United States v. Hassoun ( 2016 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201500204
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UNITED STATES OF AMERICA
Appellee
v.
WASSEF A. HASSOUN
Corporal (E-4), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Major N.A. Martz, USMC.
For Appellant: Major M. Brian Magee, USMC.
For Appellee: Lieutenant Commander Justin Henderson, JAGC,
USN; Captain Matthew M. Harris, USMC.
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Decided 11 August 2016
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Before FISCHER, RUGH, and MARKS, Appellate Military Judges
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This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
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RUGH, Judge:
At a general court-martial, a military judge convicted the appellant,
contrary to his pleas, of one specification of desertion with the intent to
remain away permanently, one specification of desertion with the intent to
avoid hazardous duty, and one specification of negligent loss of military
property in violation of Articles 85 and 108, Uniform Code of Military Justice,
10 U.S.C. §§ 885 and 908. The convening authority approved the adjudged
sentence of 735 days’ confinement, forfeiture of all pay and allowances,
reduction to pay grade E-1, and a dishonorable discharge.
In his sole assignment of error (AOE), the appellant asserts that his
conviction for the offense of desertion with the intent to remain away
permanently was legally and factually insufficient. We disagree.
I. BACKGROUND
In March 2004, the appellant was a member of Human Intelligence
Exploitation Team (HET) 9 beginning his second deployment to Iraq as a
translator in support of 2d Battalion, 2d Marine Regiment. During that
period, HET 9 was tasked with preparing the battlefield in advance of the
Battle for Fallujah. As a result, they were under near constant attack.
The appellant was born in Lebanon but immigrated to the United States
to attend college. After September 11th he joined the Marine Corps to prove
his loyalty to his new country and to demonstrate that “just because I am
Arab does not mean that I’m in any way [in] support of what happened.” 1
However, by May 2004 several events converged to change the appellant’s
view of his service and his situation.
First, an HET 9 gunnery sergeant and mentor to the appellant was killed
when a mortar round struck him during combat operations outside Fallujah,
Iraq. The appellant also faced disciplinary action for a negligent discharge
incident which resulted in his temporary reassignment to camp guard duty.
During the same period, the appellant’s family members discovered that he
was deployed to Iraq, a secret he had long maintained, when he appeared in
television coverage of the first Battle for Fallujah. Finally, members of HET
9 learned that their deployment would be extended by seven months. The
extension meant that the appellant would not be home in time to attend his
own wedding scheduled for the fall in Lebanon.
After these negative events, the appellant began expressing a strong
desire to leave his unit and the Marine Corps. Regarding the deployment
extension, he told members of his unit, “I don’t care. It doesn’t matter to me.
I will leave if I want to.”2 He also stated, “I can’t handle this. I will leave. I
will walk out the base,” and he shared with another translator that he didn’t
care if his actions resulted in disciplinary charges.3 Upon learning that HET
9 would leave Camp Fallujah on 20 June 2004 and return to Mahmudiyah,
1 Record at 1170.
2 Id. at 456.
3 Id. at 474, 596.
2
Iraq, he fretted that he was returning to his “death place,” communicating to
a local national, that he “didn’t want to die with them [the Marines].”4
On 18 June 2004, the appellant retrieved his personal backpack from
storage and attempted to borrow $200.00 from a teammate. The next day he
took an advance of $350.00 from disbursing. In the days leading up to this,
the appellant was seen burning personal effects including private letters. He
asked a local national: “If I left the base or the Marine Corps, can you hide
me in [your] house?”5 His Marine Federal Credit Union account was drained
of funds, and the appellant made an anxious phone call on a shared cell
phone, subsequently deleting the number from the call log.6
Then, on 20 June 2004, the appellant vanished from Camp Fallujah, Iraq.
Civilian clothes, grooming gear, his passport, the cash, his tactical vest, and
his 9mm Beretta service weapon were missing from the belongings he left
behind.
Within weeks of the appellant walking away from Camp Fallujah, he
reappeared in the custody of his relatives near Tripoli, Lebanon.7 By 6 July
2004, members of the appellant’s family contacted the U.S. Embassy in
Lebanon, and the defense attaché negotiated the appellant’s return to
American custody.8
4 Id. at 392, 433. Even before these events, the appellant expressed a cavalier
attitude about remaining with his unit, telling another Marine during his first
deployment in 2003 that he might leave Iraq for Lebanon to marry his wife, after
which he “just [wouldn’t] go back to the Marine Corps.” Id. at 308.
5 Id. at 431, 432.
6 The government argued that this phone call was for the purpose of arranging
transportation to Lebanon with a relative once he left the base.
7 At trial the appellant asserted that he was abducted by an Iraqi insurgent group
and held until his release was negotiated by his family. Regardless of whether the
appellant was ever legitimately held in captivity in Iraq, the overwhelming weight of
the evidence points to an intention to avoid hazardous duty by planning for and then
leaving Camp Fallujah voluntarily on or about 20 June 2004. The appellant does not
raise as error the findings of the military judge as to this charge.
8 The appellant’s return was not all smooth sailing as the defense attaché testified at
trial. The appellant was detained by Syrian police as U.S. officials attempted to put
him on a U.S. Air Force plane leaving Beirut. Only the quick-witted efforts of the
defense attaché, who helped generate travel documents for the appellant using
photographs off the internet, convinced Syrian officials to let the appellant leave as
planned. See id. at 863, 864.
3
On 9 December 2004, charges of desertion, willful loss of military
property, and larceny of military property were preferred against the
appellant. A preliminary hearing pursuant to Article 32, UCMJ, was
scheduled, and the appellant was permitted leave to visit his family in Utah
pending the hearing. Instead of returning at the expiration of his leave on 5
January 2005, the appellant traveled to Canada where he caught a flight
bound for Lebanon. His wife followed him several days later.9 They
established a life together in Lebanon, raising two children, and the
appellant held several jobs including as a translator, a security guard for a
Lebanese member of parliament, and an assistant in his brother’s store.
In late 2013 the appellant and the U.S. Government began negotiations
for his return to military custody in connection with the appellant’s
application for U.S. immigration status for his wife and children. At his
court-martial, the appellant asserted that he was prevented from returning
to U.S. custody during this near nine-year period because Lebanese officials
confiscated his passport and told him to remain in the country while they
investigated the United States’ request for extradition.10 However, from
January 2005 until September 2013, the appellant never contacted any
member of his unit, the Marine Corps, the U.S. Embassy, or any other U.S.
Government representative. On 28 June 2014, the appellant voluntarily
surrendered to a Naval Criminal Investigative Service special agent in
Bahrain and was finally returned to military custody.
II. DISCUSSION
We review questions of legal and factual sufficiency de novo. Art. 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). The
test for legal sufficiency is “whether, considering the evidence in the light
most favorable to the prosecution, any reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt.” United States v.
Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States v. Turner, 25
M.J. 324, 324 (C.M.A. 1987)). In applying this test, “we are bound to draw
every reasonable inference from the evidence of record in favor of the
prosecution.” United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001)
(citations omitted).
9 During trial, the appellant asserted that he and his wife returned to Lebanon in
January 2005 to seek a divorce. However, they began living together within a month
or two of her return, and they remained married up through the time of his court-
martial.
10 In support of this theory, the appellant pleaded guilty to an unauthorized absence
of less than 30 days beginning on 5 January 2005. The military judge found him
provident for an absence of less than 3 days before finding him guilty to the greater
offense of desertion with the intent to remain away permanently.
4
The test for factual sufficiency is whether “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the
witnesses as did the trial court, this court is convinced of the appellant’s guilt
beyond a reasonable doubt.” United States v. Rankin, 63 M.J. 552, 557 (N-M.
Ct. Crim. App. 2006) (citing Turner, 25 M.J. at 325 and Art. 66(c), UCMJ),
aff’d, 64 M.J. 348 (C.A.A.F. 2007). In conducting this unique appellate role,
we take “a fresh, impartial look at the evidence,” applying “neither a
presumption of innocence nor a presumption of guilt” to “make [our] own
independent determination as to whether the evidence constitutes proof of
each required element beyond a reasonable doubt.” Washington, 57 M.J. at
399.
The appellant challenges the legal and factual sufficiency of his conviction
for desertion with the intent to remain away permanently, asserting that the
evidence fails to demonstrate the required intent.
To be guilty of this form of desertion, the appellant must have intended to
remain away permanently from his unit, organization, or place of duty.
MANUAL FOR COURTS-MARTIAL (MCM), UNITED STATES (2012 ed.), Part IV, ¶
9.c.(1)(c)(ii). This intent may have been “formed at any time during the
unauthorized absence,” and did not need to “exist throughout the absence or
for any particular period of time.” It is sufficient that the appellant formed
this intent at some time during the absence. Id. at ¶ 9.c.(1)(c)(i) and (ii).
The intent to remain away permanently may be proved by circumstantial
evidence. United States v. Oliver, 70 M.J. 64, 66 (C.A.A.F. 2011); MCM, Part
IV, ¶ 9.c.(1)(c)(iii). The MCM provides several illustrations of potentially
relevant, circumstantial evidence:
[T]hat the period of absence was lengthy; that the accused attempted
to, or did dispose of uniforms or other military property; that the
accused purchased a ticket for a distant point or was arrested,
apprehended, or surrendered a considerable distance from the
accused’s station; that the accused could have conveniently
surrendered to military control but did not; that the accused was
dissatisfied with the accused’s unit, ship, or with military service; that
the accused made remarks indicating an intention to desert; that the
accused was under charges or had escaped from confinement at the
time of the absence; [or] that the accused made preparations
indicative of an intent not to return (for example, financial
arrangements)[.]
MCM, Part IV, ¶ 9.c.(1)(c)(iii). In this regard, the appellant perpetrated a
veritable “Bingo” card of statements and actions which confirmed the aims of
his nine-year absence. Before his first absence in Iraq, the appellant
expressed dissatisfaction with the Marine Corps on numerous occasions,
5
voicing a willingness to leave without concern for the legal consequences.
Once he returned to military control in July 2004, the appellant was charged
with desertion, larceny, and the willful loss of his service weapon. He was
pending a preliminary hearing on these charges when he was allowed holiday
period leave. While on leave in Utah, the appellant surreptitiously crossed
the border into Canada and flew to Tripoli, Lebanon. In doing so, he drained
his Marine Federal Credit Union bank account of all its funds11 and
abandoned his luggage, allowing his uniforms to be sent on without him to
Camp Lejeune, North Carolina. Within ten days of arriving in Lebanon, his
wife left the United States to reunite with him there. The appellant and his
wife raised a family, and he held several jobs. Unlike the earlier events in
2004 when the appellant and his family negotiated his prompt return, the
appellant made no efforts during the period of his second absence to contact
the U.S. embassy or the area defense attaché—despite learning from past
experience, that the U.S. embassy could assist him in procuring a new
passport and returning to military custody. In the end, the appellant sought
to turn himself in only as part of a larger effort to move his wife and children
from Lebanon to the United States beginning in 2013.
After carefully reviewing the record of trial and considering the evidence
in the light most favorable to the prosecution, we are convinced that a
reasonable fact finder could have found that the appellant formed the intent
to remain away permanently at some time during his absence from January
2005 to June 2014. Furthermore, after weighing all the evidence in the
record of trial and having made allowances for not having personally
observed the witnesses, we are convinced beyond reasonable doubt of the
appellant’s guilt.
III. CONCLUSION
The findings and sentence as approved by the convening authority are
affirmed.
Senior Judge FISCHER and Judge MARKS concur.
For the Court
R.H. TROIDL
Clerk of Court
11 This account was closed within the year, its negative balance written off.
6