 were multiplicious.1 We agree and thus consolidate the specifications and reassess the sentence. This moots Appellant’s remaining assertions of unreasonable multiplication of charges and sentence severity. | Docket No. 1452 | Coast Guard Court of Criminal Appeals | 10/31/2018 | 10/31/2018 | | 11/5/2018 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V. GOODELL OPINION 78 MJ 585 | 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 pay grade E-1, confinement for one year, and a bad-conduct discharge, which the Convening Authority approved. While there was a pretrial agreement, it had no impact on the sentence.
Before us, Appellant asserts that:
(1) He had no duty to obey the military protective orders (MPOs) that he pleaded guilty to violating because they lacked a military purpose and unjustifiably deprived him of personal rights; and
(2) A subsequent MPO issued after trial: (a) subjected him to unlawful punishment; (b) constituted unlawful command influence; and (c) denied him the benefit of his pretrial agreement by subjecting him to punishment beyond that agreed upon.1
We disagree and affirm | Docket No. 1458 | Coast Guard Court of Criminal Appeals | 9/10/2018 | 9/10/2018 | | 9/12/2018 |
| 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 | 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 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 |
| Coast Guard Court of Criminal Appeals | UNITED STATES V BROWN (2ND) OPINION (UNPUBLISHED) | 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.
Decision
Only so much of the sentence as provides for 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 newly 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 | 7/19/2024 | 7/19/2024 | | 7/22/2024 |
| 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. 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 PICCININNO 2018 W.L. 5492517 | A military judge sitting as a general court-martial convicted Appellant, pursuant to his pleas, of possession of child pornography under Article 134, Uniform Code of Military Justice (UCMJ). The military judge sentenced Appellant to confinement for sixteen months, reduction to pay grade E-1, and a bad-conduct discharge. The Convening Authority approved the sentence but, pursuant to a pretrial agreement, suspended all confinement in excess of 120 days.
Appellant raises two issues pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982): (1) the court-martial lacked personal jurisdiction over him; and (2) his plea to possessing child pornography was improvident. We disagree.
Jurisdiction
While it is undisputed that Appellant, a Coast Guard reservist, was serving on active duty and thus subject to the UCMJ at the time of the offense, Appellant avers the court-martial lacked jurisdiction at the time of trial for two reasons: (1) the orders recalling him to active duty cited the incorrect statutory authority; and (2) he was improperly retained in the individual ready reserve (IRR). | Docket No. 1454 | Coast Guard Court of Criminal Appeals | 10/30/2018 | 10/30/2018 | | 10/30/2018 |
| 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 | UNITED STATES V RODRIGUEZ 2018 W.L. 3130849 | A military judge sitting as a general court-martial convicted Appellant, contrary to his pleas, of sexual abuse of a child and adultery in violation of Articles 120b and 134, Uniform Code of Military Justice (UCMJ). On 21 September 2016, the military judge sentenced Appellant to reduction to E-1, confinement for eighteen months, and a bad-conduct discharge. On 27 February 2017, the Convening Authority disapproved the reduction and waived automatic forfeitures for a period of six months but otherwise approved the sentence.
Appellant raises four assignments of error: (1) the military judge abused his discretion by admitting evidence that Appellant had a “foot fetish”; (2) the evidence of sexual abuse of a child is legally and factually insufficient; (3) the Staff Judge Advocate misadvised the convening authority about his authority in taking action; and (4) Appellant was prejudiced by unreasonable post-trial delay.1 We disagree and affirm. | Docket No. 1450 | Coast Guard Court of Criminal Appeals | 6/27/2018 | 6/27/2018 | | 6/27/2018 |