United States v. Parker ( 2014 )

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Senior Airman ADAM D. PARKER
United States Air Force
ACM 38384
____ M.J. ____
15 October 2014
Sentence adjudged 9 April 2013 by GCM convened at Minot Air Force
Base, North Dakota. Military Judge: Grant L. Kratz (sitting alone).
Approved Sentence: Dishonorable discharge, confinement for life, and
reduction to E-1.
Appellate Counsel for the Appellant: Captain Thomas A. Smith.
Appellate Counsel for the United States: Lieutenant Colonel Steven J.
Grocki and Gerald R. Bruce, Esquire.
Before
MITCHELL, WEBER, and CONTOVEROS
Appellate Military Judges
OPINION OF THE COURT
This opinion is subject to editorial correction before final publication.
WEBER, Judge:
The appellant providently pled guilty to rape of a child, aggravated sexual contact
with a child, aggravated sexual abuse of a child, two specifications of indecent liberties
with a child, two specifications of sodomy with a child, and two specifications of
possession of child pornography, in violation of Articles 120, 125, and 134, UCMJ,
10 U.S.C. §§ 920, 925, 934.1 The adjudged and approved sentence consisted of a
dishonorable discharge, confinement for life, and reduction to E-1.
The appellant alleges: (1) the sodomy specifications are multiplicious of the
indecent liberties specifications and (2) his sentence is inappropriately severe. We also
sua sponte discuss one issue with the post-trial processing of this case.
Background
In late September 2012, the appellant was in the midst of an internet-facilitated
conversation with his wife while he was deployed to Qatar. The appellant’s wife wanted
their 3- and 4-year-old daughters to speak with the appellant. However, the younger of
the daughters refused to do so and told her mother she did not want her father to come
home. The girls then revealed the appellant had engaged in various sexual acts with
them, including placing his penis in their mouths. When the appellant’s wife confronted
the appellant via internet messages, he admitted to engaging in certain sexual acts with
the girls.
The appellant’s wife promptly reported this incident, and Air Force Office of
Special Investigations agents interviewed the appellant in Qatar. He first denied
committing any sexual acts with the children but later admitted to placing his penis into
his daughters’ mouths five times each, mostly while they were blindfolded. He also
eventually admitted to committing other sexual activity with them. In addition, the
appellant told agents he molested his nieces in nearly identical ways years earlier, before
he joined the Air Force. The appellant also admitted to downloading and viewing child
pornography, a confession later corroborated by lawful searches of his computer media
devices from Qatar and the family’s home at Minot Air Force Base.
Multiplicity
Among the matters to which the appellant pled guilty were two specifications of
indecent liberties with a child by exposing his penis to each of the two girls in their
physical presence, and two specifications of sodomy with a child by placing his penis
into the mouth of each child on divers occasions. The appellant did not raise any
multiplicity issue regarding these charges and specifications at trial, but on appeal, he
alleges the sodomy specifications are multiplicious of the indecent liberties specifications
because both relate to the same misconduct.
1
The Article 120, UCMJ, 10 U.S.C. § 920, offenses were charged under that version of the code applicable to
offenses committed during the period of 1 October 2007 through 27 June 2012. See 10 U.S.C. § 920 (2006)
(amended by National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, 119 Stat. 3136);
Manual for Courts-Martial, United States, Punitive Articles Applicable to Sexual Offenses Committed During the
Period 1 October 2007 through 27 June 2012, App. 28 (2012 ed.).
2 ACM 38384
The military judge noted a possible issue as he questioned the appellant about the
first of the two indecent liberties specifications. The military judge questioned whether
the appellant’s plea was provident because the appellant stated his daughter generally did
not see his penis when he exposed it, and his daughter would not have known he exposed
it had he not placed his penis in her mouth. Trial counsel asserted the plea was provident,
reasoning that (1) the child was able to “perceive” his exposed penis because he placed it
in her mouth; and (2) the appellant “exposed” his penis even though the child was
blindfolded, analogizing that a person who exposes himself by opening a trench coat is
guilty of indecent liberties even if the victim does not actually look at the exposed areas.
Trial defense counsel then also affirmatively asserted the plea was provident, agreeing
with both of trial counsel’s rationales. The military judge went on to question the
appellant regarding the other indecent liberty specification where he engaged in
essentially the same behavior with his other daughter. Trial defense counsel raised no
concerns regarding the providence of the second indecent liberties specification, and the
military judge accepted the appellant’s guilty pleas on both.
The appellant contends the sodomy specifications are lesser included offenses of
the indecent liberties specifications and are therefore multiplicious. Relatedly, he asserts
the two offenses are facially duplicative in that both involved the same act; namely,
placing his penis in the children’s mouths. The appellant alleges that under the facts of
this case, the sodomy specifications did not require proof of a fact not required by the
indecent liberties specifications because the appellant blindfolded the children, and the
only way in which he “exposed” his penis (thus constituting indecent liberties) was by
inserting it into the children’s mouths (thus constituting sodomy).
This court normally reviews multiplicity claims de novo. See United States v.
Anderson, 68 M.J. 378, 385 (C.A.A.F. 2010). However, an unconditional guilty plea
forfeits2 any issues of multiplicity unless the specifications are “facially duplicative.”
United States v. Campbell, 68 M.J. 217, 219–20 (C.A.A.F. 2009); see also United States
v. Gladue, 67 M.J. 311, 314 (C.A.A.F. 2009) (distinguishing forfeiture from waiver of
multiplicity claims). Whether the specifications are facially duplicative, i.e., factually the
same, is a question of law reviewed de novo. United States v. Pauling, 60 M.J. 91, 94
(C.A.A.F. 2004). Specifications are not facially duplicative if each requires proof of a
fact not required to prove the others. Campbell, 68 M.J. at 220. In addition to issues of
forfeiture, claims of multiplicity may be expressly waived, relinquishing the right to raise
2
Our superior court’s decision in United States v. Campbell, 68 M.J. 217, 219–20 (C.A.A.F. 2009) stated that the
appellant “waived” his ability to raise a multiplicity issue on appeal. However, the court’s decision in United States
v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009) recognizes that military courts had failed to “consistently distinguish
between the terms ‘waiver’ and ‘forfeiture’” and held that a claim of multiplicity was only waived by the appellant’s
unconditional guilty plea because the appellant agreed to waive all waivable motions in a pretrial agreement.
Following Gladue, the term “forfeiture” should generally characterize the effect of an unconditional guilty plea on
multiplicity claims, absent some affirmative waiver. See United States v. St. John¸ 72 M.J. 685, 687 n.1 (Army Ct.
Crim. App. 2013) (“We interpret [Campbell and related cases] to mean that an unconditional guilty plea, without an
affirmative waiver, results in a forfeiture of multiplicity issues absent plain error.”).
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the issue on appeal—even for facially duplicative specifications—through an intentional
relinquishment or abandonment of a known right. Gladue, 67 M.J. at 313–14;
United States v. Lloyd, 46 M.J. 19, 23 (C.A.A.F. 1997).
“The prohibition against multiplicity is necessary to ensure compliance with the
constitutional and statutory restrictions against Double Jeopardy.” United States v.
Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (quoting United States v. Quiroz, 55 M.J. 334,
337 (C.A.A.F. 2001)). Accordingly, an accused may not be convicted and punished for
two offenses where one is necessarily included in the other, absent congressional intent to
permit separate punishments. See United States v. Teters, 37 M.J. 370, 376 (C.M.A.
1993). The Supreme Court has laid out a “separate elements test” for analyzing
multiplicity issues: “The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299,
304 (1932); see also United States v. Roderick, 62 M.J. 425, 432 (C.A.A.F. 2006).
Accordingly, multiple convictions are permitted if the two criminal allegations each have
at least one separate statutory element from each other.
The two specifications of Article 120, UCMJ, Indecent Liberties with a Child,
contain the following elements when considered together:
(a) The accused committed certain acts, to wit: exposing his penis;
(b) The acts were indecent;
(c) The accused committed the acts in the physical presence of his children;
(d) The accused committed the acts with the intent to gratify his sexual
desires; and
(e) At the time, each of the children was under 16 years of age.
See Manual for Courts-Martial, United States (MCM), Part IV, ¶ 45.b.(10) (2008 ed.).
The two specifications of Article 125, UCMJ, Sodomy, contain the following
elements when considered together:
(a) The accused engaged in unnatural carnal copulation with his children by
placing his penis in their mouths; and
(b) At the time, each of the children was under 12 years of age.
See MCM, Part IV, ¶ 51.b. (2008 ed.).
The appellant affirmatively waived his right at trial to raise this issue on appeal.
“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known
4 ACM 38384
right.’” United States v. Olano, 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst,
304 U.S. 458, 464 (1938)). Trial defense counsel plainly knew they had the right to raise
a multiplicity issue if they so chose. In fact, defense counsel had just successfully moved
to dismiss a separate specification on multiplicity grounds.3 Despite this recent encounter
with the law of multiplicity, defense counsel affirmatively elected not to raise any issue
with the appellant’s plea to indecent liberties, even when the military judge raised the
issue about whether the appellant was guilty of indecent liberties solely because he
inserted his penis in the children’s mouths. The military judge gave the defense an
opportunity to contest the factual basis for the plea to indecent liberties, and the defense
affirmatively asked the military judge to uphold the plea, in part reasoning that the
sodomy constituted the necessary exposure for the crime of indecent liberties.
See United States v. Caulfield, 72 M.J. 690, 692, 695 (C.G. Ct. Crim. App. 2011) (finding
waiver rather than forfeiture of multiplicity issue where defense counsel only requested
relief based on unreasonable multiplication of charges, and concluding “the military
judge did not err and did not abuse his discretion in granting Appellant exactly what he
requested”). Defense counsel’s actions in this case went beyond merely failing to raise
the issue of multiplicity.
Even assuming this issue was forfeited rather than waived, we hold the military
judge committed no plain error by failing to sua sponte find the specifications
multiplicious. Both sets of specifications contain at least one separate statutory element
from the other. The indecent liberties specifications required proof that the appellant
committed the acts with the intent to gratify his sexual desires, a requirement not
contained within the sodomy article. The sodomy specifications required proof that the
appellant engaged in unnatural carnal copulation with his children by placing his penis in
their mouths. Indecent liberties contains no requirement to prove physical contact.
MCM, Part IV, ¶ 45.a.(t)(11) (2008 ed.); United States v. Scott, 21 M.J. 345, 348 (C.M.A.
1986). The two articles therefore each contain distinct criminal elements. 4
In addition, we find the two sets of specifications are not facially duplicative. The
appellant committed the crime of indecent liberties with a child the moment he exposed
his penis in their presence, even though he blindfolded them most, but not all,5 of these
times. Regardless of whether the girls actually perceived that the appellant exposed his
penis before he placed it in their mouths, the crime of indecent liberties with a child only
3
Trial defense counsel successfully moved to dismiss a specification alleging receipt of child pornography on the
grounds that it was multiplicious with a specification alleging possession of child pornography. The military judge
granted the defense motion just 26 pages before he raised the issue that forms this assignment of error.
4
In addition, the sodomy specifications required proof that the children were under the age of 12 years while the
indecent liberties specifications required proof that they were under the age of 16 years. See United States v. Bell,
38 M.J. 523, 524 n.1 (A.C.M.R. 1993) (noting carnal knowledge was not multiplicious with rape because carnal
knowledge required proof that the victim had not attained the age of 16 years, an element not required for the
offense of rape).
5
The appellant admitted in the providence inquiry that he exposed his penis to the younger child at least once when
she was not blindfolded.
5 ACM 38384
requires proof that the appellant engaged in indecent conduct with them. See MCM,
Part IV, ¶ 45.a.(t)(11) (2008 ed.). “Indecent conduct” means “that form of immorality
relating to sexual impurity that is grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or deprave morals with respect to sexual
relations.” MCM, Part IV, ¶ 45.a.(t)(12) (2008 ed.). We have no difficulty concluding,
consistent with the position asserted by both trial and defense counsel in response to the
military judge’s questions, that the appellant engaged in indecent conduct simply by
blindfolding the girls and exposing his penis in their presence in order to arouse his
depraved sexual desires. Under a plain error analysis, we find the appellant’s convictions
for the two sets of specifications are based on different aspects of his criminal conduct. It
is possible for the appellant to have committed the offense of indecent liberties with a
child without having committed the offense of sodomy, and the reverse is also true.
Cf. Schmuck v. United States, 489 U.S. 705, 719 (1989) (discussing lesser included
offenses and requirement that evidence proving greater offense must prove elements of
lesser included offense). This assignment of error provides no basis for relief.
Sentence Appropriateness
The appellant asserts his sentence to confinement for life is inappropriately severe.
His argument is partially based on citations to three other courts-martial where a military
member was convicted of murdering a child but received lesser sentences. The appellant
acknowledges these other cases are not closely related to his own but, nonetheless, asks
this court to compare the sentences in these cases to his for the purpose of relative
uniformity. See United States v. Wacha, 55 M.J. 266, 267 (C.A.A.F. 2001) (explaining
that a Court of Criminal Appeals may, at its discretion, consider and compare other
court-martial sentences when reviewing a case for sentence appropriateness and relative
uniformity). He also notes matters such as his plea of guilty, his expressions of remorse
in his unsworn statement, the testimony on cross-examination of the psychologist
indicating the appellant was somewhat treatable, and the testimony of his wife on
cross-examination indicating some desire to provide the option for her daughters to meet
the appellant when they become adults. In a footnote, the appellant also invites this
court to consider the effects of sex offender registration in our sentence appropriateness
analysis.
This court reviews sentence appropriateness de novo. United States v. Lane,
64 M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and fact and
determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ,
10 U.S.C. § 866(c). “We assess sentence appropriateness by considering the particular
appellant, the nature and seriousness of the offenses, the appellant’s record of service,
and all matters contained in the record of trial.” United States v. Bare, 63 M.J. 707, 714
(A.F. Ct. Crim. App. 2006). See also United States v. Healy, 26 M.J. 394, 395–96
(C.M.A. 1988); United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982). Although we
6 ACM 38384
are accorded great discretion in determining whether a particular sentence is appropriate,
we are not authorized to engage in exercises of clemency. United States v. Nerad,
69 M.J. 138, 146 (C.A.A.F. 2010).
We have reviewed and considered the entire record of trial, including the
appellant’s arguments on appeal, the particular appellant, the nature and seriousness of
the offenses, and the appellant’s record of service. We have also considered the cases the
appellant cites as part of our overall assessment of the range of punishments typically
meted out in courts-martial. While the sentence to confinement for life is severe, it is not
inappropriately so. The appellant repeatedly violated his own young daughters for his
sexual pleasure. He also intentionally sought out, possessed, and viewed child
pornography, using search terms such as “daughter rape.” We acknowledge the appellant
pled guilty, but the mitigating value of this plea is tempered by the fact that the evidence
against him was overwhelming. The appellant’s depraved actions toward his toddler
daughters will undoubtedly have lifelong effects on them and the appellant’s entire
family, as the Government’s expert testified. We see no reason why the appellant should
not similarly feel the effects of his crimes for the remainder of his life. Having
considered the entire record of trial, including the appellant’s request for recognition of
the effects of sex offender registration,6 we find the appellant’s sentence is appropriate.
Staff Judge Advocate’s Recommendation
The personal data sheet the Government introduced at trial listed no combat or
overseas service by the appellant. The appellant did not object to admission of this
document. The staff judge advocate (SJA) attached a similar data sheet with his
recommendation, again omitting any mention of combat or overseas service by the
appellant. The clemency submissions by the appellant and his defense counsel did not
allege any error in the SJA’s characterization of the appellant’s service. Nevertheless, the
personal data sheet is plainly erroneous because the appellant was deployed to Qatar at
the time his crimes were discovered. In addition, his enlisted performance report for the
period ending 7 August 2011 references an earlier 180-day deployment the appellant
completed at Al Dhafra Air Base in the United Arab Emirates.
Proper completion of post-trial processing is a question of law, which this court
reviews de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004)
(citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). Failure to timely comment
on matters in the staff judge advocate’s recommendation, or matters attached to the
recommendation, forfeits any later claim of error in the absence of plain error. Rule for
6
We do not specifically hold that the consequences of sex offender registration are a matter this court must consider
in its sentence appropriateness determination. We merely elected to give this matter appropriate weight in this case,
recognizing both our broad and highly discretionary authority under Article 66(c), UCMJ, 10 U.S.C. § 866(c), to
review sentences and the nature of sex offender registration as a collateral consequence. Cf. United States v.
Talkington, 73 M.J. 212, 217 (C.A.A.F. 2014).
7 ACM 38384
Courts-Martial 1106(f)(6); United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).
“To prevail under a plain error analysis, [the appellant bears the burden of showing] that:
‘(1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced
a substantial right.’” Scalo, 60 M.J. at 436 (quoting Kho, 54 M.J. at 65). Although the
threshold for establishing prejudice in this context is low, the appellant must nonetheless
make at least some “colorable showing of possible prejudice in terms of how the
[perceived error] potentially affected [his] opportunity for clemency.” Id. at 437.
The SJA erred in omitting any mention of the appellant’s overseas or combat
service. Although the Rules for Courts-Martial do not explicitly require mention of an
accused’s overseas or combat service,7 where a summary of the accused’s service record
is prepared, that summary must be accurate. This error was plain and obvious, as even a
cursory review of the record would reveal the fact that the appellant deployed overseas.
However, we find no material prejudice caused by the error. One of the
specifications of possession of child pornography alleges that the appellant possessed the
illegal material “at or near Al-Udeid Air Base, Qatar.” The language of this specification
was provided to the convening authority in clemency. In addition, we see no reasonable
possibility that the appellant’s service in Qatar would have persuaded the convening
authority to grant clemency, particularly when he possessed child pornography there and
his crimes were discovered there, apparently necessitating a curtailment of his
deployment. We see no indication that the convening authority was notified of the
appellant’s earlier deployment to Al Dhafra. Under different facts, we might find that
this failure potentially affected the appellant’s opportunity for clemency. However, the
appellant’s crimes were so horrific that we see no reasonable possibility that the
appellant’s service at Al Dhafra would have convinced the convening authority to grant
relief. We note that the appellant’s overseas or combat service was not so notable to
cause him to mention it in his clemency submission or in his sentencing case at trial. In
fact, the appellant made no effort at trial or in clemency to stress his military service
record, submitting zero decorations, certificates, character letters, awards, thank you
letters, or similar documents at either stage. The summary of the appellant’s service at
Al Dhafra in his enlisted performance report also gives no indication that his service
during his deployment was particularly notable, apart from the fact that all combat
service is noteworthy.
7
Rule for Courts-Martial 1106 previously required the staff judge advocate’s recommendation to include, inter alia,
“[a] summary of the accused’s service record, to include length and character of service, awards and decorations
received, and any records of nonjudicial punishment and previous convictions.” Manual for Courts-Martial,
United States, Part II, Rule for Courts-Martial 1106(d)(3)(C) (2008 ed.). The rule no longer includes this
requirement. See Analysis of Rules for Courts-Martial, Manual for Courts-Martial, United States, A21-88 (2012
ed.). However, Air Force Instruction 51-201, Administration of Military Justice, Fig. 3.7 (6 June 2013), states that
the personal data sheet should list an accused’s overseas service and combat service.
8 ACM 38384
The Government would be well-advised to find no solace in our resolution of this
obvious error. The Government’s neglectful post-trial processing in a significant case
involving confinement for life created an issue where none should have existed. Under
different facts, it might well have led to an order for new post-trial processing or even
sentencing relief by this court. We take this opportunity in this published opinion to
remind staff judge advocates of a point we have pressed before:
We caution SJAs to take no comfort from this holding.
Because the threshold for showing prejudice is so low, it is
the rare case where substantial errors in the SJAR, or
post-trial process in general, do not require return of the case
for further processing. . . . For that reason alone, it behooves
SJAs to pay attention to what they are sending to a convening
authority and take the time to get it right the first time. More
importantly, however, the integrity of our military justice
system demands careful attention in each and every case.
While any given court-martial may seem routine to a legal
office with a busy docket, rest assured it is not routine to the
accused. With rare exception, it will be the single most
important event in that military member’s life. Nor is it
routine to the members of the accused’s unit, or to the friends,
family members, or victims watching carefully to see that
justice is served. Slip-shod treatment of the court-martial
process, whether at the pre-trial, trial, or post-trial stage,
cannot help but undermine faith in the system itself, making it
less effective overall as a tool for maintaining military
discipline. If a military member’s offenses are deemed
serious enough to warrant court-martial, they are serious
enough to demand the time needed to carefully and correctly
shepherd each aspect of the case to conclusion.
. . . Unfortunately, that did not happen here.
United States v. Lavoie, ACM S31453 (recon), unpub. op. at 4 (A.F. Ct. Crim. App.
21 January 2009).
Conclusion
The approved findings and sentence are correct in law and fact, and no error
materially prejudicial to the substantial rights of the appellant occurred. Articles 59(a)
and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c).
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Accordingly, the approved findings and sentence are AFFIRMED.
FOR THE COURT
STEVEN LUCAS
Clerk of the Court
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