| 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 |
| 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 LIVINGSTONE 78 M.J. 619 | Members sitting as a general court-martial convicted Appellant, contrary to his pleas, of two specifications of sexual assault, one specification of extortion (which the military judge later conditionally dismissed), and two specifications of conduct unbecoming an officer and a gentleman in violation of Articles 120, 127, and 133, Uniform Code of Military Justice (UCMJ). The members sentenced Appellant to dismissal and confinement for eight years, which the Convening Authority approved.
Appellant now asserts the following:
(1) The evidence was factually insufficient to support one of his two sexual assault convictions;
(2) The military judge abused his discretion when ruling on the admissibility of evidence under Military Rule of Evidence (M.R.E.) 412;
(3) The evidence was legally and factually insufficient to support both convictions for conduct unbecoming an officer and a gentleman;
(4) The military judge reversibly erred by failing to instruct on mens rea with regard to the conduct unbecoming charges;
(5) The prosecutor committed misconduct when she undertook a discovery obligation she would not normally have and failed to exercise due diligence in executing that obligation, to Appellant’s prejudice; and
(6) Participation by a Special Victims’ Counsel amounted to private counsel providing unauthorized assistance to the trial counsel, to Appellant’s prejudice. | Docket No. 1448 | Coast Guard Court of Criminal Appeals | 10/5/2018 | 10/5/2018 | | 10/15/2018 |
| 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. 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. 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 | 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 |