United States v. Cook ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, K.M. MCDONALD, T.J. STINSON
Appellate Military Judges
UNITED STATES OF AMERICA
v.
TRAVIS L. COOK
SERGEANT (E-5), U.S. MARINE CORPS
NMCCA 201400247
GENERAL COURT-MARTIAL
Sentence Adjudged: 25 February 2014.
Military Judge: Col. D.J. Daugherty, USMC.
Convening Authority: Commanding General, 4th Marine Air
Wing, Marine Forces Reserve, New Orleans, LA.
Staff Judge Advocate's Recommendation: LtCol E.R. Kleis,
USMC.
For Appellant: CDR Boyce A. Crocker, JAGC, USN.
For Appellee: LCDR Keith B. Lofland, JAGC, USN; LT James
Belforti, JAGC, USN.
29 January 2015
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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.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant, pursuant to his pleas, of three
specifications of disobeying a lawful order, one specification
of making a false official statement, and thirteen
specifications of larceny in violation of Articles 91, 107, and
121, Uniform Code of Military Justice, 10 U.S.C. §§ 891, 907,
and 921. The military judge sentenced the appellant to
reduction to pay grade E-1, four years and six months
confinement, a fine of $466,147.00, and a bad-conduct discharge.
Pursuant to a pretrial agreement, the convening authority (CA)
suspended all confinement in excess of 36 months. As a matter
of clemency the CA disapproved all fines in excess of
$131,250.00. The CA approved a sentence of 36 months’
confinement, a fine of $131,250.00, reduction to pay grade E-1,
and a bad-conduct discharge.
The appellant submits two assignments of error: (1) that
it was error for the CA to fail to explain his reasoning for not
following the military judge’s clemency recommendations and to
not comment specifically as to whether he considered the
appellant’s clemency package, 1 and; (2) that the sentence is
inappropriately severe. After careful consideration of the
record of trial, the appellant's assignments of error and the
parties’ pleadings, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Background
The appellant was a supply clerk with a unit in the 4th
Marine Aircraft Wing and admitted using his position to order
electronic equipment which he then sold through online services
such as Craigslist. The appellant falsified records in the
electronic database to conceal his thefts. When Gunnery
Sergeant O ordered the appellant to stop obligating unit funds,
the appellant disobeyed and continued to obligate funds. In
total the appellant stole $466,147.00 worth of equipment.
After announcing the sentence the military judge stated:
Based upon the family situation in this case, the
Court further recommends – and I rarely make
recommendations on the record – recommends that the
accused’s wife be provided with legal assistance to
determine whether or not she rates innocent spousal
support for the six months that the regulations allow
for that. Further, the Court recommends that all
confinement in excess of 20 months be suspended for
the period of confinement plus one year thereafter.
1
This assignment of error is raised pursuant to United States v. Grostefon,
12 M.J. 421 (C.M.A. 1982).
2
Record at 131. The staff judge advocate included the
military judge’s comment in his recommendation.
The appellant argues that the CA erred in failing to
explain why he did not follow the military judge’s
recommendation and further erred by not commenting specifically
on matters submitted in the appellant’s clemency package. In
addition, the appellant argues that the military judge’s
recommendation to reduce the appellant’s confinement to 20
months indicates that the sentence, which included a bad-conduct
discharge, was inappropriately severe in light of the
appellant’s prior years of creditable service. The Government
responds that the bad-conduct discharge was an appropriate
punishment and should be affirmed.
Analysis
Convening Authority’s Action
It is well-settled that the CA has the sole discretion to
act on matters submitted for clemency consideration. See
generally Article 60(c)(1); (the convening authority may
exercise “sole discretion” as a matter of “command prerogative”
in deciding whether to set aside or modify the findings or
sentence); United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2010).
In this case the record is clear that the CA, after
reviewing the record of trial, staff judge advocate’s
recommendation, and the submitted clemency materials, elected to
not alter the adjudged confinement or the punitive discharge,
but rather chose to reduce the fine awarded by approximately
three hundred and thirty five thousand dollars. This is a
reasoned exercise of the CA’s clemency prerogative under Article
60 and therefore we find this assigned error to be without
merit.
Appropriateness of the Sentence
This court reviews the appropriateness of a sentence de
novo. United States v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006).
Sentence appropriateness involves the judicial function of
assuring that justice is done and that the accused gets the
punishment he deserves. United States v. Healy, 26 M.J. 394,
395 (C.M.A. 1988). As part of that review, we give
“‘individualized consideration’ of the particular accused ‘on
the basis of the nature and seriousness of the offense and the
character of the offender.’” United States v. Snelling, 14 M.J.
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267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)).
As set forth above, the appellant was convicted of stealing
from the Marine Corps on multiple occasions in an amount in
excess of four hundred thousand dollars. We conclude that based
on the evidence admitted at trial, the post-trial matters
submitted by the appellant, and the severity of the offenses
committed by the appellant, justice was served and the appellant
received the punishment he deserved.
Conclusion
The findings and sentence as approved by the CA are
affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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