United States v. Private E2 JOSEPH KARGBO

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
CAMPANELLA, HERRING, and PENLAND
Appellate Military Judges
UNITED STATES, Appellee
v.
Private E2 JOSEPH KARGBO
United States Army, Appellant
ARMY 20150011
Headquarters, 19th Expeditionary Sustainment Command
Mark A. Bridges, Military Judge
Lieutenant Colonel Maureen A. Kohn, Staff Judge Advocate
For Appellant: Lieutenant Colonel Melissa R. Covolesky, JA; Major Andres
Vazquez, Jr., JA; Captain Scott A. Martin, JA (on brief).
For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Melissa Dasgupta Smith, JA; Captain Jennifer A. Donahue, JA (on brief).
13 December 2016
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SUMMARY DISPOSITION
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PENLAND, Judge:
A military judge sitting as general court-martial convicted appellant, pursuant
to his pleas, of disobeying a lawful order, disobeying a lawful general order, making
a false official statement, and two specifications of assaulting a law enforcement
officer, in violation of Articles 90, 92, 107, and 128, Uniform Code of Military
Justice, 10 U.S.C. §§ 890, 892, 907, 928 (2012) [hereinafter UCMJ]. A panel
composed of officer and enlisted members convicted appellant, contrary to his plea,
of sexual assault, in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2012) and
sentenced appellant to a bad-conduct discharge, confinement for 180 days, forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening
authority approved only so much of the adjudged sentence as provided for a bad-
conduct discharge, confinement for 175 days, forfeiture of all pay and allowances,
KARGBO—ARMY 20150011
and reduction to the grade of E-1. * Appellant was also credited with four days of
Allen credit against the sentence to confinement.
This case is before us for review under Article 66, UCMJ. Appellant raises
two assignments of error, one of which merits brief discussion and relief.
BACKGROUND
In the Specification of Additional Charge III, appellant was charged with
disobeying a lawful general order in violation of Article 92, UCMJ. The
specification alleged:
In that [appellant], U.S. Army, did, at or near Camp
Walker, Republic of Korea, on or about 4 October 2014,
fail to obey a lawful general order, to wit: paragraph 4,
General Order Regarding Off-Installation Curfew, dated
14 January 2013, by wrongfully failing to comply with the
off-installation curfew that is in effect from 0100 hours to
0500 hours Monday through Sunday.
The military judge listed the following elements of this specification:
One, that there was in existence a certain lawful general
order . . .
Two, that you had a duty to obey such order, and
Three, that at or near Camp Walker, Republic of Korea, on
or about 4 October 2014, you failed to obey this lawful
general order by wrongfully failing to comply with the
off-installation curfew that is in effect from 0100 hours to
0500 hours Monday through Sunday.
The military judge did not define “wrongfully.” The providence inquiry as to
this specification included this discussion between appellant and the military judge:
MJ: . . .but with respect to the curfew issue, you realized
it was 1:10 when you looked down at your watch. Prior to
looking down at your watch, did you recognize that you
are about to violate curfew?
*
The convening authority accepted the staff judge advocate’s recommendation to
grant appellant five days of confinement credit for post-trial delay.
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KARGBO—ARMY 20150011
ACC: No, Your Honor. I was drinking, so I didn’t keep
track of the time, Your Honor.
MJ: You were drinking alcohol that night?
ACC: Yes, Your Honor.
MJ: So you just kind of lost track of time and did not
realize what time it was?
ACC: Yes, Your Honor.
Based on his questions and appellant’s responses, the military judge found
appellant’s plea provident and accepted it.
LAW AND DISCUSSION
Appellant now alleges there is a substantial basis in law or fact to question the
providency of his plea of guilty to disobeying a lawful general order in violation of
Article 92, UCMJ. Specifically, appellant cites a case decided by our superior court
after appellant’s court-martial, United States v. Gifford, 75 M.J. 140 (C.A.A.F.
2016), for the proposition that the military judge must address the unstated mens rea
required for a conviction of an Article 92, UCMJ, offense. Appellant argues his plea
was improvident because: 1) there is no factual predicate to establish that he was, at
a minimum reckless, and 2) there is nothing in the record to suggest that he
understood his violation of the curfew must have been reckless in order for it to have
been criminal.
Although the standard for this case is “abuse of discretion,” when the law
changes due to a case decided while an appellant’s case is on direct appeal, appellant
is entitled to avail himself of the new rule, even though the military judge did
nothing wrong. United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F. 2008) (Judge
Ryan, concurring).
Here, Gifford was decided after appellant’s court-martial, so the military
judge did not have the benefit of our superior court’s opinion during appellant’s
providence inquiry. As a result, the providence inquiry was not sufficient to
establish the mens rea required to make appellant’s violation of the lawful general
regulation wrongful and we will take appropriate action in our decretal paragraph.
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KARGBO—ARMY 20150011
CONCLUSION
The Specification of Additional Charge III and Additional Charge III are set
aside and DISMISSED. The remaining findings of guilty are AFFIRMED. We are
able to reassess the sentence on the basis of the error noted and do so after
conducting a thorough analysis of the totality of circumstances presented by
appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986). We are confident that based on
the entire record and appellant’s course of conduct, the military judge would have
imposed a sentence of at least that which was adjudged, and accordingly we
AFFIRM the sentence.
We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.
Senior Judge CAMPANELLA and Judge HERRING concur.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHNDeputy
Chief P. TAITT
Clerk of Court
Chief Deputy Clerk of Court
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