United States v. Hutfless ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700175
_________________________
UNITED STATES OF AMERICA
Appellee
v.
JASON R. HUTFLESS
Private First Class (E-2), U.S. Marine Corps
Appellant
_________________________
Military Judge: Major M.D. Sameit, USMC.
Convening Authority: Commanding Officer, Headquarters and
Support Battalion, Marine Corps Installations West-Marine Corps
Base, Camp Pendleton, CA.
For Appellant: Commander Suzanne M. Lachelier, JAGC, USN;
Lieutenant Commander Derek C. Hampton, JAGC, USN.
For Appellee: Lieutenant George R. Lewis, JAGC, USN; Captain
Sean M. Monks, USMC
_________________________
Decided 12 July 2018
_________________________
Before W OODARD , M ARKS , and J ONES , Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
WOODARD, Chief Judge:
A military judge sitting as a special court-martial convicted the appellant,
contrary to his pleas, of one specification of unauthorized absence (UA) and
one specification of missing movement through design, in violation of Articles
86 and 87, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 886 and
887. The military judge sentenced the appellant to 11 months’ confinement
and a bad-conduct discharge. The convening authority approved the adjudged
sentence and, except for the bad-conduct discharge, ordered it executed.
United States v. Hutfless, No. 201700175
Although not raised by the parties, we find that the military judge erred
when he terminated the appellant’s UA on 10 June 2008. For this error, we
grant relief and reassess the sentence. In his sole assignment of error, the
appellant alleges that his convictions are barred by the statute of limitations.
We disagree.
I. BACKGROUND
A. 18 May 2004 to 31 January 2017
1. Appellant’s unauthorized absence and missing movement
The appellant reported to 1st Battalion, 7th Marine Regiment, 1st Marine
Division, Twentynine Palms, California, on 8 April 2004. On 17 May 2004, he
was not present for his post-liberty muster. Sometime during the previous
weekend, the appellant left Twentynine Palms and went home to Nebraska.
On 18 May 2004, the appellant’s command placed him in a UA status. A
month later, his command submitted a Deserter/Absentee DD Form 553, the
report of a Deserter/Absentee Wanted by the Armed Forces.1 On 25 August
2004, the appellant missed his unit’s movement to Iraq.
2. The “H-U-F-T-L-E-S-S” administrative error
During the initial recording and reporting of the appellant’s UA status,
his unit administrative officer misspelled the appellant’s name on the unit’s
legal report, transposing the “T” and “F” in the appellant’s last name.2 The
same spelling error was made on the DD Form 553.3 The form was forwarded
to the Marine Corps Absentee Collection Unit who entered the appellant’s
misspelled name into the National Crime Information Center (NCIC)
database. No one, including the appellant, knew of the error and, as a result,
the appellant’s misspelled name remained in the database for almost 13
years.
3. The appellant’s speeding tickets and arrests in 2004, 2005, 2006, and
2008
In 2004, within a few months of entering into a UA status, the Sarpy
County, Nebraska civilian authorities stopped the appellant for speeding.
Fearful that he would be arrested, he did not disclose his UA status to the
1 A DD Form 553 is the mechanism used by the military to notify local, state,
and federal law enforcement of the military member’s unauthorized absentee status
and its formal request to civilian law enforcement that the absentee be apprehended
on behalf of the military.
2 Prosecution Exhibit (PE) 7 at 1; Record at 33.
3 PE 4 at 1.
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citing officer. The following year, he was stopped for speeding again, this time
in Omaha, Nebraska. When the officer ran the appellant’s correctly spelled
name through multiple state and federal databases, including the NCIC, an
outstanding arrest warrant for failing to pay the fine for his 2004 speeding
ticket appeared. The appellant was turned over to Sarpy County authorities
who again ran the appellant’s correctly spelled name through NCIC. The only
outstanding arrest warrant was for the unpaid speeding fines. Thinking he
“was already good”4 since he had not been arrested for UA when previously
stopped for speeding in 2004, the appellant did not disclose his UA status to
the authorities. The appellant was also arrested in either 20065 or 20076 for
matters not discussed on the record. Again, a records check using his
correctly spelled name returned no active warrants for his arrest or
apprehension.
Two years later, the appellant was again arrested in Omaha, this time for
driving under the influence (DUI). He spent seven days in the county jail
following this arrest. At some point during his confinement, the appellant
asked a guard “to check–see if [he] was still [UA]” because the appellant
wanted to “make sure that [he] was good.”7 The guard told the appellant that
there was no warrant for his arrest for being UA8 and that the Marine Corps
“must have discharged [him].”9 Other than the database check, the record is
silent on whether there was any further action by the civilian authorities
based upon the appellant’s inquiry. It does not reflect whether the civilian
authorities contacted the Marine Corps to verify the appellant’s absentee
status nor does it reflect whether the Marine Corps was notified that the
appellant was available for return to military control. Apparently, after
completing his civilian confinement, he was released without restrictions and
allowed to resumed his normal activities.
4. Discovery of the spelling error and the appellant’s arrest for UA
On 12 January 2017, almost 13 years after the appellant left his unit, a
Marine Corps representative contacted the Douglas County Sheriff’s
Department and requested assistance in locating and apprehending the
4 Record at 96.
5 Id. at 102.
6 Id. at 95.
7 Id. at 97.
8 Id. at 98.
9 Id. at 105.
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appellant.10 A department official searched NCIC and the local and state
databases for the appellant’s name, using the correct spelling of H-U-T-F-L-
E-S-S. Although, the appellant’s name was in both NCIC and several of the
local and state databases as a result of his multiple previous civilian offenses,
there were no outstanding warrants for his apprehension—including for UA.
However, the official conducting the database queries did find an NCIC entry
for an active UA apprehension warrant with a similarly spelled name—H-U-
F-T-L-E-S-S. After comparing the dates of birth and social security numbers
on the two similarly spelled NCIC entries, the authorities determined the
misspelled entry was for the appellant. Having discovered that the
appellant’s name was misspelled in the NCIC entry linked to his UA status,
the UA entry in NCIC was corrected on 30 January 2017. The following day,
the Douglas County Sherriff’s Department, acting on behalf of the military
authorities, located and apprehended the appellant. On 3 February 2017, the
appellant was taken into military custody when cross-country chasers picked
him up from the Douglas County law enforcement officials.
B. The appellant’s special court-martial
As discussed supra, the appellant was charged with one specification each
of violating Articles 86 and 87, UCMJ. He entered pleas of not guilty to the
charged offenses and elected to be tried by the military judge. The appellant
focused his defense on duress, claiming that he left his unit because he was
being hazed and mistreated by members of his command.
During his deliberations on the findings, the military judge requested
clarification as to the date of the appellant’s 2008 DUI arrest. The parties
stipulated that it occurred on 10 June 2008. Without further comment, the
military judge announced his findings, finding the appellant guilty of
violating Article 86, UCMJ, by exceptions and substitutions. In announcing
his findings, the military judge excepted the words “he was apprehended on
or about 31 January 2017” and substituted therefor the words “on or about
[10 June 2008].”11 The military judge also found the appellant guilty of the
Article 87, UCMJ, offense as charged.
10 The appellant’s home of record listed in the DD Form 553 was Omaha,
Nebraska, which is located in Douglas County.
11 Record at 126. The specification alleged: “[i]n that Private First Class Jason R.
Hutfless, U.S. Marine Corps, on active duty, did, on or about 18 May 2004, without
authority, absent himself from his unit, to wit: 1st Battalion, 7th Marine Regiment,
1st Marine Division[,] located at or near Marine Corps Air Ground Combat Center,
Twentynine Palms, California[,] and did so remain absent until he was apprehended
on or about 31 January 2017.” Charge Sheet at 1.
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II. DISCUSSION
A. Legal and factual correctness of the UA termination date
Although not raised by the parties, we question whether we can approve
the termination date of the appellant’s period of UA as legally and factually
correct. We can only approve the military judge’s findings regarding the date
of termination and sentence if we are convinced, on the basis of the record,
that they are correct in law and fact. Art. 66(c), UCMJ. Based upon the
record before us, we conclude that the military judge’s determination that the
appellant’s period of UA terminated by surrender on 10 June 2008 is not
correct in law or fact.
The offense of UA is an instantaneous offense and is complete as soon as
the accused absents himself without proper authority and the duration of his
absence is a matter in aggravation for the purpose of increasing the
maximum punishment authorized for the offense. United States v. Lovell, 22
C.M.R. 235, 237 (C.M.A. 1956); see also MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2002 ed.) (MCM), Part IV, ¶ 10.c.(8). Once a period of UA
begins, it continues until terminated by the exercise of military control over
the absentee. United States v. Ringer, 14 M.J. 979, 981-82 (N.M.C.M.R.
1982). The return to military control can be either actual or constructive.
United States v. Pettis, 12 M.J. 616, 618 (N.M.C.M.R. 1981). As the appellant
did not return to actual military control until 3 February 2017—when he was
delivered into the custody of the military cross-country chasers by the
Douglas County law enforcement officials—we will only address constructive
control.
An absentee may be constructively returned to military control by several
different methods. He is constructively returned to military control “when
[the] absentee presents himself to military authorities with full intention of
returning to duty, even when no control is exercised by military authorities.”
Id. (citation and internal quotation marks omitted). Additionally, an absentee
may be constructively returned to military control when he is taken into
custody by civilian authorities at the request of the military, or, when taken
into custody by civilian authorities on civilian offenses, discloses his absentee
status to civilian authorities and the civilian authorities notify the military of
his immediate availability to be taken into their custody. United States v.
Lanphear, 49 C.M.R. 742, 744 (C.M.A. 1975). Inherent in all manner of
constructive control is that the military has been informed of its opportunity
to exercise control over the absentee. If, after having been properly informed
of its opportunity to exercise control over the absentee, the military fails or
refuses to exercise control, constructive control will be deemed to have
occurred and the UA terminated. Id.
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The record establishes that the appellant’s period of UA initiated and was
completed on 18 May 2004, when he left his unit without proper authority.12
In performing our Article 66(c), UCMJ, responsibility to determine the legal
and factual correctness of the military judge’s findings regarding the
termination of the appellant’s period of UA, the question then becomes, when
and how did his UA terminate?
The military judge found that the appellant’s period of UA terminated by
surrender on 10 June 2008. Counsel did not request, and the military judge
did not make special findings, concerning how the he arrived at the
termination date for the appellant’s UA. Our review of the record suggests
that the military judge’s findings were greatly influenced by the testimonial
evidence presented by the appellant and the argument presented by trial
defense counsel that the appellant developed an honest and reasonable,
although mistaken, belief that he had somehow been discharged from the
Marine Corps after initially absenting himself from his unit on 18 May
2004.13 The date of 10 June 2008 may have been significant to the military
judge as it was the date the appellant was arrested for DUI. It was also the
first time, as the appellant testified, that he had notified civilian law
enforcement of his “possible” UA status.14 The extent of the appellant’s
notification to civilian law enforcement officials that he may be in a UA
status was his asking the civilian guard “to check [to] see if [he] was still
[UA].”15
1. Termination of UA in accordance with Article 86(c)(10), UCMJ
Article 86(c)(10), UCMJ, provides the five methods by which an absentee’s
UA can be terminated: (1) the absentee surrenders to military authority by
presenting themselves to any military authority, notifies that authority of
their UA status, and submits or demonstrates a willingness to submit to
military control; (2) the absentee is apprehended by military authorities; (3)
the absentee is delivered by anyone to military authorities; (4) the absentee is
apprehended by civilian authorities at the request of military authorities; or
(5) if the absentee is in the hands of civilian authorities for reasons other
than a prior military request, the civilian authorities make the absentee
12 In response to questioning by the court, the appellant indicated that he had no
reason to doubt that he left his unit on 18 May 2004. Record at 113.
13 See id. at 87-88, 96-99, 104-08, 118-19, and 122.
14 Id. at 96.
15 Id. at 97.
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available for return to military control, and the military authorities are
informed of the absentee’s availability for return to their control.
The record is devoid of evidence of any action by the appellant, the
military, or the Douglas County authorities on 10 June 2008 that would
permit us to affirm a finding that the appellant’s UA was terminated by one
of the five means articulated in Article 86(c)(10), UCMJ. There is no evidence
in the record that the appellant’s UA terminated by surrender. He did not
submit to, or demonstrate a willingness to submit to, military control. There
is no evidence in the record that the appellant was delivered to military
control by anyone. Furthermore, although the appellant was in the hands of
the Douglas County civilian authorities for other reasons (his DUI arrest),
there is no evidence in the record that the Douglas County authorities were
aware that the military had requested the appellant’s apprehension, that
they made the appellant available for return to military control, that they
contacted the military to inform them of the appellant’s availability for
return to their control, or that the military was ever presented an
opportunity to exercise control over the appellant.
The record fails to establish the facts necessary to find that on 10 June
2008, the appellant returned to military control—actually or constructively—
and, therefore, his UA was not terminated by surrender, or by any other
means of termination listed in Article 86(c)(10), UCMJ. The record does,
however, establish that, after being released by the Douglas County
authorities, the appellant apparently faded back into the civilian population
and had no interaction with military, or civilian authorities on behalf of the
military, until 31 January 2017—when he was arrested by the Douglas
County authorities acting on behalf of the military based upon the corrected
DD Form 553.
2. Mistake of fact
Having concluded that the appellant’s UA did not terminate by any of the
five means listed in Article 86(c)(10), UCMJ, we now turn to whether the
appellant’s UA could have terminated on 10 June 2008 under the theory of
mistake of fact. We conclude that it did not.
UA is a general intent crime. United States v. Holder, 22 C.M.R. 3, 6
(C.M.A. 1956). It is an affirmative defense to the offense if the appellant had
an honest and reasonable belief that he was not required to be at his unit at
the time of his absence. Id. at 7. The evidence triggering the mistake of fact
defense must show the accused’s mistake was both honest and reasonable.
United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). Furthermore, to be
reasonable, the mistake cannot be based on a negligent failure to discover the
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true facts. “Negligence is the absence of due care. Due care is what a
reasonable person would do under the same or similar circumstances.”16
After leaving his unit on 18 May 2004, the appellant “never once sought
to ascertain, from anyone likely to know, whether or not he had been
discharged from [the Marine Corps].” Holder, 22 C.M.R. at 12 (emphasis
added). An inquiry by any mode of communication to his unit, or a visit to
any one of the three Marine Corps recruiting stations in Omaha, Nebraska,17
would have likely provided him with the necessary information concerning
his absentee status. Any belief the appellant may have had that his UA was
terminated because he had somehow been discharged by the Marine Corps
after leaving his unit without the proper authority on 18 May 2004 was
unreasonable. We are convinced that the appellant’s failure to take
reasonable actions to determine the true facts concerning his military status
renders any claim of mistake as to his military status defective. We conclude
that the defense of mistake of fact was not raised and, therefore, could not
terminate his absence on 10 June 2008.
Having concluded that the appellant’s UA was not terminated on 10 June
2008 by any of the means listed in Article 86(c)(10), or by mistake of fact, we
find that the military judge’s finding that the appellant’s UA was terminated
by surrender on that date was error and that portion of his finding cannot be
affirmed. Accordingly, if we are to affirm the appellant’s UA conviction, we
can only affirm a one-day UA that occurred on 18 May 2004. Lovell, 22
C.M.R. at 239; see also MCM, Part IV, ¶10(C)(8). (“If the duration [of the UA]
is not alleged or if alleged but not proven, an accused can be convicted and
punished for only [one] day of unauthorized absence.”).
In order to determine whether we can affirm the appellant’s offenses, we
must first address the appellant’s claim of error—that his convictions are
barred by the statute of limitations of Article 43(b)(1), UCMJ.
B. Are the convictions barred by the statute of limitations?
Like the offense of UA, missing movement is also an instantaneous
offense and is committed the moment an accused misses the movement of his
or her unit. United States v. Dube, No. 200000698, unpublished op., 2001
CCA LEXIS 5 at *4 (N-M. Ct. Crim. App. 16 Jan 2001). We previously
16 Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9 at 1010 (10 Sep
2014).
17 Record at 75. During cross-examination, the appellant admitted that he had
been to two of the three recruiting stations in Omaha, Nebraska. Id. at 105.
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determined that if the appellant’s UA conviction is to be affirmed, we could
only affirm a one-day UA offense that occurred on 18 May 2004. The military
judge convicted the appellant of missing movement through design on 25
August 2004. The appellant’s sworn charges were received by the officer
exercising summary court-martial jurisdiction over his command on 21
February 2017 (UA offense) and 6 March 2017 (missing movement offense).
Article 43(b)(1), UCMJ, provides that “[e]xcept as otherwise provided in
this section (article), a person charged with an offense is not liable to be tried
by court-martial if the offense was committed more than five years before
receipt of sworn charges by an officer exercising summary court-martial
jurisdiction over the command.” However, “[p]eriods in which the accused is
[UA] or fleeing from justice shall be excluded in computing the period of
limitation prescribed in [Article 43(b)(1), UCMJ.]” Art. 43(c), UCMJ.
The appellant argues that because his UA terminated more than five
years prior to the receipt of his sworn charges by the officer exercising
summary court-martial jurisdiction for his command, the Article 43(b)(1),
UCMJ, five-year statute of limitations on his offenses had expired. Thus his
convictions are barred by the statute of limitations.18 We disagree. We find
the appellant went UA and missed movement “in time of war;” therefore,
there was no statute of limitations applicable to his offenses. Art. 43(a),
UCMJ.
1. UA and missing movement in time of war
Article 43(a), UCMJ, provides that “[a] person charged with [UA] or
missing movement in time of war . . . may be tried and punished at any time
without limitation.” (Emphasis added). What constitutes “time of war” within
the context of Article 43(a), UCMJ, is not a novel question.
Military courts have used two tests to determine whether a period of
military conflict qualifies as a “time of war.” A period of conflict is a “time of
war” if either “Congress formally declares war (de jure war test) or if the
conflict is a war in fact (de facto war test).” United States v. Castillo, 34 M.J.
1160, 1163 (N.M.C.M.R. 1992) (citing United States v. Gann, 11 C.M.R. 12, 13
(C.M.A. 1953)); see also United States v. Bancroft, 11 C.M.R. 3 (C.M.A. 1953).
18 Despite our findings that the military judge’s determination that the
appellant’s UA terminated on 10 June 2008 was error and that if we are to affirm the
UA conviction we could only affirm a one-day UA occurring on 18 May 2004, the basis
of the appellant’s claim of error would remain unchanged—the officer exercising
summary court-martial jurisdiction did not receive the sworn charges in his case
until after the five-year statute of limitations had run.
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Recognizing that Congress has not formally declared war since the adoption
of the UCMJ, we turn our attention to the de facto war test.
For the purposes of the UCMJ, the existence of a de facto war “is
determined by the realities of the situation as distinguished from legalistic
niceties, and the existence of armed hostilities against an organized enemy is
of significant crucial importance.” Castillo, 34 M.J. at 1163. (citation and
internal quotation marks omitted). The practical considerations to be
evaluated when determining whether a conflict is a de facto war include, but
are not limited to:
the nature of the conflict; the manner in which it is carried on;
the movement to and presence of large numbers of personnel
on the battlefield; the casualties involved; the sacrifices
required; the drafting of recruits to maintain a large number of
personnel in the military service; national emergency
legislation enacted and being enacted; executive orders
promulgated; and the expenditure of large sums to maintain
armed forces in the theater of operations.
Id. (citing Bancroft, 11 C.M.R. at 5).
Since the implementation of the UCMJ, our superior court, this court, and
our sister service courts of criminal appeals have found the Korean, Vietnam,
and both Iraq conflicts (Operations DESERT SHIELD/DESERT STORM and
IRAQI FREEDOM) were de facto wars. See United States v. Anderson, 38
C.M.R. 386, 387 (C.M.A. 1968) (Vietnam conflict); United States v. Ayers, 15
C.M.R. 220, 227 (C.M.A. 1954) (Korean conflict); Bancroft, 11 CMR at 5
(Korean conflict); United States v. Rivaschivas, 74 M.J. 758, 761 (A.C.C.A.
2015) (Operation IRAQI FREEDOM); Castillo, 34 M.J. at 1166-67 (Operation
DESERT SHIELD/DESERT STORM). However, the appellant argues that,
with respect to Operation IRAQI FREEDOM, the Rivaschivas holding
addressed only whether the conflict was a “time of war” during 2007—more
than three years after the appellant committed his offenses.19
As noted by the appellant, the Rivaschivas court did evaluate the conflict
as it existed in 2007. Rivaschivas, 74 M.J. at 762. Regarding the state of the
conflict in 2007, the Ricaschicas court noted:
the continuous and multiple large-scale deployments to both
Iraq and Afghanistan of combat units going back to 2003, the
well-documented number of combat fatalities and injuries in
that theater of operations during those campaigns, the
19 Appellant’s Brief of 2 Nov 2017 at 5.
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tremendous financial cost of our ongoing military conflicts in
the Middle East, the various legislative enactments and
executive orders detailing our wartime footing in Iraq and
Afghanistan, the creation of military commissions with the
purpose of prosecuting violations of the law of war, and judicial
decisions such as Hamdi v. Rumsfeld, 542 U.S. 507, (2004).
Id.
Acknowledging that the Rivaschivas court’s determination is persuasive
but not binding precedent, and that the court focused on the state of the
conflict in 2007 not 2004, we will apply the Bancroft factors to the conditions
of the conflict in 2004—when the appellant committed his offenses. As our
superior court did in Bancroft, we also rely on “[a] reading of the daily
[media] accounts of the conflict in [Iraq]; an appreciation of the size of the
forces involved; a recognition of the efforts, both military and civilian, being
expended to maintain military operations in that area; and knowledge of
other well-publicized wartime activities . . . .” Bancroft, 11 C.M.R. at 5-6.
2. Conditions of the conflict in 2004
In 2004, our military forces were conducting statutorily authorized
combat operations in Iraq20 and Afghanistan.21 Approximately 130,600
military personnel were deployed to Iraq and the surrounding areas in
support of the conflict.22 Over 170,000 reservists and National Guard
personnel were activated to augment the active duty force.23 On the
battlefields of Iraq and Afghanistan, our armed forces were utilizing the most
advanced and powerful weapon systems in the world. The Department of
Defense expended substantial funds to maintain armed forces in Iraq and
20 Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L.
No. 107–243, 116 Stat. 1498.
21 Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224
(2001).
Amy Belasco, CONG. RESEARCH SERV., R40682, TROOP LEVELS IN THE AFGHAN
22
AND IRAQ WARS, FY2001–FY2012: COST AND OTHER POTENTIAL ISSUES (2009) at 9
(citations omitted).
Department of Defense, Defense Science Board Task Force, Deployment of
23
Members of the National Guard and Reserve in the Global War on Terrorism (2007) at
7.
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Afghanistan.24 Our military forces in Iraq and Afghanistan suffered a
combined 737 killed in action and another 8,221 wounded in action.25
Applying the Bancroft factors to the conditions of the conflict in 2004, we
are easily convinced “beyond any reasonable doubt that we [were] in a highly
developed state of war” in 2004 for Article 43, UCMJ, purposes. Bancroft, 11
C.M.R. at 6. Because the appellant was charged with UA and missing
movement during this time of war, the five-year statute of limitations does
not bar his convictions. We, therefore, affirm the appellant’s convictions for a
one-day UA on 18 May 2004 in violation of Article 86, UCMJ, and missing
movement through design on 25 August 2004 in violation of Article 87,
UCMJ.
C. Sentence reassessment
Having modified the findings of the court-martial, we must now consider
whether we can reassess the sentence. United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013); United States v. Moffeit, 63 M.J. 40, 41-42
(C.A.A.F. 2006); United States v. Sales, 22 M.J. 305, 307-08 (C.M.A. 1986).
We can reassess a sentence without ordering a rehearing if we are confident
“that, absent any error, the sentence adjudged would have been of at least a
certain severity[.]” Sales, 22 M.J. at 308. A reassessed sentence must not only
“be purged of prejudicial error [but] also must be appropriate for the offense
involved.” Id. (internal quotation marks omitted).
We base these determinations of appropriateness on the totality of the
circumstances of each case, guided by the following “illustrative, but not
dispositive, points of analysis”:
(1) Whether there has been a dramatic change in the penalty landscape or
exposure.
(2) Whether sentencing was by members or a military judge alone.
(3) Whether the nature of the remaining offenses captures the gravamen
of criminal conduct included within the original offenses and whether
24The combined cost of supporting combat operations in Iraq and Afghanistan in
2004 was approximately $92,000,000,000. Amy Belasco, CONG. RESEARCH SERV.,
RL33110, THE COST OF IRAQ, AFGHANISTAN, AND OTHER GLOBAL WAR ON TERROR
OPERATIONS SINCE 9/11 (2014) at 15.
25 Department of Defense, Defense Casualty Analysis System, Casualty
Summary by Month and Service, https://dcas.dmdc.osd.mil/dcas/pages/.xhtml, last
visited: Jul. 5, 2018. By comparison, in 2007, United States military casualties
included 847 killed in action and 6,872 wounded in action. Id.
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significant or aggravating circumstances addressed at the court-martial
remain admissible and relevant to the remaining offenses.
(4) Whether the remaining offenses are of the type with which appellate
judges should have the experience and familiarity to reliably determine what
sentence would have been imposed at trial.
Winckelmann, 73 M.J. at 15-16.
Under all the circumstances presented, we find that we can reassess the
sentence and that it is appropriate for us to do so. First, there has not been a
dramatic change in the penalty landscape. Considering the appellant was
tried by special court-martial, our action in reducing the appellant’s UA to a
one-day offense did not change the penalty landscape. The appellant still
faces the jurisdictional maximum for that forum.
Second, the appellant elected to be tried and sentenced by a military
judge, and we are more likely to be certain of what sentence the military
judge, as opposed to members, would have imposed.
Third, the gravamen of the conduct for which the appellant remains the
same—the appellant went UA and he missed the movement of his unit to
Iraq for a combat deployment. With the exception of the evidence regarding
the duration of the UA presented during the merits phase of the court-
martial, our action on the findings does not render inadmissible any evidence
admitted in aggravation. The appellant’s prior civilian convictions would still
have been admissible under RULE FOR COURTS-MARTIAL 1001(B)(3), MCM.26
The military judge limited the evidence presented in aggravation to the
impact the appellant’s missing movement had on his unit’s available machine
gunners—the appellant’s military occupational specialty—while the unit was
deployed to Iraq.
Last, these are offenses with which we, as appellate judges, have in depth
experience and familiarity to reliably determine what sentence would have
been imposed at trial. The evidence of the appellant’s culpability and the
impact of his misconduct on his unit’s mission and efficiency remain the
same. Taking these facts as a whole, we can confidently and reliably
determine that, absent the error, the military judge would have imposed a
sentence of at least 10 months’ confinement and a bad-conduct discharge. We
also conclude that the adjudged sentence is an appropriate punishment for
26 PE 16 reflects the appellant’s civilian convictions for: theft by taking (March
2008); driving under the influence (September 2008); and assault and battery (April
2016). PE 17 reflects the appellant’s civilian conviction for attempted commission of a
class 3A or 4 felony—possession of a controlled substance (October 2011).
13
United States v. Hutfless, No. 201700175
the modified offenses and this offender—thus satisfying the Sales
requirement that the reassessed sentence be not only purged of error, but
also appropriate.
III. CONCLUSION
The findings and sentence as modified are affirmed. The supplementary
court-martial order will reflect affirmed findings of guilt to a one-day UA
committed on 18 May 2004 and missing movement through design on 25
August 2004 with an affirmed sentence of 10 months’ confinement and a bad-
conduct discharge.
Senior Judge MARKS and Senior Judge JONES concur.
For the Court
R.H. TROIDL
Clerk of Court
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