United States v. Specialist ROBERT G. BURMEISTER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Specialist ROBERT G. BURMEISTER
United States Army, Appellant
ARMY 20170065
Headquarters, 10th Regional Support Group
Christopher T. Fredrikson, Military Judge
Lieutenant Colonel Marvin J. McBurrows, Staff Judge Advocate
For Appellant: Major Brendan Cronin, JA; Captain Meghan E. Mahaney, JA (on
brief).
For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford,
JA; Major Michael E. Korte, JA (on brief).
26 April 2018
----------------------------------
SUMMARY DISPOSITION
----------------------------------
Per Curiam:
In this appeal we address appellant’s claim that his sentence should be
reduced because the post-trial processing of his case was fifteen days longer than the
standard outlined in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). We
determine no relief is required.
BACKGROUND
At his guilty plea Specialist Robert G. Burmeister stipulated to the following
facts:
Prior to joining the Army Specialist (SPC) Burmeister had a sexual
relationship with a fourteen-year-old girl. He was 22 years old at the time. The
relationship lasted three years.
In November 2015, appellant arrived at his new duty station in Japan.
Soldiers greeted him at the airport. The very first question he asked them was “is
child porn legal in Japan.”
BURMEISTER—ARMY 20170065
Two months later, in January 2015, SPC Burmeister initiated online contact
with a fifteen-year-old girl. She told him she was uninterested in having a
relationship with him because he was too old. The child was the daughter of a
Marine Master Gunnery Sergeant. The father subsequently confiscated his
daughter’s phone. Specialist Burmeister, believing he was still texting with the
child, continued to send messages. The messages included asking what “her”
favorite sexual position was, whether she was into biting, and whether she wanted to
spend the night with him.
The father contacted Navy law enforcement.
Soon after, SPC Burmeister began communicating with a person he believed
was a fourteen-year-old girl named “Lizzy Hernandez.” Appellant turned the
conversation sexual. He asked “Lizzy” whether she swallowed a man’s ejaculate
after performing oral sex, whether she would consent to anal sex, and he attempted
to confirm that he would be allowed to perform oral sex on her. Using vulgar
vernacular, SPC Burmeister asked “Lizzy” about her sexual experiences, and asked
her to send him pictures of her masturbating. “Lizzy” then reminded SPC
Burmeister that she was only fourteen. Undeterred, appellant offered to pick
“Lizzy” up and bring her to his barracks room for the night. The conversation with
“Lizzy” ended when SPC Robert G. Burmester then went to her house, knocked on
the door, and was immediately apprehended by agents from the Navy Criminal
Investigative Service.
A search of SPC Burmeister’s phone revealed a sexualized conversation with
yet another underage girl. This time, the victim was the daughter of a member of the
United States Air Force. Having met the girl in person, and having specific
knowledge that she was sixteen, appellant asked her to send him nude pictures of
herself. When she protested, stating, “You’re 25, I’m 16” appellant explained that
his ex-girlfriend was only slightly older than her. Specialist Burmeister’s
conversation with the child included discussions of picking her up from high school,
her curfew, and the rules imposed on her by her parents.
Caught, appellant pleaded guilty to two specifications of attempted sexual
abuse of a child, two specifications of attempted receipt of child pornography, and
one specification of attempted sexual assault of a child.
The military judge, sitting as a general court-martial, sentenced appellant to a
dishonorable discharge, confinement for thirteen months, total forfeiture of pay and
allowances, and a reduction to the grade of E-1. The dishonorable discharge was a
mandatory punishment.
2
BURMEISTER—ARMY 20170065
DISCUSSION
Appellant asks this court to reduce his sentence to confinement because of
unreasonable post-trial delay. Appellant correctly asserts that the 135 days taken to
conduct the post-trial processing of his case is presumptively unreasonable and
exceeds the 120 standard established by our superior court in United States v.
Moreno. 63 M.J. at 142. Accordingly, we are required to answer two questions.
First, is appellant entitled to relief because of the tardy post-trial processing
of his case amounted to a due process violation? See Id. at 135-36. We answer this
first question summarily in the negative. 1
Second, in cases of post-trial delay not amounting to a due process violation,
we must still determine whether under Article 66(c), UCMJ, the sentence “should be
approved.” In answering this question we recognize that a sentence may be correct
in law and fact but still be inappropriate. As our review is not omnidirectional, it
essentially means that we reduce sentences that in our judgment are too high. We
determine appellant is not entitled to relief.
Appellant pleaded guilty to five separate specifications of improper sexual
conduct with three different children, or persons appellant believed to be children.
Appellant further stipulated to a three-year sexual relationship with an underage girl
prior to joining the military. Appellant’s first thought upon arriving at an OCONUS
duty station was of the legality of child pornography in Japan. Appellant’s sexual
misconduct, which was often directed at the minor daughters of fellow service
members, goes to the heart of military discipline. In a profession that often requires
its members to spend extended time away from their family, it is hard to quantify the
loss of trust that may occur if one fears that your fellow service members cannot be
trusted not to molest your children in your absence.
Appellant faced a maximum sentence of seventy-years confinement. Given
the gravity of appellant’s crimes, and the substantial evidence that society needs
1
In its brief, the government, in applying the factors set forth in Barker v. Wingo,
407 U.S. 514 (1972), and arguing the delay in this case did not occasion a due
process violation, notes the court-martial jurisdiction in this case “is relatively
inexperienced in post-trial processing to more populated and busy jurisdictions
around the world.” For our purposes, this assertion is irrelevant to our
consideration. First, government counsel did not move to attach matters to the
record to support this proposition, which is wholly unsupported by anything in the
record. Second, as our superior court has noted, “personnel and administrative
issues . . . are not legitimate reasons justifying otherwise unreasonable post-trial
delay.” United States v. Arriaga, 70 M.J. 51, 57 (C.A.A.F. 2011).
3
BURMEISTER—ARMY 20170065
protection from appellant, an adjudged sentence of several decades was a plausible
outcome of the court-martial. Appellant’s sentence to confinement for thirteen
months represents 1.5% of the maximum sentence. Given the leniency of the
adjudged and approved sentence, we conclude that notwithstanding the
presumptively unreasonable delay in the post-trial processing of appellant’s case,
appellant’s sentence remains appropriate and should be approved. 2
CONCLUSION
The findings of guilty and sentence are AFFIRMED.
FOR
FOR THE
THE COURT:
COURT:
MALCOLM H.
MALCOLM H. SQUIRES,
SQUIRES, JR.
JR.
Clerk of Court
Clerk of Court
2
The case was docketed at this Court on 26 June 2017. When this case arrived at
this Court appellant had completed approximately five months of his thirteen-month
sentence. Appellant’s brief was filed nine months later. While appellant asks this
court to reduce his sentence to confinement based on the unreasonable post-trial
delay, at this point, he has already been released. If reducing appellant’s sentence
to confinement (after it has already been served) has a possible pecuniary benefit to
appellant (notwithstanding that part of the executed sentence includes total
forfeitures of pay and allowances) it has not been made clear to us.
4