United States v. Grijalva , 83 M.J. 669 ( 2023 )

UNITED STATES COAST GUARD COURT OF CRIMINAL APPEALS
UNITED STATES
v.
Mark J. GRIJALVA
Machinery Technician Third Class (E-4), U.S. Coast Guard
CGCMG 0388
Docket No. 1482
May 9, 2023
General court-martial sentenced adjudged on 19 November 2021.
Military Judges: CDR Paul R. Casey, USCG
CAPT Diane M. Croff, USCGR
Appellate Defense Counsel: LT Schuyler B. Millham, USCG
LCDR Kristen R. Bradley, USCG
Appellate Government Counsel: LCDR Daniel P. Halsig, USCG
Special Victims’ Counsel: Mr. Paul T. Markland, Esq.
BEFORE
MCCLELLAND, BRUBAKER & MANNION
Appellate Military Judges
MCCLELLAND, Chief Judge:
Appellant was tried by general court-martial including enlisted members. Contrary to his
pleas, Appellant was convicted of one specification of false official statement, in violation of
Article 107, Uniform Code of Military Justice (UCMJ); one specification of obstructing justice,
in violation of Article 131b, UCMJ; and one specification of wrongfully broadcasting an intimate
visual image, one specification of accessing a computer application without authority and with
intent to defraud, one specification of using without authority a means of identification of
another person, and one specification of creating a profile on a computer application with intent
to defraud, in violation of Article 134, UCMJ. The court sentenced Appellant to confinement for
three months, reduction to E-3, and a bad-conduct discharge. Judgment was entered accordingly.
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
Before this Court, Appellant has assigned the following errors:
I. The unenumerated Article 134 offense in Specification 2 of Charge III is preempted by
Article 117a, which Congress specifically enacted to cover the offense of wrongful
broadcast or distribution of intimate visual images.
II. The convening authority’s withdrawal of the charges and specifications upon which
Appellant had already been arraigned, and then re-referral of them with four additional
specifications without appellant’s consent, violated Rule for Courts-Martial (R.C.M.)
601(e)(2) and R.C.M. 604(b).
III. Appellant’s due process right to timely appellate review was violated, to his prejudice.
IV. The evidence was legally insufficient to support the conviction of Charge I.1
Having considered the fourth assignment, we reject it summarily. We discuss the others
and affirm.
Factual background
Appellant, who lived in Silverdale, Washington, was best friends with Mr. R.K., and
knew Mr. R.K.’s girlfriend, Ms. B.C., both of whom lived in southern California. In early 2019,
Appellant hacked into Ms. B.C.’s Snapchat account by guessing the password after more than
fifty attempts. Without her knowledge or consent, he downloaded several nude and clothed
pictures of her to his own device. Later, he created a Tinder (dating application) account, using
some of the pictures and Ms. B.C.’s name. He communicated with some “matches,” texting nude
and other pictures of Ms. B.C. and soliciting money in exchange for a promise to meet; he
thereby gained about $200.
Appellant made false statements to police in southern California, and later made false
statements to Coast Guard Investigative Service special agents about the location of his device
that held the pictures of Ms. B.C.
1
Raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
2
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
Preemption
Appellant contends that the offense alleged in Specification 2 of Charge III, wrongfully
broadcasting an intimate visual image, is preempted by Article 117a, UCMJ. “Whether an
Article 134, UCMJ, offense is preempted depends on statutory interpretation, which is a question
of law we review de novo.” United States v. Avery, 79 M.J 363, 366 (C.A.A.F. 2020) (quoting
United States v. Wheeler, 77 M.J. 289, 291 (C.A.A.F. 2018)) (cleaned up).
“The preemption doctrine prohibits application of Article 134 to conduct covered by
Article 80 through 132.” Manual for Courts-Martial, United States (2019 ed.) (MCM), pt. IV,
para. 60.c.(5)(a). “An offense listed in Articles 80 through 132, UCMJ, will only preempt an
Article 134, UCMJ, offense if (1) Congress intended to limit prosecution for a particular area of
misconduct to offenses defined in those specific articles of the Code, and (2) the offense charged
is composed of a residuum of elements of a specific offense.” Avery, 79 M.J. at 366 (quoting
United States v. Curry, 35 M.J. 359, 360–61 (C.M.A. 1992)) (cleaned up).
Appellant was convicted of an unenumerated specification under Article 134, UCMJ,
alleging: (1) that he knowingly, wrongfully, and without explicit consent broadcast an intimate
visual image of Ms. B.C., who is identifiable from the visual image or from information
displayed in connection with the visual image when he knew or reasonably should have known
that the visual image was made under circumstances in which Ms. B.C. retained a reasonable
expectation of privacy regarding any broadcast and when he knew or reasonably should have
known that the broadcast of the visual image was likely to cause harm, harassment, or emotional
distress for Ms. B.C. or to harm substantially Ms. B.C. with respect to her safety, business,
calling, career, reputation, or personal relationships; and (2) that, under the circumstances,
Appellant’s conduct was of a nature to bring discredit upon the armed forces. This embraced all
but two of the elements of wrongful broadcast of an intimate visual image under Article 117a,
UCMJ: (1) that the intimate visual image involves a person who is at least 18 years of age at the
time the intimate visual image was created; and (2) that the accused’s conduct, under the
circumstances, had a reasonably direct and palpable connection to a military mission or military
environment.
3
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
We assume, without deciding, that this satisfied Avery’s residuum prong. This alone,
however, “does not trigger operation of the preemption doctrine. In addition, it must be shown
that Congress intended the other punitive article to cover a class of offenses in a complete way.”
United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979). We conclude that the text and legislative
history of Article 117a show the contrary.
The statutory language makes clear that Article 117a is tailored to address nonconsensual
sharing of intimate images of adults that, “under the circumstances, had a reasonably direct and
palpable connection to a military mission or military environment.” Article 117a(a)(4).
Legislative history shows that the specific statutory purpose for doing so was to target the
sharing/broadcasting of intimate images of servicemembers and veterans without their
permission.
Article 117a was first proposed as H.R. 2052. In House debate, it was described as
responding to “the offensive Marines United Facebook page and others like it. On these pages,
male [M]arines posted nude or intimate photos of female servicemembers and veterans without
their consent.” 163 Cong. Rec. H3052 (daily ed. May 2, 2017) (statement of Rep. Frankel). All
but one of the eight speakers during that debate explicitly referenced servicewomen as victims of
the conduct sought to be prohibited. 163 Cong. Rec. H3053-H3058 (daily ed. May 2, 2017). The
exception did not imply consideration of victims who were not servicewomen, but spoke of
“those who traffic in intimate pictures of their teammates.” 163 Cong. Rec. H3056 (daily ed.
May 2, 2017) (statement of Rep. Bacon).
H.R. 2052 was debated and passed in the House on May 23, 2017. During that debate,
too, the speakers referenced servicewomen as victims of the conduct sought to be prohibited.
163 Cong. Rec. H4477-H4480 (daily ed. May 23, 2017).
H.R. 2052 was not passed in the Senate, but its text later became the basis of a provision
of the National Defense Authorization Act for 2018. At the suggestion of the Justice Department,
the final element was added to the text, requiring that the conduct have a “reasonably direct and
palpable connection to a military mission or military environment.” This addition was
4
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
recommended “to avoid First Amendment concerns.” Letter from Stephen E. Boyd, Asst. Att’y
Gen., U.S. Dep’t of Justice, Office of Legis. Aff., to the Chairmen of the U.S. Senate Comm. on
the Armed Services and U.S. House of Representatives Comm. on the Armed Services, at 11
(Nov. 8, 2017), https://www.justice.gov/ola/page/file/1010611/download. Notwithstanding the
First Amendment impetus for the addition, we see this addition as also strengthening the
argument that Congress did not intend to cover civilian victims or preempt use of Article 134 for
such victims.
Appellant asserts that the Marines United Facebook page contained images of civilians as
well as servicemembers (Reply br. at 2), and points out an instance of a Senator, while
questioning the Commandant of the Marine Corps at a Senate hearing, speaking about a civilian
victim (Reply br. at note 2). These are far from persuasive as indicators of legislative intent.
Appellant points out bits of legislative debate that speak more generally and, in isolation,
could support an intent that the proposed Article 117a would cover both military and civilian
victims. However, the entire context of the debates, as described above, refutes any such intent.
The language of Article 117a, along with the full context of its legislative history,
persuades us that Congress intended it to enhance the military’s ability to prosecute those who
wrongfully broadcast intimate images of fellow servicemembers and others with a military
nexus, not cover a class of offenses in a complete way so as to preclude prosecution under
Article 134 when there is no such nexus.
Withdrawal and re-referral
Appellant asserts that withdrawal of the charges and specifications after he had been
arraigned on them, followed by re-referral of the same charges and specifications along with four
new specifications, without his consent, violated R.C.M. 601(e)(2) and R.C.M. 604(b). This
issue calls for interpretation of the cited Rules, another question of law we review de novo.
United States v. Leahr, 73 M.J. 364, 369 (C.A.A.F. 2014).
R.C.M. 601(e)(2) provides, in pertinent part:
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United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
Additional charges may be joined with other charges for a single trial at any time before
arraignment if all necessary procedural requirements concerning the additional charges
have been complied with. After arraignment of the accused upon charges, no additional
charges may be referred to the same trial without consent of the accused.
R.C.M. 604(b) provides, in pertinent part:
Charges that have been withdrawn from a court-martial may be referred to another court-
martial unless the withdrawal was for an improper reason.
This issue was litigated below. The following facts are drawn from the military judge’s
ruling, Appellate Exhibit 31.2
Charges against Appellant were preferred on 4 March 2021. On 28 April 2021, the
Government disclosed four additional specifications that were attached to the already-preferred
charges. A preliminary hearing was conducted on 5 May 2021, which considered all the charges
and specifications, including the four additional ones. All the charges and specifications were
referred to court-martial on 17 June 2021. Appellant was arraigned on all the charges and
specifications on 7 July 2021. At that time, Appellant moved to dismiss the four additional
specifications because they were unsworn.
On 16 July 2021, the Convening Authority withdrew all the charges and specifications, as
the Government agreed that the four additional specifications had not been properly preferred.
On the same date, identical charges and specifications were preferred and re-referred to court-
martial. Appellant was arraigned on these charges on 22 July 2021, which was within 120 days
of preferral of the original charges, after accounting for excludable delay.
Not mentioned in the military judge’s ruling, but not denied by the Government, was that
Appellant never consented to referral of the four additional specifications.
2
The issue was argued in an Article 39(a) session on 1 September 2021, found at R. 120-139. No evidence was
presented; there was no dispute between the parties about the facts.
6
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
On 4 August 2021, Appellant filed a motion for appropriate relief, objecting to “joinder”
of the four additional specifications with the original charges and specifications because it
violated R.C.M. 601(e)(2). (Appellate Ex. 29, pp 1-6.) The Government responded. (Appellate
Ex. 30.) Appellant filed a reply to the Government’s response. (Appellate Ex. 29, pp 7-8.) After
argument at an Article 39(a) session on 1 September 2021, the military judge denied the motion
on 1 November 2021, ruling that the withdrawal of the original charges was not for an improper
reason and did not unfairly prejudice the accused.
We agree with the military judge.
Appellant quotes R.C.M. 601(e)(2), emphasizing “After arraignment of the accused upon
charges, no additional charges may be referred to the same trial without consent of the accused,”
and continues, “In other words, arraignment cuts off the preference that ‘[o]rdinarily all known
charges should be referred to a single court-martial,’” found in the Discussion following R.C.M.
601(e)(2). He further argues, “A convening authority may not simply withdraw charges from a
general court-martial in order to add additional ones and then re-refer them all to the same
general court-martial for the purpose of circumventing the post-arraignment joinder rule.”
(Defense br. at 14-15.)3 It is far from clear that R.C.M. 601(e)(2) prohibits withdrawal and re-
referral with additional charges or that doing so constitutes “circumventing the post-arraignment
joinder rule.” The question is, what is the meaning of “the same trial”? In our view, once charges
have been withdrawn from trial, any future action is not “the same trial” and a re-referral does
not improperly “circumvent” R.C.M. 601(e)(2).
As for R.C.M. 604(b)’s prohibition of re-referral after withdrawal where the withdrawal
was for an improper reason, Appellant contends that the withdrawal in this case was improper
because it “[interfered] with Appellant’s exercise of his right under R.C.M. 601(e)(2) not to
consent to such joinder after arraignment.” (Defense br. at 15.) As noted, we do not see R.C.M.
601(e)(2) as prohibiting what was done here. Further, we reject Appellant’s claim that
withdrawal was improper because it was done to “cover for an error the Government’s
3
In support of this proposition, Appellant cites United States v. Koke, 32 M.J. 876 (N.M.C.M.R. 1991). We find
Koke unpersuasive on the point.
7
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
negligence had caused.” (Defense br. at 16; see also Defense Reply br. at 5.) There is no basis for
the notion that the Government may not correct its errors by starting over, which is what was
done here. See Leahr, 73 M.J. at 370.4
As found by the military judge, the original charges were withdrawn because the
Government agreed that the four additional specifications were not properly sworn. This was
certainly not an improper reason for withdrawal. It is true that the Government could have
instead proceeded only on the earlier, non-defective specifications, but this would have left the
four additional specifications to a separate trial. Those specifications were based on the facts and
circumstances underlying the earlier specifications; two separate trials would have been
manifestly duplicative and wasteful.5 Beyond that, we do not see any basis to find the withdrawal
and subsequent re-referral unfair, arbitrary, or prejudicial to Appellant.
Post-trial delay
Appellant asserts that the period between the completion of the trial and docketing of the
case with this Court was presumptively unreasonable under United States v. Moreno, 63 M.J.
129 (C.A.A.F. 2006), and United States v. Tucker, 82 M.J. 553 (C.G. Ct. Crim. App. 2022),
because it exceeded 150 days, and deprived him of his right to timely appellate review.
We apply a presumption of unreasonable delay triggering a due-process analysis when:
(1) the record of trial is not docketed with this Court within a total of 150 days of the completion
of trial; or (2) we do not complete appellate review and render a decision within eighteen months
of docketing. Tucker, 82 M.J. at 570.
The record shows the following sequence of post-trial events:
Date Event Days elapsed
19 NOV 21 Sentence adjudged 0
30 NOV 21 CR solicited quotes for transcription services 11
4
The original charges were not dismissed in this case, as they had been in Leahr. Nevertheless, the Government
started over in this case, as in Leahr; that the original charges were not dismissed makes no difference.
5
The four additional specifications were not duplicative or overlapping with the earlier specifications, other than
one earlier specification that resulted in a not-guilty finding, so pursuing them was surely reasonable.
8
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
02 DEC 21 Purchase Request (PR) for transcription services approved 13
21 DEC 21 Convening authority signed action 10
28 DEC 21 Entry of Judgment 39
01 FEB 22 Notice: new PR required for transcription services 74
07 FEB 22 New PR approved 80
02 MAR 22 Transcription contract awarded 103
06 APR 22 Transcript received 138
21 APR 22 Appellant’s request for expedited post-trial processing6 153
10 MAY 22 Court reporter’s certification of ROT 172
20 MAY 22 Military Judge’s verification 182
10 JUN 22 Docketing at CGCCA 203
Thus, as the Government concedes, there was presumptively unreasonable delay.
Given presumptively unreasonable delay, we consider the following four factors to
determine whether post-trial delay constitutes a due process violation: “(1) the length of the
delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and
appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 (citing Barker v. Wingo, 407 U.S. 514, 530
(1972)). “No single factor is required for finding a due process violation and the absence of a
given factor will not prevent such a finding.” Id. at 136. If we conclude there was a due process
violation, we must grant relief unless we are convinced beyond a reasonable doubt that the error
is harmless. United States v. Toohey, 63 M.J. 353, 363 (C.A.A.F. 2006).
Docketing took place fifty-three days beyond the 150-day period prescribed by Tucker.
By far the largest component of the period from the end of trial to docketing is attributed to the
process of obtaining a transcript. The Government asserts that transcription delays were
“associated with a once-in-a-generation service-wide financial management transition which
delayed procurements across the Coast Guard.” However, since the transcript was received 138
days after the end of trial, but the case was not docketed until 203 days after the end of trial, it is
clear that the Government gave no urgency to the post-trial process even aside from producing a
transcript. Specifically, it took thirty-four days after the transcript was received for the court
reporter to certify the record, and it took twenty-one after the final act, military judge’s
6
This information was not in the record of trial transmitted to this Court. It comes from a document which was the
subject of Appellant’s motion to attach that was granted: a memo dated 21 April 2022 from Appellant’s trial defense
team to the Convening Authority requesting expedited processing.
9
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
verification, for the case to be transmitted to this Court.7 It is worth noting that the transcript was
received before Appellant’s request for expedited processing, but after that request, the court
reporter’s certification still did not occur until nineteen days later.8
In short, the length of and reasons for the delay weigh against the Government. As noted,
Appellant asserted the right to timely review, shortly after the 150-day period had passed. This
factor, too, weighs against the Government.
As to the fourth Barker factor, prejudice, Moreno identified three sub-factors: oppressive
incarceration pending appeal, anxiety and concern, and impairment of ability to present a defense
at a rehearing. Moreno, 63 M.J. at 139-40. Both the first and third sub-factors depend upon a
successful appeal on other issues, which is not present in Appellant’s case. Also, Appellant’s
sentence to confinement was only three months, by which time there could not be any
expectation that review would have occurred. Hence there was no prejudice based on the first
and third sub-factors.
Concerning anxiety and concern, Appellant asserts anxiety in that he does not have a DD-
214 and this “has narrowed the type of jobs [he] can apply to in my community.” Appellant’s
Aff. 5 March 2023.9 He also asserts that he is ineligible for unemployment insurance because he
does not have a DD-214, and provides a printout, ostensibly from the internet, supporting this
assertion. Id. However, he has held a job at various times. Id. He asserts other disadvantages of
not having a DD-214.
In United States v. Allende, 66 M.J. 142, 145 (C.A.A.F. 2008), the Court of Appeals for
the Armed Forces “assume[d] error and proceed[ed] directly to the question of whether any error
was harmless beyond a reasonable doubt.” Whether or not Appellant’s prejudice in the form of
anxiety establishes a due process violation need not be addressed separately, as the same issue of
7
Neither of these periods is explained.
8
The suspicion arises, from this delay and from the fact that the request was not included in the record of trial, that
such a request is not taken seriously.
9
This affidavit was the subject of a motion to attach that was granted.
10
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
prejudice will determine whether any error (due process violation) was harmless beyond a
reasonable doubt.
An appellant’s affidavit that employers declined to consider him for employment is
insufficient to establish prejudice in the absence of corroborating documentation from potential
employers (or a valid reason for not providing such corroboration). Allende, 66 M.J. at 145. “In
most cases, the appropriate source of information pertaining to the hiring decisions of a potential
employer will be a representative of the potential employer itself.” United States v. Bush, 68 M.J.
96, 101 (C.A.A.F. 2009). Appellant in this case has not provided corroboration and thus has not
established prejudice. As the Court did in Allende, we conclude that any error was harmless
beyond a reasonable doubt.
We turn now to whether we should grant relief under Article 66(d)(2), UCMJ, and United
States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002). This Court may consider “excessive delay in the
processing of the court-martial after the judgment was entered into the record,” Article 66(d)(2),
UCMJ, formerly called “unexplained and unreasonable post-trial delay,” Tardif, 57 M.J. at 224.
As previously noted, it took a total of fifty-five unexplained days for the court reporter to
certify the record and for the case to be transmitted to this Court, forty of which followed
Appellant’s request for speedy post-trial processing, indicating a lack of institutional diligence.
We find the delay unreasonable. We will disapprove one month of Appellant’s sentence to
confinement.
11
United States v. Mark J. GRIJALVA, No. 1482 (C.G. Ct. Crim. App. 2023)
Decision
We determine that the findings are correct in law and fact and, on the basis of the entire
record, should be approved. Accordingly, the findings of guilty are affirmed. Only so much of
the sentence as provides for confinement for two months, reduction to E-3 and a bad-conduct
discharge is affirmed.
Judges BRUBAKER and MANNION concur.
For the Court,
JARAMILLO.CHR Digitally signed by
JARAMILLO.CHRISTOPHER.R
ISTOPHER.ROBI OBIN.1607630603
Date: 2023.05.10 09:35:31
N.1607630603 -04'00'
Christopher R. Jaramillo
Acting Clerk of the Court
12