United States v. Gallegos ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, T.P. BELSKY
Appellate Military Judges
UNITED STATES OF AMERICA
v.
EDMUND R. GALLEGOS
GUNNERY SERGEANT (E-7), U.S. MARINE CORPS
NMCCA 201300391
GENERAL COURT-MARTIAL
Sentence Adjudged: 29 May 2013.
Military Judge: LtCol Nicole Hudspeth, USMC.
Convening Authority: Commander, United States Marine Corps
Forces Command, Norfolk, VA.
Staff Judge Advocate's Recommendation: LtCol D.J. Bligh,
USMC.
For Appellant: LT Jonathan Hawkins, JAGC, USN; LT David
Dziengowski, JAGC, USN.
For Appellee: Maj Crista D. Kraics, USMC.
23 December 2014
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OPINION OF THE COURT
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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.
BELSKY, Judge:
A military judge, sitting as a general court-martial,
convicted the appellant pursuant to his pleas of two
specifications of conspiracy, one specification of wrongfully
selling government property, one specification of wrongfully
possessing machineguns, and one specification of wrongfully
transporting machineguns through interstate or foreign commerce,
in violation of Articles 81, 108, and 134, Uniform of Military
Justice, 10 U.S.C. §§ 881, 908, and 934. The adjudged sentence
included three years’ confinement, reduction to pay grade E-1, a
dishonorable discharge, and a $10,000.00 fine, with an
additional twelve months’ confinement if the fine was not paid
by 17 April 2014. The convening authority (CA) approved the
sentence as adjudged and, pursuant to the terms of a pretrial
agreement, suspended for a period of twelve months all
confinement in excess of eighteen months.
On appeal, the appellant raises the following assignments
of error:
WHETHER APPELLANT’S SENTENCE IS DISPARATELY SEVERE
COMPARED TO THE CLOSELY-RELATED CASES OF GYSGT
CARSTENSEN, GYSGT LEONARD, 1STLT WARP, CAPT PUMP AND
CAPT BROWN?
WHETHER THE MILITARY JUDGE ERRED WHEN SHE DENIED
APPELLANT’S MOTION TO DISMISS PURSUANT TO ARTICLE 10,
UCMJ?1
Finding merit in his first assignment of error we will
grant relief in our decretal paragraph. Following our
corrective action, no error materially prejudicial to a
substantial right of the appellant remains. Arts. 59(a) and
66(c), UCMJ.
Background
The following facts are taken from the appellant's
providence inquiry, and in the stipulation of fact entered into
evidence as Prosecution Exhibit 1.
While deployed to Iraq, the appellant and Gunnery Sergeant
(GySgt) Daniel Leonard, USMC, became acquaintances. During the
course of that relationship, GySgt Leonard invited the appellant
to join a scheme to obtain excess military property and
illegally sell it for a profit through Internet sites such as
eBay. The appellant agreed to join GySgt Leonard.
Through his assigned duties, GySgt Leonard continued to
surreptitiously obtain military property, and gave a portion of
the property to the appellant to sell. GySgt Leonard and the
appellant also provided some of the property to Captain (Capt)
1
Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1992).
2
Christopher Brown, USMC, and Capt Donald Pump, USMC, for them to
sell as well. In total, GySgt Leonard made approximately
$85,000.00 from this scheme, the appellant made approximately
$39,000.00, and Capt Brown profited approximately $30,000.00.
Capt Pump actually sold little, if any, of the items, and
investigators were able to retrieve much of the property given
to him. However, Capt Pump played a pivotal role in the scheme
by taking advantage of his position to enable acquisition of the
excess military property.
In addition to wrongfully obtaining and selling military
property, GySgt Leonard also solicited the appellant to help him
secretly ship from Iraq to the United States 22 illegally
obtained AK-47 machineguns. GySgt Leonard informed the
appellant that he and a fellow Marine, GySgt Steven Carstensen,
USMC, intended to ship the weapons to the U.S., and the
appellant agreed to use his position as logistics chief to
facilitate the shipments. The appellant’s conduct in this
scheme included ensuring that the weapons, hidden in shipping
containers with false bottoms, were not discovered during
customs inspections. Once the weapons were in the U.S., the
appellant, at GySgt Leonard’s request, delivered one weapon each
to Capt Brown and First Lieutenant (1st Lt) Christopher Warp.
Based on this conduct, the CA referred charges against all
the Marines involved, with the exception of GySgt Leonard, who
was administratively separated with an other than honorable
conditions discharge and faced possible prosecution in civilian
federal court. However, the record of trial does not indicate
whether civilian authorities ever actually prosecuted GySgt
Leonard.
Capt Brown pled guilty at a general court martial to one
specification of wrongfully selling military property, one
specification of wrongfully possessing a machinegun, one
specification of obstructing justice, and one specification of
receiving stolen property. His adjudged sentence included a
dismissal, confinement for twelve months, a $15,000.00 fine, and
forfeiture of $1,000.00 pay per month for twelve months. The CA
was obligated pursuant to a pretrial agreement to defer the
adjudged and automatic forfeitures, and suspend the amount of
the fine in excess of $10,000.
GySgt Carstensen pled guilty at a general court martial to
one specification of conspiracy, one specification of wrongfully
possessing machineguns, one specification of wrongfully
transporting machineguns, two specifications of larceny, and
3
one specification of receiving stolen property. His adjudged
sentence included a bad-conduct discharge, confinement for nine
months, and a reduction to pay grade E-1.
1st Lt Warp pled guilty at a general court martial to three
specifications of violating Article 134, UCMJ. His adjudged
sentence included a dismissal, confinement for seventy days, and
forfeiture of $1,000.00 pay per month for twelve months. The CA
was obligated pursuant to a pretrial agreement to disapprove the
adjudged forfeitures, and defer and waive the automatic
forfeitures.
Finally, Capt Pump pled guilty at a general court martial
to one specification of dereliction of duty, and one
specification of receiving stolen property. His adjudged
sentence included a dismissal, confinement for eighteen months,
a $10,000.00 fine, and forfeiture of $2,500.00 pay per month for
eighteen months. The CA was obligated pursuant to a pretrial
agreement to suspend the fine, defer and then waive and defer
the automatic and adjudged forfeitures respectively, and suspend
all confinement in excess of 180 days.
Sentence Disparity
In his first assignment of error, the appellant alleges
that his sentence is disproportionately severe compared to the
sentences of his fellow Marines involved in the conduct in
question. He avers that disapproving the dishonorable discharge
will remedy this error.
In general, we review the appropriateness of a sentence
without reference or comparison to sentences in other cases.
United States v. Ballard, 20 M.J. 282, 283 (C.M.A. 1985). We
will not engage in comparison of specific cases “‘except in
those rare instances in which sentence appropriateness can be
fairly determined only by reference to disparate sentences
adjudged in closely related cases.’” United States v. Lacy,
50 M.J. 286, 288 (C.A.A.F. 1999) (quoting Ballard, 20 M.J. at
283) (additional citation omitted). “Closely related” cases are
those that involve offenses “similar in both nature and
seriousness or which arise from a common scheme or design.”
United States v. Kelly, 40 M.J. 558, 570 (N.M.C.M.R. 1994); see
also Lacy, 50 M.J. at 288 (examples of closely related cases
include co-actors in a common crime, servicemembers involved in
a common or parallel scheme, or “some other direct nexus between
the servicemembers whose sentences are sought to be compared”).
The burden is upon the appellant to make the initial showing
4
that his case is closely related to another, and that the
sentences are highly disparate. Lacy, 50 M.J. at 288. If the
appellant meets this burden, the Government must then establish
a rational basis for the disparity. Id.
In conducting this analysis it is important to note that
“[s]entence comparison does not require sentence equation.”
United States v. Durant, 55 M.J. 258, 260 (C.A.A.F. 2001)
(citations omitted). Additionally, co-conspirators are not
entitled to equal sentences simply due to their status as co-
conspirators. See id. at 261. Sentence disparity exists when a
sentence exceeds “relative uniformity” or represents an “obvious
miscarriage of justice or an abuse of discretion.” United
States v. Swan, 43 M.J. 788, 793-94 (N.M.Ct.Crim.App. 1995)
(citations and internal quotation marks omitted). It is with
these concepts in mind that we review the appellant's sentence.
In its answer, the Government concedes that the appellant's
case is closely related to those of his fellow Marines.
However, the Government alleges that the appellant is not
entitled to relief since he has failed to demonstrate that the
sentences in question are highly disparate. We disagree.
Of all the Marines involved, the appellant's adjudged
confinement was the longest by two years, and he was the only
Marine to suffer both an approved fine and unsuspended automatic
forfeitures. Moreover, the appellant was the only enlisted
Marine involved in the misconduct to receive a dishonorable
discharge. In light of these facts, and given that the cases
are closely related, we find that the appellant's sentence is
highly disparate to the sentences of his fellow Marines.
Although we find the appellant's sentence highly disparate
we will not grant relief so long as the Government provides a
rational basis for the disparity. In its brief, the Government
asks that we find a rational basis for the disparity based on a
“presumption” that the military judge in each case carefully
weighed all the evidence in mitigation, extenuation and
aggravation and rendered an individualized and appropriate
sentence. Government's Brief of 13 May 2014 at 12. We cannot
apply such a presumption as doing so would improperly relieve
the Government of its burden. See Lacy, 50 M.J. at 288 (stating
that if the appellant meets his burden of showing a high
disparity among closely related cases, or if the court raises
the issue on its own motion, “then the Government must show that
there is a rational basis for the disparity”). Additionally,
5
our review of the record as a whole, including the Government's
brief, does not reveal a rational basis for the disparity.
The record of trial demonstrates that the appellant, while
playing a significant role in both plans to sell military
property and to transport the machineguns, was the most junior
Marine involved in the misconduct, and did not become involved
in either scheme, until solicited by two senior Marines while
all were forward deployed to Iraq. Equally concerning is the
record’s silence on why GySgt Leonard – the recognized
ringleader of both schemes - avoided military justice
altogether. Based on all these facts, we conclude that the
Government has failed to meet its burden of providing a rational
basis for the appellant's highly disparate sentence.
Accordingly, we will grant relief.
Article 10, UCMJ
In a Grostefon submission, the appellant claims that the
military judge erred in denying his motion to dismiss based on
an alleged violation of Article 10, UCMJ. We disagree. We
review de novo whether an appellant was denied his right to a
speedy trial under Article 10, UCMJ. United States v. Cooper,
58 M.J. 54, 58 (C.A.A.F. 2003).
Article 10, UCMJ, states that when a servicemember,
[I]s placed in arrest or confinement prior to trial,
immediate steps shall be taken to inform him of the
specific wrong of which he is accused and to try him
or to dismiss the charges and release him.
The Court of Appeals for the Armed Forces has explained that
this provision “is specifically addressed to a particular harm,
namely causing an accused to languish in confinement or arrest
without knowing the charges against him and without bail.”
United States v. Schuber, 70 M.J. 181, 187 (C.A.A.F. 2011)
(citation omitted). “[I]f the condition precedent is addressed
— the accused is no longer confined without knowing the charges
of which he is accused and without opportunity for bail — the
purpose of Article 10, UCMJ, is vindicated.” Id. This remains
true even if the appellant is placed on restriction after
release from confinement, so long as that restriction is not
tantamount to arrest or confinement. Id.In the present case, the appellant was placed in pretrial
confinement on 14 April 2011. However, he was released from
confinement nineteen days later, on 3 May 2011, and placed on
6
pretrial restriction where he remained until his court-martial
held 17 May 2013. Although the appellant argued to the military
judge that this period of restriction was tantamount to arrest
or confinement, our review of the record convinces us that the
military judge did not err in rejecting this argument. Thus,
the purpose of Article 10, UCMJ, was “vindicated” in the
appellant's case upon his release from confinement. Id.2
Accordingly, this assignment of error is without merit.
Conclusion
The findings are affirmed. However, we affirm only so much
of the sentence so as to include a bad- conduct discharge,
confinement for eighteen months, a $10,000.00 fine, and
reduction to pay grade E-1.3 The supplemental court-martial
order will reflect that Capt Brown’s adjudged sentence included
a fine of $15,000.00 vice $5,000.00.
Senior Judge FISCHER and Judge KING concur.
For the Court
R.H. TROIDL
Clerk of Court
2
We also find that the nineteen days that the appellant did spend in
pretrial confinement did not violate Article 10, UCMJ, as we do not
find this delay unreasonable. See Schuber, 70 M.J. at 187-88.
3
The staff judge advocate's recommendation demonstrates that the
appellant paid his fine in full by 6 June 2013.
7