United States v. Private E2 KENNETH W. BROGAN ( 2014 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
COOK, CAMPANELLA, and HAIGHT
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 KENNETH W. BROGAN
United States Army, Appellant
ARMY 20130419
Headquarters, Fort Bliss
Timothy P. Hayes, Jr., Military Judge
Colonel Edward K. Lawson IV, Staff Judge Advocate (pretrial)
Colonel Karen H. Carlisle, Staff Judge Advocate (post-trial)
For Appellant: Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Aaron R.
Inkenbrandt, JA.
For Appellee: Lieutenant Colonel James L. Varley, JA.
19 May 2014
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MEMORANDUM OPINION
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This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
CAMPANELLA, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of conspiracy to violate a lawful general
regulation, one specification of violating a lawful general regulation, and one
specification of obstructing justice, in violation of Articles 81, 92, and 134 of the
Uniform Code of Military Justice, 10 U.S.C. §§ 881, 892, and 934 [hereinafter
UCMJ]. 1 The military judge sentenced appellant to a dishonorable discharge and
1
After entry of pleas but before findings, the military judge dismissed one
specification of violating a lawful general regulation and one specification of
wrongfully communicating a threat, in violation of Articles 92 and 134, UCMJ.
BROGAN—ARMY 20130419
confinement for four years. The convening authority approved only a bad-conduct
discharge and confinement for two years. 2
This case is before us for review pursuant to Article 66, UCMJ. Appellant
submitted a merits pleading to this court and personally raised issues pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). We find one issue raised
personally by appellant warrants discussion and relief. We find the remaining issues
to be without merit.
BACKGROUND
Around October, 2011, appellant became a member of an extremist
organization in El Paso, Texas. 3 The organization, dubbed the “20th Infantry,” was
composed of approximately fourteen members, both military and civilian. The
primary aim of the organization was to protect the U.S.-Mexico border against drug
cartel members and drug traffickers through the use of lethal force, conduct
surveillance on local Muslims, and prepare for a breakdown in U.S. government
functions. Appellant was aware of the aims of the group when he joined the 20th
Infantry and throughout his membership in the group.
The group was organized like a military unit. The members wore uniforms,
carried weapons, and had a rank structure and specific job designations. At various
times throughout late 2011 and into the summer of 2012, appellant attended group
meetings and training events wherein he participated in planning efforts and
discussions aimed at ambushing and killing drug traffickers and cartel members at
various locations. During at least one training event, appellant personally taught
squad movement and weapons firing techniques to organization members.
In September 2012, the group’s “executive officer,” Specialist (SPC) MM,
was admitted to a mental health facility for treatment. The group believed SPC MM
might be inclined to cooperate with law enforcement and disclose their activities.
2
The staff judge advocate recommended that the convening authority approve forty-
seven months of confinement providing appellant with a one-month reduction in
confinement to moot any issue of post-trial delay.
3
Army Reg. 600-20, Army Command Policy, para. 4-12 (Extremist Organizations
and Activities) (18 Mar. 2008) (RAR, 27 Apr. 2010) explains that “extremist
organizations and activities are ones that advocate racial, gender or ethnic hatred or
intolerance; advocate, create, or engage in illegal discrimination based on race,
color, gender, religion, or national origin, or advocate the use of or use force or
violence or unlawful means to deprive individuals of their rights under the United
States Constitution or the laws of the United States, or any State, by unlawful
means.”
2
BROGAN—ARMY 20130419
As a result, the group’s leader, Staff Sergeant Mallar, instructed the members to not
cooperate with law enforcement if they were questioned. Subsequently, appellant
personally threatened SPC MM with bodily harm if he cooperated with law
enforcement. This action formed the basis for the obstructing justice charge.
Eventually, the group’s activities were uncovered by law enforcement. The
government charged appellant, inter alia, with one specification of conspiracy to fail
to obey Army Regulation (AR) 600-20 by wrongfully participating in an extremist
organization as well as one specification of actually failing to obey AR 600-20 by
wrongfully participating in an extremist organization.
LAW AND DISCUSSION
Unreasonable Multiplication of Charges
“What is substantially one transaction should not be made the basis for an
unreasonable multiplication of charges against one person.” Rule for Courts–Martial
307(c)(4). The prohibition against unreasonable multiplication of charges
“addresses those features of military law that increase the potential for overreaching
in the exercise of prosecutorial discretion.” United States v. Campbell, 71 M.J. 19,
23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334, 337 (C.A.A.F.
2001)). In Quiroz, our superior court listed five factors to help guide our analysis of
whether charges have been unreasonably multiplied:
(1) Did the accused object at trial that there was an
unreasonable multiplication of charges and/or
specifications?;
(2) Is each charge and specification aimed at distinctly
separate criminal acts?;
(3) Does the number of charges and specifications
misrepresent or exaggerate the appellant’s criminality?;
(4) Does the number of charges and specifications
[unreasonably] increase the appellant’s punitive
exposure?; and
(5) Is there any evidence of prosecutorial overreaching or
abuse in the drafting of the charges?
55 M.J. at 338–39 (internal quotation marks omitted).
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BROGAN—ARMY 20130419
Application of the Quiroz factors under these facts balances in favor of
appellant. Accordingly, we determine that charging conspiracy to fail to obey a
lawful general regulation by participating in an organization and participation in that
same organization is an unreasonable multiplication of charges for findings.
Appellant stands needlessly convicted of both offenses. Although trial defense
counsel made no objection to this charging scheme at trial, the two separate charges
exaggerate appellant’s criminality by penalizing the same act two ways. Each
charged offense is aimed at the same criminal activity. The “agreement” that attends
each offense is targeted due to the same desire to avert the danger to society of
concerted criminal activity. See Iannelli v. United States, 420 U.S. 770 (1975).
The Supreme Court repeatedly has recognized that a “conspiracy poses
distinct dangers quite apart from those of the [underlying] substantive offense” that
is the object of the conspiracy. Id. at 778. The Iannelli Court reemphasized that:
‘This settled principle derives from the reason of things in
dealing with socially reprehensible conduct: collective
criminal agreement-partnership in crime-presents a greater
potential threat to the public than individual delicts.
Concerted action both increases the likelihood that the
criminal object will be successfully attained and decreases
the probability that the individuals involved will depart
from their path of criminality. Group association for
criminal purposes often, if not normally, makes possible
the attainment of ends more complex than those which one
criminal could accomplish. Nor is the danger of a
conspiratorial group limited to the particular end toward
which it has embarked. Combination in crime makes more
likely the commission of crimes unrelated to the original
purpose for which the group was formed. In sum, the
danger which a conspiracy generates is not confined to the
substantive offense which is the immediate aim of the
enterprise.’
Id. (quoting Callanan v. United States, 364 U.S. 587, 593-594 (1961). “The basic
rationale of the law of conspiracy is that a conspiracy may be an evil in itself,
independently of any other evil it seeks to accomplish.” Dennis v. United States,
341 U.S. 494, 573 (1951) (Jackson, J., concurring opinion). Similarly, the
regulatory prohibition against participation in extremist organizations addresses the
same societal danger of concerted criminal activity.
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BROGAN—ARMY 20130419
Appellant’s agreement with other participants to participate in an extremist
organization and his actual participation in that same organization represent the
same act and could not logically occur without the agreement of others within the
organization. The nature of the regulatory violation itself of participating in an
extremist organization requires a meeting of the minds within that organization.
Therefore, in our view, appellant should not be convicted or punished twice for a
single act which posed the same danger and threat to society. As such, we find
appellant’s conviction for conspiracy to fail to obey the regulation constituted an
unreasonable multiplication of charges with the separate charge and conviction for
his failure to obey the regulation itself pursuant to Article 92, UCMJ.
CONCLUSION
The findings of guilty of the Specification of Charge I and Charge I are set
aside and that specification and charge are DISMISSED. The remaining findings of
guilty are AFFIRMED.
We are able to reassess the sentence on the basis of the error noted and do so
after conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape that might cause us pause in reassessing appellant’s sentence.
Second, appellant was tried and sentenced by a military judge. Third, we find the
nature of the remaining offenses still captures the gravamen of the original offenses
and the aggravating circumstances surrounding appellant’s conduct remains
admissible and relevant to the remaining offenses. Finally, based on our experience,
we are familiar with the remaining offenses so that we may reliably determine what
sentence would have been imposed at trial. We are confident that based on the entire
record and appellant’s course of conduct, the military judge sitting alone as a
general court-martial, would have imposed a sentence of at least two years of
confinement and a bad-conduct discharge.
Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the approved sentence. We find this reassessed sentence is
not only purged of any error but is also appropriate. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by our decision, are ordered restored.
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BROGAN—ARMY 20130419
Senior Judge COOK and Judge HAIGHT concur.
FOR THE
FOR THE COURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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