United States v. Rockenhaus ( 2014 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.R. MCFARLANE, K.M. MCDONALD, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
CONRAD A. ROCKENHAUS
INFORMATION SYSTEMS TECHNICIAN FIRST CLA SS (E-6), U.S. NAVY
NMCCA 201300409
SPECIAL COURT-MARTIAL
Sentence Adjudged: 25 June 2013.
Military Judge: Col Daniel J. Daugherty, USMC.
Convening Authority: Commandant, Naval District Washington,
Washington Navy Yard, Washington, DC.
Staff Judge Advocate's Recommendation: LCDR J.D. Pilling,
JAGC, USN.
For Appellant: Capt David A. Peters, USMC.
For Appellee: LCDR Jeremy R. Brooks, JAGC, USN; Maj Crista
Kraics, USMC.
28 August 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.
PER CURIAM:
A military judge, sitting as a special court-martial,
convicted the appellant, contrary to his pleas, of seven
specifications of making false official statements and four
specifications of wearing an unauthorized ribbon or device, in
violation of Articles 107 and 134, Uniform Code of Military
Justice, 10 U.S.C. §§ 907 and 934. The military judge sentenced
the appellant to a reprimand, confinement for 157 days, and a
bad-conduct discharge. The convening authority (CA) approved
the sentence as adjudged and, except for that part of the
sentence extending to a bad-conduct discharge, ordered it
executed.1
The appellant asserts three assignments of error: (1) that
the military judge erred in not suppressing the appellant’s
statement to the Naval Criminal Investigative Service (NCIS);
(2) that the appellant was denied his right to an independent
evaluation under RULE FOR COURT-MARTial 706, MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2012 ed.); and, (3) that his conviction of
Specifications 1, 2, 3, 7, and 8 of Charge II and Specifications
3, 4, 5, and 9 of Charge IV are legally and factually
insufficient.2
After carefully considering the record of trial and the
submissions of the parties, 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
In January 2012, the appellant submitted to Hospitalman
Second Class (HM2) F, the limited duty coordinator at Walter
Reed National Military Medical Center (WRNMMC), several
documents purporting to show the appellant was entitled to wear
the Purple Heart Medal, the Joint Service Commendation Medal,
the Combat Action Ribbon, and the Afghanistan Campaign Medal, as
well as qualified as an Enlisted Expeditionary Warfare (EXW)
Specialist. He also submitted documents indicating he had been
entitled to imminent danger pay for deployments to Cote D’Ivoire
and Afghanistan. The appellant submitted these documents in the
1
We note the CA’s action does not include a copy of the letter of reprimand
as required by section 0152 of the Manual of the Judge Advocate General,
Judge Advocate General Instruction 5800.7F (26 Jun 2012). We have been
informed the CA has not and does not intend to issue a letter in this case.
2
These three issues are raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982). We note the appellant was found not guilty of
Specification 3 of Charge II and Specification 9 of Charge IV.
2
hope of gaining admission to a program reserved for wounded
veterans.
During an investigation into anonymous e-mails targeting
the appellant and his family, NCIS asked for and received the
appellant’s permission to search his personal computers. A
forensic examiner discovered several files on the appellant’s
computer that contained images of award citations, NAVPERS
1070/613 forms, and signatures of certifying officials. These
images match in material aspects the documents the appellant
provided to HM2 F, and appear to have been “cut and pasted” to
create the documents. Additionally, at trial, Chief Personnel
Specialist (PSC) C testified that he did not sign the NAVPERS
1070/613 form purporting to authorize the appellant to wear the
EXW device, as PSC C had no authority to do so.
The appellant first met Special Agent (SA) D when the
appellant came to NCIS on 19 December 2012 to discuss the
threatening emails. The appellant was not a suspect at that
time. However, when SA D noted the ribbons and devices the
appellant wore, including the EXW device, the Purple Heart
Medal, a Navy-Marine Corps Commendation Medal with a combat “V”,
and a Combat Action Ribbon, SA D inquired as to the Purple
Heart. The appellant told him it was for an injury caused by an
improvised explosive device in Afghanistan.
Based on a 28 December 2012 review of the appellant’s
service record, SA D became suspicious and spoke to the
appellant’s chain of command on 10 January 2013. He then
learned of an earlier command investigation into the appellant’s
wearing of unauthorized medals and devices.
On 10 January 2013 the appellant arrived at the home he had
been residing in and was in the process of vacating and found
someone had turned on a gas valve and lighted the fireplace. He
and a neighbor entered the home and secured the gas valve and
fireplace. When the appellant was interrogated by SA D later
that day, SA D advised the appellant of his rights under Article
31(b), UCMJ, informing him he was suspected of, inter alia,
making false statements and wearing medals he was not authorized
to wear. Despite being on medication and having earlier spent
time in a gas-filled house, the appellant was lucid and clear-
headed, and did not appear to be under the influence of drugs or
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alcohol.3 The appellant waived his rights and provided a
statement. When asked about his deployments, he ultimately
admitted, “I never deployed.”
Shortly after the appellant was placed in confinement, his
civilian defense counsel (CDC) requested that the CA order an
inquiry into the appellant’s mental state pursuant to R.C.M.
706. The CDC later renewed the request, additionally asking
that the inquiry be conducted by personnel not assigned to Naval
Hospital Portsmouth. This request was based on an alleged
“history of distrust” between the appellant and his providers at
Naval Hospital Portsmouth. Although an inquiry was conducted,
the record is unclear as to who ultimately participated in the
appellant’s R.C.M 706 panel.
Statement to NCIS
We review a military judge’s decision to admit or exclude
evidence for an abuse of discretion. United States v. Mott, 72
M.J. 319, 329 (C.A.A.F. 2013). At trial, the CDC moved to
suppress the appellant’s statement on three bases: First, that
it was unknowing and involuntary due to the appellant’s
medications and gas exposure; second, that any statement to NCIS
was tainted by the earlier investigation by the appellant’s
chain of command that did not include warning the appellant of
his rights under Article 31(b), UCMJ; and, third, that it lacked
corroboration. As it is unclear on which basis the appellant’s
assignment of error rests, we will examine all three.
Considering the sworn testimony of both special agents
present at the 10 January interrogation, as well as a careful
review of the videotaped interrogation in question (Prosecution
Exhibit 29), we are convinced the appellant knowingly,
intelligently and voluntarily waived his right to remain silent.
While the appellant’s chain of command may have questioned
him regarding his awards and devices without proper warnings,
this did not taint the subsequent NCIS interrogation. The
questioning by his chain of command occurred nearly 6 months
before the appellant met with NCIS. Special Agent D had formed
his suspicions before talking with the appellant’s chain of
3
This is supported by both SA D’s testimony and a review of the videotaped
interrogation.
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command, advised the appellant of his rights under Article
31(b), UCMJ, before questioning him, and did not inform the
appellant that he was aware of any statements the appellant may
have made to his chain of command. Additionally, we find no
evidence of aggravating circumstances such as intentional
disregarding of constitutional or codal rights. See United
States v. Marquardt, 39 M.J. 239 (C.M.A. 1994).
We are also satisfied that the appellant’s confession was
sufficiently corroborated by other evidence in the case.
Specifically, we considered the numerous images found on the
appellant’s personal computer indicating the appellant created
the documents purporting to prove authorization to wear
deployment-related awards. Accordingly, we find this assigned
error to be without merit.
R.C.M. 706 Examination
Questions regarding conflicts of interest involving a
R.C.M. 706 board are mixed questions of law and fact and are
reviewed de novo. United States v. Best, 61 M.J. 376, 381
(C.A.A.F. 2005). There is no per se rule precluding a
practitioner from participating in a sanity board when that
practitioner has had prior involvement with the subject. Id. at
387. Instead, the test is whether an actual conflict exists
based on that prior involvement. Id. As the appellant cites no
facts in support of an actual conflict, and we find nothing in
the record to indicate the appellant did not receive a fair and
independent examination, this assigned error is without merit.
Legal and Factual Sufficiency
We review questions of legal and factual sufficiency de
novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is whether any rational
trier of fact could have found that the evidence met the
essential elements of the charged offenses, viewing the evidence
in a light most favorable to the Government. United States v.
Turner, 25 M.J. 324 (C.M.A. 1987). The test for factual
sufficiency is whether we are convinced of the appellant's guilt
beyond a reasonable doubt, allowing for the fact that we did not
personally observe the witnesses. Id. at 325. Here, we find in
the affirmative on both tests.
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As to the specifications under Charge II, HM2 F testified
that the appellant submitted the false forms and citations to
him in HM2 F’s official capacity as the WRNMMC limited duty
coordinator. The appellant’s admission to having never
deployed, PSC C’s testimony that he did not sign the EXW
qualification form, and the various images of fake documentation
found on the appellant’s computer all support a finding that
these forms and citations were false, that the appellant knew
they were false, and that he submitted them with the intent to
deceive. This same evidence, combined with testimony that the
appellant wore the ribbons and device as alleged, and that this
was to the prejudice of good order and discipline, supports the
findings of guilt under Charge IV.
After carefully reviewing the record of trial and
considering the evidence in the light most favorable to the
Government, we are convinced that a reasonable trier of fact
could have found all the essential elements beyond a reasonable
doubt. Furthermore, after weighing all the evidence in the
record and having made allowances for not having personally
observed the witnesses, we are convinced beyond a reasonable
doubt of the appellant’s guilt.
Conclusion
The findings and only so much of the sentence as includes
157 days’ confinement and a bad-conduct discharge are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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