United States v. Hubbard ( 2020 )

This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HITESMAN, and GASTON,
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Bradley J. HUBBARD
Sergeant (E-5), U.S. Marine Corps
Appellant
No. 201800278
Decided: 4 March 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Military Judge: Lieutenant Colonel Eugene H. Robinson, USMC.
Sentence adjudged 8 June 2018 by a general court-martial convened
at Marine Corps Base Camp Foster, Okinawa, Japan, consisting of a
military judge sitting alone. Sentence approved by the convening
authority: a reprimand, reduction to pay grade E-1, confinement for
six years, and a dishonorable discharge. 1
For Appellant: Captain Kimberly D. Hinson, JAGC, USN.
For Appellee: Captain William J. Mossor, USMC; Lieutenant Kurt W.
Siegal, JAGC, USN.
_________________________
1 The convening authority suspended all confinement in excess of 18 months in
accordance with a pretrial agreement.
United States v. Hubbard, NMCCA No. 201800278
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas, of conspiracy to distribute MDMA, 2 exportation of
MDMA, introduction of MDMA with the intent to distribute, and distribution
of MDMA, in violation of Articles 81 and 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 881 and 912a (2012).
Appellant raises two assignments of error: (1) the military judge commit-
ted plain error by allowing the Government to introduce into evidence a
complete Naval Criminal Investigative Service (NCIS) investigative report,
and (2) his sentence to six years confinement is inappropriately severe. After
careful consideration of the record of trial and the pleadings of the parties, we
find no prejudicial error and affirm.
I. BACKGROUND
Appellant purchased MDMA, a Schedule I controlled substance, 3 from a
person in San Diego, California. The next month he deployed to Okinawa,
Japan, and brought the MDMA with him with the intent to distribute it to
other Marines. While in Okinawa, Appellant conspired with another Marine
to distribute the MDMA to others and distributed a portion of the MDMA to
him for that purpose. Appellant’s co-conspirator set up a meeting with a
prospective purchaser, who was actually an undercover Naval Criminal In-
vestigative Service (NCIS) agent. NCIS apprehended the co-conspirator dur-
ing the controlled buy. Appellant was apprehended shortly thereafter and
gave incriminating statements, including a hand-written confession, to NCIS.
Appellant entered into a pretrial agreement (PTA) with the convening au-
thority. In the PTA, Appellant agreed “not to object to . . . relevant Naval
Criminal Investigative Service evidentiary material . . . or relevant state-
2 MDMA is an acronym for 3,4-methylenedioxy-methamphetamine, also known
as “ecstasy” or “molly.”
3 21 U.S.C. § 812.
2
United States v. Hubbard, NMCCA No. 201800278
ments offered by the Government in aggravation.” 4 He also stated: “I specifi-
cally, knowingly, and intelligently agree to waive” a motion for “[s]uppression
of my statement given to the Naval Criminal Investigative Service on 23
January 2018.” 5
In aggravation, the Government offered into evidence Prosecution Exhibit
3, the 191-page NCIS investigation which contained Appellant’s videotaped
interrogation and hand-written confession of 23 January 2018. In the state-
ments, Appellant admitted to committing the charged offenses as well as
uncharged misconduct of distributing MDMA to Marines during the six
months prior to his deployment to Okinawa. When asked by the military
judge if he had an objection to Prosecution Exhibit 3, Appellant’s counsel
stated, “No objections.” 6
Additional facts necessary to resolution of the issues are contained in the
discussion.
II. DISCUSSION
A. Appellant Waived Objection to his Statement to NCIS Containing
Uncharged Misconduct
Waiver is “the intentional relinquishment or abandonment of a known
right.” United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (quoting
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009)). We do not review
waived issues, for “a valid waiver leaves no error to correct on appeal.” Id.
In light of the terms in Appellant’s PTA specifically agreeing that the
Government could introduce relevant NCIS evidence and statements into
evidence, his trial defense counsel’s statement of “no objections” to the admis-
sion of the NCIS report (Prosecution Exhibit 3) constituted a waiver of any
claim of error as to its admission. See United States v. Swift, 76 M.J. 210, 217
(C.A.A.F. 2017) (citing United States v. Campos, 67 M.J. 330, 332-33
4 Appellate Exhibit II at 3.
5 Id.
6 Record at 72.
3
United States v. Hubbard, NMCCA No. 201800278
(C.A.A.F. 2009)); MILITARY RULE OF EVIDENCE 304(f)(1) MANUAL FOR
COURTS-MARTIAL, UNITED STATES (2016 ed.). 7
To the extent any irrelevant information was contained in Prosecution
Exhibit 3, we assume that the military judge did not consider it in adjudging
a sentence since military judges are presumed to know and apply the law
correctly and to filter out inadmissible evidence. United States v. Robbins, 52
M.J. 455, 457 (C.A.A.F. 2000).
B. Appellant’s Sentence is Appropriate
We review sentence appropriateness 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 pun-
ishment he deserves.” United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1988).
This requires our “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) (citation
and internal quotation marks omitted). In making this assessment, we ana-
lyze the record as a whole. Healy, 26 M.J. at 395-97. Despite our significant
discretion in determining sentence appropriateness, we may not engage in
acts of clemency. United States v. Nerad, 69 M.J. 138, 146 (C.A.A.F. 2010).
We note that Appellant’s offenses were very serious. He conspired with
another Marine to distribute MDMA; exported MDMA from the United
States to Japan onboard a government contracted flight for his deploying
unit; introduced the MDMA onto a Marine Corps base in a foreign country
with the intent to distribute it; and distributed the MDMA. The fact that he
pleaded guilty to the offenses is mitigating and is factored into our analysis.
We also consider that Appellant faced a maximum of 65 years of confinement,
but received less than one-tenth of that amount.
Having given individualized consideration to the nature and seriousness
of these crimes, Appellant’s record of service, and all matters contained in the
record of trial, including matters submitted by Appellant in extenuation and
mitigation, we conclude the sentence as approved by the convening authority
is not inappropriately severe and is appropriate for this offender and his
offenses. United States v. Baier, 60 M.J. 382, 384-85 (C.A.A.F. 2005); Healy,
7 Appellant also agreed in his pretrial agreement to waive any motion to suppress
his statement to NCIS. Appellate Exhibit II at 4. That also constitutes waiver of
admission of the evidence.
4
United States v. Hubbard, NMCCA No. 201800278
26 M.J. at 395-96; Snelling, 14 M.J. at 268. Granting sentence relief at this
point would be to engage in clemency, which we decline to do. Healy, 26 M.J.
at 395-96.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to Appellant’s substan-
tial rights occurred. Arts. 59, 66, UCMJ. Accordingly, the findings and sen-
tence as approved by the convening authority are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
5