United States v. Gogas , 2003 CAAF LEXIS 160 ( 2003 )

UNITED STATES, Appellee
v.
Christopher S. GOGAS, Airman
U.S. Air Force, Appellant
No. 01-0718
Crim. App. No. 34210
United States Court of Appeals for the Armed Forces
Argued December 10, 2002
Decided February 14, 2003
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Antony B. Kolenc (argued); Colonel
Beverly B. Knott and Major Terry L. McElyea (on brief);
Lieutenant Colonel Timothy W. Murphy and Captain Patrick J.
Dolan.
For Appellee: Captain Shannon J. Kennedy (argued);
Lieutenant Colonel LeEllen Coacher and Lieutenant Colonel
Lance B. Sigmon (on brief).
Military Judge: David F. Brash
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gogas, No. 01-0718/AF
Chief Judge CRAWFORD delivered the opinion of the
Court.
Pursuant to his pleas, Appellant was convicted by a
military judge of wrongful use and wrongful distribution of
lysergic acid diethylamide (LSD), in violation of Article
112a, Uniform Code of Military Justice [hereinafter UCMJ],
10 U.S.C. § 912a (2002). The convening authority approved
the sentence of a bad-conduct discharge, 18 months’
confinement, and reduction to the lowest enlisted grade.
The Court of Criminal Appeals affirmed the findings and
sentence. United States v. Gogas, 55 M.J. 521 (A.F. Ct.
Crim. App. 2001). We granted review of the following
issues:
I. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED IN HOLDING THAT A LETTER
APPELLANT WROTE TO HIS CONGRESSMAN
(PROSECUTION EXHIBIT 9), IN WHICH
APPELLANT COMPLAINED OF HIS TREATMENT BY
AIR FORCE AUTHORITIES, WAS PROPERLY
ADMITTED IN EVIDENCE DURING THE SENTENCING
PHASE OF HIS COURT-MARTIAL WHERE 10 U.S.C.
§ 1034 (2002) PROHIBITS RETALIATION
AGAINST SERVICEMEMBERS WHO COMPLAIN TO
CONGRESS.
II. WHETHER THE AIR FORCE COURT OF CRIMINAL
APPEALS ERRED IN HOLDING THAT PROSECUTION
EXHIBIT 9 WAS PROPERLY ADMISSIBLE IN
SENTENCING UNDER RULE FOR COURTS-MARTIAL
1001 AS A MATTER IN AGGRAVATION AND AS A
MATTER RELATED TO APPELLANT’S
REHABILITATION POTENTIAL.
For the reasons set forth below, we affirm.
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United States v. Gogas, No. 01-0718/AF
FACTS
On January 27, 2000, Appellant confessed to using LSD
on approximately 20 occasions. During sentencing, the
Government introduced, without objection, records of two
instances of nonjudicial punishment under Article 15, UCMJ,
10 U.S.C. § 815 (2002). One was for Appellant’s underage
possession of alcoholic beverages, and the second for
Appellant’s failure to go to an appointed place of duty.
The Government also successfully introduced three letters
of reprimand for Appellant’s minor disciplinary
infractions.
In addition to personnel records, the Government
offered a letter, dated May 11, 2000, that Appellant wrote
to a Congressman requesting assistance with Appellant’s
impending court-martial. In the letter, Appellant
recounted his “journey down the road of self-destruction,”
and linked it to his repeated failures to appear for work
and to other disciplinary infractions. Appellant
complained that the criminal charges had damaged his
reputation at work, and argued that the charges were not
provable because there was no physical evidence, only
witness testimony.
Defense counsel objected to the letter, arguing that
it was not admissible as a matter in aggravation under Rule
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United States v. Gogas, No. 01-0718/AF
for Courts-Martial [hereinafter R.C.M.] 1001(b)(4), or as
opinion evidence of rehabilitative potential under R.C.M.
1001(b)(5). The Government argued that Appellant’s views
in the letter about whether he should be prosecuted for the
offenses were evidence of a lack of rehabilitative
potential. The military judge concluded that the letter
was admissible aggravation evidence because it related to
the crimes in question, and that it was relevant to
Appellant’s rehabilitative potential.
DISCUSSION
I. The Government did not Retaliate Against Appellant
Appellant claims that his sentence, aggravated by the
use of his letter as evidence, qualified as an unfavorable
personnel action designed to punish him for writing the
letter. We disagree.
Title 10 U.S.C. § 1034(a)(1) provides that “[n]o
person may restrict a member of the armed forces in
communicating with a Member of Congress or an Inspector
General[.]” The statute further dictates that “[n]o person
may take (or threaten to take) an unfavorable personnel
action, or withhold (or threaten to withhold) a favorable
personnel action, as a reprisal against a member of the
armed forces for making or preparing . . . a communication
to a Member of Congress or Inspector General.” 10 U.S.C.
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United States v. Gogas, No. 01-0718/AF
§ 1034(b)(1)(A). The Supreme Court has highlighted the
statute’s purpose “to let every man in the armed services
have the privilege of writing his Congressman or Senator on
any subject if it does not violate the law or if it does
not deal with some secret matter.” Brown v. Glines, 444
U.S. 348, 359 (1980) (quoting 97 Cong. Rec. 3776, 3877
(1951)).
It is clear that to violate 10 U.S.C. § 1034, a person
must initiate a negative personnel action specifically in
retaliation for a servicemember’s communication with a
Member of Congress. In the present case, there is no
evidence that the Government prosecuted Appellant, and that
the trial counsel subsequently introduced the letter, to
retaliate for any action by Appellant. The Government
charged Appellant not because he wrote a letter to a
Congressman, but because he wrongfully used and distributed
LSD -- offenses that occurred well before Appellant even
wrote the letter. In short, while there may be
circumstances where the use of a congressional
communication in the context of a court-martial proceeding
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United States v. Gogas, No. 01-0718/AF
would constitute a prohibited retaliation under 10 U.S.C.
§ 1034, those circumstances are not present here.1
II. The Letter was Proper Aggravation Evidence
Appellant further argues that the letter was
improperly admitted as aggravation evidence and as evidence
of a matter related to his rehabilitation potential. We
hold that the letter was proper aggravation evidence. We
need not address the letter’s admissibility as a matter
related to Appellant’s rehabilitation potential, for the
fact that evidence may be inadmissible under one rule does
not preclude its admissibility under a different rule.
United States v. Abel, 469 U.S. 45, 56 (1984); United
States v. Ariail, 48 M.J. 285, 287 (C.A.A.F. 1998).
R.C.M. 1001(b)(4) permits the Government to introduce
evidence of “any aggravating circumstances directly
relating to or resulting from the offenses of which the
accused has been found guilty.” Aggravation evidence may
include “evidence of significant adverse impact on the
mission, discipline, or efficiency of the command directly
and immediately resulting from the accused’s offense.” Id.1
In addition to relying on the statute’s prohibition against
retaliatory actions, Appellant asks this Court to establish a broad
privilege or public policy prohibition against use in a court-martial
of communications by servicemembers to Members of Congress, even in the
absence of retaliation. The remedial provisions of the statute are
limited to retaliatory actions, and we decline to extend the statute
further.
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United States v. Gogas, No. 01-0718/AF
Moreover, this Court held in United States v. Vickers, 13
M.J. 403, 406 (C.M.A. 1982), that aggravating evidence
includes “evidence which is directly related to the offense
for which an accused is to be sentenced so that the
circumstances surrounding that offense or its repercussions
may be understood by the sentencing authority.” Counsel
may present such evidence through a stipulation of fact,
witness testimony, or the accused's own statements.
Accordingly, in United States v. Irwin, 42 M.J. 479, 483
(C.A.A.F. 1995), this Court held that a tape recording of
the appellant’s statement during the providence inquiry was
properly admitted under R.C.M. 1001(b)(4)2 because it was
“directly related to the offenses of which [the] appellant
was found guilty....”
In accordance with R.C.M. 1001(b)(4), Appellant’s
letter was a statement by the accused directly relating to
the offenses of which he was found guilty. The letter
revealed an aggravating circumstance: Appellant’s
indifference to anything other than his own pleasure.
Appellant wrote, “I was living my life with blinders on and
not thinking of the consequences at the time. The only
2
R.C.M. 1001(b)(4) “is consistent with the interpretation of paragraph
75 b(3) (later amended to be paragraph 75 b(4) of MCM, 1969 (Rev.) by
Exec. Order No. 12315 (July 29, 1981)) . . . [and] United States v.
Vickers, 13 M.J. 403 (C.M.A. 1982).” Manual for Courts-Martial, United
States (2002 ed.) app. 21, at A21-71.
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thing I was concerned with was making myself happy with
using [LSD].” Indifference to the nature or consequences
of criminal conduct is an aggravating factor that may be
considered in determining an appropriate sentence for that
misconduct.3 The military judge did not abuse his
discretion in admitting the letter as aggravation evidence.
See Vickers, 13 M.J. at 406.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
3
Moreover, this Court has noted the devastating link between
servicemember drug use and military performance. United States v.
Bickel, 30 M.J. 277 (C.M.A. 1990)(recognizing that drugs diminish the
military effectiveness of servicemembers who use them); United States
v. Beeker, 18 C.M.A. 563, 565, 40 C.M.R. 275, 277 (1969) (identifying
the possession of drugs by military personnel as “a matter of immediate
and direct concern to the military as an act intimately concerned with
prejudice to good order and discipline or to the discredit of the armed
forces").
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