United States v. Crawford ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
R.Q. WARD, J.R. MCFARLANE, K.M. MCDONALD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
THADDEUS D. CRAWFORD
STAFF SERGEANT (E-6), U.S. MARINE CORPS
NMCCA 201300285
GENERAL COURT-MARTIAL
Sentence Adjudged: 29 March 2013.
Military Judge: LtCol Chris Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Division, Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Maj D.P. Harvey,
USMC.
For Appellant: CAPT Tierney Carlos, JAGC, USN.
For Appellee: Maj David N. Roberts, USMC; Capt Matthew
Harris, USMC.
14 January 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.
MCFARLANE, Judge:
A military judge, sitting as a general court-martial,
convicted the appellant, pursuant to his pleas, of one
specification of conspiracy, two specifications of unauthorized
absence (one terminated by apprehension), one specification of
dereliction of duty, one specification of making a false
official statement, and three specification of larceny, in
violation of Articles 81, 86, 92, 107, and 121, Uniform Code of
Military Justice, 10 U.S.C. §§ 881, 886, 892, 907, and 921. The
military judge sentenced the appellant to 46 months of
confinement, reduction to pay grade E-1, and a bad-conduct
discharge. Pursuant to a pretrial agreement, the convening
authority suspended all confinement in excess of 39 months, but
otherwise approved the adjudged sentence.
The appellant alleges four assignments of error: 1) that 39
months of confinement is inappropriately severe given the non-
violent nature of the offenses and the appellant’s combat
decorations and injuries; 2) that his sentence is disparately
severe compared to that of his co-conspirator and of another
Marine from his unit who faced similar charges; 3) that his plea
to dereliction of duty was improvident; and 4) that the staff
judge advocate committed plain error by incorrectly stating in
his recommendation that the appellant pled guilty to a number of
offenses that were withdrawn and dismissed. 1
After considering the pleadings of the parties, the record
of trial, and oral argument, 2 we conclude that the findings and
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 joined the Marine Corps in July of 1996, and
served six years in the infantry before being honorably
discharged in September of 2002. In May of 2004, the appellant
returned to active duty, once again as a machine gunner. In
2005, the appellant completed a seven month combat deployment to
Iraq, during which his unit was engaged in some of the most
intense fighting of the war. The appellant was exposed to
numerous Improvised Explosive Device (IED) blasts, to include
one that blew him off his feet, rendered him unconscious, and
caused him to bleed from his nose and ears. Despite his
1
The staff judge advocate’s recommendation (SJAR) did not actually list the
appellant’s pleas and findings, but rather attested to the accuracy of the
information contained in the amended results of trial, attached to the
recommendation as enclosure (1). While we agree with the appellant that the
initial results of trial incorrectly stated his pleas and findings, the
amended version, which was referenced by and appended to the SJAR, correctly
reflected the charges and findings. Accordingly, we will not further address
this assignment of error.
2
The court heard oral argument from the parties on 4 December 2013, limited
to the first assignment of error.
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injuries, the appellant refused treatment and focused instead on
the mission of evacuating those Marines who had been more
seriously wounded. On several other occasions, the appellant
displayed exceptional heroism. When his squad was pinned down
by enemy sniper fire the appellant charged across open ground,
engaging with and killing two enemy combatants. On another
occasion the appellant braved enemy fire to move a seriously
wounded Marine to a safe location where he could be treated by a
medic while awaiting evacuation. As a result of these and other
actions, the appellant was awarded the Navy Commendation Medal
(Combat V), the Navy Achievement Medal (Combat V), and the
Combat Action Ribbon.
In 2008, the appellant began to suffer from severe
headaches. He was eventually diagnosed with traumatic dural
fistula brain injury, a condition that caused pooling of the
blood on his brain. The appellant underwent four separate
surgeries to control the bleeding and alleviate the pressure
within his skull. These surgeries largely consisted of
installing multiple coils inside his brain to prevent the blood
from pooling.
As a result of his injuries, the appellant was placed on
limited duty, removed from his infantry unit, and assigned to
the regiment’s Remain Behind Element, where he served as the
unit’s Defense Travel System (DTS) administrator. The appellant
quickly learned that little or no supervision was being
exercised over the DTS system, and he began to make fraudulent
claims. Over an eight-month period, the appellant personally
stole over $86,000.00 from the Marine Corps by submitting false
claims. He also encouraged one of his direct subordinates, a
Lance Corporal (LCpl), to submit false claims, which led to the
theft of another $7,700.00. Lastly, while not directly involved
in the theft, the appellant, through dereliction of duty,
approved a third Marine’s false claims, amounting to more than
$16,000.00.
In May of 2010, the appellant received a telephone call
from the regiment’s financial officer, questioning him about
several claims he filed. Realizing that the command’s inquires
would soon reveal his crimes, he and his Mexican-national
girlfriend fled to Mexico City. Approximately six months later,
he surrendered himself to the U.S. Embassy in Mexico City, but
when he ran into difficulty leaving the country on the
straggler’s orders that he was given, he resumed his
unauthorized absence status. For the next eighteen months he
lived and worked in Mexico, posing as a Mexican citizen, until
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he was apprehended by the Naval Criminal Investigative Service
(NCIS) and returned to the United States to stand trial.
Additional facts are developed below as needed.
Analysis
Sentence Appropriateness
The appellant argues that his sentence is inappropriately
severe based on his character and record of service. We
disagree.
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). We engage in a review that gives
“‘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.
267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy, 27
C.M.R. 176, 180-81 (C.M.A. 1959)).
The appellant’s record of service, particularly his combat
service, was exemplary. Undoubtedly, his acts of heroism, and
the significant combat-related injuries he sustained while
serving in Iraq, weighed heavily in the sentencing calculations.
However, weighing against the appellant were the nature,
severity, and duration of his crimes.
Once his injuries prevented the appellant from serving as a
machine gunner, he was reassigned as a DTS administrator - a
position of significant trust and authority. The appellant
abused that trust by filing multiple false claims, defrauding
the Government out of more than $86,000.00 over an eight-month
period. No compelling need prompted these thefts. When asked
why he started stealing the appellant said “because I could” and
[t]he apple was there and I picked it.” Prosecution Exhibit 3
at 4. The appellant further abused this trust by approving
obviously fraudulent claims being submitted by another Marine,
totaling another $16,000.00.
The appellant also abused the trust he was given as a staff
noncommissioned officer. Without being asked to, he overpaid a
claim submitted by a LCpl whom he directly supervised. When the
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LCpl, who was having money problems, asked about the
overpayment, the appellant entered into a conspiracy with his
subordinate. The thefts then committed by the two of them cost
the Government another $7,700.00, and led to the LCpl being
sentenced to 10 months confinement, reduction to E-1, and a bad-
conduct discharge.
Further weighing against the appellant is the fact that he
avoided prosecution by fleeing the country. The appellant moved
to Mexico, assumed a false identify as a Mexican citizen, and
only returned to face the charges against him after he was
apprehended by NCIS two years later. While it is true that he
surrendered himself to the United States embassy at one point,
the appellant’s failure to return to the embassy when he
encountered difficulties at the airport indicates little or no
motivation on his part take responsibility for his actions.
In light of the entire record, we find that the appellant’s
adjudged and approved sentence of 46 months of confinement,
reduction to pay grade E-1, and a bad-conduct discharge is
appropriate for this offender and his offenses. United States
v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy, 26 M.J. at
395-96; Snelling, 14 M.J. at 268. The fact that the adjudged
sentence did not include a sizable fine, especially given the
appellant’s significant unjust enrichment, and the fact that the
appellant was not awarded a dishonorable discharge, appears to
be the direct result of the weighty mitigation evidence
presented in this case. Lastly, while a strong argument can be
made that clemency would be appropriate in this case, clemency
is a prerogative reserved for other authorities, and is not
within this court’s power to grant. See Healy, 26 M.J. at 395.
Sentence Disparity
The appellant argues that his sentence is disparately
severe when compared the sentence received by his co-
conspirator, LCpl K, who was sentenced at a special court-
martial to 10 months of confinement, reduction to pay grade E-1,
and a bad-conduct discharge. The appellant also argues that his
sentence is disparately severe when compared to the sentence
awarded to Staff Sergeant (SSgt) M (which the appellant argues
is a closely-related case), who was sentenced at a general
court-martial to 90 days of confinement, reduction to pay grade
E-3, and a bad-conduct discharge. We disagree.
The appropriateness of a sentence generally should be
determined without reference or comparison to sentences in other
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cases. United States v. Ballard, 20 M.J. 282, 283 (C.M.A.
1985). We are not required to 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). The burden is upon the appellant to
make that showing. Id. “Closely related” cases are those that
“involve offenses that are 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 (citing examples of closely related
cases as including 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”). If the appellant meets this threshold, the
burden shifts to the Government to demonstrate a rational basis
for the disparity. United States v. Sothen, 54 M.J. 294, 296
(C.A.A.F. 2001); Lacy, 50 M.J. at 288. Co-conspirators are not
entitled to equal sentences. United States v. Durant, 55 M.J.
258, 260 (C.A.A.F. 2001).
Assuming without deciding that both of the cases cited by
the appellant are “closely related” and that their sentences are
highly disparate, we nonetheless find a rational basis for the
disparity; both of the other cases involved significantly
different charges or findings of guilt. The appellant’s co-
conspirator, LCpl K, was convicted of stealing $7,700.00, not
$86,000.00. That alone would provide a rational basis for
different sentences. Moreover, LCpl K was by far the more
junior member of the conspiracy, and he did not flee the country
to avoid prosecution. As for SSgt M, he stole $70,000.00 less
than the appellant, did not conspire with a subordinate to
commit a crime, and did not flee the country. Moreover, while
SSgt M received significantly less confinement than the
appellant, he was retirement eligible before he was awarded his
bad-conduct discharge, something that was not true of the
appellant.
Given these differences, the Government has more than met
its burden to demonstrate a rational basis for the sentence
disparity.
Dereliction of Duty
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The appellant claims the military judge abused his
discretion by accepting his guilty plea to dereliction of duty.
In making this argument, the appellant relies upon United States
v. Sojfer, 44 M.J. 603 (N.M.Ct.Crim.App. 1996), aff’d, 47 M.J.
425 (C.A.A.F. 1998), which stands for the proposition that one
cannot be convicted of dereliction of duty when the alleged acts
were “beyond the scope of [the appellant’s] duties.” Id. at
610. Further, the appellant states that “[a]rguably, the
stipulation of fact does provide a sufficient basis to conclude
Appellant’s conduct met the elements of dereliction of duty,”
but argues that the military judge’s failure to resolve
inconsistencies between the stipulation of fact and the plea
rendered his plea improvident. Appellant’s Brief of 23 Sep 2013
at 21-22.
“A military judge’s decision to accept a guilty plea
is reviewed for an abuse of discretion.” United States v.
Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008) (citations and
internal quotation marks omitted). We will not disturb a
guilty plea unless the record of trial shows a substantial
basis in law or fact for questioning the guilty plea. Id.To prevent the acceptance of improvident pleas, the
military judge is required to develop, on the record, the
factual bases for “the acts or the omissions of the accused
constitute the offense or offenses to which he is pleading
guilty.” United States v. Care, 40 C.M.R. 247, 253 (C.M.A.
1969) (citations omitted); see also Art. 45, UCMJ. The
appellant must admit every element of the offense to which
he pleads guilty. United States v. Aleman, 62 M.J. 281,
283 (C.A.A.F. 2006); see also RULE FOR COURTS-MARTIAL 910(e),
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.). If the
military judge fails to establish that there is an adequate
basis in law or fact to support the appellant’s plea during
the Care inquiry, the plea will be improvident.
Inabinette, 66 M.J. at 322; see also R.C.M. 910(e). This
court “must find ‘a substantial conflict between the plea
and the [appellant’s] statements or other evidence’ in
order to set aside a guilty plea. The ‘mere possibility’
of a conflict is not sufficient.” United States v. Watson,
71 M.J. 54, 58 (C.A.A.F. 2012) (quoting United States v.
Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996)). “In determining
on appeal whether there is a substantial inconsistency,
this Court considers the ‘full context’ of the plea
inquiry, including Appellant’s stipulation of fact.”
United States v. Goodman, 70 M.J. 396, 399 (C.A.A.F. 2011)
(citing United States v. Smauley, 42 M.J. 449, 452
(C.A.A.F. 1995)).
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Our review of the record in this case reveals no basis for
questioning the appellant’s plea. Unlike in Sofjer, the case
relied upon by the appellant in his brief, the appellant in this
case was not charged with willful dereliction of duty for
committing acts “which he was not authorized to do.” 44 M.J. at
610. Rather, the appellant was charged with “willfully
fail[ing] to properly evaluate the Defense Travel System claims
of certain individuals before approving them for payment, as it
was his duty as the Approving Official to do so.” Charge Sheet.
Accordingly, the principle set forth in Sofjer, that dereliction
of duty cannot be used as a basis for criminalizing “acts
committed which go beyond the scope of one’s duties,” is
inapplicable. Id.
Moreover, we find no substantial conflict between the
appellant’s answers during the providence inquiry and the
stipulation of fact. During the providence inquiry, the
appellant admitted that he “knew what [his] responsibilities
were” and that he “did not properly evaluate the claims . . . .”
Record at 78. In the stipulation of fact the appellant admitted
that he was “derelict in [his] evaluation duties by approving
some Defense Travel System requests for reimbursement without
properly reviewing those claims . . . .” Pros. Ex. 1 at 8. The
fact that he knew that some of the claims he failed to review
were fraudulent further supports, rather than contradicts, his
admission that he was derelict in the performance of his duties.
Conclusion
The findings and the sentence as approved by the convening
authority are affirmed.
Senior Judge WARD and Judge MCDONALD concur.
For the Court
R.H. TROIDL
Clerk of Court
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